August 20, 1898.]
more members of such firm or partnership, as the case may be." It may well happen that no member or partner in the firm is resident in the colony at the time application is made, and it might be well, therefore, if we can make provision for application to be made by an agent.
The ATTORNEY-GENERAL-I have put it into the Bill that an agent may make applica- tion; but this will not apply with regard to an affidavit.
The Bill was read a third time and passed,
ADJOURNMENT,
The Council then adjourned until the 29th of August.
CHINA OVERLAND TRADE. REPORT.
which were chopped with the chop of the Fu Shun Tong, promised to repay those amounts with interest at the rate of 14 2-5ths per cent. per annum after twenty days from the dates of the notes respectively, according to Chinese computation. It was then alleged that on the 25th March, 1897. and at various subsequent dates the Appellant had demanded payment of the sums so due but the defendants had refused to pay them, and judgment was prayed for such sums, with interest and costs of suit.
FINANCE COMMITTEE, A meeting of the Finance Committee then took place, the Acting Colonial Secretary pre-prietor." Further he denied that the Appellant siding.
The minutes of the previous meeting were read and adopted as a correct record.
**
The Committee agreed to vote a sum of $50 in aid of the vote Coal, oil, and water for steam launch."
The CHAIRMAN-This is needful on account of the increased price of coal this year.
The HARBOUR MASTER-It does not say in what department.
By his answer the Respondent denied that he was a partner in the Fu Shun Tong or had any connexion with it except as a creditor of it and except as the Official Secretary of the late Wai Sing Lottery Farm at Canton of which the Fu Shu Tong was a part pro-
ever lent any moneys whatever to him or that he every gave or made, either through the Fu Shun Tong or otherwise, any promissory notes whatever to or in favour of the Appellant.
When the suit was ripe for hearing I was engaged in the hearing of a loug case, and my learned brother kindly undertook to dispose of it for me.
It was thought that the hearing would be completed in two or three days. But, as it turned out, it occupied nearly ton days. A large mass of evidence, both oral and documentary, of an exceedingly complicated and conflicting character, was placed before the Court, and I entirely agree with the opinion of the learned Judge that "perjury and forgery were rife, certainly on one side and perhaps on both." Iu the result the learned Judge said that, after careful consideration of the evid ence, he was of opinion that he could not accept the Appellant's promissory notes as genuine and in fact he did not think they were, and that that of course disposed of the question of the Respondent being a partner in the Fu Shun Tong or not Judgment was accord- It was understood that should the Governingly given for the Respondeut, with costs. ment require the land for other purposes the money subscribed should be returned to the sub- scribers or their representatives, without in- terest.
The CHAIRMAN-The Government Marina Surveyor's Department.
The Committee also agreed to vote a sum of 82,500 in aid of the rote Miscellaneous works."
The CHAIRMAN-In explanation of this I may tell honourable members that it refers to the expense to be incurred by the Government in laying out a piece of land in the west part of the town. It is proposed to terrace and plant with trees and shrubs a site in the vicinity of Richmond Terrace, the residents of the neighbourhood having agreed to provide a like sum of $2,500,
The Committee then adjourned.
SUPREME COURT.
13th August.
IN APPELLAte JurisdictION.
BEFORE SIR JOHN CARRINGTON (CUTEF JUSTICE) AND MR. JUSTICE WISE (PUISNE JUDGF).
LI SHEW V, TSOI HEUNG PO.
JUDGMENT,
Judgment was delivered in the above case at the Supreme Court on Saturday.
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From that judgment the present appeal is brought.
In the case of the China Merchants' Steam Navigation Company v. The Hongkong. Can- ton, and Macao Steamboat Company, Limited, which was decided by this Court on the 23rd July last, it was held that, in dealing with an appeal from the decision of a judge sitting without a jury, the Court would guide itself by the rule laid down by the majority of the Court of Appeal in the Colonial Securities Trust Company, Limited, v. Massey 1896], IQ. B. 38, namely, that where a case tried by a judge without a jury comes before the Court of Appeal, that Court will presume that the decision of the judge on the facts was right and will not disturb it unless the Appellant satisfactorily makes out that it was wrong, At the same time it is to be observed that in the present case, where the oral testimony produced on the one side is absolutely irreconcilable with that produced on the other, a great deal turns on the meaning and effect of the documentary evidence put forward by the parties. With regard to the oral evidence the opinion of the Judge who saw and heard the witnesses at the hearing is entitled to the greatest weight; with regard to the documentary evidence the Court of Appeal is perhaps equally competent to esti- mate its value and effect.
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alleged to have been given in acknowledgment were relegated to the second place. It seems to me, therefore, that the right order of proceed- ing is to deal with the question of the loans in the first place and with that of the promissory notes in the second place. It may be that the loans were really made and yet that the pro- missory notes are false. At the same time, while I do not regard the genuineness of the promissory notes as vital to the Appellant a case as it stands on the pleadings, I am bound to say that I regard it as of extreme importance. For it must be conceded that, even if the Court arrives at the conclusion that the Appellant really leat the money to the Fu Shun Tong, its faith in the credibility of the evidence on which that conclusion is founded must be rudely shaken if it subsequently forms the opinion that the promissory notes put forward by the Appellant in proof of his statements as to the loan are fictitious. Indeed, it may well be that such a finding would reverse the balance and cause the Court to refuse entirely to accept and act on the evidence of a litigant who had endeavoured to mislead it in so gross and shameless a manner. On the other hand, if the promissory notes are genuine, they afford the strongest possible proof that the loans were really made.
I propose then to consider in the first place whether the Appellant lent the money to the Fu Shun Tong and whether the promissory notes are genuine. If the answer is in favour of the Appellant, the further question must then be considered, whether the Respondent is a partner in the Fu Shun Tong and therefore liable for the loans. To find an answer to these questions it is necessary in the first instance to examine the facts and circumstances relating to the formation, working, and dissolution of the Fu Shau Tong as part of the Wai Sing Lottery Farm.
In the spring of the year 1896 certain capitalists in Canton conceived the idea of ob- taining a grant of the Wai Sing Lottery Farm for the province of Kwangtung, the previous grant having then expired or being about to expire. The moving spirit was a man named Cheung Pat Ting. Mr. Ho Wyson, a solicitor of this Court who has lately died, interested himself in the project, and at his suggestion- Tso Cheong embarked in it, Application was made to the anthorities at Canton in March or April, 1896, for a grant which was ultimately made, for a period of six years, after a consider- able sum of money had been found by the ap- plicants, and the Farm commenced business on the 10th October, 1896. The Farm was worked by a syndicate called the Kung Ki, which again was composed of two tongs called the Man On Tong and the Fu Shun Tong. With the Man On Tong we are not concerned. As to the Fu Shun Tong it is admitted that Tso Cheong was a partner in it. According to the evidence for the Appellant there was only one other partner, namely, the Respondent, who had a half share, while it is said by the Respondent and his wit- uesses that he was not a partner bat that cer- tain other persons were partners. Then there was a lottery station in Canton called the Wing U I, which was worked in connexion with the Fa Shnu Tong. Here again it is said for the Appellant that Tso Cheong and the Respondent were partners in the Wing U 1, while the Res- pondent maintains that he had nothing to do with it. The Respondent was manager of the Fu Shun Tong, but it is in dispute whether be was also manager of the Man On Tong. He appears to have performed the part of interview. It is important to consider in the first placeing the officials in connexion with the Farm, what are the real questions which the Court has and for this Le was well fitted because he held, to determine. I think Mr. Drummond was or at any rate had held, official rank himself right in saying, at the hearing in the Court and had been connected with a former Farm. below, that these questions are, first, did the The persons concerned in the venture never Appellant lend the two sums in question to seem to have had sufficient capital to satisfy the the Fu Sbun Tong, and, secondly, if he did large payments required, and they were so, is the Respondent liable as a partner in throughout more or less in pecuniary difficul- that Tong? The Judge in the Court below ties. The lotteries in connexion with two seems to have regarded the question of the examinations were carried through; the first in genuineness or otherwise of the promissory a regular and proper manner, but the second to The Respondent obtained leave to defend the
notes as of primary importance, and having the disappointment of some of the prize- suit and the case proceeded against him in the decided that question in the negative he held winners. The authorities became dissatisfied ordinary way. By his petition the Appellant that the Appellant's case had failed. But it is and cancelled the grant on the 4th March, 1897, alleged that he had on the 26th February, 1897, | to be observed that, although in the writ of coufiscating at the same time the sum of taels lent to the defendants, partners as above-meu- summons the cause of action was stated to be 580,000 which had been paid in by the Farm. tioned, $3,000 and on the 27th February, the non-payment of promissory notes, yet in Some days later the mob attacked and looted 1897, $2,000, and that the defendants by the petition the cause of action was set forth some of the houses in which the business bad the two promissory notes already mentioned, 'as money lent and the promissory notes' been carried on. It is, alleged by the Re
The Chief Justice (Sir John Carrington) said-This appeal is from a judgment of Wise, J., in favour of the Respondent, who was the defendant in the Court below. By the writ of summons the Appellant, the plaintiff in the Court below, sued the Respondent and another man. named Tso Cheong, "traders lately carry. ing on business at Canton under the style of Fu Shun Tong," to recover the sum of taels 2,160, equivalent to $3,000, due on a promissory note made by the Fu Shun Tong in favour of the Appellant and dated the 27th February, 1897;
the sum of taels 1,440, equivalent to $2,000, due on a promissory note made between the same parties and dated the 2nd March, 1897: and the sum of $279.60 for interest on those promissory notes, making a total claim of $5,279.60. Copies of the notes were set out in the writ. The defendant Tso Cheong did not enter an appearance, and on the 1st November, 1897, the Appellant obtained an immediate ab- golate decree as against him for the amount dlaimed, with interest and costs of suit.
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The evidence is so voluminous aud conflicting that au analysis of it in detail would cause this judgment to run to an excessive length. therefore propose to state y in brief outline the material facts as I find then.
No comments yet.
Private notes are available after approval.