--August 20, 1898)
CHINA OVERLAND TRADE REPORT.
know his conduct. Unless he was disappointed | is in the right? With regard to the first en- through some other people as in the case of cer- try, that relating to the $3,000, I think that its tain friends promising to become shareholders, wording is consistent with the amount being a I therefore cannot say whether this may not loan or a repayment of a loan, but that it leans happen, but as regards his own affairs as well somewhat to the former hypothesis. The as his dealings with me in all transactions he greater number of items in the book consist of has never broken his promise."
sums paid to the Wing UI and other firms and persons, and the form of the entries is similar to that of the one now under consideration. But there are half a dozen entries in which the wording is Paid to so and so to receive back so much," and there is generally an item of in. terest following that entry. The use in other cases of such a form, which is more appropriate to the repayment of a loan, goes to show that the entry with which we are now dealing does not relate to a repayment but to an original payment of money.
In Exhibit I there occurs the following sentence:-"When I arrived at Hongkong I saw Li Sui Shek. The $20,000 worth of share money seemed to be safely relied on, but the remuneration is unfortunately too much, and on this account nothing has been agreed to.”
An inference which perhaps may fairly be drawn from this letter or these parts of letters is that the Appellant was more in terested in the starting and working of the Farm than appears in the evidence. But at any rate there can be no doubt that the Ap- pellant and Tso Cheong were anxious that the Fu Shun Tong should deposit with the Kwong Shing Lung the sum of $10,000. In the case of $6,000 of this amount the date of repayment was to be fixed, while in the case of the balance of $4,000, which was to go on loan to the Appel- lant, the date of repayment was to be left open, in reliance upon the integrity of the Appellant. This request for a loan, contained in Exhibit Ia, although not complied with modo et forma, certainly lends probability to the statement of the Respondent that within a few weeks after. wards the Fu Shun Tong lent to the Appellant at different dates the sum of taels 4,000. But, as if to illustrate the curiously involved char. acter of this case, in this very document-Ex- hibit Ia-there is a suggestion that the Appel- lant will not only repay the amount borrowed hut also give some help to the Fu Shun Tong.
I pass to the consideration of evidence of crucial importance in the case, namely, the en- tries relating to these transactions which are contained in the books tendered in evidence by the Respondent as belonging to the Fu Shun Tong. These books are three in number and are described as follows:-
Exhibit F
Ping San year (Kwongsui 22nd year) Payment of money book
Kept by Fu Shan Tong
7th March.
Exhibit M
Ping San year (Kwongsui 22nd year)
outer counter
Chief book of receipts and payments
(chopped) Fu Shun Tong.
Exhibit N
Ping San Ting Yan years.
Chief book of receipts and payments
(chopped) inner counter
Fu Shun Tong. With regard to the latter two of these books it is alleged on behalf of the Appellant that they have been fabricated for the purposes of this case, but the first is admitted to be a gennine book of the Fu Shun Tong. It seems to bearough memorandum book of moneys paid out, commencing on the 23rd December, 1896, and ending on the 2nd March, 1897. It contains two entries, in parallel and adjoining columns, relating to the matters in dispute. These en- tries are as follows:-
12th Moon
21st day. Paid
Shiu Ching received foreign moneys Tsels 2,160 at 9-9-75.
This money (P) paid through the Shiu Fung to and received by Kwong Mi Un.
Squared up.
23rd day. Paid on loan
$2,000 in Bank notes Li Sin Shek's hand * obtained.
44
*1
or
With regard to the second entry, that relat- ing to the $2,000, there is no doubt of its mean- ing as it stands. The money is expressly stated to have been paid to and received by the Appellant as a ban. But the matter does not rest here. For the Appellant, while admitting that his name as appear ing in the entry was signed by himself, said that the character which is translated "on loan" has been added since he signed his name and also that the character which he wrote after his name signifying "received has been altered to one signifying “taken "obtained." He admitted, however, that these two characters bore the game meaning. It is rery difficult to form an opinion on the question whether these alleged alterations have been made in the entry; so far as I can judge, I should say they had not, but at the same time it must be conceded that from the position of the characters the alterations may very easily have been made. If the entry stands as it was originally written, then it is an exceedingly strong piece of evidence against the Appellant; if on the other hand the entry has been altered in the manner alleged, then the observations just made with respect to the first entry apply to the second also, that is, the wording does not favour the idea of a repayment.
With regard to the outer and inner counter books whose genuineness is impeached on behalf of the Appellant, I have considered carefully the grounds on which they were challenged and have come to the conclusion that these grounds were not satisfactorily made out and that the books should be accepted as genuine. This being so, the two entries in Exhibit F to which I have just been referring are reproduced in Exhibit M-the outer counter book-in the following form
12th moon.
21st day. Paid Si Sin Shek ou loan per Tso's hand at 9.9.75 $3,009...taels 2,160 This amount remitted by the Shiu Ching Bank, Canton, to Shiu Fung, Hongkong, for payment to Kwong Mi Un: 23rd day. Paid Li Sin Shek on loan in Bauk notes 32,000 at 7.2.... tuels 1,440 Personal receipt endorsed in book.
There are two other entries in this book which were referred to in evidence but which do not appear in Exhibit F. The reason given by the Respondent for their non-appearance in that book was that the amounts in question were too small. The entries are as follows:-
12th Moon.
18th day. Paid Li Siu Shek on temporary loan per Tso's hand at 9.9.5... taels 200 21st day. Paid Li Siu Shek on temporary loan per Tso's hand a' 7.9.5.....taels 200 The Appellant admitted that he received these two sums on the dates mentioned from the Fu Shun Tong through the Respondent, but he said they were received as repay. ment
in part of the taels 4,000.. In Ex- hibit N-the inner counter book-there are entries relating to these sums of taels 200, taels 200, $3,000, and $2,000 which correspond in substance with the entries in Exhibit M.
The two dates here given correspond to the 23rd and 25th January, 1897. The Appellant admitted that on those dates he received from the Respondent $3,000 (=taels 2,160) and $2,000 (-taels 1,440) respectively-the first sum by re- mittance and the second in person. It is clear then that these two entries have reference to actual pecuniary dealings between the Fu Shun Tong and the Appellant. But there was a direct conflict as to the nature of these dealings. The Respondent alleged that they consisted in loans of money by the Fu Shun Tong to the Appellant, while the Appellant asserted that they were repayments to him of money borrowed by the Fu Shun Tong from him. Do the form and wording of the entries help us to say who'real issues in the case,
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It was urged by Mr. Francis that the Fu Shun Tong could not have lout the money to the Appellant because they had no money to lend, being indeed notoriously impecunious from the commencement to the end of their short career, But while it is true that they were much pressed with and were ultimately unable to satisfy the claims on them of the Canton anthorities and of the prize-winners, it is equally true that they had the handling large sums of money. Indeed, it may be mentioned that, at the very time when these loans are said to have been made by them to the Appellant, Tso Cheong. deposited with the National Bank of China on their behalf the sum of $8,000. If therefore there was money which could be used for the purpose, there would be nothing strange or unreasonable in one of the principal partners in the Tong securing a loan from it for his friend.
The following observations may not be with out pertinence. The two sums of $3,000 and $2,000 were paid by the Fu Shun Tong to the Appellant on the 23rd and 25th January, 1897. The Appellant says they were paid in part re- payment of a loan of taels 4,000 made by him to the Tong; the Respondent says they were paid as loans from the Toug to the Appellant. If we take the former hypothesis, it is certainly a curious coincidence that these exact sums should, on the 26th February and the 1st March, 1897, have been paid by the Appellant to Fa Shan Tong as fresh loans, while, if we take the latter hypothesis, there is nothing at all curious about the transaction-it is merely the repayment of two loans in the amounts and the order in which they were made.
In cross-examination the Appellant said that he drew $4,000, part of the tuels 4,000 which he lent to the Fa Shun Tong, from one of the shops with which he was connected, but he was unable to produce any book showing an entry to that effect. He did, however, produce a book from one of his shops which showed that he drew from that shop $2,000, part of the $3,000 paid by him to the Fu Shun Tong on the 26th February, 1897, and also the $2,000 paid by him to the Tong on the 1st March, 1897.
With regard to the promissory notes put forward by the Appellant-Exhibits A and B-- which, as I have already said, are inseparably connected with the question of the loans, I do not propose to state in detail the points which have occurred to me in connexion with my ex- amination of them. It must suffice for me
to
say that, as the result of that ex. amination, I have arrived at the same con- clusion as the Judge in the Court below, namely. that the notes are not genuine. This conclusion applies also to the promissory note-- Exhibit R-produced in aid of the Appellant's notes by the witness Li Tsat. ·
The consequence of these views is that I am of opinion that the Appellant has failed to establish his contention that he lent the two sums in question or either of them to the Fu Shun Tong. In view of this finding it becomes unnecessary to express any opinion on the ques- tion whether the Respondent was a partner of the Tong.
I think the judgment of the Court below. was right and should be affirmed and this appeal be dismissed, with costs. Mr. Justice Wise concurred.
Angust 17th.
IN ORIGINAL JurisdictioN.
BEFORE SIR John Carrington (Chief)
JUSTICE).
AN LOONG V. LUM: YUNG HING.
Mr. Slade (instructed by Messrs. Deacon and Hastings), who appeared for plaintiff, said that in this suit, which was undefended, His Lordship It will be seen that my opinion is that the bad given him leave to proceed ex parte by su documentary evidence, taken as a whole, materi-order dated 23rd July, 1898, The action was for ally corroborates the statements made by and damages for breach of contract in the sale and on behalf of the Respondent. It does not ap- delivery of 300 flasks of quicksilver. The pear to be necessary to discuss the alleged tak. goods were to have arrived within 50 days of ing to the Wing UI of the money sent by the the signing of the contract, and delivery was to Appellant, for, if it was so taken, the transac- have been taken within 30 days after that. The tion was probably a piece of chicanery on the goods were not delivered on the 79th day--that part of Tso Cheong which does not affect the was 29 days after the goods arrived-and this
writ was issued.
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