328
(Scoteb).
After hearing Mr. Pollock also on the point of law,
THE HONGKONG WEEKLY PRESS AND enjoyed their employers' rall confidence, ard | Maclean and Fleming, 2 House of Lords were still in the service of the company. Mr. Sharp had also said that it was not actually necessary for him to put the plaintiff in the box-that the ouus of proof was on the defence. Nevertheless, he would put the ni latiff in the box, and did so, Mr. orkan Philips warned the jury not to be misled By Mr. Sharp's benign exterior, for beneath it lay the astuteness of the able lawyer. The plaintiff was put in the box because he could not be kept out of it. Mr. Sharp and Mr. Slade had gone thoroughly into the law of the matter before they came to Court and they know the law was against them, that they had to put the plaintiff in the box How Le stom the er 89- examination he had been subjected to the jury had seen for themselves.
Mr. Slade-He enjoyed it.
Mr. Morgan Phillips My learned friend Mr. Slade says he enjoyed it, but I don't think be did.
His Lordship-It was a very able and skilful cross-examination.
Mr. 8 ate-And all the more enjoyable for that. my Lord.
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His Lordship said that when the time came he would tell the jury that before they could give damages to the plaintiff they must be satisfied upon the evidence given by bim that the box did contain the sum he said. The onus-the weight and responsibility was uren the plaintiff. who alleged that $50,000 were in the box, to satisfy the jury that wher the box was shipped it con- tained that sum.
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Mr. Elade esked his Lordship if he had con. sidered the charge of frand.
[May 9, 1903.
kong. The paymaster now bought the ship's stores. Before 1902 he had bought supplies for his ship. He dealt with two different firms--Ah Tee and Ah San. For the goods he purchased he paid in Mexican car- rency. He did not pay any of the compradores in U.S. currency. They did not now purchase from Ah Tee. He had made none since he joined the Monterey in December last.
Cross-examined-He was here from January of 1893 until the summer of 1899. When he arrived in 1898 the men were not to his knowledge paid in Mexican currency. In Manila he had never been paid in anything but Mexican; in Japan he had been paid in gold. The supplies he himself bought were for a mess of 45 men for which he catered He did not
His lordship--I do not think I come to that. Mr. Blade-I think you do, my Lord. His iordship remarked that he thought the know whether or not the ship carried U. 8. case could be decided without any determi-money. His rank then was head. stoker. He nation on the issue of frand. Plaintiff was in the Concord in 1898 He did not know spruifically alleged that he delivered to the how payments were made on board army defendants to rarty to Manila a box containing transports $50, 00, a bez which he himself had pu $50,000 into. Defendants admitted receiving the box but denied that it contaived that sum of money. Mr. Slade What is tlat but a charge of fraud?
His Lordship--Then every specific allegation would be a charge of frand.
Mr. Blade-It is an indictable crime to say that the bex contained $50,000 if it did not contain it.
His Lordship What indictment could be
Mr. Slade Obtaining money by falso pretences.
His Lor ship-Shipping money under false pretences.
Mr. Slade-It is indictable to attempt to make money under false pretences.
His Lordship said he thought Mr. Slade and himself were really at issue. Mr. Slade would not dispute that before the jury could possibly find a verdict for the plaintiff they must be satisfied that the money was in the box.
Mr. Elade said he would rather put it the other way. The jury could not find a verdict for the defendants unless they were satisfied that the plaintiff did not put $50,000 in the box.
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G. E. Weigar, of the Monterey, said he joined the ship in 1900. His duty was pay- master's assistant. He knew of Ah Tee. They did not deal with him now. Payments to compradores supplying goods to the ship were made in Mexican. The mer. were paid. similarly. He did not know of any payments being made in U.S. currency of any ships on the China station.
Cross-examined-The paymaster never kept U.S. money on board. He had never been on board a transport and did not know what was the practice on them with regard to payments.
John Hastings, solicitor, was the next witness. He was solicitor for defendants in this action. On 17th September last he was sent for by Shewan, Tomes & Co., and went to their office. He was told that they had received a telegram about the loss of a box containing $50,000 from the Zafiro. Mr. Fung Wa Chun was the com- pradore of the firm. With him he went to plaintiff s shop in Chinese Street. Their object in going there was to ascertain particulars with regard to the shipment and especially to get the numbers of the notes in the hope of recover- ing them and discovering the thief. Plaintiff's shop was quite small. He saw plaintiff at the shop. Plaintiff spoke English fairly well. He told witness he was the master of the Man Loong shop. Witness asked him questions with reference to the box and its contents and took down in writing at the moment the infor- mation he gave them, in the plaintiff's presence box; the man who alleged that there was and in that of Mr. Fung Wa Chuu. (State- $50,000 in the box must prove at big risk to the ment produced and read by the witness.) He jury that there really was $50,000 in it at the had no knowledge of Mr. Fung Wa Chun say. Lime of shipping; if he did not do so the jurying to plaintiff at that time that witness was a should not regard the box as having contained shipping clerk. There was some conversation in Chinese; he did not understand Chinese, Afterwards they went upstairs to sea the safe; it was a small safe, rather old. Plaintiff opened it and they saw it contained some dirty Chinese papers and some teu-cent pieces They asked him whether he had any book referring to this matter, and he produced a book.
Criticising the busiles methods of the plaintiff, Mr. Morgan Phillips said that since 1901 plaintiff had ceased to carry on the busi- ness which was apparently his chief one, that of supplying the UB: ships. The reason why Flaintiff would not produce balance sheet to Show the position of his business was that sinc the time he had sto pel supplying the U.S.made against bim. ravy dis business hai declined so much that he dare not produos balance sheet to show what profits he had been making. Then he said he had held the notes sing 1898. Did the jury think, it likely that this man who had been engaged for years in a large busines would have allowed this large sum to lie on his hands without endeavouring to turn it to soco nt? The interact itself would have been a very fair profit. Was it credible? These notes were not even insured against £2. The plaintiff's whole story as to how the notes came into his hands was a false story, a lying story. The story about Fung Wa Chan telling him that Mr. Hastings was a shipping clerk w.s an utter f ls hood. He would call evidence, too, to His Lordship said he would if the case con- show that it was the regular custom for U.S. tinued lay it down to the jury that the defen- ships le to pay compradores for supplies dant company were liable as carriers to pay altogether in Mexican currency The orews damages for non-delivery of the goods, and the also were paid in Mexican currency while on assessment of the damages must be regulated by this station. At the time of the Spanish-whatever the jury believed was really in the American war there might have been U.S. notes floating about, but he questioned whether the plaintiff could have got this large amount of notes into his po-session even during the war. At that time, too, he would show that U.S. navy payments were made in the way he had men- tioned. Then there was no security required by the United Government for carrying out the rice contract which had been referred to, though there was a security required on the contract for clothing for the constabulary after the contract had been settled.This contract was only for $12,000. The whole ground bad been taken from under the feet of the plaintiff by the result of the commission in Manila with regard to the plaintiff's statement that security was required by him in respect of Government contracts there. It had been shown conclusively that no deposit was in September required from the plaintiff or his representatives in Manila. At that time no contract was advertised for by the U.S. Govern- ment which required any deposit of $50,000 gold or anything approaching it. Mr. Morgan Phillips went on to argn that the onus of proof in this case was upon the plaintiff. He had to satisfy the jury beyond any reasonable doubt that whon the box was taken on board the Zafiro on the 12th eptember it contained $50,000. In support of his argument he quoted the case of Lebean v. General Steam Naviga- tion Co., 8 Law Reporter Common Pleas, p. 86. The Foreman of the Jury asked his Lordship to give them a ruling upon the point whether the onus of proof was upon the plaintiff or the defendants.
His Lordship asked Mr. Slade if he opposed the proposition of Mr. Phillips
Mr. Slade Most plainly. He argued that the other side had to prove frand against the plaintiff and to prove his case against the bill of lading which they sought to impeach, quoting in support of his cont ption the case of
that money.
Mr Slade sald he hoped to be able to enter more fally into this matter before the case was concluded.
His Lordship said he would be glad to hear his arguments before he summed up.
F. G. Pyne, assistant paymaster on the U.8.8. Monterey, 's id the payments to officers and men on this station were made in local currency at present except in exceptional cases. They obtained local currency by drawing upon the Secretary of the U.S. Navy and sold the bills here to one of the banks. This practical was laid down by the regulations Payments to compradores were made in Mexican currency. That was the regulation followed by the U.S. ships on this station. They only carried a small amount of U.S. money on board and they were not required to carry it at all. It was carried cnly for convenience.
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Cross-examined-He asked the plaintiff ques- tions and plaintiff answered them; he did not cross-examine him. When he went to the plaintiff's shop he went down to find out the full facts of the case; he did not know anything about it. fle had no suspicions. He took down the plaintiff's statement because he desired to have ft in writing. When he was down at the shop he was shown a godown on the other side of the street; there might have been four go- downs; he did not know. The plaintiff's shop was a good deal smaller than some Chinese shops. Re-examined-When he went down there he had no suspicions against plaintiff.
Cross-examined by Mr. Slade-He joined the Navy in 19:1. He only knew the practice on Fang Wa Chun, compradore to Messrs. She- this station previously by hearsay. Under the wan, Tomes & Co., said that on 16th September regulations they could pay in gold or a bill of the firm received a telegram from Manila about exchange or in Mexican. He could speak only the loss of this money. Next morning he went for a few weeks. He was not aware whether with Mr. Hastings to the Man Loong shop, or not any large payments were at one time Mr. Hastings asked plaintiff questions and made on this station in American money. took down his answers in writing. Witness W. A. Crouse, commissary steward on the had seen the plaintiff that morning near Monterey, had charge of the men's mess under Shewan, Tomes & Co.'s door. He never told the the paymaster. He had been on the China plaintiff that Mr. Hastings was a solicitor. station different times from the fall of 1894. When witness and Mr. Hastings were coming He was on the U.8. ship Concord during the out of Shewan, Tomes's office they met plaintiff Spanish war and was at the battle of Manila, and he said, "Mr. Hastings, this is the man we About that time he was in Hongkong and as far want, this is Mr. Man Loong." Afterwards as he knew the ships were paying compradores they all three met at plaintiff's shop. Witness. in Mexican money. The men were also paid in | went on to give evidence about sexing the safe, Mexican money while the ships were in "Hong-eta, sorroborative of Mr. Hastings's evidanos.
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