341
SUPREME COURT.
Monday, November 12th.
IN ORIGINAL JURSDICTION.
BEFORE SIR FRANCIS PIGGOTT (CHIEF JUSTICE).
AN INTERPLEADER ACTION,,
In the trial of the issue Khoo Teck Siong, merchants, of Singapore, against the Hung Yus Bank, 173 Des Voeux Road, Victoria, Mr. M. W. Slade (instructed by Mr. Holborrow, of Messrs. Deacon, Looker aud Deacon) appeared for the plaintiff and Mr. H. E. Pollock (in- structed by Mr. Harding, of Ewens, Harston and Harding) appeared for the defendants.
It appeared that two Penang firms in 1904 and 1905 made two shipments of slab of tin to Hongkong on board the Cheong Chew belonging to plaintif and obtained from the Hongkong and Shanghai Banking Corporation advances
$45,688 upon the goods of
the upon bills of lading. However on the arrival of the goods in Hongkong, plaintiff alleged that one Hang Seng Cheong fraudulently took delivery and deposited them in the premises of the Hongkong and Kowloon Wharf and Godown Company and after obtaining the usual warrants be absconded from the colony. On the 15th May, 1905, plaintiff paid to the Banking Corporation $45,688.65 iu consideration of receiving the Corporation's rights in respect. of the goods, 50 as 10 enable him to take possession and to hold the goods as security for the repayment of the said sum, which has not been repaid to plaintiff Uuder an order of the Court the good had been sold and the proceeds paid inte. Court ponding the decision of the issue. Plaintiff now claimed for a declaration that as assignee of the Corporation he was entitled till the sale of the goods to a first charge thereon to the extent of $15,688, and that he was now cutitled to be paid the said sum out of the proceeds of the sale.
The defendants denied that plaintiff was the assignee of the Hougkong and Shanghai Bauk and that he had no right against the defendants to the proceeds of the sale of the slabs of tin ju question. Moreover, they asserted that the} lent the sum of $39,000 to Hang Seng Chiong in consideration of receiving the godown warrants as security.
Mr. Slade having read the statement of claim, explained the facts at some length,
The hearing was adjourned.
Thursday, November 15th.
IN APPELLATE JURISDICTION.
BEFORE THE FULL TOURT,
THE HONGKONG WEEKLY PRESS AND
once on the broad grounds that the plaintiff in the issue was the assignes of the Bill of Lading and that the defendant had obtained his title from a person who had no right to give such a title. Bat, in view as I understand of the importance which the case may have and in view also of the highly ingenious ar.nment which Mr. Pollock advanced, I took time to consider. Five hundred and fifty slabs of tin deposited in the Hongkong and Kowloon Ga. down Company's godown having been claimed by two different parties, the Company took out an interpleader summons, and an issue was directed the two claimants being made plaintiff and defendant respectively. The tin having been sold by order of the Court the rival claims are now made to the proceeds of this sile questions as to the identity of tu deposited with that of the tin claimed by bath parties vere satisfactorily settled during the course of the trial
All
On the bare facts of the case the question is simple; for one claimant is the legal holder of the BL, the other only of the godo zo warrant. The B. L represents the actual goods, and is In the words of Bowin. the legal title to them.
J., in Saunders v. Mclean (11 Q.B.D. 341) the delivery by endorsemont of the B L is the symbolical delivery of the cargo; the godowa warrant is not an absolute document of title,
than
but
no
10
a document of title as
between the Troller and the galown company. As between the holders of thes two donments therefore he who lawfully holds the BL must prevail, and this irrespective of any question of time when the two documents came into their We have not to deal respective holders' hands.
were
1
[November 17, 1906.
bat ia so far as the defendant, the Hang Yai Bank, is concerned I cannot imagine any more indiscreste act than advancing money on a godown warrant without being satisfied that the person to whom the advance is made is the legal owner of the goods or not. From this point of view therefore the Hang Yui Bank could not prevail against the Hongkong and Shanghai Bank nor against the assignee from them of | the B¡L.
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The frand of Hang Seng Cheong was not the depositing of the tin in the godown, which, quite irrespective of his instructions, he was entitled to do as agent of the ship, the B/L not having come to hand, but in obtaining an
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atvance on
the tin and giving the godown wa rant to the Lang Yui Bank.
I now look at the case from the point of view of the independent title of the parties respectively.
derived from
Again on the simple facts of the case, the defendant could not succeed, for his title is
а person who had
u right to gira him the document. oa
which 116 claims. Farquharson 7.
King is this eximple of the explication of the latest doctrine that he who huo title can give nons, In that case the person who except in market. disposed of the goods to the claimant was a Hr. I have little doubt that what
thisf.
ab
Haug Sing Chong di l amounted in how to larcy by a bails: but wasthe it hvor the doctrine applied to a title pret nisl to he given by a bitles which he has not in fact the right to g.ro. What it was said there Was 8 thing special in relation of the with two documents of equal degree, where shipowners to the baile, who was the ship's agat, whic would entitle the defendant to Perhaps other questions might arise. Against
avid th application of the doctrin aul tha! this simple application of the law, the deføu laut,
he was put in such position by the shipowner who is the holder of the godown warrant,
make him commit this frand alleges that the plaintiffs' assi-ruors, the Hong- | himself as to
thwhich in fact he did. I do not think this kong and Shanghai Bank, whic
es oppel but merely this, original holders of the B'L, wers guilty of is a question of
whether the plaintiff's claim cin by strong- negligence in not giving notie to the godowa
thened by the fact that the shipowner has company of their title, and that the cause. quence of this was that the defendant, maig conducted his business in such a way as to have advances on the gown warrant wh c'ila wull en atribut di to or brought ab at the fraud. not otherwise have done. In order that this I think that this argument is sufficiently day must by sha loved forth in the pleadings to justify my plea should be substintiated som a shown which the bank has ongleet d to perforin. considering it. The case here has an extra- ros1mblanç› to the Facts ia If there is such a duty it would have involved ordinary
V. King: but tha paint. the consequence that the bank should first Farquharson
Wiegimined from the point of view of the ascertain the name of the godown company with whom the tia was deposited before the dus destructive rather than the constructiv 5 sida ut date of the BL which the bank had purchased the case. It was provel in order to show that enabled" his agent to com- with the document attached, and before they the principal had kaew it would uot be used. There is no authority for the preposition and I cannot, apart from this authority, hold that such a duty lies on the holder of the B, L. It would mak - the ordinary business which a bauk des in respect of advances on documented bills im- possible. That, like every other form of busi. uess in connection with negotiable instruments, must proceed on the assumption of bona files. The business of a godown company however proceeds it is said on the assumption that the depositor is the lawful owner of the goods deposited, and treats him as such, engaging to fulfil his instructions as to the person to whose order they are to be delivered, as if the depositor were the true owner and therefore entitled to give such instructions. The business could not be carried on in any other way, for it would be impossible for the godown company to investigate the title of despositors of goods. It therefore does no more than treat a depositor as the owner: it does not make him the legal | act. owner, nor invest his instructions as to delivery with any more legality that they inherently If therefore I consider the c18- possess. irrespective of the preponderance of title of the holder of the BL and apply the doc'rine which the law has devised for determining the question of right as between two innocent persons which the fraud of a third party had intervened, I think the plaintiff would be entitled to succed. That doctrine as stated by au merican judge and adopted by the H. L. in the recent case of Farquharson v. King (119 A.L at p. 332) is when one of two innocent persons most suffer from the fraud of a third, he shall suffer who, by his indiscretion, has enabled the third person to commit the fraud." In so far as the Hong- kong and Shanghai Bank is concerned there His Lordship said: In this case,
has been no indiscretion, for they acted in disposed at the trial to have given judgment at accordance with the regular custom of banking,
THE LA HING BANKRUPTCY AGAIN,
Re the Lai Hing Bank ex parte Ma Leung l'o, George H. Wakeman, Official Receiver appellant, and Wong Ka-chnen, respondent. Mr. H. G. Calthrop, appearing on behalf of appellant. made application to the Court for a final order for leave to appeal to the Privy Council. It was an ex parte application.
The Court granted the application.
:
IN ORIGINAL JURISDICTION,
BEFORE SI PRANCIS PIGGOTT. (CHIEF JUSTICE).
BILL OF LADING AGAINST A GODOWN WARRANT.
His Lordship, the Chief Justice, delivered judgment in the trial of the issue between Khoo Teck Siong, a Singapore merchaut, and the Hung Yue Bank, Des Voeux Road, Victoria, as to whose title to the proceeds of a sale of 50 slabs of tin, shipped to the order of plaintiff, should prevail. Mr. M. W. Slade, instructed by Mr. A. O. Holborrow (of Messrs. Deacon. Looker and Deacon), appeared for plaintiff, and Mr. H. E. Pollock, K.C., in structed by Mr. R. Harding (of Messrs. Ewens, Harston and Harding) appeared for the defend- ants.
I
was
¦
mit the fraud, and that he could not recover the goods but non-coustat that in every case in which ous claimant connot recover the other can for his title may also be defective. agres however that there are certain variances in facts which perhaps differentiate this case from the facts in Farquharson v. King; and I therefore must deal with the constructive side of the defendant's case which, based on Swiss v. Francis (L. R 3 App. ca 106). It was said of that the agent having acted within the scope the authority given to him by the shipowner thus perfected the defndant's title, and cure-l it of the defect which I have already dealt with, that it depended on the fraud of a bailee: We got here to another category of cases altogether of which Bɩrwick v. English Joint Stock Bank (L, R. 2 Ex 255) is the leading. In such cases it
may
be stid, as it was said here, that the master had not authorised the act. It is true that he hid not authorised this paticnlar
but LA hal
his put his arent in that share of ac's, and be place to do must be answerable for the manner in which that agut has conducted himself in doing the business which it was the act of the master to place him in. This is the principle laid down Do's this apply to the present by Willis, J. C189?
As I have already said this frand was not the depositing the tin in the godown, Heung Seng Cheong was entitled to do, quite apart from any special instructions: though the deposit was made as if he was the trus owner, which in fact he was a t, and giving the g down warrant to Hung Yui Bank obtain. ing an advance from them on it and having the addition mide to the warrant that the gods were to be delivered to the order of the Hung Yai Bink. It W 13 within the scope of his authority to deposit the gods: it was not within the scope of his authority to rais:
that
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