}
244
•
and the next sentence in Chalmers makes this clear: "For the purpose of enforcing the debt the principal debtor on the instrument may be treated as such: but apart from this as soon as the creditor is affected in the notice that the apparent principal was and is only a surety the ordinary consequences which flow from that relationship enter, and the creditor disregards them at his peril," Now the plaintiff's sase stated quite crudely is this: Li❘ Lan Nam draws on him for $10,00) at 21 days; he tells him he has negotiated the bill at the bank with the assistance of Wing Cheong and Wing Tang Sun 38 guarantors; he does not say a word to lead the plaintiff to believe that they have also guaranteed him. If the letter bore this construction it would have been necessary to inquire whether Li Lan Nam had authority from the other defendants to give their names as guarantors to the plaintiff, but it cannot be so construed. When the letter was produced the plaintiff in cross-examination said: "They were to guarantee. They will have to pay the bank if I fail bat if I pay they will repay me," I do not believe this to be true, quite apart from another statement he made in cross-examination, He said he had business dealings with the three. firms before but when pressed be shuffled, saying first that he had bill of exchange transactions with the three firms and immediately afterwards he corrected himself and said they were with the Wing Cheong only; that e had other business
others with the
but not in connection with drafts; and his books being pro. duced showed
account with Wing Cheong or with Wing Tung Eun which he ex- plained by saying that the bill was entered in the account with Wing Cheong. This is much too unsatisfactory for me to believe even if there were a possibility of the letter having this in- terpretation. But it does not imply and it was admitted in answer to my question that the action here in this court must be on the letter and not on the bill: that the Wing Cheong and Wing Tung Sun could not be sued on this letter. The question involved n this instance as illustrated by the case on which it is based Manby v. Boycott was recognis. ed. That case establishes the proposition that if a drawer of a bill does in fact sign as surety to the knowledge of the drawer then the giving of time to the principal debtor releases the surety. This was laid down in 1853. A few years later it was treated in The Queen's Bench as an equity but the point which bas to be proved here is not that these two parties who a pear as drawers were sureties to the drawer but that they signed only as sureties to the bank, the payee, and that they undertook no liabilities towards the drawer; that so far as they are concerned the
no
bill must be treated as if their names were not in it. So that the question is whether the principal laid down in Manby v. Boycott is merely with dealing with the question of giving to the principal debtor, or is only an example of a larger principle that the circumstances in which a bill is made may be given in evidence, in spite of the rule that vocal evidence is not receivable to contradict a written instrument. Į The general rule is laid down that evidence may be given which ja con- sistent with the written instrument and Lord Campbell says that if the payee of a joint and several promissory notes made in the common form by two may be placed in the situation of treating the one as surety for the other, this cau only be by his express appeal to do so when the note was delivered to him; that is by an arrangement. But the question here is the converse can the drawee of a bill of exchange drawn in the common form by three be placed in the situation of treating two of them as if their names were not on the bill P I think that what you can do in one case on the authority of Manby v. Boycott you can do in the other-for it can be done in any case only in virtue of some definite principle and cannot by considered merely with the question of giving time. Therefore I think the answer must be in the affirmative if be knew the object with which thoas in fact put on the bill and it is clear that he did from the letter of 7th February from Li Lan Nam. The same result is arrived at by considering the question from the point of view of the discharge of the bill. By section
names were
|
THE HONGKONG WEEKLY PRESS AND
59 a bill is discharged, that is, all rights, of action thereon are extinguished by payment in das course, that is, at or after maturity of the bill, by the drawee. That is what happened in this 0889. By subsection 3 an accom. modation bill is discharged if it is paid in due course by the party accommodated. It says nothing about payment in das course by the ac- commodating party; this therefore fal's within the first subs ótion; indeed subs3otion 3 is only introduced; to provide for a case which does not fall within subsection 1. When a bill is discharged the rights of action. on it
bat are extinguished the rights which aris out of what Chalmers calls very aptly "the bill transaction" remain. I therefore have no difficulty in accepting his statement on page 202 that "if an accommodation ac- ceptor pays a bill it is discharged, but he has a personal right of action for indemnity." In other words the action here after the bill was paid by the plaintiff is not on the bill bat on the bill transaction; the whole of which is contrined in the letter of 7th January from Li Lan Nam aud on that letter there is not the shadow of a right which could be enforced against these two defendants, nor any word from which an undertaking on their part to indemnify the acceptor could be implied. Judgment must therefore te for the defendants with costs.
Mr. lade-Against both defendants who appear?
His Honour - Yes.
IN ORIGINAL JURISDICTION.
I
THE INTERPRETATION OF A CHARTER PARTY, The case in which, the Man Cheong Yuen firm claimed from the Fukusei Company 527 bags of rice belonging to the plaintiffs in the possession of defendants or $5176.94 the value thereof and $500 damages for deleation thereof, was called on, Mr. M. W. Slade, instructed by Mr. A. G. Jackson, of Messrs. Johnson, Stokes and Master, Appeared for the plaintiffs, and defendants were represented by the Hon. Mr. H. E. Pollock, K.C., instructed by Mr. C. E. Beavis.
His Lordship said :-The case was argued before me yesterday. It is a cass practically in which two parties have endeavoured to state in the contract their views to one another and have signally failed in expressing any definite intention of what they meant. It is perfectly clear to me that, if there had been a board of commercial arbitrators, this is a case which should have been referred to it at once. Instead of wasting a year in the law courts, it could have been tried and decided quickly by a board of arbitrators. Une always gets ideas rather late, but I have no doubt that I ought to have had an assessor sitting with me in this case because this is a question which, as lawyer, I may decide something which is quite contrary to the meading of either party. It is perfectly clear that it is a commercial arrange- ment between two firms and to decide between them is perfectly bona file, bat I osanot help thinking even now the matter can be arranged by an arbitrator.
8
Mr. Slade-Evidance could be obtained from shipowners. This is a form of contract which has been in use here for many years. I think your Lordship would be satisfied as to the commercial interpretation by a quarter of an hour's evidence
His Honour-I do not want to do that. That was suggested yesterday. If the parties do not agree I must decide it by myself. I bave power, think, under the section to appoint an assessor. think the parties might perhaps agree.
Mr. Blade-As far as I am concerned I am perfectly willing.
Ulis Honour-I think you had better do that. It is not a case for a law coart. Whatever decision I give must be unsatisfactory. It is much batter to have the assistance of an
assessor.
Mr. Pollock-As your Lordship pleases. His Honour-I do not intend to re-argue it. Mr. Slade-It seems to me you want to know what is the practice of the Colony.
His Honour-No, I want to interpret it according to the ideas of those concerned with charter parties,
Mr. Pollook-The court might appoint an
assessor.
[April 19, 1908.
His Honour-Yes, if you agree to the suggestion. 'I am not going to force you to have an assessor,
Mr. Poll ok-I understand your Lordship will have the assessor in your chambers without any further argument?
His Honour-Yes.
Mr. Pollock-We are both agreed. The appointment of an assessor was after. wards considered.
IN BANKRUPTCY JURISDICTION,
A DEAPER'S FAILURE. A. Mahommed, lately carrying on business as a draper at 18 D'Aguilar Street, attended for his first public examination.
Debtor stated in reply to the Official Receiver that he commenced business as a draper at the end of 1904 when he bought the shop for $7.500. He paid $1.000 in cash and the remainder be agreed tp y by monthly instalments of $400. There was still a balance of $400 to pay. He could not tell what the profits were, although he hat kept books which had never been entered up since the commencement of the business, as he did not understand bookkeeping. It was a cash and eredit business and for the first two years he knew he was making a profit, but during the last two years he was aware that he had been losing money. He still went on ordering goods
on credit to the extent of $2.00) and he borrowed several thousand dollars, after he knew he was insolvent, to pay for some of the goods he had obtained on credit. He had no other pro- perty except the stock which realized about $18.000.
The examination was closed.
IN SUMMARY JURISDICTION.
BEFORE Mr. H. H. J. GoMPERTZ (ÁCTING PUISNE JUDGE).
:
DANENBERG ▼. WEISSMANN, Francis Paul Danenberg, aerated water sued Hans Weissman, of manufacturer, Queen's Road Central, for $291.58, being. balano of money due for goods supplied. Mr. Atkinson, from the office of Messrs. Deacon, Looker and Deacon, appeared for the plaintiff, and defendant was represented by Mr. F. X. d'Almada e Castro.
serated waters,
Mr. Atkinson stated that a slight error had been discovered in the accounts and the claim was reduced by 817 or $18. The dealings between. the parties commenced as far back as 1902 when plaintiff at the request of defendant took cakes and pastries from him as he was starting business. He sold those for him, and at the same time furnished defendant from time to time with This arrangement continued for some time, but though payments were made occasionally, the account was never actually sett- led and in consequence the pressat action was raised. Accounts were sent in to defendant, and in February 1906 plaintiff, at the request of the defendant, went and saw him. He showed the account to Mr. Weissmann and after the latter had studied it he agreed to the amount. It was arranged as defendant was not able to pay the money that the discount of 20 per cent which Mr. Danenberg usually allowed to purchasers should be reduced to 10 per cent and the remaining 10 per cent used in the reduc tion of the account. This arrangement was arrived at in March 1996. Defendant sont in an account which was difficult to understand, but the greater part of plaintiffs' claim. was admitted.
Plaintiff was called and corroboratel Mr Atkinson's opening statement. He added that Mr. Weissmann explained he could not pay when asked because he had incurred great expense by going home to get married. When he learned that defendant was about to leave the Colony he wrote reminding him of his account but delivery of the letter was not accepted at the Café Weissmann. Plaintiff himself weat there and was told that the café was no longer in the name of Mr. Weissmann, He then proceeded to defendant's residence where Mrs. W sisamann said her husband was in the shop. She enclosed the letter in an envelope which she addressed in German and sent to the shop. It was then accepted.
For the defence the “statute of limitation's” was pleaded. Judgment was reserved,
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