April 26, 1909.)
SUPREME COURT
Friday, April 16th.
IN SUMMARY JURISDICTION,
TAILOR'S BILL DISPUTED.
Lottie Kingsbry was summoned by Yau Lee, a Chinese tailor, for $1.75, the charge for making a dress,
Defendant alleged that the jacket was a misfit and she declined to pay for it. She said also that the jacket was not made of the material which she supplied. When she told plaintiff that she would not pay for it he told her that she was rich enough to pay him. She had money but she was not going to give it
away.
His Lordship asked plaintiff what he had to say. The defendant said the dress was not comfortable and would not fit. Was he willing to make a reduction ?
Plaintiff-Will your Lordship ask her to put on the clothes and you will see. The dross is
worn out.
His Lordship (to defendant). You have not worn it at all ?
Defendant-No. If he will give me a new front and another collar it will do.
His Lordship (to plaintiff). Did you see her wear it.
Plaintiff-Yes, and my foki saw her wear it, When she was at the Magistracy she put it on.
His Lordship--Did you put it on? Defendant-I took it up to show it to the Magistrate.
His Lordship-Did you wear it? Defendant-No, I had on a white dress that
day.
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His Lordship said he was not satisfied that the dress was a perfect fit and he gave judgment for the tailor for the amount claimed, but without costs.
A FALLING BRICK.
CHINA OVERLAND TRADE REPORT.
C. Sequeria claimed from Lam Woo, contrac- tor, $1,000 as damages for injuries sustained through the neglect of defendant's servants.
Mr. Goldring, who appeared for the plaintiff, said this was a case in which a man was hit on the head by a brick which fell from the top scaffolding at Messrs. Jardine, Matheson and Company's new building.
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The case was adjourned for a week to allow of pleadings to be prepared.
A LIQUIDATED CLUB.
E. A. M. Williams, liquidator of the St. George's Club, sued D. M'Cullum, formerly a member, for $25. Defendant did not appear, Plaintiff was represented by Mr. Goldring.
Plaintiff stated that according to the mem- orandum of the articles of association if the club went into liquidation the members were to contribute $25 towards the assets. Defendant had not paid.
Mr. Goldring informed his Lordship that it was a company limited by guarantee,
His Lordship He was a member after you had undertaken the liquidation?
Plaintiff-Yes, my Lord.
Mr. Goldring then went into the witness box and stated that the defendant recently called at his office and asked if he was obliged to pay. Witness advised him that he was. Defendant handed him the writ and said he would
pay
at the end of the month. He would not trouble to come to court.
Judgment was entered for plaintiff with costs. Monday, February 19th.
IN CRIMINAL JURISDICTION.
BEFORE HIS HONOUR SIB FRANCIS PIGGOTT (CHIEF JUSTICE)
EMBEZZLEMENT BY A BANK SHROFF.
Yeung Kwai Leung, alias Yeung Pak Shun, was arraigned on the charge of embezzling $52,747.71 from the Hongkong and Shanghai Bank,
Prisoner pleaded guilty, but asked his Lordship to take into consideration his youth, and to deal leniently with him.
Sir Henry Berkeley informed the Court that the prisoner was one of a large number of shroffs employed in the Hongkong and Shanghai Bank. and one of his duties was to receive money from persons who went to the bank to make a deposit On June 3rd last one Lo Lim Shan went to the bank to deposit $52,747.71 on behalf of the Inspector-General of the Imperial Chinese Customs. This man paid that large sum of money to the prisoner, and gave him at the same time his paying-in book, which contained a foil and a counter foil. The prisoner received a cheque for 340,000 and the balance in cash. got the cheque noted as being good for its face He value, went through the usual formalities, signed the paying-in slip, tore it out of the book, kept part for the bank's check and returned the othor part of the slip to the depositor duly signed. The cash the prisoner ought to have paid over to the note shroff; the cheque, after being noted as good, he ought to have placed in a box from which in due course it would have been taken by the shroff whose duty was to remove it. In- stead of doing this he cashed the cheque and walked out of the bank. No suspicion was aroused until evening when the accounts were being closed for the day, and it was found that the cash was short.
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any money of plaintiffs in defendants' hands. Since then he had considered this case, and other cases referred to, and it seemed to him that there might be liability of the defendants for conversion of an instrument, whether or not they had in their hands money of the plaintiffs. In one of the cases referred there was à demand to deliver up a cheque which had been refused, but in this case there was nothing in the pleadings, or in the evidence before him, to show that a demand had been made to the de- fondant bank to deliver up the draft.
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Sir Henry Berkeley submitted that the defendants were not protected by the Statutes because the bill that they paid did not, on the in whose favour it was drawn. The bill was face of it, purport to be endorsed by the person drawn in English, and made payable to the firm with the name in English' Man Lee Chan and Co."
His Lordship-Probably that is the only way could be drawn in Canada.
Sir Henry Berkeley thought it was probably, tlie only way. The only proper endorsement which could purport to be that of Man Les Chan and Co. would be the words Man Lee Chan and Co." in English
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His Lordship and you say that if the bank took any other endorsement they did it at their own risk?
Sir Henry Berkeley-That is what I submit. Mr. Calthrop said the prisoner's story was Proceeding, Counsel submitted broadly that a that after the $40.000 had been paid over to him bill drawn in English in he found he was $10,000 short. Then he tookpayee, whose name appeared in the body favour of the
the whole amount and went to consult a friend of the bill in English, was not properly. That friend was a most unscruplous person. He endorsed in Chinese. If it would be pro- told the defendant at once that no one would be perly endorsed in Chinese, the onus lay upon lieve his story about losing the $10,000 and that the bank to show that the endorsement in he might as well take the whole lot. The friend Chinese characters truly represented the name took care of the $40,000 and gave the prisoner of the payee. So far as the evidence had gone, away, which he did. The accused went to Can about $2,000, and promised to assist him to get the plaintiffs declared that the endorsement .ton and then up north, where he remained for
"Man Lee Chan Sing Kee," did not represent the Chinese equivalent of their name in Eng- some years. Eventually he turned up at Shanglish. There had been no evidence to the hai and was arrested His Lordship could see contrary, and the Court must therefore accept that the defendant was a very young man.
He that. His Lordship would remember that was only a little over twenty-one at the time of Counsel had addressed him on the question of this occurrence, and a man who must have been bona fides, and that Mr. Pollock had suggested in a respectable position before he entered the that as far as Statute 7 of 1907 went, the bank. There was this sudden temptation; he element of good faith did not enter into the had to account for $10,000 and was led away by consideration thereof, but that it was confined this other person who was very much older to section 60 of the Bills of Exchange Act. than himself, and foolishly yielded to temp. That, he submitted, was a contention which bill within a few days, almost hours, after hav- could not be supported. A banker who paid a
ing been informed that that bill was stolen, should not be held by the Court to have acted in good faith in the ordinary course of his business within the meaning of those words as used in the Statute. Inasmuch as good faith was essential to protection under the Statutes, this bank which paid the bill under the circumstances detailed to
the Court should not be protected. They refused to pay the slightest attention to the owner, and a few days afterwards they paid the money to a thief. After the bank had got notice from Mr. Kong Sing, when the bill was presented they should have made some excuse and sent round and informed Man Lee Chan and Co. that the bill had been presented. Man Lee Chan would have followed hot foot, and the thief would have been arrested. If his Lordship should find that the bank were protected by the Statutes, then Counsel would submit that they were liable in conversion, or for money had and received for plaintiffs' use. If the defendants were liable in conversion, then they were liable to the plaintiffs for the bill or its value. If the bill had been received by the plaintiffs and taken to the In- ternational Bank, and the bank refused to pay it, plaintiffs would have had no case to sué, but he submitted that the fact of their paying the bill made all the difference. From the faota before the Court, his Lordship must draw the inference that the bank did admit that it had funds to pay this bill, because it did pay it.
tation. This was not a case where a man had committed a series of great frauds but a
case where a young man suddenly yielded to temptation. Mr. Calthrop asked his Lordship to view the case with all the leniency he could. It was a serious offence, but the prisoner was young and Counsel thought the story he told was true. It was a wrong thing and a wicked thing to have done, but the prisoner yielded to very strong temptation Counsel concluded by asking his Lordship to view the case with all merciful consideration.
His Lordship thought he must regard the offence, not from the amount of money stolen, bub from the nature of the offence and the position which the prisoner occupied. He did not think he could possibly impose a less penalty than five years' imprisonment with hard labour,
The Sessions were adjourned síno die.
Tuesday, April 20th.
IN SUMMARY JURISDICTION.
BEFORE HIS HONOUR Mr. H. H. J. "GOMPERTZ (PUISNE JUDGE).
The action in which Man Lee Chan and Col sued the International Banking Corporation to recover $840 alleged to be due in respect of bank draft, again came before the Court.
Sir Henry Berkeley, K.C., instructed by Mr Otto Kong Sing appeared for the plaintiffs and the Hon. Mr. H. E, Pollock, K.C., in structed by Mr. C. D. Wilkinson (of Messrs Wilkinson and Grist) represented the defendant bank.
His Lordship thought it might be useful in this case if he stated shortly his view of the law Hon. Sir Henry Berkeley, K.C., acting At- It seemed to him when he heard the case ori torney-General, who was instructed by Mr.ginally, before the pleadings, 'that it would be Dennys, jr., from the Crown Solicitor's office, prosecuted, and Mr. H. G. Calthrop, who was instructed by Messrs. Wilkinson and Grist, appeared for the defendant.
difficult for the plaintiffs to recover as the defendants were not acceptors of the bill, and there was no contract. As to conversion, the difficulty was that he could not see there was
For the defence, Mr. Pollock called Mr. F. S. Clarke, cashier in the Hongkong office of the International Banking, Corporation. He was the officer who sanctioned the payment of drafts drawn on the bank. The endorsements on- drafts payable to Chinese were examined by one of the shroffs. Witness remembered a Chinese calling at the bank sometime in December last with reference to a draft for $840. The caller said the draft was payable to Man Lee Chan, but that it had been lost or stolen in the post.
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