Skip to Content

Colonial Cases

Hop Kee v. Bidwell, 1880

[promissory note]

Hop Kee v. Bidwell

Supreme Court for China and Japan
French C.J., 8 January 1880
Source: The North China Herald, 15 January 1880

 

LAW REPORTS.

H.M.'s SUPREME COURT.

Shanghai, 8th January.

Before G. FRENCH, Esq., Chief Justice.

HOP-KEE v. BIDWELL.

   Mr. MYBURGH appeared for the plaintiff.

   Mr. WAINEWRIGHT appeared for the defendant.

   This was a claim on a promissory note, to recover the sum of Tls. 600 and interest.

   The petition set forth that on the 30th May, 1878, defendant, by his promissory note, promised to pay to the plaintiff Tls. 600 three months after date fixed.  The note became due on the 30th August, 1878, but defendant did not pay the amount, and had not done so, hence the action.

   Defendant, in his answer, said he had been informed and verily believed that Hop-kee was not an individual but a firm or hong consisting of two persons, Shen Tao-char and Che-wo; that he made and signed the promissory note for the accommodation of the said firm, or of the said Che-wo; and that there never was any value or consideration for the making and signing of the note by him, and the plaintiff had always held the note without any value or consideration.

   The note being admitted it rested with the defendant to show that it was given under the circumstances detailed in his answer. Defendant was examined, and he swore that the note was given by him as an accommodation bill to assist Che-wo out of his troubles and embarrassments, and to enable him to settle certain share transactions.

   After defendant had been cross-examined at considerable length by Mr. Myburgh, the further hearing of the case was adjourned until Wednesday next.

The North China Herald, 22 January 1880

LAW REPORTS.

H.M.'s SUPREME COURT.

Shanghai, 14th  January.

Before G. FRENCH, Esq., Chief Justice.

HOP-KEE v. H. S. BIDWELL.

   Mr. MYBURGH appeared for the plaintiff.

   Mr. WAINEWRIGHT appeared for the defendant.

   This case was before the court on the 8th inst., when it was adjourned until today.  It will be remembered that it is a claim by the plaintiff, who is a compradore in the service of Messrs. Butterfield and Swire, to recover the sum of Tls. 600 on a promissory note.  Defendant admitted the note by pleaded that it was given for no value received and for the accommodation of the defendant.

   Mr. MYBURGH, on behalf of the plaintiff, now explained that the evidence he should produce before the Court, to prove the consideration that was given for the note, would be first the plaintiff, who would state that on the 90th April, 1877, he received a native bank order for Tls. 500 from a Chinaman named Tao-chai, when Mr. Bidwell signed an agreement to repay him.  He should next call Mr. Bidwell's  former boy who would prove that the note was handed to him by Mr. Bidwell to cash, that he cashed it at a native bank, and that Mr. Bidwell paid him the sum of $300 odd due him on mess account our of the proceeds.  Then he would call a man from the bank to prove that Mr. Bidwell's boy did cash the order.

   Mr. WAINEWRIGHT said to save time he might state that since the case was last before the Court Mr. Bidwell had recollected that he did receive a sum of Tls. 500 from the plaintiff in or about April, 1877, but it was not for what the plaintiff represented it to be.  He was willing to admit the receipt of the order and that the defendant got Tls. 500 for it.

   Mr. MYBURGH said under those circumstances there was no necessity for him to go so fully into the evidence as he had intended.

   In answer to his Lordship, Mr. WAINEWRIGHT explained that when Mr. Bidwell was under examination the other day, he did not remember the payment of the Tls. 500.  It did not appear in his books, and taking place two years ago he had forgotten it.

   Mr. MYBURGH said there was another thing he might point out.  The other promissory note for Tls. 3,000 odd, which Mr. Bidwell said he gave to the plaintiff for his accommodation, was first for a much smaller ambient. The note for the smaller amount was cancelled and an additional sum added making the amount Tls. 3,241.47 - an accommodation note for an odd amount, which was very strange on the face of it.  Mr. Bidwell's books, he said, would prove that this was so.  He then called the following evidence:-

   Hop-kee, alias Che-wo, deposed - My name is nor Fung-li, and I have never used that name.  Mr. Bidwell never gave me a promissory note for Tls. 3,214.47.  He never gave me the note produced for that amount.  The endorsement at the back of it is not in my handwriting.  I never saw the note or the endorsement before.

   On the 9th April, 1877, I lent Mr. Bidwell Tls. 500.  Mr. Bidwell gave me a long receipt in which he promised to give  me 500 bonds in the China loan, then being worked through Messrs. Butterfield and Swire.  If I did not get the bonds, Mr. Bidwell was to pay me back the Tls. 500 in six months.  The receipt Mr. Bidwell gave me was in writing, and Mr. Bidwell took a copy of it.  I had the receipt in my possession. Butterfields and Swire did not negotiate the loan, therefore I did not get the 500 bonds, and defendant did not pay me the Tls. 500.  He told me to  wait, wait, wait.  He kept putting me off in this way until the 30th May, 1878, when he gave me the promissory note for Tls. 600, upon which the present action ois brought. The Tls. 600 was the Tls. 500 I had lent him and Tls. 100 for interest at Tls. 14.8.

   On the 30th May we settled this transaction, Mr. Bidwell giving me the promissory note for Tls. 600 and I gave him back the receipt.  The promissory note was payable three months after date.  The Tls. 100 we settled as interest.  It was for interest from the 9th April, 1877, to 30th May, 1878.  He has not paid me.  Mr. Bidwell has not asked me to return the promissory note for Tls. 600, nor have I vraised any money on it.  No one would lend me money on it.  Mr. Bidwell's statement is nonsense that he gave me the note as an accommodation to enable me to raise money.

   Plaintiff produced his book containing an entry of the transaction.  The entry was in Chinese and there was no qualified interpreter present to translate it.

   Mr. MYBURGH proposed to put the entry in as evidence, and said he expected the Court would have an interpreter.

   His LORDSHIP pointed out that in civil cases it was the duty of the parties to provide their own interpreter; in criminal cases it might be different.  In England the costs of an interpreter in civil cases were part of the costs of the suit.

   Mr. MYBURGH thought a different state of circumstances existed in the East, and pointed out that it had been usual for the court to provide an interpreter.

   Mr. WAINEWRIGHT mentioned that an interpreter was provided by the Courts in Hongkong in civil as well as criminal cases.

  His LORDSHIP said that might be.  They were now, however, in an English Court of Justice, in which costs were given on the same principle as they were in the Courts in England; and he certainly should not sanction the Government paying any costs for an interpreter in civil cases unless he first received the sanction of the Secretary of State to do so.  The entry Mr. Myburgh proposed to put in as evidence was perfectly unintelligible to him - he might as well be asked to read the language used up in the moon.  But even if he were versed in Chinese the entry should be properly translated and an interpreter should be present.  In England a Judge might be a perfect French scholar, yet where French interpretation was required, there would be an interpreter.  The entry as it stood was perfectly useless, being to him in an unknown tongue.

   After some further discussion as to a translation of the entry by Mr. Wainewright's Chinese clerk being accepted, to which Mr. Wainewright objected, Mr. Myburgh  said he would not put the entry in, but his lordship could note that there was such an entry in the plaintiff's books.

  Plaintiff was then cross-examined by Mr. WAINEWRIGHT - I took part in the negotiation for the loan of 1877 with Hu, Taotai, Mr. Cowie, Mr. Bidwell, and plenty other men.  Mr. Bidwell asked me to lend him the Tls. 500 as a loan.  Mr. Bidwell told me that the loan in which I was to have 500 bonds would be issued in £100 bonds at a   discount of £5, and as they were bound to go up to £98 or £100, I should get a good chance.  He told me this the same day as he gave me the receipt in which he spoke about the bonds and the Tls. 500.  The receipt was in English, and I had it interpreted.

   The negotiations for the loan with Messrs. Butterfield and Swire broke down, and then Hu, Taotai, went to the Hongkong and Shanghai Banking Corporation.  Mr. Bidwell went and asked the Bank if they could negotiate the loan, and then Mr. Cowie and Hu, Taotai, went to the bank and settled the terms.  I was to get 300 bonds of £100 each through Mr. Bidwell.  First the company in Shanghai were to get 2,500 bonds of which my proportion was to be 300, but instead of 2,500 bonds only 1,000 bonds were obtained.  I am unable to say what my proportion of those will be as I have not settled with Mr. Bidwell.  The undertaking Mr. Bidwell gave me to get the 500 bonds in consideration for which I gave him the Tls. 500 was written on blue paper.  I recognise my signature to the entry in the book produced.

   The entry was read and was to the effect that the plain tiff and Mr. Bidwell, two Chinese bankers, and another compradore at Messrs. Butterfield and Swire, arranged to take up 2,500 bonds of the Chinese loan, which were to be divided among them on certain proportions.

   Re-examined by Mr. MYBURGH - Messrs. Butterfield and Swire did not put through the loan, and therefore I did not get my 500 shares.  The transaction of the 2,500 shares is a different one altogether.  That is a company in which four or five are concerned.  The first proposed transaction was my own, and nothing to do with any company.  I paid the bank order produced to the defendant.

   The COURT then adjourned.

   On resuming in the afternoon, Mr. Myburgh said he had no further evidence to adduce, the other side having admitted been paid Tls. 500 by Hop-kee.

   Mr. WAINEWRIGHT applied to re-call the defendant to rebut certain statements made by the plaintiff, more particularly as to the sum of Tls. 500 being a loan.

   Mr. MYBURGH pointed out that the defendant had already been examined on the point and denied that he received the Tls. 500, and now he had admitted having received it.

   His LORDSHIP read the evidence given by the defendant on the previous occasion.

   Mr. WAINEWRIGHT contended that he was entitled to recall the defendant to give him an opportunity to explain what the payment of Tls. 500 was for, and also to explain the nature of the so-called documents in reference to the 500 Chinese bonds and the payment of Tls. 500 by Hop-kee to the defendant, which was introduced in the forenoon for the first time.

   His LORDSHIP, after some discussion, ruled that Mr. Bidwell should be re-called.

   Mr. BIDWELL was then re-called and deposed - On the 9th April, 1877, the plaintiff did not lend me the sum of Tls. 500.  Sometime about that date I did receive a sum of Tls. 500 from the plaintiff, for which I gave him no acknowledgment whatever.  I did not give him a document such as he has described, an undertaking to provide him with 500 Chinese loans for the consideration of Tls. 500.  The Tls. 500 I received for a private transaction.

   Mr.  WAINEWRIGHT said it would be better for him to give the details of it.

   Defendant continued - At the time, acting on behalf of Messrs. Butterfield and Swire, I was negotiating a loan between the Chinese Government and some  friends of mine in England.  The loan fell through so far as Messrs. Butterfields and Swire were concerned by the thick-headed stupidity of the plaintiff.

   His LORDSHIP told the defendant not to use such language.  It would not assist him in the least.  He must state facts.

   Defendant continued - This was a fact.  Subsequently I and others were successful in carrying the loan through.  In April, 1877, Messrs. Butterfield and Swire had it in hand.  The Tls. 500 were paid to me by the plaintiff as expenses for carrying out the loan.  I received it and paid it out the same day.  None of it came to me.  It was paid to a Chinaman, a third party, as commission or bribe - bribery and corruption, or whatever you like to call it - to assist us in negotiating the loan on behalf of Messrs. Butterfield and Swire.  It did not pass through my books.  It was given to me by the plaintiff to hand to the Chinaman, so that he might not appear in the transaction - a blind of that kind is customary in China every day.

   It was a cash transaction, and I gave plaintiff no acknowledgment for the money.  Plaintiff never applied to me to repay him, and the promissory note I gave him for Tls. 500 had nothing whatever to do with the Tls. 500 paid to me as I have just described.  I believe it was paid to me by a native bank order.

   His LORDSHIP said that was a story which the defendant, as a commercial man, seemed to be a shamed of.

   Defendant answered in the negative, and said it was a thing that was done constantly in dealings with the Chinese.

   His LORDSHIP meant to convey the idea that it w as a story the defendant would not care to have attached to him.  Was it regular or irregular?

   Defendant replied that from his Lordship's point of view it would perhaps be considered irregular.  From his point of view it was not, but a common everyday custom.

   In answer to further questions by his Lordship, defendant said the irregularity was not such as to impress the transaction upon his memory.

   Mr. WAINEWRIGHT remarked that it was a common custom in dealing with the Chinese officials - palm oil used to facilitate business, to make things move along more smoothly and more quickly.

   Defendant - More to prevent opposition than anything else. He then continued his examination -

   I made an arrangement with plaintiff in reference to the Chinese loan of 1877.  The negotiations with Messrs. Butterfield and Swire failed, and the loan was subsequently put through by the Hongkong and Shanghai Banking Corporation, who promised to give me 2,500 shares for myself and Chinese friends, provided that I found the money by a certain  day.  The correspondence that passed between the bank and myself is here and open to your Lordship's perusal.

   The original agreement for 2,500 shares I was unable to carry out on account of the plaintiff and his friends going back on me, in not providing the money they promised.  I was then compelled, having only a limited amount of money, to reduce the number of shares from 2,500 to 1,000.  I took up 1,000 shares, and of these Hop-kee and his partner got their share in proportion to the agreement, so that if he contends that he paid me the Tls. 500 to get him 500 bonds in the Chinese loan, I have since given him more than that number and the case is at an end.  In regard to this Chinese loan the plaintiff and his friends are under great obligations to me - they owe me money; but I say the Tls. 500 was given to me not to get him bonds but for the purpose I have stated.

   In reply to his LORDSHIP, defendant said that all the Chinese named in the agreement were under obligations to him, and he had tried to take proceedings against them in the Mixed Court.  He said it seemed that a Chinaman could come to the British Court and take proceedings immediately, but when he went to see Mr. Allen, the Vice-Consul, to get his co-partners in these shares before the Mixed Court, he was told to wait and he was  waiting, which he thought was a very serious thing.

   Mr. ALLEN, who was sitting on the bench with his Lordship, explained that when Mr. Bidwell came to him the plaintiff had already taken action in the Court, and he thought it was better to wait and see the result.

   Defendant expressed dissatisfaction.

   In answer to further questions by Mr. Wainewright, defendant said he adhered strictly to what he said the other day as to the nature of the transaction about the Tls. 600.  It was a note given to the plaintiff for his accommodation and convenience.

   Cross-examined by Mr. MYBURGH - I do not recollect writing at any time to Mr. Walters, the manager of the Hongkong and Shanghai Bank, stating that I had no interest in the Chinese loan of 1877.  These bonds were sent to London, through the Hongkong and Shanghai Bank, to be sold there.  Representing the parties named in the agreement, I had a claim at the end of 1877 or the beginning of 1878 against the Hongkong and Shanghai Bank in respect of the allotment of the 1,000 shares.  My co-partners executed a deed of assignment and power of attorney in respect to the claim against the Bank in commiseration of the sum of Tls. 2,000.  I did not know whether this deed of assignment was left with Mr. Cowie until I paid the Tls. 2,000.  I got the deed from Mr. Cowie. There was no benefit for me to receive out of the transaction.  The Chinese got all the benefit. I do not remember Mr. Cowie writing to me saying the deed was an imperfect document until I paid the Tls. 2,000.

   I paid the Tls. 500 handed to me by the plaintiff to a Chinaman.  His name was Chow as far as I know.  He was a broker in the general swim of the loan.  I paid him the Tls. 500 to the best of my recollection in tael notes.  I sent the native bank note to be cashed so that he should not know where it came from.  If the note had been handed to him by the plaintiff there would have been a trace at once.  It was a blind, done in the indirect manner I have described, to destroy any possible trace.  The Chinaman who received the note knew the plaintiff.  It would have defeated our purpose if the plaintiff had paid the money.  I will not swear I did not receive in exchange for the note Tls. 150 in notes and $468.54, but I'll bet $5 I did not. I cannot swear about it as I cannot recollect, and the transaction did not enter my books. I will not swear that I did not pay my boy $300 out of it, but I am certain I did not.  There is no entry in my book to show that I did.

    His LORDSHIP pointed out that the bank-note for the Tls. 500 was Tao-chi's note and not the plaintiff's.

   Mr. MYBURGH explained that the plaintiff has said, or he would recall him to prove it, that he got the note from Tao-chai, who debited him with the Tls. 500.

(To defendant) - If this loan had been put through Butterfield and Swire from whom did you expect to get your commission?

   Defendant - From friends in England.

   Mr. MYBURGH - What benefit would the plaintiff derive from paying the Tls. 500 as hush money?

   Mr. WAINEWRIGHT - It was not hush money, but lubricating money to make them open their mouths and sign their names.

   Defendant - He (the plaintiff) paid the Tls. 500 to get the bonds.  I don't think it was credited to him in any way.
   Mr. MYBURGH - If your note was merely an accommodation note why did you allow it to remain in the hands of the plaintiff so long?

   Defendant - Simply because I was a fool.  I was too generous with him and trusted him too long.  Ass to the other accommodation note for $3,000 odd I never saw it from the day I gave it until it was produced in Court, but I was told by the plaintiff that it has been destroyed.  I received a commission respecting the Chinese loan.

   This concluded the evidence in the case.

   Mr. MYBURGH, in summing up on behalf of the plaintiff, spoke of the contradictory nature of the defendant's evidence in first stating that he never received the sum of Tls. 500 from the plaintiff and then admitting that he did.  He should have thought that a transaction of this kind, in which bribery and corruption were connected, could not have been forgotten.  It seemed to him that when the defendant stated in the first place that he had not received the money he did so advisedly, thinking the plaintiff would not be able to prove the payment, but on second thoughts he concluded it was best to say he had received the money and paid it away in the extraordinary manner he had described, without keeping any record of the transaction. This was a strange circumstance, and one which upon the face of it looked very suspicious.

   He referred to the improbability of the defendant's story as to the promissory note for Tls. 600 being an accommodation note, whereas he maintained the plaintiff's story was probable and consistent, and stood uncontradicted except so far as Mr. Bidwell had contradicted it in his own peculiar contradictory manner.  On the face of it the note appeared to have been given for value received, and it was not at all likely that Mr. Bidwell would give a note of the kind unless he received due consideration.  Moreover, as an accommodation note, the plaintiff had told them it was noting more than so much waste paper, that was so far as his ability to raise money on its was concerned.  No one would make an advance on it, a fact which he maintained was fortified by the defendant allowing the plaintiff to retain possession so long.

    Mr. WAINEWEIGHT, in reply, pointed out that if the defendant did really owe the plaintiff Tls. 600 three months after the note became due, it was most remarkable that he should have waited until now before taking steps to enforce payment.  Plaintiff had said he had applied for payment before, but this the defendant distinctly denied, and the broad fact remained that the plaintiff had not galena action from August, 1878, to the end of 1879, to recover payment by the ordinary process of law.

   Another most remarkable feature was that it was first insinuated that the money was for the payment of rent to Messrs. Jardine, Matheson and Co., which did not appear to take, and then the elaborate story about Chinese bonds was brought forth, and reference made to a document which Mr. Bidwell swore never existed. 

   He also pointed out that the plaintiff had testified that the Tls. 600 was made up of the Tls. 500 and Tls. 100 for iknterest for thirteen months at Tls. 14.6 per cent.  If the Court made the calculation it would find that, according to the plaintiff's own figures, the interest would be only Tls. 79.8 instead of Tls. 100; and in like manner the number of dollars and taels it was said Mr. Bidwell obtained for the Chinese bank note for Tls. 500 did not tally. 

   With regard to the payment of the Tls. 500 to the Chinaman in the manner described by Mr. Bidwell, it was notoriously known to those who had been in China any length of time that such douceurs were given to facilitate business with the Chinese and were absolutely necessary.  It could hardly be called bribery or corruption, because it was impossible to corrupt where corruption extensively existed.  It was part of the Chinese system of trading - not hush money, but a lubrication to hasten on business.

   In conclusion, he con tended that the defendant's story was more entitled to credence than that told by the plaintiff, who seemed to have adopted an after-thought and worked it through in a very confused manner.

   His LORDSHIP said he would read through his notes and give judgment next morning.

15th Jan.

   His LORDSHIP, today, delivered judgment.  He said this was an action on a promissory note dated 30th May, 1878, and made b y the defendant for the sum of Tls. 600, payable to the plaintiff, three months after date.  The defendant acknowledged having given the note, but he said it was given without consideration and for the accommodation of the plaintiff.  Then defendant Bidwell gave evidence in the Court on Thursday last, the 8th January, when he stated that he never obtained any consideration for the note of Tls. 600.

   The plaintiff's case was that the note was given in substitution of a former note for Tls. 500, bearing date 12 or 13 months previous to the note for Tls. 600, together with interest upon it; and the defendant in his evidence, given before the Court on Thursday last, said he did not receive the sum of  Tls. 500 from the plaintiff in  April, 1877.  Yesterday morning Mr. Myburgh opened the case for the plaintiff, and he stated the course he intended to take.  Then the plaintiff got into the witness box, whereupon Mr. Wainewright said in odder to save time he would make an admission.

   Mr. WAINEWRIGHT said it was not in order to save time that he said what he did.  He said at the time it might save time, but he had been previously instructed to ask permission to correct the defendant's evidence.

   Mr. MYBURGH pointed out that he had made his opening statement as to the evidence he was going to call before Mr. Wainewright made his admission.

   His LORDSHIP said where there was a conflict upon the evidence, the Court had to take into consideration the conduct of each party, in measuring the credibility due to each.  It might have had a different effect in  his mind if immediately after coming into Court yesterday it had been stated on behalf of the defendant, that he had found, although the partition was filed so far back as the 25th November, that since Thursday last he had made what he would call a mistake.

   Mr. WAINEWRIGHT - I really must say that I had the most specific instructions to make the admission before I came into Court, and it was altogether an error of judgment on my part that I did not do it earlier.  I am alone to blame for not making the admission immediately on coming into Court.

   His LORDSHIP replied that when a man, finding himself surrounded on all sides, or about to be surrounded on all sides, as it were, changed his front, seeing tab what he had stated before would not do, that it would be shown to demonstration that the statements he made on a former occasion were erroneous, made an admission as tardily as it seemed to him the admission had been made in this case, namely that there was a sum of Tls. 500 received in April, 1877, by the defendant from the plaintiff, the inference in his mind was that, but for the difficulty felt, no such admission would have been made. The only  question was then, how the Tls. 500 were paid?  He might, however, as well say in passing that after the admission  had been made, a more correct course would have been under such circumstances to put the defendant again in the witness box at once.

   Mr. WAINEWRIGHT repeated that he was alone responsible for the course that was pursued.  It was his error of judgment that he did not make the admission before he did.  He came into Court with the intention of doing it immediately, but his learned friend Mr. Myburgh got up and spoke before him.

   His LORDSHIP, resuming, went on to say that the plaintiff said he lent the Tls. 500 on the 9th April, 1877, to the defendant, and that the consideration he was to receive was that the defendant was to get him as certain portion of the Chinese loan which was then being negotiate though h Messrs. Butterfield and Swire, and that id he did not receive and portion of that loan, or the portionb of the loan agreed upon, the defendant was to pay back the money, and that at the same time the defendant gave hjim a written rfeceipt, of which he (defendant) took a copy.

   Then plaintiff went on to say that he did not obtain any portion of that loan, that he applied for payment of the Tls. 500 from the defendant, and that the defendant from time to time told him to wait.  After waiting for some time, until the 30th May, 1878, defendant gave him the promissory note, upon which the action was brought, for Tls. 600, being for the original sum of Tls. 500, together with Tls. 100 for interest; and at the same time the defendant explained that at the time [defendant] explained that at the time he received the promissory note for Tls. 600, he gave back to the defendant the receipt for Tls. 500.

   The plaintiff also said that the loan which was to have been negotiated through Messrs. Butterfield and Swire was not negotiated through them, but he admitted having got a portion of the loan which was subsequently negotiated through the Hongkong and Shanghai Bank, but he said, as his Lordship understood the case, that there was no agreement that he should pay anything for the portion of the loan negotiated through the Hongkong and Shanghai Bank, there being only an agreement for him to pay the portion of the loan that he was to get if it was negotiated through Messrs. Butterfield and Swire.

   Mr. WAINEWRIGHT thought the plaintiff was to pay as much for one as for the other.  If he got his binds in the loan he was to pay, and he got the bonds.

   Mr. MYBURGH ported out that the plaintiff had distinctly stated they were separate transactions - one was private in which the plaintiff was to have the bonds himself, and the other was a company.  What his Lordship had said was perfectly correct.

   His LORDSHIP said he was only stating what he understood to be the plaintiff's case, and Mr. Myburgh, who he presumed knew what his client's case was, said it was as he had stated; and it was satisfaction to him to hear from Mr. Myburgh that he (his Lordship) had a correct idea of what the plaintiff's case was.

   Well, then, the defendant said with reference to the transaction as to the Tls. 500,

"I did receive from the plaintiff some time in April that sum.  I gave him no acknowledgement for it.  I gave him no undertaking to provide for him 500 bonds in the Chinese loan in consideration of the above sum of Tls. 500.  At the time the Tls. 500 were given to me b y the plaintiff, Hop Kee, I was negotiating a loan for the Chinese government.  I was acting in behalf of Messrs. Butterfield and Swire in the magtter.  The loan fell through so far as Messrs. Butterfield and Swire were concerned.  It was not negotiated with them, but it was subsequently negotiated through other parties.  The Tls. 500 were plaid to me for expenses in connection with the loan.  I paid it the same day I received it.  The plaintiff was liable for those expenses.  The Tls. 500 were plaid to a Chinaman for obtaining the bonds in the loan.  I paid the money to the Chinaman.  I did not owe him any money.  The money was given to me by the plaintiff to hand to some one else so that the plaintiff's name should not appear in the transaction.  I made no promise to repay the plaintiff that sum.  The plaintiff never applied to me for the repayment of the sum of Tls. 600; the note for which the action was brought had nothing to do with the transaction, and the note for which the action was brought was given without any consideration whatever and simply to enable the plaintiff to get money upon."

Now, that was the defendant's version of the transaction.  In such an unfortunate conflict of evidence, he might say it would have been much more satisfactory if the case had been tried by a Jury instead of by a Judge alone.

   Mr. MYBURGH mentioned that the amount claimed was small.

   His LORDSHIP replied that in England, in days of tore at least, actions for a much smaller sum than this were tried before a Jury, and perhaps a Jury would have been able to make a more correct appreciation of the evidence in the case than he was able to do.  He could not help saying, though repeating what he had just said, that the value and truthfulness of the defendant's story had been very much affected by the way in which it seemed to him the admission he had spoken of was extracted from him yesterday.

   If parties came into a Court of Justice, and they wished the Court to believe them, they must act in a way that men who wish to be believed ordinarily act, and it might have had a very different effect if at once the defendant had come forward and said the statement he made the other day with reference to the Tls.. 500 was incorrect.  He was disposed to think the story which the Chinaman had given was more entitled to credence, and under the circumstances there would be judgment for the plaintiff with costs.

   Mr. WAINEWRIGHT said his Lordship having taken that view he had to ask that execution be stayed until another suit which the plaintiff, under another name, had brought against the defendant.  In answer to this second suit Mr. Bidwell had put in a counter-claim.  The case was now pending, and he would ask, as a matter of reasonableness, that execution of the present judgment t be stayed until the result of an investigation of the accounts between the parties was obtained.

   His LORDSHIP ordered execution to be stayed, with liberty to the other side to apply if there was unreasonable delay.

   Mr. WAINEWRIGHT said that now the case was over, in justice to his client, he wished to state that before coming into the Court at all on Wednesday he most positively instructed him to state that he had forgotten the payment of the Tls. 500 when he was under examination.  On getting into Court defendant said "will you say it now," and he replied "wait a little."  It was hesitation on his part, or the admission would have been made when the Court opened.  He felt it was only right that he should say this in justice to his client, and he hoped it would go forth to the public.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School