Shanghai, Sept. 26.
Before Hoy. C. 8. Losrxaize, Fudge.
U. 8. v, F. 0. Bascom, Judgement was given in this case, in which the complainant was Chen Lai-ming, owner of British Consular lot. No. 7986, and the defendant was Frank Cecil Bascom. The defendant was charged with em-Deezling certain documents relating: to the land.
Dr. F. E. Hinckley, District Attorney, appeared for the prosecution, and Mr. J. W. Rice appeared for the defendant.
His Honour said that from the evidence, all of which was produced by the Government, it appeared that on January 19, 1914, the defendant made a loan to Chen Lai-ming, the transaction being evidenced by an instrument, a copy of which was read. At the same time, and as a part of the transaction, the borrower delivered to the defendant certain documents, viz., a title deed, a declaration of trust, executed by C.J. White, the registered owner, and reciting thet he held the land in trust for the borrower, an insurance policy covering buildings on the premises, and an estimate of valuation. The defendant also delivered to his lender the documents which he had received from his borrower.
The first question to be determined was whether, under the facts set forth, the defendant was guilty of the crime of embezzlement. The information charged that the defendant "did convert to his own use", ete. It would also be noticed that the information alleged that the defendant "received said documents to be and accepted them for seourity for a loan.... on mutual w derstanding and agreement that said documents were to be held by him as such security during the term of loan and pending repayment to him," ete. There was no evidence that the defendant ever promised, or that the borrower ever required, that the former should retain possession of the documents "during the term of said loan and pending repayment." It contended, and the information seemed to be framed upon the theory, that. such retention was at least implied. But if the delivery of these documents to the defendant had any effect at all it was to constitute what was known in Anglo-American law as a "mortgage by the deposit of title deed appeared to ba quite a common practice in England, though it was but little used in America, because it was there held to contravene the Statute of Frauds, and also because it did not conform well to the system of registration prevalent in the latter country. The law of England, Hi tinued, far from requiring the mortgagee by deposit of title deeds to retain possession thereof, clearly recognized his right to repledge them. It seemed clear that under the Eng-rule (which would also be the American where the practice of sub-mortgaging was followed), the defendant was not required to retain possession of the title documents, but had the legal right to repledge them, and that the mortgagor could reclaim the documents by paying the sub-mortgagee the amount of the original debt at ite maturity. Dealing with the question of conversion, his Honour said that the defendant was clearly not converting the documents by exercising his legal right of repledging them, That he may have believed that he was doing something repre-sensible and which it was necessary for him to conceal from the mortgagor did not alter the case if he had a legal right to do it; and if he had boldly asserted that right instead of temporizing, procrastinging and prevaricating, as he seemed to have done, he would stand in a much better position before the public. As to conosalment, the judgement continued that the Court was disposed to agree with the prosecution that the defendant did con-coal the documents. The Court could place no other interpretation upon his dilatory tactics and his misleading statement that the doouments were in the hands of another party. Concealing alone, however, was not sufficient; the writing must be so concealed that the estate or right of such other person shall or may be defeated, injured or alter ed."
After dealing with the position of the Societe Franco-Chinoise de Credit, the judgement continued: Tt was suggested in argument that
Text read from the printed page and cleaned; old type leaves the occasional error.