Ring Mow-zu et al. v. Wilkins Bros. & Ca., Inc, _In this matter the following decision was handed down:—This cause comes on for hearing upon defendant's motion "for an order permitting the defendant to forthwith contract and_ settle exchange, and to sell and dispose of at current market rates G.$280,- 000 United States currency purchased by the defendant under an exchange contract dated November 18, 1919, from the American Express Company at Shanghai." It being further recited: That the proceeds realized from the sale of the aforesaid $280,000 Gold will be kept on deposit with the American Express Company at Shanghai, pending judgement in this action."
Concerning the sum to which this motion relates the petition alleges: "That on said 18th day of November, 1919, the sdid defendant, as the agent and trustee of the said Chukwa Kigyo Kabushiki Kaisha, acting under instructions from the himself, though he was not here when the fire took place: and the' three of them are subject to cross-) examination. It is not suggested that the claim did not correspond with the books nor that they show! any signs of tampering: it is not suggested that at any time the plaintiff reduced his claim as he had originally put it in too high. Now it is clear that the arbitrators did not accept Mr. Cooper's figures. It is remarkable that in two matters the plaintiff's veracity was checked: he asserted that, not Jong before the fire, he had had returned to him 30 piculs of manufactured silk from Messrs. Reiss ©o. as being of inferior quality. That was ascertained to be true. Then his claim for manufactured silk was at Tls. 750 per picul: that again was proved correct by the witnesses called before me: there seems to have been no evidence about it at the arbitration, though this is not very strong, as he was hardly likely to put in value that could easily be shown to be false.
It is agreed that if fraud in the claim existed, the plaintiff can get no benefit out of his policy. Whether a claim is fraudulent or not is always a question of fact: and an overvaluation is not necessarily fraudulent. The position is, I think, correctly stated to be: where the value of the property as given in the claim is so greatly in excess of its actual value as_ to make it clear that the valuation cannot be regarded as an honest estimate of the value, the overvaluation is in itself evidence of: fraud: in other words it is necessary for the plaintiff to disprove the evidence called against him. Now untruth in fact does not of itself import a dishonest mind: something more is requisite for can see but one answer, and therefore hold that the defendants have established their case and I give judgement for them with costs.
In view of the arrangement. with the Norwegian Lloyd Company, whereby the costs of a second action were saved, Mr. Ward asked for costs on Scale 2.
His Lordship, after some dis cussion, said that the application was not an unreasonable one, but he did not think he could grant it. He was bound by the rules to give costs only on the sum in dispute in the action heard by the Court.
Text read from the printed page and cleaned; old type leaves the occasional error.