JUDGMENTBY: THOMSON CJ, RIGBY AND HEPWORTH JJ

THOMSON CJ This is an appeal from a decision of Good J. allowing an appeal from a decision of the President of the Sessions Court at Ipoh.

The appellant, whom I shall call the borrower, borrowed a sum of money from the respondent who is a licensed moneylender, and whom I shall call the moneylender, and by way of security for the loan executed on 9th June, 1956, promissory note for $ 1,500 with interest at the rate of 18% per annum. Nothing was paid in respect of the promissory note, and after a written demand for payment had been sent the moneylender commenced the present proceedings on 27th December, 1956, in which he claimed the principal sum and interest due on the promissory note.

Certain parts of the evidence will call for more detailed discussion later. Briefly, however, it was the moneylenders case that on 9th June, 1956, he agreed to lend $ 1,500 to the borrower on certain terms and that day the parties went to a solicitors office in Ipoh where in the presence of the solicitor he handed $ 1,500 to the borrower who there and then by way of security executed a promissory note containing all the terms of the contract. This was countersigned by the lender and in accordance with section 16(4) of the Moneylenders Ordinance an authenticated copy was handed to the borrower which was attested by the solicitor in accordance with section 27 of the Ordinance.

The borrower said that he had received $ 300 some days previously and that on 9th June, 1956 he only received $ 985. At first he said he received this sum in the solicitors office but later he said he received it in a coffee shop. Apart from that his defence was:--

(a) he was not given a copy of the promissory note;

(b) if he was given a copy then it was not authenticated in

accordance with section 16(2) of the Ordinance;

(c) if he was given a copy and if it was authenticated then it was

not given him until after the money was lent;

(d) if he was given a copy, if it was authenticated and if it was

given to him before the money was lent, then the note was bad

because it omitted a condition of the loan to the effect that he

should give a Bill of Sale over his business in Tapah by way of

additional security.

The curious quadricorn thus released into the forensic arena achieved greater success than might have been anticipated. The learned President took an unfavourable view of the borrowers credibility and accepted the moneylenders evidence to the effect that $ 1.500 was actually handed over in the solicitors office, that there was no question of any Bill of Sale and that a copy of the promissory note was handed to the borrower. As regards the time of delivery of the copy he said:--

"I think ... the evidence on the case shows that the proper view to

take of the transaction is that all the steps in it were so

simultaneous that there was a constructive delivery of the copy at the

proper time."

He was not however satisfied that the moneylender had proved that the copy handed to the borrower was authenticated and he accordingly found himself compelled to dismiss the claim.

Against that decision the moneylender appealed. Good J. allowed the appeal. He took the view that on the evidence the tactical onus of proving that the note was not authenticated had passed to the borrower who had failed to discharge it and he took the view that although physical handing over of the money took place before physical handing over of the copy of the promissory note the money was not actually lent until the borrower had left the solicitors office with it in his possession.

It is against that decision of Good J. that the borrower has now appealed.

With regard to the question of authentication, the moneylenders evidence, which was uncontradicted and was largely corroborated by the solicitor, was to the effect that the promissory n

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