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B
WEEKLY
THE HONGKONG WEEKLY PRESS AND
RUMOURED SEIZURE OF HAINAN | ber, 1897, in which the Divisonal Court, Justices
BY THE FRENCH. [SPECIAL TELEGRAM TO THE “DAILY PRESS,"
SINGAPORE, 29th December. It is rumoured here to-day that the French have seized Hainan.
Nothing has been heard in Hongkong which would in any way coufirm the reported occupa tion of Hainan by the French. On the con- trary, a private telegram which was received by a well known firm on 30th De. from Tonkin flatly contradicts the rumour, and, further, the French officials in the colony altogether discredit the idea of occupation, although it is generally admitted that the French fleet have lately been exploring the coast of Hainan.
Another telegram has since been received from Hoihow stating that there is no truth what- ever in the rumour that the French have oc- cupied Hainan.
SU REME COURT.
29th December.
IN ORIGINAL JURISDICTION.
BEFORE SIR JOHN CARRINGTON (CHIEF JUSTICE.)
GUBBAY AND OTHERS v. BELILIOS,
The hearing was resumed of the equity suit in which the plaintiff's, D. A. Gubbay, A. J. Raymond, and A. J. David petitioned the Court, on behalf of themselves and of all others of the Jewish community in Hongkong, except the defendant, for a declaration that the defendant purchased a certain lot of land in this colony known as Inland Lot No. 1,381, as a trustee for and on behalf of the plaintiffs and of all the other members of the Jewish community in Hongkong, and that he now held the property in trust for the Jewish community subject to the payment to him of whatever monies he ex- pended in the purchase.
Mr. J. J. Francis, Q.C. (instructed by Mr. O. D. Thomson, of Messrs. Deacon and Hastings), appeared for the plaintiffs and Mr. H. E. Pollock (instructed by Messrs. Wilkinson and Grist) for the defendant.
Mr. Pollock addressed the Court on behalf of the defence. He said the first point he had to make was a technical one. The suit pur- ported to be brought by Messrs. D. A. Gubbay, A. J. Raymond, and A. J. David for and on behalf of themselves and of all other members of the Jewish community in Hongkong except the defendant. The action was not brought in any form anthorized by the law of this colony.
Mr. Francis, interrupting, submitted that it was too late to take that point, which ought to have been taken at the earliest possible moment. It was an objection for want of parties.
His Lordship said he preferred to hear what Mr. Pollock had to say.
Mr. Pollock said that until the plaintiffs had produced their evidence it was impossible to say what authority, they had to sue in that way. The only evidence they attempted to bring forward as justifying their form of action was the document of the 10th June, 1897, which purported to authorize the three plaintiffs to sue in their own names for and on behalf of the Jewish community. That document was signed by only thirty-two members of the Jewish community. He would point out, in passing, that the document of the 16th May, 1896, appointing certain persons as trustees, was signed by forty members of the community, and it was stated in the petition that the com- munity consisted of 143 persous, including boys and girls; there were 77 men and women, so that the signatories to the document of the 10th June did not number half the adult members of the community. Counsel also submitted that that document was practically waste paper so far as this action was concerned, because the I writ was issued on the 25th May, 1897, or fifteen days before the document was signed. The action was therefore brought without authority. In support of this contention counsel quoted the case of Davis v. Reilly, reported in the "Weekly Notes" of 2nd Novem-
Wright and Kennedy, ruled that it was neces sary to show what was the actual state of affairs at the date of the commencement of the action -the date of the issue of the writ. Counsel had a further contention, that the law of this colony did not authorize the three plaintiffs to sue for and on behalf of themselves and
others. There was no such provision in the Code, which, he was afraid, was defective in many respects. The suit was also brought in a wrong form in asking for a declaration of trust, That prayer and therefore the snit must fail. was founded simply and solely on the allegation that Mr. Belilios bought the lot as a trustee for the Jewish community, an allegation which was not in any way supported by evidence. In fact Mr. David and Mr. D. R. Sassoon, two of the so called trustees, were on the very date of the sale against the site in Kennedy Road and so continued until October, 1896. In regard to the defendant's intentions counsel submitted that he made no more than an offer to sell. The letter which Mr. Dauby wrote to the Director of Public Works stating that be was requested by a good client of his (Mr. Belilios) to apply for the ground to be put up for sale showed that Mr. Belilios contemplated utilizing Inland Lot 1,381 for himself, although there was no doubt, as appeared from the letter written by Mr. Moses to Mr. Silas on the following day, that ho was willing to give a site for the synagogue. All along Mr. Belilios intended to utilize the land for himself if a portion of it was not taken for the purposes of a synagogus. Counsel contended that the defendant contemplated utilizing lot 1,381, in conjunction with the upper lois, although he still left open his offer of the site for the synagogue. It was a matter of common sense that there had been no declara- tion of trust, because if the Jewish community had continued to be averse to the lot, as the leading members were up to the end of 1896. what would have been the position? Would Mr. Belilios have been under any obligation, either legal or equitable, to transfer lot 1,881? Connsel submitted he would not have been under any obligation, and therefore how could it be said that Mr. Belilios was trustee? He had not parted with any interest in the pro- perty, but had simply made a conditional offer. Counsel then quoted number of cases in sup- port of his contention that there could have
been no declaration" of trust. Conusel then submitte! that it was for his friend to reply to the arguments in regard to the two points raised, as if his Lordship agreed that the contentions were correct there would be an end to the whole case and defendant would be entitled to judg- inent.
In reply to his Lordship Mr. Francis said such a method of procedure was unprecedented. It was open to his learned friend to put for ward those points at an earlier stage of the proceedings.
After some further discussion His Lordship said it would be more convenient to adjourn the case and he would consider, the petition being framed as it was, whether the Court could on the facts before it decree a specific perform auce, assuming that the facts did not support a declaration of trust.
The Court then adjourned.
30th December.
His Lordship said, in reference to the point raised on the previous day, that he felt clear on looking at the text books that in the present form of the petition the Court could not make a decree for specific performance, assuming for the moment that the Court could not on the facts grant a decree declaring the defendant a trustee of the property. Therefore he thoughțit would be necessary, so as to bring the petition before the Court, to amend the petition by including a prayer for specific performance.
Mr. Pollock contended that as the action was framed for a declaration of trust it was not open
for his friend to argue that he was entitled to a decree for specific performance.
Mr. Francis said he would formally ask his Lordship-although he was prepared to submit it was not necessary, but it was better to be sure than sorry—for leave to amend the petition by adding a prayer for specific performance.
I
[January 5, 1898.
Mr. Pollock objected to any amendment be- ing made. The action was framed as an action for declaration of trust and defendant had come to the Court on the understanding that plain- tiffa counsel rested plaintiffs' case entirely upon the action for a declaration of trust.
His Lordship said he thought the best course would be to let the case proceed as it stood now,
and supposing the Court held that the facts supported a declaration of trust the plaintiffs would succeed. If the Court held that the facts did not support a decree for a declaration of trust he would allow Mr. Francis to apply to amend the petition by raising the question of specific performance.
trust
Mr. Pollock then continued his argument. Assuming that his friend was right in the form of action, the defendant's contention was that the plaintiffs' case must nevertheless fail because plaintiffs' case_ was that declaration of was created as regards Inland Lot 1,381 and that it was understood that the whole of that. Iot should be used મક the site for the synagogue. Defend- ant's сиве, on the contrary, was that so much land only was in contemplation of the parties as was reasonably necessary for the purposes of the synagogue and the rabbi's residence. His Lordship would find that that was the understanding of both parties. It was a matter of common sense that Mr. Belilios never intended to transfer to the Jewish com-
munity more laud for the synagogue and
the rabbi's residence and that be could not have expec ed or supposed, especially in view of the difficulty as to funds and the appeal made to Mr. Jacob Sassoou as late as the 20th May, 1896, for a further contribu- tion--he could never have supposed for a single moment that the community would take over more ground than was reasonably required for the purposes of the synagogne and the rabbi's residence. Counsel contended that the whole evidence showed that, up to a certain point, there was no variance between the parties on the question of the transference of a portion of the lot for a synagogue. If the plaintiffs had been at variance with the defendant they would certainly have given clear and precise iustructions to Messrs. Leigh and Orange to prevent any misunderstanding on the part of Mr. Belilios. The letter to Mr. Belilios of the 8th March, stating that the trustees had decided to take over the whole lot clearly showed that previous to that date they had not decided to take over the whole lot. If the plaintiffs had framed their action asking for so much of the lot as was reasonably required for the pur- poses of a synagogue this action would never have been fought. The whole point was that apart from what the plaintiffs did, apart from the instructions they gave to Messrs. Leigh and Orange on the 11th March, and apart from the arrangement come to in Mr. Danby's office, the plaintiffs since the 12th March took пр the position that they were entitled to nothing less than the whole lot. If at the meeting in Mr. Dauby's office the question of the retaining wall. had not arisen the parties would have actually come to a definite agreement that the piece of ground marked off on the plan should go to the community and that Mr. Belilios should retain Counsel the remaining portion of the lot. submitted that the Court must weigh the circumstances and the correspondence and all that passed between the parties as a whole to see what was the actual intention of the parties.
Mr. Francis then addressed his Lordship and reviewed the whole of the facts and circum-
stances in the order in which they occurred. Counsel pointed out that when lot 1,381 was known as lots 1,216 and 1,217 Mr. Danby recommended the purchase of both lots, which be called site A, for the purposes of a synagogue, and suggested that although the site was too large the portion not wanted could be utilized as space for the erection of villas. He strongly recommended then the advisability of so planning their work as to leave room for alterations and improve- ments. In 1893, when Mr. Lemm was con- sulted, he spoke of the site being numbered inland lots 1.216 and 1,217 when making his report, and in a letter to the Director of Public Works, dated 22nd October, 1893, applying on behalf of the Hebrew community for the two lots to be put up for auction for the purposes