118
THE HONGKONG WEEKLY PRESS AND
parties to the suit." In the present case the Court is asked to exercise such a jurisdiction as that refered to, and I think the plaintiffs have brought themselves within the rule, and are therefore entitled to maintain this suit in representing themselves and the other members of the Jewish community, except the de- fendant..
I proceed now to an examination of the facts of the case. The evidence, both oral and docu- mentary, is voluminous in quantity and minute in character. In a considerable number of instances there is a conflict of statement between the witnesses on the one side and on the other, although as a rule this conflict is. confined to matters of minor importance. In such cases of conflict I do not propose, as a general rule at all events, to analyse the evidence, but merely to state the facts as I find them to be, after careful consideration of the statements made on both sides. I do not believe that any witness on either side has wilfully endeavoured to mislead the Court, although no doubt some of them may have made mistakes of fact. It is, I think, true as a general observation that the evidence of the witnesses for the defence is more con- fident and precise than that of the witnesses called for the plaintiffs. The memory of several of the latter set of witnesses was often admittedly defective.
The case for the planitiffs is founded on two positions. The first of them is that the defendant on the 13th July, 1896, purchased Inland lot No. 1,381 from the Crown in his own name but as the agent or representa- tire of the Jewish community; that, on the fall of the hammer on that day, he acquired the lot as a trustee for the community; and that he still so holds it. It is not alleged that this trust is constituted by any specific instrument, but it is contended that it results by implication from the acts and declarations, both oral and written, of the parties. It is, therefore, necessary to examine carefully these acts and declarations up to the time of the purchase with a view of determining whether or not, having regard to them and to the position in which the parties were respectively placed by them, the alleged trust arose at the time of the purchase. If the answer to this question is clear in the affirmative or in the negative, there is an end of the matter and it will be annecessary to inquire into the conduct of the parties consequent to the purchase. But if the answer is not clear and tnambiguous, it will be proper to consider the subsequent transactions between the parties, for the purpose of ascertaining what light they throw upon the question of trust or no trust,
The second and simpler position is that by a letter dated the 8th March, 1897, the defendant in express terms declared himself a trustee of Lot No. 1,381 in favour of the community.
New Synagogue." There was also a tracing enclosed from a plan procured from the Sur- veyor-General. The report mentions two sites on Kennedy Road as being suitable, one to the East and the other to the West of the Union Church. The dimensions, etc., of the site on the west are given as follows:-
Do
Area.
Upset. Rate.
Price. Inland Lot No. 1216, 21,450 sq. ft. 30 ots. $6,435 1217,21,600 30 cts. 6.481 making a total area of 43,050 sq. ft. at an upset price of $12,916. Then the following paragriph occurs in the report
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"We strongly recommend yon to purchase the two lots Nos. 1,216 and 1.217. One alone is almost too small for your requirements. You could however erect the synagogue and sell the remaining portion for a small villa site, and you being the vendors would be in a position to lay down conditions so that the building should not depreciate your new synagogue.' The report then proceeds to suggest that a depu- tation from the community should wait upon the Governor with the object of requesting him to reduce the upset price from 30 to 20 cents per square foot.
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[February 19, 1898. -
to prepare contract and detail drawings, and to obtain tenders for the sum of $150, but the offer was not accepted. Some time early in the same year a committee was appointed, by the community for the propose of carrying out the project. The committee was composed of Messrs. J. 8. Moses, A. J. David (one of the plaintiffs), R. M. Moses, and M. S. Sassoon, and the defendant (who was chairman), and there was also a sub or working committee composed or Messrs. E.-J. Moses, and K. Raeburn and two or three others. In September, 1893, Mr. Raeburn placed himself in communication with Mr. John Lemm, an architect, with the result that this gentleman, having had before bim Messrs. Danby, Leigh, and Orange's plans and sketches, submitted, on the 23rd September, 1893, a plan of the new synagogue, a report and estimate of the same, and a small site tracing showing the proposed position of the buildings on Inland Lot Nos. 1.216 and 1,217. In the report there occurs the following paragraph
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"It is possible to place the new synagogne on either of the lots, but to place the residence of the Rabbi and the quarters of the caretaker on the same lot would necessitate cramming. The two lots in question lay between the Ishould suggest that both lots be purchased Tramway on the East and the Albany or Gar-where the buildings might be erected in the den Road Nullah on the West, with Kennedy positious shewn on small paper tracing. The Road on the Northern boundary and a spur of N.E. corner block could be sold as a villa site, higher land on the Southern side. Lot No. and the proceeds of sale would go far towards 1,217 was to the East and nearer to the Tram- defraying cost of preparing ground for build. way and the Union Church than Lot No. 1,216. ing, and forming roads and enclosures." The lengths of the boundary lines of the two lots taken together were, on the North 279 ft; on the East 155 ft.; on the South 295 ft.; and on the West 158 ft. 9 in. In bis evidence Mr. Danby says that he wanted the area of Lot No. 1,217 enlarged and that of No. 1,216 diminished; and that he made application for this purpose to Mr. Brown, the Surveyor-General, but Mr. Brown refused compliance, on the ground that to grant it would involve a depreciation of the value of Lot No. 1,216.
On the 28th July, 1891, Messrs. Danby, Leigh, and Orange, in accordance with Instruc. tions received from Mr. Moses, submitted a further and more detailed report accompanied with sketch plans of the proposed synagogue, In this report they adhered to the recommenda- tions which they had already made v1. espect to the "site," and they estimated that, if the building were erected in the plainest possible manner, and somewhat after the design sub- mitted, its cost would be about $30,000 (ex- clusive of the ground)."
In his evidence Mr. Danby says that he thinks Mr. Moses applied to the Government to have the ground put up for sale, but it does not seem to have been so put up. At any rate, the whole project of the erection of a new synagogue fell through for the time from lack of sufficient funds with which to carry it out.
The Jewish community of Hongkong con- sists of some 150 persons of all ages and of both sexes. Some of these persons are
On a consideration of the circumstances of wealthy and influential merchants, whilst others this initial transaction the following observations are in poor circumstances. For many years occur as having a more or less evident bearing on the community bas conducted its public the case. In the first place it is clear that the worship in a building situated in Staunton area of the piece of land suggested for the Street and fitted up as a synagogue. This location of the new synagogue was somewhat building and its accessories are virtually the too large for that purpose, and although it was property of Mr. J. E. Sassoon and his brothers, proposed that the whole piece should be acquired, members of the firm of Messrs. E. D. Sassoon it was also recommended that the surplus portion & Co., of Hongkong, and Bombay. This firm of it should be subsequently disposed of by the has managed the affairs of the synagogue and community. In the next place the exact posi- in effect furnished the funds for its upkeep and tion indicated as most suitable for the building the maintenance of its services. For some was the north-eastern portion of the ground. years it has been felt by the members of the And, lastly, we are confronted with the use of community that, the site in Staunton Street the word "site"-a word which in this con- has, from one cause or another, become up. nection is evidently ambiguous in its meaning suitable, and efforts have accordingly been since it may denote either the whole piece of land made from time to time to secure a convenient proposed to be acquired or only that portion of site and to erect thereon a building specially it, which was actually necessary for the proposes designed as a synagogue. The defendant says of the synagogue. I am inclined to think that that the idea of removal arose at his sugges-but for a somewhat loose employment of this tion and that he also suggested the suitability as a site of the lots to which I will immediately refer.
The question was under consideration in 1890-91. At that time Mr. J. S. Moses, who senior resident partner in was then the the firm of Messrs. E. D. Sassoon & Co., consulted Mr. W. Danby, senior partner in the firm of architects of Messrs. Danby, Leigh, and Orange, on the subject of a site. On the 28th April, 1891, Mr. Danby, in the name of his firm, sent to Mr. Moses a report in writing under the heading "Proposed
word on both sides, the present proceedings would not have been begun.
Mr. Lenm gave several estimates of the cost of the synagogue, according to the size and ac- commodation provided, the highest estimate being $25,000 and the lowest $17,500. The residence of the Rabbi was to cost $6,500 and the caretaker's quarters $500. All this was exclusive of the cost of purchasing, preparing and enclosing the site. It was considered that from 6,222 to 10,000 square feet would be availa- ble for sale as a villa site.
It will be observed that Mr. Lemm differs from Messrs. Danby, Leigh, and Orange in placing the synagogue on the western and not on the eastern portion of the combined lots but he agrees with them in thinking that the com- bined lots contained a somewhat lager area than was required for the proposed buildings and 'in recommending that the surplus land should be sold:
In the year 1893 the project for the erection of a new synagogue was again taken up, appar- ently through the exertions of Mr. K. Raeburn, a clerk of Messrs. S. J. David & Co., who was acting as honorary secretary to the community. On the 11th January, 1893, Messrs. Danby, Leigh, and Orange wrote to this gentleman stating that the main or central part of the synagogue, as shown on their sketch plan, could be erected for about $10,000. They offered to make surveys and plans of the ground,'
The reportsand plans of Messrs. Danby, Loigh, * and Orange and of Mr. Lemm were placed be fore the committee, and thereafter the defend- ant wrote the following letter:
Hongkong, 3rd October, 1893. The Honourable F. A. Cooper,
Director of Public Works, &c, &c. Dear Sir,-Referring to the conversation I had with your goodself to-day in regard to the building of a synagogue on Kenedy Koad, I beg hereby. Lo request you, on behalf of the Hebrew Community of Hongkong, kindly to put up to publie auction at an early day Inland Lots Nos.-
These lots are situated in accordance with the plan forwarded herewith on the west of the Peak Tramway line and in close proximity to the Union Church. The congregation expects that the terms and conditions will be the same as those on which the Union Church site was sold to the Presbyterian Community.-I have the honour to be, dear sir, your obedient servant,
E. R. BELILIOS, The defendant says that the blank after the word "Nos." should have been filled up with 1,216 and 1,217.
The importance of this letter is obvious. In writing it the defendant was acting as the avowed agent of the community and it was perfectly clear that the land was to be pur chased on their behalf and for the purpose of On the other erecting a synagogue on it. hand, it was also equally clear that the com- munity desired to acquire the whole of the two lots, and not only a portion of them, for this purpose.
On the 23rd October, 1893, Mr. F. A. Cooper, the Director of Public Works, wrote in reply to the defendant stating that the Governor ap- proved of the land being put up subject to cer- tain specified conditions.
On the same date the members of the general, and sub-Committees, including the defendant, wrote to Mr. J. E. Sassoon at Bombay on the