February 26, 1898.]
only be remarked that the evidence to show that the Lot was purchased by the defendant as a trustee for the community cannot have been very strong to admit of its being mis apprehended by the experienced solicitors of the plaintiffs.
I have now gone over the evidence and set out the documents in the case, so far as they appear to me to be material. It will have been observed that I have devoted special attention to the documentary evidence, because it appears to me that the decision of the case really turns upon the right understanding and interpreta tion of this evidence. I may recall the fact that the plaintiffs in the first instance rested their case upon this evidence alone: But they have drawn from it couclusions which I am unable to accept.
It may be convenient for me to state briefly
the conclu ions of fact at which I have arrived.
|
1 find that the defendant applied for Lot No. 1,381 to be put up for sale in order that he might become the legal and equitable owner of it; that he was not, in making the application, acting in any way as the agent or representative of the community; but that he was desirous of having the new synagogue erected on that lot and he therefore intended, in making the application, to give the community the right or privilege of taking land for that purpose. I am inclined to think that his original intention was that this right or privilege should extend to the whole of the lot. But soon after the application was made, he learned that two of his co-trustees were opposed to the synagogue being placed in that locality, and this opposition appears to have continued throughout the year 1896. Moreover, the tin. ancial stituation did not improve. By June, 1896, the defendant would seem, ou a considera tion of these facts, to have conceived serious doubts whether the community could take any of the land or at any rate would be able to pay for more than a portion of it. Accordingly in that month he took measures to acquire the two lots above Lot No. 1,381, with the idea of utilizing the three lots as one block of land in the event of the community not taking any of Lot No. 1,381 or at any rate of retaining the western portion of this lot in any event, so as to serve for the making of an approach to the upper lots. It was in these circumstances and with these intentions that he became the purchaser of the lower lot and subsequently of the two upper lots. The long delay which followed was caused by the inaction of the trustees, and I believe that when the defendant began the correspondence of March, 1897, he was act- uated by the ideas and intentions which I have just mentioned.
CHINA OVERLAND TRADE REPORT,
151
The prisoner was brought up, and discharged by proclamation.
ship, in the defendant; and that the defendant | asked that the prisoner be brought up and did no more than hold out to the represen- discharged. tatives of the community that they could have the land, or a portion of it, transfered to them if they desired it for the purposes of the synagogue, and this only as a matter of favour and not of right.
Mr. Francis relied strongly upon the case of Rochefoucauld v. Boustead, |1897], Ch. 196, as being in close analogy to the present case. There the plaintiff asked the Court, interalia, for a declaration that the defendant had pur- chased as a trustee for her certain estates in Ceylon which had belonged to her but had been brought to sale by the montgagee. The
case was heard before Kekewich, J., who held that the evidence did not show that the defendant had purchased the estates for the benefit of the plaintiff, and dismissed the action. The plaintiff appealed, and the Court of Appeal, taking a different view of the oral and documentary evidence in the case, came to the conclusion that the plaintiff had proved that the estates in question were conveyed to the defendant upon trust for her, and accord- ingly reversed the judgment of the Court below. It will be seen that the decision in this case turned upon the question of what was the true effect of the evidence, and, without going in detail into that evidence, I may say thata careful examination of it satisfies me that it is far stronger to establish a trust than is the evidence in the present case.
Charges were made on the one side and on the other at the hearing that the opposite parties were actuated by unworthy motives in pursuing the line of conduct which they had taken. It was said by the plaintiffs' counsel that the motive cause of the defendant's be haviour is to be found in the fact that land has appreciated in value in the neighbourhood of Kennedy Road, while on the other hand the defendant's counsel suggested that the plaintiffs bad conceived the idea of squeezing the defendant by getting possession of the whole of Lot No. 1,381 and then making him pay a high price for the western postion of it, by way of securing an approach to his two upper lots. I do not feel called upon to express any opinion upon the truth or otherwise of these several charges; I have not to deal with the moral aspects of the case, but
only with the legal relations of the parties.
93
RETURNING FROM BANISHMENT.
Ng Fuk was charged with returning from banishment.
He pleaded not guilty.
A
The jurors empannelled were Messrs. B. K.. Mehta, L. Berindongue, J. B. Duncan, L. Lam- botte, J. Sutherland, W. Klose and G. W. Bin-. der.
Mr. J. T. da Silva did not appear when his name was called as a juryman, and His Lord-. ship ordered him to be summoned to make an explanation.
Mr. J M. Remedios, when called as a juror, said his employer, Mr. G. R. Stevens, was ill, and he was the only person in the office to at tend to some work in connection with a steamer: leaving that morning.
His Lordship excused him from attendance. The hearing of the banishment case was then commenced.
L
The prisoner was convicted, and was sentenced to twelve months' imprisonment, with hard labour.
19th February.
VICTIMISING WOMEN.
Lam Sam, Yam Yan, and Li Cheuk worè charged with stealing a quantity of jewellery from a woman
The on the 5th January. prisoners, who were not defended, pleaded not guilty. Hon. W. M. Goodman (Attorney- General) prosecuted..
The Attorney-General explained that the prisoners had preyed upon gullible women by pretending to have found a very valuable bundle of notes which they were anxious to deposit in consideration of security in the shape of jewellery or inoney or both being left with them. In several cases women had fallen into the trap and when it was too late had found that the bundle was, valueless. In the present case the woman had handed to the prisoners a pair of gold bangles, a gold finger ring, and oue gold-washed finger ring.
Two of the prisoners were found guilty of stealing and one of unlawfully receiving. The first two were sent to gaol for twelve months and the third for nine months with hard labour.
!
BEFORE MR. JUSTICE WISE.
21st February. The above named prisoners were also charged with another offence of a similar kind.
They were found guilty and each was sent to
Under ordinary circumstances the result of the views which I have now expressed would be that judgment would be directed to be entered for the defendant. But in the present instance a question was raised at the hearing as to whether the facts of the case would more properly support a decree for specific perform-gaol for two years with hard labour. ance than a declaration of trust, and, after some discussion, it, was ordered that, if it should thereafter be necessary and if they should be so advised, the plaintiffs should have leave to apply to amend the petition so as to make a case for specific performance. Sack leave is accordingly granted, with the condition that if a summons for this purpose is brought into Chambers within 14 days from this date, the question of judgment will stand over; if otherwise, on the expiration of that period, judgment will be entered for the defendant, with his costs of suit.
THEFT FROM THE DOCKS.
A Chinaman in the employment of the Dock Company was found guilty of stealing over $1,000 worth of brass fittings from the Cosmo- politan Dock.
:
J. W. CARRINGTON, C.J.
12th February, 1898.
18th February.
CRIMINAL SESSIONS.
There is no difficulty in applying the law to this state of facts. It is not contended on the part of the defendant that the Statute of Frauds affords a defence to the suit, and therefore it may be taken that no question arises as to the trust, if created, being sufficiently manifested and proved by writing. Apart from the defendant's letter of the 8th March, 1897, it is not alleged on behalf of the plaintiffs that the defen- dant has created a trust eo nomine, in the form and terms of a trust, but it is contended that, with out affecting to create a trust in words, he has evinced an intention which the Court will effectuate through the medium of an implied trust. The rule on this subject is thus expressed in a passage quoted by Mr. Pollock from the judgment of Bacon, V. C., in the case of Heartley v. Nicholson, L. R, 19 Eq. at p. 242:--- "It remains, therefore, only to be considered whether or not the testator did in his lifetime constitute himself such a trustee. necessary that the declaration of a trust should be in terms explicit. But what I take the law to require is, that the donor should have evinced by acts which admit of no other interpretatiou, that he himself had ceased to be, and that some other person had become, the beneficial owner of the subject of the gift or transfer, and that such legal right to it, if any, was held by him in trust for the donee." Now, if this principle is applied to the present case, I am of opinion that it cannot endure the test. So far from defen- His Lordship said Mr. Wise had kindly con- dant evincing by acts which admit of no other sented to take the remainder of the cases for trial. The Attorney-General said in this case three interpretation that he has divested himself of the beneficial ownership of the land in favour men were committed for trial, but he had of the community, I find that the evidence exercised discretion, and had resolved not to points the other way; that the beneficial owner- put the third man on trial, as there was not ship remained, together with the legal owner-sufficient evidence to support the charge. He
He was sent to gaol for eighteen months with hard labour.
22nd February. Two Indians were charged with administ r- ing a drug to an ex-private in the Hongkong Regiment.
Mr. Robinson explained that the first pri soner, for whom he appeared, understood Hin- dustani very imperfectly, and it would therefore be necessary to get an interpreter other than the Court interpreter.
His Lordship remarked that the prisoners made a statement at the Magistracy which was apparently interpreted all right.
Mr. Robinson said he did, not know until
It is not BEFORE SIR JOHN CARRINGTON (CHIEF that morning that there was a difficulty in ob-
JUSTICE.)
THE INDIAN DRUGGING CASE. Hon. W. M. Goodman (Attorney-General) said there was a case against three Indians of the Hongkong Regiment for administering a Mr. Robinson drug and committing a theft. appeared for the defence. He asked his Lord- ship to put the case over till next week.
taining an interpreter, but probably Lieut. Campbell, who was present in court, could assist them..
The Attorney-General said it was impossible to obtain an interpreter that day and so the case- would necessarily have to be adjourned.
After some further discussion Lieut. Camp- bell said he would do what he could to obtain a competent and impartial interpreter from the Regiment.
His Lordship, in adjourning the case until to- morrow remarked that forty summary cases were down for hearing, but the criminal Ses- sions would have to be finished first. He was very sorry the jurymen had had their trouble for nothing.
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