62
SHANHAIKWAN.
THE RAILWAY.
A correspondent of the N.-C. Daily News writes on the 26th December as follows:---
It is announced here that the railway is to be handed back to Mr. Kinder on the 14th of January. That gentleman will have no light task before him, for the Russians have taken away, both from Tongshan and Shanhaikwan, everything they could lay their hands on in the shape of railway plant, stores and materials. From Tongshan they have actually removed all the new machinery from the new workshops, and the British authorities must have found it rather irksome to look on and be prevented by high policy from interfering.
At the Shanhaikwan Bridge Works they have not even left a hammer or a pot of paint in the way of stores. At both places only the bare walls are left, and experts tell me that the Russians have secured at least fifty thousand pounds' worth of material.
THE BRIDGE WORKS
should at least, one would think, have been defended by the British authorities, for they were entirely occupied with construction work, and had nothing to do with the open line, all the stores and material for which were drawn from Tongshan only. General Reed was no doubt acting under orders when he allowed this, for I am told that he was fully informed of the facts, and it cannot have been pleasant to him to sit still and allow the British bondholders' pro- perty to be "conveyed" like this.
BRIDGE BUILDING.
Passing through Tongshan I learnt that the Russians have been trying ever since the first week in October to repair the Hanku Bridge, and have at last come to the conclusion that it is impossible to repair it this winter. It will be interesting to see how soon Mr. Kinder has trains running over it.
THE HONGKONG WEEKLY PRESS AND
A HONGKONG CASE BEFORE THE PRIVY COUNCIL.
HARDOON V. BELILIOS.
The Judicial Committee of the Privy Council on the 8th ult. delivered judgment in the above the Supreme Court of Hongkong of February case. It was an appeal from the judgment of 28, 1899, affirming a decision of the Chief Justice.
Mr. Latham, Q.C., and Mr. Whinney were counsel for the appellant; Mr. Joseph Walton, Q.C., and Mr. R. J. Parker for the respondent. board composed of Lord Hobhouse, Lord The arguments were recently heard before a Robertson, Lord Lindley, Sir Francis Jeune, reserved. and Sir Ford, North, when judgment was
ships' judgment, said the question raised by Lord Lindley, in now delivering their Lord- the appeal was whether the plaintiff, who was the registered holder of some shares in a banking company which was being defendant, who was the beneficial owner of such wound up, was entitled to be indemnified by the shares against calls made upon them in the winding up. decided against the plaintiff on the evidence The Courts of Hongkong had adduced by him and had entered judgment of non-suit. The defendant adduced no evidence, it did not become necessary for him to do so. The Chief Justice, who first heard the case, decided that the defendant was the sole benefi- cial owner of the shares, but that the plaintiff had failed to prove any contract by defendant to indemnify him-either express or implied. On appeal the Chief Justice and Mr. Justice Wise considered that although the defendant had be- come the sole beneficial owner of the shares the relation of trustee and cestui que trust had not been created between the plaintiff and the de- fendant and that the defendant had not become liable to indemnify the plaintiff. Against those decisions the plaintiff had appealed to the board. The facts of the case so far as they were material were shortly as follows:-The bank in question was formed and registered with limited liability under the Companies Act, 1862. Its capital was di- vided into shares, which were not fully paid up when it went into liquidation in December, 1894. Calls had been made on the contributories, of whom the plaintiff was one. He was a contri. butory in respect of 50 £10 shares. He had been sued by the liquidator for the calls made on him in respect of those shares, and judgment had been given against him for £402 12s. 11d., which he sought to recover from the defen- dant. The 50 shares in question were placed in the plaintiff's name in April, 1891, by his then employers, Benjamin and Kelly, The Germans and Japanese are reconnoitring who were sharebrokers. the west bank of the Peiho between here and had any beneficial interest in them; but he was The plaintiff never Taku for river pirates and Boxers. It is re-registered as their holder on April 3, 1891. A ported the Japanese lost two men at Hsiao-provisional certificate of his ownership was chun, this week.
NORTHERN NOTES.
The P. & T. Times of the 29th ult. contains the following items:
It is reported from Peking that Li Hung- chang is dying with influenza.
The river has opened again contrary to ex- pectation, and the weather has been exception ally mild the last ten days. It seems possible that we may repeat the winter of two years ago. The Boxers have been collecting at Ching hai again and calling themselves Christians, but when a native Christian went the other day with twelve men to arrest some Boxes, the professing Christians turned on them and killed seven of the party,
Last week various more or less starling reports were current about Chinese forces sup- posed to be approaching from various quarters. But the cavalry and artillery both went out for a considerable distance without seeing any signs of enemy.
On the 20th, a party of French soldiers 100 strong left here for Anangtsa, a village 20 miles west of Tientsin, to search for arms. When the French arrived outside the village and were crossing the frozen creek which sur- rounded it, several Boxers opened fire, killing Lieut. Contal of the Marine Infantry and wounding another officer. The French drove the Chiese out killing many, and burned the village.
On the 22nd, a party of French attacked 2,500 armed Chinese at Cho-chow, between Peking and Paotingfu, driving them towards Kuanhsien. As the latter place is towards the Peking-Tien- tsin line a strong force of British left here on Thursday and Friday, for Yangtsan, composed of 1,200 infantry and cavalry with 2 guns, I pompon and a maxim under Major-General Cummins, with 10 days rations. The British force, in conjunction with French will no doubt scour the country in the vicinity of Yangtann.
The Pinang Gazette newspaper and press have passed into the hands of a syndicate with a capital of $70,000 Mr. J. Kennedy, the former proprietor of the concern, has an in- terest in the venture.
[January 19, 1901,
| those payments, but there was no evidence that the plaintiff was informed of that. The fact that at that time the defendant did not debit Coxon with those calls seemed to their Lordships very strong evidence that at that time ( oxon's in- terest in those shares, was at an end and they 10, 1894, the plaintiff wrote to the defendant belonged absolutely to the defendant. On April asking that the shares might be transferred out of his name, but the defendant declined to get it until June, 1894, when the fourth instalment that done, and the plaintiff said no more about of 58. in respect of the call of £1 became due. that instalment and he did so, but debited the The plaintiff then asked the defendant to pay plaintiff with the amount as before. Shortly afterwards the plaintiff's solicitors wrote to the defendant and asked him to have the shares. defendant declined, saying that the shares were transferred out of the plaintiff's name, but the lodged with him by Coxon, who was absent from the colony. Further correspondence took place after calls had been made by the Aquida but the defendant refused to indemnify the tor on the plaintiff as already stated, plaintiff and the present action was commenced. the defendant became in October, 1892, the sols It appeared from the evidence as it stood that beneficial owner of those shares, the legal title to which was vested in the plaintiff. Assuming loss to understand what more was required to that to be established their Lordships were at a create the relation of trustee and cestui que trust between the plaintiff and the defendant.. The facts that they never stood in the relation of vendor and purchaser, that there was no con- tract between them, that, the defendant never requested the plaintiff to become his trustee were quite immaterial. All that was necessary to establish the relation of trustee and cestui que trust was to prove that the legal title was in the plaintiff and the equitable title in the defendant. That might be proved in many ways. The mode of proof was quite im- material. Being proved, no matter how, the relation of trustee and cestui que trust was thereby established. No one could he made the beneficial owner of shares against his will. Any attempt to make him so could be defeated by disclaimer. But the moment the defendant accepted the beneficial ownership of those shares he became the plaintiff's cestui que trust and the plaintiff had no option in the matter. I he next step was to consider on what principles an absolute beneficial owner of trust property could throw upon his trustee the burdens in- cidental to its ownership. The plainest prin- ciple of justice required that the cestui que trust who got all benefit of the property should bear its burdens unless he could show some himself. good reason why his trustee should bear them
The obligation was equitable and not legal and the legal decisions negativing it, unless there was some contract or custom im made out and he signed a blank transfer of posing the obligation, were wholly irrelevant them, and those two documents were held by and beside the mark. Even where trust pro Benjamin and Kelly, who paid the application perty was settled on tenants for life and and allotment money and first call. That cer-
children the right of their trustee to be indem- tificate and transfer afterwards came into the nified out of the whole trust estate against any hands of one Coxon, who acted on behalf of a
liabilities arising out of any part of it was clear syndicate formed to speculate in shares in an-
and indisputable; although if that which was other company. The defendant financed that once one large trust estate had been converted syndicate, and the provisional certificate and by the trustees into several smaller distinct trust blank transfer of the 50 shares in question estates the liabilities incidental to one of them were, with other securities, pledged by Coxon, could not be thrown on the beneficial owners of with the defendant as security for his ad the others. That was decided in “Fraser v. vances. In October, 1891, the plaintiff's pro- Murdoch " (6 A C., 855), But where the only visional certificate was exchanged for an
cestui que trust was a person sui juris the right ordinary certificate, which the defendant had of the trustee to indemnify by him against ever since held. In March, 1892, dividends were liabilities incurred by the trustee by his reten- paid on those shares, and the defendant, as tion of the trust property had never been limited holder of the shares, derzanded the dividends from to the trust property; it extended further fand the plaintiff for them and received them from imposed upon the cestui que trust a personal him. The operations of the syndicate resulted obligation enforceable in equity to indemnify in considerable loss. Their accounts with the
his trustee. That was no new principle but defendant were closed, and in October, 1892, the was as old as trusts themselves. În “Balsh v. defendant became the absolute owner of the Hyham" (2. P.W., 453) the trustee sought in- shares. That at least was the conclusion arriv-demnity in equity not against a liability inciden- ed at by both Courts in Hongkong from the entries in the defendant's books, and there were no grounds on which the board could come to any different conclusion. In November, 1893, a call of £1 per share was made, payable by four instalments of 58. each. The first three were, at the plaintiff's request, paid by the de- fendant to him and by him to the bank. The defendant sail he was not liable to pay them, and in his books he debited the plaintiff with
tal to the ownership of the trust property buf against a liability incurred by him by borrowing money at the request and for the benefit of his cestui que trust. The Court decided that the plaintiff was entitled in equity to the reliat which he sought on the broad ground “ that cestui qui trust ought to mave his trusteo less as to all damages relating to the trus That language (although open to criticism if applied to cestui qui trustent who were not sus