January 19, 1901.]
11
at-
CHINÁ OVERLAND TRADE REPORT. juris and also sole beneficial owners) showed | fendant no defence to this action. Although plainly enough that it was taken for granted as the defendant did not create the trust he well settled that, speaking generally, absolute accepted a transfer of the beneficial ownership beneficial owners of property must in equity in the shares first as mortgagee and afterwards bear the burdens incidental to its ownership and as sole beneficial owner with full knowledge of not throw such burdens on their trustees. The the fact that they were registered in the short report of Balsh v. Hyham as given in 2 plaintiff's name as trustee for the original pur- Eq. Co., Ab., 741, fol. 8, showed that that gen- chasers and their assigns whoever they might eral rule was well recognized and that the decision be. By that acceptance the defendant became was only an illustration of its application to the the plaintiff's cestui que trust; and the plaintiff facts then before the Court. It was impossible to could not prevent it or effectually dispute his read the judgment of Vice-Chancellor Wigram trusteeship for the defendant. By that accep- in "Phené v. Gillan" (5 Ha., 1) without com- tance the defondant created the trust for him- ing to the conclusion that he also regarded the self. Having done so the defendant as the general rule as well established. The principle beneficial owner of the shares demanded from noted upon in "Balsh v. Hyham' was re- the plaintiff and obtained dividend declared in considered and most strikingly illustrated in respect of them. The defendant also paid the well-known case of the "German Mining Co. calls mado
upon them although he
any ad- ex parte Chippendale" (4 De. G. Mo and G., tempted to protect himself from p. 19) where shareholders of a mining company mission of liability by entering those pay were held liable personally to indemnify the ments in his books as made on behalf of the directors against payments made by them in plaintiff. Lastly, when asked by the plaintiff discharge of debts contracted by them but to procure a transfer of the shares out of the which payments created no legal obligation on plaintiff's a name the defendant refused to do so, the company enforceable at law and could not be and thereby compelled the plaintiff to continue recovered by the directors from the company by to hold them as his trustee. It was id'e after any action at common law. Tho shareholders in that to rely on the fact that the defendant did vain contended in that case that the direc- not create the trust in the first instance; and tors had only a right to indemnify out of idle to talk of renunciation or disclaimer of the assets of the company, Where, as in those shares by the defendant. He could not "Balsh v. Hyham," a trustee sought indemnity-now get rid of the trust for himself which he in respect of transactions in which he need not created by becoming beneficial owner of the shares have engaged and which were not within the and which trust he had recognized since as scope of his trust he must prove that his cestui subsisting. It was quite unnecessary to con- que treat either authorized or ratified such tran- sider in this case the difficulties which would sactions. But if he had incurred liability with- arise if those shares were held by the plaintiff on trust for tenants for life or for infants or in the scope of his trust and for the bonefit of his cestui que trust "Ex parte Chippendale upon special trusts limiting the right to indem showed that nothing more was required. When nity. In those cases there was no beneficiary a trustee sought indemnity from his cestui que who could be justly expected or required per- trust against liabilities arising from the mere sonally to indemnify the trustee against the fact of ownership there was neither principle whole of the burdens incident to his legal nor authority for saying that the trustee need ownership, and the trustee accepted the trust prove any request from his cestui que trust to knowing that under such circumstances and in incur sach liability. In the case supposed the the absence of special contract his right to indem- trust involved such liabilities and the trustee nify could not extend beyond the trust estate or whilst he remained such could not get rid of beyond the respective interests of his cestuis them He was subject to them as legal owner;
que trustent.
In this case their Lordships had but in equity they fell or the equitable owner only to deal with a person sui juris beno- unless there were good reasons why they should ficially entitled to shares which he could not not As regarded shares the right of a trustee disclaim. The obligation of such a person to be indemnified by his cestui que trust against to indemnify his trustee against calls upon calls had been repeatedly recognized and en- them appeared to their Lordships indisputable forced on the principles applicable to the equit in a Court of equity, unless, of course, there able ownership of property and without re- was some contract or other circumstance which Here there was ference to the principles applicable to contracts excluded such obligation. or specific performance or any other legal or Whether the plaintiff in this case could equitable doctrine. Nothing could be plainer sue Benjamin and Kelly on any promise by or, sounder than the language of Vice-them to indemnify him need not to discussed. Chancellor James in Castellam v. Hobson Such a right, if it existed, in no way affected (L.B. 10 Eq. 47) and of Mr. Justice Chitty the obligation of the defendant as the plaintiff's But it was obvious that any in Loring v. Davis (32 Ch. D., 634). cestui que trust. "James v. Way" (L.R. 6 Ho. Lo., 328) pro- payment to the plaintiff by Benjamin and Kelly, ceeded on the same principle. Other cases to or by the defendant, in respect of the call the same effect might be cited, but it was ́ un. would reduce the amount which the plaintiff necessary to refer to them. No case had been could recover from the defendant, or fron For those found or as their Lordships believed could be them, as the case might be. found, which was opposed to those authorities. The principle was recognized by Mr. Justice Fry in "Hughes-Hallett v. The Indian Mam- moth Gold Mines Company" (L.R., 22 Ch. D., 561), although he there held that the application for indemnity was premature. It was true that the facts of that case were not in all respects like those in the cases above alluded to. But although the facts were differant the result of them was the same; i.c., the facts were such that the relation of trustee and cestui qu trust was created. In the present case the defendant did not create the trust on which the plaintiff origi- nally held the shares. The defendant had nothing to do with procuring their registration in the plaintiff's name as trustee for Benjamin and Kelly and their assigns. That feature of the case was strongly relied upon by the defen- dant's counsel as distinguishing it from those *above-mentioned, and reliance was placed on what Lord Blackburn said in Fraser v. Mur- doch" (L.R., 6 A.C.) ábout makers of trusts (page 872) and trusts to carry on business with particular funds (page 875). But their Lord- shaps could find nothing in Lord Blackburn's judgment which was inconsistent with the Principles which in their Lordships' opinion governed this case.
*
[11
32
11
11
none.
reasons
their Lordships would adviso her Majesty to allow the appeal and to reverse the judgments appealed from with costs, and the defendant would pay the costs of this ap peal. Owing to the judgment appealed from being a judgment of non-suit only, their Lord- ships were unable to advise her Majesty to order judgment to be entered for the plaintiff with costs. The defendant was entitled to a new trial at the risk of costs. But how, in the face of his own books and conduct, he could reasonably hope for ultimate success their Lordships were at a loss to conceive. If, how ever, he insisted on his strict rights he was entitled to have the action remitted to Hong. kong for retrial, and their Lordships would humbly so advise her Majesty.
HONGKONG.
63
The U. S. gunboat Isla de Luzon arrived on the 14th inst, from Manila.
A hawker fell from a house-top at West Point on the 15th inst., and alighted on his head, sus- taining injuries to which he succumbed in the Tung Wa Hospital, whither he was removed.
The Hon. Treasurer of the Alios Memorial
and Nethersole Hospitals begs to acknowledge with thanks the following donation to the funds of the Hospitals:-Market Charitable Fund,
A Jiji special telegram, dated Seoul the 6th, says "It is understood that the surveying of the route of the Seoul-Wiju railway now being conducted under the direction of a French en- gineer, will be concluded by the end of March next and that the work of construction on the line will at once be begun. It is yet uncertain whether the capital necessary to the undertak ing will be raised by means of the flotation of
$50.
Up to the present only 20 of the Seige Train bullocks have been sold by the Military autho- rities, the prices yielding on an average $29 each animal. The ruling price for the game
|
class of bullocks in India is Rs. 100.
In the Gazette-appears the appointment of Mr. R. F. Johnston to be Acting Clerk of Councils, a position which Mr. Johnston was holding at the time of his appointment to the post of Private Secretary to H.E. the Governor.
Subject to audit, the Directors of the Hong. kong and Shanghai Banking Corporation will recommend at the forthcoming meeting of the company a dividend of £1 10s. per share, a bonus of 10s per share, and to add $1,000,0 0 to the Reserve Fund and carry forward ́about $1,400,000.
Of the articles examined by Mr. T. J. Wild, Acting Government Analyst, under the Sale of Food and Drugs Ordinance, during the quarter just ended, one of the three samples of brandy proved not to be genuine, while the one sample of milk and the three of whisky were genuine.
A rumour has gained currency among the shipping circles in Hongkong that considerable disaffection exists among the ship's company of the United States cruiser Albany, now lying in the Harbour. One version of the story is that the absence of a thorough esprit de corps among the officers and men is attributable to severity in the punishment of petty misdemeanours on board as well as unnecessary rigour in dealing with breaches of naval discipline.
A report by Dr. J. C. Thomson is published in the Gazette, containing the results of his ex- aminations of mosquitoes in the Colony during the last quarter of 1900. Dr. Thomson found Anopheles and Culex in the following propor- -October, tions during the three months :- Anopheles 26.4, Culex 73 6 per cent.; November, Anopheles 6.8, Culex 93.7 per cent.; December, Anopheles 5.9, Culex 94.1 per cent. Dr. Thom- son proposes to extend his enquiry over the whole of 1901, with a view to an approximately. accurate classification of the mosquitoes pre- vailing in the Colony.
The following returns of the average amount of bank notes in circulation and specie in re- serve in Hongkong during the month of Decem ber, 1900, are cer.ified by the Managers of the respective banks:-
Banks.
Average Specie in Chartered Bank of India, Amount. Reserve.
Australia and Chins..... $2,927,088 $1,600,000 Hongkong and Shanghai
Banking Corporation 7,003,450 5,000,000 National Bank of China,
Limited
450,000 150,000
Total ..... $10,380,538 $6,750,000 The two cruisers ordered by the Siamese Government about a year ago from the Hong- kong and Whampoa Dock Company are practically completed. The Bali, when she went through her final trial on the 8th inst. in the presence of representatives of the Siamese Government, attained 114 knots, which is 4 above the speed contracted for. The trial was all that could be desired, and the vessel was taken out of the hands of the Dock Com- pany and left on Sunday for Bangkok, Captain Rowin in command. The Sugril, twin-ship. to the Bali, is almost ready for her final trial. It is expected that she will have Hongkong in about a month. The dimensions of the cruisers are 162 feet long, 23 fest beam, moulded depth 11 feet, displacement 390 tons. The engines. are about 500 indicated horse power. Each vessel will be manned by a crew of between
The fact that the defen- a loan on foreign markets or of the introduction | and 50 mon. About a couple of years ago an
dant did not create the trust on which the plaintiff held the shares when they were first placed in his name afforded the de-
of foreign capital through method. It is pro- bable, however, that the latter methods will be resorted to.”
similar vessel was constructed by the · Dock Company for Siam, and we believe that the company have received an enquiry for another,