APPEAL FROM HONGKONG TO
THE HONGKONG DAILY PRESS, THEEDAY FEBRUARY 16TH, 1018.
PRUSSIAN FEROCITY: MR GERARD AGREES WITH GOETHE
war He expressed complete
THE ANAL SUBMARINE CAMPAIGN.
THE ADMIRALTY CURVES.
use of the Chinese characters appro priate to his uncle's pame and not of those appropriate to his own pome. THE PRIVY COUNCIL. LOCAL JUDGMENT REVERSED. It is said that this alone is sufficient to identify the uncle as the person in the
The Admiralty has issued the following We have received the full report of indenture described as the purchaser. Addressing the Lawyers Club in New Their Lordships cannot accept this con-York on December 17th, when he was the the judgment of an appeal from Hong tention A person who signs, senin and guest of honour, Mr. Gerard commented statement to the British Press with re kong to the Privy Council in the action, delivers a deed of covenant cannot avoid upon Prussian ferocity and other strange gard to the sanexed diagram – Tong Shun Fung Ping Shan and Funabilty under the deed by signing a characteristica doeloped in Germany du In view of the statement made by the
name which he represente as, but which ing the v is not in fact, his own, nor can be saddle agreement with the German post Goethe First Lord in the House of Commons on
curves of eral: ach liability on the person whose name who wrote that the Prussian is born a Thursday, 13th December, that the gen merchant tonnage This case, it will be remembered, one uses, unless he is the duly constituted brute and civilization can only make
to the defendants, who attorney of such person. The nephew him ferocious. cerned o mortgage to the p Bre bankers, of certain property claimed was not the duly constituted attorney of Another matter discussed by Mrunk by onemy action and of Ger-
the uncle. He is therefore liable on the Gerard was the very contemptuous man by the plaintiff, who applied to have the covenant and to argue that while the opinion he found in Germany of judges tory, it has been thought that the public transaction set aside. The trial involved person who covenants is the nephew the and lawyers When he first arrived in questions of law and engaged the atten- property passes to the undle would be Berlin as Ambassador, Mr. Gerard said would be interested to see those curves,
Junker officialdom by telling them tion of the local Courts for consider to contradict the deed, which clearly in he could take no impression whatever on and they are placed at the disposal of With regard to the first diagram, the he period. The original judgment of dicates that the property passes to the he had been a lawyer and a judge of the Press accordingly. able Thief Justice was for the plaintiff person who enters into the covenant the Supreme Court of the State of New Q appeal, the Full Court bare-consist Even if the use of the Chinese character
the President, Sir H, W. de of
Teo Chat.
ing
that he had been a major in the
National
submarines sunk are satisfac
ril, 1917,
Saumarez, and the Puisno Judge, Appropriate to the uncle's name can be York It was only when he told the height of the enemy submarine attack Justice Gompertz the Judges disagreed said to create an ambiguity to elucid Guard and came of an old military upon merchantmen was in the President's view being in favour of which evidence of intention is admissibly family that he was able to acquire any and that accounts for the quarter end-
ang Jane showing the "peak" since when the oarve has steadily fallen, and in the last quarter of this year has reached the same figures as in the last quarter of 101, which was before the un restricted submarine attack began
Mr Gerard continu the uncle's position is in no way impro social prestige.
nephew the defendant bankers and the Puisme ed. For it is quite certain that the vend Judge's in favour of the plaintiff; and dor intended to convey to the consequently the original judgment stood whom alone he knew in the transaction During the notable interview with the On the further appeal to the Priv It nihil ad rem to say that as long de Kaiser, which I reported in my. Revela Council the result is that final judgment the vendor got his money he did not card tions, when the Kaime warned me with has been given for the defendant bankers to whom he assigned the property The his finger in my face, that he would not with costs both in the Privy Council and nephew was not called as a winness, and stand any nonsense from, America after his reasons for signing, as he did are a the war, his Imperial Majesty aleo took below.
Counsel for the plaintiff was Mr. matter of surmise, but having regard to occasion to express his contempt and hate The second diagram shows fast since are lawyers Lloyd submarines sunk, and, although for the Kaiser raged, Eldon Potter, instructed by Messrs, the fact that he was about to perpetrato for the law and lawyers All the the quarter ending September, 1916, there not further risen, it must be remembered Hastings & Hastings; and Counsel for series of frauds, it is not improbable people who are opposed to me," the has been a steady, rise in the number the defendant bankers was the Hon. Mr that he desired to be able to assure the George, Asquith, Poincaré they are all last quarter of 1917 the number sunk bas E. H, Sharp, K.C, instructed by Messrs uncle (as ho subsequently nasured him) lawyer Deacon, Looker, Deacon & Harston that his (the nncle's) name had been used
prison camps. If the Germans could not equalled the results of the quarter ending The udgment of the Privy Council in the transaction while he himself re Mr. Gerard described the starvation that there are still the results bel
indues prisoners to act or fight against September, 2017,
chance of (consisting of Lord Shaw, Lord Parker mained in a position to mortgage grand persecution ho had found in the month to add and we have already
their country they stood a of Waddington, and Lord Summer) de otherwise deal with the property livered by Lord Parker of Waddington
being shot. Ta na followe
By an indenture dated the 27th Bupten ber, 189, and made between Pang Kit Cheong (thereinafter called the vendor), of the one part and a person therein described as Tong Shun, of Victori in the Colony of Hongkong, Trader," and thereinafter called the purchaser, of the other part, "it was witnessed that, in consideration of 26,500 dollars then paid by the purchaser, the receipt whereof the vendor acknowledged, the vendor assign ed unto the purchaser all that piece or parcel of land being Inland Lot No: 550x then known as No. 104, Bonham Strand, to hold the same unto the purchaser for all the residue of the term created by
Their Lordships think that the legal state undoubtedly passed to the nephew, though inasmuch as the transaction was ono entered into on the uncle's behalf and with money provided by him, the nephew held the legal estate in trust for
the uncle,
2
NEUTRAL
Attention is particularly drawn to the notes at the foot of the diagrams which Of course, it was always on some pre-explain that they are statistically ac tence. Thus, in the case of some Irish curate and drawn to scale, but that ob prisoners at Liraburg they would be viously the scale is not the same in both. by the guards. The liquor would take sols, and the other the number of sub-
marines. LOSSES BY ENEMY ACTION OF MER starved for days and then given liquo one being for tomage of merchant ves elect the Trishman would make trouble,
CHANT TONNAGE BRITISH, ALLIED ar merciless to the women just They were
conquered countries. I know and the guards would shoot them
into the drove t women of Belgium int
the many instances where German soldiers
farmhouse fields and sent them to live in a lonely. manual labour of the were one with Prussian soldiers. They il they wavered they ere mado.t
to muffer. hardest kind, and it
Gerard Mr. This is
going to be a short, war In conclusion,
ted by n long, hard, and "and subject to the payment of the rent interest, would be postponed to the prior we are confronted
We shall be called desperate struggle
the end there in contained in the Crown lease therein paid off the legal mortgage of the 12th upon to make many great saorifices. But
no DABS mentioned. And the purchaser therobyNovember, 1900, and took a reconveyance French said at Verdun,
and the performance of the lessee's Covenants and conditions reserved, and
On the 12th November, 1809, the nephew created a legal mortgage on the property for 15,000 dollars. This was a fraud upon the uncle, for the mortgage code by virtue of the legal estate, rely on the pica of purchase for value without notica
On the 24th July, 1913, she nephow created an equitable mortgage on the proof perty for 10,000 dollare This was were fraud on the equitable mortgage, whose equitable estate of the uncle,
On the 29th August, 1913, t
of the legal estate tr
the nephew
not
will be there must be It becaine the covenanted with the vendor that the pur
Un the same 20th August, 1913, the watchword of the country. We can chaser would during the residuo of the
in" We know what thie Baid serm pay the rent and perform the nephew created another legal mortgage them another from this country:** covenant in the said Crown lease reserved on the property for 10,000 dollars. This shall not win.” and contained, and indemnify the vendor against all actions, claims, and demands mortgage was a fraud upon the uncle, fight is, but we know, too, we shall never on account or in respect of the non-over whom the mortgagee took priority permit the Prussian yoke to be pressed payraont of the said rent or the non by virtue of the legal estate
down on the rock of civilization.
performance of the said covenants and conditions, or any of them. The inden tare was executed by both parties and witnessed by Mr. Hadgeon, a solicitor
The vendor was at the date of this in dentare the legal owner of the leasehold property expressed to be thereby assign ed and it cannot be disputed that the effect of the indenture waa to pass the legal estate in this property to the person therein referred to as the purchaser The only question is as to the identity cf this person. The respondent (who will referred to as the hereinafter be
uncle') contends that he is the person in question, and that the legal estate passed to him. The appellants, on the other band, contend that the person in question is a person who will be here after referred to as the nephew," and
On the 11th December, 1913, the nephew paid off the equitable mortgage of the 24th July, 2013, and took a reconveyance of the mortgagee's interest,
the person in whose favour the charge is created should be a party to the trans
On the 24th December, 1013, the nephew action. A conveyance by A to B subiect created an equitable mortgage on the to a charge in favour of C, creates such property in favour of the appellants for a charge, if it be the intention of the 12,000 dollars. This was a fraud on the parties, even though C be not himself & appellants, whose interest would be post-party to the transaction poned to the prior equitable estate of these points be borne in mind and the uncle, unless, indeed, the uncle had attention be paid to the indenture by been guilty of conduct which is a Court which the nephew conveyed the legal of Equity would preclude bum from estate to the uncle, it is in their Lord relying on his priority in time ships opinion reasonably clear that the In this state of affaire the uncle, having effect of the transaction was, and was very good reason to suspect misconduct intended to be, that for which the sppel on the part of the nephew, left Chicago lants contend. This indenture contains and caroe to Hongkong, desiring to a recital of the appellants' mortgage protect his interest in the property. He and no recital as to its being postponed found as a fact that the nephew had de to the uncle's equitable estate. It also frauded him by creating the legal mort recites a request by the uncle to the to the gage for 10,000 dollars, which undoubted nephew to assign the property to him, that the legal estate passed 10jority to his own equitable subject to the appellants mortgage, and
:-62
Mar, Jane Byt Deo. Mar, Juno Sept, Deo.
1917 Quarter ended.
1978
GERMAN SUBMARINES SUNK.
Mat. Tune Sept. Deo, Mar. Jano Sept. Des..
Ki Quarter ended, THESE DIAGRAMS AER:-
can be no doubt that parole intercet, and had defrauded the appell to enter into the covenant thereinafter evidence as to the identity of a party to ants by creating in their favour the contained, namely, the covenant to pay a deed is always admissible, but in con-equitable mortgage for 12,000 dollars the uncle on demand the principal and sidering such evidence it is of paramount which apart from any question as to interest dus on such mortgage What importance to bear in mind the indicia the uncle's conduct, was undoubtedly conceivable consideration could there be to the uncle's equitable for such a covenant, unless the uncle of identity afforded by the deed itself. postponed
The uncle and the nephew intended to give the appellants priority In the present onse thate indicia are as estate,
aftor consulting solici in respect of their mortgage over his follows: the person to be looked for is thereupon, a person who: (1) is named Tong Shun tors in Hongkong, entered on the own equitable estate, and how can the (2) resides at Victoria, in the Colony of 20th June, 1914, into the following trans uncle now assert such equitable estate Hongkong; (3) is a trader; (4) has paid action: First, the nephew paid off the against the appellants without destroy- the vendor 26,500 dollars; and (5) enters
of the legal estate. It does not appear reyance is expressed to be subject to the scale. whether the uncle or the nephew found
1917
Statistically accurate based on facts
Diagrammatically accurate and strictly up to 17th December and include no estimated or uncertain figures
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into a covenant with the vendor by sign ing, sealing, and delivering the indenture
appellants indenture of mortgage and itself. The uncle's Chinese name may the money for this purpose. Secondly, to payment of the principal and interest properly be rendered in Luglish as Tong the nephew assigned the legal estate to thereby secured, and not subject to any Shun and he may, no doubt, be properly the uncle subject to the indenture, charga created by this indenture which described as a trader. He also seems to creating the equitable mortgage, and the might take effect in priority to the
An article in the Journal on December the vendor. But he was not resident in the nephew covenanting with the uncle been the case had, the unele intended to Hongkong when the indenture was exe to pay him on demand the principal sum set up such estate against the appellants. cated. On the contrary, he resided at of 312,000 and all interest or other Lastly, the nephew covenants to pay the Chicago, his only connection with Houg monies due by virtue of the indenture of uncle, on demand, what is secured by the 20th showed in a detailed esposition of kong being that he was or had been mortgage, and the costs, charges, and ex appellants mortgage, and not, as would the German military situation that the partner in certain businesses carried on penses of paying off such mortgage and have been the case if the uncle's conten preparation for a big offensive WAS in the Colony. He certainly did not obtaining reconroyance thereof. The tion be correct to pay these monies to gather an encouraging sign than other-rice-Special Fram Cars will run before and after the Night Performance either personally or by a properly con second point their Lordships have to tie appellants and indemnify the uncle Said the Journal stituted attorney siga, peal or deliver decide is the eficet of these transactions property for any claim to a charge in Germans is now anxious by means of the indenture, or thereby, enter into any on the position of the apellants. The respect thereof, and the submarang offensive endopeans of covenant with the vendor. The nephew, unele contenda that they do not preclude in their Lordships' opinion, the effect destruction of the food supplies of her on the other hand, has Chinese name him from setting up as against the of tacse transactions was that the uncle, principal adversaries and to force peaco which may properly be rendered in Eng. appellanta the equitable estate which he instead of his equitable estate ranking by her counter blockade. While the sub- lish as Tong Bhun, he resides in Victoria undoubtedly theretofore possessed. The in priority of appellante mortgage, took marines are sinking ships the Garmant add in that Coony; he is a trader, he paid appellants on the other hand, contend the legal estate subject to the appellants are continually losing men. Ware which was quite provided by the uncle he personally had prior to the transactions in question covenanting as above mentioned. The blood. It is to her interest not to
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the 28,00 dollars, though out of money that such equitable interest as the uncle mortgage, in consideration of the nephew Losing wood and steel, Germany is loving Soldiers and Sailors in uniform, Half-Price to the Si and $1.50 seats. signed, sealed, and delivered the inden is now gone, and that his sale interest uncle's prior equitable estate being to this loss of blood, and serious ture and he is the only person who could is the legal interest which he expressly co-extensive with the legal estate which nongh in 1917 table in y
the
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loss of blood won prima facie new offensive. If such a stop
Abould be merge in such legal estate (Selby o possibly be sued by the vendor on the takes subject to the appellants' equitable he was acquiring would, p covenant, on the part of the purchaser mortgage por therein contained. In considering these rival contentions, Ashton, 3 Ves Junr. 339 Re Douglas, decided upon it would be because Ger W. HARMSTON
If Germany blow dented marines The facts above stated taken alone there are two points which must be borne CD 387, and I Selour, 1901 1 Ch many was driven to it by the urgent
secared the would, in their Lordships opinion, estab. in mind. In the first place, whatever the 921). He might have kept it alive as reason of her impossibility to withbold nephew does in carrying out the transe against the appellante, but he deliberately lish beyond controversy, that the person ions in question must be taken as done elected not to do, and the result is
attempt some master stroke. A great in the indenture described as the par
German offensive on the Western Front chaser was the nephew and not the uncle, by the direction of the uncle, the party that the appellants can claim the benefitter realise this impossibility she must REGULAR but there in one additional fact which beneficially interested. In the second of the transaction, although they wer
Under these circumstances
The Ererior on the same day publish has not yet been stated, and which is place, the position of an equitable mort-not parties to it
can bear no other interpretation
ents by officer from the front said to outweigh the other evidence, or giges may be improved by transactions
ged that the sol- whether the un had or had not beca ed state
conscious of the at least for create such an ambiguity as to which he is not a party.Where a necessary to deal with the question prior mortgage is paid off by the owners
to set up his priestho Court of Equity to admit evidence of intentions. As of the property, the position of & puise guilty of conduct disentitling him in a
although the circumstances were
oquitable mortgage.
heroinbefore appears both the uncle and
it is un
in which
едеш
the phew have Chinese names which equitable mortgagee is im prosequitable estate as against the appellants alien
the
such
may be properly rendered in English as that the party taking the resonverance Tong Shan To the Chinees ear nimes sie, however,, quite distinct, beight, had be so chosen, have kept the cause their intonation is different. They mortgage alive in his own are also distinct when written in Chinese as not to benefit the characters, because these characters indi. Even in the case of cute tonal marke It appears that the equitable charge, it
of
sary that
nephew in signing the indenture made (Continued at foot of neat Column.)
Their Lordships will humbley advise His Majesty that this appeal should be
allowed with costs here and in the Court below and that the order of the Trial Judge hould be discharged, and the or action in which the appeal arises be dismissed with costa
eeting redo
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