154
THE HONGKONG WEEKLY PRESS AND
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[February 28, 1895.
the date aforesaid and was never stamped at deed poll of June, 1891, is false or fraudulent this under the authority of and to give effect Hongkong. Possession of the documents and and made for the purposes as charged by the to the letter of hypothecation of March, 1884 P securities therein referred to was never given to plaintiffs. It was made for the sole purpose of Was that transfer voluntary and with intent to §. John Murray Forbes until the 27th June, giviuz effect to and placing on better record the defrant and defeat creditors and therefore 1891, when they were handed over to Creasy trusts of the said sum of Tls. 258,000, and was fraudule it and void, or was it bona fide sad for Ewens. They remained in the possession aud made by the authority of John Murray Forbes. valuable consideration ? Was the deed of trust under the control of the said William Howell The case was heard before me on the 15th | of Tam ◄ valid and duly registered or was Forbes or other the partner for the time being November last, when Mr. Francis, Q.C., and Mr.it voluntary and fraudulent ? Was the declara. in charge of the firm of Russell & Co. in Hong-Robinson appeared for the plaintiffs and Mr.|tion of Jane, 1891, voluntary and with intent to kong, and were sold, transferred, and dealt with in | Leach. Q.C., and Mr. Sharp appeared for all, the defeat or delay creditors or was it bona fide the ordinary course of the business of the firm in defendants, except John Murray Forbes, who has for valuable consideration ? Ho intended Hongkong and for its benefit. That if a bona fide not appeared to the writ served upon him and an to show that the property in 1884 was debt existed in 1884 from the firm of Russell & order was made to proceed ex parte against him. the property of Russell & Co. and that up Co. to the said Howqua and if the said equitable Mr. Robinson having read the plea lings, Mr. | to 1898 Russell and Co. dealt with the pro- charge or letter of hypothecation ever had any Francis opened his case, put in the de bene case perty as theirs. That the defendants have validity a considerable portion of the said debt examination of William Howell Forbs and called to prove the property was duly hypothecated to had been paid off, and the lots of land included Mr. Sangster, the Acting Land Officer, who them; that Murray Forbes was a trustee or in and charged by the said letter of hypotheoa- produced certain documents, to which allusion that he was in possession of property or money tion have been released on or before the 11th will be made later on. Mr. Sangster was for them and that he lent mon-y out of the January, 1886, and the balance was secured upon cross-exanimed on the 16th November and Mr. fund to Russell and Co.; that the money was due shares and other securities which were con- Francis declared his case closed. Mr. Leach in 1884 and there was a debt not barred, because stantly being changed. That the alleged deed elected not to call any one or put in any evidence. if there was no debt then this charge or settle. poll and declaration of trust of the 18th day of Counsel were further heard on the 4th, 5th. 6th, ment was a purely voluntary one. The defen June, 1891, was made for the purpose of defeating and 7th December. It will therefore be seen dants have to produce and prove the letter of and delaying the creditors was not bona fide, how very meagre is the evidence in this import-hypothecation to explain the non-existence of and was not made by the said John Murrayant and intricate case. It appears to me that the schedule, and why. this letter was prepared Forbes or by any one with proper authority there were several points which if not absolutely and given at the date thereof. Secondly, what from him In the answer of the defendants essential to be cleared up would at least have is the legal effect of such a letter of hypo- Ng Woon Sun Howqua, Creasy Ewens, and thrown great light on the several circumstances thecation without a schedule. That the Ng Chan Fong to this petition, it is of the case and would have greatly facilitated defendants have to prove that they have a necessary only to note the following passages the decision thereof, but both parties seemed good charge and to substantiate every element er paragraphs. They denied that Iuland lots to shirk calling any more evidence than they and inta necessary to sustain it. That the plain. Nos. 148 and 578 were registered in the name were absolutely obliged to do, and to have tiffs deny that the title.deeds ever came into the of William Howell Forbes by assignment from relied on all the uncertainty attending the legal possession of John Murray Forbes.
That as- John Murray Forbes. They admitted that the questions raised by the few facts which have been saming that the letter of hypotheestion was of deed poll or declaration of trust, dated the proved. For instance, there 18 no evidence any value, defendants must prove that the assign-⠀ 18th day of June, 1891, and the equitable tendered to show why or under what circum-ments or transfers to Ewens and Ng Chow letter of hypothecation, dated the 31st March, stances the letter of it was given; and Fong were valid, and that includes the question 1884, were registered against the property in the questions whether Russell & Co. were whether the letter of hypothecation with the Hongkong, but they deny that they or any largely indebted at the time of the making schedule attached at an unknown date was a valid of them caused them to be registered. With of the letter of hypothecation; whether those document for registration Was it properly respect to the ownership of this properly, debts have since been paid off, when the stamped, and should it not have been registered the defendants assert that it was vested in schedule to the latter of hypothecation was filled before being put into force? Was the declara John Murray Forbes on behalf of himself in; what were the real dealings with certain pro- tion of trust of June, 1891, validly executed, as and two other partners, viz., William Howell perties mentioned in that letter which have since plaintiffs deny that the person who executed it had Forbes and De Courcy Forbes, and that on the been sold; and what became of the sale price any power to do so, as even if the power of attorney execution of the letter of hypothecation the thereof; whether as s ated in the 10th paragraph bad by express words given Mr. Wheeler the said John Murray Forbes held the property as of the answer the Crown leases of the property powers he pretended to exercise it would have Boonrity for the money advanced that the de- in Hongkong were in 1888 surrendered and been in
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breach of the powers given to fendant Ng Woon Sun Howqua is the son of at the request of Mr. J. M. Forbes fresh leases Forbes." That the defendants have to prove Ng Tse Sing Howqua; and that, in 1888, the were granted in his uate alone for the purpose that they are legally in possession of the Crown leases for the land properties in Hong- of giving effect to the said charge and for the property, and that William Howell Forbes wat kong were surrendered and fresh Crown leases better security of the monies so advanced, and, entitled to hand them over the title deeds. were, at the request of John Murray Forbes, and lastly, whether any stops had been taken to as These were the points urged by him in his open- with the consent of the partners of Russell & certain what stamp the Government required|ing, and in summing up, after briefly referring Co.. granted in the sole name of John Murray to be fixed to the letter of hypothecation, and why to the facts, he stated that upon the evidence of Forbes for the purpose of giving effect to the the document was registered unstamped as it is Mr. Forbes I was bound to hold that the letter said charge and for the better security of the all these are points upon which evidence could of hypothecation was deliberately concealed, that money advanced. They deny that the firm of easily been obtained and which if enquired into up to the date of their bankruptcy Russell & Co. Russell & Co. were at that time heavily indehted might have had an important bearing on my de- appeared as the owners of property absolutely to the Banks and others, and that, if indebted cision. There was a question raised on the plead-unencumbered, and that the evidence showed that at all, such indebtedness was long ago paid off; ings whether this suit was defective for want of this property was encumbered for the payment that the firm was perfectly solvent, and that parties and also another question whether the of a debt larger than the value of the property. the transfer of the fleet of the China Merchants' writs of execution and the prohibitory orders That after the bankruptcy the secret deed is pro- Steam Navigation Company had not been sug.issned were good against the partnership firm duced, the title deeds are handed over by Forbes, geated or thought of. They assert that the of Russell & Co. and of the several members and then the declaration of trust is produced. said firm was indebted to Howqua in the sum of thereof, or whether they were good only as That he contends that this act and the putting Tis. 258,000, and that the said letter was against William H. Forbes and C. A. Tomes them in session and the production of the de- not given fraudulently or in order to defeat cre. The trial of the first question has by consent claration of trust were acts which impeded and ditors, bat was for valuable consideration and been postponed and the other has been decided delayed the creditors, and he draws my special for the sole purpose of securing the repayment by a judgment dated the 2nd November, 1892. attention to them, as he contends that the ac- of Tls. 258,000. They do not know when the Mr. Francis in the course of his opening and tion of William Howell Forbes was taken soh edule of properties was added, but it was summing up has argued and contended:-That when the firm was hopelessly insolvent added with the knowledge and consent of Wil- the broad general question was, had Forbes on the that the declaration of trust by John Mart liam Howell Forbes and other partners of the 10th July, 1891, any interest in the property? ray Forbes was a fraud on the creditors, andy firm, and the said charge so added to was ratified Had he any charge for Howqua and for what where there exists any delaying or defeating of and confirmed by them, and the title deeds of amount? Did he ever advance any money out of creditors I am to look at all the circumstances. the properties in Hongkong were subsequently the trust fund to Russell & Co., and was there That there is no evidence that there was a valid held by the said William lowell Forbes, or any debt due on the 31st March, 1884, to Murray charge or an actual trust, and that no man can other the senior partner in the firm, for and Forbes 48 trustee for lowqua and was remove his property from the reach of his credi- on behalf of John Murray Forbes and for no there any valid charge created by the letter tors by merely making a declaration of trust. other purpose. They admit that the said lot of hypothecation of the 31st March He denies Speaking again of the letter of hypothecation ter or charge was never registered, but deny that the letter was ever of any validity, but he contended that at the time it was signed it that its existence was improperly or fraudulently was merely a piece of waste paper, as Do was an absolute blank-it created nothing; it in-. concealed from the creditors, as the fact is there property was included in or referred cluded property not purchased then, and yet this. were no creditors or others on of ab ut March, to in it, nor were the title deeds was the sole justification which William Howell 1884, or subsequently, whom the charge could representing that property handed over to J. Forbes had for banding over the title deeds anda have prejudicially affected. They say that the Murray Forbes, but they were kept by Russell putting Ewens in possession. That as far as- documents and securities mentioned in the letter & Co. and dealt with as their own property, the evidence is concerned the schedule mighth of hypothecation were, upon the execution of Was the greater portion of the debt paid off by have been put there three days before the re-o the same, handed to John Murray Forbes, or June, 1886, and the property released as of that gistration. That according to the evidence of? bis duly authorized attorney, but they admit date P. Did Murray Forbes in February and Forbes they did not know what they were going that eubsequently the documents, or so much May, 188, take the Crown leases as trustee for to bypothecate; there can be therefore no agree- thereof a related to property in Hongkong, Howqua as alleged in the answer ? Were Russell ment between an assignor and assignee when they were held by William Howell Forbes, or the & Co. heavily indebted in 1984 and on the point do not know what property is to be dealt with. senior partner in Hongkong, until the 27th day of undertaking further liabilities P Did Russell That assuming the document is good in form, it of June, 1891, for the purpose aforesaid, and deny & Co. hand the title deeds to Creasy Ewens and is under the Statuto 13 Elisabeth, obap. 5, they were dealt with in the ordinary course of Ng Chow Fong and give them the possession of absolutely null and void, because from its very the business of the firm. They deny that the the properties on the 27th June, 1891, and was 'nature and character it is calculated to delay
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