Page
February 28, 1895.]
SUPREME COURT,
20th February,
IN ORIGINAL JURISDICTION.
BEFORE HIS HONOUR MR. E. J.
and
CHINA OVERLAND TRADE REPORT.
158
Ап
The books were removed to the present room, have such further and other relief as the nature which has been properly fitted up and, thanks of the case may require. In their petition the to the liberality of the Government and Secretary plaintiffs, after mentioning the amounts of the of State, who have granted at least £1,400 for the judgments respectively obtained by them and purchase of books, the library is a Law the names of the partners of the firm of Russell Library, complete for all practical purposes. The & Co., allege that, at the date of the decrees, Government has extended to barristers and viz., the 15th July, 1891, and of the writs of ACTING CHIEF JUSTICE
solicitors the privilogo of using the library execution issued in pursuance thereof, the without any fee, subscription, or expause what said firm and the partners thereof or some The Hongkong and Shanghai Banking over to them. I am glad to see that its of them were possessed of certain property Corporation, the Chartered Bank advantages are constantly availed of and in the city of Victoria to the value of over of India, Australia, and China, the that it has been of use and value to those $100.000, viz, Inland lots Nos. 83, 148, 578, Chartered Mercantile Bank of who have not any private collection. It 718, 720, and 721, and Marine lots Nos. 202 India, London, and China, the New has therefore been with a feeling of great and 203. Of these Inland lots, Nos. 148 and Oriental Bank Corporation, Li-regret that in consulting the many library 578 were registered in the Land Office in the mited, and the Comptoir National books which have been referred to in this name of the said William Howell Forbes, and d'Escompta di Paris, Plaintiffs, case. I have seen that many passages in the the remaining lots in the name of John Murray authorities cited have been greatly scored and Forbes. That the writs of execution were duly John Murray Forbes, Ng Woon marked and apparently all on one sido. In enforced by attachment and by the issue and Sun Howqua, Creasy Eweus, and order to show that I have reason to complain registration of written prohibitory orders an- Ne Chow Fong Defendants. I beg to pass down ons book. One underline der the provision of Section 76 of the Hong- Mr. J. J. Francis, Q.C., and Mr. E. Robinson, has not been thought sufficient, but you will kong Code of Civil Procedure, and that, when instructed by Mr. A. B. Johnson (of Messrs. find places where three or four have been the said plaintiffs wished to proceed to the Johnson. Stokes and Master), appeared for the thought necessary, There are two notices | sale of the said properties, it was found plaintiffs, and Mr. A. J. Leach, Q.C., and Mr. E. posted up in the library calling attention to that the defendants Creasy Ewens and Ng H. Sharp, instructed by Mr. H. L. Dennys and this matter. Gentlemen, this is a poor return Chow Fong as agents for the defendant Ng Mr. Creasy Ewens, represented Ng Woon Sun to mak: for the liberality of Government.⠀⠀ It Woon Sun Howqua preferred a claim to the Howqua, Creasy Ewens, Ng Chan Fong, Ho spoils the books, and it is obviously unfair to call said lands and buildings and attached and offered, Tang, Ng Lai Shan, Ng Chow Was, Ng the attention of the judge in such a marked manner object.ons to the sale thereof, and that they Heung Lun, and Ng Pak Wan.
to cortain passages. I would fain believe that this had registered against the property a deed poll His Lordship said-Before the case is called was done thoughtlessly and without considering or declaration of trust, dated the 18th day of there are two subjec's upon which I wish that the act was defacing the book, besides being June, 1891. whereby the said John Murray to say a few words. The first relates to ap not quite fair to the opponent, In a recent case Forbes declared himself a trustee of Inland peals. You all know the provisions made and heard before the full Court the judges had to call lots Nos. 83, 718, 720 and 721, aud of Marine Courts established in England for hearing attention to this matter, for there also we found lots Nos. 202 and 203 aforesaid, and of the appeals the constant use that is made of books improperly marked. This is probably the buildings and appurtenances thereof, for the said these facilities-and the proportion of cases last time that it will be my duty to notice this Ng Woon Sun Ilowqua, to secure the repayment in which these appeals are successful show matter, and therefor I will take no further to him of the sum of Tls..259,000 of Shanghai the wisdom of the legislature in providing steps, except to express a hope that now that syces silver, due to him by the firm of Russell these means of reviewing judicial decisions. I attention has been called to the mattor the & Co., together with interest thereon at think it is right that these facilities should exist, offender or offenders may see that they have the rate of 7 per centum per annum. because I am of opinion that a case is much better acted in an unwarrantable manner and desist from equitable charge, or letter of hypothecation, understood and argued on appeal than in the first any further practice of the kind I have noticed dated 31st March, 1884, whereby Russell & Co. instance and that many errors are corrected. In this suit the plaintiffs, who are judgment purported to deposit with the said John Murray It has therefore been a matter of regret creditors of the firm lately carrying on business Forbes as trustee for the defendant Ng Woon to mo that here WO have practically under the style of Russell & Co.. aud of Sun Howqna, theriu described as Howqua, cer- hardly any appeal or that what we have does the several partners thereof, pray-(1.) To tai i documents and securities for property or not satisfy litigants, since they so seldom avail bay set aside and declared fraudulent and money therein mentioned, including the said lots themselves of the few provisions of the code re-void as against them a letter of hypotheca above mentioned, the said Creasy Ewens and lating to appeals. Thus in 1893 there were 606 tio.
Ng Chow Fong claimed to be in possession of judgments given in the Summary Jurisdiction
the whole of the said land and buildings, with and fire appeals. In 1894 the figures were 601
the exception of Iuland lots Nos. 148 and 578, as and 1 whilst in Original Jurisdiction
such agents aforesaid. That the whole of the find 23 cases heard in 1893 and 11 in 1894
said lots of land and buildings were on or and no appeals. This absence of appeal
about the 31st March, 1884, and had been has always added to my seuse of repon
for many years previously the property of sibility when deciding against one of the parties,
the firm of Russell &, and of the successive for I have always felt that practically I was
partners thereof, and the legal estate deciding the matter finally without any on to
vested in the said John Murray Forbes as trustee share my responsibility if I was right or any
for himself and the partners for the time being one to correct iny error when I took a wrong
in the said firm, and was wholly unencumbered. view either of the law or the facts of the case.
That the said firm was then trading and carry- In this case, therefore, I am happy to think that
ing on business in Loudou, New York. Hong- the issues and property involved are sufficiently
kong, Shanghai, Canton, Foochow, and places important to warrant and induce the losing
or ports in China and was heavily indebted to side not to rest satisfied with the judzmont I
the plaintiff Banks or some of them and to many am about to pronounce, niless he feels convinced
other persons and was about to take over from that I have taken a just view of the matter; a
the China Morchants' Steam Navigation Co. decisi in I can hardly expect him to come to.
at Shanghai its fleet of steamers, with the Although I have given the case a diligent con-
whole ground and other property belonging sideration I have felt that in deciding the
to the said company, and to inour neces- question at issue there was not such a heavy
sary risks and liabilities. That the said firm. responsibility resting on my shoulders, as both
Russell & Co. was not at that time in- parties are able to appeal; and in view of this
debted to the said Howqua in the sum of Tis. I have taken the trouble to set out the case as
258,000 or in any sum of money. That the said fully and as plainly as I could, in order to
alleged equitable charge or letter of hypotheon- facilitate the task of those who may have to conduct the appeal as well as of the judges who have to hear and determine it; and I trust that if the losing side is not satisfied with my decision he will take the necessary steps to have my error set right. The other subject is not a pleasant one; but as it touches a matter in which I have always taken a great interest I wish to make a few remarks thereon which I trust will not be taken amiss by anyone, since they are made in the interests of all. Some of you may remember what was the stat, condition, and position of what was miscalled the library of the Supreme Court when I arrived here in 1882. The open space behind the bench contained a few books or works on shelves, the works of more than one volume often incomplete. The books of reference were old editions, and few of them, although there were sometimes duplicates of these, whilst other im- portant works were wanting. Of Reports we had very few and these incomplete. Encouraged by Sir George Phillippo I took the matter in hand.
dated the 31st March. 1884, whereby the firma of Russell & Co. purport to charge certain pieces or parcels of ground and premises in Hongkong their property in favour of the defendant, John Murray Forbes, Junior, one of the partners in the said firm, as trustee for ene Howqua, to secure payment to the said John Murray Forbes as trustee of a sum of Tls. 253.000 and interest. (2.) To have set aside and declared fraudulent and void as against them a deed poll or declaration of trust dated the 18th June. 1891, by which the said John Murray Forbes, Junior, declares himself possessed of the said pieces or parcels of ground and promises as trustee for the defendant Ng Woon Sun Howqua as security for the said debt. (3.) To have the registration in the Laud Office of this colony of the said letter of hypothecation and of the said declaration of trust against the said pieces or parcels of ground and promises declared fraudulent and void as against the plain- tiffs, and to have the registers in the said Land Office corrected by gomoving therefrom the en tries of the said letter of hypothecation and de- claration of trust. (4.) To have it declared that the said Creasy Ewens and Ng Chow Foug are trustees of the said lots of land and build ings for the said firm of Russell & or some or
was
one of the partners, Co. tion of 31st March, 1884, was not given bona fide,
To have the defendants and each of them com- pelled by the order and injunction of this honourable Court to deliver up the plaintiffs or to the receiver and manager appointed by the Court the title deeds of the said pieces or parcels of ground and premises. (6.) To have the de- fendants and each of them their and each of their servants and agents restrained by the order aud injunction of this honourable Court from selling, mortgaging, or attempting to sell or mortgage the said pieces or parcels of ground er any of them, from collecting or receiving the rents or profits thereof, or from interfering in any way with the plaintiffs as suci execution creditors. (7) To have a receiver and manager of the said pieces or parcels of ground and promises. (8) To have the said pieces or parcels of ground and premises sold under the order and direction of this honourable Court and the proceeds of sale applied in payment pro rata of the judgment debts due to the plaintiffs respectively. (9.) To
but was made and give fraudulently for the purpose of defeating or delaying the then or any future creditors of the firm. That the said letter of hypothecation was signed by the said William Howell Forbos on the day on which it bears date, but the schedule or partion- lars of securities thereunto attached and put forward as being part thereof was not then attached to it or written out, and was never seen by the said William Howell Forbes, and was not and could not have been written until more than twelve months from the 31st day of March, 1884. That the said alleged equitable charge or letter of hypothecation was never registered in the Land Office in Hongkong against the said lots of land, and its existence was improperly and fraudulently concealed from the creditors and others having dealings with the firm of Russell and Co. until the 10th day of July, 1891, when it was registered in the Land Office. That the said letter of hypothecation was improperly registered in Hongkongat
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