26
I
Lot
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THE HONGKONG WEEKLY PRESS AND
July 10, 1895,
sum appears
judgments, at the Land Office, which, if each of them, their servants and agents, re- money, without having previously obtained valid and not set aside, would prevent strained by the order and injunction of the security for the advance, and I see nothing to the plaintiffs from appropriating those pro- Court from selling or mortgaging or attempt make me doubt that the firm of Russell and Co. perties in payment of their judgment dbts. ing to sell or mortgage the said pieces or parcels owed also Tls. 101,000 to Howqua for moneys These documents were as follows:-(1st) A letter of ground or any of them; from collecting or Howqua had from time to time previously of hypothecation or equitable charge, dated 31st receiving the rents or profits thereof or from in- advanced them. This latter March, 1884, from Russell and Co. to Johnterfering, in any way, with the plaintiffs as such to have been included in the promissory Murray Forbes, trustee for owqua, whereby execution oreditors. (7) To have a receiver and note and letter of hypothecation, although the firm acknowledged to have deposited with manager of the said pieces or parcels of ground Howell Forbes said it was not intended to have Forbes, the trustee, the documents and securities and premises. (8 To have the said pieces or been included. Whether John Murray Forbes mentioned in the schedule thereto, as collateral parcels of ground sold, under the order and would have agreed that the 101,000 taels were security for the payment of their promissory direction of the Court, and the proceeds not intended to be included I do not know. I note to him as such trustee (dated also the 31st applied in payment. pro ratu, of the judg am not aware of any attempt having been made March. 1884) for the sum of Taels 258,000 ment debts due to the plaintiffs, respec- to procure his most important evidence by com- Shanghai currency and interest at 7 per centum. tively. (9) To have such farther and other mission or otherwise. However that may be, This document, though registered at Shanghai relief as the nature of the case may require such evidence as there is points to the conclusion on 4th June, 1891, at the U.S.A. Consulate, was The petition in this suit was not filed till that the letter was given by a solvent firm for not registered at the Land Office in Hongkong | 10th March, 1892, more than six months after valuable consideration. But when a document till the 10th July, 1891. It was made in Shai g the date of the writ; but, in October, 1891, the is made for valne, this fact shows that there may hai. Having regard to the terms of the power plaintiffs desired to take the evidence of William be purposes in the transaction other than the of sale it contained, I am not sure the term by Howell Forbes, the partner who had signed the defeating or delaying of creditors. The burden. pothecation." borrowed from the Roman Law, is letter of hypothecation in Shanghai with the of proof lies upon those who seek to impeach its quite appropriate. However, it was spoken of by firm's name, Russell and Co. They therefore bona fides aud to set it aside as fraudulent, and counsel as a letter of hypothecation, and it may, obtained, upon summons and affidavit that he they must prove an actual and express intent therefore, be well to call it by that name to avoid was shortly leaving the colony, an order for his to defeat or delay or defraud creditors. The confusion in this judgment. (2nd) A deed poll ex-mination de bene er se William Howell task set before the plaintiffs of proving, such an or declaration of ti ust, dated 18th June, 1891, by Forbes was accordingly examined and cross-intent, once valuable consideration is shown, is, which the said John Murray Forbes declared examined on 30th October, 1891, and it was hot accordingly, a far more difficult one than in the himself possessed of the lands therein mentioned, till more than four months after both sides case of a merely voluntary conveyance without 88 trustee for the defendant Ng Woen knew what his. sworn evidence was that the such consideration. Lord Justice Turner, Sun Howqua as security for a debt due petition was filed That petition asked, sub. then Vice-Chancellor, observed in Harman v. to him (Howqua) from Russell and Co. of stantially, for the same relief as that claimed in Riobards (10 Hare p. 89), "It remains to be a sum of 258,000 taels of Shanghai sycee silver. the writ, except that instead of asking the relief considered whether the settlement which was. together with interest thereon at the rate of quoted as (3rd) in the writ, the petition prayed thus made for valuable consideration was seven per cent, per annum. This document was to have it declared that Creasy Ewens and Ng also made bona fide; for a deed, though maude registered at the Land Office the same date as it Chow Fong were trustees of the lots for Russell for valuable consideration, may be affected is dated, viz., 13th June, 1891. As regards the and Co. The plaintiffs' ca
case was based sub- by mala fides. But those who undertake to letter of hypothecation of 31st March, 1884, be- stantially at first as it still is, on the allega impeach, for mala fides, a deed which bas sides a number of shares and some land at tion that the letter of hypothecation was
been executed for valuable consideration bave, Foochow and Canton, the Hongkong lots, in-fraudulent and oid, as against creditors, 1 think, a task of great difficulty to discharge." cluded in its sobedule under the head of parti. under the statute of Elizabeth. That statute That, however, is the task which the plaintiffs culars of securities," were as follows:--Inland invalidates and makes void against creditors all have endeavoured to discharge in this suit. Lot No. 83, The Hermitage; Inland manner of alienations of property, &c., made From the absence of so much evidence which No. 148, Rose Hill; Inland Lot No. 578, with the intention of delaying. hindering, or might have thrown more light on the questions Rose Hill; Inland Lot No. 721, Kerosine defrauding creditors and others. But the 6th raised, I can only conclude that the counsel for Godowns; Marine Lot No. 202, Godown; section provides that the Act shall not extend to the plaintiffs hoped to materially strengthen Marine Lot No. 203. Godown ; Marine any conveyance made upon good consideration their case by cross-examination of the defen- Lot No. 225, remaining portion of section A and bona fide to any person not having, at the dants' witnesses. But the defendants called of lots 22 and 23 Praya West and 22 and 25 time of such conveyance, any manner of notice none, urging there was no sufficient case to answer Tunglei Lane, As regards the deed poll or or knowledge of such covin, fraud, or collusion. and that those who allege fraud should prove it, declaration of trust of the 18th June, 1891, the
A conveyance, therefore, cannot be invalidated by especially where valuable consideration is shown. late therein included were luland Lots 83, this Act if there has been a bona fide purchaser. The letter of hypothecation was put in evidence, 718, 720, and 721 and Marine Lots 202 and 203. It will be necessary, therefore, for the Court to but the deed poll or declaration of trust of 18th It will be, therefore, observed that in the deed decide whether the so-called letter of hypotheca. June, 1891, through referred to in the pleadings poll the two Rose Hill lots (148 and 578) tion is voided by the general words of the sia was not put in. There are the pleadings and and Marine Lot 225 are omitted, while two tute of Elizabeth of whether it comes within the the evidence de bene esse of Howell Forbes, but Inland Lots, 718 and 720, not in the letter of saving proviso and is therefore good and valid. the only witness examined at the trial was the hypothecation, are inserted. The plaintiffs If that document was fraudulent, not bona fide Acting Land Officer, Mr. Sangster, who pro- desired to set aside the two documents I have and given for good, that is, valuable, considera. duced certain documents from the Land Office. mentioned as fraudulent under the Statute 13 tion, the plaintiffs would be entitled to have it Now, Mr. Wheelor, the attorney of J. Murray Elizabeth cap. 5, and, therefore, null and void, declared void and then it would be more difficult to Forbes, the man to whose custody the letter of as against them as creditors. Accordingly, on support the deed pol of 18th June, 1891. The main hypothecation and shares were given and who, 19th August, 1891, they issued a writ against the question in the case, therefore, is the bona fides whether he was a partner or not, had power to first four defendants. It is unnecessary, for the of that letter of hypothecation with its accom-sign for the firm, could, one would suppose, purposes of this judgment, to discuss why cer- panying promissory note of 31st March, 1884. have given important evidence. During the tain other defendants were subsequently added. Now, I have pointed out that the petition was hearing of the appeal. it was stated by counsel That writ asked:-(1) To have set aside and filed long after Howell Forbes bad given his that Mr. Wheeler was present in court at the declared fraudulent and void, as against the evidence. Yet, in the 11th and 12th paragraphs trial, having been subpoenaed by the plaintiffs. plaintiffs, the letter of hypothecation, dated 31st of that petition, the plaintiffs allege that when Be that as it may, he was not called and the March, 1884, whereby Russell and Co. purport the letter of hypothecation was signed by Howell Court was left to decide as best it could upon to charge certain pieces or parcels of ground and Forbes on 31st March, 184, Russell and Co. the soanty materials before it. On the appeal! premises in Hongkong, their property, in favour were heavily indebted to the plaintiff Banks and the counsel for the appellante concluded his of John Murray Forbes, one of the partners in the to many other persons and were about to take able argument by asking the Court to find aa a said firm, as trustee for one Howqua, to secure pay- over. from the China Merchants Steam Naviga-jury whether, in all the circumstances of ment to the said John Murray Forbes, as trustee, tion Company, at Shanghai, its fleet of steamers, the case, the transactions impugned were con- of a sum of taels 258,000 and interest. (2) To with the wharf, godown, and other properties of the sistent with honesty and fair dealing, bearing im have set aside and declared fraudulent and void, company, and to indur heavy risk and liabilities, mind that the defendants could have called wit- as against the plaintiffs, a deed poll or declara and that Russell and Co. were not. at that time, nesses to explain the matters requiring expla tion of trust dated 18th June, 1891, by which the indebted to Howqua in the sum of Tls. 258,000 or nation. It may be well, therefore, to consider ach said John Murray Forbes declares himself in any sum of money. The Banks, however, gave matters as were urged to show want of bona fides. possessed of the said pieces or parcels of ground no evidence that Russell and Co. owed them or First, as regards the schedule. It is clear the and premises as trustee for the defendunt Ng others money at or near the time, and there is schedule was not filled up when the letter of Woon cun Bonqua, as security for the said debt. nothing to disprove the statements of Howell hypothecation was signed 31st March, 1884. (3) To have set aside and declared fraudulent and Forbes that the firm was in good credit and able That latter was sigued in Shanghai and Mr. void, as against the plaintiffs, an assignment by to meet its engagements at the time the letter Howell Forbes says, "At the time I signed John Murray Forbes of the said pieces or parcals of hypothecation was given. There is no evi- Russell & Co. there, in March, 1884, the schedule ef ground and premises to the defendants Creasy dence that the firm was contemplating taking was not written on the document. The pro Ewens and Ng Chow Fong as agents or over the fleet and other properties of the China missory note was written there and signed at attorneys for
* the said Howqus. (4) To have Merchants Steam Navigation Company or inour that time." As the schedule included Marine. the registration in the Land Office of this colony ring heavy risks and liabilities, and this is Lot 225 which the firm did not acquire, accord. of the said documents declared fraudulent and denied by the defendants in their answer. The ing to the evidence, till the end of July or begin- Told, 88 against the plaintiffs and to have the plaintiffs, therefore fail to prove what appear to ning of August, 1884, and which lot was after- registers corrected accordingly. (5) To have me to be the most important allegations in their wards, sold to Mr. Ewen Cameron on 12tKC the defendants and each of them compelled petition. Upon the evidence, such as it is, February, 1886, it would seem to have been addedi by the order and injunction of the Court though it is somewhat confused, it seems to me between those dates; and as, moreover, in men. to deliver up to the plaintiffs, or to the the letter of hypothecation was given to secure tioning the Foschow property, a letter dated 21st receiver and manager appointed by the Court, John Murray Forbes for a sum of Tls. 157,000 January, 1985, is referred to, it seems clear thi title deeds of the pieces or parcels of ground odd and interest which he, as trustee for schedule was added between 21st January, 1885, premises. (6) To have the defendants and Howqua, had lent his firm out of Horgun's' and 17th February, 18:6. It appears also, fruit
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