December 8, 1897.]
The case was not dismissed but was with- drawn. The mere withdrawal of the suit did not show that it could not be sustained. | There might be several causes for that with- drawal. Even if the suit had been gone through and even supposing that judgment --were given against the Emporor of China, it would still have to be proved that there was no probable or reasonable cause for the application to make the arrest of the vessel before the Court could award damages. It had to be proved that the action had been brought maliciously and on insufficient grounds. It was beyond the power of the Court to award more than $1,000 under Section 19 of the Code, unless satisfied that the warrant was issued on insufficient grounds.
CHINA OVERLAND TRADE REPORT.
4.The members of the said Jewish com- munity have had for many years past their synagogue or place of public worship in Staunton Street, Victoria, aforesaid, but since the year 1890 or thereabouts they have been desirous of moving the said synagogue to some more convenient site and have been con- templating the purchase of a piece of land in the neighbourhood of Bowen or Kennedy Roads whereon to erect a new synagogne.
5.-In or about the month of June, 1896, a lot of land situate on the South side of the said Kennedy Road was advertised for sale by public auction by the Hongkong Government in the Hongkong Government Gazette, and was in the said advertisement described as Inland Lot No. 1,381. This lot of land was admirably suited for the construction of the proposed new synagogue, and surveys had previously been made thereof and plans prepared [with the full knowledge and assent of the defendant] with a view to the purchase of the said lot and the erection thereon of a new synagogue, and the defendant had himself on behalf of the Jewish community applied to the Government of the colony that the said lot should be put up for sale.
6.-Ou or about the 13th day July. 1896, the defendant for and on behalf of the Jewish community of Hongkong attended the sale by auction of the said lot No. 1,381 and purchased the same for the sum of $6.931 in his own name, but for and on behalf of the said Jewish com
Mr. Robinson having replied, His Lordship delivered his judgment. He said that in the ap- plication before the Court not only were the wages of the crew of the Ningchow claimed, but also the expenses of the ship up to the 9th | December, 1896. The Court was unable to de- cide who was ultimately liable for the paying of the wages or the expenses, as the suit had not gone on to a determination. The Court had no summary power to award the
wages of the crew, With respect to the award of $1,000 under Section 19 of the Code it had to be considered whether the Court had jurisdiction to deal with a plaintiff Sovereign of a foreign nation. The application for the warrant to detain the Ningchow was made by Mr. Hillier, Commissioner of Customs at Kow..munity. loon, acting on behalf of the Emperor of China. The Court had come to the conclusion that it had clear jurisdiction to deal with the plaintiff Sovereign in the matter if it was clearly proved that the warrant was applied for on insufficient grounds. The facts were that the Ningchow was chartered by Messrs. Bennertz & Co. from
the the agents of
Chinese Government. The vessel had cleared at Shanghai for Chefoo but she came to Hongkong instead. Undoubtedly her coming to Hongkong fur- nished grounds for the arrest. The Emperor of China had brought the suit for the recovery of the Ningchow, and asked the Court to grant an order to arrest the vessel. No proof had en deduced that the order for the arrest was made on insufficient grounds and the Court was unable to award compensation. The results were that the motion for the costs in the first part of the application succeeded, but the motion for t'e recovery of damages failed.
2nd December.
IN ORIGINAL JURISDICTION.
BEFORE SIR JOHN CARRINGTON (CHIEF JUSTICE.)
GUBBAY AND OTHERS 2. BELILIOS. The hearing was resumed in the equity suit in which the plaintiffs, D. A. Gubbay, "A. J. Kay- mond, and A. J. David petitioned the Court, on behalf of themselves and of all others of the Jewish community in Hongkong, except the defendant, for a declaration that the defend- ant purchased a certain lot of land in this colouy known as Inland Lot No. 1,381, as a trustee for and on behalf of the plaintiffs and of all the other members of the Jewish com- munity in Hongkong, and that he now held the property in trust for the Jewish community subject to the paynient to him of whatever monies he expended in the purchase.
Mr. J. J. Francis, Q.C. (instructed by Mr. O. D. Thomson, of Messrs. Deacon and Hastings), appeared for the plaintiffs and Mr. H. E. Pollock (instructed by Messrs. Wilkinson and Grist) for the defendant. Mr. Francis said the petition was as follows:
1-The plaintiffs are merchants trading and carrying on business in Victoria in the colony of Hongkong and are all resident in Victoria aforesaid.
2. The defendant, the Honourable Emanuel Raphael Balilios, C.M.G., is a merchant re- siding, and carrying on business in Victoria aforesaid and he is a member of the Legislative Council of Hongkong.
3. The plaintiffs and the defendaut are all Jews and are members of the Jewish com- munity resident in Hongkong, a community which numbers about 150 souls,
7. The said defendant declared and agreed that he would hold the said Inland Lot No. 1,381 so purchased by him as aforesaid at the disposal of the Jewish community of Hongkong und would at any time within a period of twelve months from the date of the purchase thereof hand the said lot over to them or to trustees for them upon being reimbursed the cost of the said lot and the interest thereon.
8.-In or about the month of March, 1897, the defendant was requested by David Reuben Sassoon. Abraham Jacob Raymond, and the plaintiff Abraham Jacob David, all members of the said Jewish community and who were then acting as its representatives, to hand over to them and to the Jewish community for the purpose of the erection thereon of the said new synagogue the said Inland Lot No. 1,381 and they offered to reimburse to the defendant the cost of the said lot and his interest thereon ; but the defendant refused to accept the suid mouies or to hand over the said Inland lot to the Jewish community or to their said representatives and claimed to hold and retain the Inland Lot No. 1,381 for his own use and benefit.
The plaintiffs therefore humbly pray :- 1.--That it may be declared by this Honoura- ble Court that the defendant, the Honourable Emanuel Raphael Belilios. C.M.G., purchased the said Inland Lot No. 1,381 as a Trustee for and on behalf of the plaintiffs and of the other members of the Jewish community of Hong. kong and that he now holds the same in trust for the plaintiffs subject to the payment by them to him of the amount paid by him for the purchase thereof and the interest thereon.
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2. That the plaintiffs may have such far- ther and other relief in premises as to this Honourable Court may seem fit.
The following was the defendant's answer :---- 1. The defendant admits the truth of the
allogation contained in pragraphs 1, 2, and 4 of the petition.
2. In answer to pargrap! of the petition the defendant saith as follows: The defendant admits that the plaintiffs and the defendant are all Jews and are members of the Jewish cow- munity resident in Hongkong. The said com- munity consists of 52 men, 25 women, 26 girls, and 40 boys, but ou the day of atonement in the year 1896, which is the principal Jewish festival in the year, there were assembled at the Jewish synagogue about 57 adults, namely, 33 Portuguese male Jews, 7 German male Jews, and 17 Jewish women and about ten Jewish children. The defendt further says that Jewish women and girls never attend at the synagogue in Hongkong excepting on the fol lowing occasions, namely, on the day of atone- ment and the new year holiday.
3-In answer to paragraph 5 of the petition the defendant admits that in or abont the
month of June, 1896, a lot of lund situate on the South of Kennedy Road was advertized for sale
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by public auction by the Hongkong Govern- ment in the Hongkong Government Gazette and was in the said advertizement described as Inland Lot No. 1,381. The defendant dénies that the said lot of land was suited for the con- struction of the proposed new synagogue, and he
says on the contrary that the Jewish com- munity in Hongkong are too small in number and the funds at their disposal are too small to render the whole of the said lot suitable for a synagogue; the defendant, however, admits that a portion of the said lot would be suitable for the purposes of a synagogne. The defendant has no knowledge whatever as to whether any surveys were made or plans prepared of the said lot with a view to the erection of a new synago- gue thereon and be therefore does not admit that such plans or surveys were made or pre- pared. The defendant never assented to any such plans or surveys being made or prepared with the view aforesaid. The defendant admits that he himsef applied to the Government of the colony that the said lot should be put up for sale but he says that he so applied in his own behalf and not on behalf of the Jewish com. munity and that the conditions of sale under which the said lot was put up for sale by the Government contained (inter alia) the following special condition:-
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Only buildings of the class of European dwellings will be permitted to be erected on this lot and the decision of the Director of Public Works as to whether any proposed buildings come within such class shall be final, and the Crown lessee shall have no compensa- tion in respect of such decision."
4. In answer to paragraph 6 of the petition
the defendant admits that on or about the 13th day of July, 1896, he attended the sale by auc- tion of the said Inland Lot 1381 and that he purchased the same for the sum of $6,931 in his own name, but he denies that he attended the said sale for and on behalf of the Jewish com- munity of Hongkong and he denies that he purchased the said lot for and on behalf of the said Jewish community. The defendant says on the contrary that he attended the said sale in his own behalf and that he purchased the said lot in his own name and on his own behalf.
5.
In answer to paragraph 7 of the petition. the defendant denies that he ever declared or agreed that he would hold the said Inland Lot No. 1,381 so purchased by him as aforesaid at the disposal of the Jewish community at Hong- kong and that he would at any time within a period of twelve months from the date of the purchase thereof hand the said lot over to them or to trustees for them either upon being reimbursed the cost of the said lot and the interest thereon or otherwise or at all.
6. In answer to paragraph 8 of the petition the defendant admits that in or about the month of March, 1897, he was requested by David Reu- ben Sassoon, Abraham Jacob Raymond, and the plaintiff Abraham Jacob David, all of whom are members of the said Jewish community, to hand over to them for the erection of the new synagogne the said Inland Lot No. 1,381, but the defendant denies that he was under any legal obligation whatever to comply with the said request.
The defendant also denies that the said David Reuben Sassoon, Abraham Jacob Raymond, and the plaintiff Abrabam Jacob David were at the time that they made the said request or at any time acting as the representa- tires of the said Jewish community, and he denies that they professed to make the said re- quest on behalf of the said community and he denies that they had any title or authority from the said community to make the said request on behalf of the said community. The defend. also denies that the said David Reuben Sassoon, Abraham Jacob Raymond, and the plaintiff Abraham Jacob David or any of them offered to reimburse to the d fendant any interest on the cost of the said lot. The defendant admits that he refused to accept the cost of the said lot from the said David Reuben Sassoon, Abra- ham Jacob Rayond, and the plaintiff Abraham Jacob David and that he refused to hand over the said lot to the said Jewish community or to the said three persons and that he claimed to i- hold and retain the said lot for his own use and benefit.
7. Further and by way of answer to the petition generally the defendant saith as fol- lows:-The plaintiffs have not in fact any title
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