December 16. 1897.]
"Never mind, I have another place near Mr. Haskell's house which is not so public." I do not know where Mr. Haskell's house is. I cannot say whether it was last year or this year that I had that conversation. I never trouble my head about dates.
His Lordship-You did not mind going to the Kennedy Road to worship?
Witness-I would not mind. I am not ashamed to go to the synagogue.
His Lordship-Some of them have not good coats, I suppose?
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Witness-I do not know. Mr. Pollock-Are you in favour of this ac- tion being brought?
Witness--No, certainly not. If I had been at the meeting I should have objected. I was not consulted about it. I was not asked to sign the document giving authority to the trustees to sue Mr. Belilios for the recovery of lot 1381. Mr. Pollock then asked witness who the signatories were.
His Lordship said he did not think that qu tion need be put. The question of title to sue had not been raised. If it had he would have disposed of it first and if the decision had gone in Mr. Pollock's favour a long hearing would have been saved.
Mr. Pollock submitted that the question was a very material one. The defendant had pleaded that the plaintiffs bad uo authority to sue and counsel wished to show who the signa- tories to the document were.
His Lordship allowed the question to be put. Witness-The signatories are-M. S. S. Sassoon, merchant; R. M. Moses, a partner with Mr. Gabbay, one of the plaintiffs, iu David Sassoon, Sous and Co., David Haskell, in the office of M.S. S. Sassoon: O. J. Elis, clerk in the employof E. D. Sassoon: I.J. Levy, whom I do not know: K. Raymond, clerk in David and Co. His Lordship Really, Mr. Pollock. I do not see where all this will end. Suppose you prove they are all relations or actual employés of Sassoon, how will it affect the case? They aro still members of the Jewish community; you cannot take away their rights because of ra lationship. If a man is a relation of Sassoon do you intend to say he is not a member of the Jewish community?
Mr. Pollock-No.
His Lordship What do you do it for theu ? Mr. Pollock-Simply to show the composi- tion of the Jewish community.
His Lordship-Suppose they are all cousins or brothers of Sassoon, they have their rights, I think.
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CHINA OVERLAND TRADE REPORT.
Mr. Francis asked no questions. Mr. Pollock said that closed his case, subject to Mr. Dauby being called later to give certain calculations asked for,
Mr. Francis said he intended to call witnesses by way of reply to issues raised which were not raised in the pleadings.
Mr. Pollock said he should object. His learned friend chose to adopt a certain course and counsel had given a clear intimation of surprise at the course, while his Lordship also asked Mr. Francis if he intended not to call witnesses.
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could do so. Mr. Belilios also mentioned that | 1,381, keeping the ground in its ordinary state Mr. D. R. Sassoon was hostile to the idea of would be $8,871, and the excavation, $4,417. the synagogue being placed there and would | A wall. along the south side of Leigh and never go into it.
Orange's site and to support Mr. Belilios's new made ground would be $12,196, and excavation at a 10 feet level above Kennedy Road, $3,525. A wall along the same site but supporting the natural level of the ground would cost 38,093, the cost of excavation being the same. A wall along the length of the arc line on the site agreed to or the 15th March and to support Mr. Belilios's ground as it was intended to lay it ont would cost $12,386, and excavation $2,304. A wall on the same site bnt supporting ground at its natural level would cost $7,846, the cost of excavation being the same. If the trustees were entitled to the whole lot it would be Mr. Francis said the provision in the Code on absolutely necessary to erect a retaining wall the subject was contained in paragraph 62, which between that ground and the upper lots, assum- rerulated the order of proceeding at a trial. ing the level to be 10 feet above Kennedy That paragraph was as follows:-"If the party | Road, and the cost would be $8,871, as given in opposed to the party beginning calls evidence one of the estimates. If Mr. Belilios had the the party beginning shall be at liberty to reply whole of the three lots at his disposal only a on the whole case, or he may call fresh retaining wall on the north of Macdonnell evidence in reply to the evidence given on the Road and a small one on the south-west portion other side, ou points material to the determina- would be necessary. If he had only the two tion of the issues. or any of them, but not on upper lots he would also require a wall between collateral matters." The practice in the equity the lots, assuming that no mutual arrangement courts at home was distinctly in accordance with was come to in regard to the cost of the walls. that. The defence raised was not disclosed in the Cross-examined by Mr. Francis-I have not pleadings and did not arise on the correspond-made out sketches or suggestions in respect of ence. The defence was a denial practically of the two upper lnts on the supposition that Mr. any transactions between the plaintiff's and the Belilios did not get the lower lot, nor have I defendant with reference to the lot of land. myself worked out anything special. Defendant's counsel had said that the plaintiffs quite certain that Mr. Orange proposed at the had misconceived and improperly framed their meeting to put the synagogne on a 20 feet level action and that if they had any action it was above Kennedy Road so that people passing in for specific performance. There was not the a tram should not see into the building. faintest indication of such a contention or At the conclusion of Mr. Dauby's evidence position on the face of the defendant's counsel on both sides addressed his Lordship on answer. Counsel submitted that defendant the point raised at the last hearing as to the ought to have pleaded that there was no right of Mr. Francis to all rebutting evidence. declaration of trust and that if there was an agreement it referred only to a portion of the lot and was therefore had in point of law. As a matter of right and justice counsel submitted that bis Lordship would properly exercise his discretion in allowing him to call evidence by way of rebuttal to the evidence which had been given. by Mr. Belilios and Mr. Danby..
His Lordship asked Mr. Francis to state the exact points on which he wished to call fresh evidence.
Mr. Francis said he wanted to call evidence first to show that Mr. Danby's statement that Mr. Belilios intended to utilise the land at the time of the sale of lot 1,381 was not true; secondly, to show from the evidence of Messrs. Silas, Raymond, and David that nothing was even said to make them disbelieve that the whole of lot 1.381 would not be handed over; and, lastly, to call evidence to show what had occurred at the last meeting and the discussion that had taken place.
Mr. Pollock quoted from the Annual Practice, 1897, Order 37, Rule 1, under the heading "Re- butting Evidence," which, he considered, differed from that cited by his learned friend.
After some further argument as to the right to call rebutting evidence the hearing was ad- journed until Monday..
13th December.
In answer to Mr. Francis, his Lordship | thought it would be more convenient for Mr.
Danby's evidence to be completed before
pro. ceeding to deal with the poi... raised at the last hearing.
Mr. Pollock said that in the face of that in- timation he would not proceed with the question. Cross-examined by Mr. Francis witness said -1 did not get a notice to attend any meeting of the community. I do not do any exchange business with any firm except Belilios and Co., but I do a public share business. The Jews do not give me any exchange, business now. It is 10 or 15 years ago since I did exchange business with the Jewish firms. I am not related to Mr. Belilios. I live at the corner of Elgin Street. Mr.. Granville Sharp said-I have been a resident in this colony over thirty years. the owner of properties in the colony. I was present at the sale of lot 1,381 on the Kennedy Road. Mr. Belilios was present and bought the land. I am not quite clear as to the time or place he had a conversation with me about the fots. Mr. Belilios is in the habit of consulting 'me about his estates and he has expressed to me his desire to see a synagogue erected in Kennedy Road. Whether this particular con- versation took place in my office I do not know. Mr. Belilios told me that most of the Jewish community had limited means and those who were more wealtly were unwilling to guarantee a certain amount and, moreover, they were somewhat disunited on the matter and some of them were opposed to it, considering the pro-1,381 and Mr. Belilios's ground. posed site altogether remote and beyond the His Lordship said Mr. Danby had prepared reach of the majority of them, but he thought more than was asked for, but it would perhaps be the ground was valuable and be would as well to give all the estimates. purchase it himself and build residences. I Mr. Pollock said they were material to the told him I thought the situation hot and that although houses might be built the
Witness-The cost of a retaining wall along tenants would suffer from the heat. I the whole length of the south of Inland think Mr. Belilios replied that the main Lot 1,381 and to support Mr. Belilios's thing was to let the houses. I said, "Well, ground as it was proposed to lay it out would Queen's Gardens have been a success and why be $14,520; the cost of excavation would be not these ?? I rather gathered that Mr. | $4,417; total $18,937. The cost of a wall Belilios intended to purchase the ground if he' along the whole length of the south side of lot
Mr. Danby was then called and said-I have made six estimates of the cost of retaining walls. Mr. Francis objected to all the estimates being given. The only point on which Mr. Danby was asked to give evidence was as to the cost of a retaining wall to support the south side of lot
issue.
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Mr. Francis quoted cases in support of bis argument and said that the right was one which the Court could exercise in its discretion.
Mr. Pollock, in reply, said that what Mr. Francis really wanted was to re-open his case, particularly on the meaning of the term "site of the synagogne" mentioned in the correspodence. Counsel submitted that the plaintiffs must have known that the term meant not the whole of lot 1,381, but only the part necessary for the erection of the synagogue. The solicitor and counsel for the plaintiffs must have asked what was the exact meaning of the words when they were first mentioned in Mr. Belilios's letter of the 8th March. From subsequent letters it was quite clear that the trustees and Mr. Belilios were positive as to the meaning of the term, and it could not be believed that connsel for the plaintiff's had not been properly instructed. In à letter written by Mr. Belilios it was clearly stated that he could not re-open the question after the decision arrived at after the long dis. ́ cussion in Mr. Danby's office-meaning of course the decision arrived atat the meeting of the 15th March. Counsel then said he would have to go into the question of whether there was a declar- ation of trust and of whether the plaintiffs had framed their action in the proper way.
His Lordship-How does that affect the tion of giving evidence in reply?.
ques
Mr. Pollock contended that the question of declaration of trust went to the root of the
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whole matter. Counsel for the plaintiffs had attacked defendant's pleadings and had said, you ought not merely to have denied, but to have pleaded something in regard to a portion of the lot. His (Mr. Pollock's) answer to that was, "No; you have chosen to frame your action absolutely and entirely upon the claim for a declaration of trust. You have not asked for specific performance of any agreement and I was perfectly entitled simply to deny altogether any declaration of trust." Counsel denied there was any declaration of trust as to one single foot of land, and therefore it was necessary for him to argue the question as to whether the action had been brought in the right form or not in order that he might meet his friend's contention. The point would take a consider- able time to argue.
The Court then adjourned until 10.30 next morning.
His Lordship-I hope the case will be finished before the Sessions.
Mr. Pollock-I will do my best, my Lord. Mr. Francis-There are only five days more,
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