February 2, 1898.]
get into some of the levels. He added that one mine on which' Tls. 600,000 was spent when started about four years ago under German management appears to be finished already. It would be far more satisfactory to the Chinese Government, if they want to see the mineral resources of the country developed, to allow foreign capital to step in and do the work, paying them a royalty on the output and employing Chinese labour to work the mines. Native capital will not be forthcoming for such enterprises unless they are placed under foreign control. The concessions might be made to Companies composed partly of natives and partly of foreigners,, the working and management to be under foreign direction. In that case Chinese would subscribe freely for the shares, and nothing would be heard of feng shui. No Loubt, under the new dispensation which seems likely to dawn on China, such enter- prises will be undertaken and successfully carried out. So long, however, as the sole management of the mines is conferred upon ignorant and often prejudiced Chinese little if any genuine progress can be looked for in the task of opening up the ruineral resources of the Empire.
SUPREME COURT,
31st January.
IN ORIGINAL JURISDICTION.
BEFORE SIR JOHN CARRINGTON (CHIEF JUSTICE)
MUSSO DI PERALA AND OTHERS v. MUSSO. This suit was brought by the sons of the late Domenico di Musso as his next-of-kin against his widow for a declaration that a certain document purporting to be a deed of gift of certain leasehold lands executed by the deceased in favour of the defendant should be declared null and void, and that the leaseholds so pur- ported to be granted and conveyed should form part of the estate of the deceased, and for an account of the rents received by the defendant.
Mr. E. Robinson (instructed by Mr. Bowley, of Mr. Dennys's office) appeared for the plain- tiffs, and Mr. J. J. Francis, Q.C., (instructed by Messrs. Deacon and Hastings), appeared for
the defendant.
Mr. Robinson said it would appear from the pleadings that there were few, if any, questions of fact in dispute between the parties. The case really resolved itself into a pure question
of law.
Mr. Francis agreed that no question of fact was in disputo.
Mr. Robinson then read the plaintiff's peti- tion as follows:-
1.The plaintiffs are the sons and only legitimate children and the next-of-kin of Domenico Musso, deceased, late of Victoria, Hongkong, and are resident at Victoria afore- said; the defendaut is the widow of the said Domenico Musso, deceased, and resides at Victoria aforesaid.
2.-The said Domenico Musso was from about the year 1885 down to the time of his death on the 16th December, 1896, possessed of certain parcels of leasehold land at Victoria aforesaid respectively registered in the Land Office there as Marine Lot No. 188 and the remaining portion of Marine Lot No. 189 for the respec- tive residues of two several terms of 999 years each from the 25th day of June, 1861, created by the Crown leases of the said lots respectively..
3.-By a certain document purporting to be a deed of gift dated the 28th of January, 1895, expressed to be made between the said Domenico Musso (now deceased) as assignor and donor and the defendant (by the description of Lucia Victoria Masso) as assignee, the said Domenico Musso purported in consideration of his love and affection for the defendant to assign and give absolutely to her, her executors, adminis trators, and assigns all his interest in the aforesaid two parcels of land to hold the same
{
CHINA OVERLAND TRADE REPORT. unto the said defendant her executors; adminis trators, aud assigns absolutely from thenceforth for the respective residues of the several terms of years in the last paragraph hereof mentioned. The plaintiffs crave leave to refer to the said document.
4. The defendant was married to the aforesaid Domenico Musso within the Kingdom of Italy in or about the year 1872 and at the time when the aforesaid document purports, to have been executed the defendant was the wife of the said Domenico Musso and was living
with him.
.
5. The said Domenico Musso never registered or caused to be registered any memorial of the aforesaid document in the Land. Office at Victoria aforesaid, and the defendant never entered into possession of the aforesaid parcels of land or either of them during the lifetime of the said Domenico Musso.
Musso the defendant has entered into possession 6.Since the death of the aforesaid Domenico of the aforesaid two parcels of land and has received the rents and profits thereof on her own personal account,
7. At the time of the marriage between the defendant and the said Domenico Musso and down. to the date of the death of the said Domenico Musso the said Domenico Musso and the defendant were and always continued to be Italian subjects domiciled in Italy. By the law of Italy gifts inter vivos between hus- band and wife made during coverture are null and void.
73
he, his executors and administrators, and every other person or persons lawfully or equitably claiming through, under, or in trust for him or them would at all times thereafter execute and do all such assurances and acts for further or better assuring all or any of the premises to the defendant, her executors, administrators, and assigns as should be reasonably required by her or them. And the defendant craves leave to refer to the said deed in proof thereof.
4-The defendant admits the statements i
paragraph 4 of the petition to be true.
5. The defendant admits the statements in paragraph 5 of the petition to be true but in reply, says: that the said Domenico Musso signed the memorial for the registration of the said deed on or about the said 28th day of January, 1895, and the said memorial was duly lodged in the Land Registry and duly registered on or about the 21st day of December, 1896, by In further reply to the said paragraph the the plaintiff Vincenzo Pietro Musso di Peralta. defendant says that the said Domenico Musso from and after the said 28th January, 1895, collected and received the rents of the said two parcels of ground and premises as trustee for the defendant.
6. The defendant admits the statements in the sixth paragraph of the petition to be true.
7-The defendant admits the statements. in
the seventh paragraph of the petition contained
to be true but denies that the provisions of the Italian law apply to or govern a transfer, by gift or otherwise, of leasehold properties in 8.- The said Domenico Musso died intestate Hongkong made by deed executed in Hongkong. with regard to the aforesaid two parcels of land 8. The defendant admits that as regards his and the plaintiffs are interested therein as next-leasehold property in Hongkong the said of-kin of the said Domenico Musso by the law Domenico Musso died intestate, and that the of Hongkong and as his legitimate heirs by the plaintiffs are interested therein as his next-of- law of Italy.
kin, but denies that the said two parcels of ground and premises, forming the subject matter of this suit, were at the date of his death the property of the said Domenico Musso and that. the plaintiffs have any interest therein or claim thereto either under English law or by the law of Italy.
The Plaintiffs pray:
1.A declaration that the aforemen tioned deed is null and void and that the premises purported to be assigned thereby form part of the estate of the aforesaid Domenico Musso deceased.
2-An account of the rents and profits of the said premises received by the defendant, a declaration that such rents and profits form part of the estate of the aforesaid Domenico Musso, deceased, and a decree that the defendant pay the same to the personal representative of the said Domenico Musso, deceased.
3. Such further or other relief as to the Court may seem meet. Defendant's answer was as follows:: 1. The defendant admits the statements in paragraph 1 of the petition to be true.
2. The defendant admits the statements in paragraph 2 of the petition to betrue, but alleges that from and after the 28th day of January 1895, the said Domenico Musso stood possessed for the defendant and not otherwise. of the said parcels of leasebold land as trustee
3.-The defendant admits the statements in paragraph 3 of the petition to be true but the defendant further alleges that the said assign. ment and gift was made subject to the payment by the defendant of the Crown rents and to the performance and observance of all and singular the covenants, conditions, reservations, and agreements in and by the Crown leases of the said two parcels of land reserved and contained and that the defendant for herself, her heirs, executors, administrators, and assigns covenanted with fl said Domenico Musso to pay the said rcuts and to observe and perform all the said covenants, condi- tions, and agreements and to keep the said Domenico Musso, his heirs, executors, and ad- ministrators indemnified against all actions, suits, expenses, and claims on account of the nonpayment of the said rents of the breach or non-observance or non-performance of the said covenants and conditions or any of them; and the defendant further alleges that the said Domenico Musso in and by the said deed for himself, his heirs, executors, and administrators covenanted with the defendant that he had full power to give and assign to her the said two parcels of land and premises free from encum- brances and that she should peaceably and quietly possess and enjoy the same without lawful let, suit, eviction, claim, or demand from him or from any person lawfully 'or equitably claiming by or through him, and further that
The following replication was filed by the plaintiffs in reply to defendant's answer:
:
1-As to the 2nd and 5th paragraphs of the answer, that they join issue thereon as to so much of the said paragraphs as alleges that from and after the 28th January, 1895, Do menico Musso stood possessed of the therein referred to premises and collected and received the rent thereof as trustee for the defendant." 2.~ As to the 3rd paragraph of the answer they admit the allegations therein contained to be true, but say that the defendant did not during the lifetime of the deceased pay the Crown rents or perform or observe the covenants, conditions, reservations, or agreements therein referred to.
:
3.As to the 5th paragraph they admit so much thereof as refers to the memorial therein referred to.
4.As to the 7th paragraph they join issue thereon as to so much thereof as denies that the provisions of Italian law apply to or govern the attempted transfer by gift inter vivos of the leasehold premises known as Marine Lot 188 and remaining portion of Marine Lot 189 in Hongkong by deed executed in Hongkong by Domenico Musso in favour of the defendant.
•
5. As to the 8th paragraph of the answer the plaintiffs join issue, thereon as to so much as alleges that the plaintiffs have no interest in the said lots either under English or Italian law.
Mr. Robinson then addressed the Court on the quessions of law arising upon the pleadings. He said the questions for the decision of the Court were (1) whether the law of Italy had any application to the parties in respect of the property comprised in the deed of gift so
as to render the deed null and void, and (2), Assuming that the law of Italy was not applicable, was the effect of the deed to make the late Domenico Musso & Trustee of the property for his wife! The first was a question of international law as administered by the English Courts. The › general rule was that the law of the place in which immoveable property was situated (lea loci rei situs) governed the formalities of transfers of such property, but counsel argued that the question of status or capacity to give or acqnire property must be dealt with
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