·February 19, 1898.}
Look at your book and tell me if there was not a cash sale of 85 Banks on the 9th October.- Yes, there is.
To whom were they sold P-50 to Mr. Mody and 35 to Messrs. Hughes and Hough.
Read the entire entry.-50 Banks, C. L. Gorham sold, at 1911; H. N. Mody bought; $50 brokerage." "35 Banks, C. L. Gorham sold, at 1914; Hughes and Hough bought; $34.38 brokerage.". It looks as if a "9" was written over the "4.
Haven't the figures been altered in some way? -It may have been when he was writing it.
How much is the brokerage on shares ?-30 cents.
Bank
Hughes and Hough are brokers ?—Yes. And in that case Mr. Gorham has been charged double brokerage -Yes.
pay
Had you Mr. Gorham's express consent to double brokerage ?-I have not done his cash sales. Potts must hage asked him about it.
Can you tell us how that figure--34.38--was arrived at ?I cannot tell.
Look at it again; doesn't it look as if it was 39 P-I cannot tell.-
At this point the Court adjourned until two
o'clock.
After the adjournment Mr. Francis proceeded with his cross-examination of Mr. Kelly.
The entry in the book of the 9th October relating to the 35 Banks was shown to the jury and Mr. Francis suggested that they should work out the figures for themselves and they would find that the difference between the purchase price and the selling price, plus the brokerage, was exactly $39.38;
Mr. Drummond-Together with the observa-
tion in the book.
*
Mr. Francis-Together with the observation in the book and the very extraordinary cir cumstance that it exactly coincides.
His Lordship Mr. Francis, don't make ments of that sort.
com.
Witness-It is a matter of arrangement. Mr. Francis-Yon do not know anything about that, Mr. Kelly. Mr. Potts did that' transaction.
Witness then read entries of sales of Bauk shares for Mr. Gorham on the 20th October, 4th November, and 18th November.
CHINA OVERLAND TRADE REPORT.
he had no meaus of ascertaining whether the debit side was correct or not.
His Lordship thought the account could be put in for what it was worth.
Mr. Drummond said he was quite prepared to furnish the other side with details of the account, Witness, continuing, said that on the whole account there was a credit due to Polishwalla at the end of the year. Some of the firm's constituents had a margin, some had no margin, and some with a debit balance. Witness was. quite willing a show the judge, counsel, and jury the names of those people who had a debit balance.
Mr. Francis objected unless he had the opportunity of cross-examining the witness.
Mr. Drummond replied that Mr. Francis could test the accuracy of the list in any way he liked. The list was put in because Mr. Francis had alleged that Polishwalla was a dummy.
Mr. Francis-It does not follow that because there are half a dozen live images there is not a single dummy.
A long discussion took place and as Mr. Francis continued to object to the list being put in Mr. Drummond at length intimated that the defendants considered it would be a breach of duty to their constituents if the list. was made public. He therefore would not pursue his request.
·
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117
7-Defendant applied for the two upper lots with the idea of utilizing them in conjunction with Lot 1,381 either as a whole or in part.
8.-The community took little interest in the sale of Lot 1,381.
9.-There was not an expressed declaration of trust by the defendant.
favour of the plaintiffs.
10. The documentary evidence was not in
11.-The plaintiffs were given leave to apply to amend the petition so as to make the case one for specific performance.
12. If the summons for that purpose was brought into chambers within fourteen days judgment would stand over; if otherwise, judg. ment would be entered, for the defendant with his costs of snit.:
judgment-
His Lordship delivered the following written
The plaintiffs in this case, namely, David- Aaron Gubbay, Abraham Jacob Raymond, and Abraham Jacob David, are members of the Jewish community in this colony and they are sueing for and on behalf of themselves and all others the members of that community (except the defendant:) The defendant is also for many years. a member of the community and has been so
The object of the suit is to have it declared by the, Court that "the defendant purchased Inland Lot No. 1,381 as a trustee for and on of the Jewish community of Hongkong and Hebehalf of the plaintiffs and of the other members that he now holds the same in trust for the plaintiffs and for the said Jewish community, subject to the payment by them to him of the amount paid by him for the purchase thereof and the interest thereon." By his answer the defendant denies the allegations of the peti- tion, and says that he bought the land in question for himself. · ·
In answer to his Lordship witness said he believed Polishwalla came from Bombay. paid no cheques, all the transactions being entered in the ledger. Polishwalla's current account was the largest, but most of the business was not done with him. At any moment he wished to close his account he could draw his money. There had been no final settlement during the last two years.
The Court then adjourned until Saturday at 1:30 p.m.
12th February.
D. A. GUBBAY AND OTHERS V. E. R. BELILIOS.
The writ was issued on the 25th May. 1897, and the hearing began on the 2nd December last, and, after occupying 14 days, was con- ́ cluded on the 31st December.
At the hearing the defendant somewhat de- parted from his original general denial of the Judgment was delivered in this equity suit; land for himself but with the expressed inten- plaintiffs' position and said that he had bought the The plaintiffs, D. A. Gubbay, A. J. Raymond, tion of allowing the Jewish community to have Re-examined by Mr. Drummond-After re of themselves and of all others of the Jewish
and A. J. David, petitioned the Court, on behalf a sufficient portion of it as a site for a synagogue. ceiving plaintiff's letter of the 17th March I went and saw the plaintiff. I said to him,
There is a preliminary point which was community in Hongkong, except the defendant, taken in the defendant's answer and was also If your boy stole your watch, will you wait six
a declaration that the defendant pur-urged by Mr. Pollock at the hearing and months till he steals your chain and then chased a. certain lot of land in this colony, which must first be considered. It was con- prosecute him?" That is all that passed about known as Inland Lot No: 1,381, as a trustee tended that "the plaintiffs have not in fact any
the watch and chain. Then I told him he could come and see the accounts and bring his friends with him. Nothing was said about opening the boy's box and searching it. I never asked him, to forgive me. I have not done anything wrong why should he forgive me? He did not tell me there was anything wrong. If I had known he had anything against me I should not have gone to see him.
cross-
In answer to Mr. Francis, who examined on this point as it had been omitted from the examination in chief, witnees said -I saw Mr. Gorham three times between the receipt of the letter of the 17th March and my departure for England. I told the plaintiff he ought to have seen us without sending a solici- -tor's letter and that he could see the accounts. Then I spoke about the watch and chain. On the second occasion I saw him he was very angry and said, "Send in my accounts." Then he said, Why do you bring that damned fellow here? You know I hate him." I said, "I did not know that you hated him. When I wished the plaintiff good-bye, he said, “ I have nothing against you."
In answer to further questions by Mr. Drum mond witness said-If I had known that plaintiff 'had anything against me I should have remained hére. I was not in a hurry to get to England. At the end of October, 1896, Folishwalla's account showed a balance to his credit of $17,819, besides time transactions. The November ac- count showed a credit balance to Polishwalla of $13,912.25, besides the time transactions. These two amounts were the margin that would have remained if all his shares had been sold at the cash market rate of that day. For January his balance to the good was $24,057.19; for February $54,988.26, for March $11,881.88.
Mr. Francis said he ought to have an op- portunity of seeing both sides of the account, as
for
for land on behalf of the plaintiffs and the other members of the Jewish community in Hongkong, and that he now held the property in trust for the Jewish community subject to pended in the purchase. the payment to him of whatever monies he ex-
!
Mr. J. J. Francis, Q.C. (instructed by Mr. tings), appeared for the plaintiffs, and Mr. H. O. D. Thomson, of Messrs. Deacon and Has E. Pollock (instructed by Messrs. Wilkinson and Grist) for the defendant.
following days-2nd, 3rd, 6th, 7th, 8th, 13th, The hearing occupied the Court during the 14th, 15th, 16th, 17th, 28th, 29th, 30th, and 31st December; 1897 fourteen days altogether. hours, and as it is too long to be published The delivery of the Judgment occupied two in one issue we shall give it in instalments as opportunity offers. Meanwhile, it may be of interest to briefly indicate the principal points brought out in the judgment:—
senting themselves and all others of the Jewish 1.Plaintiffs were entitled to sue as repre- community with the exception of Mr. Belilios.
2. There was a couflict of evidence, but it was confined to matters of minor importance.
3.-No witness had wilfully endeavoured to mislead the Court.
4.-The evidence of the witnesses for the defence was more confident and more precise than the evidence of the witnesses for the plaintiffs.
5-But for the somewhat loose use of the word "site" on both sides the proceedings would probably not have been begun.
6.The facts were more consistent with the defendant's contention that he applied for lot 1,331 for himself with the intention of letting the Jewish community have as much as was required for the synagogue than with the con- tention of the plantiffs that he applied for it on their behalf and as their agent.
title or authority from the Jewish community to sue in this suit for and on behalf of them- selves and of all others the members of the Jewish community in Hongkong, except the defendant." To meet the objection thus made a document under seal, was put in evidence, purporting to appoint the plaintiffs trustees for defendant on behalf of the community for the the community and authorizing them to sue the recovery of Inland-lot No. 1,381. This docu ment is dated the 10th June, 1897, and is more than half of the adult male members. It signed by 32 members of the community, being was said in behalf of the defendant that the authorization came too late, the suit having its date, I am inclined, however, to think that been commenced more than a fortnight before the subsequent authorization would operate as commencing the suit.. But in any case I am of a rectification of the act of the plaintiffs in
members of the Jewish community and have a because it is not disputed that the plaintiffs are opinion that the objection cannot prevail
beneficial proprietary right in the subject matter of the suit. In such a case the rule of the old Court of Chancery in England applies, namely, that where the plaintiffs were very numerous and there would be great risk (from abatement) inconvenience, and expense in joining a great number of individuals
as
plaintiffs, the Court of Chancery allowed one or more of such individuals to sue "on behalf of themselves and others," where their titles, though distinct, were not inconsistent. This rule is now applied in all the divisions of the High Court in England when exercising the old jurisdiction of the Court of Chancery, and it does not ap- pear to conflict with the provisions of section that 28 (2) of the code of Civil Procedure to the effect "all parties having a joint cause of suit against any defendant ought ordinarily to be
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