}
August 27, 1904.]
is substituted. Chu Chuen must therefore have been aware that he was signing an agreement originally intended to have been signed by Yin Chow. The plan annexed to the agree. ment showed that the reclamation of which a Crown lease was agreed to be granted was the reclamation in respect of Sections B and D of M. L. 53 A. Of this also Chu Chuen must have been aware when he signed the agree- ment. Further Chu Chuen was not the owner of sections B and D, as he well knew. Chu Chuen also knew that Yiu Chow was the owner of these, two sections. Moreover, under the proviso to Clause 5 of the agreement Chu Chuen was to obtain no other rights over the new foreshore in front of the reclamation than he had in respect of sections B and D of M. L. 53 A. As he was not owner of sections B and D he had no rights of foreshore in respect of those two sections. The only way therefore of giving effect to this proviso would be to treat Chu Chuen as representing the real owners of ⚫ sections B and D. From the agreement itself therefore, and from the fact that Chu Chuen was not owner of sections B and D. I conclude that Chu Chuen entered into the agreement not for himself but for Yiu Chow, and that whilst the legal right to the benefit of the agreement was in Chu Chuen. the equitable right was in Yin Chow, Turning how to the Praya Reclamation Ordinance. all the reclamation projected under the Ordinance vested absolutely in the Crown, with power to the Governor, subject to the provisions of the Ordinance, to deal with and dispose of that reclamation to as full an extent as in the case of other Crown Lands. These provisions are contained in Section 7, which, in brief, pro- vides for agreements to be entered into between the Governor and those Crown lessees who have complied with sub-section 11 of section 7, by signifying in writing their acceptance of the land assigned to them on a certain plan and of their intention to enter into an agreement. Yiu Chow being Crown lessee of sections B and D of M. L. 53a, was entitled to enter into the agreement which Chu Chuen signed, provided he (Yiu Chow) signified to the Crown his acceptance and intention as aforesaid. Notwithstanding the evidence of Mr. Bruce Shepherd that Yiu Chow "did not signify his assent under the Ordinance," it is clear. I think, that the Crown recognised Yin Chow as a Crown lessee who had signified his acceptance under section 7 (2) of the Praya
CHINA OVERLAND TRADE REPORT.
sible to prevent the Statute of Frands from being used in order to commit a fraud. In Rochefoucauld v. Boustead (1897) I Ch. at p. 206, Lindley, L.J. said: It is further established by a series of cases, the propriety of which cannot now be questioned, that the Statute of Frauds does not prevent proof of a fraud; and that it is a fraud on the part of a person to whom land is conveyed as a trustee and who knows it was so conveyed to deny the trust and claim the land himself. Consequently, notwithstanding the Statute, it is competent for a person claiming land con- | veyed to another to prove by parole evidence that it was so conveyed upon trust for the claimant, and that the grantee, knowing the facts, is denying the trust, and relying upon the form of conveyance and the Statute in order to keep the land himself." This passage in my judement covers the present case if the pro- perty of which Chu Chuen was trustee is within section 7 of the Statute of Frauds. It was urged that Yiu Chow had forfeited his right to enter into an agreement and had been relegated to his remedies under Section 7 (6) of the Praya Reclamation Ordinance. If this is urged on the ground that Yin Chow was not only out of time but also did enter into an agreement the objection equally applies to Chu Chuen, who, though he signed an agreement. did not sigu within the prescribed time, viz., on
or before 5th October. 1889; for though that agreement was dated 5th October it is certain that it was not signed until some date between 6th and 20th December, 1889 (see letters of 6th and 20th December, 1889) and very probably not till 19th December, 1889. Moreover it concerned the Crown only, and in no manner concerned Chu Chuen how the Crown was pleased to treat Yiu Chow after he had signified his acceptance and intention, though he had failed to enter into an agreement. I think therefore that there is no force in any contention that Yiu Chow had lost his right to come in under the reclamation
|
not
151
have a claim against the Crown by reason of the undertaking given by Chu Chnen they also have their remedy: but this cannot affect the rights of Chu Chuen and Yiu Chow, inter se, and those rights form the only matter for consideration in this appeal. I therefore think that it should be de- clared that the plaintiffs are entitled to the grant of a rown lease of the ares of land marked red in the articles of agreement dated 5th Oct., 1889, but apparently executed on 19th Dec., 1889 ; that is to say, to such proportion (from front to back) of the whole of the reclamation to Marine Lot 53 A as the frontage of the plaintiffs' pro- perty. Sections B and D of the said lot upon the old Praya Roadway (now known as Des Vonx Road) bears to the whole frontage of Marine Lot No. 53 A upon the said roadway; and that the plaintiffs refund to the defendants with interest at 8 per cent, such sums as they. or their predecessors in title, have contributed to the cost of the reclamation in question, as well as the sum of $2,000 for which Chu Chuen bought the alleged reclamation rights of the owner of back section C. This appeal should therefore be dismissed with costs.
MARINE COURT.
Monday, 22nd August. BEFORE HON. CAPT. L. Barnes LawreNCE R.N. (MARINE MAGISTRATE).
REFUSING DUTY,
Twenty-one West Indian negroes were charged by Mr. F. Wilcox (master of the British s.8. Ranmoor) with refusing duty, and detaining his ship so ne two days in consequence. The touched here simply for bunker ship coal and orders. Complainant said that defendants refused to proceed to Yoko- The reason they gave was hama in the vessel. that their agreement mentioned that they were to be paid off at Hongkong; but the stipulation, really, was that they were to be paid off in the Far East.
scheme, and had therefore ceased to have an equitable right to the grant of a Crown lease Hitherto I have made no allusion to the document which was attached to the agreement, sigued
The Harbour Master, to defendants: I give on 19th December, and has been called the “undertaking" throughout this case. I view that you the opportunity of saving yourselves some document as embodying a preliminary agree-however, have to forfeit six days' pay for each punishment if you go back to the ship. You will,
ment for what it was worth between the Crown
whether Chu Chuen considered himself a trustee
and Chu Chuen. By preliminary agreement I mean an agreement preliminary to the signing Reclamation Ordinance, 1889. This is
of the agreement under the Ordinance by Chu made clear by Government Notifica Chuen. It was a condition precedent to Chu tion No. 530 published in the Hongkong Chuen being allowed to sign that agreement Government Gazette of 19th December. 1891. that he should give such an undertaking: That notification in part is as follows:-The That document came into existence as a result Praya Reclamation Ordinance, 1889.-List of of the Colonial Secretary's letter of 6th lessees who have signified their acceptance of December, 1889; without it. no agreement the portions of land assigned to them under with Chu Chuen would have been made. the Praya Reclamation Ordinance 1889, section That document does not in my opinion in 7, sub-section 2.-In the schedule attached there any way control or modify or affect the con- is this Sect. No. 6- Registered No. of Marine struction to be placed either on the agreement Lot, 53, and 53a; names of Crown lessees or their of 19th December, 1889, or on the Praya assigns on date of acceptance; Section B, Yiu Reclamation Ordinance, 1889. and does not Chow; Section D, Yiu Chow. I do not doubt there- throw light on the question of the property of fore that Yin Chow qualified to enter into the which Chu Chuen was trustee for Yiu Chew. agreement, and as owner of sections B and D
It may have evidential value on the point became under the Ordinance equitable owner of the right to the grant of a Crown lease for Yiu Chow, but I have not used it for that of the reclamation delineated red on the plan purpose. The Ordinance, the agreement, and annexed to the agreement, which he should surrounding circumstances demonstrate in my have signed, but which was in fact signed judgment that the relation of trustee and by Chu Chuen. The legal right being by cestui que trust existed between Chu Chuen the agreement in Chu Chuen and the equitable and Yin Chow in respect of the right to a right by the Ordinance in Yin Chow, Chu grant of a Crown lease of that portion of the Chuen was trustee for Yiu Chow of such right. reclamation which is marked red on the plan Now what was that right? It was the right to annexed to the agreement signed by Chu a grant of & Crown lease, that is, a Chuen. It must be assumed that the land chose in action, which is personal property. A marked red on the plan annexed to the agree- contract for a lease is an interest in land ment was allotted to the owner of sections B within the meaning of section 4 of the and D, because it was deemed to be the equit- Statute of Frauds: the words in the 4th sectionable proportion to which that owner Was are "lands, tenements, or hereditaments, or entitled by the Ordinance. At any rate, Chu any interest in or concerning them." The 7th Chuen was trustee for Yiu Chow of the portion section mentions "lands, tenements or here-allotted on the plan, and if Yiu Chow's succes- ditaments," but does not mention any interest in them. The inference is that interests in land such as a contract for a lease are not with in section 7. But if this view be unsound and
the trust arising in the present case is a trust of lands, tenements or hereditaments within section 7, and if there is no document signed by defendant proving the existence of the trust alleged, nevertheless other evidence is admis-
sors in title. the present respondents, are dis- satisfied with that apportionment there are means by which the question can be raised against the Crown as to whether they are receiving the equitable proportion contemplated by the Ordin- ance. In my opinion they will receive that pro- portion, though this expression of opinion is not necessary to the decision in this case. On the other hand, if the appellants think that they
|
day that you refused duty. I have to go by the articles, and in any case, would not permit you to be thrown on the Colony. Cries of
No, no, no."
The Harbour Master: You are evidently afraid of going to Japan on account of the war. The vessel is not carrying contraband, so there is nothing to be afraid of.
A Voice: I would face the Russian fleet any day, but I was told that we were to be paid off at Hongkong, China. I would be hung, or sent to England, or brought before the Admiral of the Navy, but I would not proceed to Japan as I was told otherwise.
horus: Yes, yes, yes.
f
The Harbour Master: Well, you have had your chance and now will have to forfeit 12 days' pay and go to prison for two months.
The Captain: Will any of you come in the ship
A Voice: I would not go another foot with the case into Wilson's hands, I will. you, cap'n. When I go to England I will put
The Captain: I did not press the charge. A Voice: There will be a charge pressed against you.
A pretty story is told of a soldier and a little girl. ~ A short time ago, near Sabaye Railway Station in Fukui prefecture, a private was about to buy cigarettes when he found he had no small change. Noticing his hesitancy, and perhaps under the impression that he had no money, a girl of twelve years, who had watched the soldier closely, pulled out a little purse in which were her savings, 15 sen, and offered the amount to the warrior. The soldier bought his cigarettes with the unselfish gift of the girl, and then he returned the purse to her, saying he had no use for it, immediately afterwards going to his train. On returning home the little girl opened her purse unwittingly, and discovered to her astonishment a one-yen note, accompany. ing a short and pleasant note of appreciation from the soldier.-Kobe Chronicle.
No comments yet.
Private notes are available after approval.