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Colonial Cases

Raphael v. Elias, 1893

[trusts]

Raphael v. Elias

French Consular Court, Shanghai
Dubail, 22 August 1893
Source: North China Herald, 25 August, 1893

FRENCH CONSULAR COURT.
Shanghai, 22nd August.
Before M. G. Dubail, Consul-General, and MM. J. Oriou and E. G. Vouillement, Associates.
RAPHAEL v. ELIAS.
  This was a case raising some important issues. M. Bottu appeared for the plaintiff.  Mr. R. S. Raphael, and M. Moulron represented the defendants, Messrs. J. R. and R. H. Elias.
  According to the plaintiff, in 1879 he executed a settlement of some Tls. 12,000 in favour of his children, appointing certain trustees. In the year 1890, when Mr. J. R. Raphael was the trustee, the plaintiff required the use of some money, and he arranged to borrow out of the trust funds Tls. 4,300, giving a promissory note to Mr. J. R. Elias. He paid off the loan and received back from Mr. J. R. Elias the promissory note, which, instead of destroying or cancelling, he put in his safe. In this safe the documents relating to the trust were kept, and Mr. J. R. Elias had access to it. The plaintiff alleged that Mr. J. R. Elias took advantage of this to abstract the promissory note. Subsequently he passed it on to his brother (Mr. R. H. Elias) who sent it for collection to a bank here. Since then an injunction had been obtained from the British Court restraining the bank from parting with the document.
  The defendants in reply strongly denied the accusations made by the plaintiff. Mr. J. R. Elias contended that the loan of Tls. 4,300 had never been repaid by the plaintiff, and he passed the note to his brother as security for a loan. The defendants also asserted that for some time there had been many financial transactions between them and the plaintiff, and that the payments which plaintiff stated he had made had nothing to do with the trust funds. They asked that plaintiff should be ordered to give security for the Tls. 4,300 and Tls. 5,000 damages claimed.
  The Court eventually decided that as the defendants carried on business here on their own behalf, under the law they were not required to give security, but as to the plaintiff they would take time to consider, and adjourned the case till Saturday, when a number of other documents in the hands of defendants' lawyer would have to be produced.

 

Source: North China Herald, 1 December, 1893

FRENCH CONSULAR COURT.
Shanghai, 25th November.
Before M. G. Dubail, Consul-General, and MM. E. G. Vouillement and J. Oriou, Assessors.
RAPHAEL v. ELIAS.
  MM. Bottu and Hanson appeared for Mr. Raphael, and M. Moulron, avocat, for the brothers Elias.
  The following is the full text of the Judgment [in French]:
[TRANSLATION.]
  As regards the trusteeship, - Whereas J. R. Elias produces a receipt given by Toeg in the presence of Raphael, and that the Court does not require to know whether the money has really been paid - as regards the notes signed by Raphael in favour of J. R. Elias  of which J. R. Elias seeks  the recovery - whereas it results from the investigation that these notes were fictitious and were drawn up with an object into which the Court does not wish to enquire - whereas on the other hand it appears from an examination of the books  that the account of Elias is balanced by an amount equal to that of the notes, and the Court is consequently justified in believing that the entries representing the loan made by Raphael to the trust, as  well as the issue of the notes, about balance each other - whereas consequently, the settlement of the trust, the loans thereon made and the cover of these loans by fictitious notes, constitute a number of irregular operations, of which the action of Elias in regard is only the consequence, Raphael is thus not justified in calling for the application of correctional punishment upon the brothers Elias.  But whereas, on the other hand, J. R. Elias and R. H. Elias wrongfully retained the notes which had been given to J. R. Elias by Raphael for the purpose above shown, these notes ought to be returned to Raphael; and under this head Raphael is entitled to succeed in his case.
  On these grounds the Court relieves Joseph Rahamin and Reuben Hay Elias from the criminal charges brought against them; orders that they return to Raphael all the notes signed by him which they may have in their possession; and certified to Raphael that the brothers Elias have declared before the Court that they have in their possession only two notes of Tls. 4,300 and Tls. 8,900.
  The Court declares that this restitution must be made within 24 hours of the judgment, under penalty of 100 francs fine for each day of delay, or in default 20 days' imprisonment for each 100 francs. The Court condemns Joseph Rahamin Elias and Reuben Hay Elias to pay the costs of the suit, fixed at the sum of $530.70 cents, in which is included the cost of expert evidence and the translation of books, but not the cost of drawing up and publishing the judgment.
  Thus judged and pronounced by the French Consular Court at Shanghai, sitting in the Consulate-General and composed of M. Dubail, Consul-General, President, Messrs. Vouillement and Oriou, Assessors, and M. de Prat, acting as Clerk.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School