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« 




/ '.^mm^^ 



i'.S 



«. f •■ 





SIR. 


s 


u ^1 i 


i 


HARVARD LAW LIBRARY 

i 
1 


r 


i!^ 






Received M AH 1 7 1910 









•'1^ 






^J 



M< 



V4 



toit^' H 



HEARD AND DETERMINED 



IN 



HER MAJESTY'S SUPREME COURT 



OP THE 




1808-1884. 

EDITED AND EEPORTED 
[WITH A JUDICIAL-HISTORICAL PREFACE FROM 1786 TO 1B85.] 

BY 

JAMES WILLIAM NORTON KYSHE, ESQ., 

ACTING EEGISTEAB OF THE SAID COURT IK MALACCA. 

»o>»{oo 

Law is beneficence acting by rule, 

Surlt. 

IN THREE VOLUMES. 

VOL. 111. 


MAGISTRATES' APPEALS. 



Gop2jright. -- a ^ 



SINGAPORE : 
Printed at the "Singapobe and Straits Printing Office.' 

1886, 



i.:/.:!l7 1910 



TO 

HIS HONOR 

Sir THOMAS SIDGREAVES, Knt., 

Late Chipf'Justice of the Straits Settlements, &c,, &€., &c, 

Cfeis Hark 

IS, WITH PERMISSION, 
RESPECTFULLY DEDICATED 

BY 

THE AUTHOR, 



\ 



PREFACE 

TO 

THE THIRD VOLUME. 



rpHIS work was only undertaken in consequence of the want 
-^ generally expressed, of a complete report of all the import- 
ant decisions in our Courts, which might be precedents for future 
cases. The magnitude of the task, 1 readily confess, made me 
charge myself with presumption for venturing on so bold an enter- 
prise. The work however is now completed. 

Since my transfer to Malacca, I have gone over all the books 
and records of the Court in the Settlement, with the result that, 
as fully expected, I have ascertained that only a few important 
cases have arisen in Malacca. Within recent years several import- 
ant ones which originally arose here, have been transferred to 
Singapore for determination or decision. Those of any import- 
ance will be found embodied throughout this work. 

Of the Singapore cases, I am not, I regret to say, in a posi- 
tion to speak so favourably as of those of Penang and Malacca, 
and that for obvious reasons ; but I may add, that I have the 
assurance of many able to judge of such a matter, [apart from 
the fact that the business of the Court in Penang has always been 
heavier than in Singapore], that all the important cases decided 
in the latter Settlement within the last few years, and wherein 
written Judgments have been delivered, have appeared in the public 
press. Those cases, I need hardly say, I have not omitted to in- 
clude in this work, and apart from these, several have been reported 
which, with the usual kindness evinced towards me throughout 
this work by their Honors the Judges and members of the bar, 
were placed by them at my disposal. 

In conclusion I beg respectfully to express my grateful acknow- 
ledgments to the present Chief Justice for his kindness in revising 
such of his cases as are reported in this Volume. 

The magnitude and scope of this work will be a plea for 
indulgent consideration of all its shortcomings. 



J. W. N. K. 

, S. S. 1 
2nd August, 



. Malacca, S. S. ^ 



JUDGES 



OF 



THE SUPREME COURT. 



Plis Honor Theodore Thomas Ford, Chief Justice of the 
Straits Settlements.* 

His Honor Thomas Lett Wood. 

His Honor Willam Anthony Musgrave Sheriff. 

His Honor Etienne Pellereau. 

ATTORNEY-GENERAL. 

The Hon. John Winfield Bonser. 

solicitor-general, 
Daniel Logan, Esq. 



* Vice His Honor Sir Thomas Sidgreaves, Knt., retired, February, 1886. 



CORRIGENDA, 



Page. 

14. Line 17; Reg. v. Meera Lebby— for **1859*' read ''1857." 

16. „ 11 ; Reg. v. Willans — for ** Willians" read " Willans." 

61. „ 13 ; Ho Ghee Slew & anor. v. Nacodah Mahomed — for " Vatteld" read *' Vattel.*^ 

144. Marginal note — Reg. v. Lim A Si & anor. — for " Ford, J." read ** Wood, J." 

211. Line Ij dele "Ordinances — continued." 



A TABLE 



OP THE 



NAMES OF THE CASES REPORTED 



IN THIS VOLUME. 



PAGE. 



A. 

Abass and anor., Reg. v. 
Abbass v. Tomby - - - 
Abdul Gunny v. Newland 
Abdulrahman and ors., Reg. v, - 
Ah Chin, Mun. Comers, v. 
Arnashellam Patten, Doreh- 

sawmy Pillay v, - - 

Aw Eng Tho, Reg. v. - - 
Ayah Doreh Pillay, MootoQ 

and ors., v. - - - 



B. 



Chi Yuen, In re 
184 Chooashary and anor. v. Cas- 
131 sim - - - - 
102 I Choo Chye Hok, Hass v. 
01 I Chuah Seng and ors., Mun. 



85 

105 
171 

90 



Beh BLooie and anor., Reg. v. - 103 
Boey Ah Sam v. Seow Ah Seong 161 



C. 



Car tan v. Meenachee - - 151 

Cassim, Chooashary and anor. v. 98 

V. Haji Mahomed Syed 101 

Cheng Hee, Reg. v. ... 89 



Comers, v. 
Connor v. Tan Jim Sin 



PAGE. 

■ 176 

. 98 
. 152 

. 140 
114 



D. 

D'Oliveiro, Reg. v. - - 45 
Dorehsawmy Pillay v. Arna- 
shellam Patten - - 105 
Dragon, Tuan Pateh v. - - 87 

E. 

East India Co., Edwards v. - 6 

Ebram Khan, Mahomed Aniff v. 88 

Edwards v. East India Co. - 6 



Fong Ah Chan v. Eah Sew - 109 



TABLE OF CASES REPORTED. 



G. 

Gan Kiin Svvee v. Newland 
Gaudart, Warn v. 
Goh Choo, Ilejj. v. 



PAGE. 



108 

1 

106 



H. 

Haji Mahomed Syed, Cassim v. 

Sahid V. Shaik Peroo 

Hass V. Choo Chye Hok 

Him, Punjjhulu Allang v. 

Ho Fuk Weng and ors., Kader 

Khan v. - - . 

— Ghee Slew and anor. v. Na- 

codah Mahomed 



K. 



Kader Khan v. Ho Fuk Weng 
and ors. - - - - 
Kadier and anor., Velloo PuUay v 
Kah Sew, Pong Ah Chan v. 
Kattan and ors., Lamb v. 
Kelly and anor., Reg. v. 
Khoo Aing Hong v, Meyapah 
Chetty 

Puteh V. 

Khoo See Hee and ors., Reg. v. 

"Sim Choon, v, 

Tean Tek v. Opium Farmer 

Koh Boo An v. Tioh Jee - 
Komorapah Chetty, Mahomed 

Sham 17. - - - - 
Koomah, Reg. v, - 

Kuck Sin Loi, v. - 

Kweh Te Hin, v. - 

Kyamboo, Secunder v. - 



Lamb v. Kattan and ors. - 

V. Ponen - - 

Lee Hong Kang and ors., Reg. v, 
Leong Wee Quan, Ong Cheh 
Yew V. . - * . 



Letehmee and anor. v, Rajna- 
sawmy . - - . 

Lim A Si and anor., Reg. v. 
Beh and ors. v. Opium 



101 

79 

152 

144 

182 

51 



182 
50 

109 
71 

194 

124 
124 
170 
97 
107 
164 

186 
67 
110 
158 
116 



71 

62 

145 

104 



PAGE. 



102 

143 



Farmer 
— Chow 



Leng 



Opium 



10 

136 

84 

156 



Farmer 

Peng and ors., Reg. v. 

Low Chu V. Opium Farmer 



M. 



Mahomed, Mymoona v. - - 10 

Merican and ors., v, 138 

Aniff V. Ebram Khan 88 

Haniff, Versay v. - 79 

Lebbye, Mamsah v. 130 

Oosman and anor., 

Reg. V. - - - - 50 
Sham V. Komorapah 

Chetty - - - - 186 

Mamsah v. Mahomed Lebbye 130 

Man and anor. v. Samsah - 99 

Mariapen, Narainastiwmy v. - 120 

Mas Etah, Mat Issah v. - - 134 

Mat Issah v. Mas Etah - - 134 

Salleh V. Sarah - - 167 

Meenachee, Cartan v. - - 151 

Meera Lebbye, Reg. v. - - 13' 

Merican and ors., v. Mahomed 138 
Meyapah Chetty, Khoo Aing 

Hong 6'. - - - - 124 
Mootoo and ors., v. Ayah Doreh 

Pillay. - - - -90 
Municipal Commissioners v. Ah 



Chin - 



V. Chuah 



Seng and ors. 
Mustan and ors., Towers v. 
Mymoona v. Mahomed 



N. 

Nacodah Mahomed, Ho Ghee 
Siew and anor. i;. - - 

Naraiuasawmy v, Mariapen 



85 

140 
92 
10 



51 
120 



TABLE OF CASES REPORTED. 



PAGE. 



Nawas and anor. v. Shaik Raj ah 

AUi 

Newland, Abdul Gunny v. 
Gau Kim Swee v. 



0. 



Oh Kan v. Tan Chuan 

V. Wee Lalah 

Ong Ah Huat v. Opium Farmer 
Cheh Yewv. Leong Wee 

Quan ----- 
Hong Jiow V. Teh Tan 

Kiat 

Ooi Tim and ors., Reg. v. 
Opium Farmer, Khoo Tean 

Tek V. 

Lim Beh and 



ors. V. 



Lang V. 



• Lim Chow 

• Low Chu V. - 
-Ong Ah Huat v. 
-Tek Wee v.- 
. Tan Sim Tee v. - 



Pawnbroker v. Ramsawmy 
Padiachee - - - - 
Ponen and ors., Lamb v. 
Punghulu Allan g v. Him 
Puteh V. Khoo Aing Hong 



R. 



Ramasawmy, Letchmee and 
anor. v. - - - - 

Ramasawmy Padiachee, Pawn- 
broker v. - - - - 

Reg. V. Abass and anor. - 

V. Abdulrahman and ors. 

V. Aw Eng Tho 

• V. Beh Hooie and anor. - 



118 
102 

108 : 



Reg. 



V, Cheng Hee 
V. D'Oliveiro 
V. Goh Choo 



I 



126 

126, 

100 

I 

104 

189, 
119 I 

107 

10 

136 
156 
100 
132 
174 



— V. Kelly and anor. - 

— V. Khoo See Hee and ors. 

— V. Sim Choon - 

— V. Koomah 

— V. Kuck Sin Loi 

— V. Kweh Te Hin 

— V. Lee HongKang and ors. 

— V. Lim A Si and anor. 

— V. Peng and ors. 

— V, Mahomed Oosman and 



anor 

- V, 

V. 

V. 



Meera Lebby 
Ooi Tim and ors. - 
Shaik Ishmael Lebby 
V. Shavoo - 
V. Sheik Hossain and 
V. Tan A Yeap 



ors. 



V. 
V, 

V. 
V, 
V. 



AhFook 
Poh Keah 



Sim Ho 

Sin Hap and anor. 

Willans 



PAGE. 

89 

45 

106 

. 194 

170 

97 

67 

110 

158 

145 

143 

84 

50 

13 
119 

99 
116 

98 
104 

43 
154 
448 

94 

16 



148 

62 

144 

124 



102 

148 
184 
61 
171 
103 



Samsah, Man and anor. v. 
Sarah, Mat Salleh v. - - 
Seeunder v, Kyamboo 
Seow Ah Seong, Boey Ah 
Sam V. ' - - - 
Shaik Ishmael Lebby, Reg. v. - 

Peroo, Haji Sahid v. - 

Rajah Alii, Nawas and 



anor. v. 
Sheik Hossain and ors., Reg. 
Shavoo, 



V. 

V. 



T. 

Tan Ah Fook Reg. D. - 
— Yeap and ors., v. - 



Tan Chuan, Oh Kan v. 
Jim Sin, Connor v. 



199 
167 
116 

161 

99 

79 

118 

98 

116 



43 
104 
126 
114 



IV 



TABLE OF CASES REPORTED. 



Tan Poh Keali, Reg. v. 
Sim Ho, V. 



• Tee V, Opium Farmer 
Sin Hap atid anor., Reg. v. 



Teh Tan Kiat, Ong Hong 
Jiow V. - - - 
Tek Wee v. Opium Fanner 
Thaivoo, Veramah v. 
Tioh Jee, Koh Boo An v. 
Tomby, Abbass v. - 
Towers v. Mustan and ors. 
Tuan Puteh v. Dragon - 



PAGE. 

. 154 

. 148 
174 
94 

189 
132 
117 
164 
131 
92 
87 



V. 



PAGE. 



- 122 



Vanjoor Mustan, In re - 
Velloo Pullay v. Kadier and 

anor. - - - . - 50 

Veramah v. Thaivoo - - 117 

Versay v* Mahomed Haniff - 79 

W. 

Warn v. Gaudart - - - 1 

Wee Lalah i;. Oh Kan - - 126 

Willans, Reg. v. - - - 16 



TABLE OF CASES CITED, 



A. 



Abdnllali, In tlie goods of . 
Attorney- General v. Noratedt 

"— V, Pearson 

' V. Stewart 

-— V. "Wilson 



Morton [Ind.] Rep. 19 
3 Price's Rep. 97 
3 Mer. 400 . 
2 Mer. 143, 102 
9 CI. (!t F. 355 , 



Page. 

19,29 

179 

34 
38 
34 



B. 



Baily v. Haines 

Baker, Ex-parte 

Bamford v. Turnley 
Bows V. Fenwick 
Brown v Cole 
Burmese v, Regina 



19 L. J. Q. B. [N. S.] 73 
• 26 L. J. M. C. 155, s.c. 7 E 

S.C.2H. &N.219 
■ 31 L. J. Q. B. [K S ] 28G 

9 L. R. C, P. 339 . 

14 Sim. 427, s.c. 14 L. J. [N. S.] Ch. 1G7 

7 Moo. Ind. App. 72 . 



79 

& B. 697, 

. 41, 190, 193 

85 

67, 68, 70 

188 

55 



Calvin's Case 






. 7 Rep, 10, 176 


21.22 


Campbell v. Hall 






1 Cowp. 204, 212 


21, 25 


Case V. Storey 






4 L. R. Ex. 319 


68 


Castro V. Regina 






6 L. R. App. Cases, 229 


183 


Clark V. Askew 






8 East, 28 . 


4 


Clarke v. Hague 






29 L. J. M. C. 105 . 


68 


Cowper V. Cowper 






2 P. Wms. 753 


28 



D. 



Dalrymple v, Dalr3nnple 
Dalton V. Mclntyre 

Day V. Day 

Doe d. Birthwliistle v. Vardill 
Doggett V. Cattems . 



2 Hagg. Consist. 59 . . .32 

1 Dowl. [N. S.] 76 . . . 121 

' 31 Beav. 270, s.c. 31 L. J. Cb. 

' [N. S.] 806 . . . . 188 

: 5 B. & C. 438, 2 CI. & F. 517, 

' 7 CI. & F. 895 . . . 34 

^ 34 L. J. [N. S.] C. P. 46, 159 . 67, 70 



E. 



Eastwood V, Miller . 



9 L. R. Q. B. 440 



. 68,70 



VI 



TABLE OF CASES CITED, 



Elkin V. Janson 
Enayet HooRsoin. Jn re 



, 13M. &W, 655 
, 11W,R. Cr. 1 



123 

87 



F, 



Fletcher v. Calthrop 
Freeman v. Fairlie 



6 Q. B. 880 
3 Meriv. 24 



44 
19 



G. 



Ganer v. Lady Lanesborough 

Giblin r. McMiiUen . 

Gokul Chund v. Shith Roshun Lai 



Peake, 18 

2 L .K. P. C. 317 . 

2 N.W.P.H. Ct. Rep. 82 



33 
363 
168 



I. 



Iswav Chandra Kurmaker v. Sital Dass 
Mitter .... 



I 8 Beng. L. R. App. 62 



168 



Jacobs V. Tarleton 



11 Q. B. 421 



79 



Keigliley v. Bell 
Khu Poh V, Wan Mat 
Koonjobebarry Lall v. Rajah Doomney 



4 Fos. & Fin. 763 
Straits L. R. 247 
11 W. R. Cr. 29 



57 
55 
73 



Lim Chye Peow v. Wee Boon Tek 
Lai Chand Roy, In re 



. Straits L. R. 282 
. 9 W. R. C. R. 37 



127 

79,80 



M. 



Marriott v. Hampton 

Mayor of Lyons v. East India Co. 

Mount V. Sclwood 

Mure V. Kaye 



Newman v. Bendyshe 

V. Hardwicke 

Nrlgendro Lall Chattel jee v. Okhoy 
Coomar Shaw ... 



Omichnnd v. Barker 

Opium Farmer v. Koh Boo An 



. 2 Sm. L. C. 356 [5th ed.] 

. 2Moo. P. C. 172 

. IQ. B. 726 . 

. 4 Taunt. 34 . . 


.• 188 

38 

88 

. 53,54,57,60 


N. 




. lOA. &E. 11 
. 8 A. &E. 1-^4 


119, 151 
. 119 


|'21W. R. Cr.59 


84 


0. 




. ISm. L. C. 381 

. Straits L. R. 278 . 


31 
. 119 



Peate v. Dicken 
Pedgrift v. Chevallier 
Peei'less, Be 
Pertreis v. Tondear 
Pitts V. Millar 
Proctor V. Manwaring 



TABLE OP CASES CITED, 


vu 


P. 




. 1C,M.&R.22 

. 29 L. J. M. C. 225 . 

. 1 Q. B. 143 . 

. lHagg.1,39 . 

. 9L. R. Q. B. 380 . 

, 3B. &Ald, U") 


48 

. 125 

. 153 

132 

150 



R. 



Regina V. Abdool 

V, Anderson . 

V. Bernard 

V. Bertrand . 

■ V. Bjosson 

V. Castro 

V. Cliotey Lai . 

V. Eaton 

V, Edwards 

V. Enayet Hossein 

V. Evans 

V. Fuidge 

V. Gaub Gorah Cacharee 

17. Girdhar Dharamdas 

V. Guttridge 

V. Hanson 

V. Hilditch 

V. Inhabitants of Hellingley 

V. Jenut Bebee 

V. Kejn 

• V. Lewis 

■ V. Martin 

V. Mentham . 

V. Pearson 

V. Pelfryman 

V. Ram Dyal Mundle 

V. Ramtobul Singb . 

V. Shaw 

v.Sheik Bazu 

V. SiU 



V. Surroop Chundra Paul 

V. Sui*wan Singh 

V. Thapoo 

17. Turner 

V. "Walton 

V. Willans 

17. Brampton . 

Rex V. Buckinghamshire Justices 

17. Cross . 

V. Kimberley 

17. Little 

V. Roderip 

17. Turner 

17. Ward 

17. White 

V. Woallen Park 

Rodyk V. Williamson 



■{' 



10 W. R. Cr. 23 


87 


1 L. R. C. C. R. 161 


. 153 


1 F. & F. 240 


. 54,55 


IL.R.P. C.520 . 


183 


34 L. J. M. C. 180 . 


. 55, 152 


6 L. R. App. C. 229 . 

2 N. W. P. H. Ct. R. 271 . 


ia3 


98 


2 T. R. 472 


121 


1 East 278 


153 


5 W. R. Cr. 43 


87 


9 Cox. C. C. 238, B.C. 32, L. J. 


M.C.38 80 


33 L. J. M. C. 74 . 


79, 98, 130 


8 W. R. Cr. 6 


71 


6 Bom. H. C. Rep. Cr. 


87 


9 C. & P. 471 


51 


[unreported] see Paley on C 


on. 123 105 


5 C. & P. 299 


79 


28 L. J. M. C. 167 . 


132 


1 W. R. Cr. 46 


168 


2 L. R. Ex. Div. 63 . 


153 


26 L. J. M. C. 104 . 


. 55, 152 


8 A. & E. 481 


. 117 


Oke's Mag. Sy. 223, note 23 


. 121 


5 L. R. Q. B. 237 


168 


2 Leach's C. C. 563 


51 


7 W. R. Cr. 28 


168 


5 W. R. Cr. 12 


99 


34 L. J. M. C. 


55 


8 W. R. C. R. 47 


62 


17 Jur. [0. S.] 22, s.c. 21 L. 


J. M. C. 


214, Dears. C. C. 10 


117, 135 


12 W. R. C. R. 85 . 


62 


11 W. R. Cr. 11 


168 


20 W. R. C. R. 37 . 


101 


5 M. & S. 206 


105 


32 L. J. M. C. 79 . 


117 


1 Mad. H. C. 31 


. . . 117 


10 East 282, 288 


20 


7 D. & R, 689. 1 B. & C. 485 


,' s.c. 3 Nev. 


& M. 68 . 


53 


3 Camp. 224 . 


85 


2 Str. 848 


. 53,59 


1 Burr. 610 . 


. 142, 149, 150 


7D & R. 861, 5 B, & C. 239 


53 


5 M. & Sel. 206 


125 


7 Cox C. C. 421 


135 


1 Burr. 333 . 


85 


2 Hale P. C. 71 


54 


[Malacca case — not reportec 


i] . 36 



viil TABLE OF OASES OITED. 

S. 

Sandiman v. Breach . . . 7 B. & C. 96 . . . 48 

Score V, The Lord Admiral . . Parker, 273 ... 179 

Shaw V. Morloy . . . . 3 L. R. Ex. 137 . . .67, 70 

Shristadhar Parol v. Indrobhosun ^n-oir-Dn.o- ipq 

Chukerbutty . . . J U W. R. Or. 2,> ... 168 



Tara Duss Bhuttacbarje v. Blialoo Sheik . 8 W. R. Or. 69 . . . 71, 73 



W. 

Wan-endor v. Warrendcr . . .9 Bligh [N. S.] 89, s.c. 2 C. & P. 488 33, 57 

Watson V. Martin .... 3t L. J. M. C. 50 , . 145,147 

Webster v. Mason . . . .8 Dowl, 705 . . . .52 



CASES 

HEARD AND DETERMINED 

' IN 

HER MAJESTY'S SUPREME COURT 

OP THE 

STRAITS SETTLEMENTS, 

180 8—188 4. 
VOLUME m. 



[Magisteatbs' Appeals.] 
WAEN V. GAUDABT. 

The Court of Requests has jurisdiction to adjudicate on a case, where the debt 
orijifinally exceeded the limitod amount, but has been reduced below it, by part- 
payment, — the Statute of Limitations, — or the infancy of the contractor : and the 
reason for this is, because these defences go to the root of the claim and operat.e to 
the disaffirmance of the debt, and although a larger sum may become the subject 
of enquiry, yet the whole existing debt, is within the necessary amount. 

Such original debt, however, to which there is only a partial defence as a set- 
off or tender, is not within its jurisdiction, as it is optional with a defendant 
whether he will avail himself of the defence or not, and until he does so, there is 
wo eotisting debt within the necessary amount. 

The general principle for deciding whether a defence is to be taken as part- 
payment or set-off is, to ascertain whether, by the course of dealing between 
the parties, the items of their respective accounts are to be set against each other, 
and any monies or the value of goods received by the one are to be treated as made 
in liquidation of the other's account — or whether no such course of dealing exists, 
and the transactions are substantially unconnected and distinct. In the former 
case, the dealings will operate as a part-payment, and any balance on the account, 
under the limited amount, will be within the jurisdiction of the Court of Bequests 
— in the latter they will be mere matter of set-off, optional to the defendant, and 
will not be within such jurisdiction. 

The clause in the Charter of 1826, relating to the " debt, duty or matter in 
dispute" triable before a Court of Requests, must be read riddendo singula singulis : 
and the words '* matter in dispute" mean, the thing claimed and denied, and not 
anything which may come incidentally in question, and has not the same meaning 
as the previous word " debt/' The word "debt," applies to cases where there is 
a definite sum due, within the limited amount, and the words *' duty or matter in 
dispute," to the unspecified class of other suits and causes of small amount, to 
which the power of the Court also extends. 

This was, an application in the nature of an appeal, from the 
decision of Mr. Wright, the Commissioner of the Court of 



Penako. 

Malkin, R. 
1834. 

April 21. 



2 MAGISTRATES* APPEALS. 

Malkin, E, Eequests, Penang : the matters nrivinprrise to it, and the questions 
^^* raised therein, sufficiently appear in the judgment. 
Warn 

V. 

Qaudaet. 

Cur, Adv, Vult. 



Caunter for the appellant [plaintiff.] 
Respondent [defendant] in person. 



April 28. Malhin, R. This was an application arising out of 
an action in the Court of Commissi( ners for the recovery of small 
debts, in which the Commissioner had non-suited the plaintiff, 
considering the subject matter of the action to exceed the limit- 
ation of the authority of tliat Court. The action is represented to 
have been for a balance of account, the sum sought to be recovei?- 
ed being within the authority of the Court, but being the balance 
of an account of greater extent, and in which some of the items' 
individually exceed the limitsd sum. There appears to have been 
no regular statement and adjustment of an account, so as to 
furnish a completely new cause of action on an account stated^ in 
which case, no doubt seems to have been entertained that the 
power of the Court would apply ; but it is said on the part of the 
complainant, that he could have produced evidence to show some 
acknowledgment of a balance, and that evidence was not. received. 

If it were necessary to examine minutely into what took 
place on the hearing, more information w^ould undoubtedly be 
required, and a more regular manner of proceeding ought to be 
adopted, before this Court can make an)^ binding order upon the 
Commissioner of the Court below ; but as it appears obviouslj^, 
that the only proper eourse of proceeding — if the Commissioner 
made no error in adjudicating on the case, but had merely refused 
to hear it on a mistaken notion tliat he was not empowered to do 
so, — would be to remit it to him for hearing, the most convenient 
course for me to adopt will be to express my opinion ^s to the 
jurisdiction of the Inferior Court, and that the case should be 
taken back there, by the consent of the parties, if on hearing that 
opinion, the plaintiff should think it desira.ble to do so. It will 
be seen by my giving the plaintiff that power of choice, that I 
think he is, at all events, entitled to some further investigation ; 
but it will be a question for him, whether he will desire it, because 
it is possible that upon investigation, the Commissioner might 
finally come to his original conclusion that the case is beyond his 
authority. Whether he ought to do so or not, depends entirely 
on circumstances with respect to which, I am completely unin- 
formed. 

The general question involved in the case, is one of great im- 
portance, as it affects the general practice of the Inferior Court, 
and it is undoubtedly one of much difficulty, as similar questions 
have very frequently come before the Courts in England, and 
have occasioned a series of very inconsistent and conflicting deci- 
sions. The Court of Requests Acts in England, generally contain 
provisions mulcting parties in costs who bring actions in the 
Superior Courts, which might and ought to have been brought in 
those of lower jurisdiction ^ and except in a particular and veiy 



STRAITS SETTLEMENTS, 



d 



questionable class of cases, where the Judges have claimed a dis- 
cretionary power of refusing to give or take away costs, in cases 
which, in tbe result, might have been tried in the Inferior Court, 
but the plaintiffs did not nppear to have acted vexatiously in 
choosing to proceed in the Superior. The decisions as to liability 
to costs, are substantially decisions on the jurisdiction of the In- 
ferior Courts. In the Court of King's Bench, those decisions 
have been generally in favour of that jurisdiction, in the Court of 
Common Pleas against it. I am not aware of any in the Court 
of Exchequer. In such a conflict of authority, it is of course ne- 
cessary to examine into the principles on which the decisions are 
founded, although, if the questions were to depend on authority 
merely, T should say that^ with reference to the particular times 
at which those questions were decided, and to certain inaccuracies 
of argument which, without entering into any minute detail, im- 
peach the authority of some of the Common Pleas cases, I should 
consider the authority of those decided in the King's Bench as 
more binding. 

The general principle on which the King's Bench seems to have 
acted is this, — that the object of the institution of those Inferior 
Courts is to give a cheap and easy remedy for all claims of trivial 
amount, except in certain cases where, by the express provisions 
of the Statutes^ claims which might have a material collateral 
opemtion as furnishing evidence of the title to land, &c., are ex- 
cepted from their power. Difficult and perplexing questions 
may arise in matters of small as well as large amount, and the 
principle of all such Courts is, to run the risk of a less correct 
judgment for the sake of having an earlier and cheaper decision, 
in cases where, from the trivial nature of the claim, a tedious and 
expensive process^ is a greater evil than the danger of a less ac- 
curate result. This argument evidently applies to difficult as well 
as to easy questions : the greater indeed the difficulty of a particu- 
lar class of investigations, the greater is the evil of submitting 
them to a less skilful tribunal, but it is a question only of degree, 
and does not affect the nature of the argument, though it might, 
in certain instance3, produce a different opinion as to the balance 
of inconvenience. 

The Court of Common Pleas seems to have been principally 
impressed with the inconvenience of allowing claims not original- 
ly the subject of the jurisdiction of the Court of Eequests, to 
bocome so, at least to the extent of enquiring into them collater- 
ally ; and Eyre, C. J. in particular says, it would be allowing 
them to examine into the most intricate questions of mercantile 
accounts. In certain cases it miglit ; but still the question recurs, 
if the whole claim in existence at the time of the litigation is 
^vithin the limited amount, is not the party entitled to just as 
cheap and summary a remedy in those cases as in any other ? The 
a':lvantage is as great, and the mischief of a wrong decision is no 
greater. 

It seems to me, that these arguments of inconvenience do not 
furnish any sufficient answer to the reasoning of the other side, or 
t3 the words of the Statutes, Charters, &3., which empower the 



MiLsnc^B. 
1834. 

Warn 

V. 

Gauoabt. 



4 MAGISTRATES* APPEALS. 

Malkin, E. different Courts in question ; and an examination of the different 

^^^ cases -which have boen deciderl, [without any question arising,] 

Warn seems strongly to confirm the doctrine that whenever the whole 

V. claim in existence at the time of the action brought is within the 

Qaudart. limited amount, the Inferior Courts have jurisdiction. Without 
entering into detail, it has been decided in cases quite independ- 
ent of the phraseology of particular Statutes, that a debt original- 
ly exceeding the amount, but reduced below it by part-payment, — 
by the circumstance that part of it has been barred by the opera- 
tion of the Statute of Limitations — or by the infancy of the Con- 
tractor, — is within the authority of the Coui-t of Requests. And 
why ? Because although a larger sum may become the matter of 
enquiry, the whole existing debt is within the necessary amount. 
On the other hand, a debt to wliich a partial defence exists by 
reason of set-off or tender, is not within the authority of the 
Courts. The princij)le of this distinction in cases of set-off is 
so clearly explained by Sir Vicary Gibbs, Attorney-General, in 
Clarh V. A shew, 8 East 28, that I will only read his argument, and 
refer fui-ther to the circumstance that it required a Statute to 
admit set-off as a defence at all. He says : 

" Where the plaintiff's demand is reduced below 4^s. by means of a 
" set-off arising from a different account, the plaintiff's (icbt is still above 
" 40.O., and till plea pleaded, it is uncertain whether the defendant will avail 
" himself of his set-off : and if the plaintiff only brought his action for the 
" balance, the defendant not availing himself of his set-off, the plaintiff 
" would be concluded. But here the plaintiff's deht was reduced below 40«., 
" by actual payments on account, before the action brought." 



The case of tender is equally clear of explanation, for the 
plea of tender admits, instead of denying the debt ; the money 
tendered must be brought into Court, and is taken out under the 
authority of the judgment, and the whole proceeding goes merely 
on the principle of preventing vexation on the part of the plaintiff, 
not on the disaffirmance of the debt. 

On the whole therefore, I think that whenever there is no 
deht beyond the limited sum, the Commissioner ought to enter- 
tain the case ; and this will practically be the same question as 
whether in this Court, according to our rules of pleading, any 
plea of tender, set-off, &c., would be required in any particular 
case. This question would sometimes be a difficult one, for the 
distinction between matters of account and payment, and matters 
of set-off, often requires much nicety of appUcation to the facts 
of a case. 

The general principle however is clear; whenever by the 
course of dealing between the parties, the items of their respective 
accounts are to be set against each other, and any monies re- 
ceived, or the value of any goods disposed, are to be treated as 
payment or liquidation of any counter-claim, then it is account 
and not set-off ; the balance of the account is the whole debt ex- 
isting, and no more could be recovered in any Court except by the 
negligence of the defendant, and the Inferior Court has therefore 
jurisdiction. When, on the other hand, no such course of deal- 



STRAITS SETTLEMENTS. 



substantially unconnected, Malkin, E. 

- - - - 1834. 



ing exists, but the transactions are 

then although the defendant has the privilege of using his 
counter-claim as a matter of defence, it is at his option to do so 
or to refuse it ; the debt therefore is the whole amount ever due to 
the plaintiff, although he may be unable to recover it all, if the 
defendant objects in a proper manner, and it is therefore the pro- 
vince of the Superior Court only, to entertain the case. 

It remains to enquire whether there is anything in the estab- 
lishment of the Court of Requests here, to render those general 
principles inapplicable to it, and it seems to me that there is not. 
The Charter empowers, and the Proclamation effects, the erection 
of a Court for the recovery of debts, and the trial and determin- 
ation of Suits, whenever the "debt, duty or matter in dispute" 
shall not exceed the vahie of thirty-two dollars. The only argu- 
ment that can be raised out of this is, that on the constructi(m 1 
have given to the authority of these Courts, matters of more than 
thirty-two dollars value might be in dispute, and the subject of 
examination, though the whole recovery was wdthin the amount. 
I do not however think this argument available, and this for two 
reasons — I have no doubt that " matter in dispute" means the 
thing claimed, and denied, and not anything which may come 
incidentally in question, and I am of opinion also that the phrase 
" matter in dispute" has no resemblance at all to the " debts'* 
"which come in question, but applies only to the unspecified class 
of cases of small amount, to which the power of the Court ex- 
tends. The clause is to be read riddendo singula singulis^ a Court 
with full jurisdiction for the recovery of debts where the debt 
shall not exceed the value of thirty-two dollars, — and for the trial 
of other suits and causes [a], where the duty or matter in dispute, 
is within the same limitation. 

On the whole therefore, the case had better be returned by 
the consent of parties, to the Court of Requests, for the Commis- 
sioner to examine, — not whether there has been a regular and 
final settlement of account, which would give a perfectly new and 
available cause of action even though the dealings of the parties 
had not been originally matter of account at all, — but whether 
there was a current account between them at all, or a set of dis- 
tinct and independent transactions. In the latter case, the plain- 
tiff cannot, by now choosing t) give credit for some of them, 
alter their nature ; if on the other hand they are really connected 
and the balance is the whole debt, the Commissioner should pro- 
ceed with the investigation. Mr. Warn will, of course, not apply to 
the Commissioner to procead further with the case, unless, in his 
way of viewing it, the latter is the real history of his dealing with 
Mr. Gaudart. [b] 



Warn 

Gaudart. 



[a] Partnership suits, &c., quoere ? iSfee Maxwell's PracHoe of the Couri of Re* 
quests^ p. 16 ei seq, 

[6] 8ce uow Act XXIX. of 1866> and Ord. 3 of 1378. ss. 1, 53, 54. 



Malacca. 

NOBBIS, K. 

1840. 
Dec. 10. 



a MAGISfRATES' APPEALS. 

EDWARDS V. EAST INDIA Co. * 

It is no ground for excluding the testimony of a witness that he has been pre- 
sent in Court, and heai'd the evidence given by other witnesses ; such a fiict goes 
merely to the credibility of his evidence, but not to its admissibility. 

A Magistrate is not legally justified in allowing a prosecution for breach of 
the Revenue Regulations to be withdrawn, since the offenc3 is not of a private 
nature. 

A Magistrate has power, after hearing out a case, to adjourn same to consider 
his decision. 

Where the information and summons against the appellant charged with an 
offence under Section 11 of the Revenue Regulations of 1830, 

Held, a conviction for an offence under Section 5 of such Regulations — with 
which he was not charged, nor informed of, — could not be sustained, [a] 

This was a proceeding by Certioram : the facts and questions 
connected therewith fully appear in the judgment. 
The parties appeared in person. 

Cur, Adv. Vult. 

December 12. NorrisyTA. This is a" conviction" by two Magis- 
trates, Messrs Minjoot and Oxley, on the 7th September last, of the 
defendant, for an alleged breach of the Spirit Farm Regulation, 
No. V. of 1830, section 5, in having retailed on the 9th May last 
one pint of brandy, and on the 8th June last one bottle of port 
wine, without a regular license ; and the proceedings having 
been brought before this Court by a Writ of Certiorari on tlie 
defendant's affidavit on tlio 10th instant, when he was heard 
in support of his motion to quash the conviction, as contrary 
to law; I will now give the .judgment of the Court. This might 
be done in very few words, as there is no great difficulty in the 
main question ; but as many objections were raised by the 
defendant, it is right that each of these should be adverted to, 
and there are, besides, circumstances connected with the case 
which cannot properly be left unnoticed. The first objection 
urged by the defendant was, that the witness Crummy was 
heard, although present in Court during the examination of 
the Informer Smith, and this, notwithstanding the defend- 
ant's protest against the admissibility of such evidence. It 
appears in the face of the proceedings that the objection 
was not made until after Crummy's deposition had been 
taken, in which case it was too late. But allowing it to 
have been made in time before the witness was sworn, still it 
would amount to nothing. Crummy's having been present in 
Court and heard what Smith had said did not render the former 
an incompetent or inadmissible witness, though it might affect 
his credit ; but of that the Magistrates were the sole Judges, nor, 
if the case depended upon that single point, would this Court in- 
terfere with the conviction any more than it could overrule the 
verdicb of a Jury on any question of mere fact. The next objec- 
tion was, that one of the Magistrates, Mr. Oxley, refused to be 



* Coram : Norris, E. and Garling, Rest. Councillor. 

[a] See ucw Ord. 6 of 1S73^ £s. CO, 61 & (2, where this can le c'one in certain 
cases.-J, W. N. K. 



STRAITS SETTLEMENTS. 



Co. 



examined and to give evidence which was material to the defence : Norris, R, 
but it was clear from the defendant's own shewing, when urging ^8^- 
in support of the objection, that the evidence intended to have ed^a-rds 
been elicited related solely to the alleged practice of the Magis- v. 
trate and other gentlemen in supposed breach of the Regulation ; East India 
a point wholly immaterial since one offence cannot justify 
another, and tlierefore such evidence as the defendant was neither 
entitled to call for, nor the Magistrates bound to receive ; another 
objection was, that although the Informer Smith, who was entitled 
to a moiety of the penalty, had expressed a desire to withdraw the 
prosecution, and confessed that it had originated in revenge, the 
Magistrates would not allow the matter to be compromised. The 
correctness of this statement was denied by the Magistrates, but 
admitting it to have been true, the offence charged was not of a 
private nature or such as it is quite clear the Magistrates would 
have been legally justified in allowing to be withdrawn. A fourth 
objection was, that as the Eenter was the only person injured by 
the alleged offence, ho alone was entitled to prosecute. 

There might perhaps be some plausibility in this, with refer- 
ence to other sections of the Regulation, but it is at least inappli- 
cable to section 5th, the one under consideration ; for the num- 
ber and situation of the retail Spirit Shops being left not to the 
Renter, but to the Governor in Council, as an obvious matter ot 
Police Regulation for the public peace and good order, any infrac- 
tion of the Regulation in that respect is a manifest injury to the 
public. Again, it was urged, that the Renter being the only 
possible sufferer may waive his exclusive rights and sanction as 
many sub-retailers as he may see lit. But this argument also, 
however opposite with reference to the 11th Section of the Regu- 
lation, or rather to the provision substituted for it by Regulation 
X. of 1833, is inapplicable to the section now in question. It was 
further objected, that the conviction should have been immediate, 
and that the Magistrates were not justified in postponing their 
decision. This question does not appear to have been settled by 
any express judgment of the Superior Courts in England; but 
Chitty, wiiose authority in points of practice is great, con- 
ceives that a ]\lagistrate may take time to consider of his 
decision, and even without this authority I should not hesitate, 
with reference to the peculiar circumstances of this Settlement, 
and the ambiguities of the Revenue Regulations, in coming 
to the same conclusion. The next and most material objec- 
tion was the variance, which is undeniable between the ori- 
ginal information and summons, and the conviction — the former 
stating an alleged breach of the lltb section of the Regu- 
lation and the conviction being for an alleged breach of the 
5th Section; the former a-so stating a single breach on the 
8th Jane, the latter being for two distinct breaches on the 9th 
May and 8th June. The defendant could only have come prepared 
to answer the charge in the summons, and the answer would have 
been complete that the 11th section had been repealed by a subse- 
quent Regulation. Whether this objection was taken by the 
defendant, does not appear in the proceedings, although the charge 



Co. 



8 MAGISTRATES' APPEALS. 

NoRRiB. R. on that section was abandoned ; but there is nothing to shew that 

^^^' the defendant when brought up was made sufficiently aware that 

Edwabds ^^ "w^^ then charged with a different offence, viz., a breach not 

V, of the 11th but of the 5th section ; for the offences are different, 

East^ India q^^^ ^}^q ^^^ section is referred to for the first time in the convic- 
tion itself on the grounds last stated, therefore, viz,, the variance 
between the original information and the conviction, and the want 
of distinct notice to the defendant of the precise offence with 
which he was charged, I should say that the conviction could not 
be sustained, even were there no other sufficient reasons for set- 
ting it aside. But there is a much stronger ground for quashing 
the copviction, though it was not I believe touched upon by the 
defendant ; and that is, that the acts committed, supposing the 
information to have been perfectly clear and regular, do not 
amount to a breach of the 5tli section as stated in the conviction. 
And I have the less hesitation in declaring this, as I am afraid 
the Magistrates were in some degree misled by myself, though in 
my own justification I must say that I had myself in the first 
instance been partially, but I am sure unintentionally misled by 
them. I am not unf requently called upon to explain portions of 
the Revenue Regulations, and I feel that under the peculiar 
circumstances of the place, 1 should not be justified in withholding 
my opinion whenever asked ; for I don't know where else the 
Magistrattes are to look for a solution of their difficulties. The 
expression of my private opinion does not deprive parties of their 
remedy by appeal or Certiorari, and the worst that can happen is, 
that I may occasionally be wrong, and exposed to the mortification 
of expressing in open Court an opinion not altogether consistent 
with what I may have expressed elsewhere. Of the terms of the 
original Information and Summons in this case, I knew nothing 
until the day before yesterday, and the questions submitted for 
my opinion were in the following terms : '^ The question that 
" arises therefore, is simply this — is the Government entitled by 
"the Regulations to limit the number of spirit shops? and, 
" if so, are not all shops where brandy or other liquors are retail- 
" ed over and above those fixed by Govemment and duly regis- 
" tered, unlicensed shops and fineable under the Regulation" ? 
Now I conscientiously believe that the Magistrates supposed these 
to be the only questions for decision, and as I too hastily took it 
for granted that they were, I immediately answered them in the 
affirmative ; — and so far as these questions were concerned the 
opinion which I expressed was, with one qualification, right in the 
main though wrong as applied to the particular case. It is true 
a copy of the evidence [though not of the original information] 
was sent to me at the same time. But as the Magistrates had 
themselves failed to perceive the real qestion, so by the 
mode in which the case was brought before me, I was 
myself in some measure blinded, though I ought n,ot to 
have been, and I am sure that there was no intention to 
mislead me. I must say too, in justice both to the Magis- 
trates and to myself, that the scarcity of these and indeed 
of all the GovernrnQut Regulations, and the difficulty of 



Co. 



STRAITS SETTLEMENTS. 9 

obtaining a complefce copy [I have none myself, that of the Court Noebib, R. 
at Penang is imperfect, and I was obliged to borrow one for the ]^' 
occasion], — ^has long formed a subject of a just complaint ; and it Edwaeds 
is no wonder therefore that Magistrates and individuals should v. 

occasionally be misled. The very limited number of copies, East India 
especially of the Revenue Regulations, would be a hardship even 
were they models of perspicuity and precision, but the hardship 
is increased by the acknowledged difficulties and obscurities with 
which they abound. Unless, therefore, it be in contemplation to 
revise the whole as has been recommended, a reprint is urgently 
called for. But to return, the real question in the present case 
is, whether [admitting the general right of the Government under 
the Regulation to limit the number of retail spirit shops, and the 
penal liabilities of unlicensed retailers] the selling of a bottle of 
Wine or Brandy at an unlicensed house or shop falls within the 
prohibition expressed or implied of the 5th Section of the Regu- 
lation ? and I am clearly of opinion that it does not. The words 
in the 6th Section, it is true, are very comprehensive. The 
number of Houses to be appropriated " for retailing spiritwjus 
liquors,^^ &c., and the marginal abstract of the preceding section is 
still more indefinite. " Liquors in less quantities," &c., so that, at 
first sight, both sections might seem to include spirituous liquors 
of all kinds, and the fourth Section to include Wines also. But 
on comparing section 5th with the language and general scope 
of the two sections, preceding it, the one immediately following it, 
and the last section of the Regulation [sections 3, 4, 6 & 23] all 
which expressly and exclusively relate to ^'Asiatic Spirituous 
Liquors," it is clear to my mind that the more general expres- 
sions of the 5th section were not intended to have a more general 
operation, but must with reference to those other sections be con- 
strued to mean " Asiatic Spirituous Liquors" and none other. 
This is further apparent from sections 9, 11, 15 & 16, which 
contain particular provisions with regard to wines, and European 
as distinguished from Asiatic Spirituous Liquors. On the whole, 
then, it is manifest, that in whatever light the acts imputed to the 
defendant might be viewed with reference to the Regulation 
No. X. of 1833, the present eonviction cannot be sustained, and it 
is accordingly quashed. 

Conviction quashed, [a] 

[a] TKere are several points decided on this appeal, which are not abstracted 
into head notes, as turning on Regulations which have long since ceased to be law. 
The case also, as matter of history, shews, that the Recorders used in former 
days to act as private legal advisers to the Magistrates, though expressions of 
opinion then given, were not binding on them, when they sat as Judges of Appeal 
—on this point see Preface i Sfc.y Vol. I. of these Reports, p. Ixxxv and also foot- 
note at the end of the decision of the same Recorder in East India Co, v. Scott ^ 
Civil Cases, Vol. I. of these Reports, p. 51. 



10 



MAGISTRATES' APPEALS. 



MTMOONA V. MAHOMED. 

PsNANa. A plaintiff sued a defendant in the Court of Requests, for money lent to the 

defendant, in order to help her in distress during her husband's illness, and obtain- 

NoBRis, E. ed judgment against her. On appeal, this Court refused to interfere with the de- 

1841. cision, although the loan was made to the defendant, a married woman, during her 

husband's lifetime, and since his death neither she nor any one else had taken 

August 13. administration to his estate. 

This Avas a' proceeding before W. T. Lewis, Esq., the 
Commissioner of the Court of Requests^ brought up into this 
Court by Certiorari. The Commissioner had ordered the appel- 
lant Mymoona, the defendant in his Court, to pay a sum of 
§11.75 for money borrowed from the said respondent on account 
of distress through her husband's illness. The appellant denied 
that she knew the plaintiff or that she ever borrowed any money 
from him, but admitted that the debt was due by her husband, 
and now appealed inter alia on the ground that she was wrongly 
sued, inasmuch as she, nor any other person, had yet taken out 
Letters of Administration to the estate of her late husband. 

The Appellant appeared in person. 

The Respondent did not appear. 

Norris, R. — The appeal in this case is refused, and the Court 
is glad to defeat an unconscientious endeavour [even in so small 
a matter] to resist an equitable claim on the ground of a legal 
informality. The petitioner, it is plain from the evidence, had 
the benefit of the charitable loan, — it was advanced apparently 
in simple reliance on her integrity, — and she has since her hus- 
band's death admitted her liability, by promising to repay the 
amount. I say since, for the conversation mentioned by the plain- 
tiff's second witness may justly [after the decision of the Court 
below] be presumed to have been the same as that referred to by 
the defendant's own witness, which was only " four or five days '* 
before the hearing. 

. Appeal refused. 



LIM BEH & OES. v. OPIUM FARMER. 



Penang. 

NORRTP, E. 

184?. 
January 5. 



The doubtful meaning of a Ecgulation or Act, or the inability to reconcJle 
two apparently contradictory clauses, or uncertainty as to v/hether the alleged in- 
fringement is of any one or more particular sections, does not excuse a Magistrate 
from stating in the record of conviction, the particular clause or section of the 
Eegulation or Act alleged to be infringed. 

A conviction for '* infringing the Opium Regulation" is uncertciin and bad, 
and will, on appeal, be quashed. 

General observations on duties of Justices of the Peace and the construction 
of their convictions. 



Penang, 



This was a proceeding before two Magistrates of 
Messrs. Lewis and Nairne, wherein they convicted the appellants 
of breach of the Opium Eegulations — and which, on application 



HER. 



STRAITS SETTLEMENTS. 11 

of the prisoners, the appellants, — was brought up into this Court, Nobbis, E. 

by Certiorari. |f^' 

J. R. Logan, for appellant. L,^ B^h 

The Respondent in person. & obs. 

Cur. Adv. Vult. ^ ^v^ 

Opium Fab- 

January 11. Norris, R. The proceedings in this case iave 
been removed into this Court b}"^ a Writ of Certiorari granted on 
the affidavit of the 1st defendant setting forth various grounds 
of objection involving for the most part, questions of a large and 
general nature, but which, for the present purpose, it is unnecessary 
to discuss, because upon the face of the proceedings, without going 
further, there is quite enough to warrant this Court in setting them 
aside. The judicial proceedings of Justices of tlie Peace in Eng- 
land, are subject to the control of the Court of King's Bench and 
of common right removable into that Court b}*^ Certiorari, unless 
where that remedy has been expressly taken away by particular 
enactment. The Charter [page 49] provides that all the Justices 
of the Peace, &e., within this Settlement, shall be subordinate to 
and all their acts and proceedings shall be liable to be enquired 
into, annulled, corrected and dealt with by this Court and by the 
like methods and process as near as may be, as all inferior Crimi- 
nal Courts, Justices, &c., are subordinate to H. M. Court of Kinp;'s 
Bench in England, and there is no special enactment, that I am 
aware of to take away or abridge this control in cases like the 
present. So that of the Court's power to deal with these pro- 
ceedings I have no doubt, whatever may have been said or 
thought to the contrary. Nor is it less certain that " common 
sense,^^ on Avhich no two men can agree, is not the only oracle to 
be consulted by Justices of the Peace here, any more than by 
Justices of the Peace in England, both being alike bound by the 
tenor of their Commissions and their oaths to conduct their pro- 
ceedings, not only " after their cunning, wit and power," but also 
" after the Laws and customs of England and Statutes thereoj 
made.^^ I do not say this reproachfull}^ or from entertaining any 
idea that the Magistrates here are less competent or less conscien- 
tious than Magistrates elsewhere, but because a vague notion has, 
I believe, occasionally obtained in these Settlements that the 
summary decisions of the Magistrates are conclusive, and that 
they have no need to trouble themselves with forms, but have only 
to decide according to conscience and the best of their nnder- 
standing. It being clear then, that the proceedings of the 
Justices of the Peace are subject to the control of this Court, and 
that they must be conducted like tho^e of the Justices in England 
according to certain rules — rules prescribed by Law and indis- 
pensable to justice — the question is whether those rules have 
been sufficiently observed in the present instance. Now in Burn^s 
Justice, which is or ought to be in the hands of every Magistrate, 
the law with regard to summary convictions in general, is very 
clearly stated as follows : 

'• The power of a Justice of the Peace to convict an offender in a sum- 
" mary way without a trial by Jury is in restraint of the Common law, and ia 



12 MAGISTRATJES' APPEALS. 

NoRBis, E. " abundance of instances a tacit repeal of that famous clause in the G-reat 
1842, " Charter, that a man shall be tried by his equals ; which also was the Com- 

" mon law of the land, long before the Great Chai-ter, even from time im- 

LiM Beh « memorial, beyond the date of histories and records. Therefore generally 

& OBs. «» nothing shall be presumed in f aror of this brancli of the office of a Justice 

- ''• " of the Peace ; but the intendment will be against it. For which reason this 

Opium jj ab- «, special power is given to a Justice of the Peace by Act of Parliament, it 

MEB. 44 must appear that he hath strictly pursued it ; otherwise the Common law 

" will break in upon him, and level all his proceedings. So that where a trial 

" by jury is dispensed withal, yet he must proceed nevertheless according to 

" the course of the Common law in trials by juries, and consider himself only 

" as constituted in the place both of Judge and Jury. Therefore there must 

" be an information or charge against a person; then he must be summoned 

" or have notice of such charge, and have an opportunity to make his defence ; 

" and the evidence against him must be such as the Common law approves of, 

" unless the Statute specially directed otherwise ; then if the person is found 

" guilty, there must be a conviction, judgment and execution, all accordin*^ 

" to the course of the Common law, directed and influenced by the special 

** authority given by the Statute ; and in conclusion, there must be a record' 

" of the whole proceedings, wherein the Justice must set forth the particular 

** manner and circumstances, so as, if he shall be called to account for the 

" same by a Superior Court, it may appear that he hath conformed to the 

** law, and not exceeded the bounds prescribed to his jurisdiction. 

" The difficulty of drawing up a conviction in due form hath induced the 
" legislature to institute a more apt and compendious method in divers 
" instances. These summary forms of conviction, which are specially directed 
" by Act of Parliament, are interspersed throughout this book under the titles 
" to wMch they respectively belong." 

Dr. Burn then gives a " general form of conviction," which 
may easily be adopted in all material points to any conviction in 
these Settlements ; supposing the words of the Regulation or Act 
under which the conviction is had, are in themselves clear. I 
am aware, however, and most people are aware, that the interpre- 
tation of the Eevenue Regulations of these Settlements is fre- 
quently a matter of difficulty, and therefore it cannot occasion 
surprise should the Magistrates sometimes feel themselves at a 
loss. Bnt the innocent ought not to suffer, nor even the guilty 
be convicted, because a Magistrate, doubtful of the precise mean- 
ing of a regulation, unable to reconcile two apparently contradictory 
' clauses, or uncertain whether the alleged infringement is of this 
or that particular section, chooses to avoid the difficulty by 
shaping the charge and the conviction in terms so general as to 
include any supposable breach of any section or clause whatever. 
Yet such has been done in the present instance. The defendants 
are charged in the most general terms with " infringing the Opium 
Regulation.'^ It is almost needless to say that the defendants were 
not legally bound to answer a charge so vague and undefined ; 
for, if there be any one principle of criminal law and justice clear- 
er and more obvious than all others, it is that the offence imputed 
must be positively and precisely stated, so that the accused may 
certainly know with what he is charged, and be prepared to answer 
the charge as he best may. Most of the Magistrates here are from 
time to time called upon to serve as Grand Jurors in this Court, 
and there is not one of them probably, but would in that capacity 
be shocked at the bare notion of finding a Bill, simply charging 
the accused with aviolatipn of the general Criminal Act, 9th Geo, 



MSB. 



STRAITS SETTLEMENTS. 13 

IV., c. 74, whicli comprehends every grade of crime against person Nomais, B. 
and property, from common assault and petty larceny to tbe most 
aggravated species of rape, robbery and murder — and if such pre- Lim B«h 
cision and certainty be undeniably requisite in the higher Court, & ors. 
where the accused has all the advantage of a trial by Jury, ^ ^'fab- 
a/or^iori should these indispensable requisites be observed where 
he is deprived of that great benefit, namely in the proceedings of 
Magistrates iu cases of summary conviction : an argument which 
should carry additional weight from the consideration, that the 
majority of the Judges of the higher Court are, like the Magis- 
trates themselves, not lawyers by profession. Again it is equally 
clear in principle and from authority of many decided cases, that 
the conviction or adjudication to be of any avail must correspond 
with, and be no less definite and precise than the information and 
charge. In the present instance the charge or information itself 
being invalid, on the ground of uncertainty, the conviction and 
adjudication, if couched in the same general terms would, of 
course, and for the same reason, be equally invalid. But the re- 
cord in this case doe^ not mention any adjudication whatever, 
the sentence of the defendants to a fine of 200 Rs. each immedi- 
ately following the statement of the evidence. Nor can this uncer- 
tainty in the information and conviction be remedied in this 
Court by any stretch of inference or intendment. For, independ- . 
ently of the general principle, above stated, that presumption 
and intendment will be hostile and not favourable to this branch 
of the Office of a Justice of the Peace ; this Court has no means 
by which from anything appearing on the record, it could venture 
with any degree of assurance to guess at the precise charge and 
conviction which might have been intended. If, on a review of 
the evidence, this Court should consider that it all clearly point- 
ed to one particular section, still it could not feel satisfied, but that 
the convicting Magistrates might have conceived it to relate ex- 
clusively to another and very different section. And the amount 
of the penalty would afPord no better clue to the particular section 
intended, since penalties to the same amount are imposed in half 
a dozen different sections. On the whole then, for the reasons 
above stated, it is unavoidable that the conviction must be 
regarded as invalid, and it is accordingly quashed. 



REGINA V. MEERA LEBBY. 

Section 36 of the Conservancy Act XIV. of 1856, has no application to the case Pknanq. 

of a house erected before that Act was passed, but the roof of which is renewed - 

with inflammable materials, subsequently to that Act coming into operation. Maxwell, R, 

1857. ' 

The defendant was convicted by Thomas Braddell, Esq., October i. 
Magistrate of Police, Penang, of having " made the external roof 
" of his hut in Prangin Eoad, George Town, within the limits 
" specially defined by the Municipal Commissioners of the said 
'' Station with inflammable materials, to wit, attap leaves, contrary 



14 IMAGISTRATES' APPEALS. 

M1XWELI..E. « to Section 86 of the Conservancy Act No. XIV. of 1856, and 
1857, « ordered to remove his roof within five days, and in default to pny 
Eeo. " 5 rupees for each day the roof was allowed to remain." 

V. The Section in question enacts, that " the external roofs and 

Lbb^^ " walls of huts or other buildings erected or renewed in or near 
" any street after the passing of this Act, shall not be made of 
" grass, leaves, mats or other such inflammable materials" ; and 
that '' it shall not be lawful for the owner of any hut or other 
" building in or near any street now having an external roof or 
" wall made of any such " material, and which is contiguous to 
" or adjoining any other building, to suffer such roof or wall to 
" remain for a longer time than two years after the passing of this 
" Act, unless with the consent of the Commissioners." It imposes 
a penalty not exceeding ten rupees a day, for every violation of 
these provisions. 

A Certiorari was issued by this Court, upon an affidavit of the 
defendant made on the 28th September, 1859, v/hich stated among 
other things, that his hut had been built " upwards of seven 
years " before the Act was passed. 

The Conviction having been this day removed by such Certio- 
rari into this Court, the defendant in person moved that the same 
be quashed. 

Mr. D. C. Presgrave, Secretary to, and on behalf of the Muni- 
cipal Commissioners, supported the conviction, and referring to 
the opinion expressed by the learned Judge when the Certiorari 
was issued, that the words '• erected or renewed," at the begin- 
ning of the section, agreed with " huts or other buildings," and 
not with '•'' external roofs and walls," he admitted that this seemed 
to be the true construction of the passaofe, and consequently that, 
to give the Magistrate jurisdiction, it was necessary to shew that 
the hut itself had been, in substance and effect," erected or renew- 
ed " since the passing of the Act. But this, he contended, was 
sufficiently shewn, when it was proved that an entirely new roof 
had been put upon it since that time. Such a repair was, in. 
effect, a renewal of the house. If the house were not " renewed '* 
unless it were altogether re-built, then the word " renewed " was 
superfluous, since the word " erected " which preceded it, would 
meet every case of re-building. It was necessary to give due effect 
to every word in the Act, and this would not be done, if it were 
held that the repair of a house was not a renewal of it. Here the 
house had received an extensive repair. It had got a new roof, 
and such a repair was a renewal of the house. A different con- 
struction would be attended with great inconvenience ; for if 
every body was allowed to make these repairs during the two 
years mentioned in the section, the Commissioners would find 
insuperable difficulties in enforcing the provisions of the Act, 
against all the owners of attap houses, when those two years ex- 
pired. 

Maxwell, R. said, that the section dealt with two classes of 
cases ; huts built before the Act was passed, and huts built since. 
With respect to the latter, it totally prohibited their being con- 
structed of inflammable materials, such as grass or attap. As 



STBAITS SETTLEMENTS. 15 

to the former, it suspended the opemtion of its provisions for a Maxw«ll,R. 
couple of years, and as much longer as the Commissioners thought ^^* 
proper. It wns contended however, that this second class fell Rko. 
within the prohibition of tliis section, if they were repaired within v. 

the two years. When the Certiorari was applied for, he thought Mkbba 
that it would be probably contended that the defendant was with- 
in the section, as it must be read as- if the words " erected or 
renewed " agreed with " external roofs and walls," and not with 
" huts or other buildings" ; but it seemed to him that such was 
not the right construction. Independently of the legal maxim 
which required that relative words should, in general, be referred 
to the next antecedent, the word " erected," at all events was 
appropriately applicable to " huts and buildings" than to "roofs," 
and afforded an additional reason for holding that what the Act 
prohibited was the construction of new houses with inflammable 
materials, and not new roofs of houses, already in existence. 
If the Legislature had intended to prohibit new roofs and 
walls, and not new houses and buildings only, the section 
would have declared, not that " roof s and walls of houses erect- 
ed or renewed," &c., should not be made of grass, &c., but 
that " roofs and walls should not be erected and renewed " 
of grass, &c. It was now admitted, indeed, that this was the 
rioht view of the passage, but it was contended that to put a 
new roof on a hut, was in effect to " renew" the house. It was 
to be observed that the defendant was not convicted of having 
renewed his house of the forbidden materials, but of having 
made his roof of such materials, and the question was whether 
this amounted to the same thing. He thought not. He thought 
that the roof had been renewed, but not the hoicse. If such a 
repair w^as a renewal of a house, then a new door, or even a new 
pane of glass with a window, might with equal propriety be so 
regarded. In those cases, he should say that the door or the 
pane had been renewed, but certainly not the house ; and he 
should be much surprised, if he heard any body speak of his 
having put a new door to his house, as of having renewed his 
house. 

It was unquestionably an elementary rule, that Acts of Par- 
liament were to be so construed, that due effect should be given 
to every word, and he thought that his construction did not in- 
fringe that rule. By buildings " erected," the Legislature refer- 
red to totally new structures, by buildings " renewed," to build- 
ings which replaced former ones. If the owner possessed of a 
house, pulled it, or the greater part of it, down, and then raised it 
afresh on the same spot, that would be a renewal of the building. 
It was in one sen^e, certainly, the erection of a new structure, 
but it was also the renewal of an old one, in the same sense that 
a man who removed altogether the old roof of his house and re- 
placed it with a new one, might with equal propriety, in popular 
language, be said either to have renewed his roof or to have con- 
structed a new one. This was the sense in which he thought the 
word " renewed" had been used by the Legislature in this sec- 
tion ; and it seemed to him to be a much more reasonable sense 



Lbbbt. 



16 MA.G1STRATES* APPEALS, 

Maxwell, R. to give it, than to construe it as equivalent to " repaired. ** Even 
]^- if he thought the question more doubtful than it really appeared to 
j^gQ^ hira to be, he should lean to the limited rather than the wide 
V. meaning of the word, when he considered that this enactment was 

^■■^^ of a penal character, and encroached on the natural liberty which 
men had of building their houses with whatever materials they 
pleased. Mr. Presgrave had referred to the difficulty which the 
Municipal Commissioners would find in compelling the removal of 
these inflammable materials next year, if they had no power to 
prevent in the meantime such repairs as those now in question, 
but he, the learned Judge, thought that this difficulty was much 
exaggerated, for the Commissioners would have power of proceed- 
ing as gradually as they pleased. The Legislature, had wisely 
abstained from imperatively requiring the removal of all the ob- 
jectionable buildings, as soon as the two years expired. It had 
left it to the discretion of the Commissioners to consent to such 
building continuing to stand as long as they thought it right. At 
the end of the prescribed two years, the Commissioners would be 
able to remove the buildings as fast or as slowly as they pleased, 
and they would, no doubt, exercise the power given them of con- . 
senting to the buildings remaining, in such a manner, and 
coupled with such conditions and stipulations, as would bring 
about the desired change gradually or without any great hardship 
on individuals. 

For all these reasons, he thought the conviction could not be 
sustained, and must be quashed, [a] 

[a] See Reg. v. D*OUveiro, mirk. '{^H^ 



,REGINA V. WILLANS. 

Penanq. The fact tliat a labourer lias already been convicted under Act 4, Geo. IV., c. 

3i, for absenting himself from work, is no bar to his prosecution under the same 

Maxwell, E, Statute for a second absenting, although during the existence of the same contract. 
1858. The Act 4, Geo. IV., c. 34, is law in this Colony, and the Magistrate's power 

under it, is not exhausted, by such first conviction. 
May 31. rpj^^ j^^^ Qf England [Common law. Equity, and Statutory] as applicable to 

this Colony, discussed. 

Mr. James J. White, Agent and Attorney of the Right^ 
Hon'ble Edward Horsman, M. P., proprietor of several Sugar 
Estates in Province Wellesley, on the 29th May^ on his own 
affidavit, obtained a Rule Nisi calling on William Willans Willians, 
Esquire, Justice of the Peace and Magistrate of Police, Province 
Wellesley, and one Chivatean, to shew cause why the said William 
Willans Willans, as such Justice and Magistrate, should not 
hear and adjudicate upon a complaint then or then lately pending 
before him, made by the said James J. White, as such Agent as 
aforesaid, against the said Chivatean, for unlawfully absenting 
himself from the service of the said Edward Horsman before the 



STBAITS SETTLEMENTS. 17 

term of hi& contract of service had expired. The Affidavit on Maxwell, E. 
which the Rule was obtained, was as follows : ]^' 

Sbo. 

I. James J. White, of Beach Street, Attorney and Agent of and for the v. 

Right Hon'ble E. Horsman, Esquire, M. P., of London, make oath and say : Willans. 

1. That the said E. Horsman is proprietor of the Valdor Sugar Estate, 
in Province Wellesley, that one Ohivatean did, on the 20th of November 1857, 
contract with the said E. Horsman, to work as laborer on the said Estate for 
12 Calendar months from that date. 

2. That the said Ohivatean duly entered on the said service, but after- 
wards in the month of December, 1857, absconded from the said Estate and 
absented himself from the said service ; that afterwards upon the complaint 
of Mr. Duncan Pasley, the Manager of the said Estate, against the said 
Ohivatean for so absenting himself from the said service as aforesaid, made 
before John Rogers Alexander, Esquire, then being the Magistrate of Police 
at Province Wellesley, tbe said Ohivatean was apprehended by a warrant of 
the said Magistrate, and sentenced by the said Magistrate to two months* 
hard labor in the House of Oorrection at Prince of Wales* Island. 

3. That on the expiration of said term of imprisonment, the said 
Ohivatean did not and would not return to the said service, to complete the 
term for which he so contracted to serve, whereupon on a complaint being 
made by me agaiust him for the same, the said Ohivatean was apprehended 
and brought before Mr. Willans, the present Magistrate of Police at Province 
Wellesley, who, upon examining into the nature of the said complaint, refused 
to adjudicate on the said complaint, on the ground that the jurisdiction 
given by the Act of Parliament, 4th Geo. IV., c. 34, had been exhausted by 
the previ(ju8 conviction and punishment aforesaid, and that he could not 
piinish. the said Ohivatean for a fresh absenting, upon the same contract, and 
thereupon discharged the said Ohivatean who has continued to remain absent 
from the said service. 

J. J. WHITE. 

After the argument on the Rule, as hereinafter mentioned, 
by leave of Court, a further affidavit was put in by Mr. White, 
which was as follows : 

. We the undersigned Inhabitants of Prince of Wales' Island, severally 
make oath and say : 

1. That we are employers of agricultui'al and other descriptions of 
laborers in this Settlement. 

2. That tbe native Malay Population, only furnishes laborers for some 
of the lighter and occasional kinds of plantation work, and that the planters 
of this Settlement are dependant for all the ordinary heavy work of culti- 
vation, as well as for most kinds of skilled labor, on the natives of Ohina and 
India, who come to this Station for employment ; and on natives of Java and 
other Eastern Islands, many of whom on their return voyage from their 
pilgrimage to Mecca, land and seek employment in Penang. 

3. That the low rate of wages in India and Ohina, and the needy condi- 
tion of large numbers of the laboring class, in those countries, with the 
occasional prevalence of famine, have led to the establishment of a system of 
emigration by which, laborers who cannot procure employment at home, or 
who may be desirous of bettering themselves, but who have not the means of 
paying their passage, are enablad to come to this Settlement. This system 
consists in the owners or charterers of vessels, or other persons, providing a 
passage for such laborers, and in some cases, advancing small sums of money 
to them, for the use of their families, in consideration of which, the laborers 
undertake on their arrival, in Penang, to hire out their services to employers, 
with the condition of allowing a portion of their wages to be deducted every 
month, and applied in payment of their passage money and other advances. 



18 MAGISTEATES* APPEALS. 

Maxwell R. 4. That from 4000 to 5000 Cliinese, from 3000 to 4000 -Indians, and 

1858. from 1500 to 2000 Javanese pilgrims arrive annually in Penang. 

^ 5. That of these different claeses of laborers, very few become perma- 

^^" ncnt settlers in the Station ; many of the Cbinese proceed to the adjacent 

WiLLANB ^^-^7 ^^d Siamese territories, where they engage in cultivation, tin mining 

or other occupations. Others, after they have acquired a little money, return 

to their own country — nearly all the E^ings retui-n to Madras, after a 3 or 4 

years residence, and the Javanese generally return to Java, as soon as their 

engagements are completed. From this cause there is a constant demand for 

new laborers, to supply the annual deficiencies. 

6. That on the arrival of a vessel with Chinese or Kling laborers, 
planters in want of labor, enter into contracts with these laborers, taking 
them into their service on monthly wages, and advance to account of their 
wages, the sum required to pay their debt to the persons who have found 
them a passage. The laborers on their part, agi*ee to serve for aC certain 
period usually from one to two years, or such other period as may be 
necessary until the advances made to them, have been liquidated, by the 
monthly deductions from their wages. 

7. That many of the poorer pilgrims from the Eastern Islands, are 
obliged to take their passage back from Arabia on credit ; and the rate of 
wages for labor, being higher at this station, than in their own country, they 
find it advantageous to disembark at this port and to take service as the 
other laborers, under similar contracts. 

8. That on the completion of their periods of service, under such con- 
tracts, the laborers who remain in the Settlement, either continue in the 
service of their first employers, or find service with other masters, as monthly 
servants, or they obtain employment in town, and in the country villages, on 
their own account in some of the various branches of industry, which are 
provided and fostered by the increasing commerce of Penang. 

9. That owing to the extension of cultivation in the Settlement, the 
supply of laborers has been for several years unequal to the demand, and in 
consequence the rate of wages and the amount of advances required by the 
laborers on first taking ser^dce, have increased, and still continue to increase. 

10. That at present, the advances vary from $18 to $25 for Cliinese, 
from $10 to $12 for Klings, and from $35 to $50 for Javanese and other pil- 
grims. That a considerable amount of capital is thus annually sunk by plant- 
ers, the re-placement of which depends entirely on the power of the employer 
to enforce the contracts to serve, as the laborers possess absolutely nothing 
but their labor to answer for their liabilities. 

11. That the great demand for labor and the facility with which persons 
without capital, can obtain from Government small pieces of Forest land for 
cultivation on their own account, has the effect of making the laborers dis- 
contented with their service, and they seek to get away in order to avoid 
payment of the liabilities they had contracted to refund. 

12. That from the nature of planting operations, and especially of those 
on sugar plantations, planters are liable to suffer great and irremediable 
damage from the absence, refusal to work, or wilful carelessness of their 

. servants, whether under advances or not. 

13. It is therefore necessary for *the safety and protection of the agri- 
cultural interests at stake, as well as for the general prosperity of the Settle- 
ment, that the local Magistrates should exercise and continue to exercise the 
power they have hitherto exercised of compelling the specific fulfilment of 
contracts to labor for hire, for, unless these are enforced, the cultivation of 
the principal staples of the Settlement will become gradually abandoned. 

Signed. J. J. White, Brown, Nairne & others, [including Chinese and 
other Natives], 

The Rule was argued this day, when Mr. W, W. Willans, 
the Magistrate, shewed cause. 

Messrs J. J. White and Chevalier [a planter], supported the 
Bale. 

Cur, Adv. Vulf. 



STRAITS SETTLEMENTS. 19 

August 23. MaxwelU R. Th is is a rule calling upon the Police Maxwill, B. 

Magistrate of Province Wellesely to shew cause why he should ^^^' 
not hear and adjudicate upon a complaint preferred by Mr. bbq, 
Duncan Pasley, against oneChivatean, an agricultural labourer in v, 

his employment, for havinjTf absented himself from his service. Willanb. 

It appears from the affidavit upon which the rule was granted, 
that Chivatean was sentenced last December by the former Magis- 
trate of the same place, to two months' hard labour in the House 
of Correction for a similar offence ; that upon the expiration of that 
term, " he did not and would not return to the said service," and 
that he was thereupon again apprehended and brought before 
Mr. Willans, who " refused to adjudicate on the second com- 
" plaint, on the ground that the jurisdiction given to him by the 
" Act of Parliament, 4 Geo. IV., c. 84, had been exhausted by the 
"previous conviction and punishment aforesaid, and that he could 
"- not punish the said Chivatean for a fresh absenting upon the 
"same contract." 

The question raised upon this state of facts is, whether the 
Magistrate's refusal to adjudicate was well founded. Before ex- 
pressing any opinion upon it, however, it is necessary to determine 
wliether the Statute under which the defendant was called upon 
to act, did give him any jurisdiction, as asserted in the affidavit ; 
that is, in other words, whether it is part of the law of this Settle- 
ment. This question has never been decided in this Court, 
although the Act has been enforced by the Magistrates for many 
years past ; and its decision depends, first, on whether any part of 
the Statute law of England of as recent a date as 1823, is in force 
here, and if it is, then, secondly, on whether this particular Act 
is, from its nature, applicable to this country. 

How, and to what extent the law of England first became 
the law of the Indian Presidency towns, and incidentally, of this 
Settlement, has been the subject of much discussion. Sir Benjamin 
Malkin laid it down a quarter of a century ago, that " the intro- 
" duction cf the King's Charter into these Settlements had intro- 

" duced the existing law of England also and had 

"abrogated any law previously existing." In the goods of 
Abdullah, Morton's [Ind.] Eep. 19.t The same doctrine has long 
before been that of the Indian Supreme Courts, with respect to 
the introduction of English law within their respective jurisdic- 
tions ; and no stronijer proof of the firmness with which it was 
established here, can be cited, than the case in which Sir 
Benjamin Malkin applied it ; for, though he expressed a strong 
doubt as to its soundness in principle, he acted upon it in a case 
where its effect 'vas to abolish the law of Holland in Malacca, and 
to substitute the law of England in it3 stead. If this doctrine 
could now be disturbed, it could not be in this Court, where it 
must be treated as beyond the reach of controversy. But as it has 
been disputed, since Sir Benjannn Malkin's judgment, by the 
Indian Law Commissioners, and, before them, by Master Stephen 
in his report in Freeman v. Fairlie, 3 Meriv. 24, and has beensome- 

f Ecclesiastical Cases, Vol. II. of these Reports, p. 8. 



aO ^lAOISlHATES' APPEALS. 

Maxwsll^B. times questioned in local discussions in the Settlement, it may be 

^^* as well to consider on what grounds it may justly rest. And as 

Beg. the learned Judge who laid it down, stated it to be subject to ex- 

V. ceptions which he left undefined, it is advisable, at the same time, 

WiLLAKB. ^ examine whether it is subject to any and what exceptions or 

qualifications. 

Having regard to the circumstances under which this place 
became a British possession, it may be doubted whether any, or if 
any, then what body of law ought dejure to have been considered 
at the time of the establishment of the Colony, as it lex loci, that 
is, as the territorial law applying to all classes of its inhabitants 
indiscriminately, without distinction of race, creed or nationality. 
The general rule of law determining what is the law of a territory 
is, that if the new acquisition be an uninhabited country found out 
by British subjects and occupied, the law of England, so far as it 
is applicable [1 BL Com. 107], becomes, on the foundation of the 
Settlement, the law of the land [2 P. Wms. 75], but that if it be 
an inhabited country obtained by conquest or cession, the law in 
existence at the time of its acquisition, continues in force, until 
changed by the new Sovereign. In the one case the settlers carry 
with them to their new homes, their laws, usages and liberties, as 
their birthright. In the other, the conquered or ceded inhabitants 
are allowed the analogous, though more precarious privilege of 
preserving theirs, subject to the will of the conqueror. 

This Settlement however, did not fall exactly under either 
branch of the above rule. It was neither a Colony of British sub- 
jects, in the ordinary sense of the expression, nor can it be said to 
have been an inhabited country when ceded, because four Malay 
families were found encamped upon it, when it was first occupied by 
us [ Jour, Ind. Arch. 409] . It was a desert Island belonging to the 
Eajah of Quedah, and ceded by that prince in 1786 to an English 
Corporate body, which was invested with quasi sovereign powers 
over territories in its possession, but which it held in trust for the 
British Crown. Indeed, it was once considered to be not free from 
doubt, whether the sovereignty of the Island was ever ceded [ id. 
p. 295] [a]. Mr. Light and the body of Marines who first landed 
here, came, not as British Colonisers oif a desert Island, but as a gar- 
rison to take possession of a ceded territory ; and assuming that they 
were strictly British, and that they brought the law of England 
with them, yet, having regard to the temporary nature and object 
of their inhabitancy here, that law can hardly have been made the 
lex loci by them, but was only the personal law of the garrison and 
their followers, [ Rex v. Brampton, 10 East, 282, 288 ]. The bulk 
of the first settlers were Chinese, Malays and Chulias [ 5 Jour. Ind. 
Arch. p. 9 ] , who, obviously, could not establish their respective laws 
in a British possession as the lex or the leges loci ; and the few Eng- 
lishmen who established themselves here at the foundation of the 
Settlement, came, not as men assuming the dominion of a desert 
land, and settling on it as a matter of right, but as strangers per- 
mitted as a matter of favour, to dwell in a country belonging to a 

[a] See the terms of the cession in 2 Jour. Ind. Arch. [ New Series ] 189. 



STRAITS SETTLEMENTS. 21 

quasi foreign power, with the government of which they had no Maxw«ll,B. 
concern. Mr. Lighf, the first Superintendent, was instructed to ^f^- 
admit into the Island only such Colonists as he thought it safe and i^bo. 
advisable to admit \id. p. 114] ; and it can hardly be contended v. 

that the handful of Englishmen who were allowed to establish Willanb. 
themselves here under such circumstances, and whose right to 
reside without the express licence of the Company, was more than 
once disputed [a], were such Colonists as carry their laws as their 
brithright, to their new homes. The Governor-General in Council, 
it is true, had power to make Ordinances and Regulations for the 
government of the place [13 Geo. III. c. 6-3, sec. 36], but the 
power was not exercised in declaring English or other law, to be 
the lex loci j and the Crown and Parliament remained equally silent. 
Again, Penang being, at the time when it became a British 
possession, without inhabitants to claim the right of being govern- 
ed by any existing laws, and without tribunals to enforce any, it 
would be difficult to assert that the law of Quedah continued to 
be the territorial law after its cession. Such a doctrine would im- 
ply that the continuance of the existing law in a ceded or conquer- 
ed country, was the right, however precarious, of the late Sove- 
reign or of the soil itself, rather than the privilege of the inhabit- 
ants. But the case of Jamaica, referred to in Campbell v. Hally 
1 Cowp. 212, shews that this is not so. Though taken from the 
Spaniards, Spanish law was not considered in force there, after 
all the Spaniards had left the Island. When an inhabited or con- 
quered country is ceded, the new sovereign impliedly undertakes 
to administer the existing laws among his new subjects, until he 
changes them, but it does not follow that when the country is a 
desert, he is to be presumed to undertake that he will enforce the 
laws of the former Sovereign when settlers shall afterwards arrive. 
Another objection to the continuance of the former law would 
arise in this case, from the nature of the Mahometan law, which 
is the law of Quedah. Lord Coke laid it down in CalvMs Case^ 7 I 
Rep. 10, that "if a Christian King should conquer a Kingdom 
of an infidel, and bring them under his subjection, then ipso facto 
the laws of the infidel are abrogated" ; and although Lord Mans- 
field treated this proposition as absurd, the Indian Law Commis- 
sioners are well justified, I think, in asserting that "a system of 
law which according to its own principles, can on^y be adminis- 
tered by Mahometan Judges and Mahometan arbiti'ators, upon 
the testimony of Mahometan witnesses, is not a system which can 
devolve ipsojurcy and without express acceptance, upon a Govern- 
ment and people of a different faith " [b] . It seems to me impos- 
sible to hold that any Christian country could be presumed to 
adopt or tolerate such a system as its lex loci. In such a case, 
according to Coke, " until certain laws are established, the King 
by himself, and such Judges as he should appoint, should judge 

[a] Minute of Mr. Phillips on the Landed Tenures of Prince of Wales* Island, 
p, 2 [reprinted 1884, p. 3.] 

[6] Eeport on Petition of East Indians and Airwenians— [App. JBe;p. Incl. Lay$ 
Qomcrsi 1842.] 



22 ^ MAGISTRATES* APPEALS. 

Maxwell, B. the inhabitants and their causes according to natural equity, in 

^f^' such sort as Kings in ancient times did with their Kingdoms be- 

Eeg. fore any certain Municipal laws were given, as before hath been 

V, said" [Calvin's Case, 7 Eep. 10.], or, more probably, according to^ 

WiLLANs. th^ third resolution of the Privy Council [2 P. Wms. 75], English 

law would at once come in force — the only natural equity known 

to English Sovereigns and English Judges. 

But whatever ought, de jiire^ to have been the law of the land 
when the Colony was founded, it is clear beyond all doubt, that for 
the first twenty years and upwards of its history, no body of known 
law was in fact recognised as the law of the place. As to the law 
of England, so far was it from being regarded as the lex lociy that 
it was hardly recognised even as the personal law of its English 
inhabitants. This appears very clearly from the early records of 
the Local Government which were published a few j'ears ago in 
the Journal of the Indian Archipelago, under the title of " Notices of 
Penang,^' by a gentleman holding a high office in the Settlement. 
In the first place, the law of England was not in force for the 
punishment of crime. Mr. Light was directed in 1 788 " to preserve 
good order in the Settlement as well as he could," not by punish- 
ing those who ofPended against it, according to English or any other 
known body of law, but " by confinement or other common punish- 
ment," [ 4 Jour. Ind, Arch, 643] ; ^ and fiveyears later he is found 
carrying out his instructions by "whipping and confining to the 
public works, or sending off the Island, the thieves, house-breakers 
and other disorderly persons " who he complained then infested 
the Island [4. Jour. Ind, Arch, 656] . But this jurisdiction extended 
only to those inhabitants who were not British subjects — id, 643. "^ 
These, it appears, he was ordered, at least in cases of murder, to 
send to Calcutta for trial before the Supreme Court there [5 Jour. 
Ind, Arch, 2.]"^. But when, in 1793, a man named Sudds was 
accordingly sent there on a charge of murder. Sir W. Burroughs, 
the Advocate-General, gave it as his opinion, that "there was not 
any law by which the well-meant directions given to the Superin- 
tendent of Prince of Wales' Island .... could be supported, 
as far as they related to the trial or punishment of murder, or any 
other crimes at that Island " [5 Jour, Ind* Arch, 5] f" for the 
jurisdiction of the Supreme Court of Calcutta was then confined 
to Bengal, Behar and Orissa [13 Geo. III., c. 63, s. 14]. When it 
was extended by the 39 & 40, Geo. III., c. 76, s. 20, to all factories 
and places subject to the Bengal Presidency, fresh instructions 
were sent [25th March, 1800 J to Sir George Leith, the Lieutenant- 
Governor of the Island, directing that " Europeans guilty of mur- 
der or other crimes of enormity should be sent to Fort William " 
[5. Jour, Ind, Arch, 158] ; f but for lesser offences, they appear to 
have been left in total impunity. As late as 1805, the Governor 
complains that while provision had been made for the punishment 
of native criminals, " the more turbulent European remains on the 
Island free from all restraint, with the power of committing every 

* See Preface, &c., Vol. I. of these Reports, p. iv. 
t See Preface, &c.. Vol. I. of these Reports, p, xii« 



STRAITS SETTLEMENTS. 23 

act of injustice and irregularity towards his neic^hbonr and the Maxwell, fi, 
most peaceable native, havinn^ set at defiance all authority as not ^^^ 
legally established on the Island." [G Jour, hid. Arch. 93j. fit Rg^^ 
may be said that this proves the want of legally constituted v. 

Courts, rather than the absence of law ; but Crimin.al law can Willanp. 
hardly be said to exist where there are no tribunals to enforce it. 
However this may be, what Criminal law was in force was not 
English law. In 1794, a body of Regulations were passed by 
Lord Teiguuiouth, the Governor-General, for preserving the peace 
of the Island [o Jour. Ind. Arch. 294] ; t and these appear to have 
continued in force, and indeeil, to have been the only Criminal 
law in force, down to the time Avhen the first Charter was granted. 
Next, the law of England was as little recognised in Civil 
matters. Even the general rules of inheritance, which Blackstone 
considers to be among those portions of English law which are 
carried to their Settlements by English settlers [1. Bl. Com. 107], 
were wholly disregarded. Mr. Dickens, who was appointed in 
1800, partly to act as Judge or Assessor to the Lieutenant-Gover- 
nor [5 Jour. Ind. Arch. 107], and partly to frame a Code of laws 
for the Settlement, [id. p. 195] ; urged earnestly, in that year, 
that the Governor-General should enact a Regulation upon the 
subject [id. p. 119]; and even as late as 1823, Ave find Mr. Phil- 
lips, the Governor of the Settlement, mentioning that " the Rules 
which, according to British Law, govern the disposition and in- 
heritance of real property have never been made applicable to our 
lands, &c. "[«]. So, with respect to personal, property. In 1804, 
Mr. Farquhar, the Lieutenant-GoA'ernor, in applying to the 
Supreme Government for instructions for the distribution of 
the effects of a person domiciled in the Island, who had died 
intestate, stated, that there was here '' no law nor any fixed custom,'* 
according to which it could be distributed — [5 Jour, Ind, Arch. 409] . 
Again, slaves were bought and sold, not only openly, but with tl\e 
sanction of the local Government, one of whose early cares was to 
provide Registers for those transactions [6.] ; and taxes were 
imposed by the sole authority of the Governor-General in Council, 
viz,^ a duty of 2 per cent on all sales of lands and on the estate 
and effects of deceased persons [4 Jour. Ind, Arch. 646, 9]. Thus, 
two of the principles of English law were completely disregarded — 
that which makes a slave free when he touches British soil, or in 
other words, comes within the jurisdiction of B itish Law, and 
that which protects the subject from taxation except by his re- 
presentatives. There were Courts and Judges here before the 
Charter, but the justice which they administered between man 
and man within their respective jurisdictions, was not in accord- 
ance with the miles of English law. In 1793, justice was adminis- 
tered in petty Civil cases among the various native populations, 

t See Preface, «&;c.. Vol. I. of these Eeports, pp. v., xii., xxxiv. 

[a] Minute on the Landed Tenures of Prince of Wales* Island, p. 8 [re-printed 
138-1., p. 8.] 

[6] Minute on the Landed Tenures of Prxn:e of Wale^* hi ind, p. 1C-.-5 Jqut* 
M, Arch. pp. 103, 29U. 



24 MAGISTRATES' APPEALS. 

Haxwsll.B. by the headmen or Captains, as they were called, of their own 
^^' nation, nominated by the Superintendent, subject to an appeal to 
Eeo. *^ European gentleman who acted as Magistrate, and who himself 
V, tried the more important Civil cases iu the first instance [5 Jour, 
WiLLANs. ind. Arch, 106, 193]* By what law these headmen and the 
European Magistrate were guided, does not expressly appear ;* but 
there is no reason to suppose that Malay, Chinese and Chulia 
Captains were appointed to administer any other law than that 
with which they might be presumed to be acquainted, — that of 
their own nation ; while it is probable, from the representation of 
Mr. Dickens, that the Magistrate decided according to what is 
called natural justice, that is, according to his own notions of what 
was just. The following passage from Mr. Dickens' report ad- 
dressed to the Governor-General in 1803, shews what was the 
actual legal condition of the Island at that period : 

His Excelleney in Council has been heretofore informed that Prince of 
Wales ' Island, prior to its cession in 1785, was under the dominion of a Chief 
who governed arbitrarily, and not by fixed laws. It is now become my pain- 
ful duty to state that it has so continued to be governed without fixed laws ; 
for upon the hour of my arrival on this Island, there were not any Civil or 
Criminal laws then in existence, and there are not even now any Municipal, 
Criminal, or Civil laws in force on this Island. The law of nature is the only 
law declaring crimes and respecting property, which, to my knowledge, at 
this day, exists at Prince of Wales' Island ; and as Judge, it is the only law 
which I can apply to the Criminal and Civil suits brought in judgment be- 
fore me. But as the law of nature gives me no precepts respecting the right 
of disposing of property by Wills and testaments, the rights of succession 
and inheritance, and the forms and precautions necessary to be observed in 
granting Probates of Wills and Letters of Administration to Intestates' 
effects, or respecting many other things which are the subject of positive law, 
I have often been much embarrassed in the execution of my duty as Judge in 
the Court of Justice in which I preside ; and many cases there are, in which 
I am utterly unable to exercise jurisdiction. " 

He adds : 

" The cultivation of the Island, the increase of its commerce and of its 
population, has made it necessary that fixed laws of property, as well as laws 
declaring what acts are crimes, should be promulgated by due authority " [6, 
Jour. Ind. Arch. 229].t 

The result then, to be collected from the early records of the 
Settlement, is that for the first twenty and odd years of its history, 
the Country had no territorial law. The task of maintaining 
order among the early Colonists was left to the Commandant of the 
garrison. Crime was repressed and punished by a kind of martial 
law, that is, by such punishments as a Court Martial pronounce, 
and the Chief local Executive Authority, or the Governor-General 
in Council considered appropriate to the offence. In matters of 
succession, personal status, contract, and perhaps tort also, as 
many systems of law were in force as there were nationalities in 
the Island ; and all those laws, again, were probably tempered or 

• See Preface, &c.. Vol. I. of these Eeports, p. xxiii. 
t Se« Pre/ace, &c., Vol* !♦ of th^se Reports, p, xxyii* 



STRAITS SETTLEMENTS. 25 

modified by that law of nature, or that natural justice which ap- Maxwell, B. 
pears to have been the chief guide of the European Magistrate ^^^« 
who constituted the Court of Appeal. The state of society re- ^[^ 
sembled in this respect that which existed in Europe after the v. 

destruction of the Roman Empire, as described by Savigny in Willans. 
the passage quoted by the Indian Law Commissioners : 

" The spirit of personal laws reigned equally among the indiyiduals of 
the different Grermanic tribes ; and the Franks, the Burgundians and the 
Groths lived on the same soil, each according to their own law. Thus is ex- 
plained the following passage in a letter from Agobardus to Louis le Debon- 
naire 'one frequently sees conversing together five people, of whom no two 
obey the same laws. ' " [a] 

In the midst of all this confusion, this much, and indeed this 
much, only, seems to be clear, that so far from the law of England 
being in force as the law of the land, its most general and ele- 
mentary principles were not recognised even by the English portion 
of the community, or enforced by the existing tribunals. 

It must be presumed that the Charter of 1807, was granted 
with a full knowledge of this state of things, and was intentionally 
adapted to it. No law was introduced aliunde, contemporaneously 
with the Charter. It was competent to the Crown to introduce 
the law of England into the Settlement by such an instrument as 
a Charter, Campbell v. Hall, 1 Cowp. 204 ; and if that law was not 
previously in force, and the language of the Charter directed that 
it should be administered here, it follows that the Charter did in- 
troduce the law of England into the Settlement; and the question, 
to what extent English law became the law of the land is, then, 
a question of construction rather than of general legal principle, 
or at least of the one as well as of the other. 

Now, the Charter does not declare, totidem verbis, that that 
law shall be the territorial law of the Island ; but all its leading 
provisions manifestly require, that justice shall be administered 
according to it, and it alone. As to Criminal law, its language is 
too explicit to admit of doubt. It requires that the Court shall 
hear and determine indictments and offences, and give judgment 
thereupon, and award execution thereof, and shall in all respects, 
administer Criminal justice in such or the like manner and form, 
or as nearly as the condition and circumstances of the place and 
the persons will admit of, as in England [1st Charter, p. i\S]. And 
I think it equally plain that English law was intended to be 
applied in Civil Cases also. The Charter directs that the Court 
shall, in those Cases, " give and pass judgment and sentence 
according to Justice and Eight'^ [id, p. 26]. The "Justice and 
Right'' intended, are clearly not those abstract notions respecting 
that vague thing called natural equity, or the law of nature, which 
the Judge, or even the Sovereign may have formed in his own 
mind, but the justice and right of which the Sovereign is the 
source or dispenser. The words are obviously used in the same 
sense as in the well known Chapter of Magna Charta from which 

[a] Beport on Fttiiion of Easi Indians and Armenians, [Ind, Law Corners, £ep« 
1842, p. 449.] 



is MAGISTRATES' APPEALS. 

Maxwcll, R. the J were probablj borrowed :" ww/Zi vendemus, nulli negabimus 

^^* ant differernus justitiam vel redum.^^ They are, in jurisprudence, 

Eeo. mere s^-nonjmes for law, or at least only uieusurable by it ; and a 

V. direction in an English Charter to decide according to justice and 

W1LLAN8. right, without expressly stating by what body of known law they 

shall be dispensed, and so to decide in a Country which has not 

already an established body of law, is plainly a direction to decide 

according to the law of England. 

The whole of the Charter appears to me to support this view. 
It gives the Court the powers of the Superior Courts of Law and 
Equity at Westminster, to be exercised as far as circumstances 
admit [Ist Char, 16], without stating or leaving any room for 
presuming that it was intended that those powers should be 
exercised otherwise than in the same manner and under the same 
rules and principles as they are exercised in England. The 
classification of property into ^'real and personal^" of actions or 
"pleas," into "real, personal, and mixed" [id. p. 38], and the 
power given to grant Probates and Letters of administration 
[id. p. 17 J, shew that the law of England was alone in contem- 
phition. In the clause which directs that parties interested in 
administration bonds may sue in the name of the East India Com- 
pany [id p, 20], to whom the bonds aie executed, it incidentally 
implies that the rule peculiar to the Common law, that choses in 
action are not assignable, is to be in force. The clause which 
provides for the discliarge of prisoners under writs of Habeas 
Corpus [id. p. 28], refers to a right which no other law gives to the 
subject, and which was not previously in existence here. 

The negative evidence on this subject, is at least as strong as 
the positive. In no part of the Straits' Charters is mention made 
of any other law than that of England ; and the silence is perhaps 
nowhere more remarkable than in those passages which purport 
to adapt the administration of justice by an European Court to 
the peculiar institutions of Asiatic races. Where Ecclesiastical 
jurisdiction is conferred on the Court [1st C/mr. 16], it is to be 
exercised only so far as the religions, manners and customs of the 
inhabitants admit. In the administration of oaths and of 
Criminal Justice, also [id, p. 8b], and in framing process for 
carrying out the orders of the Court [id, p, 36], attention is to be 
had to the religions, manners and usages of the native inhabit- 
ants ; but nowhere is it said that their laws are to be attended to, 
not even in matters of contract and succession, as in India. 
Indeed, the provision respecting the framing of process is express- 
ly guarded by the provision that the prescribed adaptation to 
native opinions and usages shall go only " as far as the same 
can consist with the due execution of the law and the attain- 
ment of substantial justice." [a] 

The exclusion of native law is also remarkable in the Clause 

[a] Tho following note is taken from the Joui'nal of the Indian Archipelago, 
[Vol. III. pt. I., p. 37] , and was subsequently added hy the learned Recorder to his 
decision t 

'' Thia olause authorises the Court to '' frame such process, and to wake sucl^ 



STRAITS SETTLEMENTS. 27 

empowerincT the establishment of Small debts' Courts. Although Maxwell, R. 
it is provided that the jurisdiction of those Courts may be ethnical ^^.L' 
instead of local, if thought advisable, nothing is said about apply- req. 
ing native law to native Cases, but it is merely required that the v. 

" administration of justice " shall be adopted, so far as circum- Willans. 
stances permit, to '^ the Religions, Manners and Customs,'' of the 
native inhabitants, while the Rules of Practice are to conform, as 
nearly as may be, to the Rules of English Courts of Request. 

It may be said that with respect to at least two classes of 
Orientals, Mahometans and Hindoos, their laws are part of their 
religions, and that the Charter includes the former when it men- 

• 

" Rules and Orders for the due execution of the same, in aU suits as shaU be 

*' necessary for the due execution of the powers hereby committed thereto, with an 
" especial attention to the different ReUgfions, Manners and Usages of the persons 
** who shall be resident or commorant. within its jurisdiction, and accommodating 
** the same to tbeir several Religions, Manners and Usages, and to the circumstances 
" of the Country, so far as the same can consist witli the due execution of the law 
"and the attainment of substantial justice.'* In a newspaper report of a case at 
Singapore, Sir R. McCatisland is represented to have cited in support of his decision, 
** those provisions of the Charter which would be otherwise wholly nugatory and in- 
operative, and which direct that all or any of the powers thereby committed to the 
Court shall be executed with an especial attention to the different religions, &c., 
and accommodating the same to their several religions. '* [See The Straits I'imesj 
14th July, 1857]. If this report be correct, the Recorder of Singapore would seem 
to have understood the clause in question as requiring, not that the process of the 
Court should be framed, but that its powers should be exercised with attention to 
native religions, and be accommodated to them. But if this were its true meaning, 
powers already conferred and limited with all due modifications, would be incident- 
ally modified a second time in a clause, the primary object of which, at least, was 
different ; which second modification, again, is immediately afterwards neutralised 
by the concluding words of the Section. It seems to me reasonably plain that the 
meaning of the clause is, that the process of the Court is to be framed with due 
att^jntion to native religions, and is to be accommodated to them as far as that can 
be done consistently with an exact 'enforcement of English law. The Court 
derives its powers from other parts of the Charter ; and the object of this Clause, is 
to provide for the framing of the Orders and process necessarry to carry into effect 
the judgments and decrees pronounced under those powers. In doing this, it requires 
that the prejudices and habits of the various populations shall not be needlessly 
shocked or disregarded, on the one hand, and yet that the strict and full execution 
of the law shall not be impaired on the other. It is perhaps redundant to 
require that process shaU not only be framed with reference to native religions, but 
shall also be accommodated to them. But the objection would be equally strong, 
if the words applied to the powers of the Court. It would be removed, indeed, if the 
words "with especial attention, &c.,'' could be read as applying to the powers, and 
*' acommodating the same " as relating to process j but the word " and" immedi- 
ately preceding '^ accommodating " is a grammatical obstacle to such a construc- 
tion. I did not refer to the case in my judgment, because the reporter appears to 
me to have so wholly misapprehended the effect of the learned Recorder's judg- 
ment in another passage, that I could place no dependence on the fidelity of the 
report. The question in the Cause being whether a devise by a Chinaman, of land 
in the Settlement, upon trust, to apply the rents four times a year or oftener, in 
religious ceremonies for the testator's and his wives* souls, was valid. Sir R. 
McCausland is reported to have held that " the Statute against the accumulation of 
income '* was " wholly English, and incapable, without great incongruity of effect, 
of being transferred, as it efcinds, into the code of a Country inhabited by people of 
so many different religions, &c." Why the Thelusson Act, which prohibits the 
accummulation of income for more than twenty- one years after death, except for 
paying debts or portioning children, should be inapplicable to this Country is, 
perhaps, not very obvious, as it rests upon grounds of general policy ; but it is clear 
that Sir R. McCausland cannot have expressed any such opinion in a case where 
the devise, so far from directing an accumulation for a period exceeding the limit 
allowed by the Act, directed that the income of the property should be spent m 
fast and as often m it oQuld well be ooUectedi four times a year or oftener*" 



28 MAGISTRATES' APPEALS. 

Maxwbll«B. tions the latter. This might be so, if the Charter were a Maho- 

1858. metan or Hindoo instrument, but law and religion are too distinct 

jjgQ in their nature, and to English apprehension, to be treated other- 

w. wise than as distinct in the construction of an English Charter. 

WiLLANs. I am aware that the Charter has been sometimes construed 

differently. I have heard, on good authority, of a Recorder who 

gave judgment in opposition to an array of English decisions ; 

holding that the direction to decide according to Justice and Right, 

emancipated him from all established principles of law and equity, 

and referred liim to his own discretion and conscience for his sole 

guidance, not remembering apparently that his discretion ought 

to be that of a vir bonus, and that the vir bonus, is he qui conguUa 

pat rum, qui leges jura que servat, [^Cowper\, Cow per, 2 P. Wms. 753 — 

152 — ^judgment of Sir. J. Jekyll]. 

Sir Ralph Rice appears to have considered that the Criminal 
law was the only part of the law of England which was in force 
here, * and that in all Civil matters, justice was to be administered 
among the native populations according to their respective laws 
and customs. [Evidence before House of Lords, referred to in 
Abdtdlah^s Case] . t This view was perhaps founded on the con- 
tract between the express mention of English law in the one case, 
and the more general " justice and right " in the other. It does 
not, however, necessarily follow that because the law of England 
is mentioned eo nomine in one passage, it cannot be the law in- 
tended by " justice and right " in the other ; and any such in- 
ference loses its force when other considerations shew that the 
words have.th«at meaning. If I might conjecture why they were 
used in preference to " the law of England, " I should think it 
was, possibly, because the latter expression is in some measure 
ambiguous, since in one sense, at all events, it excludes that large 
branch of the law which is administered in the Court of Chancery. 
If the view expressed by Sir Ralph Rice were correct, we 
should have no temtorial law here except in Criminal Cases, .and 
the Court would be called upon to administer among Her Majesty's 
Subjects in all questions of Civil rights and obligations, of personal 
status and succession, as many different Codes of law as there 
were races or creeds in the Island. Mutatis mutandis, we should 
have here the state of things described by Savigny in the passage 
already quoted. The Europeans, Malays, Hindoos and Chinese, 
would all be living on the same soil, each according to their own 
law. But, as the Indian Law Commissioners observe, a Country 
governed by one of the civilised nations of modern Europe, and 
yet having no lex loci " would be a phenomenon without example 
in jurisprudence " [ft], except, indeed, in India, where its want 
has long been felt, especially with reference to the status of 
Armenians and the half-caste or mixed races. However, Sir 
Benjamin Malkin expressed his entire dissent from this construc- 

* The Court was evidently unaware of the previous decision of Stanley, R, in 
Kamoo v. Bassetty Civil Cases, Vol. I. of these Reports, p. 1. — J. V^. N. K. 
t Ecclesiaatical Cases, Vol. II. of these Reports, p. 8. 
[a] Petition of £»st Indians and Annenians. Und. Law Comers. JRep. 449] « 



W1LLAN8. 



STBAITS SETTLBMEKTS. 29 

tion of the Charter, observing that the distinction referred to Maxwill,B. 
between the Civil and Criminal law, was rather ao:ain8t than in ]^' 
favour of the more extended adoption of the native laws in the Reo. 
former ; and his opinion has been adhered to, I believe, by all his ^ »• 
successors. 

Having referred to those passages of the Charter which relate 
to the religions and usages of the Oriental races, I must observe 
that their effect has, more than once, and upon a question of very 
^reat importance, been, in my opinion, much misunderstood. Sir 
Benjamin Malkin, after referring to them all in succession, in 
Abdnllah^s Case^ [Morton's Ind. Rep. 73] , observed that " in the 
** general expression, the Charter seems to have intended to give a 
"certain degree of protection and indulgence to the various 
" nations resorting here ; not very clearly defined, yet perhaps, 
"easily enough, applied in particular cases, but not, generally, to 
" sanction or recognise their law." * 

To these expressions, no other objection can be made, than 
that they are too general to facilitate the practical application of 
the law of England to the Oriental inhabitants of this place. But 
in a letter addressed to the Secretary of Government, dated July, 
1837, the same Judge went further : " With respect to the law," 
he says, " whereby rights are constituted and established, I 
" understood the Governor-General to consider," — and in a previous 
passage he had observed that the Governor-Generars views did not 
differ from his own — ''that it at present is, and ought in general 
"for the present to continue, the law of England, modified indeed 
"by considerations how far some of its particular provisions and 
" enactments are suitable to the circumstances of the Colony, and 
"administered in all Cases with a laige and liberal regard to the 
" Manners, Usages and Religions of the different nations subject 
" to its operation, but containing no provisions or principles which 
"cannot be based upon that law so modified and construed .... 
"If I am right in these views, "he goes on to say, "it follows that 
" all land held by tenures, amounting, by the terms of the Grant, 
" to a freehold interest, passes, not to the Executor for the benefit 
"of the next-of-kin, but to the heir-at-law. " This was written 
before Act XX. of 1837 was passed. "Who this heir may be," 
he continues "may occasionally depend on considerations of 
"native usage and religion. These probably, ouglit to be more 
"liberally regarded in questions of legitimacy and relationship 
"than almost in any other. It would seem very difficult, for 
"instance, to refuse to treat a Hindoo son by adoption, as a son, 
"and consequently as an heir, in the absence of other sons; or to 
" declare the eldest son of a Mahometan not to be the heir, because 
"his father had two wives at once, and he was the son of the 
" second marriage. But whatever degree of accommodation might, 
"in such cases, be given to the usages of dift'erent classes, the 
"foundation of the law remains the English law of inheritance." 
[Ind. Law Comers, Rep. 87]. 

In 1843, Sir William Norris held that the adopted son, and 

* Ecclesiastical Cases, Vol. 11. of these Reports^ p. 11. 



30 MAGISTRATES' APPEALS. 

Maxwell, B. the natural and adopted dan<?hters of a Chinaman domiciled in 

Malacca, were entitled to administration, and to the assets of the 

Ebq. Intestate, to the exchision of his nephew, resting his decision 

V. expressly upon the opinion of Su' Benjamin Malkin, as stated in 

WiLLANs. ^Yie above passages : '' 'J'he ground of my decision,'' he says, " is, 

" that I tafee the same view of the Charter as Sir Benjamin Malkin 

" did, with regard to the law to be administered in these Settle- 

" ments under that instrument, and which cannot be better express- 

"ed than in his own words." After citing the two passages 

above quoted from the judgment and letter, he adds : 

" In the 5th paragraph of the report made on the 8th February, 1842, by 
the Law Commissioners, on the Judicial Establishment of the Sti-aits, they 
express their concurrence in Sir Benjamin Malkin's view of the spirit in which 
the law of England should be administered in these Settlements ; and I have 
myself adhered in practice to the same principles, frequently directing the 
two or three widows of a Mahometan intestate to rank as one widow, and their 
several children as one family, in the distribution of the estate. In one of the 
petitions in this Case, that of Gan Nio, dated the 25th August, 1842, the case 
of Mootoo VaUee is cited to shew that a natural daughter has been considered 
as legitimate for the purpose of inheritance. " 

I was ignorant of these views when r^ similar question came 
before me for decision some months ago, and I then held that the 
adopted son of a Chinaman domiciled here, was not entitled, in 
that character, to administration, or to distributive share of his 
adoptive father's land. On being made acquainted with the case 
before Sir William Norris, I anxiously reconsidered my own 
decision, but found no reason for holding it wrong in principle; 
and as Sir Benjamin Malkin's opinion, although entitled to the 
highest respect, was extra-judicial, while Sir W. Norris', seemed 
to have been adopted from his predecessor, rather than to have 
been the result of any independent consideration of the subject, 
I thought myself at liberty to abide by my own decision. I must 
add that I felt less hesitation in doing so, when I referred to the 
paragraph of the Indian Law Commissioner's Report, cited by Sir 
William Norris, for I gathered from it that they rather dissented 
from Sir B. Malkin's views, than concurred with them, if the latter 
was to be understood, as Sir W, Norris clearly understood him, as 
holding that the law of England, was to be modified by the Courts 
in the extensive manner in which he thought it should be modified 
in the case of the adopted child. " We concur with the late Sir 
"Benjamin Malkin and the Governor-General," the Com- 
missioners say, " in thinking that it [the law of England] 
" ought not to be changed substantially, but modified by 
" ex'press enactment^ in the spirit in which Sir Benjamin 
" Malkin thought it should be administered, under a large 
" and liberal regard to the different manners, usages, and re- 
" ligions of the various nations of which the population is 
" composed " [Uef, Ind, Law, Comers, ^ISb] ; clearly intimating that 
though they approved of the suggested modifications, they con- 
sidered that they should be made by the Legislature, and not by 
the Judges. I can see nothing in the Charter to admit of such a 
departure as that in question from the English rules of inheritance 



STRAITS SETTLEMENTS. 31 

and nothing in the widest principles of Comity recognised by our Maxwell, E, 
law to admit of it. In truth, if the several passages referred to ]^^ 
by Sir Benjamin Malkin in his judgment, be examined, they will Eeg. 
be found, I think, to effect nothing more than would have been v. 

implied, if the Charter had merely ordaiued, in general terms, that ^J^^-^^^- 
justice should be administered according to the law of England, 
without more. The law of England, whersoever administered, 
respects, either ex-comltate, or ex-dehito justitice^ the religions and 
usages of strange sects and nations, to the extent to which the 
Charter requires that they shall be respected. Thu^, if the Charter 
of 1807 had not expressly provided that witnesses should be sworn 
"in such manner as the Court should esteem most binding on their 
consciences," or, in the words of the last Charter, ** regard being 
always had to their religious belief," the law of England would 
have permitted that our Mahometans, Hindoos and Chinese should 
be sworn according to the ceremonies of their respective religions, — 
Omichimd v. Barker, Willes, 538, s. c. 1 Sm. L. C. 381.,* Jind 
assuredly the law of England would not have compelled 
those who were appointed to act as Constables, to do 
anything contrary to their religions, customs and manners, even 
if the Charter had omitted to provide that natives should be com- 
pelled to serve in that capacity only so far as their religions, cus- 
toms and manners admitted. [Ist Char. 41] . So, if the Court does 
not entertain proceedings pro salute animce against Hindoos, Ma- 
hometans and Buddhists, it is not entirely owing to the limits 
imposed upon its Ecclesiastical jurisdiction by the express terms 
of the Charter; for they would be equally free in England, from 
any such molestation by the Ecclesiastical Courts. Again, a Ma- 
hometan who marries a second wife of his own religion and 
according to the rites of that religion, is not indictable for bigamy 
here ; but it would be diflScult to assert that if he were to contract 
such a marriage in England, he would be indictable at the Old 
Bailey. The offence was originally of Ecclesiastical cognisance 
only, and would seem to contemplate only the marriages of those 
people among whom Monogamy is an institution. 

The only other passage which mentions native religions and 
customs is that which touches ihe framing and execution of pro- 
cess. This provision obviously relates merely to questions of 
procedure and practice; and besides, its effect is expressly limited 
as I have already observed, by the provision that native religions 
and usages are to be respected only so far as the due execution of 
the law admits. I mny add that I am not acquainted with any 
instances of this adaptation here ; and the only cases of it in In- 
dia that I have heard of, are those mentioned by Sir C. Grey in a 
Minute dated October 2, 1829, [printed in App. V. to Rep, on Affairs 
of East India Company, p. Q'i] viz., the practice, at Madras, of 
making orders for the maintenance of native widows without suit, 
and, at Calcutta, of deciding many disputes among natives out of 
Court by an award. 

It does not seem to me, then, that the Charter has in any res- 

• See also In re Native Witnesses, Criminal Rulings, p. 15, Vol. Il.of these Reports. 



32 MAGISTRAJTES' APPEALS. 

Maxwill,B. pect modified the law of En^^land by any exceptional adnptation of 
it to the religions and usages of the East. With the exception of 
Rbo. the perhaps superfluous instructions respecting the framing of pro- 
V. cess, it might laave remained silent on tha subject of religion and 

WiLLANs. ^ga^gQ without affecting the administr.ition of justice. In other 
matters of greater importance, respecting which the Charter makes 
no provision, native religions and usages are equally respected. 
Thus, if a Mahometan, or Hindoo, or Chinese marriage, celebrated 
here according to the religious ceremonies of the parties, be valid, 
it is not because the Charter makes it so — for, as I have already 
observed, it makes no exception in favour of native contracts of 
any kind — but because the law of England recognises it. The 
general rule of that law is, that the validity of a marriage is to be 
determined by the law of the place where it is celebrated. " The 
only principle, " says Lord Stowell, " applicable to such a case by 
" the law of England is, that the validity of the marriage rites 
" must be tried by reference to the law of the Country where, if 
" they exist at all, they had their origin. Having furnished this 
" principle, the law of England withdraws altogether, and leaves 
" the legal question to the exclusive judgment of the law of the 
" place where the marriage wa^ celebrated. '^ Dalrymple v. Dalrym" 
pie, 2 Hagg. 59. 

But where the law of the place is inapplicable to the parties, 
by reason of peculiarities of religious opinions and usages, then 
from a sort of moral necessity, the validity of the marriage depends 
on whether it was performed according to the rites of their religion. 
Eeferring to the Jews, Lord Stowell says : " there is in England a 
" numerous and respectable body distinguished by great singular- 
" ity of usages, who, though native subjects under the protection 
" of the general law, are in many respects governed by institu- 
" tions of their own, and particularly in their marriages ; for, it 
" being the practice of mankind to consecrate their marriages by 
*^ religious ceremonies, the differences of religion, in all countries 
"that admit residents professing religions essentially different, 
"unavoidably introduce exceptions, in that matter, to the univer- 
" sality of the rule, which makes mere domicil the constituent of 
"an unlimited subjection to the ordinary law of the Country. 
" What is the law of marriage, " he adds, " in all foreign estab- 
" lishments settled in Countries professing a religion essentially 

" different P No body can suppose, that while the Mo^ul Empire 

" existed, an Englishman was bound to consult the Koran for the 
" celebration of his marriacje. Even where no foreign connexion 
^' can be ascribed" — a case similar to that of the Eastern natives 
of this place — " a respect is shewn to the opinions and practice 
" of a distinct people. The validity of a Greek marriage in the 
" extensive dominions of Turkey, is left to depend, I presume, 
^•upon their own canons, without any reference to Mahomedan 
"ceremonies. There is a jus gentium upon this matter; a Comity 
" which tre.ats with tenderness, or at least with toleration, the opin- 
" ion and usages of a distinct people in this transaction of mar- 
" riage. " Pertreis v. Tondear, 1 Hagg. 139. 

How far the general law should circumscribe its own authority 



STRAITS SETTLEMENTS. 83 

in the matter, it may, as the same Judge observes, be difficult Maxwill, B. 

to say a priori}, and unquestionably it is not easy to ex- ^^* 

tend t) Mahometan marria<>os that principle of Comity which reo. 

the law of En^^aud has applied to Jewish marriaj^es, with- v. 

out involving it in a recogaition of polygnniy, which has Willanb. 

always been put by jurists beyond the pale of the Comity 

of Christian Nations. Story Confl, L. §§ ll3a, 114; 2 Kent 

Com. 81; I Biirga Col. & For. Laiv, 188. The question has 

never yet been decide 1 by any Court iu Enorland ; but Lord 

Brougham, while declaring in Warrendcr v. Warrendery 9 Bligh 

[N. S.] 89, that an English Court would never recognise a 

plurality of wives, seems to have been of opinion that in dealing 

with a Turkish marriage " there may be some rooni for holding 

*'that we are to consider the thing to which the parties have 

" bound themselves, according to its legal acceptation in the 

"country where" — or, [in the case of a Mahometan marriage in 

an English possession], in the religion in which — ''the obligation 

was contracted," 1 CI, & E., ool, 2. In this place, where the law 

of England has been for the first time brought to bear upon races 

among whom polygamy has been established from the remotest 

antiquity, the Court has had to consider the question, and has 

always held polygamous marriages valid. Whether the Local 

Judicature erred, or not, in coming to this decision, I do not stop 

to consider. It is enough to say that if it decided rightly, it is 

not because our Charter demands an exceptionally indulgent 

treatment of the question, but siuiply because the principle which 

makes the validity of a marriage to depend upon the religions of 

the parties, extends t) polygamous marriages; while, if the Court 

has been wrong, it has erred, not in adopting a principle foreign 

to, and at variance with the law of England, but in stretching, 

beyond its legitimate limits, a perfectly well established one. 

Again, if a Mahometan divorce be valid here — and its validity 
has never been disputed, I believe — it must be, not because there 
is anything in the Charter to make it valid, but because the law of 
En«>hind recognises the right of a Mahometan husband to dissolve 
the marriage contracted by him according to the Mahometan law 
with a Mahometan wife ; upon the same principle that it recognises 
a Jewish divorce effected according to the custom of the Jews, 
without reference to the laws of the State where it was pronounc- 
ed. Ganer v. Lady Ldneshoroiigh, Peake 18. So, in the case put 
by Sir Benjamin Malkin, of a bequest by a Mahometan of property 
*'to be distributed according to the law of God," I agree, and 
indeed I decided only a few months ago, that the distribution must 
be made according to the Koran ; not, however, because the 
Charter requires that the English rules of construction shall be 
tempered by a liberal regard for the Mahometan faith, but simply 
because the strict rules of English law require that the intention 
c^ a testator shall be followed, and permit that that intention, in 
sueh a case as the supposed one, shall be ascertained in the same 
manner as Lady Hewley's gift to *' godly preachers of Christ's 
holy Gospel," was ascertained to be intended for preachers of 
the religious party to which she belonged, — Attorney- General 



34 MAGISTRATES* APPEALS. 

Maxwell, E.V. TFifeon, 9 CI. & F. 355; Attorney-General v. FearRon^ 3 Mer. 
^ 400 — viz.y by extrinsic evidence, shewing whtit was the religion 

Beg. of the testator, and leaving it lo the (?ourt to infer from the fact 
V. so arrived at, in what senso the words in question were used. 

In the sam3 way, if the adopted or natural child of a Chinese 
or a Hindoo, is to be regarded as his heir, it must be, not by virtue 
of any provision in the Charter, but solely because the law of 
England recoijnises him in that character. But if there be any 
subject on which the Courts of all Countries, and especially the 
Courts of En2flan<l and America, where the Common law prevails, 
are agreed in disregarding foreign law, and therefore foreign 
religions and usages als*), it is that of heirship or succession to 
immoveable property. Even as to Contracts entered into, and 
instruments executed respecting immoveable property within its 
jurisdiction, it suffers no other law to prevail. It d nies, in 
limine^ all Comity to foreign laws in matters relating to realty, 
and declares tlmt the law of the sitiis shtill exclnsively govern in 
regard to all rights, interests and titles in and to such property. 
Story Conjl, L, § 463. So far, indeed, has this doctrine been 
carried, that in Doe. d Birthwhistle v. VardUl, 5 B. & C. 438, 2 
CI. & F. 517, 7 CI. & F. 895, it was decided by the King's 
Bench, and afterwards by the Honse of Lords, in accordance with 
the unanimous opinion of the Judges, that a Scotchman born a 
bastard, but made, by the subsequent marriao^e of his parents, 
legitimate, under the law of Scotland, and legitimate therefore 
everywhere, even in England, for every other purpose, could not 
inherit real estate in England, because our law required that an 
heir should not only be legitimate, but should be born after the 
marriage of his mother. " This is a rule" says Alexander, C. B. 
in delivering the opinion of the Judges on the first argument of 
that case in 1835, " not of a personal nature, but of that class 
" which, if I may use the expression, is sown in the land, springs 
"out of it, and cannot, according to the law of England be 
"abrogated or destroyed by any foreign rule or law wLatso- 

"ever In selecting]: the heir for Engliili inheritance, we 

" must inquire only who is ihat heir by the local lav/." 2 67. & F. 
b77. If the law of England, then, refuses the right and character 
of heir to one who, though by the law of his own Country legiti- 
mate, is not born before the marriage of his mother, how can it 
give them to one who is not legitimate by any law, or not a son at 
all of the person whose inheritance he claims ? It is obvious that 
. to hold that the natural son of the Hindoo, and the adopted son of 
the Chinaman is heir to his natural and adopted father here, 
would not be, as in the case of Mahometan marriage, to give an 
extreme application to an established principle of Ltw, but to 
adopt one at variance with the law. 

Both the learned Judges who expressed themselves in favour 
of recognising an adopted son as heir, appear to have treated the 
question whether one person was the son of another, as dep3nding 
upon the same class of considerations as the question whether one 
person was the wife of another. But the two relations are radi- 
cally different. The relation of husband and wife is one of con- 



STRAITS SETTLEMENTS. 35 

tract, and tbe question whether it exists or not is a question of Maxwill,E. 
law. The relation between father and son is founded in nature. ^^* 
The question whether it exists between two persons is a question bio. 
of fact. The relation between father and legitimate son, who is «. 

also his heir, is the same, with this addition, under English law, Willanb. 
that the mother was legally married to the father before the child 
was bom. The relation involves a contract, it is true, but it is a 
contract with a third person, the mother, antecedent to the ori- 
gin of the relation between father and heir. The question, then, 
whether that relation subsists, is a complex one of fact and law. 
If the widow, or the two or three widows of a Mahometan, are 
held entitled in this country to a share of their husband's undis- 
posed estate and effects, it is because the law holds that their 
marriage, celebrated according to the I'ites of their religion, is 
valid, and created the relation of husband and wife. But 
a stranger decorated with the title of adopted son, or a 
natural son, whatever may be his rights under Hindoo or 
Chinese law, cannot succeed to real estate, as heir of his 
adoptive or natural fatlier in a Country governed by English 
law, simply because not his offspring born after his marriage with 
the mother. 

In this Country, it is true, freehold property, as far as regards 
its transmission on death or intestacy of the owner, is taken to be 
of the nature of chattels real ; but chattels real are for the 
purposes of the question under consideration, immoveable property, 
Story Cofl, L, §§ 374, 447, and therefore all rights, interests and 
titles therein or thereto must be equally governed by the law of 
the laud. It may possibly happen that hardship will sometimes 
be the consequence of thus inflexibly applying our laws to men 
alien to us, not only in race and religion, but in all their habits 
and domestic institutions. This, however, is a question for the Legis- 
lature and not for the Bench. Judges and Lawyers may legitimate- 
ly give it full consideration in applying the known and establish- 
ed principles of law to new states of facts ; but if those principles 
are to be departed from or '" modified," it cannot be done by those 
whose whole and sole duty is to administer the law as it stands. 
To leave it in the breast of the Judge to relax or supersede gene- 
ral restrictions and rules, whenever he thinks particular cases not 
within the reason of them would be, as Fearne says [Cont, Fern, 
535u.], a greater mischief in its consequences, than that which 
is intended to be obviated by it ; fo.' this is in fact making the 
disci-etion of the Jud^e the only law in such cases. I must add, 
however, that I am unable to see any hardship in adhering in this 
Country, to the rigid rule of the Common law that all questions 
relating to land are governed solely by the law of the land. 
Owners of real estate are at liberty to devise it as they please ; and 
they may therefore direct that it shall devolve [of course within 
the rule against perpetuity] in the course of succession established 
by the laws of their own nations cr religions. To depart from the 
rule would, it seems to me, lead to great difficulty and confusion ; 
and I cannot but think that those who would suffer Chinese, or 
any other law to have a voice in such questions, overlook the in- 



86 MAGISTRATES' APPEALS. 

Maxwill,B, convenience to which Mr. Justice Story points, " of any nation 
^^' " sufiPering property locally and permanently situate within its 
Baa. " own territory, to be subject to be transferred by any other laws 
V. '^ than its own ; and thus introducing: into the bosom of its own 

WiLLANs. « jurisprudence, all the innumerable diversities of foreign laws to 
" regulate its own titles to such property ; many of which laws 
" can be but imperfectly ascertained and many of which may 
" become matters of subtle controversy." Story Confl. L, § 440. [a] 
Looking back then, to the early history of the Settlement on 
the one hand, and the language of the Charters on the other, I 
think that Sir Benjamin Malkin had good grounds independently 
of the uniform course of authority on which lie relied, for stating 
that the King's Charter had introduced English law into the Set- 
tlement. It was, no doubt, a startling consequence of this doctrine, 
that the laws of an old and civilised community were abolished by 
implication, while those of England were substituted in its stead ; 
but I think that the Eecorder would have found it difficult to ad- 
minister "justice and right" according to the Eoinan Dutch law, 
under a Charter which, in the nximerous particulars already ad- 
verted to, implied that the common law was the only law in force. 
The Charter of 1807 having introduced the law of England 
into this Island, that law, as it existed at that date, would have 
been the law of this country, if another Charter had not been sub- 
sequently issued. This second Charter was granted in 1826, when 
Singapore and Malacca were first united to Prince of Wales' Island. 
The question then arises, did it import the later law into this Sta- 
tion ? The case of Rodyh v. Williamson [6] was a Malacca case, 
and when Sir Benjamin Malkin decided in it that the law of Eng- 
land had been introduced there by the Charter so as to supersede 
the law of Holland, he must have held that the law introduced 
was the law of England as it stood in 1826, since the Charter of 
that date was the only Charter extending to Malacca. If so, the 
same law must, upon the same grounds, have been introduced into 
Singapore by the same instrument. Can it then have had a 
different effect in Penang ? If it had not extended beyond this 
place '^ the justice and right" according to which it directs the 
Court to decide, might well have been understood to mean, as was 
suggested by Sir Benjamin Malkin, " the just and rightful admin- 
istration of the Law which actually existed" [_Rep. Ind. Law Comers. 
87], that is, the law of the land as it had been already established 

[a] Note by the Eecorder to this decision IJour. Ind. Arch. Vol. III., Pt. I.» 
p. 27] : 

" Very little information/' says Mr. M§dhurst in a learned article on Marriage, 
Affinity and Inheritance in China, *' has been hitherto collected as to the local 
" usages in different parts of the Country, with regard to the rights of .succession to 
** property in China.'' [Transactions of the China Branch of the Royal Asiatic Society , 
part IV., p. 30], But if the information which he has collected be correct. Sir 
William Norris was misled in the Case cited, as to the Chinese law of inheritance ; 
for the power of adoption appears to be strictly limited to the male relations of the 
next generation in a regular order of succession. Nothing is said of adopting 
daughters. Even legitimate daughters are not entitled to any share of their 
father's real or personal estate, except on failure of the male relatives who are the 
objects of adoption. 

[6] See foot note [a] page 9 of Ecclesiastical Cases, [In the Goods of Abdullah], 
Vol. II., of these Reports. 



STRAITS SETTLEMENTS. 37 

and in force for the preceding eighteen or twenty years. But to Maxwell, R. 
aiopfc such a construction here af fcer the decision in Rodyk v. Wil- ^^^* 
Uaiu'^ori [a], would be open to great objection. To treat tbe rbo. 
Charter quo ad one station, as merely reorganising a Court, while v. 

qii:> ad the other two it was treated as introducing new law, would Willaks. 
be to ^ive to the same instrument different meanings in different 
localities ; a construction which would have neither convenience 
nor good sense to recommend it. I am therefore of opinion that 
whatever law tbe second Charter introduced into Malacca, was in- 
tro.lucod into eyery part of the Settlement ; and as it Las been 
decided that the law of England, as it stood in 1826 was brought 
by it into Malacca, I am of opinion that the same law became, by 
the same means, the law of Penang. 

Whether a similar construction should be put upon the Charter 
of 1855, it is not now necessary to consider because the Act upon 
which the present motion was founded, was passed before the date 
of the second Charter. But if that question should ever arise, it 
will perhaps be material to consider whether the circumstances of 
the Settlement, or the language of the Charter, require such a 
construction, or rather do not require that it should be treated, 
like all the Indian Charters granted subsequently to 1726, merely 
as an insbriiment reconstructing the Court. As the new Charter, 
confirmed in all respects by Parliament, [ 18 & 19 Vic. c. 93 § 4] 
gives the Judges of the Court " such jurisdiction and authority'^ 
as the Couimou Law and Equity Judges " have or lawfully exer- 
cise ^' in England, there would seem to be some ground for holding 
that any powers conferred on the latter by Statutes passed at any 
tims before the date of the Charter, would vest in the former also. 
So, when it directs the Court to "hear," "give judgment and 
award execution" on "indictments and offences," "and in all 
respects to administer criminal justice in such or the like manner 
and form, as nearly as circumstanres admit, as the Courts of Oyer 
and Terminer and Jail Delivery " in Enq:land, it might be contend- 
ed that the English Criminal Law. as it stood in 1855, was there- 
by made the law hero. On the other hand, it may be material to 
observe that the new Charter does not, like the preceding one, 
abolish the old Court, and introduce the law of England for the 
first time into new possessions, but only reorganises the existing 
tribunal by dividing it into two divisions and adding a second 
Recorder. It may also be important to bear in laind that since 
the date of the second Charter, a le<i;islative b.xly has been es- 
tablished in India, which legislates for the Straits, and that 
difficulties might arise in attempting to give effect at the same time 
to recent Acts of Parliament and Acts of the Legislative Council 
bearing on the same brancli of law. 

How much of the English Statute law which was in existence 
iu 1826, is in force here, is, in some measure, as I have already 
said, a question of construction. The effect of the Charter of that 
year is^ it seems to me, to make tbe English Criminal law in force 

[a] See foot-note [a] page 9 of EccUsiasiical Cases, lln the goods of Abdul* 
lah],. Vol, II, of tiiese Reports, 



38 MAGISTRATES' APPEALS. 

Maxwell^ B. **as far as the condition and the circumstances of the place and 
^^* the persons admit"; the civil law, "as far as circumstances ad- 
Bbq, mit"; and that branch which is administered in England by the 
V, Spiritual Courts, " as far as the religious, manners and customs 

WiLLANs. Qf the inhabitants admit. " In other words, it makes just so 
much of the law of England our lex loci as, according to Bhiek- 
stone, is imported into a Colony newly founded by English settlers, 
viz, "as much as is applicable to the situation and condition " of 
the Settlement [1 Bl, Com, 107]. If a law of the mother country, 
either from the end at which it is aimed, or from the means by 
which that end is souglit to be attained, is local in its character 
[2 Mer, 162, 3] or, even if it be not local, but injustice or incon- 
venience would arise if it were enforced in the Colony [1 Moo. P. 
C. 277] it IS not part of the law of the Colony. It was upon the 
former of these grounds that Sir W. Grant held that the 
Statute of Mortmain [ 9 Geo. II. ] was not in force in the 
Island of Grenada. " What the Legislature had to consider, " 
he says, " was whether, as there was so much of the land of 
England already in Mortmain, it was not expedient to lessen the 
facility of putting more of it into that situation. That was a 
consideration purely local. It related to land in England, and 
to land in England only. " Attorney-General v, Stewart, 2 Mer. 
143, 162. And in another part of his judgment, he points out 
that the provision requiring that deeds of conveyance to Charitable 
Uses, should be enrolled iu the Court of Chancery within six months 
of their execution, shewed that the Act could not apply to a 
Country which did not possess an Enrolment office, since its re- 
quisition could not be complied with there, otherwise what was a 
qualified prohibition in England, would be an absolute prohibition 
in Grenada. {2 Mer. 1G8]. So it was partly on the ground of the 
inconvenience and injustice which would ensue from the enforce- 
ment of the English law which incapacitates aliens from holding 
land, that the Privy Council held that that portion of our law was 
not in force in India — Mayor of Lyons v. Uast India Co., 2 Moo. P. C. 
172; and to all or some of the reasons above mentioned, maybe 
referred the different classes of law mentioned by Blackstone as 
inapplicable to Colonies, viz., "police and revenue laws, the mode 
"of maintenance of the established Clergy, the jurisdiction of the 
"Spiritual Courts^ and a multitude of other provisions." [BL 
Com. 107] 

Now, whether the Acts which provide for the punishment of 
labourers for wilful breaches of their Contracts with their Em- 
ployers, come within any of tl e grounds which make Statutes of 
the mother Country inapplicable, to this Colony, is a question upon 
which I felt some doubt, owing chiefly to a passage in the judgment 
of the Master of the Eolls in the case just referred to, Attorney^ 
General v. Stewart. Sir W. Grant, there says; "Whether the 
Statute of Mortmain be in force in the Island of Grenada, will, as 
it seems to me, depend on this consideration — whether it be a law 
of local policy adapted solely to the Country in which it was made, 
or a general regulation of property equally applicahle to any Country 
in which it is by the rules of English law that property is governed*'^ 



STRAITS SETTLEAEBNTS. 39 

[2 Mer. 160] . If this were strictly correct, no English law would Mixw«iL,B. 
be a part of the law of any Colony, unless it were equally applicable ^^^ 
to eyery Country governed by English law. What Colonists would b.eq, 
c'.ny with IhcMii to their Settlements would be only such laws as v, 

wav! br.saJ on gcMioral piineiples of the widest application, and Willam. 
would nob perhaps include among them some very suitable to their 
condition and very nccessaiy to their wants. The provincial Courts 
to whom it appei^tains to d(»cide in the first instance, whether the 
English Statute is in force in the Cidony, would have to consider 
not merely whether, in the language of Blackstone, the law in 
question was ''applicable to the situation and condition" of its 
own SeltU-ment, or was " neither necessary nor convenient " to it, 
hut whether it wa , iji its nature, of universal application in all 
English Colonies ; a cpiestion which such a Court might often be 
very incompetent to decide, and have inadequate means of deciding^ 
Having regard, however, to the manner in which the proposition 
is stated by Sir W. Grant, I do not think that he intended to lay 
down the law differently from Blackstone. He intended merely 
to decide that the Mortmain Act did not apply to Grenada, and he 
shewed that it did not, by shewijig that it was, from its object and 
machinery applicable exclusively to England. But after all, the 
question here must turn rather on the words of the Charter, than 
on the language of Sir W. Grant ; and I think that all that I have 
to inquire is, whether the Act in question is applicable to the 
situation and condition of this Settlement, that is, whether or not 
it is exclusively local in its object and in its machinery, and whether 
or not injustice or inconvenience would arise from enforc- 
ing it. 

The Act certainly is not exclusively local in its object, which n 

is to give an effectual remedy for wilful breaches of Contract by a 
class of persons against whom the ordinary remedy of an action 
for damages is altogetlier illusor3\ The mischief is not peculiar 
to England. It is, in truth, probably less great there, than in 
most of its possessions, and the remedy is not peculiar to England. 
The Bengal Regulationf^, for instance, provide a similar one in 
similar cases [Keg. 1819, p. 17 § 75]. I observe also, that one of 
the earlier Statutes on this subject, 20 Geo. II., c. 19, is included 
in a declaratory Act passed in the General Assembly of the 
Bahamas, for the purpose of preserving to the Colonists those 
"many good and wholesome laws " of which, s <\s the preamble, 
they had "sometimes been in danger of being d. prived" in con- 
sequence of doubts entertained as to to their beii g in all respects 
applicable to circumstances and condition of the Colony [Claris 
Col, Law. 368] , And it is there ydaced in the same catalogue 
with such Acts as the Statutes of Mertoii, Westminster I. &IL, 
and Gloucester, with the 13th & 27th Eliz., [avoiding voluntary 
conveyances as against creditors and purchasers], with the Statute 
of Frauds, the Habeas-Corpus Act [31 Car. II], and other 
enactments of a similarly general nature. 

In the next place, so far from any injustice or inconvenience 
being likely to arise from enforcing this Act of the 4 Geo. IV., it 
seems to me that both injustice and inconvenieuce would be th^ 



40 



MAGISTRATES* APPEALS. 



WiLLANS, 



Maxwsll>S. inevitable result, if some law of the same kind were not in force 
^^' here. From the affidavit sworn in this matter by some twenty 
Eeo. gentlemen, comprising all the leading employers of labourers in the 
place, — European, Hindoo, and Chinese [a], it appears that for all 
the ordinary heavy work of cultivation, as well as most kinds of 
skilled labour, the country is almost wholly dependent upon ihe 
natives of India, China and Java ; that these men arrive indebted 
for their passage, and receive, on being hired, advances on their 
wages, varying from $18 to $25 for Chinese, from $10 to $12 for 
Klings, and from $35 to $50 for Javanese, [who are generally 
pilgrims on their way home] ; that from 4000 to 5000 Chinese, from 
8000 to 4000 Klings, and from 1500 to 2000 Javanese arrive 
annually, but that few remain long in the country — the Chinese 
dispersing into the adjoining Malay and Siamese territories, the 
Klings returning home in three or four years, and the Javanese as 
soon as their engagements are completed; and that there is a 
constant demand for new labom-ers. It appears also, that from the 
facility with which even the poorest can obtain forest land for 
cultivation on their own acoonnt, labourers soon become disinclined 
to work for wages, and the desire of avoiding the repayment of the 
advances made to them on their arrival, is another motive for 
inducing them to absent themselves, or otherwise wilfully miscon- 
duct themselves in their employment. 

From this statement, I conclude that the Act is not only quite 
as applicable to the condition of this Settlement as it is to England, 
but that it is much more necessary to it; for not only is it more 
difficult to replace here a defaulting labourer by another, by reason 
of the scarcity of men, but also more improbable that damages 
should be recovered from the defaulters, since they are, as a class, 
generally in the last degree of destitution. Besides, in many cases, 
when a labourer in this place absconds, he not merely breaks his 
Contract, but defrauds his employer of the advances made to him, 
since he refuses to repay them in the only manner in whichhe can 
pay them, by his labour. Indeed, so important, so essential I 
might say, do some such stringent provisions as tho3e of the Act in 
question appear to the welfare of the Settlement, that I fear I 
should deprive the community of one of those " many good and 
wholesome laws " to which it is entitled, if I were now to hesitate 
to hold that this Act was part of the law of the place. Lastly, the 
machinery by which the mischief is remedied, is not peculiar to 
England. It is in full force and operation here, for we have, under 
the Charter, both Justices of the Peaqe and a House of Correction. 
Seeing then, that neither the mischief, nor the means by which it 
is redressed, are peculiar to England, but exist here equally, and 
that no injustice or inconvenience can arise from enforcing the 
Act, I am of opinion that the 4 Geo. IV., c. 34, is law in this 
Settlement. 

I now come to the question whether the Magistrate was right 
in declining to a-djudicate upon the case, on the ground alleged, 
viz.y "that the jurisdiction given him had been exhausted by the 



[a.] anU p. 17« 



STRAITS SETTLEMENTS. 41 

previous conviction." In support of this view of the Act, he has Maxwell, R. 

undoubtedly the high authority of the Chief Baron in Ex-parte ^^^- 

Baker, 28 L. J. M. C. 155. In that case, the affidavits tendered rjo, 

to shew that the Magistrate had no jurisdiction, stated that tlie r. 

prisoner had been previously coiivictod and imprisoned ; that on his Willans. 
discharge he had not returned to his service, and that he had 
thereupon been again committed. Pollock, C. B. says: 

" I have come to the conclusion, I must say, satisfactorily to my own 
mind, that the Legislature, by the third Section of the 4 Geo. IV., c. 34, did 
not intend that a workman should be put into prison more than once for nt)t 

fulfilling his coptract I cannot help saying, it appears to me contrary to 

the general spirit of the English law, and the administration of it, that a 
man should be punished thus over and over again, for what substantially is 
the same matter, and which for Civil pui-poses, would be considered and ad- 
judicated to be the same matter, and which W(.)uld admit of but one action 
being brought in a Common law Court in Westminster Hall" I id. p. 168]. 

This opinion is, to some extent shared by Mr. Baron Martin^ 
who in the same case stated it to be his impression that the nature 
of the offence must be looked to, that " if the offence be a man's 
"absenting himself on a claim of right, and accompanied by a 
" declaration that he would absent himself for good, that all that 
"is but one offence, and ought to be dealt with as one ; " while, if 
it was a mere absconding for a day or a few days, the Case was of 
a dift'erent character and should be regulated by a different set of 
rules [icL p. 166]. 

On the other Land, both Bramwcll and Watson B. B., express- 
ed themselves very decidedly of opinion that the Magistrate 
might convict a second time for a second absenting. Bramxoelly B, 
observes : 

" I do not think that the first absenting, and punishment consequent thereon, 
was a dissolution of the Contract* It may give to the Master a right to dis- 
charge the workman. If he does not avail himself of that power of discharge, 
the service continues, and there may be a second absenting himself from the 
same service" \_id. p. 162]. 

Watson, B. says : 

" Vfhcn the imprisonment is over, he is still a servant ; the Contract con- 
tinues, and his absence again, is an absence within the Act of ParHament " 
[id p. 160]. 

As, in this diversity of views, I am left to act upon my own, 
I adopt those of the last named learned Judges. Even the Chief 
Baron does not absolutely deny that the second absenting is a 
distinct offence, for he qualifies his assertion by stating that the 
two Acts are " substantially, " that is, I take it, " not precisely '* 
one. It is perhaps true, that in practice, the repeated acts of 
misconduct would be treated as one offence, and that one action 
only would be brought in respect of them ; but it would be difficult 
to maintain the proposition, that, in strict law, a second absent- 
ing is not a sufficient cause for a second action. If a labourer 
could not be punished for a second absenting, he would haye ^ 



42 



MA.GISTRATES* APPEALS. 



Beq. 

V. 
WiLLANS. 



Maxwell, B. power which the law cartainly denies to wrong-doers in all other 
^^^' cases, viz,y that of takinu: advantage of his own wrong; for he 
would be at liberty to rescind at his own ])leasure his Contract 
with Lis Master, without the consent of the latter But I do not 
think he has any such power. As far as he u concorneJ, the Con- 
tract continues binding, and it is his duty to return to the per- 
formance of it at the expiration of his sentence. If he wants it 
rescinded, he must endeavcmr to persuade the Magistrate to 
exercise in his favour the power which the Act gives him of dis- 
charging the servant from his Contract, — a power probably given 
for the protection of the labourer, but which would have been 
wholly superfluous if the latter liad actual]}^ rid himself of his 
obligation by once breaking it. The Master, iudeed, is at liberty 
to avoid the Contract, and it was contended in Ex-parte Baker, 
as in the present case, that on this account the man was not 
bound to return unless requested to do so ; but I think that 
the objection was satisfactorily met by the answer of Counsel 
in the Exchequer, that if the Contract continued in force as 
against the Servant, a request to continue to perform it was 
unnecessary [id, p. 158]. 

It is clear thit if the Contract were not voidable by either 
party, the Master would not be bound to give the servant notice to 
resume the performance of his part of it ; and it seems to me that 
the privilege of rescission acquired by the Master through the 
servant's misconduct, gives no fresh right to the latter The ser- 
vant, by his default, can give his Master the option of rescinding 
the Contract, but cannot impose upon him the burden of a condi- 
tion, not contained in the Contract. The only notice which the 
Master is, under such circumstances, bound to give, is, not a notice 
of his adherence to the Contract, bub a notice of his intention to 
rescind it. Until such notice is given, the servant is bound to 
treat the agreement as subsisting, and to continue to perform his 
part of it [a.] 

For these reasons, I think that the Magistrate ought to have 
heard and adjudicated upon this case ; and the rule must conse- 
quently be made absolute. 



Rule absolute. 



[a] Recorder's note [Jour. Ind. Arch. Vol. IIT.,pt. I., p. 27] : — ** I was not aware, 
when T delivered this judgment, that a. Habeas- Corpus had been moved for in 
Baker*s Case, in the Queen's Bench, before the appUcatioa to the Court of Ex- 
chequer. From the report of the case in the Queen's Bench it appears that aU 
the Judges \^Lord Campbellf C. J., Coleridge and Erie, J. J.] a<;reed in holding that 
the man's not returning to his service at the end of his iaiprisonment, was a 
second absenting himself from his service, and that he might be again convicted 
and imprisoned— See 26 L, J. M. C. 193." 



STRAITS SETTLEMENTS. 43 

EEGINA V TAN AH FOOK. 

In order to render a person liable to conviction for gaming, it must appear he Pbnanq. 

was gambling in a street or in a place used as a common gaming house : the fact of 

being merely found gaming with others iu a cisual private spot or house, does not Maxwbll, R. 
Iring the case within the Act. ^ 1858, 

The defendant was convicted before J. R. Alexander, Esq., 
Acting Police Magistrate of Penang, of having, under Section 57 
of the Police Act 13 of 1856, been "found gaming in a place 
used for the purpose of gaming." The conviction having been 
removed by Certiorari^ 

Mr. Nairne, by leave of the Court, appeared on behalf of the 
defendant, a coolie on his plantation, and move I that the said 
conviction be quashed. 

The depositions were returned with the conviction, in pursu- 
ance of Section 3 of the above Act. 

Maxwell, R. held that the conviction was bad on the face 
of it, on the grounds that it did not shew that any offence had 
been committed. The 57th Section of the Police Act, enacted 
that " whoever was found in any such house, room or place, play- 
ing or gaming with cards, &c., or was found present there for the 
purpose of gaming, should be liable to fine, or imprisonment" ; 
and it was under this Section that the defendant had been 
convicted. What kind of '^ house, room or place" was meant by 
*' such house," &c., was shewn in the preceding Section. That 
enacted that " whoever being the owner or occupier, or having 
the use of any house, room or place, opens, keeps or uses the 
same for the purpose of gaming being carried on therein, and 
whoever, being the owner or occupier of any house or room" — 
here " place" was left out — " knowinglv and wilfully pehnits the 
same to be opened, kept or used by any other person for the 
purpose aforesaid" shall be liable to fine or imprisonment. To 
constitute " gaming" an offence under Section 57 then, it must 
be carried on either in a house, room or place used by its owner or 
occupier for the purpose of gaming being carried on there, or in a 
house or room used by some body else for the same purpose with 
its owner's or occupier's knowledge and consent. In fewer and 
plainer words the only game prohibited was gaming in a common 
gaming house or hell. 

Now, in this case, the conviction did not shew that the 
defendant was found gaming, or for the purpose of gaming, in 
any such house or place. The offence of which he was convicted 
was, " gaming in a place used for the purpose of gaming being 
carried on there.'* Used by whom ? That did not appear. The 
language of the conviction would be literally correct, if the fact 
was that the defendant had been found by the Police gaming with 
a number of his friends in a shed or out-house in a gentleman's 
plantation, using that place on that single occasion only "for the 
purpose of gaming being carried on therein," not by the public 
generally, but by himself and his friends exclusively, and without 
the owner of the plantation having any knowledge of their being 
SO engaged, or having consented to their so using his buildings 



U MAGISTBATES' APPEALS. 

Maxwell, R But if this were SO, it was manifest that the defendant Avould not 
1S58. have been guilty of any offence under the Act. If it were said 

Reg. v. Tan ^^^^ ^^^ conviction was valid because ifc followed the words of tbe 
Am Fook. Ac^, and that the words " used for tbe purpose of gamiii«^ being 
carried on'' must be understood in the same sense as in the Act, 
that is, as meaning that tbe premises were habitually dedicated 
by their owner or occupier for the purposes of a common gaming 
house, the answer was, first, that the conviction did not follow all 
tbe words of the Act, since it omitted to state that the place 
was used for gaming by or with the consent of tbe owner or 
occupier, and, next, that even if the words had been literally and 
completely followed, the conviction was not necessarily valid on 
that account. When the words of an Act describing an offence 
admitted of two constructions, it was necessary that the conviction 
sbould sbew that the Magistrate had adopted the true one, in 
order that it should be put beyond the reach ot doubt that the 
defendant had committed the offence prohibited by the Act. For 
example, the Act 9 Geo. IV., c. 69, punislied by summary con- 
viction any person who " shall by night unlawfully enter or be in 
any. land, &c., with any gun, &c., for the purpose of taking and 
destroying game" ; and in Fletcher v. CaUhrop, 6 Q. B. 880, a 
conviction setting forth that the party convicted had unlawfully 
entered by night a certain close for the purpose of taking game, 
was held bad. It followed the words of the Act exactly, but 
inasmuch as the Act intended to punish only those who entered 
upon land by night for the purpose of taking game there, and it 
was consistent with the language of the conviction that the party 
convicted had in fact entered the close in question merely on his 
way to take game somewhere else, the Queen's Bench held that 
the conviction was bad. The language of the Act, of course 
admitted of the same wide construction, but that was not its true 
construction; and it was necessary that the conviction should 
shew by suitable words, and beyond all doubt, that the Magis- 
trate had acted upon the true construction. It was not enough 
of the Magistrate in such a case, to follow the words of the Act, 
for the simple reason that the language of the Act became in the 
conviction the language, and as such was construed by the Superior 
Court by very different rules from those which they applied in 
construing Acts of Parliament. In the latter case, they gave to 
doubtful language the meaning that was most consistent with 
good sense — as in the case just cited ; in the former, they did just 
the reverse, they intended nothing in favour of Magisti-ates keeping 
within the limits of their jurisdiction. If an Act admitted of a 
right and a wrong meaning, and the Magistrate did not say clearly 
that he had acted on that which was the right one, it was not 
taken for granted that he had adopted the right one ; and the 
conviction could not be' supported, unless this clearly appeared. 
Now here, it was plain from the language of Sections 56 & 57, 
that the only gaming which was penal was gaming in a common 
gambling. house ; and it was absolutely necessary that convictions 
under them should shew that the party convicted was gaming in 
such au establishment, Therefore, even if the oouYiction had 



STBAITS SETTLEMENTS. 



45 



staled that the defendant had been found ffaminff in a place used Maxwell. R. 
by the owner or occupier for the purpose of gamblin;? boinjr 
carried on therein, it would have been doubtful whether it would Reo. v. Tan 
have been good, as the words would have admitted of a meaning AuFook. 
consistent with the defendant's innocence of having been in a 
gaming house. 

It might perhaps appear to be sacrificing substantial justice 
to mere technicality and subtlety of construction, to quash con- 
victions on such grounds, but this case afforded a striking illus- 
tration of the wisdom of those strict rules that were applied to 
the constraction of convictions. He had said that it was quite 
consistent with everything that appeared on the face of this con- 
viction that the place where the defendant was found gaming was 
a private building, the property of a gentleman who was wholly 
ignorant of the use to which it was being applied, and that the 
defendant with his companions had only assembled there on that 
one occasion for the purpose of amusing themselves by playing. 
When the evidence was looked at, for the purpose of seeing 
whether the conviction could be supported, it turned out that he 
had suggested as possible, and which might bethought an extreme 
case, was exactly the true state of the facts in the present case. 
It appeared on the depositions that the Police Jemadar, who had 
brought the charge against the defendant, had found him in 
company with a large number of Chinese coolies, playing at Poh 
in a shed in Mr. Nairne's plantation at Batu Peringi, but there 
was not a tittle of evidence to shew that the place was used as a 
common gaming house, much less that it was so used by Mr. 
Nairne or with his knowledge or concurrence. The defendant 
then, had not committed any offence. The Police Act did not 
punish mere gaming, but only gaming in gambling houses, and 
by Section 66, gaming in the streets ; and no conviction could be 
good unless it stated clearly that the gaming had occurred in the 
one place or ilie other. 

Here the conviction did not aver that the defendant's gaming 
had taken place either in the one or the other. It was therefore bad 
on the face of it ; and as the evidence clearly shewed that it had 
occurred in neither the one place n(»r the other, it could not be 
amended. It must therefore be quashed. 

Conviction quashed. 



EEGINA V. D'OLIVEIRO. 



The roof or external wall, of a house built before the cominor into operation of Penang. 

Act XIV. of 1856 and which is not contiguous to or adjoining any other buildincr, 

cannot be compulsorily removed : nnd the fact thai such roof is removed subsequently Maxwell, E. 

to the Act being law, makes no difference . 1864. 

A detached hut or building in existence before that Act, may therefore not only 

stand, but be repaired from time to time, provided such repairs do not amount to a August 3. 
renewal of the structure. 

B. Rodyh on behalf of the defendant, had, on the 29th July, 



46 MAGISTRATES' APPEALS. 

Maxwill.E. obtained a Certiorari to bring up the conviction in this matter. The 

^^^* conviction and evideaee wj.e, in pursuanee to this writ, returned 

Rkg. v. ^^ *'hJs Court, from which it a;>p3;ired th it the defendant had, on 

D'Oliveibo. the 2nd July aforesaid, baou eoiivieled by the Hon'ble H. Planket, 
the Magistrate of Penang, " for that he did up to the 15th of June 
last, fail to remove the external atiap roof of his house situated 
within the limits of the town as defined in a public notification by 
the chairman of the Municipal Commissioners on the 23rd January, 
1857, in Leith Street, George Town, in Prince of Wales' Ishind, 
after notice had been duly served on him from the Municipal 
Commissioners, on 11th day of May, 186 A, to remove the same 
within one month from the date of the said notice, against the 
form of the Act in that case made and provided, " and was aljud^j^ed 
by the said Magistrate to pay a fine of two dollars and ten cents, 
being at the rate of ten cents per day from the 12th day of Jun^», 
up to the date of the conviction. Neither the conviction, nor the 
evidence shewed, when the house had been built, nor whether it 
was contiguous to or adjoining any other building. Section 
XXXVI. of the Conservancy Act XIV. of 1856, under which the 
above conviction and order were made, is as follows : 

" The external roofs and walls of hut 3 or other buildings erected or re- 
newed in or near any street after the passing of this Act, shall 
Roofs and ex- j^^^^ be made of grass, leaves, mats or other such inflammable 
houses m.t to be materials ; and it shall not be lawful for the owner of any hut 
made of com- or other building in or near any street now having an external 
busLiijle mate- j.^^£ ^^ ^^j made of any such material, and which is contiguous 
to or adjoining any other building, to suffer such roof or wall 
to remain for a longer time than two years after the passing of this Act, un- 
less with the consent in writlag of tha Commissioners ; and whoever makes 
any external roof or wall of such materials, or suffers any roof or wall made 
of such materials to continue contrary to the provisions herein contained, 
and wh > shall not remove or alter the same within one month after notice 
given to him for that purpose by the Commissioners, shall be liable to a 
penalty not exceeding ten Rupees for every day that such roof or wall shall 
continue. " 

Rodyky in moving for the Certiorari^ contended that the con- 
viction was bad, for not shewing that the house of the defendant 
liad been erected since the Act became law, or that it was con- 
tij^uous to or adjoining another building, and cited Reg, v. Meera 
Lebhy [a.] 

The Hon'ble Plunhet, the Magistrate, now shewed cause 
against quashing the conviction, and contended that Section *d6 
prohibited the construction of a new roof or wall of inflammable 
materials, whether the house was built before or after the 
Act, and whether adjoining or contiguous to other houses, 
or not. 

Maxwelly R. The question raised by the proceedings is, whether 
the owner of a detached house, situated within the town, and in ex- 
istence when the Act was passed, was, since and notwithstanding 
the Act, at liberty to put on a new roof of attap or inflammable 
materials on his house. The object and scope of the whole section 

[a] ante p. 13. 



STRAITS SETTLEMENTS. 47 

seems to me to be this. The Lejyislature desired to preserve Maxwill, R. 
towns from the dannrer of fire arising from collections of huts and ]^^ 
other buildinjxs Constructed, as they generally arc in these conn- bbq. „. 
tries, of grass, leaves and other such combustible materials. In D'Oliveibo. 
dealing with the subject, ib had to consider two classes of pro- 
perty, viz,, huts and buildings which should be erected after the 
passing of the Act, and huts and buildings already in existence. 
As to the former, there was no difficulty in simply and peremp- 
torily prohibiting the construction of any, with grass or other 
dangerous materials. As to the latter, it was to be gathered from 
the language, what might almost be presumed a priori, that the 
Lej^^islature, while protecting the paramount interests of the 
public, desired to interfere with private rights so far only as the 
public interests absolutely required and no further. Huts 
and buildings made of leaves were very perishable. In the course 
of very few years they must tumble to pieces ; and they could not 
be replaced by others of the same kind, owing to the general pro- 
hibition against new huti. Some existing structures could not 
be suffered to continue standing even for that short space of 
time, viz. ; those which were contiguous or adjoining to other 
buildings ; and their removal was therefore required within two 
years. As to detached huts and buildings, they might be suffered, 
not only to stand as they weie, but to be repaired, so long as such 
repairs did not amount virtually to a renewal of the structure, 
until they fell to pieces. It was accordingly enacted, with refer- 
ence to huts and buildinos to be built after the Act, that whether 
tiiey were built on the site of old ones or on new sites, in other 
words whether built or renewed, i, e., rebuilt, the roofs and walls 
should not be made of inflammable materials, and with reference 
to existing ones, that they should not be suffered to stand more 
than two years, if contiguous or adjoining to other buildings. 
This seems to me was the whole extent of the prohibitory enact- 
ment, rend by the rules of legal construction. 

Reading the section thus, the words " erected or renewed" 
agree with, or qualify '• huts and buildings," and not ^' external 
roofs and walls," I hold this to be the right construction, in the 
first place, because qualifying words, like words of refer- 
ence, should be read as applying to the last antecedent, 
unless there be some good reason against it. But it is said that 
such a reason is to be found in the words themselves. " Renewed," 
it is said cannot properly be used respecting a hut or other build- 
ing, while it is applicable and commonly used in speaking of the . 
construction of a new roof. This argument might be retorted by 
taking the other word, " erected," which certainly is applicable 
to a hut or building, thouirh hardly so to a roof. But I do not 
feel the weight of the objection. If a roof may be said to be 
renewed when a new one is made, I do not see why a hut should 
not be said to be renewed when it is reconstructed. The word 
seems to have been used to meet an attempted evasion of the Act 
in two ways. By leaving an insignificant portion of the old build- 
ing, when constructing what was, in substance, a new hut, the 
owner might possibly contend that he had not erected a new hut. 



48 MAGISTRATES' APPEALS. 

Maxwsll,B. and yet find it diffionlt to deny tliat his old one was in reality 
1864. rebuilt, or renewed, by the extensive alterations made in it. Or, 
REo"r ^^ ^® built an entirely new hut on the site of the old one, it might 
I)*Oliv*ieo. perhaps be ope.i to him to contend that the prohibition ngainsfc 
erecting new huts applied ojily v^here huts had not been iu exist- 
ence previously ; but it would not bo easy to establish that the 
word *' renewed" did not meet the case of a construction on an 
ancient site. The word " renewed" was probably used to meet 
such cases. Whetiier putting a new roof on a lint, was not only a 
renewal of the roof, but of the hut, might possibly be a question, 
but this was not contended now, nor was the conviction for renew- 
ing the honse. 

It was next contended that the clause imposing the penalty, 
points out that " roofs and walls" of all houses old or new, are 
the subjects of the prohibition, and not merely those of new huts. 
1 do not follow this reasoning. Unquestionably what is prohibit- 
ed is " roofs and walls," but the question is whether the prohibi- 
tion applies to those of old huts and buildings, and the penal 
clause only imposes a penalty in respect of roofs, &c., made *^ con- 
trary to the provisions herein contained," that is, contrary to the 
enactment at the beginning of the section. If it had spoken of roofs 
and walls " erected or renewed" contrary to the preceding pro- 
vision, there would have been a stronj^er ground for the argument. 

Another reason for construing tlie words as I do, is, that a 
different construction w(mld make the clause veiy ill-framed, and 
the words in question wholly unnecessary. If the intention was 
that no new roofs or walls of any buildings, old or new, should be 
made of grass, &c., the Legislature would have said so in those 
plain terms. The section would have run, "the external roofs 
and walls of huts and buildings shall not, after the passing of the 
Act, be made," or, " be erected or renewed" of grass, &c., and not 
that roofs and walls erected or renewed after the Act shall not 
be made, &c. 

I may add here, that it may be a question whether the words 
" huts or other buildings," include a " house," the species of 
structure mentioned in the conviction. It is a rule of legal con- 
stniction that a general word following a particular one is to bo 
construed as confined to things of the same nature as the 
latter. For instance, the Act which forbids tradesftien, artifi- 
cers, labourers or other persons whatsoever to exercise their or- 
dinary callings on Sunday, does not include a coachman or 
an attorney, because neither is a person whose calling is 
similar to that of the classes particularly named ; Sandi- 
man v. Breach, 7 B. & C. 96, Feate v. Dichen, 1 0. M. & E. 22. 
Whether a house constructed of wood or stone, is a building of the 
same kind as a hut, and whether the more impoi*tant structures 
would not have been specifically named — especially as "house" is 
the generic term, and is repeatedly used in other sections — if the 
Legislature had not intended to confine the prohibition to huts 
and other structures like huts, consisting wholly of grass, leaves, 
mats, &c., are qaestions which may be worth considering, but on 
which, as it is not necessary, I avoid expressing any opinion now. 



STRAITS SETTLEMENTS. 49 

It has been suggested to me, that the marginal note of the ^^^^^*^^»^» 
section might be taken as a key or guide to the meaning of the ^^^' 
Legislature ; and that in the present case it tends to suppoiii the Bko. 
<joiistruetion put upon the section by the Magistrate, as it says, , v- 
generally, that roofs and walls of houses are not to be made of '^'Ouykro, 
combustible materials. This might be admissible sometimes 
perhaps ; but then it must be borne in mind that the marginal 
note is only a general indication of the nature of the enactment 
to which it is attached. There may be simple cases where the 
words of a section are susceptible of two meanings, and the 
marginal note may decide which of the two is the true one. But it 
could be resorted to for such apurpose, I think, only where there is 
nothing in the body of the section to clear up the ambiguity. But 
here the marginal note would be invoked to control a construction 
sanctioned and required by several well established rules, and this, 
I think, would not be done. If any thing might be gathered from 
the note, it would be the conjecture whether the word ^* houses," 
which occurs in it, does not indicate tjiat the same word stood in 
the section also, as origin ally framed, and was designedly struck out. 

There being nothing in the language to require that the 
qualifying terms " erected or renewed" should be applied to any 
but the last antecedent words, are there other reasons for depart- 
ing from the rule of construction ? The object of the enactment 
is to guard against fires in towns, and it may be said that the Act 
should be so construed a^ to meet the mischief most effectually, 
and, as Coke says,' to " advance the remedy." Unquestionably, 
the Act would be much more stringent if the other construction 
were adopted, and the remedy would be more advanced. But this 
rale is subordinate to the more general one, that the intention of 
the Legislature is to be gathered by reading the terms in which it 
expresses itself in their plain meaning and according to the 
ordinary rules of construction ; and I think that, read by those 
rules, the Act must be understood as I understand it. But there 
is another important rule to be borne in mind in construing 
Statutes, namely the penal acts are to be construed strictly. 
This section materially abridges the Common law rights of the 
subject, and visits with penalties those who transgress against it. 
This reason alone would be decisive against the construction put 
upon the Section. To take qualifying terms from the words to 
which they primi facie belong, and apply them to others, where 
they, are unnecessary, thereby giving the sentence a clumsy form, 
and to attribute to (^her words a meaning perhaps wider and 
more comprehensive than naturally belongs to them, might pos- 
sibly be justified under spacial circumstances ; but to do all this 
for the purpose of giving extension to a penal enactment would 
be contrary to every principle of law and legal construction. 

While giving therefore, every ci'edit toMr.Plunketfor his argu- 
ment, it seems to nie that the Act docs not apply to the case which 
was before him. The conviction consequently must be quashed. 

Conviction quashed — Costs to be paid by Magistrate, [a] 

[a] The Order of Court, among records, is to this effect. 



80 MAGISTRATES' APPEALS. 

VELLOO PULLAY v. KADIER & ANOR. 

PsNANO. The absence of Counsel for a prisoner, althou<(h unavoidable, is no j^round for 

postponing the trial of a case ; and the refusinjjf to do so by a Magistrate, is no 

Hackktt, J. ground for an appeal, although the prisoner be convicted. 
1870. 

September 6 ^^^ appellant was convicted of theft by D. C. Presgrave, 

' Esq., Acting Magistrate. He had engaged Counsel to defend 
him, but owing to the unavoidable absence of Counsel in the 
Supreme Court, the case was proceeded with by the Magistrate, 
and the appellant convicted as stated. A postponement on the 
ground of Counsel's absence was applied for by the appellant, but 
refused by the Magistrate. After the conviction, the usual notice 
of appeal was served on the IVIagistrate [on the ground that he 
had improperly refused to a-djourn the case on account of the 
absence of Counsel], when he refused to state a case deeming 
the application frivolous. 

Bond for the appellant now moved the Court, under the Ap- 
peals Act 27 of 18G7 [a], for Vivide nisi on the Magistrate, to shew 
cause why a case should not be stated. A rule having been grant- 
ed, 

D. C. Presgrave, the Magistrate, shewed cause, but chiefly 
relied on the insufficiency of the affidavit on which the rule was 
obtained. 

Bond in support of the rule, contended that the affidavit was 
sufficient, and that this was a good ground for. appeal. 

HacJcett, J. held that it was no ground for an appeal, and 
discharged the rule with costs. 

R^de discharged with costs, 
[a] Ke-enacted by Ord. 12 of 1870. 



REGINA V. MAHOMED OOSMAN & ANOE. 

Penano. -^ person who is charged with assault and roV)bery cannot be simply convicted 

' of the assault, A charge stating an assault to have been "feloniously" made is 

Hackett J. ^^^» *^® word " feloniously " not only being surplusage, but actually converting 
1871.' ' ^^ assault, which is a misdemeanour, into a felony. 

Semhle. The Statute 24 & 25 Vict. c. 96, does not extend to this Colony. 



June 30. 



This was an appeal from the decision of D. C. Presgrave, Esq., 
Acting Magistrate. The facts of the case, as far as are material, 
sufficiently appear in the judgment. 

Bond for appellants. 

D. Logan [Solicitor-General] for resiDondent. 

Hachett, J. This is an appeal from the decision of 
the Magistrate, on the ground that the conviction was 
bad. The appellants were charged with having "unlaw- 
fully and feloniously assaulted and robbed one Nina 
Merican Noordin," and were convicted of the assault simply ; 
there being no evidence of the robbery. The Solicitor-General, 



STRAITS SETTLEMENTS. 



51 



Bkq. 

V. 

Mahomkd 

OOSMAN & 

Anob. 



who appeared in support of the conviction, among other cases, Hackitt, J. 
cited the case of Rejina v. GuttriJges, 9 C. & P. 471, as in point, ^^^ 
and I at Urst certainly thoui>;ht that that case was a direct 
authority, but on consideration I find it is not so. The language 
in the charge in that case was dilTerent. The defendant was there 
charged with rape, which includes an assault, it was a felonious, 
not a common assault, as in the present case. On these grounds, 
I don't think the case of Ee<jlu(i v. Gidlridfies is an authority at 
all as to the point in question. I then thought the word "feloni- 
ously" was mere surplusage, but on looking uj) the authorities, 
I find it's no such thing ; and as to this point, the case of Regina 
V. Felfryman^ 2 Leaoh's C. C. 56*3, is a direct authority. That 
was a case of highway robbery, and the indictment omitted to 
state that the " assault ' was '' feloniously " made. The Court 
held that the omission made the cliarge bad. The special enact- 
ments in England, — such as the 24th & 25th Vict., c. 96, which 
enacts, that if a person be charged with an assault with intent 
to rob, lie might be convicted of the assault simply, — do not ex- 
tend here ; but if they did even, it would not affect the present 
question, as the appellants were not charged with an assault with 
intent to rob^ but with actual assault and robbery. On the whole 
then, I think that the conviction is bad, and accordingly allow 
the appeal with costs. 



HO GHEE SIEW & A.NOR. r. NACODAH MAHOMED. 

A prisoner who commits an offence ont of the jurisdiction, cannot be proceeded Penano. 

aofainst, unless it bo under Act 1 of ISIO, or Yll.of 1854, and the Information for a 

Warrant for his arrest, ouj?ht to disclose such facts as bring the case within those Hackbtt, J. 



Acts, [a] 

Therefore, where A. laid an information, against B, alleging that certain tin 
belonoring to him was stolon by a third party at Larut, and that such third party 
had shipped the tin on board B's vessel, and ordered him to get it resmelted, so as 
to obiitorate A's marks, and then to bring the tin to this Settlement for sale, which 
B. accordingly "did, knowing all the while it was stolen property, — and praying for a 
search-warrant to soizo such tin and compel B. to give an account of the manner in 
which it cxme into his possession, — but did not comply with the provisions of either 
of the above named Acts, or disclose such facts as to bring the case within those Acts, 

lleldy [affirming the decision of the Police Magistrate], that the Information 
was insufficient, and on the face of it, no jurisdiction appeared, and that therefore a 
search warrant ouj^ht not to iosue. 

A Magistrate has power to recall a warrant issued by him, although it may be 
iathe hands of the Police, if he subsequently con?iders that by granting the warrant 
he exceeded his jurisdiction. 

R, C. Woods^ jr., moved for a Mandamus to be issued to D. C. 
Pres^rave, Esv'i., Acting' Manristrate of Penang, commanding him 
to issue a search warrant for certain tin in defendant's possession, 
which had been brought over to Penang for sale. lb was alleged 
that this tin v^as stolen property and had been resmelted, and then 
brouf'ht over to Penang. The Magistrate had, at first, granted a 



1872. 
Nov. 1. 



[a] Sec now 37 & 38 Vict., c 



38. 



M 



ItAGISTRATES' APPEALS, 



Ho Ghss 

SiBW 

& ANOB. 

V, 

Kacodah 
Mahomed. 



HicKTOT, J. ^varrant ; but on further consideration, recalled it, believing that 
1872. Yie had no jurisdiction, the offence having been committed in Lamt. 
By direction of the Court, notice of this application was served on 
the Magistrate, and 

Woods moved for the Mandamus. The first Affidavit states 
that the search warrant had been executed, but the tin after- 
wards released by order of the Magistrate, without trial. The 
second Affidavit states that the Magistrate has since declared, 
that though he had granted the search warrant, he had withdrawn 
it before execution. On application being made to a Magistmte, 
he should either grant or refuse to issue process. In this case, a 
search warrant was granted, and is alleged by the Magistrate to 
have been withdrawn. 1 contend that a Magistrate has no power, 
having once granted a warrant, to recall it and order it not to be 
proceeded with in due course of law. I submit the Magistrate was 
functus officii as regards the warrant, after he had granted it. The 
warrant should be executed, and the case should come before him 
or some other Magistrate in the usual way. I submit the order of 
the Magistrate to the Police Officer not to proceed with the matter 
was illegal. The granting of the warrant is analogous to a judg- 
ment which, according to Mosely on Inferior Courts, p. 410, citing 
Webster v. Mason, 8 Dowl, 705, could not be altered by the Judge, 
without the consent of parties. A Criminal Judge would be in the 
same position. 

[Hachetty J. Is this granting of a search warrant equivalent 
to a Judgment ?] 

I submit it is — the granting is a judicial act and is discretion- 
ary. Here it was granted and the remaining act to be done was 
ministerial, that is the execution of the warrant. 

[Hacketty J. Suppose the Magistrate grants a search warrant, 
and afterwards he finds he has acted illegally, must he go on ?] 

I submit he must allow the search warrrant to proceed. On 
the execution of the warrant, a trial must be had, and then the 
question of illegality or jurisdiction can be argued. 
[Hacketty J. I do not agree with you there.] 

A Mandamus will issue to Judicial Ofi&cers. Tapping on 
Mandamus, 176 ; 12 Mosely 340, 1 ; Mandamus will issue even to 
a Judge of the Vice- Admiralty Court. The facts are shortly these : 
The information alleges a larceny was committed in Larut, that 
a Malay resmelted the tin there, obliterated the Chinese Chops 
on the slabs, and then camo to Penang with the tin, and it was 
feared he was about to sell or dispose of it. 

\_Hachetty J. Could the case be tried here, the property being 
stolen in Larut?] 

I would submit that the Magistrate has jurisdiction to seize 
the tin, and put the person in possession of it on his trial, to 
account how he came by it. 

[HackettyJ. What right have you to get a search warrant? 
If there is property in my house which you think yourself en- 
titled to, would the Magistrate be justified in granting a search 
warrant ? Is not your remedy a civil one ?] 

I submit the Criminal Court would retain the stolen property. 



STRAITS SETTLEMENTS. 



53 



1872. 
HoQhie 

SiBW 

& ANOB. 

V. 

Nacodah 
Mahomed. 



As to jurisdictiou the Penal Code provides by Section 3 that certain HACKrrr, X 
ofiPences thou^'h committed out of the Colony may be tried here. 

Mr. Presgrave [the Magistrate] . I submit that if on the Affi- 
davits the Court thinks a warrant should issue, time may be given 
to argue the matter. 

[HacJcett, J. I suppose you considered after granting the war- 
rant, that you had acted illegally]. 

Yes, that is so. 

[Hacketty J. The only question I think is, whether the Magis- 
trate has jurisdiction.] 

The Court, I submit, will not compel a Magistrate when he 
entertains a reasonable doubt of jurisdiction to do any act which 
may subject him to an action — Rex. v. Buckinghamshire JtisticeSyT D. & 
E. 689, i B. & C. 485, s. c. 3 Nev. & M. 68. So far also from com- 
pelling him to proceed in a matter in which he has interfered, 
provided there is good reason for withdrawing, — it is laid down in 
Bex V. Roderip, 7 D. & R. 861, 5 B. & C. 239, that even when 
Justices have proceeded to convict for an offence, they cannot be 
made to carry out the sentence when it is doubtful that such 
conviction is good. If such course is open to them after extend- 
ed procedure, I submit the same may be done where the steps 
taken are initiatory. 

[Hackett, J. The only question is one of jurisdiction, and I 
fail to see any.] 

Woods. This is a very important case which will decide 
nuiuerous others, and it is of such importance, that I do not think 
it should be decided without great deliberation, and that time 
should be given to argue the point of jurisdiction. 

November 4. The case was now again argued. 

Woods, The Magistrate has jurisdiction to grant a search 
warrant in this case. I am in possession of a case, which was 
kindly mentioned to mo by Mr. Ross, reported in the Pall Mall 
Budget. It was a case against one Wasowsli [a] , for having in 
his possession certain property stolen at Warsaw, from whence a 
man of the same name as the prisoner had absconded. The case 
was tried in England at the Mansion House, and Counsel for the 
defence took the objection that as the offence was committed 
abroad, and there was no extradition treaty with Russia, the man 
could not be tried in England, but the Clerk of the Court suggest- 
ed that as the property was alleged to have been stolen, and was 
found in his possession in England, he should be called on to give 
an account of how he came into possession of it. The Magistrate 
remanded the prisoner, but allowed bail. It was not a case of 
search warrant, but the man himself was arrested and put on his 
trial. It is all the stronger here, where simply a search warrant 
is wanted. Chitty on Criminal Law, page 14, lays down that the 
Magistrate has jurisdiction, and cites Rex v. Kimberley, 2 Strange 
848, and Mure v. Kaye, 4 Taunt, 34 ; and at page 16, Chitty 
repeats the same thing. This is by the Common law, and the 



[a] This case was afterwards dismissed on this very objection— See Howa 
Zfcwj, X8th Oct, 1872, p. 12, 



54 



MAGISTRATES' APPEALS. 



Hackett, J. 
1872. 

Ho Ghee 

SlEW 

& ANOB. 

V. 

Nacodah 
Mahomed. 



Magistrate is perfectly justified in grantinc^ the Avarrant. In Rex 
V. Kimberley, the prisoner was accused in England, of abduction 
in Ireland, and it was held that he could be sent to Ireland. 
This case cites Keb, 225, 2 Vent. 8U, Fifczg. Gil. In31ure\. 
Kaye, there was a special plea setting out an oiience committed 
abroad, the plea was held bad on demurrer, as being too 
general. Baron Heath was clearly of opinion that a Magis- 
trate had jurisdiction to arrest a man for an offence com- 
mitted abroad. This was in 1811, bsfore any extradition treaty 
was made. 

[Hackett, J. In this case it is a question of search warrant, not 
of arresting a man. What object have you in detaining the pro- 
perty ?] 

We first proceed against the property, then against the man 
himself. 

[Hackett, J. Under what section of the Penal Code do you 
proceed ?] 

Under several, we are allowed our choice, first under section 
430. 

[Hackett, J. I don't think that section is applicable] 

Also under sections 410, 411 and 414. The case falJs within 
all these sections. The defendant by resmelting the tin became 
particeps criminis. We have througluut the information alleged 
the defendant's guilty knowledge. In Burn's Justice of the Peace, 
p. 1000, it is stated the Magistrate has jurisdiction not only over 
crimes committed in the place where he is, but also abroad, as 
where an offence is committed in one Country, the man may be 
tried for it in another, citing 2 Hale, 71, also oifences committed on 
the high seas, citing Rev v. Woallen Park, 24. If the prisoner 
cannot be brought up under the Penal Code, he can be brought up 
for conspiracy. 

[Hackett, J. Conspiracy — where '?] 

first in Larut. He conspired abroad and carried out the 
crime here. Reg. v. Bernard, 1 P. & P. 240. 

[Hackett, J. In that case even, there was a doubt, in conse- 
quence of which Lord Palmerston wished to pass an Act, which 
was rejected by the House of Commons.] 

Porsyth in his opinions on Constitutional Law, 246, cites and 
comments on this matter, and thinks the case triable without any 
Statute. The Judge there declared it was a question for the 
Jury. I submit that a careful perusal of that case will clearly 
shew that although the prisonoi' conspired abroad, still he was 
held liable to be tried in L jr. don. Here it is stronger, — the 
defendant conspired in Larut, and came here to dispose of the 
tin. The distinction between a search warrant, and arresting a 
man is clearly pointed out in 2 Hale, 159. The search warrant is 
issued not for the trial of the man, but simply to get evidence ; a 
mere means of getting to the end. The Act 9 Geo. IV. c. 74, 
Sec. 109, which is not repealed expressly by the Penal Code, is 
also applicable. The offence was committed in Larut : the 
moment he came here with the tin, he became liable to be called 
upon to give au account of this property. 



STRAITS SETTLEMENTS. 



55 



[Hackett, J. I want to know the exact section under 
you charge this man.] 

Section 414. 

[HacJ;ett, J, Does it not mean stolen within the jurisdiction 
of the Court ?] 

The words are larj^e enough to mean both within as well as 
without. The section does not say stolen within the jurisdiction. 
If there is jurisdiction at Common law, it does not matter whether 
the man is subsequently released or not ; but I submit he can be 
charged with conspiracy. He Cvomes here with stolen property 
knowing it to be stolen and tries to dispose of it. I am not limit- 
ed by the section of the Penal Code already mentioned but under 
the whole of that chapter. The authorities cited, all shew the 
jurisdiction, but none can be shewn in which the contrary has 
been held. In Rex v. Bernard, the indictment was for Murder in 
Paris. By the Common law, it does not matter where defendant 
conspired, as long as he comes here and makes some move in 
pursuance of it. The cases which seem to militate against me are 
distinguishable. The first is the Burmese v. Regina, 7 Moore Ind. 
App. 72, in which it was held that the Court had no jurisdiction 
over a murder committed abroad. This is clearly distinguishable, 
the murder was at once committed, only one act, and there was 
no repetition : Khu Poh v. Wan Mat, [Straits L. R. 247,] in which 
our late Chief Justice held there was no jurisdiction. It was an 
action for a tort and conversion in Quedah, but the property was 
never brought within the jurisdiction. Reg, v. Lewis, 26 L. J. 
M. C, prisoner was indicted for giving a blow to the deceased 
abroad, from the effects of which the deceased died ; here it was 
held the Court had no jurisdiction, but this was also a single act, 
and there was no repetition of it within the jurisdiction. Regina 
V. Bjosson, 34 L. J. M. C. 180, a prisoner was indicted for murder 
abroad, there again it was only one act without any repetition of 
it. But here there was a conspiracy : prisoner comes here 
continuing the offence, by keeping possession of the property, and 
trying to dispose of it. In cases of finding stolen property, three or 
four months are allowed, but here only last month the tin was stolen. 
The authorities cited are sufficient to shew the jurisdiction. 

[IlaclieUj J. They do not touch on a search warrant.] 

No, they shew the person can be arrested, but here a search 
warrant is simply wanted which therefore makes this case all the 
stronger. If the Magistrate can arrest and commit a prisoner, 
I submit a fortiori he can seize by search warrant. 

[HacJcett, J. You have not asked for a warrant against the 
man, have you ?] 

No, the search warrant commands the property to be seized, 
and to bring up all persons in possession of it, — 2 Hale, 150, 151, 
what is to be done with the goods and the persons. If he 
knew the property to be stolen that is enough to detain him 
as an accessory after the fact. Reg, v. Shaw, 34 L. J. M. C. 
cited and followed in Koo Boo Ann^s Appeal, lately decided by 
your Lordship, [27th April, 1872 —not reported.] shews that we 
can amend the charge by inserting conspiracy. The case in the 



which Hackett, 
1872. 



Ho Qhbb 

SlEW 

& ANOB. 

V. 

Nacodah] 
Mahomed. 



56 



MAGISTRATES' APPEALS. 



Hackett, J 
1872. 

Ho GuBS 

SlEW 

& ANOB. 

V, 

Nacodah 
Mahomed. 



Pall Mall Budget conclusively shews the Magistrate has jurisdic- 
tion notwithstanding there is no Extradition Treaty. The Indian 
Acts 1 of 1849 and 7 of 1854, and the cases in Strange and Chitty, 
all shew a Magistrate has jurisdiction. If he has no jurisdiction, 
then this place will be a nest of robbers, and any thief can come h ere 
and dispose of any stolen property without hindrance. The Magis- 
trate, I submit, has j urisdiction first, to grant a search warrant, aud 
secondly to detain the man till asked for by the foreign sovereign. 

Mr. Presgrnve [the Magistrate] supported his order. I submit 
the Magistrate has no jurisdiction in a case like the present. The 
case just cited by learned Counsel from a newspaper is entirely 
against him. The objection there taken, is precisely what it is 
at present. It remained unanswered and the case went off on 
another point. The prisoner was charged with being in possession 
of property fraudulently obtained, and he was remanded on bail 
for f ui-ther enquiry. I am surprised at the argument of Counsel, 
since it is commonly known that offences committed in Foreign 
Territory by the Law of Nations can only be tried in the coun- 
try in which they occur. The cases cited by learned Counsel 
are those in Avhich British subjects are concerned, and that may 
make some difference. The Magistrate I take it, has no jurisdic- 
tion given him by the Penal Code and none at Common law. 
The second section of the Penal Code provides for all offences 
committed within the Colony, and by the third section, provision 
is made for offences committed beyond the limits of the Colony. 
With regard to the first section there is no difficulty, and with 
respect to the third, the meaning is less clear. If the other sec- 
tions referred to by Counsel had reference to crimes committed 
without as well as within the Colony, there would be no need of 
such a provision, as that contained in the third section. The 
latter section says " any person liable by law" to be tried for any 
offence committed beyond the Colony, shall be tried and dealt 
with under the Code for any offence committed by him beyond 
the Colony in the same manner as if such act had been committed 
within the Colony." It does not say liable by the Code, but 
" liable by law." Now if we refer to the same section in the Indian 
Penal Code of which ours is almost a copy, it will appear quite clear 
what is meant by these words " liable by law." The words of that 
section are as follows : " Any person liable by any law passed by 
the Governor-General of India in Council, to be tried for an offence 
committed beyond the limits of 1 he said territories, shall be dealt with 
according to the provisions of this Code in the same manner, &c." 

I contend that the section of the Straits Code we are con- 
sidering, refers to the Indian Acts mentioned by the learned 
Counsel, viz., Acts 1 of 1849, and 7 of 1854 which provide for the 
punishment of persons on certain conditions, such as British 
Subjects, or, as the Act says, those who have resided within the 
British territories, for six months, and who have committed offences 
in other countries. I have had several cases under those Acts, 
but prosecutions have always been ordered by Government in 
terms of the Act, All that has been said about the Penal Code is 



STRAITS SETTLEMENTS. 



57 



clearly untenable. I think it is hardly necessary for me to make 
any further remarks on this point, and I will simply refer to the 
Acts quoted. 

[Hackett, J. Has not the Magistrate independent 3 urisdiction 
under the Act in case of necessity ?] 

I am not aware he has, — before proceeding to put the Act in 
force, I have always received instructions from Government. 

[HacJcettyJ, Mr. Mayne, the Advocate-General of Madras, is of 
opinion that in certain urgent cases, the Magistrate has independ- 
ent jurisdiction, and section 19 of the Act would imply as much]. 
Such being the case, the information is improperly laid. If 
the other side is proceeding under the section and Act in question, 
it is necessary that the Inforniation should be laid in temns of 
the Act. With regard to arrest at Common law for oflfences 
committed beyond the ordinary jurisdiction of English Courts, 
Criminals are triable only in the countries where the offence is 
committed. Forsyth on Constitutional Law, p. 248 : ** As regards 
Criminal Law, the lex Zoci must needs govern all Criminal juris- 
diction from the nature of the thing and the purpose of that 
jurisdiction," he quotes Warrender v. Warrender^ 9 Bligh [N. S.] 
89, also Heath, J. in Mure v. Kaye, 4 Taunt., also Keighley v. Bell, 
4 Fos. &Fin., 763. The same principle is laid down in Wheaton's 
International Law. At page 118, para. 179, and in stronger 
terms, he says : " It is evident that a State cannot punish an 
offence against its Municipal laws, committed within the territory 
of another State unless by its own citizens ; nor can it arrest the 
persons or property of the supposed offender within that territory ; 
but it may arrest its own citizens in a place which is not within 
the jurisdiction of any other nation, as the high seas, and 
punish them for an offence committed within such a place or 
within the territory of a Foreign State." He goes on to shew 
that countries such as Great Britain and the United States 
have gone so far as to make their own subjects or citizens 
punishable for crimes committed in a Foreign State ; but adds 
that public jurists differ as to the propriety of such a course. 
Should the Couiii be of opinion that there is sufficient jurisdiction 
for a Magistrate to act, I submit that the information is not of a 
nature sufficient to justify a warrant being issued ; mosb of the 
evidence is given second hand, and the little that is primary does 
not corroborate the other — I ask that the application be dismissed 
with costs. 

Woods in reply. Sections 403 & 425 of the Penal Code 
apply to this case. The argument of the other side is simply 
with respect to crimes committed abroad, but the crime in 
the present case is carried out here by bringing the tin within 
the jurisdiction. There is no doubt that there is no jurisdiction 
over an offence committed in Larut, but here only a search 
warrant is wanted against the property, so as to get the man 
to explain how he came by it. The other side has not even com- 
mented on the case in Strange. It might be said it is an old 
case, but it has never been questioned; on the contrary, Forsyth 
at pa^e 246, quQtes it, Seveiral other cases are cited in this case 



Hackett, J, 
1872. 

Ho Ghee 

SiBW 

& ANOB. 

V. 

Nacodah 
Mauohed. 



58 



MAGISTRATES' APPEALS. 



Hackett, J 
1872. 

Ho Ghee 

SlEW 
& ANOB. 

r. 

Naoodah 

Mahomed. 



, wliich we have not been able to <^o\, but no case has been cited 
against us overruling it or otherwise questioning its authority. 
The Dutchman's Case [3Au*e v. Kaye, 4 Taunt. 43] is against 
the Magistrate's contention — both Chittj and Bernard^s Case 
[1 P. & F. 2M)], clearly shew the jurisdiction. 

[Hackett, J. Why did you not charge the man ? In the case 
mentioned in the newspaper produced, the man was charged — 
you don't shew yourself within any of those cases. There is not 
a single Ciise that you have cited whi(di is in point ; none of them 
touch on search warrants.] 

No, but they clearly shew tiie Magistrate has jurisdiction in 
the present case. Our not asking the man to be arrested, can do 
us no harm, we can do so now if the Court says there is jurisdic- 
tion. If there is no jurisdiction in the present case, then there 
will be an end of search warrants. 

■ [Hackett, J. Supposing he bought the goods, could he be 
tried '?] 

The evidence at the trial will shew whether he bought the 
goods or not. 

[Hackett, J. What have you to say about the Information P] 

It is sufficient — It shews the theft^ this man participating in 
it by resmelting it, and bringing it within the jurisdiction, and 
trying to sell it. 

[Hackett, J. The Informatiou slates that the parties are in- 
formed of certain things, but does not state the names of those 
who gave the information.] 

The persons who gave the Information swear to the Inform- 
ation themselves as well. 

[Hackett, J. They do not say the property was stolen, but 
only speak of the shipment,] 

And the resmelting as well. 

[Hackett, J. I shall look into the Cases ; the proceedings here 
are most extraordinary, and no case in point has been cited.] 

Woods. I would refer the Court to 2 Hale P. C. Ch. 18. 



Cur, Adv, ViiU. 



November 11. Hackett, J. Mr. Woods moved on behalf of 
one Ho Ghee Siew and Wong Pak Lcng, for a rule calling on D. 
C. Presgrave, Esq., Magistrate of Police for Penang, to shew 
cause why a writ of Mandamus should not be issued against him 
compelling him to cause the search warrant mentioned in the 
affidavit to be executed. 

It appeared from the affidavit filed on behalf of the appli- 
cants^ that an Information was laid before the Police Magistrate 
on the first instant, wherein it was stated that Ho Ghee Siew 
and Pak Leng, two residents of Penang, were i)ossessed of a large 
quantity of tin which was stored at Larut last month, and was 
marked with the respective chops of the proprietors, Cliin Lee and 
Wah Eng ; that they were informed and believed that this tin had 
been stolen and carried away by one Ismail at Larut who had 
placed a portion of it on board a vessel commanded by one Ma- 



STRAITS SETTLEMENTS. 



59 



Ho Ghee 

SlEW 

& ANOR. 

V. 

Nacodah 
Mahomed. 



homed, and sent it to Teloli Serali in Laimt, where it was resmelted Hackett, j. 
and the marks obliterated by the direction of Mahomed. The ^*^72. 
Information went on to state that 124 of the slabs so resmelted, 
bad been brought to Peoang by Mahomed in his vessel, and were 
then in the harbour of Penani^^ on board this vessel, and that if a 
search warrant were not granted to search for and seize the tin, 
that it would be sold and disposed of. It further appears from 
the affidavit that ihe search warrant was granted and the tin 
seized, but that the Magistrate subsequently ordered it to be re- 
leased. Here then Ave have a crime committed in a Foreign 
Country by persons who are not alleged to be British Subjects, 
and who must, I think, be assumed to be foreigners. 

By the Common law, no County Justice in the Colony, has 
jurisdiction to try such a crime, and there is no Statute with 
which I am acquainted, which confers any such jurisdiction. 
There are certain exceptions to the general rule, as in the case of 
crimes committed on the high seas by British Subjects, or in 
British Vessels, as also in the case of piracy Jwre gentiuvi. There 
is also the Indian Act 1 of 1841), by which all British Subjects, 
and all Government Servants whilst actually in such service and 
for six months afterwards, and also all persons who shall have 
dwelt for six months within the territories of the East Indian 
Government, who shall be apprehended within the said territories 
shall be amenable to law for all offences committed within the 
territory of any foreign prince or State. But it is clear that the 
present case does not fall within any of these exceptions, and 
that as far as it appears from the Information, it is altogether 
out of the cognizance of the Courts of this Settlement. 

Mr. Woods, in support of the motion, has contended that 
the Magistrate having once issued the warrant, was bound to 
proceed with it, and had no right to release the property. But I 
conceive, that if, after issuing the warrant, the Magistrate thought 
that it was a case in which he had no jurisdiction, he had a per- 
fect right to decline to proceed any further in the matter. Mr. 
Woods further relied on the cases of Regina v. Kimherley, 2 Str. 
848, and Mure v. Kaye, 4 Taunt. 43, to shew that the Magistrate 
has jurisdiction in the case of crimes committed in foreign 
Countries. But it appears to me sufficient to say that there is no 
analogy between those Cases and the present. In those Cases, 
there were persons in custody, on the charge of having committed 
crimes in foreign Countries, and the question was, whether they 
should be detained for the purpose of being handed over to the 
authorities of the place where the offence was cognizable. Here, 
there is no charge made against any one, there is no one in 
custody, and the question is whether the Magistrate is bound to 
seize the goods alleged to be the proceeds of a crime committed 
out of the limits of this Colony, and as to which the Courts of 
this Colony have no jurisdiction, on the chance of some charge or 
other being brought against some as yet unascertained person. 
I will not go so far as to say that the Magistrate would have act- 
ed illegally in seizing and detaining the goods, but I think, it is 
a case in which very great caution wa« necessary, and that hq 



60 



MAGISTRATES* APPEALS. 



Hackbtt, J. 
1872. 

Ho Ghee 

SlEW 

& ANOB. 

V. 

Nacodah 
Mahomed. 



exercised a sound discretion in declining to proceed when the 
question of jurisdiction was so doubtful, and the whole proceed- 
ings so vague and indefinite. 

I may also remark, that Mr. Forsyth in his work on Const itu- 
tional Law, p. 870, throws some doubt on the case of Mure v. Kaye^ 
4 Taunt. 43, where the crew of a Dutch ship, having mastered the 
vessel and run away with her, the question arose whether the 
English authorities could seize them and send them to Holland, 
and it was held they might. Upon this case, Mr. Forsyth observes : 
" But I cannot understand how this could have been done with- 
" out the authority of an Act of Parliament. In former times, 
" however, there was a laxity of practice in many things which 
" would not be allowed now." Recent legislation in England, has 
dealt with the question of Extradition, and I apprehend that now, 
no English Court or Magistrate would deliver an accused person 
to the authorities of a Foreign Power or State, without the direction 
of an Act of Parliament. In India also, there is the Act VII. of 
1854, which provides for the apprehension within the territories 
under the Government of India, of persons charged with the 
commission of heinous offences beyond the limits of the said 
territories, and for delivering them up to justice. I apprehend 
that if it is the object of the prosecutors in this case, to apply for 
the extradition of any persons charged with the commission of 
any crime, that they should proceed under the provisions of this 
Act. It is true, that when a person is charged with a heinous 
offence under Section 21 of that Act, and his immediate appre- 
hension may, in the opinion of the Magistrate, be necessary for 
the end of justice, the person accused may, without an order of 
Government, be apprehended and proceeded against in the same 
manner as for an offence charged to have been committed in the 
place where the person accused shall be found; and after his 
apprehension he shall be committed. But in the present case, 
there is no person charged, and the only apparent object of the 
Information, is to secure the goods, whereas the object of the 
Act is to prevent the Criminals from escaping. 

Mr. Woods has also argued that it is possible that some 
persons may have been guilty of some offence, in connection with 
the alleged stealing, committed within the limits of the Settle- 
ment : when such a charge is made it will be time enough to deal 
with it, but in the meantime, as the information does not disclose 
any offence cognizable in the ordinary way by the tribunals of 
this Colony, I must decline to speculate on whether possibly some 
persons at present unascertained, may not have been guilty of 
some offence, undefined in connection with the alleged crime, 
committed within the jurisdiction of our Courts, and I must 
certainly decline to force that view upon theMagisti'ate. A case 
has been referred to as having lately occurred in London, where a 
person was charged with being in possession of certain articles, the 
proceeds of a larceny, [re Wasowsli, supra.] An application was 
made to the Court for his release on the ground that the larceny 
in question had been committed in Russia, with which Country 
JJngland has no Treaty for the mutual Extr^-ditiou of Criminals, 



STEAITS SETTLEMENTS. 



61 



The Court however ordered the prisoner to be remanded. But 
this case, as it appears to me, does not prove that if the Court bad 
thought fit to discharge tbe prisoner, it might not have done so. 
There can be no doubt that the jurisdiction of Criminal Courts is 
local, and only extends to crimes committed within the territorial 
limits assigned to them. The extradition of persons charged with 
the commission of crimes committed in foreign countries is a 
political not a judicial proceeding, and depends, as Wheaton says, 
on reasons of State and not on rules of law. Public Jurists are 
divided as to how far a State is bound to deliver up persons charg- 
ed with crimes comniitted in another country upon the demand of 
a Foreign State. Some distinguished writers, such as Grotius, 
Heineccius, Vatteld, and Kent hold that, in" the case of crimes 
affecting the general peace and security of society, extradition is 
demanded by the country whose laws have been violated, as a 
matter of right whilst other no less distinguished names suppoit 
the opinion that' extradition is a matter of imperfect obligation, 
and only depends on mutual comity and convenience, unless it is 
confined by special compact. If we may judge by the practice of 
nations in modern times, the latter opinion is now generally 
accepted, as it is not now the custom to demand the surrender of 
criminals except in accordance with treaty obligation. 

Upon the whole case, I think the jurisdiction of the Magis- 
trate does nob sufficiently appear in the face of the Information, 
and that he has exercised a sound discretion in refusing to proceed 
further. The rule is refused. 



Hackitt, J. 

1872. 
Ho Ghkb 

SlEW 

& ANOB. 

V, 

Nacodah 
Mahomkd. 



EEGINA V. ABDULEAHMAN & ORS. 



The appeUaTits, some members of the red, and others, of the white flag Society, Penano. 

were con-victed by the Magistrate, of rioting, under section 147 of the Penal Code. 

From the evidence, it appeared that the appellants, as members of the respective Sidobbaves, 

Kongsees, were having a free fight amongst themselves. C. J. 

Held, the conviction could not be sustained, inasmuch as the appellants had 1874. 

not a common object. — ^ 

June 1, 

The appellants were convicted by Captain D. T. Hatchell, 
Magistrate of Penang, of rioting under Section 147 of the Penal 
Code, and were severally sentenced to rigorous imprisonment, 
averaging from one to three months. From the evidence, it ap- 
peared that some of the appellants were members of the red 
flag Society, and the others of the white ; and in consequence of 
a dispute between two members of the respective Kongsees, the 
appellants, as members of these respective Kongsees, turned ont 
at Ayer Etam and had a free fight among themselves. The mem- 
bers of the one Society opposing and trying to do as much harm 
as they could to the members of the other. The appellants were 
all arrested on the spot by the Police, who charged all the appel- 
lants jointly, with rioting, and they were convicted by the Magis- 
trate, as above stated. The appellants now appealed against 
this decision. 



62 



MAGISTRATES' APPEALS. 



SlDaREAYBS, 

C. J. 

1874. 

Req. 

V. 

Abdulrah- 

MAN 
&OBS. 



C. W. Rodi/l% for som3 of the appellants, members of the 
white flag Society, eontende 1 that the conviction was bad, as 
the appellants wore nmnberi of two opposite factions and 
had not a common object in view. Tho object of the members 
of the one Society being", to do as much harm as possible to the 
members of the other. He referred to »Sections 141, 146 & 147 
of the Penal Code, and cited Rc^jlna v. !^!Jieiic Bazu, 8 W. H. C 
R. 47, and Regbm v. Hurroop Chitndra Paul, 12 W. R. C. R. 85. 

Bond for the other appellants, members of the red flag-, took 
the same line of argument. 

D. C. Presgravs, for the respondent, contended that the 
Court would amend the conviction by charging and convictinc*' tlie 
members of the respective Kon^^^sees separately ; that the appel- 
lants had, in fact ,a common object within the meaning of sec- 
tion 141, viz., to fiolit and connnit a breach of the peace, which 
was an "offence," section 141, cl. 3; that the cases cited were 
Indian decisions, and not binding on this Court. 

Sidgreaves, C. J., held that the appellants had not. a common 
object within the meaning of section 141 ; that the Indian deci- 
sions, though not binding on this Court, nevertheless were useful 
as precedents, and as they supported his view of the meaning to 
be put on the section, he looked upon them as authorities. The 
conviction would therefore be quashed. 



Conviction quashed, [a] 



[a] See Ordinance 4 of 1885. 



LAMB V. PONEN & ORS. 

Fenanq, The respondents were laborers, «ind had entered into a contract to work as 

such, on appellant's Estate, for 2i calendar months ; six days before the contract 

Ford, J. expired, they refused to work any further, and were summoned before the Ma<]fis- 

1874. trate— they were summoned before the term expirtnl, but the case was heard after 

the expiration of the term. They had also refused to work on various other days 

September 8. durins^ the term. 

Held, the Mafjistrate could, under the Act XIII, of 1850, order them to return 
and work the six days, as also for such other days as they had refused to work, [a] 

The appellanh was prosecutor before the Magistrate, W. E. 
Maxwell, Esq. The respondents were laborers on his Estate. 
They had entered into a contract with the appelhmt for labour, 
the material portions of wjiich, will be found in the judgment. 
Some six days before the contract expired, the respondents struck 
work — on previous occasions also they had refused to work, 
so that they had not worked 730 days, but something less. 

The Magistrate dismissed the charge, considering he hid 
no power to order their return to work, the contract having 
expired. 

Ross for appellant. Firstly, even allowing respondents had 



[a] See Lamb v. Kattan <Sf ors., 3rd Feb., 1875, infrdj p. 71. 



& OBS. 



STRAITS SETTLEMENTS. 68 

worked 724 days, the Mag^istrate was bound to order them to go Ford, J. 
back to work for the remaining 6 days, irrespective of the terms ^^^* 
of the contract referring to 24 calendar months. Whether they Lamb 
work daily or not, they must work this period. Secondly, on the v. 

assumption of the 720 days or 24 calendar months from date not Ponkn 
having been worked out in full, we claim — whether the period 
extends over the 780 days or not — that we are entitled to the 
services of the coolies severally for such days as thoy have not 
worked. 

Th^ respondents did not appear. 

Cur, Adv, Vult. 

September 23. Ford, J. In tJiis case, the appellant Mr. 
Lamb, is the agent of Messrs. Hrown and Co., and he or his prin- 
cipals entered into the contract for labour which I now have 
before me. The principal features of this contract, — to which, 
as I shall have to refer to them again I will briefly allude now, — 
are a provision for the service of the -respondents as laborers 
with the appellant for a term of 2 years, [the appellant advanc- 
ing a sum of money for their passage from India,, to be repaid 
out of the wages of the laborers] ; a clause which binds the 
laborers to work beyond the 2 years if the advance is not repaid 
within that period ; a clause which states what proportion shall 
be deducted from the monthly wages to repay that advance ; a 
further clause which binds the laborers, in case any of them 
leave the employment of the appellant, or be unable or unwilling 
to work, or be confined in the House of Correction or elsewhere 
for breach of the agreement, to rttalte good whatever loss or labor 
or of money may be thereby caused ; and lastl^^ a clause which 
sets out the consideration for which the labour is given. 

The respondents are two batches of laborers, parties to this 
agreement, who severally admitted before the Magistrate their 
refusal to work the last 6 days of the unexpired term of their 
agreement, and that there were certain other days during the 
running of the agreement upon which, from inability or unwil- 
lingness, they did not work. The appellant, upon these facts, 
applied to the Magistrate for an order under Act XIII. of 1859, 
directing the respondents in the one case to work out the 6 days 
they had refused to work, and, in the other, to work out the days 
on which, during the earlier part of their time, they had been 
" xmable or unwilling to work." The Magistrate declined to 
make the order, and I have now to determine whether his decision 
"vvas correct. I niay express my regret in limine that the Magis- 
trate has not been represented in the argument, and that I have 
therefore no knowledge of the reasons by which he reached his 
conclusions. From another case which has been sent to the Court 
for its opinion, and in which a Mr. Vermont is the appellant, and 
the same points are raised as in this, [but in which the advance 
had not been paid up, and the Magistrate ordered the laborers 
to return to their work and continue it until the advance was 
repaid], I am left to the conjecture that he may possibly have 
considered the Act of 1859 as limiting his power to order laborers 



& OB8. 



M MAGISTRATES* APPEALS. 

^^ft?' ^' ^ return to their work to cases in which the advance had not 

been paid up. It may be as well, perhaps, to say that in the 

Lamb opinion of the Court this would not be "a proper construction of 

V- the Act, and to state the reasons which have guided the Court to 

"T^™ this conclusion. 

It is quite clear from the language of the 1st section of the 

• Act that its provisions apply only to cases of contracts for labor 

upon which a sum of monoy has been advanced, but the section 

which defines the Magistrate's powers in such cnses is the 2nd, 

and is as follows : — 

" If it shall be proved to the satisfaction of the Magistrate that such 
" artificer, workman, or laborer has received money in advance from the 
*' complainant on account of any work, and has wilfully and without lawful 
*' or reasonable excuse neglected or refused to perform or get performed the 
*' same according to the terms of his contract, the Magistrate shall, at the 
*' option of the complainant, either order such artificer, workman, or laborer, 
" to repay the money advanced, or such part thereof as may seem to the 
" Magistrate just and proper, or order him to perform or get performed, such 
*' work according to the terms of his contract, Ac, &c.** 

That this section contemplates the action of a Magistrate ia 
cases where the advance has been paid up seems to me clear ; 
£rstly, because, had it been otherwise, the section instead of 
describing the occasions upon which his powers were to be exer- 
cised as " where the labourer had received money from the com- 
plainant on account of any work," would necessarily have confined 
his powers to cases in which the whole consideration money had 
been prepaid ; and secondly, because the whole language of the 
section shews that his power to order work to be done is co-exten- 
sive with the work to be performed by the terms of the contract 
itself. His power indeed to order the repayment or payment of 
money seems clearly confined to the case where the advances 
have not been re-paid, and where these have been paid his juris- 
diction as to ordering payment of money, ceases. To put the case 
shortly, — when money is due, the Magistrate may order the 
laborer to pay ; when work is to be performed,' the Magistrate 
may order the laborer to perform the work, whether the advance 
has been repaid or not. 

That being the construction of the Act, let us consider its 
operation upon the facts of the present case ; and I would preface 
this consideration by the observation that the Court is not at 
liberty to consider whether the conclusion it reaches, bears hardly 
upon one side or the other. Its duty is only to give the proper 
legal construction to the words of the contract and apply the 
Act accordingly. The arguments which were addressed to the 
Court as to the hardships of any particular construction, cannot 
be allowed to affect its judgment upon a simple question of the 
meaning of language. 

The first case the Court has to consider is that of the labor- 
ers, who, having agreed to work by the terms of the 1st clause of 
the contract for 24 calendar months from the 6th of August, 1872, 
struck work on the 1st of that month, refusing to work the 
remaining 6 days. The Magistrate although of opinion that the 



STRAITS SETTLEMENTS. 65 

Men had broken their contract, declined to order the men to Ford, J. 
return to work ; but, beyond what may be gathered from an ex- ^f^* 
pression tending to show that he thought if the full term of the Lamb 
contract had expired he had no jurisdiction, there are no means v, 

of ascertaining his reasons for refusing the order. If clause 1 of Po^ih 
the contract stood alone, a very literal interpretation of its ^^' 

language might, perhaps, support this conclusion ; but in the view 
I take of the case, viz., that the laborers in such case are bound 
under Clause 8, the point does not become material. If, however, 
as I am informed, the summons was taken out before the 6th of 
August, although not heard until the 11th, the arcfument would 
clearly not be sustainable, the employer being clearly soon enough 
for his remedy. The decision of the case, however, seems to me 
to rest upon the answer to the question. Whether the case of these 
men and of the other class who omitted to work at an earlier period 
of the term for which they engaged, falls within the pro- 
visions of the 3rd Clause ? Does the breach of their engage- 
ments by these two bodies of men under the stipulation 
that they "shall make good the loss of labour or of money" 
incurred by the breach, confer upon the planter a right to have 
his loss repaid in kind or only by money equivalent through the 
process of a civil action '? To get the answer to this question the 
Court has simply to put the correct construction upon the term 
"to make good." Tiie expression is no doubt not so full and 
consequently not so clear as it might be. It has a double mean- 
ing, readily illustrated. The case of a tenant who undertakes to 
make good all injury, or even wear and tear to the premises leased, 
daring his holding affords one illustration. His undertaking is 
not merely to pay money for the damage to the tenement. He is 
bound, should the landlord require him, to make good the 
damage in kind, to leave him the tenement in the condition he 
took it. It may be that the owner as a general rule takes a sum 
of money as damages. That however is for his own convenience 
and cannot interfere with his right to specific performance if he 
wishes it, and can get a Court to enforce it. It is the latter 
difficulty, as Courts of Equity limit their enforcement of contracts 
for specific perfomiance to a limited class of cases, which usually 
induces the party to forego their right in consideration of a 
pecuniary indemnity. The other class of cases, where, from 
inability to make good in kind, a pecuniary compensation for a 
breach of such an engagement is the only remedy, affords 
numerous illustrations. A familiar one would be a contract to 
make good any injury done in the use of cattle or animals hired 
for agricultural or other work. Mr. Webster, in his well known 
dictionary, gives to the teim two similar significations. He 
defities "to make good" as — [1st] to fulfil; to accomplish ; as, to 
make good one's word, promise, or engagement, — [2nd] to make 
compensation for ; to supply an equivalent; as to make good a 
loss or damage. The way in which the expression is used in any 
particular clause, must be gathered from a reference to the cir- 
cumstances under which it is used, the res gestae of the case ; 
from the context ; from the subject matter of the contract. Hei-e 



M MAGISTRATES* APPEALS. 

^^1^4^' the subject matter of the contract is labor and labor only. It 

' is what the planter goes far to seek and runs prreat risk to obtain. 

Lamb It is what the laborer comes far for, and undergoes many priva- 
^' tions to procure. A sudden withdrawal of his labour might place 
&^ouB ^^® planter in a position of ruin ; were it permitted, he would be 
at the mercy of those he has risked so much to obtain. It is, 
therefore, of the highest probability that expressions such as 
these would be used by both parties rather in the sense of making 
good in kind, than in making good by way of compensation in 
money, a form of compensation which, indeed, would practically 
leave the planter -without remedy. 

Does the context support this interpretation? I think it 
does. If to make good a loss of money in this clause means, as it 
clearly does, to make it good i/i money, upon Avhat reasoning is the 
expression to make good loss of labour to be read as implying 
such loss is not to be made good in labor 9 There is nothing in 
the character of labor which in itself renders its restoration in 
kind, difficult or impracticable. There is nothing which I can see 
in the language of the clause which shows any intention that for 
. such a loss the compensation was to be m money. It might in- 
deed be said that as the 1st clause of the contract so clearly 
expresses an event under which the coolies are to work beyond 
the two years, viz,, the non-payment of the advance, a less definite 
expression in another part of the contract must have a less definite 
construction. But I think little can be based upon such an argu- 
ment. -Under clause 1 of the contract, if two-thirds of the gang 
died, the remaining third would still have to work till the 
advance to the whole gang had been paid off. Under clause 3, it 
would not be so. This clause clearly defines in what cases the 
laborer would have to make good the loss of labor or of money 
occasioned to his employers. Death is not one of these cases, and 
this may be the reason [if any search for a reason is necessary] 
why the first clause, which provides for all cases, expresses in 
more decisive terms the liability of the laborers to work out their 
lost days. 

This being the view which I take of the construction of the 
contract, — How is the Act to be applied to a breach of its pro- 
visions ? In England we have not, that I am aware of, any ma- 
chinery for compelling a return to labor and the employer is 
left generally to his civil remedy, or to obtaining a fine through 
the agency of a Magistrate. But the Indian Act XIII. of 1859 
seems framed for the purpose of meeting this very evil in cases 
where advances have been made. Its preamble recites both the evil 
and the inefficiency of the remedy by Civil suit. I cannot doubt 
but that, if the construction now put upon the term '^ to make 
good" is correct, the Magistrate ought to have ordered both these 
classes of men to return to their work. I have not come to this 
conclusion upon the question of construction without some degree 
of doubt, and, looking at the hardships which a stringent en- 
forcement of all the terms of this contract might inflict upon the 
laborers of the appellant, I could wish that there was an oppor- 
tunity of the respondents taking the opinion of the Appellate 



STRAITS SETTLEMENTS. 



67 



Court. As I said, however, in the earlier part of this judgment, 
the hardships of the case have really no bearing upon the imme- 
diate decision. lb is a case of construcHon of the terms used by 
the parties and of construction only. 

I may add, althoivj^h the observation is not strictly relevant 
to the points now determined, that the laborers will receive their 
12 cents a day during the further period of their labor ; and it 
may be vs^ell that, all situated in the position of the appellant, 
should understand that a lesser payment than this amount at any 
time would not improbibly entitle the whole body of their labor- 
ers to vacate th Mr contract. Tiieso joint and seveml contracts 
are capable of a very inhumane application, even to the extent of 
making one man in a hundred work out the defaults of 99 abscond- 
ers. I am glad to find the appelant has intimated that he only 
presses in this case tor an order mjikin<j each man liable to work 
out the days he himself has made default in, and I trust this will 
be a general practice ; but, had he chosen to press his claim further, 
he would probably have been successful. The case must be re- 
mitted to the Magistrate to order the respondents: 1. To work 
up the 6 days ; 2. To work up the loss of labor occasioned to 
the planter by their default. 



FOBD. J. 

1S74. 
Ljlmb 

V. 
PONXN 
&OB8. 



EEGINA V, KOOMAH. 



Where a person carries on the business of a public lottery, and aU the proceed- Penano- 

ings therein, up to the time of declaring the winner and payinj]^ him his winnings — 

such as the sale of tickets, staking, &c., — is done by means of Collectors who go from Fobd J, 
place t>o place in pursuit of their object — but the declaring the winner is made from 1874. 

a house or compound, at which the players are notified to assemble, ■ 

Held, that although the actual declaration may have been made on land which November 4. 
abutted from such compound upon a public street, yet such declaration is from a 
*' plac3 " within the meaning of Ordinance 13 of 1870. 

Where a conviction was in effect under one clause of the Ordinance, but by 
mistake was stated to be under another. 

Held, the mistake was only as to matter of form, and the Court amended the 
conviction by striking out the incorrect clause, and inserting the proper one. 

The prisoner was convicted by Captain D. T. Hatchell, Magis- 
trate, under Ord. 1 3 of 1870, " for having the care and management 
of a iVha Whey lottery." The way. the lottery was carried on, and 
the facts of the case, sufficiently appear in the judgment. 

Va7i Someren for appellant. 1st. This is not a '^ place " with- 
in the meaning of the Ordinance. Doggett v. CatternSy 34 L. J. 
[N. S.] C. P. 46 & 159 ; Bows v. Ftnwick, 9 L. E. C. P. 339 ; Shaw 
V. Morley, 3 L. E. Ex. 137 ; sub.-section 1, clauses 3 & 5 of the 
Ordinance apply as to exhibitions in the "place" where gambling 
is carried on. 2nd. The Magistrate ought to have declared this 
place a gaming house under section 16. He has not done so. 3rd. 
Before proceeding, the house at least ought to have been declared a 
common gaming house and this ought to have been 6 months before 
the prosecution. 4th. The conviction in effect is under section 3, 
clause 3, but concludes that the offence is punishable under clause 5. 

Ross for ri spondont was stopped by the Court on the second 
and tliird points, and requested to address himself on thie first and 



68 MAGISTRATES* APPEALS, 

PoM>, J. fourth only. He contended that under clauses 3 & 5, no place 

^^^' was required, but if a place was necessary, then the house was a 

REa. place, or at least it and the compound were. Bows v. Fenwieh, 

V. supra, Shaw v. Morley, supra, Pitts v. Millar, 9 L. E. Q. B. 380, 

KooMAH. p^r Q J Cockburn ; Clarice v. Hague, 29 L. J. M. C. 105 ; Eastwood 

V. Miller, 9 L. E. Q. B. 440. As regarded the conviction, the Court 

could amend it by striking out clause 5, and substituting clause 3. 

Van Someren in reply. The lottery was carried on in a public 

road. This is not a "place." Case v. Storey, 4 L. E. Ex. 319. 

Cnr. Adv. Vult. 

November 14. Ford, J. This is an appeal from a conviction by 
the Magistrate of Penang of a person of the name of Koomah for 
an oflfence committed against the provisions of our Colonial Gaming 
Houses and Lottery Act, — Ordinance No. XIII. of 1870. The form 
of charge is as follows : 

"For tliat the said Koomah on the 11th day of February, 1874, in Hutton 
Lane in Penang, did " have the care and management of a certain lottery there 
situate" and did also assist the business of the said lottery by exhibiting the 
winning figure, to wit, a moon in a certain lottery ticket, and thereby commit, 
ted an offence punishable under section 3, para. 5, Ordinance 13 of 1870.'.' 

The facts of the case are as follows : The appellant is a person, 
who, sometimes at his own risk and at others in partnership with 
one or more persons, conducts or assists in the conducting of a 
certain game of chance known by the name of the Wah Weh Lot- 
tery. This game is commenced by the preparation of a certain 
number of papers, each of which is divided by lines into a certain 
number of divisions or squares, in the centre of each of which spaces 
is the name or symbol of some animal or other body. These papers 
are sent round by the manager of the lottery to such persons as he 
C9,n induce to join in it, and for this purpose collectors are employed. 
Each player deposits so many cents upon the animal or symbol he 
fancies and writes his name and that of his choice at the foot of 
the paper in a plate prepared for it. He either retains the paper 
himself or entrusts it to the collector until the day fixed for the 
declaration of the winning sign. On that day the manager of the 
affair makes his appearance at a place of which previous notification 
has been given, and the players, either in person or by the agents 
the collectors, appear with their papers. The manager then — it 
may be in a house from a compound, or perhaps on the high road — 
declares the winning symbol by holding it up to the assembled 
players, and pays usually some thirty times the amount of the 
stakes deposited upon it to the apparently fortunate depositor or 
depositors. As the lottery is not closed without a complement of 
many more than 30 members, a good margin is generally left for 
the managers' profits. On the 1 1 th day of February last, the Police 
Superintendent and certain of his officers and of the witnesses either 
went to or were in the vicinity of a house in Hutton Lane, and saw 
the appellant come from the compound of this house and, from its 
abutment upon the high road, before a^ concourse of people, [and 
whom it is not denied were players] , hold up a card with the symbol 



STRAITS SETTLEMENTS. 



69 



of a mooij npoa it — the admitted sign of the prize number of the 
lottery. The appellant then returned to the house followed by the 
Superintendent of Police, who found several lottery papers under 
the pillow of a bed occupied by the appellant. Whilst this was 
going on, the appellant ran out of the house, rushed through the 
adjoining compound, and in the latter was seen to throw away a 
number of other papers of a similar description and which, in the 
absence of rebutting evidence, I must presume to have had reference 
to the lottery he had just declared. The prisoner was seized and 
taken before the Magistrate and charged with being the owner or 
occupier of the house in question, and using the same for the pur- 
poses of a lottery ; but the ownership and occupancy being traced 
to the father of the appellant, the charge was dismissed and a 
fresh summons was issued which resulted in the present convic- 
tion — ^the evidence, however, shewing that the appellant did not 
open his lotteries in the house. The conviction in form follows 
verbatim, the words of the charge. The appellant raises two objec- 
tions to this conviction. The first is, that the premises used for 
the pm^pose of this lottery are not a " place " within the 
meaning of the words of the Ordinance ; the second, that 
if they are so, the offence of which the appellant has been found 
guilty is one within the 3rd sub-section of the 3rd section of the 
Ordinance and not within the 5th sub-section as declared by the 
conviction. On the ground of this error, as well as on the point 
raised^ by the first objection, the appellant asks that this convic- 
tion may be quashed. The form of lottery sought to be put down 
by this conviction, being clearly within the mischief contemplated 
by this Ordinance, I am glad to be able to say that in my opinion 
this conviction can be sustained. 

The material pai'ts of the Ordinance which the Court has to 
keep in mind in considering this case are: 1st., Its preamble, 
which recites as one of the objects of the enactment " the suppres- 
sion of lotteries of a public nature or to which the public has or 
may have access," 2nd., Section 2, which decLires every place kept 
or used for the business of a lottery to be a "common gaming 
house" within the meaning of the Ordinance; 3rd, the 3rd sub- 
section of section 3 under which certain penalties are imposed 
upon whosoever has "the care or management of or in any 
manner assists in the business of a place kept or used as aforesaid" ; 
4th, the 5th sub-section of the third section, under wiiich penalties 
are imposed upon " whosoever declares, draws, or exhibits, ex- 
pressly or otherwise the winner or winning number, ticket, lot, 
design, symbol or other result of any game or lottery" ; and lastly 
section 23, which extends the meaning of the word ' place' to 
'* boats and vessels." Whether .the spot used by the appellant in 
this instance is a place within the meaning of the Ordinance, is 
certainly a question upon which, had it not been for decisions in 
the English Courts upon an Act [the 16 & 17 Vict. c. 119] from 
which this local Act is clearly framed, the Court w(»uld have felt 
the Graves doubt. Looking at the inferential definition of " a 
place" which its 2nd section gives when it proclaims such a place 
a ** common gaming house" and to the coniirmatiou of such a 



FOBD, J. 

1874. 

fiSQ. 
EOOMAH. 



70 



MAGISTRATES' APPEALS. 



FOBD, J. 

1874. 
Bso. 

V. 
EOOXAH. 



place being necessarily of some such structure as would pass 
under the term house, which the insertion of a special clause ex- 
tending the signification of the term to bouts and vessels might be 
held to give, it would, I think, be difficult, but for these decisions, 
to have extended the defiuition to open spaces such as a field or 
compound. The English Act, however, contains a section in 
substance identical with the 2nd section of this Ordinance and 
its existence does not seem to have restrained the Courts at 
Westminster from putting such a construction upon the word. 
The cases to which I shall immediately refer, have extended the 
construction of this terra to places which certainly had nothing 
of the character of a house or covered space about them. I do 
not think therefore, that the Court in this instance [this lottery 
being clearly of a public nature and within the mischief contem- 
plated by the Ordinance] will err in following, or at least guiding 
its judgment by the principles of those decisions. The cases 
under the English Act and which have been cited to the Court, 
are Doggett v. CatternSy 34 L.J. C. P. 159, Bows v. Femvick, 9 L. 
R. C. P. 339, Shaw Y. Morlcy, 3 L. R. Ex. 137, and Eastwood \. 
Miller, 9 L. R. Q. B. 440, and the principle which I deduce 
from these decisions is this — that any spot of which a recognised 
and lawful, although temporary, appropriation is made for the 
purpose of carrying on the prohibited game, is a place within the 
meaning of the Act. [His Lordship here referred at length to 
the facts of the cases cited] . No doubt the case of Doggett v. 
Cattem8,-r-yfhich was the case of a man using the shade of a tree 
in Hyde Park as his place of betting operations, — is a case some- 
what difficult to reconcile with later decisions, but the reasoning 
upon which that case was decided was recognised in the later 
cases, whether such reasoning was strictly applicable to the state 
of facts or not. It was the ambulatory character of the person's 
operations and the supposed absence of any possibility of even 
temporary lawful occupation, that guided the learned Judge's 
decisions. But in the several other cases, cited, viz^ a bench and 
wooden structure on a race course ; an umbrella fixed in the 
ground; and even an enclosure to a field, were held to give that 
fixedness of character to the spot which has been held to be 
necessary. Now the facts in this case are not quite like any of 
the facts in the cases cited. They partalce partly of one class 
and partly of anothbr. All the proceedings of this lottery up to 
the drawing and payment were of an ambulatory character, but 
the drawing and payment seem to ino of a different nature. The 
manager has also such an (»ccupatory interest in the soil of the 
compound and in the house in which he is shewn to have kept 
his instruments of gaming, as to make this his head-quarters for 
bringing the lottery to its conclusion. The people have notice 
to appear outside his gate ; he himself appears in the compound, 
and from thence proclaims his sign and, doubtless, from thence 
would have paid the winner, had his proceedings not been inter- 
rupted. I think, therefore, the place where this game was played 
has a sufficient fixedness about it, and his use of it by his father's 
a.c(juiescenQe constitutes such a lawful a^ppropriatiou of it, as to 



STRAITS SETTLEMENTS. 



71 



bring the case within the principles which have guided the Eng- 
lish decisions and ther»»fore, under tht? circinnstanees, within the 
provisions of the Local Ordinance." Upon the 2nd point some 
(lijficuK J arises, owing to the way in whicli the conviction has been 
drawn up, ib no doubt app(»arin<:,^ on its face tliat the appellant 
has been found guilty of an oflenco under the 8rd sub-section, 
which the conviction then goes on to describe ns an offence under 
the 5th. This error seems lo have arisen from some doubt in the 
mind of its framer ns to which of the sub-sections the offence 
committed most appropriately fell under, the 5th sub-section 
particularising as a positive olfence the act which the charge and 
conviction treat as evidence only of an offence under the 3rd. 

As the declaration oi the particular clause under which a 
prisoner's offence comes does Jiv>t seem to the Court a necessary 
essential to the validity of a conviction, and as the Court considers 
any rule requiring such additional particular directory only, the 
Court will in this instance exercise the larj^^e powers of amend- 
ment given to ib in matters of form by the Magistrates' Appeals 
Acts, and orders this conviction to be amended by the substitution 
of the words '* 8rdsub-sc}ction" for the words " 5th para" therein 
contained. Thus amended the conviction will stand good. 



FOED, J. 
1874. 

Reg. 

V. 
EOOMAH. 



LAMB V. KATTAN & ORS. 

The respondents, who were laborers on a Su.^-ar Estate* and had entered into 
a contract to Avork for one year, wcrt^ char*jed before the Magistrate with fraudu- 
lent breach of contract. It ai)p*Mned that the c )ntract was Siill unexpired, but the 
advances had buen paid off. it aU-o npp ai-.id tbrit to^y refuse J to v.ork in conse- 
quence of the api)t'lJant, their mastei*, clahii"n^>- t:> witlil'.old their -waj^tv^ for seven 
weeks, a,fter ir. A^as duo, on the tjjround of a {general custom to such effect. The 
contract waa silent as to time of pajiuent of wa .,'cs. 

field, firstly, that there c sn bo a fraudiflent broach of contract, notwithstand- 
ing the advances had boon paid oIT, and the Act XIII. of l<o{) was applicable to such 
a case. SscoR'iZy, that the cufj torn wa,3 neither universal, certain nor reasonable, 
and the laborer had " lawful and reasonable excuse,'* for refusinjr to work. 

Tara Duss Bhuttachaije v. Bhaloo 8heiky [8 Sutherland's W. R. Cr. 69] not 
followed. 



PSNANa. 
Fo ID, J. 

January 27v 



The respondents, who were Laborers on the appellant's 
Estate, were charged before .the Ma^j;istrate, W. E. Maxwell, 
Esq., with fraudulent breach of their contract unrVr Act XIII. of 
18>9. The term of their contract lifjd not expired, but the 
amoanb advanced them had been pnid off. The Magistrate held 
that the advance haviiu; been paid olT, the Act did not apply. 

ito.s.s for appellant cited Eegina v. Gauh Gora/i Cacharee, 8 W. 
R. Cr. 69 ; Tara Diiss Bhultacharje v. Bhaloo Sheiky Ibid 69 ; Koon^ 
Joheharry Lall v. Eajah Doomncy, li W. E. Cr. 29; Mayne on 
Penal Code, 492. 

The respondents did not appear. 

Cur, Adv. Vult. 

Pebruary 3. Ford, J. The respondents in this appeal are or 
^ere laborers of the appellant — the manager and part owner of an 
Estate in Province Wellesley, known^as the PryeEetate — and on the 



72 MAGISTRATES' APPEALS. 

PoBD, J. 18th of January last were brought before the Stipendiary Magis- 

If^* trate at Butterworth, charged with unlawfully neglecting and 

Lamb refusing to perform certain work in accordance with the terms of 

V. a contract entered into by them with the appellant, and thus com- 

Kattan mitting a breach thereof punishable under section 2 of Act XIII. 

* ^'**- of 1859. 

This Act — after reciting the loss and inconvenience suflFered 
from fraudulent breach of contract on the part of artificers, work- 
men and laborers who have received money in advance on account 
of work which they have contracted to perform, and the insuffi- 
ciency of the Civil remedy by recovery of damages, and providing 
by section 1. for bringing before the Magistrate snch artificers, 
workmen, and laborers who shall " wilfully and without lawful or 
reasonable excuse" neglect or refuse to perform their contract — 
enacts by Section 2 as follows : — 

" If it shall be proved to the satisfaction of the Magistrate that such arti- 
" ficer, workman, or laborer has received money in advance from the com- 
" plainant on account of any work, and has wilfully and without lawful or 
" reasonable excuse neglected or refused to perform or get performed the same 
" according to the tenng of his contract, the Magistrate shall at the option of 
" the com^ainant, either order such artificer, workman, or laborer to repay the 
" money advanced, or such part thereof as may seem to the Magistrate just 
" and proper, or order him to perform or get performed, such work according 
" to the terms of his contract ; and if such artificer, workman or laborer 
" shall fail to compljr with the said order, the Magistrate may sentence him 
" to be imprisoned with hard labor for a term not exceeding three months, or 
" if the order be for the repayment of a smn of monev, for a term not exceed- 
" ing three months or until such sum of money shall be sooner repaid ; pro- 
" vided that no such order for the repayment of any money shall, while the 
'* same remains unsatisfied, deprive the complainant of any Civil . remedy by 
** action or otherwise which he might have had but for this Act." 

The contract is in the following terms : — 

" It is this day mutually agreed on between Mr. James Lamb, Manager 
'* of Prye Estate and the undersigned Kling laborers as follows" : — 

** We the undersigned laborers do hereby -promise and agree to work on 
** the Prye Estate or any of Messrs. Brown & Co.'s Estates for a period of 
" three hundred and sixty-five [365] working days each and every one of us. 

*' To obey diligently and to the best of our power all lawful commands of 
" the aforesaid Manager and his subordinates and to be careful of all tools, 
" implements, &c., entrusted to our care. 

" For and in consideration for the labor to be so rendered, the said Man- 
" ager on his part promise to pay unto Millmen, Battery and Firemen, wages 
" at the rate of [15] cents of a dollar for each and every day's work, as is 
" customary, working at night — Cane, Boatmen, Field laborers and all those 
" able to work in the No. 1 Gang, fourteen [14] cents for each and every day's 
" work. No. 2 Planting Gang, eleven [11] cents, and boys ten [10] cents of 
** a dollar for each and every day's work. 

" As earnest money each and every one of us on signing this Agreement 
" have received from the said Manager an advance of three dollars ; which 
** said advance is to be deducted from the wages accruing to us. 

*' This Agreement to come into force from the Ist day of January, 1874." 

The respondents had been for some 3 or 4 previous years in 
the employ of the appellant upon another Estate. 

In making the above contract each received an advance of $3, 



STRAITS SETTLEMENTS. 



73 



but did not severally work 365 consecutive working days from the 
1st January, 1874, the date from which the contract was to run ; 
and at the close of the year, the seven respondents were found to 
have respectively worked less than the term by periods varying 
from 35 to 94^ days. 

The advances had however all been paid off. 

The appellant — at what time does not clearly appear, but I 
assume early in January — but without having paid the men wages 
for the previous November and December, desired the respondents 
to work out the days they had respectively not worked. This they 
refused to do, and notwithstanding a subsequent offer on the 19th 
of January to pay them their wages for November, still refused, 
and further declined then taking their November wages unless 
the December wages were also paid. At the subsequent hearing 
before the Magistrate on the 21st, they pleaded non-payment of 
their wages, as a " lawful and reasonable excuse" for a breach of 
the contract. After hearing evidence of these facts and of an 
alleged custom in the Province to pay laborers of this kind 7 
weeks after the expiration of the month for which they were due, 
and that the present defendants had not previously raised any 
objections to the practice, the Magistrate, following a decision of 
the High Court at Calcutta in the case of Tara Buss Bhuttacliarje 
V. Bhaloo Sheik [8 Suth. W. R. Cr. 69,] and expressing his regret 
that, in ignorance of this dicision, he and his predecessors had ^ 
hitherto applied Act XIII. of 1859, differently, held that the Act, ' 
had no appUcation to cases in which the advance had been paid off. 
He was apparently also of opinion thatthe repayment of the advance 
eliminated from a breach of the contract that element of fraud 
which is necessary to call in the operation of the Act. Taking 
this viewr he did not think it necessary to go into the question. 
Whether, if the construction were otherwise, the respondents had a 
lawful or reasonable excuse for breaking their contract confining 
himself to an indication of what his opinion would probably be. 

From this decision this appeal is brought. 

Now that there are two requisites necessary to bring into 
operation the provisions of this Act, viz,, a contract upon which an 
advance has been made, and the fraudulent breach of it, cannot, I 
think, be disputed. ; but to the proposition, " that of a contract 
where an advance has been made and paid off there can in the 
nature of things be no fraudulent breach" — a proposition which 
certainly receives some countenance from the observations of the 
learned judges who decided the Indian case before mentioned — 
this Court is unable to assent. The Act might indeed by its lan- 
guage require the extra ingredient of an unworked off advance to 
make a breach of contract " fraudulent" within its own intent and 
application, and whether this is so is the main point which, in this 
case, the Court has to determine ; but the conceivable cases in 
which a breach subsequent to paying off an advance would be in 
its nature fraudulent, seems to the Court so numerous as to render 
the general proposition untenable. A familiar class of cases sug- 
gests itself at once in the form of contracts, well known in these 
Settlements, where advances of wages are made in order to enable 



Ford, J. 
1875. 

Lamb 

V. 

Kattan 

&. 0B8. 



& OBS. 



74 MAGISTRATES' APPEALS. 

FoBD, J. the laborer to pay his passage to the Colony, and which 

^^- without the fulfilment of the contract in the particular of* 

L^^P dui'ation, no employer would enter into. Another illustra- 

V. tion would be afforded by a combination of laborers refus- 

Kattan ing to do the work they contract to do, at a time of year, 
*' ^"" when, from the particular nature of the crop, the employer would 
in the dearth of the labor market, either lose his crop or be abso- 
lutely at their mercy as to the cost at which he should get it in. 
Can it be said that the attempt to use the employer's capital, for 
the purpose only of securing to himself a p{issao;e to the country 
of import in the one case, or a comhination to drive the employer 
to give him higher wages in the other, by a wilful breach of the 
deliberate obligation to work for a period o£ time which would 
keep the employer safe against such contingencies is not a fraudu- 
lent breach ot* the contract ? I am unable to see to what breach 
of contract the term fraudulent is more applicable. The fact of 
the existence of an unpaid advance would indeed make the fraud 
grosser, but I am unable to apprehend the reasoning which makes 
the fulfilment of one part of the contract by repayment eliminate 
altogether fraud from a breach of the rest. The " lawful or rea- 
"sonable excuse" seems to be the true test of fraud and the one 
to apply to every term of the contract. Indeed, it would probably 
be correct to trace the element of fraud in all breaches of contract 
between employers and certain classes of workmen where the 
breach is by the workman without lawful or reasonable excuse, 
for I need hardly call attention to the existence of exceptional 
legislation by which, even in Eno:land, ceHain classes of work- 
men are made liable in the form of fines and imprisonment 
for breaches of contract where no element of an adv«ance comes 
in. I do not understand any basis upon which this special 
legislation against a class, can rest except on that of an element 
of fraud in the acts of a, person breaking, without lawful 
or reasonable excuse, a contract, for the breach of which he knows, 
from his own position of pecuniary immunity, his master can 
never obtain any proper satisfaction. For reasons it is not neces- 
sary to search for, for it may be tliat the term '^ fraudulent" 
breach is not found in the preambles of the Acts imposing these 
exceptional liabilities, but that it is in the existence of this ele- 
ment that the Magistrate either consciously or unconsciously 
acts, seems to me indisputable ; neither is this underlying truth in 
substance affected by the circumstance, 'that the Magistrate is 
obliged to give the offender a certain locus penitentioe by making 
a previous order to work or imposition of a fine and, upon disobe- 
dience to this order only, one of imprisonment. Tiiis indeed is the 
course of procedure rendered necessary in the Indian Act now 
under consideration, which in terms is applicable to breaches of 
contract of a " fraudulent class. 

Leaving this general question, and turning to the construc- 
tion of the Act itself — which has, at least, by express provision, 
added the element of an advance as a necessary ingredient in t'he 
circumstances from which a fraudulent breach to be inferred, the 
Court has to consider, 1st 5 Whether the words of the Act have 



STRAITS SETTLEMENTS. 75 

imited its operation to cases in which not only has there been an Ford, J, 

advance, but to cases only where such advances or some portion ^^^ 

thereof are still unpaid, and, 2nd, whether, if tlie Court is of lamb 

opinion the Act is not so limited, the respondents have shown v. 

lawful or reasonable cause for the breaches they have committed. K^ttan 

•^ , , & OB8. 

Upon the lirst of these questions, I am clearly of opinion the 
language of the Act does not so limit its operation, and that its 
language is inconsistent with such a limitation. Except by the 
process of arbitrarily narrowing the term fraudulent in the way 
I have before condemned, there is certainly nothing in the title, 
preamble or other clauses of the Act which would lead to such 
inference, and, if it be found at all, it would be — as seems to have 
been thought by Mr. Justice Hobhouso in the case of Bhuttacharje 
V. Bhaloo Sheik — in the words of the 2nd section. By that Section 
there are two things which the complainant is required to do. 
He is [1] to prove the advance of the money ; [2] to show a wilful 
breach without lawful or reasonable excuse. Upon this the Mag- 
istrate is to act. The complainant is not called upon to prove that 
the advance has not been paid of. The words of the Act make 
his part done when he has proved it has been " received on ac- 
count of " any work. The Magistrate upon this is to do one of 
two things. He is to order the laborer to pay the money advanced 
or so much that as he may think fit, or to order him to perform or 
get performed the work according to the contract. This alternative 
power is certainly treated by the learned Judge in the case before 
mentioned, as indicative of an intention to confine the action of 
the Magistrate to cases where money is actually due by the em- 
ployer, but the clause seems to me quite consistently to meet either 
state of facts — if there is a subsisting advance, he might in his 
discretion either order its repayment or a return to work, or if 
the advance is paid off a return to work only. That this is its 
true construction seems to me clear when we come to apply the 
other language of the Section to cases upon the hypothesis that it 
apphes only to those where the advance has been paid off. Upon 
this hypothesis we are at once met by a double and undoubted 
inconsistency, for to sustain it, the complainant is forced to prove 
what the Act does not require of him, viz., the existence of an 
unpaid -off advance ; and the Magistrate is told to do at his in- 
stance that which he could not do, viz., to order the laborer to 
perform or get the work performed according to the contract. Now, 
to enable the Magistrate to fulfil this latter injunction, he must 
first eliminate from the contract one of its most important fea- 
tures, viz., the time of its duration. He could in fact only order 
so much of the contract to be fulfilled as consisted in working off 
the advance — that is not a performance of the work according to 
the contract, but a part performance only of the work stipulated 
for, similar in kind, perhaps, but wholly different in quantity. 
Such a construction would in the judgment of the Court not give 
proper effect to the words of the Act in- one instance, whilst it 
would extend, what is required by them in. another. Upon these 
grounds, the Court cannot concur in the construction contended 
, and must hold the Act to be applicable to fraudulent breaches 



76 



MAGISTRATES' APPEALS. 



POBD, J. 

1875. 
Lamb 

V. 

Kattan 

& OBS. 



of contract upon which advances have been made, irrespective of 
the circumstance of the advance being paid off or otherwise. 

The only authority quite in point is the Indian case before 
named and, which, although not binding upon this Court, would as 
a judgment of the highest Indian Court, command a careful atten- 
tion and calls for some observation. Whilst expressing my con- 
currence in that decision, so far as it rests upon the absence of 
fraud, I am unable to concur with the reasoning upon which the 
learned Judges therein further determined that Act XIII. of 1859 
applied only to cases where advances had not been worked off. The 
case was one similar to this now before me, and one in which 
a sum of money was due to the laborer at the time when he refused 
to continue working, differing only in the circumstances of there 
being no allegation, as in this case, of a custom authorizing the 
employer to retain wages of the laborer after they became legally 
due. The language of the Act does not seem to have received 
any very careful attention, the only allusion to its language being 
by Mr. Justice Hobhouse, who expresses his opinion that the 
penalties imposed under Section 2, show that the case does not 
come within the terms of the Act " for the Magistrate is either to 
cause the money advanced or any part of it to be repaid or he is 
to direct the laborer to perform or get performed the work." I 
have already observed upon what, I think, the true view of this 
clause, and it is further to be noted that the words ^* Recording to 
the contract" do not appear to have caught Mr. Justice Hob- 
house's attention. 

In so far as the judgment of Mr. Justice Jackson confirms 
this construction of the Act, his reasoning seems to rest upon 
considerations foreign to its language. 

He says : 

" If such a case come within the Act, a man might he hound, upon an 
*' advance of one rupee, to work for 20 years ; and although the Magistrate 
" might prohahly not enforce the contract, still the complaint would be cog- 
*' nizahle, and the Magistrate would prohahly he hound to issue his warrant or 
" summons, and the knowledge that the Act might he applied in such a case, 
" would have the effect in many instances of reducing the workman to some- 
" thing like bondage. I therefore concur with my brother Hobhouse in hold- 
" ing that the Joint Magistrate was right in refusing to entertain this com- 
" plamt." 

No doubt in the construction of Acts of Parliament reasoning 
ah inconvenienti, as it is called, is one method of reaching the true 
sense wheii the effect of language is in doubt. But even upon the 
admission of uncertainty in the language here, no such results as 
those anticipated by that learned Judge, are to be feared in these 
Settlements from the construction he deprecates. 

The mere knowledge that the Act might be applied in such a 
sense would certainly not reduce our laboring classes here to any- 
thing like a state of bondage, their fears of appearing before a 
Magistrate to try their Masters' claims not being so great here as 
to make that condition seem preferable in their eyes. But on the 
iurther conceded assumption that this could be shewn to be other- 



STRAITS SETTLEMENTS. 77 

wise, sucli an application of the argument from inconvenience, it ^ono, J. 
seems to me, would be carrying this rule of construction to a ^f^' 
length far beyond what any authorities justify, and to a length Lamb 
which would land us into speculations so vague and uncertain as v. 

to make the rule well nigh too dangerous for application. The ^^'"'^'* 
danger indicated of such contracts as these creating a state of 
bondage, seems indeed to meet its refutation in the observations 
of the same learned Judge, for, as is pointed out, if the contract 
were in effect one which amounted to something like bondage, 
" the Magistrate might probably not enforce it," or, in other 
words, he would deem the breach not a fraudulent one, and, exer- 
cising the discretion imposed upon him by the Act, would leave 
the employer to his civil remedy. 

We now reach the 2nd point in this case and one upon which 
I have bestowed a very anxious attention, viz.y whether the res- 
pondents have committed a fraudulent breach of the contract or in 
other words have refused to go to work wilfully and without 
lawful or reasonably excuse. The facts of the case are not dis- 
puted. There were 2 months' wages due to the respondents at the 
time of their refusal and the appellant claimed a right to retjiin 
each month's wages for weeks from the time they foil due. In 
the absence of some term in the contract which shall authorize 
such a detention of money ; or some custom binding upon them to 
submit to, or some conduct upon their part which shall by long 
acquiescence and consent have established a right in the employer 
to make such detention, I am compelled to say that the respon- 
dents declining to work does not seem to me a fraudulent breach 
of their contract. Any such right the Court is quite unable 
to gather from the terms of the contract which is silent entirely upon 
the subject of when wages are to be paid. .In this silence and 
with the well established custom both in the planters' estates and 
throughout the Settlement of paying labor of this kind monthly, 
such would be the condition imported into the contract upon that 
point — probably with the additional requisite of a few days for 
making up the various accounts of the men. On a careful study 
of the evidence given to prove a special and binding custom to 
pay wages to coolies, [whether old or new, under a first or a second 
agreement,] 6 & 7 or 8 weeks after they are due, I am unable to 
reach the conclusion that such custom is established. To estab- 
lish such a custom, there must, amongst other things, be shewn 
to be a universality of practice over the area or amongst the class 
in which it is to operate. It must also be certain and it must be 
reasonable. The evidence shows that although the practice does 
prevail on many planters' estates, it is not universal even amongst 
that class of property, and it is probably little, or almost 
unknown amongst the general run of employers of this class of 
labor. 

The alleged custom is itself uncertain in several of its fea- 
tures. In some of the estates, the practice is to pay 6 weeks, in 
some 7 weeks after the wages are due, and in others it prevails 
only amongst what are called old Coolies, whilst in some amongst 
both old and new. I should hesitate indeed to call it a reasonable 



IS 



MAGISTRATES' APPEALS. 



POBD, J. 

1875, 
Lamb 

V. 

[Kattan 

& 0B3. 



practice, for it obviously works very hardly upon tlie laborer, and 
it is not diflScnlt to see how the difficulties in which it may place 
him, give the master aninstruincnt of pressure upon him, beyond 
the master's h'<j;al ritrlit:^, an<l which iiu<^ht go far to deprive the 
laborer of any real freedom of action. 

I am unable also to como to any other conclusion, but that 
the acquiescence of the respondents iu the practice, does not 
destroy their legal right to secure their wages when they become 
due. It is not the part of a Court of Justice to weigh with nice , 
distinctions the moral blame which may attach to a person 
acquiescing in an infringement of his rights and then suddenly, 
perhaps, and it may be even ungratelully, asserting them to the 
annoyance and inconvenience of his employer. The question for 
such a tribunal is : Is or is not the person acting within his legal 
rights in what he has done ? Acquiescence in the deprivation of 
a right, must certainly be of a very much longer period and in 
other relationships than exist between the appellant and respon- 
dents in this case, before the Court could hold it to be lost. I am 
led therefore to the conclusion that the respondents had lawful 
and reasonable excuse for the breaches they have committed, so far 
as to free them from the special penalties imposed by Act XIII. of 
1859; and that, for the injuries he may have received by such 
breaches, the appellant must be left to his civil remedy. 

The Magistrate's decision must therefore be affirmed, although 
the grounds upon which it is bused are held to be erroneous, and 
the law is restored on the question of the extent of the operation 
of the Act discussed, to what it has hitherto been held to be in 
these Settlements. 

As this decision may probably in its effects reach beyond the 
immediate case before the Court, I think it only right to call 
attention to another objection which might have been raised to 
the Magistrate's action in this case. The contract itself must, I 
think, be read as an agreement to work for 365 consecutive days 
from the 1st of January last. The time this contract having 
expired, the question might arise as was pointed out in the case 
of Lamh v. Fonen & ors. [a] [but which in that case was held 
avoided by the express undertaking of the laborers, to " make good" 
all losses from not working their full number of days] — whether 
the power of the Magistrate was not exhausted, there being 
nothing more in the contract for his order to operate upon. The 
insertion of a clause similar to that in Larnh v. Po7ien & ors, 
would be at least a wise precaution to take, and I need hardly 
add that a special agreement as to time of payment of wages, 
might avoid the somewhat unsatisfactory result of this appeal. 



[a] ante p. 62. 



STRAITS SETTLEMENTS. 



79 



VERSAY V. MAHOMED HANIFF. 

After the care for the defence has been closed, evidence in reply, which corro- 
borat?s the case fo.' the pr.>p.ccution is iEadmisi-ible : hut if the eyidence is immate- 
rial, by reason of there belnfr suffi^^iont cvidoii':(> to convict, apart from the evi- 
dence so vsrrongfuliy admitted, the irro^ularity is cured by section 57 of Act II of 
18l5, and the conviction will be upheld. 

Act II of 1855, sec. 57, applies to convictions by Magistrates. 

The appellant Versay, haJ been couvicted of theft by Cap- 
tain D. T. Hatchell, Magistrate. On the conclusion of the de- 
fence, the Magistrate had allowed evidence to be gone into in 
reply to the evidence for the defence. This evidence corroborated 
the case for the prosecution. 

Van Someren for appellant, contended that the conviction 
was bad on the ground that the Magistrate had allowed evidence 
to be called in reply, which not only rebutted the evidence for 
the defence, but corroborated the prosecutor's case, after the case 
for the defence had closed. As to the inadmissibility of such 
evidence, he relied on Bc(jina v. HUditch, 5 C. & P. 299, and 
Jacobs V. Tarlston, 11 Q. B 421, and even if the evidence was im- 
materially corroborative of plaintiff's case, it still vitiated the 
proceedings. Baily v. Haines, 19 L. J. Q. B. [N. S.] 73. He 
contended further, that the evidence being inadmissible, the ad- 
mission of it made the conviction bad. Regina v. Fuidgey 33 L. J. 
M. C. 74. He also referred to Act II. of 1855, sec. 57, but submitted 
it did not apply to Magistrates' convictions. 

Fordy J. affirmed the conviction, holding that although the 
evidence was improperly adniitted, yet the irregularity was cured 
by Act II of 1855, sec. 57. [a] 

Conviction affirmed. 

[a] The following is the Section. " The improper admission or rejection of 
evidence shall not be ground of itself for a new trial or reversal of any decision^in 
any case, if it shall appear to the Court before which Eiuch objection is raised, that, 
independently of the evidence objected to and admitted, there was sufficient evi- 
dence to justify the decision, or that, if the rejected evidence hail been received, it 
ought not to have varied the decision/* 



FofiD, J. 

1S75. 
Febniary 5. 



HAJI SAHID V. SHAIK PEEOO. 



A partner who dishonestly misappropriates part of the partnership property, 
is liible to be punished criminally under section 403 of the Penal Code. 

The appellant Haji Sahid, was prosecutor before W. E. Max- 
well, Esq., Magistrate of Province Wellesley, in a charge of crimi- 
nal breach of trust against the respondent. It appearing in evi- 
dence that the respondent was a partner of the appellant, the 
Magistrate dismissed the charge. 

Thomas for appellant. The Magistrate ought not to have dis- 
missed this case. The offence committed, was a " dishonest mis- 
iippropriation of property" or a " criminal breach of trust," section 
403, illustration c, and section 405. In re Lai Ohand Eoy, 9 W. 



Penang. 

FoRDi J. 

1876. 
December 5. 



Pkboo. 



80 MAGISTRATES' APPEALS. 

FoBP, J. R, C. R. 37, and Kenmly^s Penal Code, comments on section 403. 

^^- Bond for respondent. One partner cannot bring a criminal 

jlj^j^Qj^^jy BXiiion against n,not\ie\\ Lindlnf on partnership, 718. Until there 

V. is some Statute enablinu^ one partner to prosecute criminally 

^Jl^ another, for wron;^ful dealincr with partnership property, one 

^"'^ partner cannot sue another, llegina v. Evans, 9 Cox. 0. 0. 238, s. c. 

82 L. J.M. C. "dS. A partner would not be included under the terms 

of the Code, unless so named. 

Cur, Adv. VuU, 

5th February, 1876. Ford, J. In this case, one Sliaik Peroo 
was charged with dishonost misappropriation of property and cri- 
minal breach of trust. The charges are in the following terms : — 

1. That Sliaik Peroo, on or about the 22nd MarCli, 1874, at Permatang 
Bertam, Province Wellesley, did dishonestly misappropriate to his own use, 
certain moveable property, to wit, 33 bags of betel-nuts, in breach of section 
403 of the Penal Code. 

2. That Shaik Peroo, on or about the 22nd March, 1874, at Perm.atan«r 
Bertam, Province Wellesley, being entrusted with property, to wit, 33 hags 
of betel-nuts, did dishonestly misappropriate and convert to his own use, 
that property, in violation of an implied legal contract which he had made 
touching the discharge of such trust, in breach of section 405 of the Penal 
Code. 

The sections of the Penal Code, and the illustrations material 
to the case, are as follows : — 

403. Whoever dishonestly misappropriates or converts to his own use 
any moveable property, shall be punished with imprisonment of either descrip- 
tion for a term which may extend to two years, or with fine or with hoth. 

Illustration [c]. A. and B. being joint owners of a horse, A. takes the horse out 
of B's possession, intending to use it. Here, as A. has a right to use the horse, he 
does not dishonestly misappropriate it. But if A. sells the horse and appropriates 
^he whole proceeds to his own use, he is guilty of an ofifence under this section. 

405. Whoever, being in any manner entrusted with property, dishonest- 
ly misappropriates or converts to his own use that property, or dishonestly 
uses or disposes of that property in violation of any direction of law pres- 
cribing the mode in which such trust is to be discharged, or of any legal con- 
tract, express or implied, which he has made touching the discharge of such 
trust, or wilfully suffers any other person so to do, commits " criminal breach 
of trust." 

The facts of the case as sworn to by the prosecutor and his 
witnesses, and which are to be taken as true for the purposes of 
this appeal, are as follows : 

Towards the latter part of the year 1873, the appellant, the 
respondent, and two others, entered into a partnership for renting 
a certain number of betel-nut trees at Permatang Bertam, and in 
order to enable them to work this part of the plantation efficiently, 
they conjointly agreed to borrow the sum of $95 from one Sess- 
malli. This sum was to be repaid to him, when the nuts became 
fit for plucking, in the form of 100 piculs of such nuts. The 
respondents' share of responsibility was to be $50 out of the 
$95, and I assume his share of the profits of the partnership 



STRAITS SETTLEMENTS. 81 

adventure, were to be in that proportion. When the nnts became Ford, j. 
ripe, the respondent came to the appellant, telling him that ^^' 
Sessmalli now wanted his nuts in payment of liis advance, and the haji Sahid 
appellant delivered to him 8 bags of the nuls for the exphiined ». 
and expressed purpose of delivery to Sessmalli in part payment of Shaik 
his debt. Two further deliveries of nuts were made to the respon- **^^* 
dent upon the same footing and for the purpose of completing the 
payment, making in all a deliveiy of SS bags. The respondent 
never delivered any of these nuts to Sessmalli ; he applied a 
portion of them in payment of a debt he owed to a son-in-law of 
Sessmalli, and the rest, he sold, applying the proceeds to his own 
use. An action was brought in the Supreme Court by Sessmalli 
against the appellant for a breach of his contract to deliver these 
nuts, in which he recovered damages. 

Upon these facts, Mr. Bond, the Counsel for the accused, 
contended that as the case for the prosecution admitted a partner- 
ship between the parties, his client was entitled to a discharge, a 
co-partner not being criminally liable for his dealings with 
pai^nership property. So strong did he consider the force of the 
reasoning upon which the English law [previous to the recent Act 
of 31 & '62, Viet., c. 116, making partners ciiminally liable, and 
which, it is admitted, is not in force in this Colony], had establish- 
ed this doctrine, that he urged upon the Court that no general 
language however comprehensive could embrace such a case, but 
it required words, in terms mentioning the case of partners, to 
override the effect of that reasoning. The Magistrate, after a 
careful consideration of the case, upon this reasoning and on the 
authority of an Indian case [Li re Lai Chand Eoy, 9 W. R. C. R. 
37], and the English authorities as to the criminal liability of 
partners previous to the passing of the 31 & 32 Vict., c. 116, 
held the respondent not liable on either of the charges preferred 
against him, and dismissed the case. 

The point raised is one of considerable importance to a com- 
munity where small and pro hdc vice partnership adventures are 
so general as in these Settlements. In taking a somewhat bolder 
view of the operation of at least one of these sections of the Penal 
Code than the Court below has done, the Court will give the 
honest members of these partnerships, a security for the good 
conduct of members, otherwise disposed to which in good sense 
they seem entitled. 

Dealing first with the English law, and the reasoning upon 
^hich it has been sustained, there is no doubt, that previous to 
the Acb of Parliament before referred to, partners were not liable 
for larceny or embezzlement of partnership property. But when 
the reasoning upon which these decisions were based, is submitted 
to the Court as so irrefutable, that nothing but the express over- 
riding words of a legislative enactment can affect it, it becomes 
desirable to consider carefully what the value of this reasoning 
was. The general form of putting the argument was, that as • 
every partner had a legal property in all the partnership property 
^nd a right of possession to it also, the property was in fact the 
property of each partner, and, being therefore his own, no partner 



82 MAGISTRATES' APPEALS. 

FoBD, J. could feloniously steal or take away any part of it. This relation- 

^^ ship of partners to partnership property was drawn from a suppos- 

Haji Sahid cd analogy to the case of joint tenants of real estate. But a more 

«. careful analysis of the ri^^^hts and interests of partners in and over 

^t^ partnership property would, I think, have shewn, that, whatever 

the similarity, no real analonfy existed between these relationships, 

and have afforded a fresh illustration of the dan<:fer of too hastily 

importing principles and rules as to ownership of property which 

are founded upon tenure, to illustrate relationships in respect of 

a different class of propei'ty, the rights and interests in which 

rest on a different foundation. 

The statement that a partner in a particular adventure has a 
joint ownership analogous to that of a joint tenant in real 
state, so that he has a legal property in the whole analo- 
gous to the legal seizin per mie et per tout of the joint 
tenant, will not, I think, bear the test of careful enquiry. His 
time interest would seem rather to be a legal property or owner- 
ship in his own share only, with certain rights of separating it 
from the common stock within the terms of the partnership 
agreement, and certain powers of dealing with his partner's shares 
for partnership purposes. There is no relationship in the forms 
of ownership of real estate, perhaps, strictly analogous, but with 
reference to the shares of his partners, he may be said to bear 
some similarity, so far as his power over these are concerned, to 
that of a trustee in strict settlement from whom the " legal 
estate" — the corresponding word to " legal property" in personal 
estate — is carefully excluded ; a limited dominion over the pro- 
perty in that instance being given by express powers — in the case 
of partnerships being implied from the nature of the contract of 
partnership. The powers which one partner has, e. g,^ of sale, 
exchange, and dealing generally with partnership property, do 
not find any analogous place in the rights of a mere joint tenant 
of real estate or joint owner in personality, and it would be super- 
fluous to do more than point out in the case of partnership pro- 
perty that non-existence of a right of survivorship which is so 
remarkable an incident in a joint tenancy or joint ownership of 
other property. It does not seem therefore correct to say, that 
one partner is necessarily the legal owner or has a legal property 
in all parts of the partnership property, however strongly the use 
of a mistaken analogy has imprinted such a doctrine in our text 
books or even in decided cases. This view derives strong confirm- 
ation from the practical action which the English Parliament 
has taken in the matter by the Statute before referred to, — a 
Statute which does make partners liable for acts, which, this 
argument maintains, in reason they never can be. It would be 
going far indeed, to say that, by overriding by positive enactment 
the law which, popularly speaking, enabled one partner to run off 
with the till with impunity, the legislature had violated those 
principles which have ever guided its action. Cessante ratione 
cessat lexy that even " Parliament cannot enact laws contrary to 
reason" are still maxims to which the legislature pays attention. 
The legislature seems to me rather to have said^ and rightly to 



STRAITS SETTLEMENTS. 83 

have said, this reasoning is not sound, and we therefore take down Ford, J. 
the fabric which has been built upon it. ^^* 

A bare right of possession, it may be remembered, never did Haji Sahib 
entirely protect the possessor from a chai-ge' of larceny even in v. 

English law — a subsequent misappropriation constituting the Shaik 
offence, if the possessor, when obtaining the goods, had the 
animus furandly or, when receiving them, intended to convert 
them to his own use. I am not sure, therefore, that had this 
charge taken the form of an indictment for larceny under the old 
law, and not a charge of a modified offence under the Penal Code, 
the Court would, in the face of the comment of the 31 & 32 Vict., 
cap. 116, on the reasoning upon which the former immunity of 
partners was secured, have followed the older English decisions. 

But however this might be, the Court for the reasons before 
given, is very clearly of opinion that those decisions were not 
founded upon reasoning of so irrefutable a character, that nothing 
but express words of allusion in a comprehensive enactment under 
a new Penal law, can affect dealings by partners with part- 
nership property. 

Taking this view of the question, let us consider the 1st of 
the charges against the respondent. The illustrations clearly 
demonstrate that a felonious taking was never contemplated by 
the framers of section 408, as necessary to the commission of the 
offence, and the illustration of a joint owner of a horse, selling 
and misappropriating the proceeds of the sale, as guilty of the 
offence, is a very near approximation to the express allusion to 
partners which has been contended for as necessary. But what 
can be more comprehensive than the words of the section itself : 
"Whoever dishonestly misappropriates or converts to his own use 
any moveable property, shall be punished, &c." Do the alleged 
acts of the respondent bring him within this language ? I think 
they do so — both within its letter and its spirit. The accused in 
this case, upon his own application and for a specific act of appro- 
priation, obtained from his partner a part of the partnership pro- 
perty^-presumably with what he afterwards obtained, far beyond 
his own share. Upon his applications for the further part, he 
made the same representation, and added a statement of his having 
applied the first portion in the manner he previously proposed. He 
did not apply the nuts to such or any other 'partnership purpose, 
but to his own use and the payment of his separate debt. There 
was a clear misappropriation. V»^as it a dishonest one ? Can it 
be that an act so manifestly deceitful and injurious to his partners 
is not to be termed dishonest, or that words of a section so com- 
prehensive as the present, are to be construed as protecting him 
trora the punishment it prescribes, upon the sort of paradoxical 
reasonings that because a partner has a legal property in all the 
partnership property and a right of possession to it also, a mis- 
appropriation is impossible, the property 'being in fact his own. I 
am of opinion, that such a misappropriation as this case shews, 
was dishonest, and that such reasoning, even if tenable, cannot 
avail against the comprehensive words of this section and the 
illustration of the extent of their range which its framers fore- 



84 



MAGISTRATES* APPEALS, 



'^ftTK ^' shadowed by the ilUistration of joint owners of a horse. A foi^Uori, 



1876. 



V. 

Shaix 
Pkboo, 



if, as the Court is of opinion, that reasoning is inaccurate, and is 
Haji Sahid in substance condemned by the subsequent action of the English 
legislature, does this section embrace the offence, which upon 
these papers, the respondent is said to have committed. With 
reference to the charge under section 405, the Court inclines to 
the opinion, that the offence committed does not amount to a cri- 
minal breach of trust as defined by that section. The section cer- 
tainly seems to contemplate an offence by a person having no 
beneficial interest in the property misappropriated, and when the 
relationship or trustee, and cestui que trust exists in its simple integ- 
rity. As there is a decision in the Indian Courts [a], to the 
effect that the case of a partner does not fall within the 405th 
section, and as the justice of the case will be met by the applica- 
tion of the 403rd section, I do not propose to interfere with the 
decision of the Magistrate upon the charge of criminal breach of 
trust. The decision of the Magistrate under the 403rd section 
will be reversed. 



[o] This case has since been overruled, and a partner held liable to be con- 
victed under section 405 as well — See Nrigendro Lall Chatter jee y . Okhoy Coomar 
Shaw, 21 W. R. Cr. $9, 



REGINA V. LIM PENG & ORS. 



Pbkang. Section 62 of the Criminal Procedure Ordinance 6 of 1873, applies to Police 

Courts, and a Magistrate may, in the cases there referred to, convict for one 

Ford, J. offence, -when the charcre is for another. 

1876. The carrying on of an offensive trade, is on offence within section 268 of the 

Penal Code, although the trade may have been for a long while acquiesced in, or 

January 11. was carried on long before the persons who complain, went to reside in that 

neighbourhood. 

The appellants were convicted by W. E. Maxwell, Esq., Ma- 
gistrate of Province Wellesley, for causing' a nuisance by carrying 
on the trade of Blachun making at Prye, near Butterworth. The 
prisoners had been charged nnder Section 268 of the Penal Code, 
the conviction purported to be under section 290. 

E. C. Woods, jr., for appellants, objected to the conviction 
as not being upon the charge made against the prisoner, and con- 
tended that the Magistrate should have amended the ch«irge and 
given the prisoners notice of such amendment before making the 
conviction. Section 62 of Ord. 6 of 1873, he submitted, had no 
application to Magistrates' Courts, and cited Maxwell on Magis- 
trates, 45, 46. 

D. Logan [Solicttor-General] , My copy is a conviction under 
section 268. The charge is no doubt eiToneously drawn, but the 
Court can amend it and the adjudication, under section 14 of 
Ordinance 27 of 1867. It is a mere matter of form. The offence 
under section 268 is but a public nuisance, and section 290 so 
describes the offence. I am however ready to abandon the 



STRAITS SETTLEMENTS. 85 

charge under section 290, and would ask for time to contest the Fobd, J. 
validity of the charge under section 268. ^f^* 

January 17. Woods was now further heard. Beg. 

Ford, J. held that the Magistrate had power under the Cri- v, 

minal Procedure Ordinance 6 of 1878, section 62, in certain cases ^"J ^^^^ 
to convict for an offence different from that charged, and that this 
was one of such cases. 

Woods then argued ^ on the merits. He contended that this 
trade had been acquiesced in by the inhabitants of Butterworth, 
and was an^old one ; that the real prosecutor was the Magistnite 
who tried the case. The smells were not continuous ; only with a 
southerly wind, — ^which was for a short time in the year — was 
there any smell. It might be a nuisance to the Europeans of 
Butterworth, but they did not constitute the "public" or the 
"people in general." The native community did not complain. 

Logan. The offence under section 268 is more general 
than under English Law. The native community are the blachun 
manufacturers, and they would not therefore complain. Butter- 
Worth was the head-quarters of the Judicial and Executive autho- 
rities in the Province, and was to Province Wellesley what 
Northam Road was to Penang. The length of time that the 
trade was carried on was nothing — Rex v. Cross, 3 Camp. 224. 
The existence of the nuisance before the Europeans went there 
was also no excuse — Mayne^s Penal Code, 891, 892 ; Archbold^a 
C. P. 891, 892 ; Bamford v. Turnley, 31 L. J. Q. B. [N. S.] 286; 
— the unhealthiness of the smells was not necessary to constitute 
a nuisance — Rex v. White, 1 Bur. 333 ; Mayne^s Penal Codcy 215, 
216. 

Ford, J. affirmed the conviction, but considered the circum- 
stances of the case were such that the fines should be reduced 
to §10 on each defendant, [a] 

Order accordingly. 

[a] It is doubtful whether the Court of Appeal has now any power to reduce 
a fine, except it bo lai-ger than that which could legally be awarded — see section 34-, 
cl. 1, Appeals Ordinance 12 of 1870.— To increase the fine, it is presumed ithaa 
not. J. W. N. K. 



MUNICIPAL COMMISSIONERS v. AH CHIN. 

The Magistrate, on convicting a person under section 200 of the Penal Code, Penano. 
has no power to order the discontinuing of the nuisance. - — 

Phillippo,J. 
The appellant was the proprietor of a tannery and slaughter- ^^^^* 
house at Burmah Road, Penang, having in 1865 and 1868, obtained ju^q q, 
licenses for the purposes of his aforesaid business, from the 
respondents, under section 91 of the Act XIV. of 1856, but not 
for thepres9nt year. lie was charged under section 296 of the 
Penal Code, for creating a public nuisance. The evidence shewed 
that bad smells proceeded from the appellants premises, to the 
annoyance and discomfort of the neighbours around him. The 



86 MAGISTRATES' APPEALS. 

Phtllippo, J. Magistrate, Captain D. T. Hatchell, convicted the appellant, and 

^^- fined him $1, ordering him at the same time to " discontinue the 

Municipal " business of a tannery and slaughter-house in his premises in 

CoMMis- " Burmah Road within one month from this date." The appel- 

BioNEKs I'^jii appealed against tliis conviction and order. 

Ah Chin. Thomas for the appellant contended that the Magistrate iuid 

no jurisdiction to order him to discontinue — but the procedure 

should have been under Ordinance 12 of 1872, and referred to 

sections 47, 49 & 50. 

Ro88 for respondent, referred to sections 290 & 291 of the 
Penal Code, and section 46 of the Ordinance 13 of 1872, and con- 
tended that what the Magistrate did, was practically what was 
directed by the latter section, and that the conviction was " a 
written order" within that section. 

Fhilli}ipo^ J. held the Magistrate had no power to abate the 
nuisance complained of, and quashed that portion of his order, 
directing the business to be discontinued, but affirmed the fine. 

Order accordingly. 



TUAN rUTEH v. DEAGON. 

PsNANG. A cheque, payable to order, but not endorsed by the payee, is " moveable 

property" within the meaning of the Penal Code. 

Phillippo, J, The words of section 403 being " misappropriates or converts," it m not 

1876. necessary, in order to bring a person within that section, to shew he converted the 

property — it is sufficient if he appropriates the same, and such appropriation is 

NoTember24. wrongful. 

The prisoner was convicted by Captain D. T. Hatchell, 
Magistrate, of criminal misappropriation of property, to wit, a 
cheque. The cheque was drawn by the Assistant Treasurer in 
favor of Captain Strong, Superintendent of Police, Penang, or 
order, on the Chartered Mercantile Bank. The cheque was hand- 
ed by the Treasurer to the respondent William Dragon, who 
suddenly missed it. The cheque had not been endorsed by 
Captain Strong — It was traced to the prisoner who admitted he 
had it and produced it. On the back was something written, 
purporting to be in English, but was unintelligible. It was 
suggested by the respondent that it was intended to be Captain 
Strong's signature, but there was not the slightest resemblance 
thereto. From the evidence, it appeared that the prisoner took 
the cheque to the Bank and handed it to the Cashier. It was 
not cashed howev^er, as the Cashier said that being payable to 
order, he required Captain Strong's signature. This was some- 
what late in the day, and the prisoner on getting back the cheque, 
took it home and put it away, until his arrest as aforesaid on the 
morning of the following day. The prisoner alleged that he 
found the cheque on the steps of the Police Court, and not know- 
ing what it was, had taken it to the Cashier to find out who it 
belonged to, and intended taking it to Captain Strong, when he 
was ar^-estqd. The writing at the back he denied tUl knowledge 



STRAITS SETTLEMENTS. 87 

of, and alleged it was on the cheque when he found it. There Pflii'i'ippo,J. 
was no evidence to shew how the writing on the cheque came to ^2^* 
be there. Tuin Putkh 

Van Someren for appellant. 1st. The cheque was found at v, 

the foot of the steps of the Police Court. It is payable to I>a^QON. 
" order" but is not signed by Captain Strong. The words in 
section 403 of the Penal Code are " misappropriates or converts," 
and the illustration 1 & 2 shew there must be an actual con- 
version. Mayne on the Penal Code, 325, and Reg. v. Ahdnoly 10 
W. R. Cr. 23. That case is with reference to a bond. The Court 
held there was no conversion as there was " no attempt to realize 
the bond." It is quite true the prisoner went to the Bank, but 
he gives an explanation of this, and there is no reliable evidence 
to contradict his statement. There is no evidence of a conversion 
to bring the prisoner within the section. The cheque is dated the 
24th, and was lost the same day, it remained in possession of 
prisoner up to the morning of the 25th. It does not appear he 
went to the Bank on the 25th — he went on the 24th, the day the 
cheque was lost — but early on the 25th, the first time he meets 
the Police, he tells the Sergeant-Major he has the cheque and 
takes him to the house and produces the cheque. There was no 
reasonable time allowed him to restore the cheque as he intended, 
and no evidence of conversion is to be gathered from the fact of his 
keeping possession of it for the one night. In re Enayet Hossein, 
11 W. K. Cr. 1. '^nd. The cheque was not moveable property 
within the meaning of the CoJe. Moveable property is defined in 
section 22. In the case of Reginay. Abdooly before cited, the Court 
had doubts as to the bond being moveable pix)perty. The cheque 
until endorsed by Captain Strong was not " property" — it was mere 
waste paper. 3rd. As to jurisdiction. The Magistrate had no 
summary jurisdiction under section 403 — that offence is triable by 
the Quarter Sessions under Ordinance 13 of 1872. 

Ross for respondent. The 3rd objection first. Sub-section 5, 
section 2 of Ordinance 1 3 of 1 87-2, gives the Magistrate power to try 
for offences under section 408, if ho thinks punishment adequate. " - 
2nd. The cheque was moveable property as distinguished from 
corporeal property. Reg. v, Girdlmr Dliaramdas, C Bom. H. C. Rep. 
Cr. 33. 3rd. The appellant assumes misappropriation and conver- 
sion are the same thing, but ther^i may b3 an appropriation with- 
out a conversion. O'Kenoaly on the. Penal God3, 237, citing In re 
Eaayet Hossein, supra. It is submitted there are no grounds for 
this appeal and the conviction should be affirmed. 

PhillippOy J. held, that the cheque although not endorsed, was 
" moveable property" within the Code, that a conversion was not 
necessary, as the words of section 403 are " misappropriates or 
converts," that the prisoner had clearly appropriated the cheque, 
which, was wrongful, and a sufficient misappropriation within the 
section. 

Conviction ajjirmed with C08t$y 



Noyember27. 



88 MAGISTRATES' APPEALS. 

MAHOMED ANIFF v. EBRAM KHAN. 

Pemanq. The wounding of an animal, though slight, is a sujBficient change therein ti 

— diminish its value as to make the act *' mischief** within section 426 of the Penal 

Phillippo, J. Code. 

1876. ^ conviction which awards costs, must shew the amount thereof, otherwise 

the conviction will be bad. 

Query, Has the Magistrate power to aiv^ard costs in cases of conviction for 
ofiFences under the Penal Code [a]. 

The appellant had been convicted by Captain D. T. Hatcliell, 
Magistrate, of miscliief, under section 426 of the Penal Code. The 
evidence on the part of the prosecutor was, that his cow having 
strayed into the appellant's compound, he had stabbed the animal 
on the shoulder with a bayonet fixed to a pole. The wound was 
a small one, and the animal got well in a few days. The appel- 
lant's evidence was to the effect that the charge was a false one, 
and the whole evidence the result of conspiracy and spite on the 
part of prosecutor and his witnesses. 

Van Someren for appellant cited Mount v. Selwood^ I Q. B, 
726, and Maxwell on MagistrateSy 31. 

The respondent did not appear. 

Cur. Adv. Vult, 

November 30. PhillippOyJ. In this case Mr. Van Someren ap- 
peared for the appellant. The respondent was not represented. 
Mahomed Aniff, the appellant, was convicted of mischief by stab- 
bing a cow, under section 426 of the Penal Code, and fined twenty- 
five dollars and costs. 

The objections taken by Mr. Van Someren were, first, that the 
conviction under section 426 was bad, no evidence of mischief 
under that section, having been given, as the cow was wounded 
but not otherwise injured. 

The 425th section defines the offence. In order to bring this 
offence within the scope of that section it must be pl'oved that a 
change has taken place in the property which would diminish its 
value. The first explanation of the section, however, taken 
together with sections 428 & 429 would seem to imply that the 
wounding of any animal caused a change in the property wbich 
diminished its value or utility or affected it injuriously. I think 
it clear from sections 428 & 429, that poisoning or maiming animals 
is such a change of the property as is referred to under that sec- 
tion, and if so, it would seem tlaat the wounding an animal would 
equally be such a change in the property as therein referred to. 
I am of opinion therefore that the evidence brings this case within 
the section upon which the appellant has been charged, as ex- 
plained by subsequent sections, and I do not hold this objection 
good. 

The second objection was, that the evidence was in favor of 
the defendant. I think cases such as this, are those in which the 
Magistrate is best able to judge, and I am unwilling to return a 

[a]. See Mun. Cqvmts, v. Chuah Seng & ors,, 23rd May, 1882, infrd.. 



1876. 

Mahomed 
Aniff 

V, 

Ebbam 
Kuan. 



STRAITS SETTLEMENTS. 

case to the Magistrate solely on the grounds that the conclusions ^^^}^J^*^' 
I drew from the evidence are not in accordance with those of the 
Magistrate ; there is however a third objection as to costs. 
Whether the Magistrate is empowered to impose costs where he 
convicts for offences under the Penal Code, I do not at present de- 
cide. There is an Indian Act empowering the Magistrate to grant 
costs in certain cases, [a] and it may be that it applies to cases under 
the Penal Code. I am clearly however of opinion, that the amount 
of costs ought to be stated in order that the defendant may know 
definitely the amount he has to pay. The conviction on this 
point therefore cannot be sustained. As this is a case in which 
I have considerable doubts upon the evidence, as to whether the 
appellant was guilty of the charge brought against him, the con- 
viction will be quashed, but the case must be referred back to the 
Magistrate for rehearing, in order that he may have an oppor- 
tunity of reconsidering his decision. The fine, if paid by defend- 
ant, to remain in Court till the Magistrate's decision on rehearing 
is given. 

Order accordingly. 

[a] Act XIII. of 1856, s. 102. 



REGINA V. CHENG HEE. 

WKero prisoners were convicted of beinj? members of an unlawful assembly Penano. 

under section 14-1 of the Penal Code, but the evidence shewed that they were 

having a fight among themselves, Phillippo J. 

Jleld, they had no common object, and the conviction was set aside, and the 1876. 

case remitted to the Magistrate for rehearing on a fresh charge for assault or such 

other offence. November 27. 

Semble, It is inconsistent, and open to serious objection, that a person who is 
Assistant Superintendent of Police and receives reports of cases as such, should act 
as Magistrate and afterwards try the same cases. 

The facts appear from the judgment. 
Duke appeared for the appellant. 
No one appeared for the respondent. 



Cur, Adv. Vult. 

December 1. Phillippo^ J. In this case there were three 
grounds of objection raised. 

First. — That the depositions were not in accordance with the 
evidence. 

Second. — That there was not suflScient evidence to convict. 

Third. — That the convicting Magistrate, at the time of con- 
victing the appellant^ was also holding appointment of Assistant 
Superintendent of Police, who in that capacity had previously 
investigated the case. 

The first two objections were not insisted upon, and Mr. Duko 
relied wholly upon the 3rd and quoted several authorities. 

If Captain Strong was in fact acting as Magistrate and as 



DO 



MAGISTRATES' APPEALS. 



Phillippo, J. Assistant Superintendent of Police, the two duties would seem to 
^^^' be inconsistent and open to serious objection. I should hardly 
Rbq. think it possible that he would receive Eeports from tlie Police 
V. in the same cases in which he sat as Magistrate. 

CnENa Hbe. Jjj ^j^jg qq^^q however it is not necessary there should be evi- 

dence on the point, as on the face of the depositions I must send 
the case back to the Magistrate for consideration. 

The appellant, with others, was brought up and convicted 
under section 144? of the Penal Code. That section enacts that an 
unlawful assembly must consist of five or more persons having 
some common object such as set forth in the section. 

The evidence in this case is exceedingly meagre. Only two 
Police Constables have been examined, and their evidence points 
to the conclusion that the offence, if any committed, did not amount 
to more than a fight between the parties in the street. 

In their defence the prisoners quarrelled among themselves 
and with the exception of one or two, who set up an alibi. One 
party accused the other of having assaulted and beaten them and 
vice versa ; it is clear they had no common object to bring them 
within the section. The appellant was also charged with using a 
deadly weapon, to wit a stick. 

Blows are sworn to have been struck by the appellant, but 
there was no medical testimony nor did any l3ody come forward 
even to say he was hurt. I find the stick was produced before 
the Magistrate, and he may have come properly to the conclusion 
that it was a deadly weapon within the meaning of the section 
upon which the appellant was convicted. 

I do not however consider that the present conviction can be 
sustained, and the case must be sent back to the Magistrate for a 
rehearing on a charge for assault or such other charges as the 
Magistrate or Police authorities may consider will meat the re- 
quirements of the case or for such charges as the persons may 
think fit to bring against one another. 



Penanq. 



MOOTOO & ORS. V. AYAH DOEEH PILLAY. 

Boteo a conviction can be had under section 501 of tlie Penal Code, it must be 
sbewn that the insult was given with the intention of causing the person insulted 
Phillippo J. ^ commit a breach of the peace. 

1876. Where therefore five men, of a night, visited the house of the prosecutor, and 

called him out to fight, and abused him, 

November 30. Held, that as the"prosecutor single-handed was not likely to go out and atback 
the five men, there was no evidence of such intent, and the conviction was quashed. 
Query. Whether the Magistrate can, on a conviction under section 501' of the 
Penal Code, order the prisoner to be bound down to keep the peace ? 

Qiiery. Is an order to keep the peace bad, if it omit the alternative sentence 
of imprisonment under section 60 of Ordinance 13 of 1872 ? 

This was an appeal from the decision of Captain D. T. Hatchell, 
Magistrate, Penang. The appellants [among others] were con- 
victed by the Magistrate, of insulting, under section 5Qi of the 
Penal Code. The evidence shewed that the appellants and others 
vreut to the house of the respondent, and after enticing him out to 



STRAITS SETTLEMENTS. 91 

fight, abused and insulted him most grossly. They were fined by Phillippo, J. 
the Magistrate, and ordered to be bound down to keep the peace ; — ^^^' 
the order omitted the alternative that in default of furnishing the Mootoo 
recognizance, the appellants were to be imprisoned. The charge & obs. 
omitted to state that the insult was given with intention to cause ^yah^Dobeh 
a breach of the peace. Pillay. 

Van Someren for appellants. 

The respondent in person. 

Cur. Adv. VuU. 

Phillippo, J. In this case the appellants were convicted of 
intentionally insulting and thereby giving provocation under 
section 504 of the Penal Code. 

That section requires more than this to be stated in the con- 
viction. The section is as follows : 

"Whoever intentionally insults, and thereby gives provocation to any 
person, intending or knowing it to be likely that such provocation will cause 
him to break the public peace, or to commit any other offence, shall be piudshed 
with imprisonment of either description for a term which may extend to two 
years, or with fine, or with both. " 

In this case, the last part of the section is left out in the 
charge and the appellants are convicted on an imperfect part of 
the section only. And I do not think the words used as set forth 
in the evidence meet the full requirements of this section. 

This section can only be dealt with as a whole and the intent 
must be proved. The evidence in this case was to the effect that 
several persons went and used violent threats to the respondent at 
night. I do not think such language calculated to provoke a 
breach of the peace — as no one in his senses was going to leave his 
house to attack five men who were challenging hipi to do so. A 
further objection has been raised. [2] . That the Magistrate had 
no power of binding over to keep the peace. Under the Summary 
Procedure Ordinance, section 60, the Magistrate is empowered in 
certain cases, in addition to the punishment, to call upon the de- 
fendant to enter into a personal recognizance, those cases are 
"rioting, assault or other breach of the peace or with abetting the 
"same or with assembling armed men or taking other unlawful 
"measures with the evident intention of committing the same." 

The appellants were not convicted on any of the cases set forth 
in that section of the Ordinance. 

The Ordinance further makes a provision that in default of 
the recognizance being given, the person required to enter into the 
recognizance shall be kept to simple imprisonment not exceeding 
six months. 

This was omitted to be done in the case before me, I am of 
opinion that this conviction cannot be sustained. By section 41, 
of the Appeals Ordinance 1874, sub-section II, 1 1 have power to 
annul the sentence and direct the accused person to be tried again 
on a proper charge. It appears to me that the proper section 

t Be-enacted by section 94« sub-section 2, of Ord, 12 of 1S7Q. 



92 MAGISTRATES* APPEALS. 

Phillippo, J. upon which the appellants ought to have been tried is under section 

1876. gQ3^ punishable by 506, and not under section 504. The proceed- 

MooToo ings in this case must be annulled and the accused tried under the 

& OB8. sections indicated. The recognizance if entered into, will of course 

» ^ bediscbarged, and this case will govern the case of the persons who 

ViLLAT. bave not appealed, if they choose to take advantage of this decision. 



TOWERS V. MUSTAN & OES. 

Penan o. A prosecutor in a proceeding before a Magistrate, who is dissatisfied with the 

decision of the Magistrate may, under section 25 of the Appeals Ordinance 9 of 

Phillippo, J. 1874, appeal in the. same way as a prisoner might, [a] 

1876. Where the Magistrate had decided a case on the evi- fence as one of simple 

"■ assault, and the prosecutor was dissatisfied therewith, and contended that the 

NoTemberSO. evidence disclosed an assault with intent to murder, the Court refused to disturb 
the Magistrate's decision. 

The appellant was prosecutor in a case in the Police Court 
in which he charged the respondents with an assault with intent 
to murder. The Magistrate, Captain D. T. Hatchell, convicted 
the respondents of a simple assault, and fined them $20 and $10 
respectively. The evidence for the prosecution was, that the 
appellant and first named respondent, were licensed pilots ; that 
both had gone out ofiE Muka Head, in the North Channel, and 
expected a steamer which each was desirous of piloting into har- 
bour. The steamer had not appeared as expected, and the appel- 
lant was returning to town in his boat, when he was chased by 
the respondent's boat, overtaken, and he and his sampan man 
severely beaten with heavy sticks by the first respondent and his 
boatmen, the other respondents. The respondents' evidence was, 
that there had been an altercation between the appellant and first 
respondent, which led to high words and the appellant's flinging 
his boat's tiller at the first respondent, whereupon a fight ensued. 
The appellant was dissatisfied with the Magistrate's finding, and 
contended that they should have been convicted of an attempt 
to murder. 

Thomas for appellant. 

Ro88 for respondents. 

Phillippo, J. In this case appellant was the prosecutor before 
the Magistrate and appeals to this Court on the ground that the 
sentence pronounced by the Magistrate on the respondents was 
inadequate. 

The first question is whether the Ordinance gives a right of 
appeal in a case where a prosecutor is of opinion that the sentence 
is insufficient? 

On looking at the Ordinance, it would appear an appeal Ues 
on any question that arises in the Summary jurisdiction of the 
Magistrate's Court. 

Under section 25 it is open to either party to apply to this 

[a] Re-enacted by section 18 of Ord. 12 of 1879. 



STRAITS SETTLEMENTS, M 

Court if dissatisfied with the determination of the Magistrate. Phiilippo,J. 
The next question is, whether there is any ground in the present ^^' 
appeal for redress ? It is perhaps unfortunate that there is no Towebs 
provision in tbe Appeals Ordinance that the Magistrate should, v. 

in transmitting tbe record to this Court, give the reasons upon Mubtan 
which his judgment is founded. ^*^' 

In this case as in many others, it is difficult to come to any 
conclusion as to what facts the Magistrate considered proved or 
disproved, or what was his opinion of the Law bearing upon the 
case. 

I do not know from the record if some witnesses were called 
for appellant or for the respondents. 

Although not shewn on the record, I understand since I came 
into Court that Counsel appeared on both sides. I was of opinion 
that evidence had been admitted which ought not to have been 
received, which would have induced me to have referred back 
the case ; but as Advocates were present before the Magistrate 
on both sides, and no objection appears to have been there taken 
by the Advocate for the prosecutor, that objection is now disposed 
of. The case for the prosecution was, that an unwarrantablo and 
unjustifiable attack and assault was perpetrated upon the appel- 
lant when in the peaceful performance of his honest calling and 
profession : if so the punishment inflicted would appear totally 
inadequate. 

On the other hand the defence was, that Mr. Towers first 
unwarrantably interfered with and provoked the respondents, and 
that he threw the tiller of his boat at them, and according to the 
statement of a witness, the respondent Mustan, immediately 
upon his return to shore, complained to the Police of the conduct 
of the appellant. 

I can only suppose the Magistrate came to the conclusion 
that the complainant provoked the assault, that the statements of 
himself and of his witness were greatly exaggerated, but that 
there was some unjustifiable excess on the part of the respondents 
which called for punishment, but which was effected by the com- 
paratively small fines of which the appellant complains. I should 
have been glad if I could have felt myself at liberty to have 
sent back the case to the Magistrate for reconsideration, but 
I do not think I should be justified in sending back the case to 
the Magistrate without hearing the evidence, upon a bare surmise 
that the Magistrate's decision may have been wrong, or to inter- 
fere with the sentence, and the appeal must be dismissed. 

Appeal dismissed accordingly. 



9i 



MAGISTRATES' APPEALS. 



EEGINA V. TAN SIN HAP & ANOR. 

SiNOAPOBE. ^ house kept up hy private subscription among membora, at which they met, 

ate, drank, played gamos of *' chike/* dominoes, cards, <fec., for money, on certaia 
days of the week, and oceaaionally roQiainel one night, was not a *' common gam- 
ing house,*' within the Gaming Ordinance 9 of 187G. 



FOED, 

Aa. C. J. 
1877. 



The Statute Law of England relating to gaminsr, and the English Statutes 

declaring certain games illegal, do not extend to this Colony. 

May 10. Observations on games played at Clubs, &c., and on games of skill and chance. 

This was an appeal from the decision of D. F. A. Horvey, 
Esq., Magistrate, Singapore, under Ordinance 9 of 1876, "for the 
suppression of Common Gaining Houses and Lotteries." 

J. D. Vaughan for the appellants. 

T, Braddell [^Attormy-General] in support of the conviction. 

Cur. Adv. VuU. 



On this day judgment was delivered by. 

Ford, Ag. C. J. The facts of this case and which, for the 
purpose of tJie decision I am about to give, may be taken to be 
true, are as follows : — 

On the 27th January last. Inspector Ord, having reason io 
believe that a house situate in Balestier Road and occupied by 
the defendants, apparently, however, in the relative positions of 
master and servant, was a common gaming house, entered the 
same under the customary warrant. The result of his search, 
which ended in his finding the house to be fitted up with sleeping 
and general accommodation for some 12 to 15 or 20 persons, and 
to contain on a part of the premises some " chike," cards and 
dominoes and to have some very doubtful indications of those 
unusual points of construction which are deemed to facilitate the 
escape of persons from a house when suddenly disturbed, was such 
as to throw upon the appellants the duty of rebutting the pre- 
sumptive proof, which, under sections 13 and 14 of the Ordi- 
nance, such features supply, of the premises being used as a com- 
mon gaming house. This presumption the appellants undertook 
to rebut by evidence, to the following effect, and which evidence, 
I think, gives the true character of this house, subject to one 
doubtful point, viz,, — the not playing for money, — which feature, 
however, would not, whether present or otherwise alter the view 
which I take of this case. 

That evidence was, that this house belonged to one Ng Kim 
Guan, a merchant now gone to China, and was occupied by the 
first appellant in partnership with some 30 other Chinese traders 
and merchants, who, in uncertain numbers, on certain days of the 
weehy generally Wednesdays, Saturdays and Sundays, went to this 
house, spending sometimes one night and day, sometimes more, 
there, and that during that time they amused themselves witli 
playing music, eating and drinking, and playing with cards and 
at chess, but not, as alleged, for money but for stakes of drinks, 
ducks, and geese. That the establishment was conducted and 
paid for through the instrumentality of a servant who called upon 



STRAITS SETTLEMENTS. 96 

tbe members of the Society or Club, finding out who would dine Ford, 
and who would not on the customary days, and that the expenses {^^ ^* 

of all that was consumed, and, as I understand, a share in the .* 

general expenditure of tbe house, was paid by tbe members, as Kbg. 
would be the case in an ordinarily constituted Club, such as are ^ ^' 
found in these Settlements. Women and children were not un- ^ap & anob. 
frequently taken to the place for a holiday or cbange. No one 
received any profit out of tbe place or whatever was done there, . 
except probably the cook — members paying their winnings and 
losings without the intervention of any Bank, Lottery Keeper, or 
any person managing a game of which the^ chances were not equal 
to all tbe players. The features of the house, which, in one par- 
ticular, had certainly some prima facie appearance of being used 
for the purpose of facilitating a sudden exit, were, satisfactorily I 
think, explained. The question has arisen whether a house used 
as just described, even if money formed part of tbe stakes played 
for, is a common gaming house within the provisions of this Or- 
dinance. 

I am not aware of any decision at Common Law, [and the 
Statute law of England in respect of gaming, I am clearly of 
opinion, does not extend to tbese Settlements], which has deter- 
mined with distinctness what a common gaming bouse is, al- 
though in eveiy case one or more of the following features 
seems to have been considered a necessary one, viz., — that the 
house should be kept by some person or persons for lucre and 
gain, or should be one at which unlawful games were played, or, 
by the attendance of evil and idly disposed persons, be such an 
inconvenience t6 the neigbbourhood as to be a common nuisance. 
And the necessary existence of at least some of these features has 
been confirmed by statutory enactments in England, where, to 
avoid the difficulty arising from houses being open to subscribers 
only, it was enacted by the 8 & 9 Vict., c. 109 — that in default of 
other evidence proving any bouse or place to be a common gaming 
house, it should be sufficient to show that such house or place was 
kept '' for playing therein an unlawful game, and that a bank is 
" kept there by one or more of the players exclusively of the 
" others, or that tbe chances of any game therein are not alike 
" favourable to all tbe players, including among the players the 
"banker or other person by whom the game is managed or against 
" whom tbe other players stake, play, or bet." 

Another class of establishments known as " Betting Houses" 
were by 16 & 17 Vict., c. 119, brought under the description of 
common gaming houses within the 8 & 9 Vict., c. 109, but any- 
thing analogous to tbese houses is, however, unknown here. 

The definition of the Act 8 & 9 Vict., read with the Common 
Law decisions, seems to me to form a safe rule for determining 
— apart from further statutory enactment — what are the features 
of common gaming houses, und as none of these features have 
been proved against tbe house in this case^, I am of opinion it is 
not a common gaming house, unless made so by some special pro- 
vision of Ordinance 9 of 1876 itself. 

The next point for consideration is whether the Ordinance 



96 MAGISTRATES* APPEALS. 

FoBD, itself contains any provisions giving an enlarged interpretation to 
^1877/ *^® term " common gaming house'* so as to bring a house of this 
— ' description within its operation. 

Rbo. The only sections which either directly or indirectly bear, I 

Tan Sin *1^^^1^> upon this point are the 1st & 7th sections. The first 
Hap & ANOB. section " makes every place kept or used for the business of a lot- 
tery or for unlawful gaming" a common gaming house, but as 
there is no question of this house being used as a lottery, and it 
is admitted on both sides that there is no game or class of games 
made illegal by any Ordinance now in force in the Colony, and 
certainly there is no evidence of any game being played here of 
an illegal character — were even the English Statutes creating 
certain games illegal operative here [which Statutes I am, how- 
ever, of opinion are not operative here] I do nut see how this 
house can be brought under the terms of this section unless a 
legal inference can be drawn from section 7, that all games other 
than games of " mere skill" are illegal. That section provides 
" that nothing in the foregoing provisions of this Ordinance coii- 
" tained shall be held to apply to any game of mere skill played 
" at Licensed Hotels, Taverns or Eating Houses or places of 
" public resort." I am of opinion that upon proper principles of 
construction, such an inference in a highly penal statute, from 
such a proviso as this, cannot properly be drawn, and such a view 
is strongly confirmed by consideration of the extraordinary incon- 
venience which would arise were I to hold all places not Hotels, 
Taverns, Eating Houses or places of public resort, were common 
gaming houses, if games not of " mere skill" were played in them. 
The games of mere skill are, in the first place, I apprehend, ex- 
ceedingly few ; such a term must, I think, exclude every game in 
which the element of chance enters. Chess, perhaps, and draughts 
and some few games ejusdem generis would be games of mere skill, 
but amongst games current amongst society and not in themselves 
considered objectionable, the others are few in number. No game 
of cards, no game in which dice were used, could, I think, fall 
under such a category, and even billiards — so long as points are 
scored for unintended successes, could hardly be called games of 
mere skill. Were the Court to rank such games under the class 
" illegal" it would be obviously bringing certain places used more 
or less for such amusements under a class of offending houses, 
which no gaming laws that I am aware of have yet associated them 
with. In coming to the decision that the class of house entered 
in this case is not a " common gambling house" within the opera- 
tion of this Ordinance, I am desirous of not being undei*stood to 
express any opinion which should suggest insensibility to the in- 
jurious features which were pointed out, in persons meeting 
together for the purposes of play — one atleast of the objects of the 
parties in this case — arid were I to express my own personal opi- 
nion as to what seems to me the evils attending games of chance, 
when played for money or other things of value, they would pro- 
bably go far beyond generally accepted views upon the subject. 
The extent, however, to which the Legislature can with advan- 
tage deal with such evils is obviously a question of considerable 



STRAITS SETTLEMENTS. 97 

difficulty and delicacy, and one rather for the statesman ihan the Ford, 

lawyer. The duty of the latter is to interpret only faithfully 1^77 ^' 

what the Legislature has declared upon the subject, and I am of .' 

opinion that it has not brought houses of this kind within the Bko. 

term Common Gaming Houses, as used in Ordinance 9 of rp.j/'g, 
1876. Hap &ANOB. 



EEGINA V. KHOO SIM CHOON. 

Whore a person is cliargcd under section 4G, clanso 2 of the Post Office Act XIV. Penano. 
of 18G6, with performinf]f postal services otherwise than through the Poet, it is no ■. . — 

excuse that the Post neither do, nor can undertake the carriage of such letters to Phillips, J. 
their ultimate destination and beyond a certain port. 1877, 

This was an appeal from a conviction of C. W. S. Kynnersley, ^^^y ^• 
Esq., Assistant Magistrate, on a prosecution instituted by the 
Government against the appellant, under clause 2, section 46 of 
the Post Office Act XIV. of 1860. 

The prisoner was convicted for that he on or about the 25th 
day of May, 1877, performed, otherwise than by the Post, services 
incidental to carrying letters from Penang to China. 

The evidence before the Magistrate was to the effect that the 
appellant collected letters from the Chinese residents in this Settle- 
ment, addressed to their friends in China, and had forwarded a 
box containing about 900 of such letters, as freight to Amoy, and 
had declared the contents of the box to be "white birds' 
nests." 

Thomas for the appellant. 

D. Logan [^Solicitor-General] for the Crown. 

Phillips, J. This conviction must be affirmed. It is imma- 
terial, as argued by Mr. Thomas, that we have no convention 
with China, and that the Post Office authorities neither do, nor can, 
undertake to carry these letters to their ultimate destination, beyond 
the port of Amoy^ There is a postal route from Penang to Amoy, 
find so far the appellant was bound to avail himself of it, and every 
yard along such route that the nx^pellant carried letters privately 
he was contravening the Act. 

The Post Office authorities are the only agents allowed here ; 
and if the appellant's desire was the safe transmission of the letters 
to beyond Amoy, he would have effected it by the appointment of 
a friendly agent at that treaty, port, to whom they should have 
been addressed, and by whom they would have been forwarded to 
their destination. 

The saving of postage, and the carrying the profits to his own 
account, appear to me to have been the only objects the appellant 
had. The conviction must be affirmed with costs. 



98 



MAGISTRATES' APPEALS. 



REGINA V. SHEIK HOSSAIN & ORS. 

PsKANO. Before a person can be convicted of gambling or being the owner of a common 

gaming house, the prosecution must shew l)y evidence, what the game is that is 

Phillips, J played, so that the Court can decide whotlier the i^amo falls within the Act or not. 

1877. A charge under one section of an Act followed by a conviction under a different 

section of another Act> is bad. 

July 14. 

The appellants were convicted by C. W. S. Kynnerslej, E^q., 
Magistrate, — the first appellant for " being owner or occupier of a 
house, and unlawfully keeping the said house open for gambling," 
and the other appellants for being found in a " common g-ambling 
house." 

Van Someren for appellants raised the objection that the 
evidence did not shew what kind of game was beiug carried on, 
and that the conviction was only for opening a house for purposes 
of gambling — but did not state that it was a common gaming house. 
As to the other appellants that they were charged under one 
Ordinance and convicted under another. 

Phillips, J. The judgment against the owner of the house 
must be reversed. There is no evidence of any gambling at all 
having been carried on in the house. Witnesses in these cases 
cannot constitute themselves judges of wliat is gambling and what 
is not. They should state particulars of the game that took place, 
so as to enable the Court to judge whether such game was gamblinjg^ 
within the Ordinance or not. 

The same objection applies to the other appellants ; and in 
addition there is the objection that they were charged under section 
39, clause 4 of Ordinance 13 of 1872, and convicted under section 
2 of Ordinance 9 of 187G. 

Conviction quashed with costs. 



CHOOASHARY & ANOR. v. CASSIM. 



Penang. 

Phillips, J. 

1877. 

July 14. 



A mere irrognlarity in the trial of a case before a Magistrate, such as calling 
witnesses for the prosecution after the prisoner has been called on for and stated 
his defence, is not such as will induce the Court to quash the conviction. 

The appellants were convicted of theft by C. W. S. Kynners- 
ley, Esq., Magistrate. The procedure, in the Magistrate's Court 
was somewhat irregular, such irregularity being that pointed out 
by the appellant's Counsel. 

Van Someren for appellants, objected firstly ; as to the first 
appellant there was no evidence against him, and secondly, that 
the conviction could not be sustained as witnesses for the i)^*osecn- 
tion were called after the prisoner had been called on for and 
stated his defence, and cited Recf, v. Chot Loll, 2 N. W. P. H. Ct. 
Eep. 271 ; Reg. v. Fuidge, 33 L. J. M. C. 71, and Act 11. of 1855, 
sec. 57. 

The respondent did not appear. 

PhillipSy J. I think there has been an irregularity, but I 



STRAITS SETTLEMENTS. 



99 



cannot hold a mere irrejrularity such as tliis, to be sufficient to ^*^^^^^>^- 

upset a conviction. The cases quoted are trials before Jury. In .; ' 

a Police Court such strict procedure cannot be maintained, or a Chooabhart 

stoppage of its functions would result. But I do not think the &anoe. 

evidence against No. 1 is sufii^ient, and tlie decision of the Magis- Cassim. 
trate must be reversed. As against No. 2, the conviction is 
affirmed [a]. 

[a] Irreguurity in any criminal procoodino^, is now no ground for reversinpf 
the judi^ent, unless there has bjcn a miscarriage of justice — sec Section 33, cl. 2 
of Ordinance 12 of 1S70. 



MAN & ANOR. V. SAMSAH. 

"Where, in an attache on a p-^rson, a hone is broken, this makes the offence Pbnano 

''grievous hurt," nndor the Penal Code ; and a Mai^astrate has no jurisdiction to 

dispose of the care summarily. Phillips J. 

The evidence in the case shewed thit Vac respondent had been attacked, and 3877. 

a bone of his finger broken : tho Ma^^fi: trate having triotl the appellants summarily, 

and convicted them of voluntarily causing hurt, this Court quashed tho conviction September 3. 
as havin.:^ been made without jurisdiction, and directed the case to be remitted to 
the Magistrate to be heard as a preliminary proceeding, and committed to the 
Assizes. 

The api^ellants were convicted by Captain D. T. Hatcliell, 
Maijistrati-, of voluntarily causinp^ hurt under section 324 of the 
Penal Code. Tho evidence shewed that the appellants had attack- 
ed the respondent, and beaten him, whereby a bone of one of bis 
fingers was broken. 

Anthony for appellants argued that as a bone was broken, the 
Magistrate had no jurisdiction to dispose of the case summarily — 
Ordinance 13 of 1872, — bnt shonld have committed them for trial, 
as the case proved it was grievous hurt, and cited Reginay. 
Ramtohul Singh, 5 W. R. Cr. 12. 

Phillips, J. I had at iirst some donbts in this matter, but on 
the authority of the case cited, the conviction must be quashed, 
and the case remitted back to the Magistrate to be dealt with as 
one of grievous hurt. 

Conviction quashed. 



EEGINA V. SIIAIK ISHMAEL LEBBY. 

The Labour Ordinnnee 1 of ISTO, which makes the brinp^ing of an Immigrant 
to this Colony from Indii, without observance of tho formalities therein prescribed, 
an offence, apxjliesonly to Imiuij^rants who are natives of " British India.** 

The Crown not being named in the Appeal Ordinance, no costs can be awarded 
against it in an appeal. 

The defendant was charged with bringing a native immigrant 
from India to this Colony, contrary to Ordinance 1 of 1876, sec- 
tion 2. It was not shewn that the immigrant brought was a 



Penang. 

Wood, J. 

1878. 

June 21. 



100 



MAGISTEATES* APPEALS, 



Wood, J. 

1878. 

Bio. 

V. 

Shaik 

ISHMABL 
LVBBT. 



native of British India. The Magistrate, C. W. S. Kynners- 
ley, Esq., had, in consequence, dismissed the charge. 

The Crown now appealed. 

D. Logan,, [Solicitor-General], contended that Ordinance I of 
1876, section 2, must have reference to a native of India gene- 
rally, and not of British India only. It is sufficient if the person 
brought is a native of India and an immigrant, within -the 
nieaning of section 1, and cited Maxwell on Statutes, p. 35, 39. 

Anthony for respondent, was heard contra, and applied for his 
client's costs of the appeal, and referred to section 39 of the Crow^n 
suits Ordinance 15 of 1876. 

Wood, J. In this matter, I consider that the point is clear, 
that the Act only applies to bringing of natives of British India 
into the Colony for labour, and that the preamble clearly shews 
the reason of the enactment, which otherwise would be vague and 
overstrained. On the question of costs, however, I am of opinion 
that as the Crown is not named in the Appeals Ordinance, no 
costs could be given against it. 

Acquittal affirmed without costs. 



Pbnakg. 

Wood, J. 
1878. 



ONG AH HUAT v. OPIUM FAEMER. 

Being in possession of illicit chandoo, under the Excise Ordinance 4 of 1870, 
is a possession with a guilty knowledge. 

Where it was shown that the appellant was a brothel-keeper and livei in the 
brothel — that some illicit chaudoo was found in a room of the house, which was 
occupied by one of the prostitutes, and when it was found, both he and the woman 
August 14. denied they smoked opium, which statement was proved to be false. 

Held, there was no evidence of guilty knowledge. 

Query. Was the chandoo at all in the man's ** possession," within the meaning 
of the Ordinance. 

The appellant had been convicted by F. H. Gottlieb, Esq., 
Magistrate, for being in possession of illicit chandoo. The evi- 
dence against him was, that he was a brothel-keeper, and the 
chandoo was found in a room occupied by one of the prostitutes 
kept by him, that he lived in the same house, and presumably had 
control over the woman's apartments, that he and the woman 
denied they were chandoo-smokers, which was clearly proved to 
be false. 

TAomas for appellant. There is no reasonable evidence that 
the chandoo was in the possession of the appellant : 1st, in his 
possession at all, 2ndly in his possession with a guilty knowledge. 
No such guilty knowledge is alleged in the conviction. 

[Wood, J. The conviction is clearly erroneous in not stating 
the scienter.] 

On the suggestion of the respondent's Counsel, the case was 
argued as if the scienter were inserted, and the conviction good 
in form. 

Boss for respondent, argued that there was evidence of guilty 
knowledge on the part of the appellant, for he was a brothel- 



STRAITS SETTLEMENTS. 



101 



keeper and the woman presumably under his control — the chandoo 
was found in the room she occupied. It was part of his brothel 
house, and as he was himself living in the house, he must be pre- 
sumed to be cognizant of what was brought into it. The state- 
ments of the prisoner, and of the woman also, that thej did not 
sraoke chandoo — when it was found that they did, — was also evi- 
dence of guilty knowledge. 

Wood, J. I must hold that it is impossible on the facts as 
stated in this case, to infer any guilty knowledge, and therefore 
quash the conviction. 

Conviction quashed. 



Wood, J. 

1878. 

Onq Ah 

HUAT 

Opium 
Fabmbb. 



CASSIM V. HAJI MAHOMED SYED. 

Before a person can be convicted of criminal trespass, it must be shewn affirm- 
atively, that he entered into the place in order " to intimidate, insult or annoy, or 
to commit an offence/' within section 4:4:1 of the Penal Code. 

Query, Has the Magistrate power under section 60 of Ordinance 12 of 1872, to 
bind a person over to keep the peace on conviction of criminal trespass ? [a] 

The appellant Cassim, had been convicted by C. W. S. Kyn- 
nersley, Esq., Magistrate, for criminal trespass. He v\^as a Revenue 
Ofi&cer, and it was supposed he had entered the prosecutor's com- 
pound with a view of placing gandia [bhang] there. He was, 
besides being sentenced to imprisonment, bound over to keep the 
peace. 

Van Someren for appellant. The appeal is on the ground that 
there is no evidence of an " intent" which can justify a conviction 
under section 441 of the Penal Code. The intent must be " to 
intimidate, insult or annoy, or commit an offence " — there is no 
offence here shewn— no intent is averred in the conviction. The 
Magistrate had no power to order the appellant to keep the peace, 
as the case does not fall within section 60 of Ordinance 12 of 1872. 

Wood, J. I am of opinion that the conviction is bad in not 
defining the intent with which the criminal trespass was said to 
have been committed — and that to be good, it must allege that the 
intent was " to intimidate, insult or annoy, or to commit some 
offence." 

No evidence is given, which can justify this finding — but the 
Magistrate seems to have dealt with the case as one of simple, and 
not criminal trespass, and to have awarded the punishment of 
criminal trespass to such simple trespass. 

As I am of opinion that no amendment, such as should be 
made to make the conviction gpod, could be sustained by the 
evidence, I quash the conviction. 

Conviction quashed. 



Penako. 

Wood, J. 
1878. 

August 14. 



[a]. See Regim v, Thaj^oo, 20 W. R. C. E., 87. 



i02 



MAGISTRATES' APPEALS. 



Penano. 

Wood, J. 

1878. 

Sept. 27. 



ABDUL GUNNY v. NEWLAND. 

Where a person applies to a Maj^istrato for a summons, and the information 
discloses an offence, the Magistrate has no option in granting or refusing the sum- 
mons ; but is.bound to issue it. 

This was a Rule Nisi calling upon the Magistrate of Police, 
to shew cause why a mandamus should not issue to compel him to 
grant a summons against the above-named C. C. Newlaiid, an 
Inspector of Police, for an alleged assault committed upon the 
above-named Abdul Gunny, a Kling trader. 

Mr. Kynncrsley, the Magistrate, in shewing cause stated, that 
he was not satisfied that the complainant has been " put in fear," 
and therefore refused the summons — and that he conceived that 
the Police were entitled to some protection from the Magistrate. 

Thomas in support of the rule contended that the Police were 
entitled to no special protection, as sufficient and unusual protection 
was already extended to them by legislation-Ordinance 1 of 1872, 
8.8.42 — 49, and that Magistrates from the nature of their position, 
were expected to exert special restrictions upon infirmities of temper; 
and lastly, that putting a person " in fear " could not enter into 
the definition of an assault. Penal Code, 8.8. 352 et seq. 

Wood, J. said that when an offence was disclosed a Magistrate 
had no option but to grant a summons — that here it was stated the 
Inspector had used his baton, and if at home a police officer threat- 
ened a person with a baton, except in self-defence, it would 
probably lead to his dismissal — that Magistrates here were in a 
delicate position between the Executive and the native population, 
and the refusal of a summons on their part would lay the bench 
open to grave imputation of want of independence. The inform- 
ation disclosing an offence, the Magistrate could have no option 
in the matter, and the rule must be made absolute. 

IMe absolute for a mandamus. 



LETCmiEE AND ANOR. v. RAMASAWMY. 



Penakg. 

Wood, J. 
1878. 

October 24. 



Oil the hearing of a criminal charj^c a«4uinst a prisoner, the Magistrate's notes 
of evidence of a previous case tried heloro him, although relating to the same sub- 
ject-matter and against the same prisoner, is not admissible in evidence. 



The appellants were convicted of criminal breach of trust by 
two Magistrates, Messrs. Hervey and Kynnersley. The Magis- 
trates received in evidence the notes in a previous case [tried 
before Mr. Kynnersley] referring to the same subject-matter, and 
against the same prisoners. 

Van Somercn for appellants. The evidence of the witness 
James Miles^ clerk to the Magistrates' Court, and the notes of 
evidence produced in evidence were improperly admitted. 

Thomas for respondent. 

Woodf J, I am of opinion that this evidence was wrongfully 



STRAITS SETTLEMENTS. 



103 



admitted, and as it is not gfiven m extenso, its nature cannot be Wood, J. 
known. The case is remitted back to the Macfistrate with in- ]^* 

structionst hat the evidence Avas improperly admitted, and the Lltcumee 

notes of evidence at a previous trial, produced by him, was not & anor. 
evidence. The Ma*nstrate is further directed to commence a fresh 



charge. 



Bamabawmt. 



Order accordingly. 



EEGINA V. BEII HOOIE AND ANOE. 

Before a conviction can he had under section 32 of Ordinance 13 of 1S72, for PenanG. 

being " found wandering about without being iiblo to give any satisfactory account __ 

of oneself," the prosecution must shew that all, and not ono or more only of the Wo 3D, J. 

conditions mentioned in the section, existed. 1878. 

The prisoners were convicted by C. W. S. Kynnersley, Esq., October 24. 
Magistrate, for being " found wandering about and not being abJe 
to ^ive any satisfactory account of themselves," under section 82 
of Ordinance 13 of 1872. The evidence simply shewed that the 
appellants and another had been seen for several consecutive days, 
sonietiraes in the day, and sometinies at night, walking up and 
down the road in front of the Superintendent of Police's quar- 
ters, and apparently Avatching what was going on within ; that 
they had been threatened they would be an-ested if they con- 
tinued doing so ; that on the day of the appellants' arrest, they 
and their companion, were walking in front of and watching the 
quarters as usual, when the appellants were arrested, but their 
companion managed to make his escape. There was also some 
evidence pointing to No. 1 as being a person in the employ of 
Gaming House-Keepers, and it was supposed that the prisoners 
were watching the movements of the Police, so as to inform their 
masters of any apprehended visit to such houses by the Police. 

Thomas for appellants. 

Wood, J. I consider that under section 32, sub-section II., of 
the Ordinance 13 of 1872, '' v/anderers," as there described, must 
combine all the accumulative conditions of being, 1. Avandering 
abroad, 2. lodging in any shed, &c., 3. not having any visible 
means of subsistence, and 4. not giving a good account of them- 
selves ; and that the evidence to support a conviction under this 
section, must prove all, and not one or more only, of these condi- 
tions. 

I doubt whether any of these matters have been proved, and 
think the proceedings open to very grave question. I therefore 
quash the conviction, 



Conviction quashed* 



104 



MAGISTRATES' APPEALS. 



ONG CHEH YEW v. LEONG WEE QUAN. 

PsNANQ. A prisoner was charged with breach of trust of certain monies entrusted to 

him by the prosecutor, to remit to China : the prisoner had received the money 

Wood, J. but omitted to remit it, and gave no account thereof, beyond his own statement it 

1878. had been remitted. To shew the money had not been received, the Magistrate 

received in evidence a letter written by the remittee to the prosecutor, stating the 

October 24. non-receipt of the money. The prisoner was convicted. 

Held, the letter was inadmissible in evidence. 

Several persons, besides the prosecutor, who had been cheated by the prisoner 
in the same way, were called on the hearing of the above-named charge, and proved 
the several frauds practised by prisoner on them, 

Held, their evidence was not admissible, as proving each, a distinct offence. 

The appellant Ong Cheh Yew was convicted by C. W. S. 
Kynnersley, Esq., Magistrate, of cheating and criminal breach of 
trust. The appellant had received certain monies from the res- 
pondent to remit to China ; he omitted to do this and gave no 
account thereof. To prove the non- receipt of the money in China 
by the person to whom the respondent was sending it, a letter 
from that individual to the respondent to that effect, was received 
in evidence. Other persons similarly dealt with by the appellant 
were also called and proved that he had thus dealt with them. 

Thomas for appellant. 

Wood, J. I am of opinion that the letter produced by prose- 
cutor from China, as to the non-arrival of the money there, was 
improperly received, and that the evidence of the other persons 
defrauded [not the prosecutor] was open to objection — that it was 
evidence of another and a different charge of criminal breach of 
trust. I therefore decide that the case should be sent back to the 
Magistrate with a direction to commence a fresh charge and rehear 
the case. The Court specifically instructs the Magistrate not to 
admit in evidence the letter produced by the prosecutor, and not 
to admit in the rehearing of this case, the evidence of persons as 
to any other charge which may be the subject of a distinct 
enquiry. 

Order accordingly. 



REGINA r. TAN A YEAP & OES. 



Wood, J. 
1878. 

November 8. 



Where a person is charged with breach of the Post Office Act XIV. of 18G6, in 
performing postal services other than through the Post Office, — it is for him to shew 
that he comes within the exception in section 5, and not for the prosecutor to shew 
that he does not. 

The defendants were convicted by C. W. S. Kynnersley, Esq., 
Magistrate, under section 46, clause 2 of Act XIV. of 1866, for 
breach of the Postal Eegulations. A number of letters from- 
persons in China to persons in Penang were found in the defend- 
ant's possession — these letters had no postage stamps on them. 

Thomas for appellants contended that as postal communi- 
cation with the interior of China was not shewn by the evidence, 
^d as in fact there was no proof thereof, capable of being 



STRAITS SETTLEMENTS. 105 

adduced — a person, a native of China, where no postal law exists. Wood, J. 
cannot be held to be guilty of any offence, in conveying a letter ^^^ 
from his native country, China, to this Colony of the Straits reo. 
Settlements, in contravention of our postal law. The Indian Act v, 
XIV. of 1866, sections 4, 5 & 46, were relied on by him, but he '^^^ ^ ^^^^ 
further contended that the appellants might well be persons with- ^^' 

in the exception in section 5 ; they were not proved to be persons 
out of that exception, — all that appeared in the case, as shewn in 
evidence was, that they were persons leaving the ship with letters, 
addressed to persons in Penang, in their possession, — and that the 
Crown should have shewn that they were not within the exception. 

D. Logan [Solicitor-Geiiei^al] for the Crown. The exception 
need not have been negatived by section 47 of Ordinance 6 of 1873. 

Wood, J. I incline to the opinion that some evidence ought 
to have been adduced by the Crown to negative the presumption 
of innocence to be inferred from the mere possession of the letters 
by the defendants. 

The Solicitor-General being unprepared on this point, the 
matter stood over for further consideration. 

Ross, now appeared on behalf of the Crown, and contended 
that it was not necessary for the Crown to produce any evidence 
to shew the defendants did not come within the exception, but it 
was for the defendants to prove they did, and referred to Paley 
on Convictions, p. 123, citing Begina v. Turner, 5 M. & S. 206, 
Regina v. Hanson and other cases. 

Thomas contra. 

Wood, J. I consider that on the authority of the cases re- 
ferred to in Paley on Convictions, but especially Regina v. Turner, 
and Regina v. Hanson^ the onus was on the defendants to shew 
they came within the exception in section 5 of the Act. This 
duty they have not discharged, and I must give judgment for the 
Crown. 

Conviction affirmed. 



DOREHSAWMY PILLAY v. AENASHELLAM PATTEN. 

Where there is a hond.fide claim to property, the subject-matter of the charge, -Penang. 

no conviction for a criminal offence in respect thereto, ought to be made. There- 

fore, where it appeared that the congregation of a Hindoo Temple was divided in Wood, J. 
the election of a trustee, and each party appointed the person chosen by them, 1878. 

and one of such parties resolved to repair the temple, and their trustee thereupon 

directed the repairs to be done, in the course of which a wall of the temple was Nov. 12, 
pulled down, 

Held no criminal offence had been committed. 

Under such circumstances, the Court on appeal, quashed the conviction a3 
regarded the fine imposed on the prisoner, but upheld the further order of the 
Magistrate by which he dii-ected the prisoner to be bound down to keep the peace 
and also refused the appellant his ^osts. 

The appellant Dorehsawmy PiUay, was convicted by E. E. 
Isemonger, Esq., Magistrate, of mischief, by breaking down a 
portion of the wall of the Hindoo Temple in Queen Street, He 



106 



MAGISTRATES' APPEALS. 



Wood, J. 

1878. 

DO&EH- 
SAWMT 

Pill AT 

V. 

Abna- 

6HELLAM 

Pattkn. 



was both fined by the Magistrate and bound down to keep the 
peace. From the evidence, it appeared that the sole duly ap- 
pointed trustee of the temple had died and since his death the 
Hindoo community had been divided — the one portion electing 
the respondent and certain others, as trustees, and the other the 
appellant and others. It appeared that a meeting had been held 
by the appellant's party, and it Avas resolved to repair the temple. 
In pursuance of this resolution, the appellant and workmen set to 
and broke down the wall with a view to carrying out the proposed 
repairs. The respondent's party were dissatisfied with this, and 
brought the above charge against the appellant^ and for which he 
was convicted as stated. 

Thomas for appellant. 

Wood, J. I am of opinion that there was a good hoiid fide 
claim of title to act as the agent of persons having authority to 
repair, and so I quash the conviction so far as the fine is con- 
cerned, but uphold the order as to Iceeping the peace. 

On a subsequent day, Thomas mentioned the matter vmi 
asked for costs, and that the adjudication to keep the peace might 
be set aside. 

Wood, J. I think the appellant was rightly bound by tlie 
Magistrate to keep the peace, and will not touch this portion of 
his finding. I also make no order for costs. 

Conviction quashed as regards fine only. 



REGINA V. GOH CHOO. 



Penang. 



Wood, J. 



Before an order can be made under section 61 of Ordinance XIII. of 1872, there 
must bo a fuU hearing of the complaint. 
1878 Where a Magistrate only caused the informations sworn in order to procure 

' the warrant, to be read to the informants, in -presence of the accused, and there- 

Nove ber 12 ^^^^^ made an order that the accused find security under the aforesaid section, [a] 
Jleldj this was no hearing, and the information was quashed with costs. 

The appellant had been ordered by E. E. Isemonger, Esq., 
Magistrate of Province Welleslej, to find .security to keep the 
peace. He had applied to the Magistrate to state a case for the 
opinion of this Court, which was refused by the Magistrate who 
considered the application frivolous. From the aifidavits filed by 
the appellant, and his Counsel, as also from the copy of the pro- 
ceedings and certificate furnished by the Magistrate, it appeared 
that on the appellant being brought up before the Magistrate, the 
sworn informations of the two respondents were read over to theui 



[a.] The following is the section : '' Gl. Whenever any Justice of the Peace 
receives information that any person is likely to commit a breach of the peace, or 
to do any act that may probably occasion o. brea'ch of the peace, such Justice of the 
Peace may summon the person to attend at a time and place mentioned in the 
summons, before himself or before a Magistrate, or before the Court of Quarter 
Sessions, to show cause why he should not bo required to enter into a bond to keep 
th© peace, with or without sureties," 



STRAITS SETTLifiMENTS. 



107 



in the presence of the appellant, and they were asked if the same 
were correct, and on their stating they were, the order aforesaid was 
made. The affidavit also stated that the appellant had applied 
for a postponement to call witnesses as he had been arrested only 
the evening before, which application was refused by the Magis- 
trate. The Magistrate, nor the respondents, answered this por- 
tion of the affidavit, but the certificate furnished by the Magis- 
trate stated that the appellant " produced no witnesses." 

Thomas, for the appellant, having obtained a Kicie Nisi call- 
ing on the Magistrate to shew cause why he should not state a 
case, 

Mr. Isemonger, the Magistrate, shewed cause. 

Wood, J. As tLe affidavits are not disputed, the inile must be 
made absolute. 

The Magistrate having stated the case as directed, the appeal 
now came on to be heard. 

Thomas, for appellant. 

Wood, J. The case having now been stated, it appears that 
the only evidence adduced at the hearing was the informations of 
Tee Peat and Inspector Harvey. There does not appear to be 
any evidence given in the witness box, no cross-examination ap- 
pears to have been allowed, nor opportunity given to call wit- 
nesses for the defence. I must hold that this was no hearing and 
adjudication under Ordinance XIII. of 1872, section 61, clause 3, 
which states that there must be an adjudication, upon evidence, 
I quash the order, [a] 

Order quashed with costs. 



Wood, J. 

1878. 

Keq. 

V. 

GoH Cuoo. 



KHOO TEAN TEK v. OPIUM FARMEE. 



A soarcli warrant wiU not be issued for the production of tlic private books of Penang. 

a prosecutor, in order to be evidence for the defence. . 

Query. Is an appeal from a Magistrate's decision, an "enquiry" within Wood, J 
Seo.25ofOrd. 20 of 1870 ? I879. 

This was an appeal from the decision of F. H. Gottlieb, February 26. 
Esq., Magistrate, Penang. The appellant was convicted of being 
in possession of illicit chandoo. 

Thomas, for the appellant read affidavits of apj)ellant and him- 
self, and applied for a searcli warrant to produce a day book of 
the Opium. Farmer, which it was alleged, contained an item mate- 
rial to the appellant's case — under section 25 of the Criminal 
Justice Ordinance, 20 of 1870. ' 

Ross contra, argued, that the Court had no power to issue the 
warrant, nor to remit the matter to the Magistrate, except under 
Bection 32 of the Appeals Ordinance 9 of 1874; that this was in 
effect an application for a new trial upon fresh evidence — the 

. [ct] Clause III. " No person shaU bo bound to keep the peace, either with or 
^ithout sureties, tin after the case shall have been adjudicated upon evidence 
wefore a Justice of the Peace, a Magistrate or Court of Quarter Sessions." 



108 



MAGISTRATES' APPEALS. 



Wood, J. 
1879. 

Khoo 
Tean Tbk 

V, 

Opium 
Fabheb. 



matter had been decided, and the appellant might, if he had a case, 
take proceedings as for perjury — the affidavit was simply hearsay 
evidence of a man who swore to having received information from 
another whom he did not name. He further contended that this 
was not an " enquiry," and the Court of Appeal could not nse the 
power indicated by section 25 of Ordinance, 20 of 1870; the book 
was a private book, and was not a thing to be searched for, within 
the meaning of the Ordinance ; the application was made for 
purposes of delaying the enforcing of the penalty awarded by the 
Court below. 

Thomas in reply contended that this was an enquiry, — for the 
Court of Appeal might take further evidence — the entry would be 
corroborative of what is stated by the appellant's witnesses. 

Wood, J. I cannot order a search warrant to issue, authorizing 
a police officer to search for the day book referred to, under 
section 25, as the appellant cannot force the prosecutor to produce 
his private books to be evidence in his [appellant's] favour. I 
give no opinion on the other objections raised. 

February 27. The Appeal was now dismissed on its merits. 



GAN KIM SWEE v. NEWLAND. 



Penano. 

Wood, J. 
1879. 

February 26. 



A Magistrate's decision will not bo reversed on the ground of its being against 
the weight of evidence, unless it be grossly so. 

When a Magistrate has fined a prisoner, the Court will be reluctant to allow an 
appeal, when the only complaint is the smallness of the fine, [a.] 

Appeal against the decision of E. E. Isemonger, Esq., Magis- 
trate, whereby he had convicted the abovenamed C. C. Newland, 
an Inspector of Police, for an assault on the now appellant. 

Ross [for appellant] argued that the decision was against the 
weight of evidence. 

Clarice [Acting Solicitor-General], contra, asked for a larger 
penalty, as the amount of the fine awarded by the Magistrate, he 
submitted, was too small for the gravity of the offence. 

Wood, J. I am of opinion that an appeal against the decision of 
the Magistrate on matters of fact, should not be lightly allowed — 
not unless the decision is grossly against the weight of evidence. 
Here it is impossible to say how the demeanour of the witnesses 
might have told against them. This Court; is no better judge of 
fact than any other. The Magistrate seems to have dealt with 
the offence in favour of the prosecutor, and I am reluctant to 
allow an appeal against the finding of the Magistrate, whom the 
Legislature no doubt reasonably considers the best and most practi- 
cal tribunal for the trial of small matter of assault, when all that 
is complained of, is the smallness of the fine. The Magistrate 
might well have considered a small fine sufficient in this case, to 
prevent the recurrence of such an offence. 

Appeal dismissed. 



[a.] See foot-note [a] in Begina v. Lim Peng Sf ors., antd p. 85, 



STRAITS SETTLEMENTS. 109 

FONG AH CHAN v KAH SEW. 

Where a prisoner is charged under section 363 of the Penal Code, Mrith kidnap- Penang. 
ping a minor under sixteen, from lawful guardianship, the prosecution ought to shew — . 

by satisfac-tory and conclusive evidence, that the child is under that age. Wood, J. 

Where the only evidence was. that of the minor that her mother had told 1879, 

her her age, and the alleged guardian stat9vl that the mother had also told her the 

same, but the parents of the child, being out of the jurisdiction, were not called, February 27. 

Held, that the evidence of age was too slight for consideration, and the conviction 
was annulled. 

Where the alleged guardian stated the minor was a niece of her husband, and 
had been adopted by her for the then past seven years, and the minor spoke of tho 
guardian a.s her aunt. 

Held, [in the absence of evidence to the contrary] that there was ample evidence 
of lawful guardianship. 

The prisoner Pong Ah Chan, along with another, was convicted 
by two Magistrates, E. E. Isemonger, Esq., and C. W. S. Kyn- 
nersley, Esq., sitting as a Court of Quarter Sessions, of kidnapping 
a minor under sixteen, from lawful guardianship. The evidence 
shewed that the minor had lived for some little time with the 
respondent. The minor spoke of the respondent as her aunt — the 
respondent stated the minor was her husband's niece, and had been 
adopted by her about seven years before. There was no other 
evidence of guardianship. The minor said her age was fourteen 
as her mother [not the respondent] had told her so. The respondent 
said that when she adopted the minor, her mother told her the 
child was seven, but she herself considered, and then made the 
remark, that the child was six. The minor's parents were in China — 
no further evidence of age was adduced. The Magistrate saw the 
child, but on the hearing of the appeal, the child was not produced. 

Thomas for appellant contended, 1st, tliere was no evidence of 
the age of the minor, except hearsay which was no evidence; and 
2nd, there was no evidence of the lawfulness of the guardianship. 

The respondent did not appear. 

Woody J. The conviction of No. 1 appearing on its face to be 
for the crime of kidnapping a female under the age of sixteen from 
the lawful guardianship of her aunt Kah Sew, the evidence when 
gone into shews that the child herself speaks to her own age as 
under sixteen, and also the guardian speaks to her being fourteen, 
but I am of opinion that there is not satisfactory evidence of the 
child being under sixteen, though there is some evidence. I think 
it entirely immaterial whether or no the guardian was the child's 
aunt, but I am satisfied that there is evidence of the woman being 
the lawful guardian. Thinking however that the case comes under 
sub-section 2 of section 41 of the Appeals Ordinance 9 of 1874, and 
that in fact the prisoner No. 1 was convicted under a charge* on 
which in the opinion of the Court he ought not to have been 
convicted, I annul the proceedings and direct the prisoner No. 1 
to be tried again on a proper charge. I may intimate that proof 
of the age of the child, as being under sixteen, ought, in justice 
to the prisoner, to be of a more satisfactory and conclusive kind 
than that adduced ; I should have charged a Jury that the evidence 
of age in this case was too slight for consideration. 

Conviction quashed — case rernitted to Magistrates for rehearing. 



no MAGISTRATES' APPEALS. 

REGINA V. KUC?: SIN LOI. 

SiKGAPOBX. ^^ appeal lies under the Appeal Ordinance 9 of 1874, from the decision of a 

' Court of two Magistrates, and such proceedings can therefore be brought into this 

Ford J. Court only by Ceriiorari. 
1879. The u>rigin and constitution of the Court of Quarter Sessions, of two JiEagis- 

tirates, and Police Courts, considered. • 



June 5. 



Banmgarten had obtained a Rule Nisi under sections 25 & 
26 of the Appeals Ordinance 9 of 1874, calling upon Messrs. 
Hervey and Denny s, the two Magistrates before whom the 
prisoner was convicted, to shew cause why they should not state 
and sign a case for the opinion of this Court. . 

The Magistrates refused to state a case, or to furnish the 
applicant with a certificate of the cause of their refusal, copy of 
conviction and evidence, on the ground that no appeal lay from 
their decisions, under the provisions of the Ordinance regulating 
appeals from Magistrates, — or if any appeal did lie, it Avas under 
the provisions regulating Courts of Quarter Sessions in place of 
which Courts, two Magistrates now act. Appeals from Quarter 
Sessions lie only upon points of Law reserved. 

Bandy shewed cause. 

Banmgarten, supported the rule. 

Cttr. Adv. Vult, 

On this day, judgment was delivered by 

Ford, J. The question raised in this case has, I think, been 
properly brought before the Court ; it being a question of some 
difficulty. Before dealing with the numerous Ordinances which 
affect the question, I will trace as nearly as I am able, the history 
of both Courts of Quarter Sessions and Magistrates' Courts. 

Courts of -General and of Quarter Sessions were apparently 
established and continued under the Charters of 1826 & 1855, 
and consisted of Justices of the Peace presided over by the Re- 
corder or one or other of the Judges of the Court of Judicature. 
These Courts do not seem to have sat very often or with much 
regularity, and by Ordinance 5 of 1868 — the year after the trans- 
fer — were abolished Avith the former Court of Judicature. These 
Courts were, however, resuscitated by the Ordinance 5 of 1873, 
with an Appeal upon points of Law reserved by their President 
to the Judge of Penang or the Chief Justice as the ca.se might 
be ; but, not being found to work in practice, were, by implica- 
tion, again abolished by Ordinance 17 of 1876. This Ordi- 
nance, by its 3rd section, transferred [with some limitations as to 
powers of punishment] all their" jurisdiction, powers, and duties" 
to " two or more Magistrates sitting in a Police Court." Ordi- 
nance III. of 1878 — the present Courts Ordinance — does not enu- 
merate Courts of Quarter Sessions amidst the present Courts of 
the Colony, and they may be treated therefore as if abolished in 
terms. 

The origin of our Magistrates' Courts, I have not been able 
quite to trace, but the Indian Act XIII. of 1856, which is a con- 
solidation Act, gives powers to the Government to appoint Magis- 



Loi. 



STRAITS SETTLEMENTS. Ill 

trates to them ; and we may fairly take it that, from that tirae, Fobd, J. 
our Police Courts fell under its provisions both in their principle ^^^* 
of constitution and procedure. That Act seems to me generally req. 
to contemplate the Police Courts in their summary jurisdiction ,v, 

being presided over by one Ma^^istrate — but, in the case of Madras ^uck Sin 
and Calcutta, it provided for certain cases, in which a prosecution 
in the Supreme Court would be ineffectual in consequence of the 
absence of material witnesses, bein<^ tried by two Magistrates. 
This provision was not extended to Bombay or the Straits Settle- 
ments ; in the case of Bombay, apparently [S. 82] from its having 
a Court of Petty Sessions, and perhaps in the case of these Settle- 
ments from their having a General or Quarter Session. The 
next Police Act — Act XLVIII. of 1860 — repeals many of the 
sections of the Act of 1856, and, amongst them, the 32nd, and in 
its place [Section 4] gives the same exceptional powers to two 
Magistrates in the Straits Settlements that the previous Act had 
con ferred in Madras and Calcutta. We have thus, I think, the 
origin of what may be termed the two Magistrates' special 
jurisdiction. It does not appear that this Act gave any special 
Court of Appeal from their decisions, but on the transfer of 
these Settlements to the Colonial Office, the Magistrates' Ap- 
peals Act XXVII. of 1867, was passed, and by section 23, its 
provisions — including a right of appeal to the Supreme Court 
— were made applicable to proceedings before Magistrates' sit- 
ting with other Magistrates or with Justices of the Peace in summary 
jurisdiction, whether in Courts of Petty Sessions or in ordinary 
Police Courts. So matters remained apparently until the year 
1871, when in lieu of section 49 of Ordinance 5 of 1870 [another Cri- 
minal Procedure Ordinance which gave a single Magistrate powers 
of adjudication up to 6 months' imprisonment or §100 fine] powers 
were given by section 3 of Ordinance 13 of that year to two or 
more Magistrates to try certain cases of a graver kind, and to 
inflict punishments up to 12 months' imprisonment and fines of 
$500. The jurisdiction given by Act 48 of 1860 in eases of wit- 
nesses about to leave the Settlement, was continued by both the 
Criminal Procedure Acts of 1870 & 1873, but I do not find that 
any new Court was to be constituted for the exercise of the ex- 
' tended jurisdiction : any two Magistrates were enough for the 
exceptional jurisdiction in probable absence of witnesses, and two 
or more Magistrates could exercise the extended jurisdiction in 
other matters. Both class of cases were, it seems to me, to be 
heard — as indeed has always I believe been the case — by Magis- 
trates sitting in a Police Court. The only Magistrates' Court 
seem to me to have been Courts of one Magistrate iu Summary 
Jurisdiction, Courts of two or more Magistrates with an extended 
Summary Jurisdiction. In practice the officers of the single or 
Police Magistrates' Court have discharged and continue to con- 
duct all the administrative business attaching to proceedings 
before either one or two or more Magistrates — and, up to that 
date, Appeals still, I take it, lay under Act XXVII. of 1867. In 
the year 1872, the idea of resuscitating Courts of Quarter Sessions 
seems to have occurred to our prolific producers of local legisla- 



Ua MAGISTRATES' APPEALS. 

PoBD. J. tion, and by a consolidating Summary Criminal Jurisdiction Ordi- 

^^^ nance, 13 of 1872, the old powers in cases where the absence of a 

Beq. material witness was probable, were conferred upon Quarter Sessions, 

V. together with a very enlarged summary jurisdiction generally ; 

KucK Sin ^j^^ y^y section 4, " Until Courts of Quarter Sessions were consti- 
tuted, the jurisdiction therein couferred ou such Courts was to be 
exercised by such two or more Magistrates as might be appointed 
by the Governor for that purpose at each of the Settlements, and 
the expression " Quarter Sessions Court" or " Court of Quarter 
Sessions" as " used in this or any other Ordinance," was to be 
held to mean " such two or more Magistrates till Courts of 
Quarter Sessions were constituted." 

The effect of these sections seems to me — even if there had 
been any distinction between two Magistrates' Courts and a 
Court of two Magistrates — to have made them identical. I 
believe, as a matter of fact, that no two Magistrates ever 
did sit under this temporary provision, but had they done so, 
I find nothing to liberate them from the powers of appeal given 
by Ordinance 27 of 1867, which [section 23] were applicable 
to proceedings " before Magistrates sitting with other Magistrates 
in ordinary Police Courts." 

By Ordinance 5 of 1873, Courts of Quarter Sessions came into 
force, and no two or more Magistrates had any longer the powers 
given them by Act XLVIII. of 1860 and subsequent Acts and Ordi- 
nances. All these powers were, by force of the Ordinance of 1872 
and 5 of 1873, transferred to Courts of Quarter Sessions. By 
sections 75 & 76, however, of the latter Act, the Governor had 
apparently power to add another Magistrate to an ordinary Police 
Court, but such a Court must not be confounded with the Courts 
of two Magistrates with enlarged powers and jurisdiction which 
had been done away with on Quarter Sessions being re-created ; 
nor must section 93, which directed " appeals against the deci- 
sions of the Magistrates' Courts at Singapore and Penang to be 
heard befere the Presiding Judge at those Settlements" be read 
as having reference to those Court3. These were, so to speak, 
swallowed up in Quarter Sessions, appeals from which were 
specially provided for. Up to the passing of Ordinance 17 of 
1876 [an Ordinance to amend No. V. of 1873], things remained 
in this state, with the exception that by the Appeals Ord. 9 of 
1874, fresh evidence was afforded of the entire absorption of these 
two Magistrates' Courts, by the provisions of Sec. 23 of Act XXVII. 
of 1867 being omitted. Appeals from the then remaining Magis- 
trates' Courts were to the Presiding Judge of the respective 
divisions of the Supreme Court, and Appeals from Quarter Sessions 
to the Supreme Court upon points of law reserved only. By 
section 3, however, of Ordinance 17 of 1876, Courts of Quarter 
Sessions were, by strongest implication, abolished, and, all juris- 
diction, powers, and duties conferred or imposed on Courts of 
Quarter Sessions at the several Settlements by the Courts' Ordi- 
ance 1873, or by any other Law in force at the time this Ordi- 
nance came into operation, were conferred and imposed on, and to 
be exercised by two or more Magistrates sitting in a Police Court. ^ 



StBAITS SETTLEMENTS. 113 

This Ordinance also fundamentally altered the constitution ^^^79 ^* 
of the Supreme Court itself, breaking up its former constitution _.* 
of divisions, and thus it became necessary to provide for appeals Rkq. 
from the ordinary Magistrates' Courts, as well as if it was thought ^ ''* « 
desiiuble to substitute some method of appeal from the decisions l^i. 
of two Magistrates sitting in lieu of Quarter Sessions — the former 
procedure for which appeals was evidently imsuited to the Court 
of two Magistrates. Section 8 is the only one which refers to 
appeals, and, as it is directly stated to be in substitution of section 
93 of Ordinance 5 of 1873, [which, as I have said, had no 
reference to Courts having such jurisdiction as is now given to two 
Magistrates] and is confined to '' decisions of one or more Magis- 
trates" [terms quite applicable to Courts constituted under 
sec. 76 of that Ordinance,] seems to me not to provide for 
appeals against the two Magistrates' Courts, constituted in 
lieu of Quarter Sessions. Ordinance 3 of 1878, sections 1 
& 57, seem to keep up the distinction between *two 
Magistrates' Courts' and ' Courts of one or more Magistrates,' 
[althoucrh what the difference is in practice I have not been 
able to discover,] and gives an appeal from either form of Court 
to a Judge of the Supi-eme Court, but does not state under 
what provisions the appeal is to be made, those formerly guiding 
appeals from Quarter Sessions or those guiding appeals from 
Magistrates. 

If the appeals Act XXVII. of 1867 had been in force, I should 
not have had much hesitation in saying that the recent two 
Magistrates' Courts had simply reverted back to their original 
status, and appeals lay under its provisions by virtue of the 23rd 
section ; but Act XXVII. of 1867 was repealed by the Appeals Ordi- 
nance 9 of 1874, which omitted the provisions for appeals from 
more than one Magistrate, and this Ordinance, framed when there 
were no two Magistrates' Courts in existence, cannot, I think, be 
made to apply to them now. The Court is then driven to consider, 
there being clearly a right of appeal, under what form is it to be ? 
Can the Comi, revert back to the procedm^e given by Ordinance 
9 of 1874, to cases before Courts of Quarter Sessions, and then 
pn,t two Magistrates' Courts in every respect in place of Quarter 
Sessions? I confess I do not see how that can be, for as Ordi- 
nance 9 of 1874 gave an appeal only upon points of Law reserved 
% the President of that Court, who was also to be a Judge of the 
Supreme Court, and there is no such President in existence, I 
cannot see how it is possible to foUow that form of procedure. 
I am driven, therefore, to the conclusion, that this question of 
how the appeal from these two Magistrates' Courts is to be 
brought, is a casus omissus^ and that no provision has been made 
lor such appeals. The Court is therefore, I am of opinion, driven 
oack upon its powers under a Certiorari by which to entertain a 
niotion of this character. I am compelled, therefore, although 
with regret, to discharge this rule. I do so, however, under the 
circumstances of the case without costs. With the doubts exist- 
^^g in this Colony even upon the powers of the Court under a 
OerUorari, it is to be hoped, that the Legislature will at once 



lU 



MAGISTRATES' APPEALS. 



FoftD. J. 
1379. 

Beg. 

V. 

EnoK Sin 
Loi. 



PsNAKa. 

Wood, J, 
1879. 

Augxist 5. 



provide a means of having these appeals satisfactorily brought 
before the Court, [a] 



CONNOR V. TAN JIM SIN. 

No oonTiction can be had for receiving a gratification under section 161 of the 
Penal Code, unless it be rccoivecl for doinjsf whit would be a strictly official act. 

The apiK'llant, an apothecary, camo to this Colony under a contract with the 
Indian Government, that h-^ was required to do onl^' Hospital duties, and was not 
to be restricted from private practice. On his arrival here, he was placed in charge 
of a Hospital in Province Wellesley. Not long after, a patient was admitted into 
the hospital Euff.?ring from wounds re2eivcHt in a fight, and his friends applied to 
the appellant for a cortificate of the wounded man's condition, in order to procure a 
warrant for the apprehension of the assailants. The general practice of the apo- 
thecnriea in the Settlement was to grant such certificates without remuneration, 
and the Medical Otncer considered it was the duty of the appellant to have granted 
the certificate without charge. There Avas no other evidence of its being an official 
act. The ai>pellant declined to graiit the certlCc ite unless he was paid, as he con- 
sidered it no part of his duty to give it, whereupon he was paid $5, and then grant- 
ed the certificate. The Magistrate convicted him under section 161, 

Held, the conviction could not be sustained. 

The appellant, T. A. Connor, was convicted by E. E. Iseraon- 
ger, Esq., Magistrate of Province Wellesley, under section 161 of 
the Penal Code, for receiving a gratification, to wit $5, other than 
legal remuneration, as a motive for doing an official act, to wit, 
signing a certificate of health. It appeared that he was the Apo- 
thecary in charge of Sungei Bakup Hospital, that one Law Sin 
Hut had been admitted into the hospital suffering from wounds 
received in a fight. The respondent had applied to the appellant 
for a certificate as to the condition of the wounded man, in order 
to procure a warrant for the apprehension of his assailants. The 
former Apothecaries at that hospital had always furnished sucli 
certificates without remuneration, and this was the practice of 
most of the Apothecaries in town as well as in the Province. The 
appellant declined to give a certificate unless he was paid §5 for 
it. This was paid him and the certificate granted. The Doctor, 
stationed at Province Wellesley, the a^ppellant's superior officer, 
considered it was tlie duty of the appellant to grant the certificate 
without charge. The appellant contended he bad come under a 
contract with the Indian Government to perform hospital duties 
only, and with the right of having private practice, that the 
granting of the certificate was no part of his hospital duty, and 
he was not bound to give it unless he chose, and on such terms as 
he wished to impose. 

Van Someren, for appellant. There is no evidence that what 

he appellant did was an official act. The only evidence that 

points faintly to its being so,~ is the almost general practice of 

Apothecaries, and the opinion of the Doctor. The defendant was 

entitled to charge for his service, even supposing it to be an 

[a] Ordinance 9 of 1874, has been repealed by Ordinance 12 of 1879, 
which gives an appeal as was sought for in this case. This decision, however, is 
reported as partly touching on the history of the lower Courts. See also, Preface 
4c., Civil Cases, Volume I. of these Reports. — J. W. N. K, 



STEAITS SETTLEMENTS. 115 

official act, because by bis contract with the Crown, through the Wood,!. 
Indian Government, he was required to do certain things only, ^f^* 
which do not include the act comi^lained of. The appellant is Connob 
entitled to make a reasonable cliar«:?e for doing anything not his v. 

duty. He also read certain affidavits settinjj: out the contract '^^^ •^"' ^^'^ 
with the Indian Government, under which the appellant came 
out — the affidavits also stated that the Magistrate had refused to 
look at this contract. The affidavits were unanswered. 

The respondent did not appear. 

Wood, J. I am of opinion that there is no evidence of the 
defendant having done any official act. The evidence does not 
shew this, in terms, to be an official act, and there were no means 
of judicial knowledge in the Magistrate, tiiat this act was an 
official act, either at Common law or by the provisions of any 
legislative enactment. The Facts, as set forth in the case, by no 
means establish anything more than that the defendant, probably 
rightfully, insisted on private remuneration for duties which were 
nob within the range of his general duties as Apothecary to a 
hospital. I understand such duties to be the charge and care of 
the sick in hospital only, and a report or certificate given to a pri- 
vate individual, in such a matter as the one alluded to, should 
have been specially dealt with in the contract between the Crown 
and the Apothecary. This not having been done, the Apothecary 
was free to exercise his own free will in granting or withholding 
any such certificate. It is not to be presumed that he had any 
obligation to grant such a certificate, and his granting it might be 
subject to any condition he chose to impose. Nor was the certi- 
ficate, so ftir as I can see, essential to any proceedings, though of 
possible service to the person asking for the certificate. It would 
certainly be most advisable that the Apothecary should be bound 
not to charge for things done as Apothecary, though extra his duty ; 
or if allowed to charge, that the money should go to the Crown, 
and be reaeonable in amount. 

However unreasonable and improper it may appear to be, 
that the Apothecary should have a right of withholding such a 
certificate, as forms the subject of this complaint, except on pay- 
ment of a fee named by himself, yet the conviction can only be 
supported, iu the case of a fee taken for doing a strictly official 
act, which I am of opinion this was not. 

Referring to the language of clause 8 of section 48 of Ordi- 
nance 9 of 187 i " that if the facts of the case are such that no 
valid charge can be preferred against the person accused in respect 
of the facts proved, the conviction shall be quashed," I order the 
appellant — the accused person — to be discharged, and the convic- 
tion quashed and fine returned, 

OonvMion quashed. 



116 



JIA-OISTBATES' APPEALS. 



SECUNDER V. KTAMBOO. 
REGINA V. SHAVOO. 

PiKJLNa* Where tKe evidence in a case leaves it doubtful which of two oif more offences 

[some within and some beyond the Magistrate's jurisdiction] a prisoner has com- 

WooD, J. mitted, and the Ma^^isbrate has convicted for one within his jurisdiction, this 

1879, Court will not interfere with his decision : but where the evidence shews that the 

prisoner has committed only one and that a cravor offence, and the Magistrate has 

October 15. wrongly convicted him of a lesser offence and one over which he has jurisdiction, 

the Court annulled the conviction, and remitted the case to be dealt with as on 
the graver charge. 

Where therefore a Constable in order to obtain money, falsely charged a milk 
man with having adulterated milk in his possession, and threatened to take him 
before the Magistrate on such charge, and thereby obtained money from the man 
in consideration of his releasing him, — and the Magistrate convicted the Constable 
of receiving a gratification for forbearing to do an official act. 

Held, that the conviction could not be sustained, as the Constable forbore to 
do not an official act, but a wrongful act, and the Magistrate had no jurisdiction. 

The first appellant, Secunder, was convicted by F. H. Gottlieb, 
Esq., Magistrate, under section 162 of the Penal Code for obtain- 
ing from the respondent Kyamboo, a gratification for the 2nd 
appellant Shavoo [a Police Officer], for forbearing to do an official 
act. The 2nd appellant was convicted under section 164 for 
abetting the 1st appellant in obtaining such gratification for 
himself. 

The appellants were tried together. The evidence against 
them shewed that the respondent Kyamboo was a milk-seller, and 
on the morning in question was walking down Pitt Street with 
his pail of milk, when he was stopped by the appellant Shavoo who 
wanted to take him off to the Police Station on a charge of having 
adulterated milk in his possession. The respondent Kyamboo re- 
sisted this, when the appellant Secunder interposed, and said, if a 
dollar was given the Constable, he would let him go. Kyamboo 
then left his pail with the Constable and Secunder, and went and 
fetched a dollar which he handed to Secunder, who handed same 
to the Constable, who thereupon released Kyamboo and his pail of 
milk. News of this reached the Station and the Corporal in 
charge took both Secunder and the Constable into custody. It 
appeared the milk had not been adulterated, and the act of the 
Constable was done merely for the purpose of obtaining money by 
fear and threat of a criminal charge. 

Van Somereriy for appellant Secunder. 

C. W. RodyJc, for appellant Shavoo. 

The respondents did not appear. 

Van Someren contended that the offence disclosed by the 
evidence was theft or extortion and no other. The evidence points 
to one offence and one only, and it can hardly be presumed that 
the Magistrate could have convicted the men, except by dealing 
with the case as a whole. 

[Woody J. I think that the Magistrate had it in his discre- 
tion to consider the graver charge of extortion as not made out, 
and had so decided in his adjudication. I cannot take upon 
myself to correct this view.] 

Van Someren, referred to Mayne on the Penal Code^ 316, and 



STRAITS SETTLEMENTS. 



117 



Regina v. Walton^ 32 L. J, M. C. 79. He further contended that 
the evidence did not shew the milk was adulterated, but the 
contrary. It clearly shewed that tlie Police Constable Shavoo 
did not therefore forbear to do an official, but forbore to do a 
wrongful act ; and so Shavoo and Secunder could not have been 
guilty under these sections 162 & 164, but, if guilty of anything, 
must have been guilty of extortion by attempting to obtain money 
by fear and threat of a false charge of being in possession of 
adulterated lailk, and if guilty of extortion, the Magistrate had no 
jurisdiction to convict. 

Woody J. With great reluctance, I am bound to hold this 
objection tenable, and that the conviction must be quashed inas- 
much as the Magistrate had no jurisdiction to deal with the 
graver offence. I cannot find that there was any evidence which 
could justify the conviction for the minor offence. The convictions 
in both appeals are annulled, but the case is remitted for the pri- 
soners to be retried on the graver charge of extortion with a view 
to the case being dealt with before either a bench of Magistrates, 
or the prisoners being committed for trial at the Assizes. 

Conviction quashed ami case remitted. 



Wood, J. 
187D. 

Secundeb 

V. 

Etahboo. 
BEa. 

V. 

Shavoo. 



VERAMAII V. THAIVOO. 



A convictiou for Ihof t or clieatiiig must shew that the property stolen or cheated, 
is the property of some pordon, so as to be certain and not vague. The objection 
is not one of form. 

Semhle. The Ordinance 5 of ] 870, docs not apply to proceedings or convictions 
by Magistrates. 

The ai^pellant Venimah was convicted by N. P. Trevenen 
Esq., Magistrate, for cheatiug. The conviction omitted to state 
whose property it was that the person was said to have obtained 
by the cheating. 

Van SomereUy for appellant. The objection is, that the convic- 
tion does not shew that the money obtained was the property of 
Thaivoo, or whose property it was. Regina v. Martiuy 8 A. & E. 
481 ; Rex Y, Sill, 17 Jar. [0. S.] 22, s.c. 21 L. J. M. C. 214; Dears 
C. C. 10. This last case shews the objection is not one of form, 
but substance. A similar objection was taken in Regina v. WillanSy 
1 Mad. H. C. 31, but overruled under the Act XVIII. of 1862. 
This Act does not, of itself, apply to this Colony, but the Act is 
applied by Ordinance 5 of 1870, but by that Ordinance is made 
applicable only to the Supreme Court, — see sec. 47. Mootoo Bawa^ 
appellant, v. Nahoo, respondent ; and Govinden v. Vengadashellum^ 
decided by Sir William Hackett in this Court, on 23rd October 
1873. [a] 

Woody J. The conviction is liable to the objection urged, there 



Penang. 

Wood, J. 
1879. 

October 15. 



[a] not reporUd, 



118 



MAGISTBATES' APPEALS. 



Wood, J. 
1879. 

Ybbamah 

V, 

Thaitoo. 



being no Ordinance of our own Legislature, or the Indian Acts 
applicable to the Colony, applicable to remove this technical, but 
no less good objection. It is much to be regretted that modern 
English Acts are not followed in this particular. 

Conviction quashed. 



NAWAS & ANOE. v. SHAIK EAJAH ALLI. 



Pbnano. 

Wood, J. 
1879. 

October 15. 



The holding of a kimduri or feast in one's private residence, does not require 
a pass from the Police authorities, and the holding of such kunduri, apparently 
without a pass, is not illegal, so as to render persons assembled with the object of 
disturbing such kunduri and preventing people from attending same, not punish- 
able under section 143 of the Penal Code. 

The appellants had been convicted by N. P. Trevenen, Esq., 
Magistrate, under section 143 of the Penal Code, of being 
members of an unlawful assembly, the object of which was to 
cause a disturbance by criminal force, in order to compel the res- 
pondent to omit holding a kundiu'i [or feast] at his private resi- 
dence. 

The evidence shewed that the respondent had a kunduri at bis 
house, and the appellants, who were members of a Kongsi or secret 
society, having reason to suppose this tunduri was given with the 
object of enticing away their members, assembled with several 
others in front of respondent's house and threatened to assault 
anybody attempting to go into the house. They also had a rowdy 
meeting at their residence, not far from respondent's, under the 
plea of themselves having a kunduri, which was a sham, and 
done in order to draw away the people from respondent's feast. 

H. C. '^a2t^/ian for appellants. The conviction is bad as 
being under section 143, and it ought to have shewed that the res- 
pondent was legally entitled to hold a kunduri — the conviction 
should have gone on further to state that by a pass from the 
Superintendent of Police, respondent was legally entitled to hold 
such kunduri. This is a substantial objection, because at the 
trial, positive evidence was required to shew that he had a right 
to hold it. A Kunduri means a feast, not necessarily public, but 
a feast private or public. 

[Wood, J. I am of opinion that the conviction is not informal 
in stating that the respondent was legally entitled to hold a 
kunduri, in other terms, a " feast" or " sujDper."] 

2ndly. By Ordinance 13 of 1872, section 19, whoever in- 
fringes any rules &c., is liable to a penalty. There is a Police 
Regulation which directs something about kunduris or assemblies 
of some kind. The respondent not having complied therewith, 
his assembly was illegal. 

[Wood, J. On the evidence, there is nothing to shew that 
prosecutor in the Magistrate's Court [respondent], was holding a 
kunduri which was illegal, but the matter may stand over to 
to-morrow, to allow the appellants to produce any Police regu" 



STRAITS SETTLEMENTS. 



119 



lation which prove that the holding of such a kunduri is contrary 
to such regulation.] 

VatigJmn then asked for a mitigation of sentence. 

Wood, J. I decline to interfere with the discretion of the 
Magistrate in awarding punishment. 

No regulation on the point was produced and the 

Conviction affirmed. 



Wood, J. 

1S79. 

Nawas 

& ANOR. 
V. 

ShiikKajah 
Alli. 



UEGINA V. 001 TIM & OES. 



Tho mention in a notice of appeal of the Ordinance under which it is p^iven, is 
not essential, and any inaccurracy in that respect is imicaterial. Where therefore 
a notice of appeal purported to he j^iven under tho Appeals Ordinance V of 1874, a 
few days after its repeal hy the new Ai)peals Ordinance 12 of 1879, 

Held, the inaccurracy did not render the notice void or prevent the appeal 
hoing heard. 

Appellants were convicted for ohstructiupj with their floatinof nets, tho fair 
way of the South Channel, under section 25 of the Harbour Ordinance 8 of 1S72, 
and in a second count with floating their nets in more than 2^ fathoms water, under 
section 37 of the Ordinance. 

Ileldj those w^ere two distinct offences, and as only one poDalty was awarded, 
the conviction v.* as bad. 

Sections 25, 32, 33, «t 34 of the Appeals Ordinance 12 of 1879, d) not enable 
the Court to amend such an error in a conviction. 

The api)3llaiiL3 were convicted by T. A. Fox, Esq., Marino 
Magistrate, on the 7th September, 1879, for breach of the Har- 
bour Ordinance 8 of 1872. The conviction was on two counts, 
tlie 1st for causini^ an obstruction in tlie fair way of the South 
Channel by means of their floating nets in breach of section 25 of 
the Ordinance, and the 2nd count for placinpr their said nets in 
more than 2^ fathoms at lov^^ water spring tide in breach of sec- 
tion 37 of the Ordinance. Neither count stated the date of the 
commission of the offence. Notice of appeal was given on the 
loth September, requiring the Magistrate to state a case under 
Ordinance of 1874. 

H. C Vaughan for appjlhints. The conviction is bad for 
not setting out the time of committing the offence. By Ordi- 
nance 1-3 of 1872, spction 66, a form is given, but tlie form is not 
folloY/ed. The section says the Magistrate " may'^ use the form, 
yet still it is imperative on him to do so, and the apparently per- 
missive words are not permissive. Ne/wman v. Hardwicke, 8 A. & 
E. 1 24. Any how the conviction must at Common law state time. 
It is not so, if excepted by the legislature, but this Act, by words 
which are imperative, makes it essential. 

2ndly. The conviction awards a single penalty for two 
offences, whereas it should have disposed of each offence sepa- 
rately, so as to afford to the defendants an opportunity of plead- 
ing the conviction to a subsequent charge, for one or the other of 
these offences. Foley on Convictions, 265 ; Newman v. Bendyshe^ 
10 A. & E. 11 ; Opium Farmer v. Koh Boo An, Straits L. E. 278. 

Bosa for respondent. Whatever may be the objectio^s to tho 



Penano. 

Wood, J. 
1S79. 

October 16. 



120 



MAGISTRATES' APPEALS. 



Wood, J. 
1879. 

Beg. 

V. 

Ooi Tim 

& OB8. 



conviction, the appellants have not complied with the Appeal 
Statute. Ordinance 12 of 1879 came into opei-ation on the day of 
its date — 4th September 1879. This Ordinance repeals Ordinance 
9 of 1874, and so, on 5th September that Act [9 of 1874] had no 
existence — section 48 of the Ordinance of 1879. Section 18 of 
the New Ordinance alone gives the defendants a right to 
appeal, and instead of appealing under the new Ordinance, they 
appeal under the old one. This reference in the notice binds 
the defendants — it is not surplusage. 

[Woody J. The reference to the Ordinance was not material, 
or an essential part of the notice, and so inaccuracy is immate- 
rial.] 

As to the 2nd objection. There are not two offences of 
which the defendants are convicted but one offence. Section 25 
of the Harbour Ordinance enacts that the navigation shall not 
be obstructed. Section 37 enacts that the Governor in Council 
may make rules. 

[Woody J. I observe that the bye-law or rule of the Governor 
in Council is not set out, and that the real offence in the 2nd 
count of the conviction, is not properly averred.] 

The offence 2ndly charged, if not an offence, is merely sm*- 
plusage, and therefore the conviction is only for one offence. 
The Court can order a conviction to be amended by reference to 
the proceedings, and in fact draw the conviction if there are suffi- 
cient materials. Section 6 of Act 20 & 21 Vict., c. 43. The 
Court will amend the not setting out of the bye-law under sec- 
tions 32, 33 & 34 of the Appeals Ordinance 12 of 1879, for here 
proceedings must mean the conviction. Section 25 also gives the 
power to deal with the conviction. 

Vaughan in reply abandoned the first point as it could be 
amended. 

Woody J. I am of opinion that the conviction cannot be 
sustained, inasmuch as it purports that the defendants were con- 
victed in one penalty for two offences which might have been 
separately dealt with. I give this decision with great reluctance, 
but I hold that the general right of a defendant to insist on a 
conviction which is within itself sufficient on all material points, 
still exists. I am also of opinion that the powers given to the 
Court in sections 25, 32, 33 & 34 of the Appeals Ordinance 12 
of 1879, do not enable the Court to amend a conviction, or order 
it to be amended in such a manner as this. 

Conviction quashed. 



NARAINASAWMY v. MARIAPEN. 

PxNANO. 1^ there is a reasonable or arguable ground of objection to a conviction, an 
application to state a case under the Appeals Ordinance, Section 18, is not " fri- 

WooD, J. volous." A Magistrate refusing, under such circumstances, to state a case, will be 

1879. ordered to do so. 



October 81* 



Van Someren had obtained a Eule calling upon F. A, Swetteu- 



STRAITS SETTLEMENTS. 



121 



ham, Esq., Magistrate of Province Wellesley, to shew cause why- 
he should not state a case in accordance with the provisions of 
the Appeals Ordinance. 

Mr. Swettenham shewed cause, and contended that the applica- 
tion was a frivolous one. He offered now to return an amended 
conviction, and cited Maxwell on Magistrates^ p. 33 ; that the appli- 
cation was frivolous because there was a clear cheating within the 
meaning of section 415, the prosecutor having parted with §35 — 
no matter to whom — there was moreover no substantial objection 
to the Magistrate's decision — OTce^s Magisterial Synopsisy 218, note 
18, p. 223, note 23, citing i^e^. v. Mentham — he asked to put in 
the amended conviction. 

Van Someren submitted that the Magistrate was not entitled 
to put in the conviction now. Maxwell, p. 33 ; the conviction had 
been returned into Court, the copy of the evidence, with certifi- 
cate of refusal, and copy of formal record of the conviction was 
now on the files of this Court, clause 3, sec. 18 of Appeals Ordi- 
nance 12 of 1879 ; that the copy of a conviction was the same as a 
conviction, Reg. v. Eaton, 2 T. E. 472, the facts of this case did 
not admit of the conviction being altered. He also objected that 
the certificate did not shew that the conviction was under Sec. 415, 
but it may be inferred that it was a finding of guilty on a charge 
of cheating, although irregular in form — the case shewed that the 
conviction must have been already drawn, and a copy of such final 
conviction handed over — this shewed the extreme limit of the 
temjpus penitentioe — he further submitted that even supposing the 
new conviction to be true, and an amended one, and rightly put 
in, it was still bad on the ground that the property, $35, was not 
stated to be the property of the party defrauded. 

Mr. Sivettenham in reply, stated that the applicant, did not 
give the grounds of complaint in his application to the Magistrate, 
though he had done so in the affidavit. 

Van Someren on this, contended that it was not necessary to 
state the grounds, as section 18 said nothing of the grounds of 
application. Sec. 19 first mentions the statement of grounds 
in the affidavit, and cited Taylor on Appeals, p. 40. 

Wood, J. I am of opinion that there is reasonable ground of 
objection on the whole case, and am inclined to think that a 
tangible and arguable point is raised as regards the form of con- 
viction at least. 

Rule absolute without costs, [a] 

[a] When an objection cannot be held to be frivolous.— See Dalton r. 
Mclntyre, 1 Dowl. [N. S.] 76, 



Wood, J. 
1879. 

Nabaina- 

8AWMT 
V. 

Mabiapen. 



122 MAGISTEATES' APPEALS. 

In re VANJOOR MUSTAN. 

SiNUAPOBB. A Commissioner of the Ctmrt of IlK|iio?t5?, although he is and can only bo a 
Magistrate?, has not, when he t-its as Comuiissioner, the powers of a Ma<;istrato, and 

SiDaREAYES, cannot therefore lino, or coaimit to priton for an assault on his peon, or the like, 

C. J. except as provided by the Court of liequestd Act, ISoO. [a] 
1H80. 

"~r". Donalihon on behalf of Vanjoor Mustan had obtained a Rule 

Nisi callinji: upon A. W. V. Cousins, Esq., Commissioner of the 
Court of Requests, to shew cause why a writ of Certiorari should 
not issue to remove into this Court, the record of the proceedings 
in the Court of Requests in the matter of a fine imposed upon, 
and the commitment of Vanjoor Mustan on the 12th day of 
February, 18S0, for an alleged assault upon one SLaik Mohamed, 
a peon of the said Court, in order that the same might be 
quashed. 

From the affidavit of Vanjoor Mustan in support of the rule, 
it appeared that one of the peons of the Court of Requests 
having complained that he had been assaulted by the servant of 
one Savena Gulam Mezdiu, he Vanjoor Mustan had been sent for 
to the Court, and then and there, upon the unsupported state- 
ment of the peon, that he had been struck by the said Vanjoor 
Mustan, — ^but who did not state when, or under what circumstances 
he had been struck, — he [Vanjoor Mustan] was sentenced to a 
fine of §25 or 6 weeks' imprisonment in default. 

T. Braddell [Attoniey-General] shewed cause. 

Donaldson supported the Rule. 

Cur. Adv. VuU. 

Sidgreaves, C. J. It will be seen from the affidavit filed by Mr. 
Cousins, and it was admitted by the Attorney- General in his argu- 
ment in opposing the making of the rule absolute, that the conten- 
tion is that this conviction can be supported and apparently only 
supported on the ground that Mr. Cousins whilst sittins^ as Com- 
missioner of the Court of Requests was acting in his Summary 
Jurisdiction as a Magistrate. If he were so acting then these 
proceedings by Cei^tiorari would be irregular inasmuch as by the 
Appeals Ordinance 1879, no proceedings before a Magisti-ate so 
acting, shall be removed into the Supreme Court for revision by 
Certiorari. 

The 21st Section of Ordinance 29 of 18G6 shews what the 
Commissioner might have done for the protection of any Officer or 
Bailiff of the Court while in the execution of his duty. That 
section is as f oUows : — 

" If any Officer or Bailiff of any such Court shall be assaulted while in the 
execution of his duty or if any rescue shall be made or attempted t-o be made 
of any person arrested or goods levied under process of any such Court, the 
person so offending shall be liable to a fine of fifty dollars, to bo recovered by 
order of such Coui-t, or before a Magistrate, and the Bailiff of the Court, or 
any Peace Officer in any such case may take the offender into custody [with 
or without warrant] and bring him before such Court or Magistrate accord- 

[o]. See Pavidton t. Ord, CiyU Cases, Vol. I. of these Eeports, p. 205, 



STRAITS SETTLEMENTS. 123 

The Attorney-General however admitted that the Com- Sidobeavis, 
missioner could not be said to have acted under that section ^^• 

inasmuch as the punishment set out in the conviction, exceeded ' 

the powers givea by that section and indeed the conclusion of the in re 
previous section 20, giving power in cases of contempt of Court Vanjoor 
to impose a fine not exceeding $25, and in default of payment, to 
commit the offender for any time not exceeding 7 days, clearly 
shews that such imprisonment in default could not have been con- 
templated by the 21st section. 

The process that ought to have been adopted on non-payment 
of a fine imposed under section 20 being clearly set out in sections 
14 & 15 of the Act. 

Section 14 is as follows : 

" Payment of any fine imposed by any Court of Requests under the 
authority of this Act, may be enforced upon the order of the Commissioners 
of such Court in like manner as payment of any debt adjudged in the said 
Court, and shall be accounted for as herein provided." 

Section 15 prescribes the mode in which such payment of 
any debt shall be recoverable. 

The Attorney-General therefore rested his case on behalf of 
the Commissioner entirely on the ground of his having acted in 
the matter as a Magistrate, exercising his Summary Jurisdiction. 
This view of the matter being urged upon the Court, this dual 
position and these double powers being claimed on behalf of the 
Commissioner of the Court of Requests, becomes the duty of this 
Court to enquire into, and define as clearly as may be what the 
powers of the Commissioner really are. 

Until the passing of Ordinance 5 of 1873 no particular 
qualification was necessary for a Commissioner of the Court of 
Koquests beyond that originally required by the Charter of 1826 
which gave authority to the Governor or President of the Council 
of the Settlement to erect and establish such Court or Courts of 
Judicature as they should see fit for the recovery of small debts 
and for the trial and determination of all suits and causes what- 
soever against any of the inhabitants of the said Settlement of 
Prince of Wales' Island, Singapore, or Malacca, wherein the debt 
duty or matter in dispute should not exceed the value of $32 
[subsequently increased to §50] and from time to time to appoint 
any of the inhabitants whether Britishborn or not to be the 
Judges of the said Court or Courts respectively. 

Act XXIX. of 1866 whilst defining the powers and duties of 
the Commissioners made no alteration in their qualification if 
such it can be called. A series of Ordinances however, beginning 
with Ordinance 5 of 1873, enacted that the Court of Eequests 
should be presided over by a Magistrate as Commissioner of the 
Court, and by the Law as it at present stands under Ordinance 3 of 
1S78, section 53, all suits in which the sum claimed or the value 
of property claimed shall not exceed §50 shall be heard before a 
Court of Eequests to be presided over by a Magistrate as Com- 
missioner of the Court. 

Here we have then the qualifications of those who can be 
appointed to act as Commissioners of the Court of Eeijueats gut 



124 



MAGISTRATES' APPEALS. 



SlDGRBAySS^ 

C. J. 

1880. 

In re 

Vanjoor 

MUSTAM. 



down to a particular class, no longer are all the inhabitants of the 
Colony whether British born or otherwise, elij^ible for appoint^ 
ment as sitch Commissioner, but the choice is limited to a class,| 
viz., Magfistrates ; to say that this is equivalent to arming the 
Commissioner of the Court of Requests whilst acting in that capa- 
city with the ad<Jitional powers of a Magistrate of Police acting 
in his summary jurisdiction, is to say in effect that Act XXIX. of 
1866, has been repealed by the use of those simple words intlie 
Court's Ordinance to be presided over by a Magistrate as Commis- 
sioner of the Court. If the Commissioner of the Court of Re- 
quests has by virtue of those words larger powers than those given 
by that Act, then that Act ceased to have any practical operation. 
It appears to me that the question can be reduced almost to an 
absurdity by allowing for a moment that Mr. Cousins occupies 
the dual position at one and the same time of Commissioner of 
the Court of Requests and Magistrate of Police. In proceedings 
of this nature he would claim as he does now that he acted as 
Magistrate of Police in his Summary Jurisdiction, and that by the 
31st Section of the Appeals Ordinance proceedings before a Magis- 
trate acting in his Summary Jurisdiction shall not be removed 
into the Supreme Court or Court of Appeal for revision, by Cer- 
tiorari. If proceedings were taken by way of appeal to the Su- 
preme Court, to reverse his decision as that of a Magistrate of 
Police, he could at once put a stop to such proceedings by Section 
10 of the Appeals Ordiijance which enacts that there shall be no 
appeal from the decision of a Court of Requests. 

The last enactment seems to shew clearly that it could not 
have been the intention of the Legislature to place the Commis- 
sioner of the Court of Requests, although a Magistrate, on the 
same footing as a Magistrate of Police acting in his Summary 
Jurisdiction. Act XXIX. of 1866 being still in force I must con- 
sider that the Commissioner of the Court of Requests when pre- 
siding in that Court, notwithstanding his magisterial quaUfica- 
tion, must be governed and controlled by that Act in the exercise 
of his duties and his power. In the proceedings now before the 
Court he has unfortunately exceeded them, and therefore the Bule 
Nisi for bringing those proceedings into this Court in order that 
they may be quashed must be made absolute. 

Rule absolute. 



PENANa. 
FOBD, J. 

1880. 
Dec. 13. 



KHOO AING HONG v. MEYAPAH CHETTY. 
PUTEH V. KHOO AING HONG. 

On a charge under section 5 of the Pawnbroker's Ordinance 7 of 1872, it is for 
the accused to shew he has a Ucense, and not for the prosecution to shew that ho 
has not. 

The Pawnbroker cannot prosecute for a breach of tho Ordinance, committed 
before the term of his exclusive privileges, and during the time of the previoufl 
Pawnbroker. 

Prosecutions under the Pawnbroker's Ordinance are, by the Ordinance, im- 
pliedly confined to the Pawnbroker, or a person acting as his informer on his 
behalf as his Chiniing or Revenue Officer. 



These were two appeals from the decision of T, H, Gott- 



STBAITS SETTLEMENTS. 125 

lieb, Esq., Magistrate, under the Pawnbroker's Ordinance 7 of Fobd, J. 
1872. Tha respondent in the first case, Meyapah Chetty, and ^^^* 
Puteh, the appellant in the second, were severally charged with Khoo Ainq 
carrying on the trade of a pawnbroker without a license, under Honq 
Section 5 of the aforesaid Ordinance. In the first case, it appeared ^ ^• 
that the carrying on of the trade by the respondent, had taken Chettt. 

place during the time the previous pawnbroker had the exclusive 

privilege of taking pawns, and that the present appellant had Putbh 
become pawnbroker, only after such " trade" had ceased to be Khoo'aino 
carried on by the respondent. The pawnbroker — the prosecution Hono. 
—also, in this first case, omitted to shew that the respondent had 
not a license. On objection taken on these grounds before the 
Magistrate, he dismissed the charge in the first of these cases, and 
the present first appeal was against that acquittal. In the second 
of these appeals, it appeared that the trading occurred within the 
term of the present pawnbroker's privileges, but the prosecution 
again omitted to prove th it the appellant [Puteh] had not a 
license. On this objection being taken before the Magistrate, he 
overruled it, holding the onus of .proving the license was on the 
prisoner [appellant], and convicted him of the offence. These 
appeals now came on together. In the first of them the case was 
remitted to the Magistrate to state his grounds for dismissing the 
ease ; this having been done, the appeal now came on for hearing. 
Thomas for appellant in the first case, and respondent in the 
second, contended that as regards the second appeal the Magistrate 
was right in holding the onus to be on the prisoner, but was wrong 
in holding the contrary in the first appeal, and cited 3 Russell on 
Crimes, 366 ; Paley on Convictions^ 45 ; Rex v. Turner, 5 M. & 
Sel. 206, Elkin v. Janson, 13 M. & W. 655, and Pedgrift v. Che- 
vallier, 29 L. J. M. C. 225, and as regarded the right of the present 
pawnbroker to prosecute for an offence previous to his time, he 
contended that it was a fallacy to suppose the Act meant to limit 
particular breaches of the Act, as punishable only during particu- 
lar periods. The Act relating to pawnbroking was one and the 
same Act during the term of exclusive privilege of both farmers, 
and no sooner the breach of the Act came to light, anybody who 
chose to prosecute, could do so. Prosecutions under the Act were 
not necessarily confined to the pawnbroker. 

E. W. Presgrave for the respondent in the first case, and ap- 
pellant in the second, contended that as it was essential to the 
offence that the trading should be without a license, no offence 
was shewn until there was evidence, however slight, that 
the prisoner had no such license. It was contrary to the first 
principles of law, to hold a prisoner to prove himself not guilty, 
oefore he is shewn to be guilty. In fact the presumption was in 
favor of his innocence. He referred to 1 Taylor on Evidence, [2nd 
^^•] p. 325, and submitted the cases cited by the other side, did 
^^ot go the whole length of this case, and were distinguishable as 
^ing under statutory enactments, which had placed the burden of 
proof,— the positive of the issue, — on the accused. As regarded 
, the right of the present pawnbroker to prosecute, he contended the 
Act was intended to protect the right of a particular person — the 



MAGISTRATES* APPEALS. 



PO&D, J. 

1S80. 
Ehoo AiNa 

HONQ 
V. 

Mbtapah 
Chbttt. 

PUTEH 
V. 

Khoo AiNa 
HoNa. 



pawnbroker — ^who held the monopoly of taking pawns — that mo- 
nopoly was broken into by the respondent, as against the previous 
pawnbroker : the monopoly of the present pawnbroker had not been 
in the least aflPected. The Ax3t really confined prosecutions to 
pawnbrokers, for breaches of the Act during their own privileges, 
by making one-haK of the fine go to the pawnbroker as compensa- 
tion for the wrong done to him, sec. 25 — here, no wrong* was done 
to the appellant, the present pawnbroker, and he was entitled to 
no compensation, and could not prosecute, as if his privileges were 
affected. 

Thomas in reply, submitted the payment of compensation had 
nothing to do with the right to prosecute ; in fact compensation 
could only be paid if the Magistrate so thought fit. Even if 
wronged, the pawnbroker was not entitled to compensation, but the 
" informer" was — and then even, the " informer" was not entitled, 
as of right, to compensation, but was dependent on the good will 
of the Magistrate. The section for compensation therefore had no 
bearing on the question raised — or if anything, one adverse to the 
respondent, as it spoke of an " informer," shewing any body could 
do so, and prosecute. 

Cur. Adv. VuU. 



16th February, 1881. Ford, J. held, that as the possession of 
a license was a fact peculiarly within the knowledge of the person 
charged, and not within the pawnbroker's, as he did not grant 
such licenses, — the affirmation of the issue, and onus of proof was 
on the prisoner, and this case was not distinguishable from Rex v. 
Turnery cited by Mr. Thomas, and as regarded the right of the 
present pawnbroker to prosecute, such right was impliedly confined 
to pawnbrokers, or persons informing on behalf of the pawnbroker, 
as his Chinting or Eevenue Office^: the Informer, as it was his 
mono]3oly that was intended to be protected. The fact that the 
present pawnbroker was not the pawnbroker at the time the breach 
of the Ordinance was committed, was fatal to the prosecution, as 
no breach of the present pawnbroker's monopoly had occurred by 
the prisoner's act. The result would be, that the decision of the 
Magistrate would be affirmed in both the cases, and both appeals 
be dismissed. 

Appeals dismissed. 



WEE LALAH v. OH KAN 



Penano. 

FOED, J. 

1880. 
Bee. 13. 



OH KAN V. TAN CHUAN. 

The Magistrate has no jurisdiction under section 44 of Ordinance 13 of 1B72. 
to order a married woman to return to her husband, when she is not detained from 
him against her will, but of her own accord, will not do so. That section, in cases 
of married women, applies only to cases of such women detained by some one else, 
and against their will. 

This was an appeal by the wife of the respondent Oh Kan, 
against an order of E. C. Hill, Esq., Magistrate, Penang, by which 



STBAITS SETTLEMENTS, 127 

he directed her to return to lier husband, and if she refused to do so, Ford, J. 
for force to be used against her to compel her to do so. The ^^* 
respondent. Oh Kan, ori^rinolly prosecuted the defendant Tan vvee Lalah 
Chuan, for detaining his wife, the appellant Wee Lalah, from him, v. 

against her will : this case was dismissed by the Magistrate, it Oh Kan 
appearing that there was no detention by Tan Chuan or any body q^ Kan 
else, but the wife would not return to her husband of her own v. 

accord. On the dismissal of the aforesaid charge against Tan Tan Chuan. 
Chuan, the Magistrate made the order against the wife, which 
was now appealed against. The woman still refused, and gave 
notice of appeal, — on which she was allowed to go her way, on 
giving bail for her appearance, if required, after the termination 
of the appeal. 

Van Someren for appellant contended that inasmuch as this 
Court had no jurisdiction to order a married woman to return to 
her husband — Lim Chye Peow v. Wee Boon Teh, Straits Law 
Reports, p. 282 [a] — it would not imply, from the language of 
section 4 i, suchjf. jurisdiction in the Magistrate's Court, except 
by most express words. 

D. Logan [^Solicitor-General] for respondent, and in support 
of order, contended, that section 44 was really divisible into two 
parts — the first half for the protection of liberty of a man, woman 
or child ; and the second half, for the protection of the rights of 
husband, parent or guardian. 

Cur, Adv. Vult. 

20fch January, 1 881 . Ford, J. This case, robbed of the feature 
which originally attached to it^ of a charge against the 1st defend- 
ant, of unlawfully detaining the 2nd defendant, [_Wee Lalah,'] 
from the custody of her husband, [Oh Kan] — such charge having 
been dismissed — resolves itself into the question, whether a 
Magistrate under section 44 of the Criminal Jurisdiction Ordi- 
nance 1872, has a power to compel a married woman, deliberately 
declining to live with, and wilfully remaining away from her 
husband, to return to him ; or, in language nearer akin to our 
accustomed legal phraseology, whether he has a power to make and 
enforce a decree for the restitution of conjugal rights ? The facts 
of the case are simply, that, on the case of unlawful detention fail- 
ing against the 1st defendant, the 2nd defendant left the Court, and 
refusing to return to her husband, would by force have been com- 
pelled to do so, but for bail tendered, and this appeal made. 

The section under which the Magistrate thought he had such 
a power, and was compelled to make the order, is as follows : — 

Protection op Females, &c. 

" Upon complaint made to the Court of Quarter Sessions or to a Magis- 
" trate on oath, of the kidnapping or abduction^or of the unlawful detention of 
" any man, woman or child such Oouit or Magistrate may on satisfactory 
" proof of such kidnapping, abduction or detention, make an order for the 
" unmediate restoration of such man, woman or child to liberty, or of such 

[a] Civil Cases, Vol. I. of these Eeports, p. 236. 



128 MAGISTRATES' APPEALS. 

TflSn^* " woman or cliild to ber or itabnsband, parent or guardian or otlier person 
1880. «« having the lawful charge or government of such woman or child, and may 
-^ "T" " compel compliance with such order, using force if necessary." 

Oh Kan ^^^ *^® argument which led the Court to that conclusion 

& was, as set forth in the case, and adopted by the Magistrate — 

Oh Kan that if the legislature had not intended to give this power, tbe 
TahChuan. '^ord^ woman,' as well as ^man,' would have been omitted from 
the latter portion of the section, which is otherwise unnecessary ; 
the restoration to liberty alone, under the first portion of the 
section, securing all that is necessary, if the woman is herself wil- 
ling to return to her husband ; and that the confining the latter 
portion of the section to women and children, shew3, " that the 
restoration was contemplated even against the wishes of the 
woman or child." The argument was more boldly embodied by the 
Solicitor — General, who put it plainly ^ that the first half of the sec- 
tion was framed for the protection of the liberty of man, woman and 
child ; and the second, for the protection of the rights of the 
husband, pareut or guardian.' That this clause may contain a 
sentence of a directory kind beyond what is absolutely necessary, 
and thus create a little ambiguity, may possibly be true ; find that 
it may be read in a way to convey to some minds an inference that 
the intention of the framer was, to create the jurisdiction con- 
tended for, is apparent, or we should not now have this appeal : 
but I am clearly of opinion, even on these assumptions, that no 
such inference can, upon well settled principles of construction, 
be properly drawn by a Court of Justice. I am also of opinion, a 
more natural, and perfectly good grammatical construction, can 
be given to the section, under which no ambiguity arises, — ^no such 
portentious conclusions present themselves. 

The first general principle of construction which the Magis- 
trate's decision contradicts is, that an important, novel, — and 
having reference to the fact that the Supreme Court has repu- 
diated it — inconvenient jurisdiction, is not to be considered as 
given, unless by clear and unambiguous words, or by words which 
so plainly and necessarily imply such an intention, that no other 
reasonable construction can be given them. I need hardly say 
that no such clear and unambiguous words occur here ; and not 
only do I fail to see any necessary implication of such a jurisdic- 
tion from the insertion of the word ' woman' in the sentence re- 
ferred to, but I think, as I have said, the words of the section 
admit of a much more natural and reasonable construction. I see 
no reason for supposing the latter part of the section confines 
the ' force to be used' to cases of married women and children. 
The language seems to me, by its reference to one order only, to 
shew that the force to be used, when necessary, applies as much in 
the case of persons to be restored to liberty, as to. their natural 
protectors ; but inasmuch as persons are not so enamoured of being 
kidnapped or abducted as to require to be torn from their captors, 
it is against the captors, abductors, or detainers, the force is to be 
used ; but even if the sentence did contemplate the use of force 
specially in cases of married women and children to be restored to 
their natural protectors, many cases, I think, may readily be con- 



STRAITS SETTLEMENTS. 129 

ceived, where something more than a mere restoration to * liberty* ^^coo*^' 
might be desirable. I would instance such a case, by supposing __J 
the wrong doer to have confined a mamed woman at one end of web Lalih 
Province Wellesley, or say at Teluk Cumbar in this Island, whilst v. 
her husband lived in Penang. The Magistrate might well think Oh^an 
the kidnapper or abductor or detainer, should be compelled to do qh kan 
something more than turn her out of his door, and if he thought r. 

fit, compel her being brought back to that of her husband. This Tan Chuan. 
view, I think, sufficiently answers the argument of force in 
the case of the detention of a married woman being unnecessary, 
except as used against her, because restoration " to liberty" 
would be enough. Certainly such a view of the operation of 
the clause is to be preferred, to inferring from the use of a very 
natural, if not strictly necessary, collocation of such words as 
' woman and husband," to raise such a jurisdiction as is now con- 
tended for. 

A simple division of the clause, which although headed, 
"Protection of Females, &c." [in difference perhaps to some 
modern theories as to the relative excellencies of the sexes, which 
would classify males under the et cetera,] and is clearly to protect by 
summary process, men, as well as women and children, — seems 
to me to obviate all difficulty. The first part may be construed 
as giving the Magistrate a power to order the restoration of such 
persons " generally to liberty," and the second part, in the case 
of married women and children, to their natural protectors ; and 
for either of these purposes, force is to be used, if necessary, 
aorainst the wronj]: doer. 

This seems the clearer, when we consider what it is that puts 
the Magistrate in motion., the very foundation on which his action 
rests — kidnapping, abduction or wrongful detention ; and not the 
protection of the husband from the volatile conduct of his wife. 
Again, an opposite construction would — nay, indeed has already 
presented, in the form of this adjudication, a state of things very 
difficult of conception, viz., that of a person punished for the 
wrongfully detaining herself . Now, that a wife might unlawfully 
absent herself from her husband, is intelligible enough, and had 
the Ordinance given a jurisdiction to deal with such an offence, 
nothing could have been said against the adjudication. But how 
an offence, which in its nature [to say nothing of the additional 
force which such a word as " detention" gathers from its colloca- 
tion with "kidnapping" and "abduction,"] involves the imposi- 
tion of restraint on the person, can be committed by a person, on 
her own person, she having all the while perfect liberty to go 
where she likes — it is difficult to understand. Such a view of 
the mind of the Legislature, I think, brings us so closely to what 
looks like an absurdity, that I have no hesitation in applying 
to this case an equally well known principle of construction, as 
that before referred to, v^z,,i:^\p^t all constructions which lead to 
such a result, are, if possible, to be avoided. For these reasons, 
the order of the Magistrate must be quashed ; and it should in 
future be understood, that his jurisdiction under this clause, 
arises only when the man, woman or child is kidnapped, abducted 



130 



MAGISTRATES' APPEALS. 



Fo&B, J. 

1880. 



Wei 

V. 

Oh Kan 

& 
Oh Kan 



or unlawfully detained, and not when a married woman, of her 

own free will, absents herself from her husband. The Magistrate 

Lalab has, from other sources, the power to enforce the parents or guar- 
dian's right to the custody of a child absenting itself. 



Tan Chuan. 



MAMSAH V. MAHOMED LEBBYE. 



Penano. a Magistrate should not admit in evidence, even against a weU known offender, 
evidence of gcneml bad character of the accused. If he so do, the conviction is 

Wood, J. liable to be quashed. 
1881. 

June~l7. Th\Q was an appeal against the decision of H. A. O'Brien, 

Esq., Magistrate, Penang. The appelhmt Mamsah, and one Bnp, 
were charged with theft of certain property under section 379 of 
the Penal Code. The evidence against the appellant was, that he 
had been seen in company with the said Bap near the respondent's 
house at an unusual hour of the night, and shortly after, the 
respondent was awoke by hearing his ducks making a noise. On 
going out, he saw two men run off with some ducks and other 
property, and on giving chase, they dropped these down and made 
off. They were not arrested till the following morning. The 
appellant Mamsah, it appeared, had often been previously before 
the Magistrate, and had been convicted two or three times be- 
fore, for similar offences. lie Avas therefore known to the Maofis- 
trate, and in the course of this case, the Magistrate personally 
put certain questions to the witnesses who were called, as to the 
general bad character of the appellant, and his thievish propen- 
sities. The father of the appellant was also questioned by the 
Magistrate on this subject, and he admitted his son was " a bad 
boy," but went on to say that on this particular occasion he had 
not left his house. Other witnesses to prove this alibi were also 
called. The Mag:istrate convicted the appellant and sentenced 
him to 3 months' rigorous imprisonment. 

Van Someren for appellant contended that improper evidence 
had been admitted, and that of a nature materially to affect the 
decision in the case, and the conviction should therefore be 
quashed. He cited Regina v. Fttidge, 33 L. J. M . C. 74. 

No one appeared for the respondent. 

Wood, J. I am of opinion that the Magistrate has impro- 
perly admitted evidence of the general had character of the appel- 
lant Mamsah, and that this evidence, though slight, might have 
affected his decision. The fact that the answers were obtained 
by questions put to the witnesses by the Magistrate himself, 
shews there was some predisposition or knowledge in the Magis- 
trate's mind, which was derived from sources ultra the evidence 
in this case. The other evidence against the appellant is also 
very slight, so that there is no likelihood, apart from the objec- 
tionable evidence, of his conviction, if I were to remit the case 
for rehearing. The conviction will therefore be quashed. 

Conviction quashed. 



STRAITS SETTLEMENTS. 



131 



ABBASS V, TOMBY. 



The act of a person in ^oing into the hous^ of another, with intent to hare FsNANa. 

criminal intercourse with the hitter's wife, although necessarily resulting in an- 

noyaace, or as an insult to the latter, is not an offence within sections 441 & 442 Wood, J. 

of the Penal Code. 1881, 



This was an appeal against the decision of F. H. Gottlieb, 
Esq., Magistrate, whereby he convicted the appellant Abbass, of 
criminal house trespass under section 41S of the Penal Code, and 
senteuced him to two months' rigorous imprisonment and to pay 
a fine of $25. Prom the evidence it appeared that the respondent 
and his wife were living at Tanj'ong Tokong, and had so done for 
some 5 years. The appellant also lived at Tanjong Tokong. On 
the morning of 30tli March, at 3 o'clock, the respondent got up 
^0 go out fishing, leaving his wife in the house. After going to 
the beach, the respondent returned home in about half an hour, 
and found the door of his house bolted : this he managed to undo, 
and on going in, found his wife in the appellant's arms, and both 
lying down. He laid hold of the appellant, and called for Police; 
the station not being far oft. a Constable came, and the appellant 
was handed over to him, and taken to the station. The wife, on 
being asked by the Police how the appellant had been allowed to 
come in, replied, " I like him and let him in^' — and the appellant also 
stated to the Sergeant at the station, that the respondent's wife 
liked him, and that was the reason why he went up. H. C. 
Vawfhan of Counsel for the prisoner [the appellant] submitted to 
the Magistrate that the charge was not proved as it was no tres- 
pass when the wife allowed him to go in, and the prisoner's in- 
tention in goini^ in was not to " insult, intimidate or annoy" the 
prosecutor. The Magistrate held the case fell within section 448, 
and convicted the prisoner as above stated. He now appealed. 

Capely for appellant, reiterated the objections taken before 
the Magistrate. 

D. Logan, [Solicitor-General] for respondent. 

TT^oo^, J. The facts of this case clearly shew that the object 
of the defendant was to have criminal intercourse with the pi'ose- 
cutor's wife, and not, primarily, to commit any other offence, or 
to intimidate, insult or annoy any person, except in so far as the 
effecting of his object might, — as it would no doubt, if discovered, 
— insult and annoy the prosecutor. But to justify a conviction 
nnder sections 441 k 41'2 of the Penal Code, it is necessary to 
shew that the object of the prisoner Avas, primarily, to annoy and 
insult. In the present case it is obvious his object was to effect 
his purpose secretly, and so as by concealment, to give prosecutor 
no cause for annoyance or insult. To punish the prisoner for this 
class of offence, was, in effect, to punish adultery in an indirect 
manner. In matters of this description, the proximate, and not 
the remote object or intent, must be looked at. The conviction 
^vill therefore be quashed. 

Conviction quashed, [a] 



July 25. 



[a] S3e also lUg. v. Kadir, Criminal Rulings. Vol. IT, of these Reports, p. 105. 



132 



MAGISTRATES* APPEALS, 



Pknano. 

Wood, J. 
1881. 

Aug. 22. 



TEK WEE V. OPIUM FAEMER, 

Before a person cai bo convicted of '* knowingly being in possession of illicit 
chandoo,'* it must be shewn affirmatively, by dii*ect and reasonable evidence, that 
the place where the chandoo was found, was 03ciipied by him, so that the things, 
in such place, must be under his control or custody. 

Therefore, where it was shewn that certain chandoo was foimd hidden away in 
a room in which the prisoner was found at the time of the search, but it was not 
shewn that he was the occupier of the room, but merely had access thereunto along 
with many others. 

Held, there was not that direct and reasonable evidence of the chandoo being 
in his control or custody, and the conviction was quashed. 

An illegal entry into a house, in search of illicit chandoo, although it might be 
the subject of an action, docs not make the finding of any chandoo illegal, and so as 
to render the '* possession" of such chandoo, no offence. 

This was an appeal from the decision of F. H. Gottlieb, Esq., 
Magistrate of Penang. 

Van Someren for appellant. 

Kershaw for respondent. 

Van Someren toot a preliminary objection that certain docu- 
ments appended to this case were not properly part of tlie case, as 
being added without authorily. 1. A letter to the Registrar from 
the Magistrate. 2. An amended conviction. 

1. The letter to the Registrar is an informal and valueless 
document. 

2. It is too late after the case is once stated and actually 
filed in Court, for the conviction to be amended, even on payment 
of costs. The point was raised, but not decided in a former case, 
Narainasawmy v. Mariapeji, [a]. This case is quite different. 
Here the case is stated under section 18 of the Appeals Ordinance 
12 of 1879, sub-sec. 1. 

The case was stated and was set down for argument on Mon- 
day, August 15th, and the amended conviction was sent up on 
Tuesday, August 16th. There is locus penstentiw up to the state- 
ment of the case, but no longer or further time. Appeals Ordinance 
12 of 1879 does not touch the matter. The English Act 20 & 21 
Vict., c. 43, sec. 2, and by our Ordinance, sec. 18, sub-section 1, a 
copy of the conviction is to be supplied. The duty of the Magis- 
trate is to send up the conviction, which he has done, — but he has 
attempted to amend it afterwards, which he cannot do. By section 
21 of Ordinance 12 of 1879, the Court should send down the 
conviction to be amended, if it considered it capable of amendment, 
and the duty vested with the Magistrate to amend on the discretion 
of the Court, not of his own mere motion. The first conviction is 
bad, as it omits to state the name or title of tlie convicting 
Magistrate. For all that appears on the conviction, the convicting 
Magistrate might have been a Magistrate for Sumatra or elsewhere. 
Paley on Convictions [ed. 1 8G6 J p. 181 . Generally when a conviction 
has been returned, it is too late to amend. Act 12 & 13 Vict., c. 
45., Regina v. Inhabitants of Hellingley^ 28 L. J. M. C. 167. 

Kershaw contra, relied on section 32 of the Appeals Ordinance 
12 of 1879, as authorizing an amendment. 



[a] 31st October 1879, ante p. 120. 



STRAITS SETTLEMENTS. 



133 



[Woody J. I incline to think that the Court has, under the 
powers given by section 32, sub-section 1, power to send down the 
conviction to be amended by the Magistrate in this matter.] 

Van Someren thus addressed himself on the merits of the case. 
The facts of the ease, as stated by the Magistrate, shew he had no 
jurisdiction to convict, — and again, that the evidence which shews 
at most possession of 3 pots, cannot support the entire conviction 
of stealing 5 pots of chaudoo. Paley, p. 225. There is doubt if 
there is any proof of possession, and also whether defendant had 
any " knowledge" — " knowingly has them in possession" is defined 
by the Excise Ordinance 4 of 1870, — "possession" as "actual 
possession, custody or control by himself, or any other person." 
Here it is shewn by the evidence that many others besides the 
prisoner, had access to the room in which the chandoo was found. 
He is not shewn in particular to be an occupier of the room more 
than the other persons. There can be no finding of the chandoo 
in defendant's person, unless the search be legal. Section 74 of 
Ord. 4 of 1870, shews the circumstances under which the Magis- 
trate may grant a warrant, and what the officer may do. Here the 
warrant was to search premises No. 27, Campbell Street, and they 
ill fact, as the case shews, searched premises No. 27, Buckingham 
Street, — and so there can be no jurisdiction, if there was no proper 
search. 

[Woody J. I incline to think that a wrong entry, — although it 
might be the subject of an action, — does not make the finding 
illegal, and so no offence ; added to which, the facts do not shew 
that the officer ever made use of his warrant in entering the house, 
hut entered by consent of the appelhmt.]' 

Kershaw pointed out section 70 of the Excise Ordinance 4 of 
1870, and contended that there was reasonable evidence of the 
chandoo being in the appellant's control or custody, and as the 
Magistrate had convicted him on the evidence, the Court would 
]iot upset that decision. 

Wood, J. I am of opinion that the conviction mu^t be quashed 
on the merits, on the ground that direct and reasonable evidence 
was not shewn on the part of the prosecution, tliat the chandoo 
taken was chandoo in the cjnbrol or custody of the prisoner, the 
appellant. It should have been shjwn affirmatively, that he was 
the ocjupier of the chamber in which he was found, — in such a 
way as to shew that the things in that room were under his control 
or his custody. 



Wood. J. 
1881. 

Tek Wkb 

V. 

Opium 
Fabmkb. 



Conviction quashed. No order for costs. 



lU 



MAGISTRATES' APPEALS. 



Pknano. 

Wood, J. 
1S31. 

October 31. 



MAT ISSAH V. MAS ETAH. 

A claim set up by a prisoner to property which is alleged to bo stolen or cri- 
minuUy misuppropriated, does not oust a Magistrate of his jurisdiction, unless the 
claim bo 6on<» Jide raised. 

Where, from the case as sent up, it was doubtful whether a witness, the wife of 
the prisoner, was called for the prosecution or defence; and on appeal tho prisoner 
allej^ed she was called by tho prosecutor, and the prosecutor alleged she was 
called by the prisoner, and the Magistrate had no recollection on the point, but 
subsequently believed she was called by the prisoner, and then, for the first time, 
in a foot-note to the case, stilted she " was called for the defence " — both prosecu- 
tor and prisoner being prepared to file affidavits by themselves and others in sup- 
port of their respective allei^ations. 

Held, as the evidence of the wife, if called by tho prosecutor, would clearly be 
inadmissible, and her evidence was of a material kind, that the conviction ought 
to be set aside, and the prisoner tried afresh. 

This was an appeal from the decision of Urban Bruce, Esq., 
acting Magistrate, Province Wellesley. 

On the 9th September, 1881, Mat Issah, the appellant, was 
ccmvicted " for having on the 2 1th August dishonestly misappro- 
priated one mattress, value §10, and three mats, value §3," under 
section 403 of the Penal Code. It was proved by tho evidence 
that the prisoner and his wife named Rasimah, had been living in 
the house of the prosecutrix, the mother of Rasimah, that the 
prisoner and his wife had a quarrel, and that the prisoner was 
shortly thereafter seen to take away the articles mentioned in the 
charge, from the prosecutrix's house. The prosecutrix swore that 
the goods removed were her proj^erty. The prisoner when spoken 
to by a witness who saw him removing the goods, replied : " I do 
not care," and when afterwards spoken to by a policeman, ad- 
mitted having taken them, but said they were his, and that he 
had removed them in consequence of having had a quarrel with 
his wife. From the manner in which the prisoner cross-examined 
the witnesses for the prosecution, his defence appeared to be that 
the goods taken were actually his own property, though in open- 
ing his defence, he did not take this ground, but made some state- 
ments which were apparently irrelevant. 

The Magistrate, in the case stated by him, after giving the 
statement of the prisoner, added these words : '' The following 
evidence was taken for the defendant," and then followed tho 
evidence of four witnesses. The evidence of the first three of 
these witnesses went to shew that the goods taken by the prisoner 
w^ere his own property. The last of the four was Rasimah, the 
prisoner's wife. Her evidence was to the effect that the goods iu 
question were the property of the prosecutrix, and not the pri- 
soner's. 

Van Someren for the appellant. 

Kershaw for the respondent. 

Van Someren, The conviction is bad on four grounds. \sL 
The evidence shews that a question of title to the subject-matter 
of the theft was raised by the defendant, and not merely raised, 
but fairly supported. Maxivell on j\[(f(jiHtr(iU\s, S ; Pa ley on con- 
vidloibs, [ 6th ed. ] 143 et seq., 2nd, The evidence of tho defeud- 
tan's wife, Ea^imah, was inadmissible, and, being adverse to 



STRAITS SETTLEMENTS. 



135 



prisoner, might reasonably be held to influence the Magistrate in 
his decision. By Indian Act 11. of 18-55, section 20, the wife can 
only be called for or against the husband in civil proceedings. 
The Ordinance 20 of 1870, section 2><, allows the prisoner, a 
husband to call his wife, or a wife to call her husband, in crinii- 
iial proceedings. (JnL the name uf the owner of the ])roperty al- 
L^ged to be stolen is not mentioned. Ji^\c v. *S/7/, 17 Jui*. [O. S.] 
22, s. c. 21 L. J. M. C. 2U, Dears 0. 0. 110; Palcy on Vow 
vidions, 199 ; Rex v. Ward, 7 Cox 0. C. 421. Section ;]2 of the 
Appeals Ordinance, 1879, does not give the Court any power to 
amend. 4tk. This is, if anything, theft, and not dishonest inis- 
approxjriation, and so the man should have boen found guilty of 
theft and not of misappropriation. 

Kershaiv for tlie respondent. The conviction is supported by 
the evidence and should be affirmed. 

[Woody J. On the 1st point urged for the appellant, I am in 
favour of the respondent. You must therefore confine yourself to 
answering tha remaining three points urged for the appellant.] 

As to the 2nd point raised by the appellant, the prisoner's 
wife was called in order, after the first witness for him, and so it 
must be held the prisoner calle;l her. 

As to the ord point, it is submitted that it is not necessary to 
state in the conviction the name of the owner of the property 
alleged to have been misappropriateil. The form of conviction 
is given in Schedule C to Ordinance 13 of 1872, and makes no 
mention of ownership. Further, even if the ownership sliould 
have been stated in the convicUon, its omission is merely a fornuil 
defect, and the Court will send back the conviction to be amended 
in this respect, under sections 62 & 3-J of the Appeals Ordinance 
2 of 1879. 

. As to the 4th point, the prisoner may well be found guilty of 
misappropriation, though the evidence would support a charge of 
theft. 

Van Someren in reply, referred to section 31, sub-section 2. 
V/ood, J. The assertion is made by prisoner that the Magis- 
trate called his w'ife. The pixisocutrix asserts that the wife was 
called by the prisoner. The Magistrate appears to have stated 
that he does not recollect. These facts are not set out in the case, 
but appear from the statements of the respective Counsel during 
the course of the argument. The case must be remitted to the 
Magistrate to ascertain by whom the woman, the wife of the pri- 
soner, was called. The ultimate decision will stand over until this 
iiiatter is decided. 

November 7th. The Magistrate having returned, in a foot- 
note to the case as stated, that the witness '* Rasimah was called 
for the defence/' and Counsel on both sides intimating they could 
each file affidavits in support of their respective cases. 

Wood. J. The Counsel on either side state that the parties 
concerned are prepared to make contradictory affidavits on this 
point, and I am of opinion that there was ma.terial ground for 
suspecting that the prisoner must have been well aware of the 
iiJverae feeling of his wife ou the matter in dispute. I therefore 



Wood, J. 
1881. 

Mat IsbAn 

V. 

Mas Etah. 



136 



MAGISTRATES' APPEALS. 



Wood, J. 
1S81. 

Mat lesAH 

V. 

Mas £tah. 



think that in this case it is by no means clear that the wife was 
in fact called by the prisoner. The case supplied by the Magis- 
trate should, under section 18, sub-section 1 of Ordinance 12 of 
1879, so far as evidence is concerned, be a copy of the evidence 
as taken by him, by which I understood a copy of his written 
notes of evidence. Here the copy of his notes does not supply 
the fact of whether the prisoner's wife was called by him, and I 
think it would be contrary to the spirit and intention of the 
Ordinance, that the written evidence should be supplemented by a 
note which was not made at the time, and in writing, by the 
Magistrate. 

I am also inclined to think that the evidence was appropriate 
rather to a charge of theft than of misappropriation, I therefore 
remit the case to the Magistrate to be tried afresh, and recom- 
mend that care should be taken that the evidence of the wife 
should only be taken on her being called by the prisoner, if he 
should choose so to do. I also hold that the Magistrate had 
found no bond fide claim or title had been in fact shewn, and uphold 
his decision on that ground. 

Order accordingly. 



LIM CHOW LENG v. OPIUM FARMER. 



Pbnang. 

Wood, J. 

1881. 

Nov. 14. 



Where a Maj^istrato awarded a penalty against a prisoner, and after the Court 
had risen, changed his mind, and ordered the fine to be reduced, 

lleld^ he had no power to do so, and the conviction for the original amount 
was sustained. 

A conviction which is not sealed with the Magistrate's seal of office, is not 
liable to be quashed, as the defect is only formal and may be amended. 

The Information in an Excise case, and commitment of a person to Jail, are 
no pai*t of the appeal case required to be stated under section 18 of the Appeals 
Ordinance 12 of 1879. 



The appellant had been convicted by Urban Bruce, Esq., 
acting Magistrate, for knowingly having in bis possession illicit 
chandoo. The evidence shewed that the appellant had been sus- 
pected for some time of dealing in illicit chandoo and had been 
often warned — that on the day in question the Police and Revenue 
Officers entered his house under a warrant, and on searching, 
found a bottle of illicit chandoo hidden in the bath room at the back 
of appellant's house. ' In his house were found pipes, some still 
warm, as if lately used, a pair of scales for weighing chandoo and 
a little farm chandoo. The appellant contended the bottle must 
have been placed there by somebody else without his knowledge. 
It was shewn the bottle could not have been placed from outside, 
in the place where it was found ; and there was no evidence to 
shew that others had access to the bath room, save the appellant 
and his wife. The appellant was fined §500 at the conclusion of 
the case on the 10th September. On the 12th, the Magistrate, for 
some reason or other, considered the fine excessive, and wrote to 
his clerk to reduce the fine to $200. The Magistrate certified the 



STRAITS SETTLEMENTS. 



137 



reduction of the fine in a foot-note to the appeal case stated by 
him, but the formal conviction sent up with it, as part of the case, 
stated the fine to be §500. The commitment of the appellant to 
prison [but which was not attached to the case] stated it was in 
default of payment of a fine of $200. The conviction was signed 
by the Magistrate, but, as is usually the case, did not bear his 
office seal. It also concluded after stating the offence that " the 
Magistrate adjudged the appellant to pay the fine of $500." It 
omitted to state that this fine was in respect of such offence. The 
name of the Magistrate did not appear in the body of the con- 
viction — it stated the appellant was convicted " before the under- 
signed Magistrate," and was signed by the Magistrate as already 
stated. The information on which the warrant was granted was 
not attached to the case. The Opium Farmer was a witness, but 
did not say he was the prosecutor. The appellant filed an affi- 
davit stating the changes in respect of the fine imposed. 

F. H. Gottlieb for appellant objected that it did not appear in 
evidence that the Opium Farmer, who was ostensibly the prose- 
cutor in the case below, was in fact such prosecutor. 

[Wood, J. That objection is untenable, as the Opium Farmer 
is directly or indirectly injured by any invasion of his monopoly, 
and the question of direct injury to the Opium Farmer is not 
material.] 

Gottlieb then applied that the information upon which the 
search, warrant was granted should be returned into Court as 
being part of the proceedings in the case. He contended 1st, it 
was part of the proceedings as being the foundation for the Magis- 
trate's jurisdiction. 2nd, it was not excepted by any provision of 
the Excise Ordinance 4 of 1870, section 94, as amended by Ordi- 
nance 15 of 1871. 

[Wood, 3. Inasmuch as section. 2 of Ordinance 15 of 1871, 
amending section 94 of Excise Ordinance 1870, enacts that no 
information shall be admitted in evidence, it would seem that the 
information is no part of the proceedings before the Magistrate 
within the meaning of the Appeals Ordinance of 1879, section 18, 
sub- section 3]. 

Oottlieb. The appeal is on two grounds : the one technical, 
and the other on the merits. 1st. The technical objections. The 
commitment is irregular. 

[Wood, J. The commitment forms no part of the proceedings 
in this case, and is not material to the enquiry.] 

2nd. The conviction is not in the form given by section 74 
of the Excise Ordinance, as containing the name of the convicting 
Magistrate in the body of the conviction. 

[Wood, J. Although the form in Schedule R of Ordinance 4 
of J 870 is not followed, this form is permissive only, and need not 
be followed, and it is sufficient if the name of the Magistrate 
appears in the conviction.] 

3rd. Although the conviction states that appellant was con- 
victed of such and such an offence, and gives the clause awarding 
the penalty, yet it is not stated that this punishment is awarded 
in respect of that offence. Faley on Convictions, [6th Ed.], 264, 



Wood, J. 
1881. 

LiM Chow 
Leno 

V. 

Opium 
Fabmer. 



138 



MAGISTRATES* APPEALS. 



Wood, J. 
1881. 

LiM Chow 
Lenq 

V. 

Opium 
Faumes. 



[ Woody J. That reference does not apply to any adjudication 
of punishment ; and if it did, the error, if any, is formal only.] 

4th. It does not appear that the conviction is sealed. The 
seal is indispensable, and it is necessary that the Court should be 
informed of this fact in order to see whether there is any cou- 
viction, 

6th. The conviction is uncertain as the penalty thereby 
shewn is not the same as stated in the Magistrate's certificate. 

[Woody J, The conviction on the face of it, and the amount 
of punishment thereby awarded are certain and definite.] 

The merits. 1st. There was no actual possession shewn 
under section 80. It is requisite that the illicit opium be in 
actual possession, custody or control by himself or any other person. 

[Wood, J. There is ample evidence it was so, and this matter 
of fact is sufBciently found by the Magistrate.] 

2nd. Apart from the formal conviction, it is uncertain what 
the fine is — [Gottlieb here read the affidayit of the appellant.] 

Van Someren for respondent. The only objection requiring 
to be answered is, 1st, the want of the seal, and next the chanji^e 
in the fine. The want of the seal is, at most, mere want of form* 
The form given by the Act does not require a seal, and the mis- 
take, if mistake it be, can bo amended by sending the conviction 
to the Court below for amendment, by fixing on the seal — Section 
3 of Police Act XIII. of 185G. This section is unrepealed, and is 
applicable — also section 32 of Ordinance 12 of 1879 which is 
directory. As regarded the fine, the Magistrate having awaixled 
the penalty, could not, after the Court had risen, alter it. lie 
Vfiisfitnctiis offi^cioy and the conviction rightly states* the fine ac- 
cording to the amount originally awarded. The notice of appeal 
also states certain grounds of appeal ; and if these are stated, 
though not required, the appellant cannot be allowed to raise 
others he has not then taken. Tayler on Appeals, 40, 63. 

Gottlieb in reply. 

Wood, J. I can see no grounds for interference with the 
decision of the Magistrate and must uphold the conviction. As 
regards the penalty, the appellant can lay his case before His 
Excellency the Governor in Council, when no doubt he will get 
the fine reduced, if the Council see fit. 



Conviction affirmed. 



MEBICAN & ORS. v. MAHOMED. 



Penang. 

Wood, J. 

1.S82. 

February 24. 



A Magistrate who has tried and adjudicated on a case, cannot import his 
knowledge of the facts thereof, acquired in such case, into a cross case by tlio 
same parties, concerning the sime occurrence ; but is bound to hoar thu whole of 
the evidence de 7iovo, and adjudicate thereupon, otherwise the conviction is liable 
to be quashed. 

Van Someren had obtained a rule calling on C. W. S. Kyn- 
nersley, Esq., Magistrate, and Mahomed, the respoudeut, under 



STRAITS SETTLEMENTS. 



I3J) 



section 18 of the Appeals Ordinance 12 of 1879, to shew cause 
why a case should not be stated for the opinion of this Court. 
It appeared that the Magistrate had tried a previous case be- 
tween the pai-ties in which the respondent was then defendant, 
and had bound them over to keep the peace. When the cross 
case came on, he took only the prosecutor's [the present respon- 
dent] statement, and then with his knowledge of the facts as 
previously shewn, convicted the three defendants [the appellants] 
and bound them to keep the peace. 

Mr. Kynnersley, the Magistrate, now appeared in person to 
shew cause : " The reasons I refused to state a case were, that the 
original case, a case of Rasnai v. Mahomed and two others [the 
charge was attempting to cause grievous hurt, — Mr. Anthony was 
Counsel for the prosecutor] — after going fully into the case, I 
was of opinion that both parties were equally to blamo, and that 
there was a fight in which a large number of persons were con- 
cerned. The defendants in that case had been arrested on a war- 
rant. One of the defendants, the present respondent, informed me 
that he had taken out a summons against prosecutor in that case 
[the present 2nd appellant] and nine others. I then bound over 
tlie three defendants in the ori^^inal case, to keep the peace, and 
said that when the summons case came on, in which the same facts 
would be adduced, I should bind over those defendants. During 
my absence, the summons case came before Mr. Bruce, the acting 
Magistrate, and he dismissed it. I did tell the first defendant in 
the first case [the present respondent] that he need not bring his 
witnesses over again, and for want of such evidence, I understood 
the case had been dismissed by Mr. Bruce. He complained to me, 
aad I directed him to lay an information, which he did, — and 
fresh summonses were issued to the defendants [the present appel- 
lants] and the case came before me. The summons was to shew 
why they should not be bound over. Complainant [the present 
respondent] went into the box, and after hearing him, I bound over 
the defendants to keep the peace. The evidence he then gave, is 
contained in my written statement. It is true that I did not 
allow the case to be adjourned in order to enable defendants 
to call witnesses. I told defendants I had heard the case before, 
and knew all the facts of the case, and there was no necessity to 
hear it over again." 

The respondent appeared to shew cause in person but added 
nothing further. 

Van Someren in support of rule was hot called on. 

Wood, J. The rule will be made absolute, for the statement 
of a case by the Magistrate. 

24\h April. The case having been stated, the appeal now 
came on for hearing. 

Van Someren for appellant referred to the facts and the 
-^liigistrate having imported into the case knowledge acquired by 
him in a previous case, and submitted the convictions could not 
he supported, and the bonds would be cancelled. 

Wood, J. This case was heard on a previous application, 
a^d now comes on for final hearing. The facts attending the hearing 



Wood, J. 
1882. 

Merican 

&, OBS. 
V. 

Mauomeu. 



140 



MAGISTRATES' APPEALS. 



Wood, J. 
1882. 

Mebican 

& OBS. 
V. 

Mauohkd. 



were then stated by the Magistrate, and on those facts together 
with the facts appearing in the ease as now stated, which are to 
the same effect, — £ am of opinion that the conviction should be 
quashed, and the bonds cancelled. 

Convictions quashed. 



MUNICIPAL COMMISSIONERS 



V, 



CIIUAH SENG & ORS. 



Penang. 

Ford, J. 

1882. 

May 23. 



The mere kccpin<» of pi<?3 ir one's premises, is no offence under the Coueer- 
vancy Act XIV. of 1856, and Ordinance 2 of 1S79 : to bring the case within section 
43, it must be shewn the premises are '* in or near any street/' and such " street" 
is within the prescribed limits. 

Where a person is charged with doing an act without a license, but the exist- 
ence or non-eif istence of such license is peculiarly within the knowledge of the 
prosecutor, it is for the prosecution to shew the prisoner had no license, and not 
for him to shew he had one. 

A conviction which states a prisoner is ordered to pay costs, but omrts to state 
the amount, is bad and liable to be quashed, 

Semble. Such an error might be amended, by the case being remitted to the 
Magistrate to state a definite amount. 

Query. Has the Magistrate power to fine for costs, on convictions for offences 
other than under the Police Act XIII. of 1856 ? 

A prisoner held a license for a slaughter-house. 

Held, such license necessarily implied a right to keep pigs for the purpose. 

A prisoner who pleaded guilty to a charge which stated no offence in point of 
law, and against whom the evidence also disclosed no offence, was permitted to 
appeal against the conviction and sentence thereby following, and such conviction 
was quashed. 

These were six separate appeals from the decision of Urban 
Bruce, Esq., acting Magistrate, and were all heard the same day 
in succession. The appellants were severally convicted of " keep- 
ing pigs on their premises without a written license from the 
Municipal Commissioners." The respondent was one R. C. Nie- 
kelsen, an Inspector of jSuisances in the employ of the Muuiei- 
pality. The facts of each case were as follows : The evidence 
agaicst the first appellant was, that of the Inspector onl}^, who 
stated that on the 4th February about 9 a.m., he visited premises 
No. 44, Market Street, and found 4 pigs, that the defendant had 
been convicted twice before. This was all the evidence against 
him. In his defence he admitted he kept the pigs for one night, 
but called no witnesses. He was fined $10 and costs. The con- 
viction omitted to state the amount of costs. The evidence against 
the 2nd appellant, was also by the Inspector, that his premises. No. 
452, Beach Street, had been visited in the same way, and 40 pigs 
found therein — the appellant owned the pigs to be his — he had 
been previously fined, and had no license. He was fined $8 and 
eosts — the conviction here also omitted to state the amount of 
CQSts. The evidence against the 3rd appellant was also by the 



STRAITS SETTLEMENTS. 141 

Inspector, ttat his premises No. 283, Beach Street, had also been Foe©, j, 
visited and 10 pigs foimd — that he admitted the pigs were his — ^^^- 
he had been convicted before, and had no lii^ense. He was also Municipal 
fined §8 and costs — the conviction having the like omission. The Commission- 
evidence against the 4th appellant was also by the Inspector, that "^ 
his premises No. 346, Beach Street, had also been visited and seve- chuah Skno 
ral pigs found therein — he had been fined before. On the hearing & oes. 
of the appeal, this defendant produced a license from the Com- 
missioners to use such premises as a slaughter-house for the current 
year, which license was admitted on behalf of respondent. He 
was also fined ?8 and costs, the conviction having the like 
omission as the others. The evidence against the 5th appellant 
was also hy the Inspector, that his premises No. 62, China Street, 
were also visited and 4 pigs found therein — he had been fined 
twice before. He was also fined $8 and costs, the conviction omit- 
ting the amount of costs. The 6th appellant pleaded guilty to the 
charge which was as follows : " Keeping pigs on your premises 
" without a license from the Municipal Commissioners, an offence 
" punishable under section 43 of Police Act XIV. of 1856, as 
" amended by Ordinance 2 of 1879." The Inspector was however 
called, and stated, that this defendant had 6 pigs and had been 
twice before convicted. He was also fined §8 and costs, the con- 
viction omitting to state the amount of costs. 

Van Someren for appellants. As against No. 1, there are five 
objections. 1st. There was no evidence to bring the case within 
the section 43 as amended. It is an offence to have pigs in pre- 
mises " in or near any street but not otherwise — that expression, 
MS well as " street" are defined by the Act XIV. of 1856, section 2, 
and Ordinance 2 of 1879, section 2, and the " street" must be 
within certain prescribed limits. There is nothing to shew it is 
so in this case. 2ndly. No evidence was given that he had not 
a license. It is true he must be aware that he has one or not, 
but it is for the prosecution to prove he had not one, 
as tlie Commissioners were aware also of the fact, as they 
grant and withhold licenses, and could have proved it. That takes 
the case out of the general rule that the defendant ought to prove 
such a thing, as the rule applies only in cases where that fact is 
peculiarly within the defendant's knowledge. This distin- 
guishes this case from the one lately before the Court by the 
pawnbroker against Meyapah Chetty, as there the pavnibroker 
does not grant licenses [a]. Srdly. Wrongful admission of 
evidence, viz., the previous convictions. 4thly. The Magistrate had 
^0 power to order payment of costs. His power is under section 
102 of the Police Act XIII. of 1856, but that is limited to cases 
under that Act, but not under any other Act as this one, under Act 
XIV. of 1856. This point was raised, but not decided, in Mahomed 
Aniff V. 'Ebram Khan before Mr. Justice Phillippo [h] . Sthly. If 
the Magistrate had the power to fine for costs, he has exercised it, 
so as to make the sentence void and the conviction bad ; the con- 

[a] See Khoo Aing Hong v. Meyapah Chetty and Puteh v. Khoo Aing Hong, 
ttnta p. 124. 

[6.] ante p. 88, 



142 MAGISTRATES* APPEALS. 

Ford, J. viction does not state the amount of coats, Mahomed Aniff v, 

1882. Ebram Khan [a] ; Maxwell on Magistrates y 31. 
Municipal "^^ regarded 2nd appellant, he urged objections 1, 3, 4 & 5. 

Commission- Do. 3rd do , the same 1, 3, 4, 5. 

^»a And as regarded the 4th appellant, he urged objections 1, 2, 

Chuah Senq ^> ^ ^ ^5 ^^d 2L\sOy that he having a license for a slaughter-house, 
& oBs, it implies he could have pigs for a reasonable time at least, in Lis 
possession in order to slaughter, and carry on his business. 

[Fordy J. A license to keep a slaughter house neces- 
sarily implies a right to have pigs on the premises at least to 
slaughter] . 

As regarded the 5th appellant, he urged objections 1, 2, 3, 4, 
&5. 

As regarded the 6th appellant, the same objections 1 to 5 
inclusive, and further although he had pleaded guilty, that it was 
to a charge which stated no offence, and could now bo appealed 
against. Rex v. Little, 1 Burr. 610, and neither did the evidence 
shew any offence. 

Ross for respondents admitted the convictions were bad on all 
the points taten, but contended the proper course was, to remit 
the cases back to the Magistrate for further evidence, and amend- 
ment generally. 

Ford, J. In these cases the errors in procedure are so many 
and palpable, that I consider it would have a tendency to foster 
carelessness and ignorance on the part of Magistrates, for the 
Court to rectify the mistakes, and inasmuch a.s appellants have 
been put to considerable expense, at least equal to the tines imposed, 
the Court will quash the convictions in the hope that more care 
will be taken for the future. 

I am clearly of opinion that the street in which the premises 
are, must be shewn to be within the prescribed limits of the Com- 
missioners' authority, and also that evidence as to the appellants 
having licenses, is in these cases, peculiarly within the knowlcdc^e 
of the prosecutors, and they should prove, by production of their 
books, that the appellants have not got licenses. On the third 
point, I am not clear that previous convictions were proved before 
, the Magistrate, l)ut in some way he seems to have taken them 
into account. In my judgment he should not have done so until 
the appellant's previous conviction had been properly proved. I 
don't propose however to quash the convictions on this ground as 
I am not clear as to what took place before the Magistrate. I quash 
the convictions also on the 5th objection as the Magistrate 
must state what sum the prisoner has to pay. If the case had 
been brought to appeal only on that ground, probably it could 
have been sent back for the Magistrate to state a definite surj ; 
but as I have determined to quash the convictions on the 1st and 
2nd grounds, I shall quash them also on the 5th. I give no judj^'- 
ment on objection 4, nor on 3, as I am doubtful what actually 
took place before the Magistrate. The convictions in appeals 1, 
4, 5 & 6 will be quashed on objections 1, 2 & 5. In appeals 2 

[a] ante p. 88. 



STRAITS SETTLEMENTS. 



143 



& 3, on objections 1 & 5 only. In the 4th appeal, the convic- 
tion will also be quashed on the merits. The fine and costs must 
be remitted. 

Convictions quashed — fine and costs remitted. 



EEGINA V. LIM A. SI & ANOR. 



FOBD, J. 
1882. 

Municipal 
commission- 

SBS 
V. 

Chdah Seng 

& OB8. 



The appellants were convicted of theft of Government timber. The evidence 
that the timber was cut in British Territory was very iinFatisfactory, 

Held, the conviction couh' not be sustained. Even if the trees were felled in 
British Territory, yet, as there was nothinj^ to shew that the appellants know thoy 
were trespassing, the conviction could not be sustained, as no animus furandi 
could, under the circumstances, reasonably be implied. 

The appellants were convicted by J. K. Birch, Esq., Magis- 
trate of Province Wellesley, of theft of Government timber. It 
was alleged by the prosecution that the trees were felled at Bukit 
Tongal, which it was further alleged, was part of Province 
Wellesley. The men on seeing the Forest Ranger and Police 
arrive, ran off ; two however were subsequently captured, but Ihere 
was no evidence to identify them with tlie appellants. The 
Poresfc Ranger and another witness [a ryot] stated, the cutting 
was in British Territory, or Province Wellesley slope of Bukit 
Tongal. The appellants stated they were cutting only small wood 
but were not on Government ground. 

Thomas for appellants contended there was no evidence of 
identity ; nor to shew that the men were cutting in British Terri- 
tory. 

Ross [for Solicitor-General] on behalf of the Crown. 

Fordy J. Send back the case, for the Magistrate to take 
evidence of identity of prisoners with the two men arrested and 
to take evidence of their not having been in Kedah, but in British 
Territory, and as to whether prisoners were acting under a pass 
from the Kedah authorities or not. 

The case was accordingly remitted and further evidence 
taken by the Magistrate. The further evidence clearly identified 
the appellants as two of the men cutting the trees, but, made it 
even more doubtful than before whether the spot was in British or 
Kedah Territory. 

28th August, 1832. The appeal now came on for further 
hearing before Woody J. 

Thomas for appellants. 

Ross for Crown. 

Woody J. After reading the new evidence sent up by the 
Magistrate, I am of opinion that the whole of the evidence in the 
case does not support a conviction of theft. It is by no means 
clear that the land is in British Territory ; but even if so, it is not 



Penano. 

Ford, J. 

1SS2. 

May 23. 



144 MAGISTRATES' APPEALS. 

FoBD, J. shewn that the appellants had reasonable means of knowing that 
iw^ they were cominittiii^ a trespass — it would therefore be unreason- 
Req. V. LiM »^l>le to imply in thein, the commission of any act, ammo 
A Si & AfiOR, furandi. 

Conviction quashed. 



PUNGHULU ALLANG v. HIM. 

Penanq ^^ ^ Magistrato's appeal undor section IS of the Appeala Ordinance 12 of 

' 1S70, the only parties to the appeal are the prosecutor and prisoner, the parties in 

Wood. J. the Court below, 

1882. Neither the Crown, nor the Majristrate, is a party thoreto ; and have no locus 

standi to be heard, as of ri^ht, in such appeal- 

June 26. 

The appellant Punghulu Allan<^, was convicted by J. K. 
Birch, Esq., Magistrate of Province Wellesley, of cheating. On 
the appeal being called on, 

Van Someren, who held the brief of the Solicitor-General, 
stated he appeared on behalf of the Solicitor-General and for the 
Crown. 

Ross took a preliminary objection that Mr. Van Someren 
could not be heard, as the Solicitor-General had no locus standi, 
nor had any Counsel in supporting a conviction. The Solicitor-Gen- 
eral or other Counsel may appear and watch the proceedings, but 
unless he appears for the respondent, no Counsel has a right to 
appear at all. The Solicitor-General has no locus standi to appeiir 
for the Magistrate or the Crown. By the Appeals Ordinance 12 
of 1879, section 18, clauses 1, 2 & 8, and sections 19, 20 & 29, it 
appears that when the case is once stated, the parties to sucli 
appeal are the appellant and the respondent, the parties to the 
case below, and the only parties thereto ; but not the Magistrate 
or Crown. He cited Taylor on Appeals^ 14 ; 20 & 21 Vict., c. 3, 
section 2, and also Ordinance 12 of 1879, sections 21 & 25. 

Van Someren. This is a criminal matter and I appear as the 
Advocate for the Crown and the Magistrate. Section 36 of the 
Appeals Ordinance recognizes our right. Again independently 
of the Appeals Ordinance, it is a rule that without express terms, 
the Crown cannot be affected by a Statute. It cannot therefore 
be excluded from its right to appear in all criminal cases. This 
is a criminal appeal, the act does not in express words deprive 
the Crown of its right, and this right therefore remains. The 
Solicitor-General can appear for the Crown, or be rej)resented 
by other Counsel. 

Wood, J. The words of the Appeals Ordinance are explicit, 
and consistently therewith, I am of opinion the Crown, or the 
Magistrate, has no locus standi in an appeal from the decision of 
the Magistrate. The Ordinance recognizes the parties in the 
Court below, as the only parties to an appeal. 

The case was then adjourned, and came on for final hear- 
in 2: on 



STRAITS SETTLEMENTS. 



145 



Wood, J. 
1H82. 



lOih July, Ross appeared for the appellant. He having waived 
his objection to Mr. Van Someren's appearance for the Crown, 

Van Someren appeared for the Crown. Pcnqhclu 

No point worth reporting was however determined, and the Allanq 
conviction was eventually affirmed. 



V. 
UlM. 



REGINA V, LEE HONG KANG & ORS. 



Ford. J. 

1882. 

October 11. 



A Justica of tho Peac3 is entiblcd under the Gatninp^ Ordinance XIII. of 1879, Sinoapobi. 
to entor a house without a warrant, on receipt of information that a house is a com- 
mon gaminj^ house. 

The fact that a Justice of the Peace so acts under section 10 of tho Ordinance, 
and afterwards appears as prosecutor in the case, does not make the seizure bad, or 
tho proceedings before the Magistrat3, iri*e^lar. 

This was an appeal in a Lottery case, in which the first fonr 
appellants, were convicted hy Dr. N. B. Dennys, third Magistrate, 
for assisting in the business of a common garni ii<]f honse, in con- 
travention of sub-section 3 of section 2 of the Gaming Honso 
Ordinance No. XIII. of 1879, and two of the other appellants for 
being found in a common gaming house, the sentence inflicted on 
three of tho appellants, being a fine of §1,500 each. 

Donaldson [Joaquim with him] for the appellants contended, 
1. That the presumption on which the Magistrate acted did not 
arise under section 11 of the Ordinance, and even if it did, there 
was no evidence that these men were assisting in the business of 
a common gaming house. 2. The papers found are not proved 
to be, and -are not inlaw, instruments of gaming and as a branch 
of this, there was no evidence that what was called, in the case 
stated " Wha Whey,^' was an unlawful game. 3. The house was 
not lawfully entered. The last, he said, was his strongest point. 
Under section 8 of the Ordinance, before a house can be lawfully 
entered, there must be written information on oath and a warrant* 
Here there was no evidence of any written information on oath, 
and there was evidence of there being no warrant. Under section 
10 of the Ordinance, sworn information would still be necessary ; 
a Justice was not competent to issue a warrant until there was 
sworn information on oath ; therefore the house was not lawfully 
entered, and therefore the presumption on which the Magistrate 
acted never arose. He then contended that the papers found, were 
not instruments of gaming and were not proved to be so, and cited 
Wahon v. Martin, 34 L J. M. C. 50, where it was held that half- 
pennies were not instruments of gaming when used in the game 
of "pitch and toss," and concluded by urging that the fines were 
enormous, and were inflicted on the defendants, so that they might 
appeal against the decision as shewn in an affidavit filed by Mr. 
Joaquim. 

JEfarM;oocZ [acting Attorney* General] in support of the convic- 
tion contended that there was sufiicienti evidence to shew that the 
papers were Lottery tickets, and consequently unlawful. 

[Ford, J. You need not touch upon that point ; I am with 



146 MAGISTRATES* APPEALS, 

Po»i>, J. you there. The strongest point a<^inst yon is, that the honse was 
^^ not lawfully entered.] ' 

Rbo. Tlanvood submitted that the house was lawfully entered under 

V. section 11. Mr. Stevens, the Assistant Superintendent of Police, 
^ Ka^^*'^ and prosecutor, was a Justice of the Peace himself. By section 10 
& oEs. ^^ ^^^ Ordinance "A Justice of the Peace may himself do what he 
" may under the 8th and 9th sections, authorize an officer of Police 
"to do, whenever such Justice is competent to issue a warrant 
"under such sections respectively, &c." Mr. Stevens, being a 
Justice of the Peace, took upon himself to do what he had power 
to authorize an officer of Police to do. Such being the case, it did 
not matter whether a warrant was issued or not. As regards Mr. 
Joaquim's affidavit, there must have been a misunderstanding be- 
tween the Magistrate and the Counsel, as what he [Harwood] 
understood the Magistrate to have said was, that, by inflicting a 
heavy fine, there might probably be an appeal, and he wished for 
an appeal. 

Donaldson in reply contended that the evidence should have 
shewn Mr. Stevens was a Justice of the Peace, and he was both 
prosecutor and Justice of the Peace, which was illegal. 

Cur. Adv, Vult, 

October 63. Ford, J. This is a case on appeal from a convic- 
tion of four persons under the Gaming Ordinance of 1879, and the 
facts of the case as brought before the Magistrate, led him to 
presume under section 11, that the house in which the persons 
were found was a common gaming house, and on the evidence 
brought before him as to what these persons were doing, he found 
them guilty under sub-section 3 of section 2 of assisting in the 
management of a common gaming house, such a place being de- 
fined by section 1. 

The question arises whether the conviction is good, and 
secondly whether the fines ought to be sustained. There is no 
doubt on the face of the proceedings, an absence of some technical 
details ; but the objections on these grounds were not seriously 
pressed, and I think rightly so. Had they been pressed, the only 
result would have been that I should have sent the case bact to 
the Magistrate, when these few technical details could have been 
supplied. 

Several substantial objections were raised, and the facts of 
the case seem to have been these. The appellants were found in 
a house by the Police with a number of Lottery tickets in their 
midst on a bed, No. 1 having some of these in his hands ; No. 2 
was writing what was called a lime account, but which there is no 
doubt was connected with the lottery tickets, No. 3 counting on a 
Chinese board, and No. 4 doing nothing. These are the facts of 
the case, and upon these facts the Magistrate convicted, the appel- 
lants as I stated before. 

The first objection raised by the Counsel for the appellants 
was, that if this was a common gaming house, the presumption 
was rebutted by the circumstances under which the men were 



STRAITS SETTLEMENTS. 



U1 



arrested ; it was a carpenter's shop, and no usnal adjuncts of 
gaming were found, such as a narrow door, &c. No actual lottery 
was proved to have been going on, and the men were only found 
with tickets in their hands. I am of oj)inion that these circum- 
stances do not rebut the presumption, having regard to the well 
known way these Lotteries are carried on. As regards No. 2 
appellant on this point, I must say that had his statement stood 
uncontradicted there would have been something in it ; but there 
is the direct evidence of the Police Officer that No. 2 was handling 
or writing on tickets. 

The second objection raised was that the things found were 
not appliances or instruments within section 11, therefore the 
presumption was not raised. I am unable to take that view of the 
case. If these tickets were not appliances of a lotteiy, I fail to 
see what they were. They are the essential features of a lottery. 
The case of Watson v. Martiny 34 L. J. M. C. 50, cited by Mr. 
Donaldson as contradicting that view, does not do so ; the judg- 
ment there was exceedingly short, and gave no reason whatever 
for that view of the case. I have no doubt on this point that the 
Magistrate was right in holding these tickets as appliances of 
Lotteries. 

The third objection raised impressed me a little at first, but 
on consideration I think it is of no weight. It was contended 
that the prosecutor, being a Justice of the Peace, ought not 
to be both the prosecutor and the person who acted under 
section 10, such a course of conduct rendering the seizure 
illegal. There would have been a great deal in this if the Jus- 
tice of the Peace acted in a judicial capacity ; but it seems 
to me that he acted in an administrative capacity, and there- 
fore the gist of that objection was completely taken away. 
I am, therefore, clearly of opinion the convictions ought to be sus- 
tained. An objection was also raised against the amount of the 
fines on the first three appellants, as being not only excessive, but 
fixed with a view to an appeal ; and with regard to the latter 1 
do not think there is any conflict of evidence. The affidavit filed 
by the learned Counsel for the defence [Mr. Joaquim], would cer- 
tainly imply that the Magistrate inflicted the hea,vy fines so as to 
have an appeal. An affidavit was subsequently filed by the Magis- 
trate himself, and he does not contradict that which is contained 
in the affidavit of the learned Counsel,, but says what words he 
used ; and these words certainly seem consistent with the view 
taken by Mr. Joaquim. The amount of the fines seems excessive 
apart from what has been stated in the affidavits. These fines, 
amounting to ^4,500, on men who are not the heads of the lot- 
teries, and in the position of the appellants, seem startling for a 
, first offence. The highest fine allowed by the Ordinance is §3,000, 
and as a general principle, it is not usual to inflict the highest 
penalty on a first offence, and certainly not on a subordinate officer 
or agent. If the heads had been caught, the fines would have 
been more appropriate, although it is not possible to lay down a 
fixed rule on the subject. Taking all the circumstances into 
consideration, I think a fine of §>250 each on Nos, 1 and 2 would 



FOBT>, J. 

1S82. 
Rkq. 

V. 

Lee HoNa 
Eang 

& DBS. 



148 MAGISTRATES' APPEALS. 

Fo»D, J, meet the case, and I therefore reduce the fines to that 

^fff; amount. As regards Nos. 3 and 4, I alter the conviction to one 

;Bbq under section 4 of the Ordinance, nnd order a fine of §50 in these 

V. cases. 

Lib Hono 
Eakq .-«,.«__ 

& 0B8. 

REGINA V. TAN SIM HO. 

PXNANO* No rules for the accommodation of Immigrants employed on Estates, having 

been presorilKjd under sections 30 & 39 of Ordinance 1 of 1870, no conviction for 

SiDGBSAYBS, neglecting to provide such accommodation can ho had. 
C.J. 

^ The appellant had been convicted by Urban Bruce, Esq., 

Nov. 13. acting Magistrate, for voluntarily or negligently omitting to pro- 
vide proper and sufficient house accommodation for the Immi- 
grants employed on his estate in Province Wellesley, and fined 
$150under sections 36 and 39 of Ordinance 1 of 1876. It appeared 
from the evidence, that the accommodation given by appellant to 
the Immigrant coolies on his estate was very bad, — some wit- 
nesses thinking so from the tumbled down appearance of the 
building, and others from its being situate in an unhealthy spot. 
There was no evidence of any rules having been prescribed by 
His Excellency the Governor for such accommodation, and the 
fact was, no such rules had ever been prescribed. The appellant 
appealed. 

Van Someren for the appellant opened the case, and after 
reading the case as stated by the Magistrate, and the sections of 
the Ordinance, was stopped by the Court, who called on 

D, Logan, [Solicitor-General^ for the respondent, to support 
the conviction. He admitted he was unable to do so. 

Sidgreaves, C. J. held, in the absence of the rules, no convic- 
tion could be had, and quashed the conviction, and ordered the 
fine to be remitted. 

Conviction quashed. 



PAWNBEOKER v. RAMSAWMY PADIACHEE. 

Penano. a single act of taking a pledge or pawn, does not make a person punishable 

under section 5 of the Pawnbroker's Ordinance 7 of 1872, for " carrying on the 

SiDGBEAVESj trade of a pawnbroker." 
C. J. 

1882. rpj^g respondent had been charged before the first Magistrate 

Nov. 13. of Penang, C. W. S. Kynnersley, Esq., with carrying on the ti-ade 
of a pawnbroker, under section 5 of the Pawnbroker's Ordinance 
7 of 1872, without a license. The evidence was, that he had 
taken in pledge certain gold ornaments, carts and bullocks, to 
secure $100 advanced by him to one Samy Vandian, together 
with interest at 36 per cent. There was no evidence of his having 
any time before, or since, taken any other thing on pledge. His 
Counsel submitted to the Magistrate, that there was no evidence 



STRAITS SETTLEMENTS. 1-49 

in support of the charge, as a single act of taking a pledge, did Sidoeeavis, 
not make it the carrying on of a "trade." The Magistrate so ^'^' 
held, and dismissed the charge. The pawnbroker now appealed. ' 

Thomas for appellant. A pawnbroker is defined in section Pawnbeokbb 
2 of the Ordinance, as one who, in consideration of a loan, takes ^ ^• 
a pledge or pawn of any article. The respondent took a pledge, PadiachbeT 
aud therefore was a pawnbroker within the Ordinance, — and if 
so, what he did to make him such, was a carrying on the trade of 
a pawnbroker. 

Van Someren for respondent. The offence is carrying on of 
the trade of pawnbroking — this must mean the habitual taking of 
pawns, and section 5 must be taken to refer to section 3. A 
single act is not sufficient. Bej^ v. Little, 1 Burr. 610, it was held 
that the single act of selling a handkerchief, was not the carrying 
on of the trade of Pedlar without a license, within the Pedlar's 
Act. 

Thomas replied. 

Cur. Adv. Vult. 

Novemljer 20. Sidgreaves, C. J. This was an appeal from the 
decision of the First Magistrate of Penang, dismissing a charge 
against one Ramsawmy Padiachee, of carrying on the trade of a 
pawnbroker, without a license, contrary to the provision of 
section 5 of Ordinance 7 of 1872. Evidence was given, that to 
secure a loan of §100, the defendant had, in addition to a 
Promissory note, taken a mortgage of bullocks and carts, and 
jewelry, the interest on the loan being §3 a month, for three 
months. 

. The Magistrate considered that this one act did not consti- 
tute the carrying on the trade of a pawnbroker. The 3rd section 
of the Ordinance enacts that " No shoj:) or place shall be 
'* opened or kept for carrying on the trade of Pawnbroker, with- 
" out the permission of the Parmer of Pawnshops of the Settle- 
" ment, place, or district, within which the same is situated, nor 
" without a license from the Licensing Officer, to be appointed by 
"the Governor, under this Ordinance." 

No penalty is attached to an infringement of the provisions 
of this section ; but by section 5, " No person shall carry on the 
trade of Pawnbroker without a license as required by this Ordi- 
nance, or contrary to the terms of such license," under a penalty 
of §250 [section 22]. The carrying on of the trade under section 
5, would seem therefore to be more or less defined by section 3, 
and the object aimed at was, to prevent the opening of shops and 
places for carrying on the trade of a pawnbroker, without the 
permission of the Parmer of Pawnshops, and without a license. 

I do not consider that a man who acts as the respondent in 
this case acted, can be said to have been carrying on the trade of a 
pawnbroker ; although if it could be inferred from the number of 
such acts of pawnbroking, or from the circumstances under which 
he was acting, that he was actually carrying on the trade of a 
pawnbroker, although not in any defined shop or place, I think a 
oonyiction against him might be maintained. The decision of the 



150 MAGISTRATES' APPEALS. 

SiDORKAVEs, Magistrate must be affirmed. 

P ^* ^- On tlie application of the pawnbroker, Sidgreaves, C. J., subse- 

& > J. J. qiiently reserved the point for the consideration of the Court of 

Wood, 3 Appeal, under section 38 of the Appeals Ordinance 12 of 1870. 
^^-' Slst March, 1883. The case now came on before the full' 

Pawnbeoker Court of Appeal, consisting of Sidgreaves, C. J., Ford & Wood, J. J. 
V, Thomas for appellant. Section 2 makes the respondent a 

Kamsawmt Pawnbroker by taking the pledge, and if the mere act made hitn 

Padiachee. ^ pawnbroker, the doing of it was also the carrjing on the trade 
of a pawnbroker. The Legislature clearly so considered it, as 
they make an exception, Avhich shews that they considered section 
2 to apply to every case. The exception does not apply to this 
case. The section and exception speak of single acts. To hold 
section 5 to refer to section 3, would be to provide a way of 
escape for persons taking pledges, by doing so, but not in a defi- 
nite shop, or place of business. 

Van Someren for respondent. Section 2 merely defines what 
a pawnbroker is, in order to shew what is the trade the Act is 
intended to put down. It must be read simply as a help to 
sections 3 and 5. It constitutes the status of pawnbroker, but 
no more. To hold it to be more, would be to make section 3 
meaningless, as, if a single act is a breach, a fortiori the con- 
tinuous doing of it in a shop or place of business. A " pawnbroker" 
is defined, but not what the " carrying on the trade" of a pawn- 
broker is. A glance at the previous Ordinances, would shew that 
the Legislature could never have intended a single act to be an 
offence. In the Pawnbroker's Ordinance 7 of 1872, we have the 
word " business" of a pawnbroker — but in the still earlier 
Ordinance, 25 of 1870, section 4, we have it expressly pro- 
vided that the taking of a single pledge is an offence. 
This Ordinance was disallowed by Her Majesty. The Ordinance 
of 1871, was passed in its place, which aimed at the " business" 
of a pawnbroker, and the following year, a further alteration is 
made, by the word " trade" being used for " business," as if to 
put the matter beyond doubt as to what was aimed at. Even if 
it were otherwise, if the Legislature had not used words to take 
in the evil intended, the Court cannot stretch the words they have 
used, so as to take it in, simply because they did intend it, though 
they omitted to say so. Proctor v. Maimvaring, 3 B. & Aid. 145. 
The Ordinance makes the carrying on the " trade" the offence, 
and a single act is not the carrying on of a trade. Rex v. Litiley 
1 Burr. 610, is in point. 
Thomas replied. 

Wood, J. I have been desired by my learned brothers to de- 
liver the judgment of the Court. AVe are of opinion that the judg- 
ment of the Court below was correct. This Ordinance, it must be 
remembered, was to establish a monopoly, and must therefore be 
construed strictly. A person offends against section 5 if he carries 
on the trade of a pawnbroker. '- Pawnbroker" is defined, but the 
" carrying on the trade of pawnbroker" is not. In analogy to 
what is " trade" and a ^' trader," within the Bankruptcy Laws, 
we think the trade of a pawubroker is, if not the habitual carrying 



STRAITS SETTLEMENTS. 151 

on of acts of pawnbroking, it is at least the carrying on the act Sidqeeaves, 
with the intention of making a means of living by it. This is the p^^^'^* 
common and accepted meaning of the words "carrying on the & Cj.j. 
trade/' and we are of opinion it is so, within the meaning of this Wood,) 
Ordinance. ^^* 

PAWNBitOKEB 

Sidgreaves, C. J. and Ford, J. concurred, the latter observing v. 

that if there had been room for doubt on the point, the course of p^JJ^^^^^J 
the Legislature in changing a single act which was made an offence 
under the Ordinance of 1870, into " the carrying on the trade" 
under the Ordinance of 1872, was conclusive to dispel it. 

Judgment affirmed. 



Padiacuee. 



CAETAN V. MEENACHEE. 

A conviction for two offences, and awardinir one i)unishment, is bad. The Penang. 

ol»jection is not a formal one, and is not aided by sections 32 & 33 of the Appeals • 

Ordinance 12 of 1879. Sidgreaves, 

C. J. 

-IQQO 

The appellant Cartan had been convicted by Urban Bruce, .' 

Esq., acting Magistrate, in a first count for voluntarily causing Nov. 13, 
hurt, and in a second £Ount, with committing theft, and was sen- 
tenced to two months' rigorous imprisonment. The evidence was, 
that the appellant and others had assaulted the respondent, and 
in the assault he pulled one of the respondent's earrings off, and 
in so doing tore his ear. 

Van Someren for the appellant contended, that the evidence, 
if reliable, shewed the appellant had committed robbery — but the 
Magistrate had no jurisdiction over such an offence — to give him- 
self jurisdiction he had split it up into two counts, each being 
within his jurisdiction — but in trying to avoid one evil, he had 
fallen into another, for he awarded one punishment for the two 
offences, which rendered the conviction bad. Maxwell on Magis- 
trates, 31, 32 ; Newman v. Bendy she, 10 A. & E. 11. 

D. Logan , [Solicitor-General] contended that the defect pointed 
out was merely one of form, and could be amended under sections 
32 and 33 of the Appeals Ordinance 12 of 1879. 

Sidgreaves, C. J., after remarking that the Solicitor-General 
was quite right in relying on sections 32 and 33, pointed out that 
in Newman v. Bendy she, so far back as 1839, it was contended 
that the objection was matter of form, and so was aided by sec- 
tions 25 and 27 of the Statute 1 Wm. IV., c. Gl, nevertheless the 
Court considered the objection fatal. He considered that that 
case was an authority, that this was not matter of form, but sub- 
stance, and accordingly quashed the conviction, on the ground 
that it expressed one penalty for two offences. 

Co7iviction quashed. 



152 



MAGISTRATES' APPEALS. 



Fknano. 

Wood, J. 
1S82. 

Dec. 11. 



HASS V. CHOO CHYE flOK 

A Mo^^istrate has no jurisdiction to try a foreijj^ner for an assault on the hi^h 
seas on board a foreign ship. The words ** any person" and '* wheresoever com- 
mitted/* in the Statut<e 12 & 13 Vict., c. U6, s. 1, thoui^h general in its tenns, apply 
only to offences committed by British subjects, or on board British ships. The 
Statute merely confers on the Criminal Courts of Common law, the jurisdiction 
formerly possessed by the Admiralty, but no more : the jurisdiction of the Admir- 
alty was limited as above. 

The appellant Ilass, was Chief officer on board the German 
steamship Ficciola. The Picciola was under charter to a Chinese 
liiin in Feuang, composed of British subjects. The respondent 
was supercargo on board the steamship, in the service of the 
charter. 

It appeared that while the Picciola was on the high seas, on 
her way to Rangoon from Singapore, the appellant assaulted, 
beat, and kicked the respondent. The vessel from Rangoon came 
back to Penang where the respondent laid an information and 
procured the arrest of the appellant. The appellant was 
tried by C. W. S. Kynnersley, Esq., Magistrate, for assault, 
under section 352 of the Penal Code, and was convicted 
and fined §10. He now appealed. At the hearing before the 
Magistiute, the German Consul attended, but no objection was 
taken by any person to the Magistrate's jurisdiction. The ap- 
pellant was a German subject, and the steamship sailed under 
the German flag. The respondent was a Chinese subject. 

Clutton for appellant. The point is one of jurisdiction only. 
The Magistrate has no jurisdiction over anything done in a 
foreign ship on the high seas. There is no evidence of the 
nationality of the ship in the case. The conviction states that 
tlie ship was a German ship and on the high seas— hence it would 
appear that the prisoner was convicted wrongly. No question 
was raised as to jurisdiction before the Magistrate. The respon- 
dent may rely on Ordinance 1 of 1873, but the preamble shews the 
limited character of the jurisdiction, and the consent of the 
Foreign Consul is requisite. 

\Woody J. It is admitted that the Consul not having as- 
sented, that section does not give jurisdiction.] 

This is the only Act which can give jurisdiction, but on 
reference to this Ordinance, it appears clearly that it does not 
apply. The Ordinance gives this jurisdiction only in certain 
cases, viz,, against the discipline of tlie ship, but prosecutions by 
the master or owner of the ship. That is not our case. The 
Magistrate by Common law has no jurisdiction over offences com- 
mitted on the high seas. The Statute 12 & 13 Vict., c. 06, s. 1, 
will be mainly relied on. That section says, " If any person, &c." 
In this case " any person" means a British subject. This cannot 
apply to a foreign ship or a foreign subject. Maxwell on Magis- 
trates, 90; Maxwell on Statutes, 119; Kegina v. Lewis, 20 L.J. 
M. C. 104 ; Begina v. Bjosson, 34 L. J. M.'C. 180. The words used 
in 12 & 13 Vict., c. 96, s. 1, " treason'^ in particular, seems to 
shew that the words are directed to British subjects, fur it can 
hardly be supposed that British Courts would try a foreigner for 



STRAITS SETTLEMENTS. 



153 



treason against a foreign power. Regina v. Edwards^ 1 East 278, 
The jurisdiction must be stated in the conviction. Paley on Con- 
victionsy 192, citing re Peerless, 1 Q. B. 143. It would have to be 
stated in the conviction that the uian was a British subject, if 
this fact is necessary to the conviction. Re Peerless, supra. 
The words of the Statute 12 & 13 Vict., although general, must 
be confined within reasonable circuits, viz., as to subjects abroad, 
or. British ships. 

Ross [Van Someren with him] for the respondent. We con- 
tend that under' the Statute 12 & 13 Vict., c. 96, s. 1, there is 
jurisdiction, but supposing the man is a foreigner, and there was 
no jurisdiction, then it was the duty of the representative of the 
foreigner to have taken the objection. The Statute is appHcable 
to " any person," and to all offences " wheresoever committed." 
The Statute was intended to extend the jurisdiction of Criminal 
Courts, and should be construed liberally, especially as the words 
are general and large enough to take in any case. The Act is 
also applicaWe by its terms to all Colonies. Under this Statute, 
piracy is tried in this Court. 

[Woody J. Looking at the title of the preamble of the Act, 
in which reference is made to the jurisdiction of the Admiralty, 
I am of opinion that that jurisdiction must be looked at in con- 
struing the application of this Act, and that it could not be satis- 
factorily contended that the Act would apply to those persons and 
those places over which the Admiralty had no criminal jurisdic- 
tion, and that in consequence the language of the Act would not 
be held to apply to foreign ships. Regina v. Lewis, I think, sup- 
plies a ratio decidendi^] 

The jurisdiction of the Admiralty probably is more limited, 
and has been the subject of much discussion and difference of 
opinion at home. Regina v. Anderson, 1 L. E. C. C. E. 161 ; 
Recjina v. Keyn, 2 L. E. Ex. Divr. 63. 

[Wood, J. I consider the Statute applies to British ships 
and British subjects only.] 

If there is no jarisdiction on the face of these proceedings, 
the case should be remitted back, to shew where the offence was 
committed ; it is believed it was opposite Klang in Selangor, 
where the Court has jurisdiction under the Statute 41 & 42 Vict., 
c. 73. [They did not further press this last point.] 

Wood, J. There is no jurisdiction on the face of these pro- 
ceedings, tind it is doubtful if any jurisdiction can be shewn by 
further evidence. The latter point is nob further pressed by Mr. 
Koss, so the conviction will be quashed with costs. 



Wood, J. 

1882. 

Habs 

V. 

Cuoo 
Chtk Hok. 



Conviction quashed with costs. 



154 



MAGISTRATES' APPEALS. 



SlNQAPOBE. 

Ford, J. 
1S83. 

January 5. 



REGINA V. TAN POH KEAH. 

The mere fact of a person a'lvancinj^ money to the owner of an estato in order 
to cna>>le him lo work his estate, and taking a mortgage of the estate as security, 
does not make him liable to punishment as an abettor of mischief, by reason of 
the owner having encroached on Crown lands, and cut down timber. Nor does 
the fact that he is indirectly benefited by getting his wood free, make him so liable. 

This was an appeal from a couviction bj A. W. V. Cousins, 
Esq., Magistrate. The facts appear sufficiently. iu the judgment. 
Baunujartcn for the appellant. 
Uarwood [acting Attorney-General] for respondent. 

Cur. Adv. VuU, 



January 11. -Fordy J. In this case the appellant was charged 
by the authorities of the Land Department with the offence of 
mischief, and fovmd guilty by the Magistrate of abetment of that 
offence. The proceedings were taken under sections 425 and 107 
of the Penal Code, and the appellant was sentenced to §50 fine, 
or in default to one month's imprisonment. 

The circumstances of the case, gathered from the evidence 
and concisely put, are as follows. 

One Teo Choon Seng is the owner either in fee or for a term 
of years of a piece of land in the district of West Seletar, and, as 
is very generally the case with his class, not having sufficient 
capital to cultivate the land after its purchase some eight or ten 
years ago, obtained advances from the appellant for so doing, 
under a condition to sell the produce or the greater part of it to 
him, depositing also his title deeds as security for such advances. 
The advances are rarely paid off until the close of the cultivation, 
and in this case, they have continued to be made by the appellant 
from time to time, and accounts are kept between him and bis 
equitable mortgagor of such advances and of the gambier and 
other produce respectively bought and sold between them. No 
direct supervision of the estate is exercised by the appellant, 
although he goes to look at the estate occasionally. When the 
offence complained of was committed, six months had elapsed 
since he had done so. 

The wages of the men are paid by the landowner, although 
naturally often out of the advances made to him by the appellant, 
and he controls and directs their labor and the cultivation gene- 
rally. 

Encroachments on the land contiguous to the estate have been 
made by Teo Choon Seng and his men for the purpose of cutting 
wood for preparing the gambier for market ; and somewhere early 
in November some 15 large trees were cut down, either by Choon 
Seng or under his orders and with his acquiescence. I think I 
may take this to be so, although the evidence is not very clear. 
Two of the trees, however, have been admittedly sold by him to 
one Ah Suan. There is no evidence of any kind to connect the 
appellant with this offence as a principal, or any to show that he 
at any time gave any orders for cutting the timber in question, or 



STRAINS SETTLEMEN1?S. 155 

knew that it had been so cat. The Magistrate, however, was of Ford, J. 
opinion that although not guilty of mischief, he was guilty of ^^• 
abetting it, such abetment to be inferred, as I understand the rko. 
Magistrate's decision, from the appellant's general position with v. 

regard to the estate and from his cognizance of and consent to TanPoh 
the acts complained of. There is, as I have said, not one tittle of ^^^' 
direct evidence to sustain the charge that he was cognisant of or 
consented to the offence committed, and I assume, therefore, that 
this cognisance and consent is to be inferred from his general 
position with regard to the estate. I am quite unable, however, 
to overlook the position of Teo Choon Seng as the real owner of 
the property, or to infer the knowledge and cognisance of the 
appellant from the mere circumstance of his position, or to infer 
that guiltiness of mind which is an essential element in liabiHty 
to a criminal prosecution, in all but a very few cases. An examin- 
ation of the Section of the Penal Code defining the offence of 
abetment is sufficient to put the question beyond a doubt, for to 
constitute the criminal abetment of an act, a person must [1] " In- 
stigate any person to do that thing," or [2] '' Conspire with any 
other person to do that thing," or [3] " Intentionally aid by an 
act or illegal omission the doing of that thing." In this case 
Choon Seng and his men have done the mischief. So much may 
be said to have been found by the Magistrate's decision acquitting 
the appellant as a principal. There is no evidence that Choon 
Seng or his men did so at the instigation of, or by combining with 
the appellant ; and equally none that the appellant by any act or 
illegal omission aided the offence, unless I were to hold that it was 
the duty of an equitable mortgagee of lands, with an agreement 
to secure the application of its cultivation to the repayment of 
continuing advances, to be continually running over the estate in 
order to avoid a criminal prosecution for possible criminal acts of 
the owner and cultivator, which by so doing he might prevent. 

I am at a loss to conceive any principle known to the law 
which would impose such a duty on the appellant ; and there being 
no such duty, there can be no illegal omission of it, and far less 
the illegal omission which seems required by the Penal Code. It 
may have been, as the Magistrate further suggested, much advan- 
1 tage to the appellant that the owner should get his wood free ; 
\ but I need hardly say that the indirectly receiving a benefit by 
1 the criminal act of another^ does not render the receiver personally 
. responsible as principal or abettor of those acts. The wrong person 
has clearly been proceeded against in this instance. A common 
sense test of this question would be found in answering the ques- 
tion. Whether the appellant would have been liable for this trespass 
had it been committed during his absence in China, from which 
country I understand he returned some 12 months ago ? His inte- 
rests in and position towards the estate and its owner would;, when 
in China, have been precisely the same as at this moment. 

The erroneousness of an answer which would consign him to 
3 months' imprisonment on his return, is too manifest for expli- 
cation. 

Conviction quashed^ 



156 MAGISTRATES' APPEALS. 

LOW CHU V. OPIUM FARMER. 

Pknang. The appellant having obtained a permit for conveying two chests of opium by 

certain specified boats to Kulim, in the Malayan territory, proceeded with the 

Wood, J. chests in such boats up to the mouth of the Kulim river. On arrival at the Kulim 
1883. river, he found there was not sufficient water to permit of these boats going up it : 

\ he accordingly engaged smaller boats, but these were too small to take in a single 

February 19. whole chest. The appellant accordingly, with the view of carrying on the transit 
of the opium to Kuliai, in these latter boats, and without any fraudulent motive, 
broke bulk, plaoed the 80 balls of each chest iuto a gunny bag, and put them in 
the two smaller boats, 

Held, he had committed an offence under section 5 of the Excise Ordinance \ 
of 1S70, as amended by siction 1 of Ordinance 6 of 1870. 

The forfeiture of illicit or contraband articles, on conviction of the offender, is 
imperative on Magistrates. 

The appellant was convicted by J. K. Birch, Esq., Magistrate 
of Province Wellesley, for removing a certain quantity of opium 
for exportation, to wit, 2 chests containinsr 80 balls, contrary to 
the provisions of the permit furnished by the Import and Export 
Office, in contravention of Clause I L, section 1 of Ordinance (> 
of 1879, and was fined §25. The opium was also declared to be 
forfeited. The evidence shewed that the appellant had received 
two permits from the Export Officer for exportation of two chests 
of opium bearing certain numbers, to Kulim, by certain tongkangs 
or boats, specifying their numbers also. The permit was in form 
of Schedule E of the Excise Ordinance 4 of 1870, except that 
the words '^ who is required to export same in terms with this 
permit" were crossed out. The appellant conveyed the opium in 
the chests, by the specified two boats, as far as Mangkwaug Haji 
Omar at the border of Province Wellesley. On arrival there, 
finding there was not sufficient water in the river for the two 
tongkangs, he engaged Malay boats which were smaller in size, but 
too small to carry a whole chest. For the purpose of transit in 
these boats, and without any fraudulent motive, but with the 
object of carrying out his original intention of taking the opium 
to Kulim, the appellant broke the chests, and put the 80 balls of 
each chest, each lot into a bag, an,d placed them in the Malay 
boats, ready to start up river to Kulim : before he started, certain 
Kevenue Officers came down on him, and he and the opium were 
all taken into custody. It appeared that the Kulim river rose and 
fell continually, and was a good deal dependent on the weather 
for sufficient water to admit large boats to go up. 

P. H. Gottlieb [Van Someren with him] for appellant. The 
permits having been obtained for the removal of 2 chests of opium 
in the forms given by the Ordinance, and bulk broken, and the 
opium put into bags, and in process of exportation in that form, — 
the question is, whether the defendant was rightly convicted. 
The bales being in that form, was without intention to defraud. 
The conviction is under clause 2, that we exported contrary to the 
terms of the permit. We are to export, but not necessarily to 
export in the terms of the permit. Though section 6 of the 
Excise Ordinance 4 of 1870, as amended by the Ordinance of 1879, 
requires that the number of chests, and marks of the cases are to 
be mentioned in the bill of particulars, yet in Schedule E— [the 



STEATTS SETTLEMENTS. 



157 



permit] — alone, it goes on to say "who is required to export in 
terms of this permit ;" but these words are struck out in the two 
permits in this case. The permit in Schedule E is under sections 
4, 6, 10 & 24 as stated in the heading, it should be 5, 6, 10 & 
24. Schedule E was meant to apply one form to the Act for 
the issuing of permits. Section 5 does not require the per- 
mit to state that the goods are to be removed in terms of the 
permit. Section 6 does require certain particulars, but not the 
words " in terms of the permit.'' The words being struck out 
requiring ^^ to export in terms of this permit," we are not to 
regard the terms of the permit. These words are rightly struck 
out, for they do not apply, as may be seen by reading section 6 
which specifies what are to be the " contents of permits." Section 
10 gives the words " in terms of permit," so it may be inferred 
that the terms " in terms of the permit," in the permit Schedule 
E, is referable to sections 6 & 10 only. Section 24 refers to 
spirits, and in this it is to be remarked that the words " in terms 
of the permit" would be inapplicable and in excess, and in contra- 
diction of the terms of the section. The appellant therefore 
committed no offence in merely conveying the balls in bags, and 
not in chests. 

Thomas for respondent. This is a conviction under the new 
Ordinance, section 1, which is substituted for section 5 of the old 
Ordinance, the reason for the substitution must be identification — 
and menns of identification accordingly are required. There can 
be no other reason. The appellant's act is real grievance — ^the 
moving would be a second moving after bulk is broken, and ought, 
in the interests of the Opium Farmer, to be protected by another 
permit. It must be intended that this was the intention of the 
framers of this Ordinance. The permit, if looked at, must be 
followed. It requires the two chests to be exported by tongkangs 
to Kulim, and the act of the appellant was an offence within the 
Excise Ordinance as, 1st a breach by not exporting by tongkangs 
to Kulim — as he did not export to Kulim 2 chests, but what he 
exported were chests, and balls in bags, a portion of the way ; and 
2ndly his conveying in bags was a second moving, and a new per- 
mit was required, when he found that he could no longer move 
under the first permit — ^the words " to export in terms of the per- 
mit" are mere surplusage. He has incurred the penalty because 
he has offended against the provisions of the section, and not 
merely acted contrary to the terms of the permit he held. He acted 
contrary to the section, when, being at Mangkwang Haji Omar, 
he changed the form of the bales — for the moving intended is 
from here to Kulim in a particular form — he instead thereof, 
breaks the journey, and the bill of particulars he has given 
required to be renewed. Before moving the goods under new 
conditions, he must give a fresh bill of particulars, and obtain a 
new permit for the information of the Opium Farmer. This he 
did not do, and so it is a breach of the section as well as of the 
permit. The permit must be followed as given in Schedule E, and 
if not followed, there is a breach of the section. 

Van Someren in reply. There is no breach of the permit. 



Wood. J, 
1883. 

Low Chtt 

V 

Opium 
Fabmeb. 



158 



MAGISTRATES' APPEALS. 



Wood, J. 

1883. 
LowChu 

V, 

Opium 
Farmer. 



The officer had no business to state the tongkangs by which the 
vessel was to go, or the number of the chest, as the section does 
not require it — his doing so does not oblige us to transport by that 
boat only. These conditions imported into the permit are superro- 
gatory ; and more so, in view of the words, to be exported " in 
terms of the permit." Lastly there is, if a breach of the permit, 
no breach of the section, as it was not a new removal but all one 
act of transferring. There is no breach of the section when oue 
compares sections 5 & 6 of the Ordinance 4 of 1870, together. 

Wood, J. I am of opinion that the object of the provisions of 
section 1 of the Ordinance 1 of 1879, in substitution for section 5 
of 1870, must have been the identification of the chests of opium, 
with a view to the protection of the interests of the Opium Fanner. 
The Schedule E is properly to be held to be part of the provisions 
of the section, and its terms should be held to be embodied in it. 
The permit does in terms, and rightly so, name the ship, the 
particular form of the packages of the opium, and the voyage as 
a whole ; and I am of opinion that in changing the form of his 
packages and the terminus of his several voyages, the appellant has 
offended against the provision of the section, within the meaning 
of the Ordinance. 

I accordingly affirm the decision of the Magistrate. I do 
not consider the amount of fine unreasonable, and I hold the 
forfeiture of the opium to be imperative, not as a punishment, but 
as a protection of the Opium Farmer. I should have no hesitation 
however in recommending a return of the forfeited opium by His 
Excellency the Governor, on the ground that the section has now 
for the first time come before the Courts, — ^that the appellant's 
act resulted from a not unreasonable mistake of the law, — and no 
fraud is imputed to him [a]. I shall make no order for costs. 

Conviction affir%ned ; no order for costs. 



EEGINA V. KWEH TE HIN. 

SiNGAPOBE. Except there is a dispute as to the proper position of landmarks, and the matter 

' is reported to the Collector, there is no power in the Collector of Land Revenue to 

SiDGREAVES oi'^^r a survey of any land with a view to puttin,^ up or repairing landmarks under 



C.J. 
1883. 

March 22. 



' Ordinance 7 of 1S82 ; and the owner of such land cannot be ordered to j)ay the 
expenses of such survey. 

The fact that the land is overgrown, and there are no proper landmarks marked 
out, although necessitating a survey, does not render the owner of such land liable 
to pay the expenses of the survey, where the Collector has x>roceeded merely after 
notice, under Section 6 of the Ordinance. 

A Magistrate [on the prosecution by the Collector of Land Revenue] having, 
under such circumstances, ordered the defendant, the owner, to pay the expenses 
of such survey, on appeal, such order was quashed and costs awarded against the 
Collector. 

This was an appeal from the decision of fl. A. O'Brien, Esq., 



[a] The opium was afterwards restored by order of His Excellency the 
Governor, under section 85 of the Excise Ordinance,— J. W, N. K. 



STRAITS SETTLEMENTS. 159 

Magistrate of Malacca. The facts giving rise to it, and nature of Sidobeaves, 
the question raised, fully appear in the judgment. ^^^' 

Drew for the appellant. 

Harwood [acting Attorney-General] for the respondent. Reg. 

Sidgreaves, C. J. This was an appeal from an order for pay- k^eu Te 
ment made by the Magistrate of Malacca under section 13 of Hin. 
Ordinance No. 7 of 1882, whereby the appellant had been adjudged 
to pay to the Collector of Land fievenue at Malacca, the sum of 
§79.90, the cost incurred by the Collector of Land Revenue in 
setting up landmarks to serve as boundaries of land comprised in 
Government Leases Nos. 4146 and 4147. By section 2 of the above 
Ordinance. : 

" Whenever it is found that landmarks are not set up on any land under 
the Crown, whether by Lease or grant, or that the landmarks, if set up, have 
become oxit of repair or are not plainly distinguishable, it shall be lawful for 
the Collector of Land Revenue to require, by notices, good and solid landmarks 
to be set up at such places as the Collector may direct, or if already set up, the 
Collector may require them to be repaired." 

By the third section. : 

" N'otice in writing of every requisition to set up or to repair landmarks 
under this Ordinance shall be served, in the manner prescribed in section 16, 
on the owner or occupier of every lot of land as to which the landmarks are to 
serve as boundaries, requiring him to set up, or to rejiair, the landmarks within 
such time, not less than fifteen days, as the Collector may think reasonable."- 

No such notice appears to have been given by the Collector of 
Land Revenue, but Reginald Eozario, a Forest-ranger in the Land 
Office, gave the appellant notice on the 4th August, 1882, to put up 
landmarks on the land comprised in leases Nos. 4146, 4147, and 
giving him fifteen days' time to do it in. As the appellant took 
no notice of it, the Government put boundary stones on his land 
and sent him a notice demanding $145.90 as the cost of surveying 
and putting up boundary stones on his land. The appellant de- 
clined to pay, saying he could not stand such a heavy expense, and 
accordingly a summons was taken out against him under section 
18. The cost of the resurvey was $125.90 and the result of it was 
to prove that a previous survey made at the instance of the appellant 
five years ago and for which he paid ^66, was correct. 

The appellant does not dispute his liability to pay for the 
putting up of the boundary stones, which, with $4 for transport 
amounted to $20, but disputes his liability to pay for the resurvey. 
Assuming the notice given by Mr. Eozario to be a valid one under 
section 2, the next step is prescribed by section 6, which is as 
follows : 

" After service of notice to set up, or repair landmarks, if the landmarks 
are not set up or repaired within the time stated in the notice, or in the event 
of any dispute between the pai*ties interested as to the setting up, or repairing 
such land marks, it shall be lawful for the Collector to cause such landmarks 
to be set up or repaired, and the expense incun'ed thereby shall be chargea- 
ble and recoverable as hereinafter provided." 

This section therefore authorizes the Collector to set up or 



160 MAOISTBATES' APPEALS. 

SiDORiATis, repair landmarks, and provides for the recovering of the expenses 
iftsa incurred in the setting up or repairing such landmarks. 

; It gives no authority whatever to the Collector to incur and 

Rbo. charge the parties served with such notice with the expense of a 

^' resurvey. That the owner or occupier is not to be saddled with 

Hm ' *^^ heavy expense of a resurvey on mere non«compliance with the 

terras of the notice required by section 2, appears very clearly from 

the provisions of section 10. 

"If any dispute shall arise as to the position in which any landmark 
should be placed, the same shall be forthwith reported to the Collector of Land 
Revenue, who, if unable to settle the dispute, shall direct the lots to be re- 
surveyed by a surveying officer at the Settlement under the Surveyor- General 
and the landmarks shall be set up in the position shewn by such survey to be 
the correct position. The expense of any such survey shall be borne oy the 
parties interested in such landmarks, and shall be recoverable as provided by 
section 13.** 

There being no reference whatever' in the case to any sucli 
dispute having arisen, or to any such dispute being reported to the 
Collector of Land Revenue, there can be no justification under that 
section at all events for incurring and charging the appellant with 
the costs of a resurvey, and there are no other provisions in the 
* Ordinance which could justify such a demand upon the appellant. 
It does not appear that the appellant was ever asked to point 
out the boundaries of his land, and it was stated in argument by 
his Counsel that he never was. The reason assigned for making 
the resurvey was given by Mr. Rozario in his cross-examination 
by the then defendant, the present appellant. 

" Yes, this receipt is for fees for the survey of the land comprised in these 
two leases. You are charged with these expenses because you had not proper 
boundaries marked out, and some of the land was overgrown, which rendered 
a resurvey necessary." 

The Ordinance not only does not sanction this summary mode 
of dealing with the interests of the owners and occupiers of the 
land, but is expressly framed to protect them from it. The order 
of the Magistrate must be altered by reducing the amount of the 
judgment to the amount expended for the setting np the land- 
marks, his liability for which has never been disputed by the 
appellant. The Magistrate evidently considered that the appellant 
had been hardly used, for he deducted from the cost of the resurvey, 
charged, the cost incurred by the appellant on the previous one 
made by him five years ago; but upon what principle, if he con- 
sidered that the appellant was liable at all, I have been unable to 
ascertain. 

Costs against the respondent, the Collector of Land Revenue. 



STEAITS SETTLEMENTS. 



161 



BOEY All SAM v. SEOW All SEONG. 

A pawnbroker who permits lar^o nuiubors anl o^rados of his omployt's tohavo Sinoapork. 

access to articles of raluo i^loJ^fod with him, licyoad what a man of ordinary pru- 

donco wouUl do, when such <jfoods had b(»en deposited with him, is guilty of nejjli- Ford, J. 

gencc and liable to make compensation if such goods are lo^t without explanation. 1S83. 



This was an appeal from an order made by R. S. O'Connor, 
Esq., Senior Mngistrato of Singapore. 

Cnr, Adv. VaJt. 

26tli September. Ford, J. This is an appeal from a decision 
of the Senior Ma«:istrate of Sincffipore, who awarded certain com- 
pensation to the respondent in respect of certain articles of jewel- 
lery pledged by him with the appelljuifc and alleged to have been 
lost or embezzled or to have become of less value throngh his de- 
fault and negligence. The case has been two or three times before 
the Court on minor issues raised during tlie proceedings before 
the Magistrate, to which however, there is no need to refer. 

The circumstances of the case a^ they are now before the 
Court for adjudication are as follows; and there is no conflict of 
evidence upon them : — 

On the 25th September last year, the respondent pledged 
with the appellant, a licensed pawnbroker^ certain articles of 
jewellery, receiving an advance of §45 thereon, with the usual 
, pledge ticket. A few days previous to the 19th Deceuiber, he 
returned to the appellant's shop with the ticket, the amount ad- 
vanced, and interest, and tendered the sum due in order to redeem 
his pledge. The property pledi>ed could not be found, and the 
respondent was told to call again. In two or three days he re- 
turned accompanied by his legal adviser or his clerk, when the 
respondent produced certain property in a paper or bundle bear- 
ing the same number as the pawner's ticket but containing other 
property than that of the pawner. The original property the ap- 
pellant could not then, and has not up to this date been able to 
produce, and from proceedings he admits to have taken in the 
police, although unsuccessfully, his opinion evidently was, that 
one of his clerks entrusted with taking in pledges had embezzled 
these and other goods, substituting worthless ones for them. 
There is, however, no other evidence of how the goods were taken, 
before the Court; but there is the admitted fact that, for the 
business hours of the day, the appellant's three clerks and some 
nine*other persons, of what exact grade of assistants does not ap- 
pear, but apparently coolies or servants of a lower grade who as- 
sisted to look after property pledged and to take pledges in, have 
cccess to the place where the drawers are, in which pledged jewel- 
lery, &c., are placed. These drawers are in rows of six, seven, or 
eight, forming two large bureaus which are carefully secured by 
a large iron bar and padlocks at the closing of the business of the 
day, continuing so all night and until the shop is opened the next 
morning. I understand this to be the effect of the evidence, al- 
though in his first examination the appellant gave a somewhat 



Sept. 10. 



162 



MAGISTRATES* APPEALS. 



FOBD, J. 
1883. 

BoitAh 

Sam 

V. 

Sbow Ah 
Skono. 



different account. The material point, however, is that the goods 
are secured under bars and locks during the night. There is evi- 
dence that this is the customary way in which pawnbrokers keep 
such articles in other pawnshops, although in some, it seems, the 
extra precaution of examining pledges at the end of each day is 
taken, rather, however, for the purpose of seeing that they are to 
the value of the sums advanced upon them, than for fear of loss. 
Some twenty to forty pledges of this class, according to the ap- 
pellant's evidence, would be taken per diem — probably 25 would 
not be far from a correct average — but as a very great proportion 
are also said never to be redeemed, it is but a percentage of that 
number which are given back during the same period. There is 
no evidence as to what this percentage is, but did it amount to 
the full number stated, the circumstance would not vary the view 
I take of this case. 

There is no question but that under the provision of section 
11, Ordinance 7 of 1872, the appellant is liable for default or neg- 
lect for goods embezzled or lost, evidence of which is not fortli- 
coming in this case. The degree of negligence for which the ap- 
pellant is liable is not either in dispute. It is properly described 
as not taking such care of the pawned articles as an ordhiarily 
prudent man would take of his property of a like description. 

Several cases have been cited, none quite similar or analogons 
to the present, but all affirmatory of this principle, and one case 
has been cited very relevant as at least shewing that the Courts 
should not go beyond it, determining at least that a gratuitous 
depository is not bound to multiply precautions beyond this 
standard ; and the English law does not require in general any 
higher degree of care in the pawnee of personal chattels. The 
question of what amounts to negligence is not always easy of 
determination, but to my judgment the clearest possible j>Ww2'? 
facie case is made out against a person who allows access to articles 
of this class to such a number of an undescribed set of persons 
who, during the whole of the day, had access to these drawers, 
unlocked and unsecured and free from any restraint. From a 
common sense point of view, it would appear to me as clear as 
anything can be, that an ordinarily prudent man would have 
confined access to such property strictly to himself or so many 
persons, if practicable, of his most confidential employes, as were 
necessary for lodging in these drawers and taking from them the 
pledges of the day. He would certainly have secured them from 
the obvious opportunities of pilfering, or stealing, or whatnot, 
by locks and keys, doors or other appliances which would secure 
to himself and his more confidential servants alone access to 
them. Surely prima facie, no ordinarily prudent man would allow 
his valuables to run such a risk as they must have done in this 
case. To this it is replied that the exigencies of the pavmbrok- 
ing business require this insecurity, the inconvenience of locking 
and unlocking drawers or removing sufficient safeguards against 
loss or theft being too great for the ordinary course of busi- 
ness to go on. I am quite at a loss to understand this argument 
as applying to deposits varying in number from twenty to forty 



STRAITS SETTLEMENTS. 



163 



only a day, probably, as I hiive said, of an averag^e not exceeding 
25. So many turnings of a key or fastenings of a secure padlock 
or closing of doors do not seem to me to involve any but a slight 
amount of labour, and one that could well be undergone Tvithout 
any practical inconvenience to the business. This argument 
might have a more rational application were the question one 
having reference to the whole business of the shop, which com- 
prises some 200 to 300 deposits daring the day, and these, articles 
of small value such as form the bulk ot* a pawnbroker's stock. 
But as applicable to a few valuable deposits I fail to see its vali- 
dity, and moreover there is some evidence to shew that in respect 
of his money the appellant exercises a much greater care, keeping 
this in his strong box and gi\"ing out only a few hundred dollars 
at a time to be kept in these open drawers and then advanced by 
himself or bis assistant clerks. I think there is sufficient relation 
in point of value between money and the articles popularly com- 
prised in the term jewellery — that is gold and silver ornaments 
and precious stones — to say that an ordinarily prudent man would 
bestow the same care in ensuring the safe custody of each class 
of property. It is only in small quantities, and for immediate use 
that he places his money where he keeps the jewellery open the 
whole day. 

It is said again that this is the customary way of managing 
those pawnshops in Singapore. But on the hypothesis that it is 
so, unless the custom is in harmony with the principle governing 
the amount of care required, I do not see its value. If the whole 
of the pawnbrokers of Singapore are customarily negligent, neces- 
sarily the custom is a bad one ; but I know of no custom proved 
which allow^s a dozen persons of all grades access to deposits of 
value, although ifc may be that generally the places of deposit are 
not locked up during the day. Compare this case with the facts 
in Giblin v. McMullen, 2 L. R. P. C. 317, before referred to, and 
let us ask what the Court would have said, had in that case all the 
employes of the defendant's bank had access during bank hours 
to the strong-room where plaintiff's securities were kept — no res- 
Iraiut by locks, bolts, or limitation of the use of the key to those 
looks to one or more confidential servants. I can hardly doubt 
the view which would have been taken in such a case. [The 
learned Judge here referred to the particulars of this case.] The 
unsuccessful prosecution by the appellant of one of his clerks for 
embezzling of these or similar articles tends also to the con- 
elusion that a3 a matter of fact the respondent's property was 
not improb.ibly taken by some of these persons who, in my judg- 
ment, were not proper persons to have access to the place of its 
deposit. 

Under these circumstances the decision of the Magistrate 
must bo affirmed and the respondent retain the compensation 
awarded him. 



Ford, J. 
1883. 

BoBT Ah 

Sam 
v. 
Seow Ah 
' Seono. 



164 



MAGISTEATES' APPEALS. 



KOH BOO AN V. TIOH JEE. 

PlKAKO. A laborer contraotod, in consideration of certain advances for his passao^e 

money. &c., and a promise bv the emi)k)ver to jtay liim small monthly washes, to serve 

Wood, J. his employer, as a laborer on his c>:t.ito, for a i)eriod of 3Ct) days ; and should he 

1883. borrow of his emidoyer sums of money in excess of the wa^^es and advances agreed to, 

that ho would not abscond or run away or otlierwL^je leave the estate before having paid 

Sept. 13. the amount of work agreed to, or tlie monies borrowed in excohs of his due. He there- 
after worked out his :W0 days, but during this time drew monies in excess of his 
due. After the 3(50 dn^ s were over, he refused to work any longer under the contract 
at the wages therein s})ecified, but having drawn in excess of his due, he remained -on 
the estate ready to work at the usual wages of tlio C'juntr}^ and neither absconded, ran 
away or otherwise left the Estate. Tho employer considering he was entitled to the 
laborer's services lx»yond the 3U0 days, until the amount drawn in excess of the man's 
due for that period was paid oflf, by wages stipulated for in the contract, charged the 
laborer under section li, clause 5 of Ordinance 1 of 1SS2, with absenting himself from 
his employer's service, — 

Held, on appeal, affirming the decision of the Magistrate, that there was no 
absenting himself [by the labourer] from his employer's service, as there w^as nothing 
in the contract re(piiring the labourer to work beyond the 3G0 days ; that the lalK)rer 
had done all he contracted to do in consideration of his being in his employer's debt, by 
remaining on the estate without absconding or running away or otherwise leaving the 
Estate, and the Magistrate was right in dismissing the case no sooner these facts 
appeared. 

This was an appeal from the decision of J. K. Bircli, Esq., 
Magistrate of Province Welleslpy. The facts giving rise to it 
. and the question involved in same, sufficiently appear in the judg- 
ment. 

Thomas for appellant [the employer]. 

D. Logan [Solicitor-General] for the respondents [the Magis- 
trate and laborer]. 

Cur, Adv, Vnlt. 



October 22. Wood, J. This was an appeal against the decision 
of the Magistrate, the facts being as follows: 

By agreement in writing, dated 6th July, 1880, after reciting 
that the respondent Tioh Jee, a Chinese coolie, with two other 
coolies were indebted to a certain Ee Kee for passage money 
from China to Penang and other monies, and had requested Koh 
Boo An the appellant, to come forward and pay for each of them 
the sum of §26, which sum is admitted to have been paid, it was 
agreed as follows : 

1. The said laborers will proceed to Ki-ian, [where appellant's estate 
was situated,] and work their 300 dmjs' work each, at a rate of wages of 33l3 
per annum. 

2. Their employer shall give them their daily food in sufl&cient quantity, 
and should they during their period of engagement absent themselves from iheir 
work through mere laziness or borrow from their employer sums of money in 
excess of the amount agreed to, they shall not abscond or run away or otherwise 
leave the estate, before having paid the amount oftoork agreed to or the monies 
borrowed in excess of their due. 

3. [Provides for the supply by the employer of certain garments or 
other such matters]. 

4. Should they become sick, their employer will provide them gratis 
with medicines and medical attendance, but should they contract venereal 
diseases, not only their employer will charge them for medicines and medical 



STRAITS SETTLEMENTS. 165 

attendance, but also make them compensate for the number of days they Wood, J. 
have absented from their work. 1883. 

5. The usual Chinese holidays shall be o])served as days of rest. Koh"b A 

6. Their employer shall note on the l)ack of this agi'eement, the v. 
number of days they have absented themstlves from tlieir work through Tioh Jwe. 
laziness, or on account of venereal disease, together with the amount of 

money they have received in excess, and Ku])mit to tlie Protector of Chinese, 
or if beyond this Colony, to the local authority, that it may be examined, and 
' the official chop impressed thereon, otherwise the annotations behind the 
contract will be considered of no value. 

Under this agreoment, Tioh Joe worted for 360 days, but 
had taken further advances from his employer, and had afterwards 
absented himself from the employer's service, or rather, as stated 
in the case as furnished by the Magistrate, refused to work any 
longer on the terms agreed on in tlie contract. 

The respondent Tioh Jee, the coolie, was charged before the 
Magistrate for that '' having received an advance in money and 
'• agreed to work as laborer on the Perak Estate for 360 days, he 
" did, without reasonable excuse, absent himself from his employer's 
" service, and thereby committed an offence punishable under sec- 
" tion 14, clause V. of 0rdinance4 of 1882." This Ordinance, so 
far as is material to this case, is as follows : 

Section 1. The inteii)retation clause " contract of service" shall include 
any contract to labor, whether m writing or verbal, otherwise than as a 
domestic or menial servant for any period of time or to execute as laborer 
any work. 

By section li, which treats of " adjudication" by the Magis- 
trate, it is enacted : 

Clause V. If the complaint relates, in the case of parties bound by a 
written contract of sei'vice, to neglect or oDiission on the part of the party com- 
plained against, without reasonable excuse to be allowed by the Magistrate 
to fulfil the contract of service, or if the laborer shall, without reasonable ex- 
cuse to be allowed by the Magistrate, omit or refuse to enter on or commence 
his service, or if the laborer, without rcnsonahlo e^ccusc to be allowed by the 
Magistrate, absents himself from his employer'' s service, the Magistrate may 
order the .party complained against to fulfil the contract, and, if he thinks 
fit, may order such party to find forthwith good and sufiicient security, with 
or without sureties to the satisfaction of the Magistrate, for the fulfilment of 
the contract, or may sentence him to rigoivnis imprisonment for any period 
not exceeding 3 months, and in the case of absence from or cessation of ser- 
vice, the Magistrate in addition to ordering that the wages of the party com- 
plained against be forfeited to his employer during the period of such 
absence, or cessation under the provisions of section 20, may order that the 
party complained against shall pay as a i;)enaity. such sum not exceeding the 
amount of 30 days' wages as the Magistrate may direct ; and if the order direct 
the fulfilment of the contract, and the finding of good security as aforesaid 
and the party complained against shall neglect or refuse to comply with such 
order, the Magistrate may, if he shall think fit, sentence such party to rigor- 
ous imprisonment for imy term not exceeding six months. 

On the case being called on before the Magistrate at Nibong 
Tebal on 6th January, 1883^ it was admitted as above stated, 
that Tioh Jee had worked more than 360 days, but the employer 
was unable to state if any of the contract absence was still due as 



l66 MAGISTRATES' APPEALS. 

Wood, J. debts incurred by Tioh Jee while on the estate, had been included 

^^^' as part of the original advance. 

FoH Boo An The Magistrate considered that this was not a complaint 

V. cognizable under section 14, clause V. of Ordinance 1 of 1882, no 

Tioh J»e. breach of contract having been shewn, and the complainant having 

his remedy in a Civil Court, and dismissed the comjDlaint without 

taking evidence, the facts being admitted. The case came before 

me on September 13tb, 1883, on appeal from the Magistrate's 

decision. 

Mr. Thomas for the appellant Koh Boo An [the employer], 
contended in the first instance, that the Magistrate had not made 
a proper return of the proceedings on the hearing before him, but 
I held that, under the circumstances of the case, the employer on 
stating the facts of the case which the Magistrate considered 
insufficient, those facts may be taken as proved, and it was not 
imperative on the Magistrate to proceed with a formal hearing, 
but that the facts properly came before me on the case as stated 
by the Magistrate. 

Mr. Thomas on the merits of the appeal, further contended 
that by a fair construction of the terms of the contract, the coolie 
undertakes to work off the amount of advances received, and that 
if he fail to do so the Magistrate may, and should in this case 
have pronounced a penalty under section 14, clause V. of the Ordi- 
nance I of 1882. This Contract being a " contract of service" 
within the meaning of the Ordinance as being a " contract to 
labour" as explained by the interpretation section, section 1. 

The Solicitor-General for the respondent [the coolie], con- 
tended that as this is a penal Statute, its terms must not be 
extended unless the language of the Ordinance is clear on the 
point — that in this case, the " contract of service " cannot mean 
the entire contract, but only so much of it as relates to the term 
of 360 days which was the service contemplated in the contract, 
and the only distinct term of service so contemplated, and that 
a contrary reading would let in great hardship inasmuch as the 
term of labour might be almost indefinitely extended by means of 
loans advanced by the employer, and further that as a matter of 
construction of the contract, there is no contract to labour to work 
off the advance at any fixed rate, but only "not to abscond, or run 
" away, or otherwise leave the estate before having paid the amount 
"of work agreed to [viz.y 360 days] or the monies borrowed in 
" excess of their due," and that in this case, the coolie has worked 
out the 360 days and has not absconded or run away, or otherwise 
left the estate, but was ready and willing to work at the usual 
wages of the Country though not at the wages fixed by the con- 
tract, and is ready on the spot to answer any suit for the amount 
of his debt at the hands of the employer. 

In this latter view of the case, I fully concur. The Contract 
in its entirety I look upon as a " Contract to labour," and as such a 
. " Contract of Service " within the meaning of section 14 of the 
Ordinance 1 of 1882, clause V., and the Magistrate has authority, 
as it appears to me, to act in the case of such a contract as this, to 
deal with any laborer who absents himself from the service of the 



STRAITS SETTLEMENTS. 167 

employer if he had contracted to serve him after the completion of Wood, J. 

the term of 860 days had expired in order to work out the equivalent ^ 

in labour, of the advances in money made to him, but by the Koh Boo An 

Contract in question I do not find that the laborer has made any v. 

such engagement. So far as I see he has acted within his Contract '^^^^ •^"• 

by not leaving the Estate after the completion of his 360 days' 

work, and in the absence of any specific engagement to work for 

the employer after their 360 days' work are concluded, I cannot 

think there has been any failure on the part of the coolie to fulfil 

the terms of his engagement, and the appeal will in consequence 

be dismissed with costs. 



MAT SALLEH v. SARAH. ' 

The entry and t iking possession of property under the honA fide belief of a Pbnano, 

right thereto, and in assertion of such right, although accompanied by high-handed 

acts, which insult or annoy the person in possession, — provided such acts are merly Wood, J. 
incidents to the assertion of title, and not done with the primary intention of 1883. 

insulting or annoying, — do not make a person liable to be convicted under sections 

441 & 447 of the Penal Code. . Dec. 10. 

The appellant Mat Salleh, had been convicted by J. K. 
Birch, Esq., Magistrate of Province Wellesley, of criminal tres- 
pass under section 447 of the Penal Code, and sentenced to two 
months' rigorous imprisonment, and to pay a fine of $25 which 
was to go to the complainant [respondent] , as compensation. The 
evidence for the prosecution was to the effect that the respondent 
was possessed of a house in Province Wellesley, but having occa- 
sion to go to Kuala Muda, she left the house with all her property, 
consisting of wearing apparel, crockery and goats, in the place. 
During her absence from the house, but immediately after her 
return from Kuala Muda, the appellant entered the said house, 
and attempted to pull it d(5wn. She called certain neighbours, 
who came, and on being informed by the appellant that he had 
purchased the house of one Samat, they pointed out a house to him 
which they said was Samat's, and told him the house he was 
attempting to pull down was never Samat's, but the respondent's. 
The appellant thereupon desisted and left. Two days after how- 
ever, he rerturned with certain workmen, and again began taking 
down the house ; he was again spoken to by the respondent and 
neighbours, but in spite of their protestations, he threw out the 
apparel and crockery, breaking and smashing them in the act, 
released the goats, and took the house completely down and 
carried away the materials. The appellant denied this account 
and called evidence to the effect that the house in question was 
Samat's, and had been purchased by him [Samat] of one Mun ; 
that Samat had thereafter sold the same to the appellant, in the 
presence of the respondent, who then raised no objection thereto, 
that shortly after the purchase, he took the house down and 
carried away the materials two days after ; that the house was 
empty at the time he entered it, and the story told regarding the 



168 MAGISTRATES' APPEALS. 

Wood, J. crockery, goats, &c., was an exa<,'|nreratiou of the facts of the case, 

^.^ and false. The case as stated by the Magistrate did not shew 

Mat Sallsh wliat he exactly found as to matter of fact, beyond that in his opi- 

V, niouthe appellant was guilty of criminal trespass, and he' accor- 

Sa&au. dingly sentenced him as stated. The appellant having appealed, 

Van Somercn for appellant now contended that the entry was 
in hand fide assertion of a right, or at least under the impression 
that the house was the bond fide property of Samat, which the 
appellant had purchased. To come within section 441, which 
defines what criminal trespass is, the entry must be done with the 
primary intention " to commit an offence, intimidate, insult 
or annoy." Here the primary intention of entering was in asser- 
tion of right, and the annoyance resulting from the act was not 
the primary object of the entry, and could not make the act cri- 
minal. The criminal law had here been carried too far. He 
relied on Isicar Chandra Kurmnhcr v. Sital Dass Mither, 8 Beng. 
L. R. App. 62 ; Gokul Chund v. Shith lioshun Lai, 2 N. W. P. H. Ct. 
Rep. 82 ; Shristadhar Parol v. Lidrobhosun Chukerbutty, 18 W. R. 
Or. 25 ; Mayne on the Penal Code, '355 ; Currie on the Fenal Gode^ 355. 

Ross for respondent, contended that the cases cited were not 
applicable. In this case there was an excess in the manner of 
taking possession which shewed the intention was not merely to 
take possession of the house, but to insult and annoy. The 
Magistrate might reasonably be held to have found that the house 
was the respondent's and in her possession ; that appellant had 
reason to know that he had no right to it from the information of 
neighbours, who were called. He goes away and returns the 
second day with full knowledge of the facts, and persists in his 
illegal acts; it was then, the whole affair was accompanied by 
violence and outrage. Peg. v. Ravi Dyal Mundle, 7 W. R. Cr. 28 ; 
Reg. V. Jenut Bcbee, 1 W. R. Cr. 4G ; Reg. v. 8arivan Singh, 11 
W. R. Cr. 11 ; Olcenealy on the Penal Code, 257, 8. 

Van Somereu in reply, contended that on the evidence it must 
be taken that the appellant only maintained what he considered 
his right ; any excess of force in asserting same, aft'orded no 
ground for his being proceeded against criminally. Reg, v. 
Pearso7i, 5 L. R. Q. B. 2:37. 

Wood, J, The law being clear to me that the act is not 
criminal within section 4U of the Penal Code, if the appellant in 
this case acted as he did, on a bond fide belief of right, and it not 
being clear to me that the Magistrate in the Court below, had this 
view of the law clearly before him, I think I must remit the 
matter to him for a rehearing, leaving him to find, whether the 
appellant [the defendant] did as a matter of fact, do the several 
acts complained of, viz., the entry on the first occasion and the 
entry on the second occasion, and scattering the crockery and 
fowls, with the primary intent to annoy, or merely as incidents to 
a bond fide claim of title, and belief in his right to do so. Both 
parties will have liberty to call further witnesses. 

Case remitted accordingly. 
18th Februaryy 1884. The case having been remitted and 



STRAITS SETTLEMENTS. 169 

further evidence taken by the Magistrate, the same was now Wood, J. 
returned into Court bj'' him, without any finding as to whether the ^^^' 
acts done by the defendant were done in the bona fide assertion of mat Salleh 
right, br with intent to injure or annoy. The nature of the v. 

further evidence taken was much the same as the previous evi- Sarah. 
denee called by the appellant, that he had purchased the house of 
one Samat ; that the respondent Sarah was not the owner thereof, 
but was present at such sale and never objected. The appeal now 
came on for final hearing. 

Boss for the respondent, on the appeal being called on, moved 
that the case might be again remitted to the Magistrate to make 
his finding as directed. 

Von Someren for appellant submitted, as the whole of the 
evidence was now before the Court, it coukl pronounce a judg- 
ment on such a question, and that to send the case back to the 
Magistrate, and the appellant, a poor man, backwards and for- 
wards, would be a great hardship. 

\^Wood, J. considered that as the Magistrate was silent as to 
his finding, the presumption was, that he found against the appel- 
lant, and adhered to his original decision.] 

Van Someren then addressed the Court on the merits, submit- 
ting that it was a mere question of title, — that the criminal law 
had been strained in being applied to this case, which at most 
only shewed a wrong for which the respondent had a civil remedy. 
Ross contended that the act of the defendant was criminal; 
he liad been warned not to remove the house, had stopped that 
day and had come again two davs after and persisted in removing 
it. 

[Wood, J. remarked thatthat rather told in his favor as it shew- 
ed that he was not a man who wished to act rashly, — but having con- 
sidered the objection of the respondent, he was firmly convinced in 
his own mind that he had a right to the house, and so removed it.] 

Ross then contended that the throwing of the crockery and 
property out of the house, the letting go the fowls, ducks and 
goats — the removing of the house over the head of the respondent — 
in fact acting in so high-handed a way, — were all acts done to 
insult or annoy — and from the whole case, and from the finding of 
the Magistrate, must be taken to have been done with that intention. 
Woodj J. The case being now remitted with further evidence, 
I observe that though the case was sent back for the Magistrate 
to hear and determine anew, he has not in fact found anything, 
but has heard and not determined. But assuming that the ori- 
ginal finding t>f the Magistrate is supported by his present return, 
I am of oi^inion that the Magistrate has leant too much to a 
criminal view, in his dealing with this case. Although some of 
the acts of the defendant might h.ave been the cause of injury and 
annoyance to the complainant, yet I think, he may reasonably be 
taken to hava done what he did, in pursuance of a right. The 
evidence is not sufiicient in my opinion, to support a criminal 
charge. The conviction will therefore be quashed. 

ConvidxQn quashed^ 



170 MAGISTRATES' APPEALS. 

EEGINA V. KHOO SEE HEE & ORS. 

Pbnang. Tho appellants were members of a secret society, and were found standing 

in front of the Society or Kongsee House, in which apparently several others were 

Wood, J. assembled. They, in company with the others, fled on the approach of the Police, 
1884. who visited the said house in consequence of information that the members of that 

Society were gathering there, with the view of attacking another society. The 

Feb. 25. appellants were however arrested by the Police, and in the Kongsee House were 
found a great number of clubs or poles, apparently intended as weapons of ofifence : 
some of these were thrown about the house, while others, in bundles, were 
hidden, 

HcW, [ quashing the adjudication of the Magistrate who convicted the appel- 
lants of being members of an unlawful assembly, under section 149 of the Penal 
Code], that there was no reasonable evidence that the appellants formed part of 
the assembly, or had any common object of committing a breach of the peace. 

The word *' assembly " in section 149, has the ordinary meaning of the word, 
and means a meeting of persons in the same place, so as to be able to communi- 
cate freely with each other. 

The appellants were convicted bj C. W. S. Kynuersley, Esq., 
of being members of an unlawful assembly, under section 149 
of the Penal Code. The evideuce shewed that the Protector of 
Chinese, having been informed that the members of the Ho Seng 
Secret Society or Kongsee, contemplated an attack on the 
members of another society, and that they were gathering iii 
numbers at the Kongsee House of the society, — immediately set 
out with a body of Police for such Kongsee House. On arrival 
there, they saw several persons, both inside and outside the 
Kongsee House, who, on their approach, ran off in different direc- 
tions. The six appellants were among those standing in the 
verandah of the Kongsee House Tvhen the Police approached, 
and ran into the house. They were taken into custody, and the 
house searched, a great number of sticks, from their appearance 
evidently intended as clubs or weapons of offence, were found in 
various parts of the house, some in bundles, hid behind the doors 
and elsewhere. These appellants, it was shewn, were members 
of the Ho Seng Kongsee. The informer was not called, and no 
further evidence was laid before the Magistrate. The defendants 
called no witnesses, but severally alleged they had gone to the 
Kongsee House as a place of rest, each having come from distant 
parts of the Island. The Magistrate having convicted them, the 
present appeal was brought. 

F. H. Oottlieh for the appellants, contended there was no 
evidence to shew the assembly was unlawful or that a breach of 
the peace was intended, beyond the hearsay evidence of the Pro- 
tector. 

Woody J. remarked there was apparently no assembly within 
the meaning of section 149, and called on 

jRoss [f or the Solicitor-General], who contended there was 
obviously a gathering at the Kongsee House, of Ho Seng's, exceed- 
ing five in number, and this was a sufficient assembly ; and as to 
the unlawfulness thereof, the fact of the men gathering iu 
large numbers, of running away at the approach of the Police, 
and the weapons and clubs found in the Kongsee House, shewed 
the object of the gathering. 

Wood^ J. I am of opinion that within the ordinary meaniog 



STRAITS SETTLEMENTS. 



171 



of the word assembly, — which I understand to be a meeting of 
persons in the same place, so as to be able to communicate freely 
with each other, — there was no reasonable proof that the six 
appellants formed part of any such assembly ; and I am further 
of opinion that the facts shewn in evidence, although tbey may 
form cause for just suspicion as against the appellants, do not 
reasonably shew any common object of committing a breach of 
the peace. 

I may add, that I entertain a strong moral conviction that 
the appellants were contemplating a breach of the peace, and 
although I am bound to decide that the charge in its present form 
was not sustained by the evidence, yet I do not desire to express 
any opinion reflecting upon the conduct of the Magistrate or the 
Police, in dealing with the case. The conviction will be 
quashed. 

Conviction quashed. 



Wood, J. 

1884. 

Keg. 

V. 

Khoo See 
Hee 

&0&S. 



REGINA V. AW ENG THO. 



'* Occupier," in section 2 of the Gaming House Ordinance 13 of 1879, means a 
person having actual, and not merely constructive occupation, of the place alleged 
to be the Gaming House. 

In order to prove that a place is used as a Gaming House, so as to render the 
owner or occupier thereof liable under the Act, it is necessary to shew, by direct 
evidence, that the place had been so used ; or, if there are convictions against per- 
sons, for having been found gaming in such place, the formal records of such con- 
victions must be produced, and uiud voce evidence of the fg^ct of such convictions, 
is inadmissible. 

The appellant was charged before W. Egerton, Esq., for that 
be, on the 2nd June, 1883, and 31st December, 1883, being the 
occupier of a house No. 131, Beach Street, Penaiig, did keep and 
use the same for the purpose of carrying on the business of a com- 
mon gaming house, an offence punishable under section 2, clause 
1, of the Gaming Ordinance 13 of 1879. 

From the evidence, it appeared that the appellant had a 
general store in the front portion of the premises No. 131, the 
back portion of which was used as store-rooms. The house ex- 
tended from Beach Street to the sea, and was one large building, 
at the back of which, upstairs, was a room with an outlet leading 
to the roof, with a sky-light just above it. To the house there 
were two staircases, one leading up to the front, and the other to 
the room before described ; at the top of the latter staircase, was 
a folding trap-door. It was prgved, that in order to get to the 
staircase leading to the said room, it was necessary for one to 
enter through the general store kept by the appellant. The res- 
pondent [the Inspector of Police in charge of the case], declared 
he had known the house for tlie past twelve months to be a 
common gaming house, and that on the said 2nd June, 1883, he 
had arrested 8 men in the room, and had charged them before 
the Magistrate, with being present in a common gaming house, 



Fenano. 

Wood, J. 

1884. 

May 6. 



Tuo. 



172 MAGISTRATES' APPEALS. 

Wood. J. when they wore fined §5 each, — he also gave the number 

^^* of this ease as No. 2476, — and further stated that on the 

Kko. 23rd December, 1888, 18 men had been arrested in the same place, 

V. and fined $10 respectively on a similar charge; — and also thab on 

-^^,^^^^ the said 81st December, he had arrested 7 other men in the same 
place, who, on being charged with the lil^e offence, were ako 
severally fined §10 ; that these convictions had never been reversed 
or appealed against, and were still in force. A clerk to the Munici- 
pality was also called, and he produced a Eegister of "occupiei's" 
of premises in George Town, Penang, in which Register appeared 
the name of appellant, as sole " occupier" of the premises No. 131 , 
Beach Street ; he also stated he recollected 6 months previously, 
the appellant coming to the office of the Municipal Commissioners, 
and paying the assessment for the whole building. 

The appellant in his defence stated that he only rented the 
front portion of the house, which he used for tlie purposes of his 
trade, and knew nothing whatever of the gambling — he called one 
witness as to his character and trade. The landlord of the house 
was called by neither party. The Magistrate was of opinion that 
it had been proved that the appellant was the " occupier " of the 
whole of the premises in question, and had allowed part of those 
premises to be used for the purpose of carrying on the business of 
a common gaming house, and accordingly convicted him under 
section 2, clause 2, of the aforesaid Ordinance, and sentenced him 
to a fine of $250. The following are the sections of the Ordi- 
nance in question, material to this case. 

"2. Whoevor commits any of the following offences, 1st. Whoever, being 
the owner or occupier thereof, keei)s or uses a place for the purpose of caii'y- 
ing on the business of a common gaming house ; 2n(l. Whoever, pennits u 
place of which he is owner or occupier, to bo kept or used by another perstin 

for any such purpose as aforesaid shall be pimishable 

able, &c., . . . . " 

" 12. Whenever any passage, staircase, or means of access, in a place 
lawfully entered as aforesaid, to any part thereof is unusually narrow or 
steel) or othei^wise difficult to pass, or any part of the premises is provided 
with unusual or unusually numerous means for preventing or obstructing an 
entry, or with unusual contrivances for enabling persons therein to see or 
ascertain the approach or entry of persons, or for giving the alarm, or for 
facilitating escape from the premises, it shall be presumed, until the contrary 
is shewn, that the place is a common gaming house, and that the same is sj 
kept or used by the occupier thereof; " 

The appellant now appealed against the aforesaid conviction. 

Thomas for appellant. "Occupier" of the premises under 
the Ordinance means a iZe/ac/o occupier. The Inspector speaks 
of defendant as occupying only the front shop, and the proof of 
payment of assessment by the appellant is no proof of occupation 
at all, — there was also no proof that the defendant was actual 
occupier during the several periods when the alleged gamblers 
were arrested. The fittings of the house, and the alleged gaming 
room, were not unusual, or such as come within the provisions 
of section 12, so as to raise a presumption as to the place being a 



Tho. 



STRAITS SETTLEMENTS. 173 

common gaming honse. There Wiis no legal proof that it was a Wood, J. 

common gaming house, nor was there any legal proof of the al- ^^' 

leged convictions by production of the records. The evidence of Req. 

the Inspector was no evidence thereof, in point of law. v. 

^ Aw Enq 

Ross \_acting Solicitor-General] for respondent. All that it 
was necessary to prove was, that appellant was occu]3ier of the 
room, between the dates the men were found gambling, and that 
gamblers had been arrested on and between those dates. The de- 
fendant was proved to be the occupier of the whole premises by 
the evidence of the Inspector and of the Municipal clerk, the 
latter of whom also spoke of payment of assessment for the entire 
premises by the appellant. " Occupier " did not mean de facto 
occupier, as section 2, clause 2, speaks of the "occupier" permit- 
ting others to use the place, — from which it followed, that the 
occupier's occupation, was only through that of the persons he so 
permitted. The evidence shewed that the gaming room could 
only be entered through the shop which the appellant himself in 
his defence admitted to be in his occupation; he could not there- 
fore but have known of the gambling, by reason of the persons 
who must have gone to and fro. The room was proved to be 
sued by gamblers by the evidence of the Inspector, who, of 
his own knowledge, spoke of having arrested such persons there. 
It was not necessary to produce the formal convictions of the 
men. 

Woody J. I am of opinion that no occupation within the 
meaning of the Ordinance has been proved. Proof of actual, and 
not constructive occupation, is, in my judgment, necessary to sus- 
tain suck a conviction as this ; the Inspector only proves that the 
front shop was occupied by the appellant, and the evidence of the 
Municipal clerk, only shews that defendant paid assessment for 
the wliole house. This latter however, is no proof, prima facie 
even, of actual occupancy, for the landlord or his tenant, may 
very well pay, according to arrangement, assessment for a portion 
not occupied by him. There is also in my judgment, no legal 
proof that the room in question was used as a common gaming 
house, proof should have been given by the direct evidence of the 
Inspector or others, that the premises were so used,— or if, as in 
this case, there were convictions, such convictions should have 
been proved in regular form by the production of the convictions 
themselves. The Inspector's evidence was but parol evi- 
dence of matters of record, and so inadmissible ; it should have 
been rejected by the Magistrate. The conviction will be 
quashed. 

Conviction quashed. 



174 MAGISTRATES' APPEALS. 

TAN SIM TEE r. OPIUM FARMEK. 

Penano. Where chandoo is not found in the actual occupation of the prisoner, and 
'. there is any {(round for supposing that the place in which it is found, is not in his 

Wood, J. usual occupation,^fair evidence should be adduced by the prosecution to shew, 

1884. ^^t ^® ^^^ some sort of occupation of that place, in order to make the actual 

occupier's occupation, the occupation of the prisoner. 

May 5. 

This was an appeal from the decision of W. Egerfcon* Esq., 
Magistrate. The facts were these: the appellant was a trader 
living in one of the new roads leading off Bridge Street, and was 
an opium-smoker. The respondent had obtained a search warrant 
to search his house for illicit chandoo ; and on his Eevenue Officers 
and Police attempting to enter the house, found the front door 
closed against them. It was about seven in the evening. The 
door was broken open, and an entrance effected, and on searching 
the prisoner's room, the Police found a small horn-pot of chandoo 
remains, which, it was said, on being tested, was not farm chandoo*; 
a pipe which was skill warm, and an opium-smoking lamp which 
had evidently just been put out. In an adjoining room, to which 
access could not be had from the prisoner's room, was found a tin 
of illicit chandoo hidden in a hole, and partly covered over with 
rubbish. This room had no door to close same, and was im- 
mediately by a passage [in the house] leading to the tap at the 
kitchen, which passajje and tap, it was said, was used by a great 
many persons, friends of the prisoner, as also by inmates of the 
house. This room was used as a lumber room, and was also used 
by the prisoner's servant as a sleeping place. After all the evidence 
had been taken in this case, but before the Magistrate had found 
his verdict, the Usher of the Police Court was called, and proved 
a previous conviction against the prisoner a few months before, 
when he pleaded guilty to a charge of a similar nature and was 
fined $400. On the close of this evidence, the Magistrate convicted 
the appellant on the present charge, and sentenced him to a term 
of imprisonment as well as to a heavy fine. The search was made, 
and the said tin pot of chandoo found on the 20th February, 1884; 
the case was tried by the Magistrate on the 10th of March following. 
The formal conviction which was dated the 10th March, and al- 
leged the adjudication to have taken place before that day, alleged 
the offence to have been committed on the 20th March^ 1884 ; it 
also omitted the word " knowingly " before the words *' had in his 
possession" ; and the chandoo was said to be "in the possession, 
custody and control" of the appellant instead of one of the alterna- 
tive cases. The prisoner appealed against the conviction. 

Van Someren for appellant, submitted that the evidence did 
not shew the chandoo to have been i^i the possession, custody, or 
control of the prisoner, — sec. 13 of Ordinance 4 of 1870. If it was 
in the possession or control of anybody, it was in that of the pri- 
soner's servant, and if the present conviction could be upheld, any 
gentleman might be convicted of having illicit chandoo, whose 
servant had hidden away some, in his [the servant's] private room ; 
the Magistrate must have had some doubt of the prisoner being 
cognizant of his servant's possession of the chandoo, and had there- 



STRAITS SETTLEMENTS. 175 

fore omitted the sci&nter in the conviction. He also contended the Wood, J. 
conviction was bad for want of a scienter^ for stating the offence ^f^* 
to have been committed on a date later than the adjudication — for Tan Sim Tek 
the cumulative form of the charge ; and because there had been a v. 

wrongful admission of evidence, the previous conviction. J^^^^^ 

Ross, for the respondent, as to the last point submitted that as 
no miscarriage of justice had been caused, the improper admission 
of evidence was immaterial, [section 34, Appeal Ordinance 12 of 
1879] ; as regarded the scienter^ the date of the offence, and the 
cumulative form of the conviction, they were all matters of form, 
and did not go to the merits of the case, and could be amended 
under section 33 of the Ordinance ; and as regarded the merits, the 
whole facts pointed to guilty knowledge, and the horn pot of illicit 
chandoo remains, found in the prisoner's own room, shewed con- 
clusively his possession of and dealing with illicit chandoo. It was 
a case, to say the least, of strong suspicion, and the Magistrate 
having come to the conclusion that the prisoner was guilty, this 
Court would not disturb the verdict. 

[At the suggestion of the Court, and by consent of both parties, 
the conviction was taken as amended, and proper in form]. 

Woody J. I am of opinion that on the merits, the case, although 
one of strong suspicion, is not sufficiently strong to warrant the 
conviction. The chandoo was not found in the actual possession 
of the prisoner ; and in my judgment, where there is any ground 
for considering the room in which chandoo is found is not the room 
in the usual occupation of the person charged, fair evidence should 
exist that the person charged has some sort of occupation of that 
room, in order to make the actual occupier's occupation, the oc-. 
cnpation of the person charged. Such evidence I think, is wanting 
here, and the conviction will therefore be quashed on that ground. 
As the case however, is one which has disclosed great carelessness 
in the person who had the drawing of the conviction, I think I 
must call the attention of the Solicitor-General to the defects in 
that conviction, with the view to the matter being taken notice of 
by the Magistrate, and greater care in future secured. There is 
the error in date, 20th March for 20th February, there is the 
absence of the scienter, and there is the cumulative form of the 
charge — " possession, custody a7id control,'^ instead of " posses- 
sion," or '"• custody,'^ or " control,'^ according to the facts. 
Then again I must call attention to the further fact, as would 
appear from the form of the proceeding, that evidence of a previous 
conviction was ^ven before the Magistrate had made any decision. 
It is a well understood practice in criminal cases before the Court, 
to keep back such fact of a previous conviction from the mind of 
the Jury, until their verdict is given, and by a parity of reasoning, 
such fact or charge should be, if possible, withheld from the 
convicting Magistrate, before his decision. The conviction will be 
quashed, and the fine remitted. 

Conviction qvxished. 



176 



MAGISTRATES' APPEALS. 



In re S. S. CHI YUEN. 



SiNOAPORE. ^ Magistrate has no power under the Excise Ot'dinances 4 of 1870, G of 1S79 

or 4 of lvSS4, to order the forfeiture of a ship, on board of which illicit chandoo is 



POED. 

Ao. C. J. 
1S84. 

August 5. 



found. 

fiemhle. 



This Court is the proper tribunal for making such order, [a] 



Donaldson on beLitlf of the owners of the above-named steam- 
ship, had, on a former day, obtained a Rule calling on H. T. 
llaughton, Esq., Magistrate of Police, to shew cause why a writ; 
of prohibition should not issue, prohibiting him from ordering the 
forfeiture of the said steam-ship [until the master and owners 
thereof, had been brought before him in due coarse of law], f 
The facts giving rise to tlie case, sufficiently appear from the 
judgment. The following are the sections of the Excise Ordi- 
nances bearing on the subject : — 



" The importation of Chandoo or Opium Dross into any Settlement is 
prohibited, and any person who shall import or attempt to impoi-t Cliandoo 
or Opium Dross into any Settlement, shall be liable on conviction to a line 
not exceeding five hundred dollars or to imprisonment of either description 
for any period not exceeding six months, or to both fine and impHsonment, 
and for eveiy second or subsequent offence to a fine not exceeding one 
thousand dollars, or to imprisonment of either description for any period 
not exceeding twelve months, or to both fine and imprisonment, and 
the Chandoo or Opium Dross shall be forfeited. Any person having on board 
anjr ship on its arrival within the limits of the Colony, any Chandoo or 
Opium Dross except such as might properly be required for the use of the 
crew or passengers on the passage of such ship as sea 8tores,_ shall be deemed 
to have imported the same." [Ord. 4 of 1S31, sec. 7.] 

[For Section 7 B, see judgment.] 

" All convictions under this Ordinance may be had before a Magistrate 
of Police, and may be in the form set out in Schedule [R] ; and the provi- 
sions of the Indian Acts 13 of 1855 & 4S of 1860, for the aiTest, bail and 
detention of offenders, and for the issue of warrants, summonses and sub- 
poenas, and procedure, and for convictions and levy of fines under these Acts, 
shall, when not inconsistent with the provisions of this Ordinance, and not 
otherwise hereby provided for, bo applicable tj all cases under this Ordi- 
nance." [Ord. 4 of 1870, sec, 76.] 

" The period of imprisonment imposed by a Magistrate in respect of the 
non-payment of any fine under this Ordinance or in respect of the default of 
a sufficient distress to satisfy any such fin a, shall b3 such period of su3h des- 
cription, simple or rigoi-ous, as in the opinion of t-ie Magistrate will satisfy 
the justice of the case, but shall not exceed in any case the maximum fixed 
by the following scale, viz : 



Where the fine 

Does not exceed twenty-five dollars 
Exceeds twenty-five dollars but does 

not exceed fifty dollars ... 

Exceeds fifty dollars but does not 

exceed one hundred dollars 



That period shall not 
exceed 
Two months. 

Four months. 

Six months. 



with an additional two months for every one himdred dollars after the first 



[a] See The Friends, Admiralty Cases, Vol. II. of these Reports, p. 1. 

t The words within brackets were struck out on the argument of the Rule. 



STRAITS SETTLEMENTS. 177 

one hundred dollars of the fine, until a maximum period of twelve months is Fobd, 
reached, provided always that : — Ao. C. J. 

[aj if before the expiration of such period of imprisonment, such a pro- 1^84. 
portion of the fine be paid or levied as is not less than proportional to the Z 
unexpired portion of such period, the imprisonment shall terminate ; <2 s p 

[6] where a person is sentenced to both fine and imprisonment, and the Yuen. 
fine not being paid is commuted into imprisonment, such imprisonment shall 
he in addition to the imprisonment ordered by the original sentence.** [Ord. 4 
of 1884, sec, 78.] 

" On any trial before any Magistrate, and in any proceeding on appeal 
in the Supreme Court relatin;^ in any of the above cases, to the seizure of , 

contraband articles under this Ordinance, it shall be lawful for the Judges of 
the said Court and for the Magistrates, and they are hereby respectively re- 
quired to proceed to such trials and to the hearing of such ai>pejils on the 
merits of the case only, without reference to matters of form, and without 
enquiring into the manner or form of making any seizure, excepting in so 
far as the manner and form of seizure may be evidence on the merits." 
[Ord. 4 of 1870, sec. 79-] 

[For Section 81, see Judgment.] 

" All fines received imder this Ordinance shall, after the adjudication of 
a portion of the same, not exceeding one-half at the discretion of the Magis- 
trate, to the informer, be paid to the farmer prosecuting the case, or whose 
privileges have been infringed, and all articles, subject to restriction under 
this Ordinance, seized and forfeited, shall be given to the farmer prosecutini^ 
the case, except when such articles are declared by the Magistrate to be imfit 
for use, in which case they shall be destroyed. All ships forfeited under this 
Ordinance shall, if the Governor- in- Council so direct, be sold, and the pro- 
ceeds of sale thei'eof be paid into the Treasury for the purposes of the 
Colony, and all fines levied against any farmer shall be paid into the Ti'ea- 
8m*y for the use of the Colony. Provided always, however, that the said fines 
or proportion thereof, shall not be paid to the several farmers under the 
leases of their farms at present current, unless it shall be so ordered by the 
Governor- in- Council as to all or any of them, and failing such order, such 
fines shall, in the meantime, be paid into the Treasury for the use of the 
Colony." [Ord. 4 of 1870, sec. 841. 

"It shall be lawful for the Governor to suspend or stop any prosecution 
or proceeding instituted or proposed to be instituted under this Ordinance, 
and to direct the refund of the whole or any part of any fine or penalty, and 
the restoration of any ships ordered to be forfeited, and the restoration of 
the whole or any portion of any articles ordered to be foi-feited, to any per- 
son from whom the same may have been taken." [Ord. 4 of 1870, sec. 85.] 

Bonser [Attornsy-General] shewed cause. 
Bonaldson, supported the Rule. 

Cur, Adv. Vult, 

AufTiist 12. Fonly acting 0. J. A Rule Nisi callinnr upon 
Hancock Thomas Haughtou, Esq-, a Magistrate of Police, to shew 
cause why a writ of prohibition should uofc issue prohibiting him 
from proceeding farther in the matter of the forfeiture of the 
S. S. Chi Yuen until the master and owners have been broupht 
before the Court by dno course of law, was applied for by the 
master and owners of this ship on the 3 1st July, and granted and 
made retnrnable on the foUowin^jf Tuesday, the 5th of August. 
Upon that day, the Attornoy-Cleneral appeared aj^niinst the Rnle 
being made absolute, and Mr. Donaklson to sustain it. On the 
objection of the Attorney-General, with the consent of Mr. 



178 MAGISTRATES* APPEALS. 

PoRD, Donaldson, so much of the application was struck out as seemed 
1884 ^^ allow a jurisdiction in the Ma^fistrato^ if the master and owners 

' were brou<;ht before his Court by due course of law, and the ques- 

Jn re tiou for decision, was conlined to whether or no the Magistrates' 
YuKN^ Courts of this Colony have a ri^ht to order the forfeiture of a 
vessel for certain offences under the Excise Ordinance 4 of 1870 
and 4 of 1884. The master or owners were not, as a matter of 
fact, parties to the proceedini^ before the Magistrate. The case 
is one of very great importance, whether regarded from the point 
of view of owners who, as in this case, are said to own some 40 steam 
vessels, the one under seizure being alone worth §100,000, 
and of those who may be owners of vessels of a very much higher 
vahie ; or from the Kevenue Officer's point of view, so large a pro- 
portion of the revenue of these Settlements depending npon a 
vigorous and effective administration of its revenue laws. It was 
stated during the argument, that arrangements had been judici- 
ously made by the Government, by which an actual stoppage of 
the vessel had been avoided, certain bonds having been given by 
the owners to meet all eventualities. The facts of the ease were 
so far not in dispute, viz.y that on the 18th July, the ship was 
searched and some ??iOO worth of chandoo found among the effects 
of the crew, the vessel seized, and the men proceeded against. 
The Opium Farmer applied for the forfeiture of the vessel under 
clause 7b of the Ordinance before referred to [4 of 1884], and the 
Magistrate expressed his intention to proceed to adjudication on 
the question of such forfeiture. It was assumed also on both 
sides, that the amount of chandoo seized exceeded lOlbs. in 
weight. 

There is no question of the liability of a ship to seizure and 
detention and to ultimate forfeiture, if the circumstances which 
render her owners liable to such a penalty, are proved against 
them, unless the Governor, in the exercise of certain powers given 
him, notably by section 85 of the Ordinance of 1870, should other- 
wise determine. The question now for consideration, is whether 
or not the Magistrates' Courts have had given them a jurisdiction 
to order the forfeiture of the vessel, or whether such question of 
forfeiture is to be tried before some other tribunal. I have con- 
sidered with great attention the contention of the learned Attor- 
ney-General, that by the conjoint operation of some prerogative 
of the Crown and the Ordinances of 1870 & 1884, — that imme- 
diately upon the conviction of a person for smuggling lOlbs. of 
opium, the vesssl is eo instanti forfeited, and that either by some 
inherent powers of the Crown, or some jurisdiction given by these 
Ordinances, or by both combined, the Magistrate, as the agent of 
the one, or by the mandate of the other, has power to settle the 
wh'ole question of forfeiture, irrespective of any further adjudica- 
tion, and subject to no appeal but such as it is suggested he might 
possibly have under section 79 of the Ordinance of 1870 — a right 
which I am of opinion is, by the words of that section, clearly 
confined to cases of seizure of " contraband articles " only. To 
support a contention so grave in its results — such as would endow 
Magistrates with powers of adjudicating npon questions of pro- 



STRAITS SETTLEMENTS, 1?9 

pei-ty, varying as the larg^er vessels wliieh frequent this port do, Ford, 
in value ifrom £20,000 to £150,000, when the Legislature has ^J;^^^' "^^ 

thought proper in all other cases to confine their powers to a few ' 

Imndred dollars, and in Civil Cases to no more than a total of $50, In re 
— certainly the prerogative should be clear and equally, certainly S. S. Chi 
should the language of the Ordinance be explicit, or at least its ^^^^ 

words be sufficiently clear to put the inference beyond a reason- 
able doubt. I have not been able to trace any prerogative in the 
Crown in the matter beyond that which — when forfeiture has 
already been vested in it by Statute and adjudicated upon under 
their provisions — have been declared to give it a right as against 
' a subsequent seizure of the thing forfeited. Even this seems to 
have its exceptions. The passage cited from Mr. Chitty's work 
on the Vrerogatlves of fha CrowR [pp. 225, 22G], to sustain the 
argument, ^oes, I think, no further than this, and I cite it in 
fall : 

" To consider the va^rious cases in whicli the right of the Crown to goods 
foi-feited for breach of the Revenue law, obtains, would lead one into a detail 
of the Revenue laws; a subject principally foundrd on the positive enactments 
of the legislature. It may, however, be remarked, that when forfeitures of 
this description are incun-ed, they accrue instantly to the Crown, and will not 
be divested by a subsequent seizure of the same ai-ticle, as a droit of Admir- 
alty, or otherwise ; thouj^^h, as the Admiralty proceeds in rem, ajudicinl sale of 
a vessel, &c., as a derelict, without fraud, h available as against the Crown's 
rit^ht of seizure for a previous forfeiture under the Revenue laws." 

The text is supported by a reference to 3 Price^s Reports, 

We are fchon, I think, practically limited to the words of the 
Ordinances and the powers which they give, and the most impor- 
tant section, and the one which must first claim our attention is 
section 7 b of the Ordinance of 1884, repealing part of section 7 
of the Ordinance of 1870. That section is as follows : 

" Any ship which shall be used for the importation, landing, removal, 
carriage, or conveyance of any chandoo or opium dross, contrary to the 
provisions of this Ordinance, shall be forfeited and may be seized and detain- 
ed until adjudicated on according to law. A ship on board which chandoo 
or opium dross is found, contrary to the provisions of this Ordinance, in 
amount exceeding lOlbs. weight, shall be deemed, until thecontraiy be proved, 
so unlawfully used as aforesaid." 

T do not. attach any importance to the words " shall be for- 
feited,'^ preceding the "may be seized and adjudicated on accord- 
ing to law," because it is obvious that no forfeiture can take place 
before some adjudication according to law has taken place, in 
which the master or owners have had the opportunity of disprov- 
ing the assumption of guiU, arising from the presence of the 
lOlbs of opium. 

The section however, manifestly, neither by express words, 
nor by implication, gives the Magistrates any power to adjudicate, 

[a] Attorney-Oeneral v, Norsiedt — See also Score v. The Lord Admiral, 
Parker, 273 » 



180 MAGISTRATES' APPEALS. 

Ford, and the declaration " shall be forfeited" is no more than a de- 
isS claration of the punishment for the offence, similar to those found 

.* in any penal enactment, and e,g,, where, as in section 226 of the 

In re Penal Code, a person guilty of returning from deportation, it is 

S. S. Chi g^id, shall be punished with penal servitude for life. Such words 

confer no special jurisdiction on any particular Court, and come 

into operation only, of course, after the trial of the accused in 

the ordinary way. 

We have therefore to find, if possible, in some other part of 
these Ordinances, the creation of this jurisdiction iti the Magis- 
trate, and I confess not only to have been unable — except in one 
instance from which such intention might be inferrable, and to 
which I shall presently refer — to find anything to sustain the 
contention ; but the Magistrate's powers, wherever alluded to in 
express terms, or by language of clear implication, seem strictly 
confined to certain fines and confiscations of persons and contra- 
band articles, and no section confers upon him the extraordinary 
powers now claimed. The sections referring directly or by impli- 
cation to his jurisdiction — substituting those enacted by the 
Ordinance of 1884 for those repealed in the Ordinance of 1870, — 
are the 7th, 76th, 78th, 79th, 81st and 84th, [sections read], t 
and in none of them, except the 81st, to which I have before 
alluded, can I find any language to confer such a jurisdiction ; 
and in every case where the forfeiture of a ship is referred to, the 
language seems to speak of it apart from the actions of the 
Magistrate. Section 81 however, reads thus : " Whenever in this 
Ordinance exciseable articles are directed or permitted to be 
seized or forfeited, the vessels and packages, and the carts, 
carriages and conveyances, and ships in which the same may be 
found, may also be seized and forfeited ;" and J was asked to 
infer, because some officer or the Magistrate had jurisdiction to 
seize and forfeit exciseable articles, he had a like jurisdiction in 
the case of ships. I think the inference would be far too strong. 
The language is perfectly well satisfied by leaving the declaration 
of liability to forfeiture as it stands ; and to infer from such a 
conjoint declaration of penalties the creation of such an unwont- 
ed jurisdiction, of which, as far as I can see, no trace is given in 
the sections of the Ordinance dealing directly with the Magis- 
trates' powers, would be arbitrarily to import into the section, 
something not there, rather than to draw a legitimate inference 
from its language. I am much confirmed in the correctness of 
the view which I have taken, by a reference to the Proceedings 
in the Legislative Council when the Ordinance of 1884 was under 
discussion. The view of the learned adviser of the Government 
was clearly then, that the proper place to try questions of such 
magnitude as section 7b may involve, was the customary one 
of the Supreme Court; and acting upon that assumption, section 
7b was introduced with an addendum, providing absolutely for 
the form of procedure in which the question was to be brought 
before it, viz,, " proceedings in the name of the Attorney- Gen end 

t Vide ante pp. 170, 111. 



STRAITS SETTLEMENTS. 181 

for the Colony, under the provisions of the Crown Suits Ordinance Foed, 
1876." For some reasons, the addendum was, after a short eon- '^^'J^i*^' 

saltation wdth the Executive Authorities, withdrawn, and I was ' 

myself therefore momentarily under the impression that there in re 

might be possibly something in the orijiifinal Ordinance in conflict ^v^* ^"^ 

with what I had supposed the law naturally to be, and that possibly ^^^' 

the original Ordinance had created a different tribunal for the 

trial of this class of offence. The present is the first occasion 

upon which the Ordinances, or either of them, have come before 

me judicially, and I cannot but come to the conclusion that this is 

not so, and that the then assumption of the Attorney-General 

Avas the correct one, and the adjudication according to law, must 

be in a Court having jurisdiction over property of such value 

as is likely to be the subject of proceedings such as these. The 

elasticity required for Executive dealing in particular cases seems 

to be amply secured by the provisions of section 85, which empower 

the Governor to stop or suspend any prosecution or proceeding 

instituted or proposed to be instituted under the Ordinance, and 

to direct the refund of the article, or any part of any line or 

penalty, and the restoration of any ship ordered to be forfeited, 

by whatever Court. 

I may in conclusion observe, that the form in Schedule B III. 
of the Crown Suits Ordinance seems to have been framed for the 
purpose of questions of forfeiture of ships being tried in this 
Court under the provisions of that Ordinance, and I have also 
carefully considered the provisions of the English Customs Act 39 
& 40, Vict., c. 36, to get at the principles involved in dealing with 
similar questions. That Act does not indeed seem to contemplate 
anything in the form of forfeiture of large and valuable ships for 
the infringement of the Custom House laws, limiting such forfei- 
tures to small craft, not apparently much over the value of £500. 
[Sections 169 — 209] . In these however, and in all disputes as to 
tines or forfeitures, even in respect of goods, it carefully provides 
for the adjudication, if the parties wish.it, before the higher tri- 
bunals of the Country, at the suit of the law officers, — taking 
however, the proceedings before the Commission, or Justices of 
the Peace, as evidence in the Courts above, and throwing the onus 
of disproof on the defendant, [ss. 53, 207, 218, 226, 232, 2 i7, 259, 
203, 263 et ssj,] Probably in cases of the seizure of vessels of 
small value, the grant to the Magistrates here of a similar juris- 
diction would be very desirable ; and proceedings in the Supreme 
Court, similarly regulated, equally so ; but this is a question 
beyond the immediate subjc^et before me. 

The Rule must be made absolute, and the writ of prohibi- 
tion go. 



\8^ MAGISTRATES' APPEALS. 

KADEE KHAN v. HO FUK WENCJ & ORS. 

Pbnang. \ Maofistrato who tries a case under any of the sections enumerated in section 
5, clause 2, of Ordinance 13 of 1S72, which may consist of more than one charge. 

Wood, J. cannot sentence the prisoner on eau*h charge, so that the cumulative term exceeds 

ISS^t. gjj^ months. 

. 7*2* Semble. A Magistrate in no case has power to sentonccrfor distinct offences, all 

"g-is *>. ^j^^i together, for a cumulative term exceeding six months. 

Qiio'y. Has he the power to do so, where each distinct offence is tried ^nd dealt 
with separately, when by law they might have been tried together? 

It is irregular, and improper, for a Magistrate to give a prisoner the ojjtion to 
be tried summarily, or be committed to the Assizos ; or any option, in any criminal 
matter, at all. 

The appellant, Kader Khan, a Corporal of Police, stationed at 
Sungie Burong, Balek Pulaii, was charged in three distinct counts, 
under section 161 of the Penal Code, before W. Egerton, Esq., 
Magistrate, with receiving gratifications on three diflPerent occasions 
from the three several respondents, of three different sums of 
money. The three occasions all occurred within one year, and the 
charges were preferred under section 59 of Ordinance 6 of 1873, 
which enacts that, " when a person is accused of more offences 
^Hhan one of the same kind, committed within one year of each 
"other, he may be charged and tried at the same time, for any 
"number of them, not exceeding three." The appellant was also 
charged under Section 384 of the Penal Code, with extorting the 
three several sums of money from the same three respondents. The 
Magistrate dismissed the charges of extortion, but convicted the 
appellant of receiving the gratifications, and sentenced him to four 
months' rigorous imprisonment on each of the said three counts, to 
commence the one on the expiration of the other. The formal 
convictions omitted to state that the terms were to run one in 
succession to the other, but as such was in fact the Magistrate's 
order, the conviction was amended by consent, in this respect. By 
the Summary Jurisdiction Ordinance 18 of 1872, sections 5 and 0, 
a Magistrate's jurisdiction is limited to six months' rigorous im- 
prisonment and a fine of §100. By section 5, clause 2, the Magis- 
trate is also empowered to deal summarily with offences [among 
others] under sections 161 and 384; — this clause is as follows: 
" All offences under any of the Chapters and Sections of the said 
" Code, in this sub-section named, in which the Magistrate may be 
" of opinion that the case will be adequately dealt with by imprison- 
" ment of the description, or either of the descriptions, applicable 
"by law to the offence, for a term not exceeding six months, or 
"with fine not exceeding one hundred dollars, or with both, 
" whether with or without whipping in offences for which whipping 
"may be lawfully inflicted, that is to say, — Chapter VII., section 
" 137, Chapter VIII., section 14i, &c., &c." The Magistrate was of 
opinion that six months was inadequate for the offence, if the 
appellant was guilty ; but at the close of the case for the prosecu- 
tion, having given him the option whether he would be tried sum- 
marily or be committed to the Assizes, — and the appellant having 
elected the former, and the Magistrate himself also deciding to try 
the case summarily, — the appellant [prisoner] adduced evidence iu 



STRAITS SETTLEMEXIS. 1S3 

Ills defence. On the couclusion of the evidence, the Magistrate Wood, J. 
dismissed the charges of extortion, and convicted him on each of ]^^' 
the counts for recei>ing the gratifications, and sentenced the ap-KADEBKuAN 
pallant to four months on each of such counts, as before stated, — r. 

being twelve months in all. The appellant appealed against this ^^. ^^^ 
conviction aird sentence. ^ q^^ 

Van Someren for appellant, contended that the Magistrate had 
sentenced the prisoner for a term in excess of what he was entitled 
to pass, and referred to sections 5 and 6 of Ordinance 13 of 1872, 
above set out, and to Ordinance 6 of 1S7-3, section bd ; that the 
Magistrate's idea that as long as in each count he kept within six 
months, and that the total term of imprisonment imposed was 
immaterial, whether it exceeded six months or not, — was quite 
unprecedented, and against the spirit of the sections of the Ordi- 
nances. The Magistrate's jurisdiction, being the creature of a 
Statute, and in derogatiim of the Common Law, which gave eyery 
man the right to be tried by a Jur}% could not be extended without 
express words. The consent of the prisoner to be tried summarily 
Wiis quite immaterial, as he could consent to nothing, and no consent 
gave jurisdiction, where otherwise there was none. Reg. v. Ber^ 
trand, 1 L. R. P. C. 520. 

Ross [acting Solicitor-General] for respondents, contended that 
the Magistrate had jurisdiction, as by section 5, clause 2, above 
set out, he was empowered to inflict the imprisonment " applicable 
by law to the offence ;" and by law, each of the ofliences of receiving 
a gratification, was liable to be punished for any term not exceeding 
six months^if tried by a Magistrate ; that the Magistrate had kept 
within the six months in each count, and the prisoner was liable 
to be tried for, and convicted of three distinct offences at one 
time. The case was complete against prisoner in each count, and 
such offence could b3 dealt with sei)arately, so long as the Magis- 
trate did not, in each, exceed six months. He referred to Reg. v. 
Castro, 6 L. E.. Apj). C. 229, as in point. 

Van Someren in reply, contended that Regina v. Castro was 
distinguishable, — as there, unless the section could be cumulative, 
the prisoner would have got scot free of the second assignment 
of perjury of which he was convicted, as the case was tried by the 
Superior Court silting in Banc : there would have been a miscarriage 
of justice unless it was so, — or else the prisoner should not have 
been tried at one time on both counts, but must undergo two dis- 
tinct trials. Here, however, such reasoning wholly failed, as, 
although the Mai^istrate might be deprived of his jurisdiction, 
this Court could try the case, with the help of a Jury, in the 
usual way, and pass a sentence beyond six months. 

Wood, J. Regina v. Castro, has no bearing on this question, 
as the legality of this sentence is to be decided by section 6, 
clause 2, of the Summary Jurisdiction Ordinance 1872, and on 
that point, I am of oiDinion that the Magistrate should not have 
pronounced the sentence, if, in his judgment, the case could not 
be adequately dealt with by imprisonment for six months. In 
my judgment, and according to the popular meaning of the word, 
the ^' cctsc" against the prisoner was one, though the charges were 



184 



MAGISTRATES* APPEALS. 



Wood. J. 

1884. 



V. 

Ho FuK 
AVeno 

6i OB8. 



three-fold under section 50 of Ordinance 6 of 1873. The discre- 
tion given by section 5, clause 2, to the Magistrate, is in effect 
KADEEKHAN^^d in spirit, that graver cases, involving serious punishment, 
should be tried by the Supreme Court and a Jury, and that what- 
ever may be the result, where the Magistrate hears and deter- 
mines three cases one by one, and arrives at a separate conclusion 
in each, though he had the power under section 59 of the Ordi- 
nance of 1873, to try them together. On this latter point, I give 
no decision. 

In this case, where the charge was one, the hearing one, and 
the decision one, after hearing the entire of the three charges, — 
I am of opinion that the Magistrate exceeded his power of sen- 
tence from the moment that he thought, as no doubt he did 
think, that the " case" could not be adequately dealt with by im- 
prisonment for six months. I consider, that the sentence passed 
on the accused, is one which cannot legally be passed for the 
offences of which he had been convicted, and I accordingly annul 
the sentence ; but inasmuch as it is obvious that the whole case 
consisting of three charges, did, in the opinion of the Magistrate, 
warrant a heavier sentence than six months, I shall send back the 
case to him with directions to commit the prisoner to trial at the 
Assizes. Upon the enquiry before the Magistrate, it is clear that 
on the termination of the case for the prosecution, the Magis- 
trate gave to the prisoner, the option of having the case tried 
summarily or having it sent up to the Court of Assize. The pri- 
soner having elected to be tried summarily, the evidence of his 
witnesses was then taken. Under such circumstances, I am not 
able to treat the depositions before the Magistrate with a view 
to a summary conviction, as altogether the same as the depositions 
taken with a view to a preliminary enquiry. I shall therefore 
direct that the depositions in the case- to be sent up to the 
Supreme Court, shall be the depositions before the Magistrate, 
but only up to the time of the option being given. I may add, 
that the giving of this option to the prisoner, as to whether the 
case should be treated summarily or not, was irregular, and so 
far improper : the duty is thrown upon the Magistrate to decide 
on such a point in the interests of justice generally, and not to 
leave any such matter, or, indeed any matter in a criminal en- 
quiry, to the option of any prisoner. 

Order accordingly, [a] 



Penang. 

Wood, J, 
1884. 

Sept. 15. 



REGINA t\ ABASS & ANOR. 

The mere possession of instruments for gaming, is not punishable under tlie 
Gaming Ordinance 13 of 1879. 

The appellants Abass and Majid, were severally convicted by 
A. M. McGregor, Esq., acting Magistrate, for assisting in the 
business of a common gaming house, to wit : by having in their 

[a] See Begino, v. Kad^r Khan, Criminal Rulings, VqI. II. of these Reports, 
p. 113. 



STRAITS SETTLEMENTS. 185 

possession a ticket connected with a Wah-Weli lottery, under Wood, J. 
section 2, clause 4 of Ordinance 13 of 1879, and were severally ^^' 
sentenced to two months' rigorous imprisonment. Keg. 

From the evidence, it appeared that the respondents were v. 

detectives, and on the 4th August, in consequence of information Abass 
received, they proceeded to a compound close to Macalister Road, 
where they waited, and at 12-80 p.m., they saw No. 1 appellant 
coming out of the compound, and No. 2 in the act of entering. 
The respondents immediately arrested the two men, and on search- 
ing them, found on No. 1 a Wah-Weh ticket, $1 in silver, 7i cents 
in copper, and a pencil ; and on No. 2 a similar ticket, $1 in silver 
and 2 cents in copper. It was shewn that tickets like the ones in 
question, were generally kept by persons collecting money for 
lotteries, and who received commission thereon. The first appel- 
lant in his defence, stated that the ticket had been picked np by 
him on the road, and had been taken from him by the detectives ; 
No. 2 stated that he had the ticket merely for the purpose of 
making friends with Chinese Wah-Weh gamblers, and thereafter 
informing against them, — ^having been asked to do so by another 
detective named Hat. No evidence was adduced in corroboration 
of these statements. 

The clause of section 2, under which the appellants were 
convicted, is as follows : 

" Whoever being the owner or occupier of a place kept or used for the 
purpose of carrying on the business of a common gaming house, or acting on 
behalf of the owner or occupier thereof, or having the care or management of, 
or in any manner assisting in the business thereof, receives, directly or indirect- 
Jj, any money, security or chattel for or in respect of any event or contingency 
connected with any game or lottery, or sells or offers for, sale, or gives or 
delivers, any paper wi-iting, figure, symbol, or other thing of any kind, which 
cither expressly or tacitly entitles, or purports to entitle the recipient or bearer, 
or other person, to receive any money, security or chattel, on any such event 
or contingency as aforesaid, shall be punishable, &c." 

The appellants having been convicted as aforesaid, now ap- 
pealed, under the provisions of the Appeals Ordinance 12 of 1879. 

Capel for appellants. 

Ross [actijig Solicitor-General] for the Crown. 

Wood, J. The evidence merely shews that the appellants were 
in possession of lottery tickets, — but simple possession of an m- 
strument for gaming, is no where punishable under Ordinance 13 
of 1879. Clause 4 of section 2 requires more than the mere pos- 
session of such instruments. There being no evidence to support 
the charge, the convictions must be quashed. 

Convictions quashed. 



186 



MAGISTRATES* APPEALS. 



MAHOMED SHAM v. KOMORAPAH CHETTY. 



Pen A NO. A mortgagor who does not redeem his mortgage on its due date, but permits 

the same to run on, and continues paying interest thereon, and who thereafter on 

Wood, J. notifying to the mortgagee his intention to redeem forthwith, is told that he will 

1884. not be permitted to do so, except on payment of certain months further interest in 

liou of notice, and who thereupon, but only in order to get back his Deeds and 

October 22. complete a sale ho had arranged for, pays to the mortgagee the whole amount of 

])rincipal and interest due, and also the further interest demanded by him — is not 
entitled afterwards to recover back the amount paid for such further interest, as 
money paid under duress, or by mistake, or as money had and received. 

Query. Has a mortgagee in this Colony, whose mortgage is allowed by the 
mortgagor to run over its due date, by law or custom, the right to a notice from 
the mortgagor, of his subse^iuent intention to redeem, or to charge further interest 
in lieu of such notice ; and if so, for what period ? Is the practice in England of 
a six months* notice of an intended redemption, on six months' interest in lieu 
thereof, applicable here ? 

Van Someren on behalf of the defendant, Komorapah Chetty, 
had, on a former day, obtained a Eule to bring up the proceed- 
ings in this case, which was tried before H. A. Thompson, Esq., 
Commissioner of the Court of Requests, and calling on the plain- 
tiff and the Commissioner, to shew cause why the judgment of 
that Court should not be reversed, or a new trial granted, under 
section 10 of the Appeals Ordinance 12 of 1879. From the affi- 
davit of the defendant's agent, on which the rule had been granted, 
and which was not attempted to be contradicted by the plaintiff, 
and was supported by the Commissioner's minute made at the 
trial before him, it appeared that on the 15th October, 1881, the 
plaintiff, who was then the owner of certain lands and heredita- 
ments at Rope Walk Lane in Penang, mortgaged the same to 
the defendant to secure the repayment of a loan of §2,000, and 
interest at 12 percent, per annum, within one year from such 
date ; that the plaintiff did not redeem the mortgage at the end 
of the year, but continued paying the defendant interest 
as before, up to 15th August, 1884; that on the 10th September, 
the plaintiff having agreed with one Tuan Mahomed for the 
sale of the property to him, came to the defendant without 
any previous notice, and demanded to redeem his mortgage forth- 
with, on paying him the full amount of principal and interest up 
to that date, and then tendered this sum to the defendant ; that 
the defendant declined to accept the amount, saying that as it 
was beyond the due date, he wanted three months further interest 
from 15th September [the end of the then current month], in 
lieu of three months' notice ; that the plaintiff declined to pay 
this, and thereupon the plaintiff, the defendant's agent, the said 
Tuan Mahomed, and other mutual friends of the parties, consulted 
Counsel on the subject, and were told that the defendant, as 
mortgagee, was entitled to further interest in lieu of notice, and 
probably for the full three months, as that was usually the period 
charged for here ; that the parties then left, and through the 
intervention of the said Tuan Mahomed and others, it was ar- 
ranged that the defendant should have his full month's interest 
for the then current month, and a month's further interest in lieu 
of notice. The plaintiff appeared unwilling even to do this, but 



STRAITS SETTLEMENTS. 



187 



being obliged to complete his sale of the propert}' to Tiian Maho- ^1^4'*'^' 

med by that date, and requiring for that purpose his title Deeds ' 

without delay, he paid the defendant the full amount of princi- Mahomed 
pal and interest up to that date, and the further month's interest, ^"^" 
as well as for the extra few days, to complete the current month ; Komobapah 
that the defendant accepted this in settlement of all claims on Chetty. 
the mortgage, and thereupon gave up to the plaintiff his title 
Deeds ; that the plaintiff on getting his title Deeds, completed 
his sale of the property to Tuan Mahomed, and on the 18th Sep- 
tember, issued a summons against the defendant, for the recovery 
of the amount paid for the farther month's interest, and the in- 
terest of the extra days to complete the then preceding current 
month, amounting to tg28.33 ; that the summons was served on 
the defendant on the 19th instant, just as he was about embark- 
ing for the Coast, and by him was handed to his agent the 
deponent, Tvith instructions to defend the action ; that the case 
was heard before the said Commissioner on the 9th October fol- 
lowing, vsrhen the defendant's agent appeared for the defendant, 
and had also his witnesses, the said Tuan Mahomed and others, 
in attendance on subpoenas ; that the Commissioner, after hear- 
ing the evidence of the plaintiff, which he noted down just shortly, 
called on the defendant's agent for his defence ; that the defend- 
ant's agent then made a statement which was not on oath, and 
which the Commissioner noted down as follows : " Chetty admits 
" that the phiintiff paid him one month's interest too much, but 
'^ that he agreed to do so, because he was giving up the bond — 
" gives as a reason the rate of interest is higher now than it was" ; 
that the Commissioner then gave judgment for the plaintiff for 
the full amount claimed and costs ; that the defendant's agent 
informed the Commissioner that he had witnesses in attendance 
who could prove the facts, but was told that their evidence was 
quite immaterial and unnecessary, as he [the Commissioner] 
having the evidence of tbe plaintiff, and the statement of the 
defendant's agent, lie was of opinion that the defendant had no 
right in law to interest beyond the date the Deeds were redeoned, 
and was bound to refund the plaintiff the extra month and five 
days' interest; that judgment was accordingly entered up for the 
plaintiff for the full sum of §23.30, and costs, and that this 
amoiuit, with costs, had been paid into Court by the defendant's 
agent, with a notice to withhold same from plaintiff, and to abide 
the present application to this Court. The Rule was thereafter 
in due course applied for and obtained, and this day came on for 
hearing before the Court. 

Mr. Thompson, the Commissioner Of the Court of Requests, 
appeared in person, and shewed cause. He stated, that being of 
opinion that the defendant improperly refused to give up the bond 
and title Deeds, unless he was paid a month's interest in lieu gf 
notice, he considered the plaintiff was entitled to a refund of the 
amount; that the plaintiff had immediate need of his title Deeds 
to complete the sale, and but for that fact, which the defendant 
took advantage of, would not have paid the defendant any extra 
interest. 



188 MAGISTRATES' APPEALS. 

Wood, J. The Plaintiff [in person] also shewed cause, reiterating the 

^^* facts of the case, and complaining of the great hardship on him 

Mahomed to pay further interest, when he had never agi-eed, by his bond, 
Sham to do SO. 

KoMOBAPAH ^^^^ Someren in support of the Eule, contended that the de- 

Chettt. fendant, as mortgagee of an overdue mortgage. bond, was entitled 
to reasonable notice of an intention on the mortgagee's part to 
redeem, or to payment of interest for a corresponding period; 
that three months was the usual period charged for among Euro- 
pean money-lenders in this Settlement, and was a reasonable 
period; that it was but reasonable the mortgagee should have 
such notice, or the interest in lieu of it, so as to give hira time to 
look out for a new investment in the interval, in case the notice 
is given, — or to be recouped any loss of an immediate investment, 
by payment of the further interest, where such notice had not 
been given. He referred to Prideaux on Convey,, 449, [8th ed.] ; 
Day V. Day, 31 Beav. 270, s. c. 31 L. J. [N.S.] 806, and Brown v. 
Cole, 14 Sim. 427, s. c. 14 L. J. [N.S.] Ch. 167. He also contend- 
ed that there was no duress; that if the mortgagee had not the 
right he claimed, it was only a mistake of law on the part of the 
mortgagor, and the money could not be recovered back, but that 
the real fact was, there was no mistake, but a fair and final set- 
tlement, by mutual friends, of all claims, and the plaintiff was 
merely attempting to steal a judgment, thinking, the defendant 
having left for the Coast, he would not trouble himself to defend 
the suit; that a new trial was unnecessary as the Court had 
before it all the facts of the case, but on such facts and the law, 
the judgment of the Court of Requests should be reversed with 
costs. 

Wood, J. I do not intend pronouncing an opinion on the 
main question as to whether a mortgagee has a right, either by 
law, or the practice in this Settlement, to further interest in lieu 
of notice. It may be that as the interest is usually payable 
monthly, a mouth's notice or a month's interest would be rea- 
sonable, but it is quite unnecessary to express an opinion on the 
point. On the facts as they appear in this particular case, in the 
affidavit of the defendant's agent, which facts are not denied, it 
is clear that this money, once having been paid by the plaintiff, — 
whether under a mistake of law, or in pursuance of a fair and 
amicable arrangement, — is not recoverable by him from the de- 
fendant, according to the well-known case of Marriott v. Hampton, 
2 Sm. L. C. 356 [5th ed.]. In view of the law, as laid down in 
that case, and of the general law of this Colony on the subject, 
I must reverse the judgment of the Court of Requests, and direct 
the money paid into that Court by the defendant to be paid out 
to him. The plaintiff will have to pay the cost^ o^ this applica- 
tion. 

Judgment reversed. 



STEMTS SETTLEMENTS. 189 

ONG HONG JIOW v. TEH TAN KIAT. 

A labour contract made under the provisions of an Ordinance, is not put an end Penanq. 

to, by a subsequent repeal of that Ordinance ; but [provided the repealinof Ordinance • 

does not re-enact the penalties], the Statutory incidents only, — [such as dealing with Wood, J. 
breaches of the contract criminally], — are done away with. 1884. 

Section 10 of the Labour Contract Ordinance 1 of 1882, includes cases of con- 

tracts for labour, — breaches of which, prior thereto, were not punishable criminally j November 10. 
provided there is no express provision in the contract itself, to the contrary. 

The absenting from service by a laborer, is a continuing breach, and an 
" offence '* committed de die in diem ; and may so be dealt with. 

"Where therefore a laborer contracted under Ordinance 2 of 1877, to serve his 
master for a certain number of days, but before the time was out, absconded from 
the Estate and was never seen again until arrested in October 1884 — but in the 
interval, the Ordinance of 1877 was repealed by Ordinance 4 of 1880, which did not 
re-enact penalties for breaches of Contract — and by Ordinance 1 of 1S82, which 
became law in February, 1884, aU contracts for service made prior to that Ordinance, 
were to be considered in force after the passing of that Ordinance, and subject to 
the liabilities of that Ordinance, whereby criminal liability for breaches of labour 
contracts was restored [although between 1880 and 1882 there had been a suspension 
of such liabilities] — and the laborer having been arrested in 1884, was charged before 
the Magistrate with absenting, — 

Held J 1st, the contract for service was still a subsisting one ; 2nd, that it was a 
contract for service within section 10 of the Ordinance of 1832, and that breaches 
thereof were liable to be dealt with criminally; 3;-d, that the absence of the laborer 
was a continuing breach, and an offence dediein die)?i,and so punishable under that 
Ordinance, as amended by Ordinance 3 of 1883. 

This was an appeal from a decision of W. Egerton, Esq., 
Magistrate at Bukit Tambun, dismissing the charge preferred by 
the above-named appellant, the owner of a plantation in Province 
Wellesley, against the respondeiit, a late laborer on his Estate. 
The respondent, the laborer, was charged for that he, "having 
" received an advance in money and agreed to serve the said Ong 
"Hong Jiow for 360 days as a laborer, did, on the 16th day of 
" August, 1880, abscond from the service of the said Ong Hong 
" Jiow at Bukit Tambun in Province Wellesley, and thereby com- 
" mitted an offence punishable under section 2, clause 5, of the 
"Labour Contracts Amendment Ordinance 3 of 1883/' On the 
case being tried before the Magistrate, the complainant [appellant] 
produced the defendant's [respondent] contract of service, which 
was dated 24th April, 1880. The defendant was shewn to have 
absented himself from the Estate on 16tli August, and was never 
again seen until he was arrested on the 2nd October, 1884. The 
Magistrate, without going into further evidence, dismissed the 
charge, holding the laborer could not be punished, by reason of 
subsequent legislation on the subject of Labour Contracts. The 
complainant [the master] appealed against this decision, and in 
the case stated by the Magistrate, he stated his reasons for dis- 
missing the case, as follows : 

" The following adjudication was made. Contract entered into on 24th 
April, 1880. Defendant charged with absconding on 16th August, 1880. "flie 
Contract was made under the provisions of Ordinance 2 of 1877. This Ordi- 
nance w^as repealed on 13th July, 1880, by Ordinance 4 of 1880, which was 
itself repealed by Ordinance 1 of 1882. Therefore I held, that the defendant 
could not be prosecuted under Ordinance 1 of 1882, as he was not engaged 
under it. Nor under Ordinance 4 of 1880 for same reasons. Nor under 



190 MAGISTRATES' APPEALS. 

Wood, J. Oi'dinanco 2 of 1877, as that Ordinance was repealed unconditionally. The 
1S84. defendant was therefore discharged." 

Ono Honq On the appeal now coming on for heariiig", 

v!^ ^'""' Someren for appellant contended, that the questions 

Teh Tan here were, Istly, Whether the Contract made under the provi- 
KiAT. sions of Ordinance 2 of 1877, but not fulfilled, was valid now 
that that Ordinance had been repealed ; and 2ndly^ if valid. 
Whether the Magistrate could have punished the laborer in Octxj- 
ber, 188 1, under the provisions of Ordinance 1 of 1882, as amended 
by Ordinance 8 of 1883. Ho pointed out that certain of the 
statements of the Magistrate in his reasons for dismissing the 
charge, were incorrect in point of fact. The Magistrate said 
Ordinance 2 of 1877 was repealed on 13th July, 1880, by Or- 
dinance 4 of 1880, but in truth Ordinance 4 of 1880, only 
came into operation on Isfc April 1881, [^Government Gazette, 1881, 
p. 80], and the Ordinance 2 of 1877 was in force till that date : 
the Magistrate also said Ordinance 4 of 1880 was repealed by 
Ordinance 1 of 1882, but there was no such repeal, and Ordinance 
4 of 1880 was still in force. Ordinance 4 of 1880 provided only 
for appointment of officers, &c., and not for contracts, and pun- 
ishments for breaches of contract. Ordinance 1 of 1882 on the 
other hand, provided for these, and had been amended by Ordi- 
nance 3 of 1883. Having cleared these points, he submitted that 
the contract was not rendered void by the repeal of the Ordinance 
of 1877, but the Statutory incidents only, were done away with, 
and it was no longer possible for a Magistrate to convict or punish 
under that Ordinance — but as Ordinance 4 of 1880 did not re- 
enact the penalties, it would be contended for the Magistrate that 
even if the first point was conceded, still that as there was a sus- 
pension of liability to criminal proceedings from 1st April, 1881, 
[the date Ordinance 4 of 1880 came into operation] to the 28th 
February, 1882 [the date Ordinance 1 of 1882 became law], there 
could not now be any criminal liability on the part of the 
laborer ; that that brought forward the second question, and as 
to that he submitted section 10 of Ordinance 1 of 1882 [a section 
the Magistrate appeared to have overlooked] was specially appli- 
cable to a case of this kind, and a liability to criminal proceedings, — 
and that under that very Ordinance, — was restored. It was possi- 
ble however, that it would be said that there had been no breach 
since the Ordinance 1 of 1882 became law, bub as to that, "the 
absenting wis a continuing breach, and every day's absence 
was a distinct " absentinj>" and an offence. Ex-parte Baker, 7 
E. & B. 697, 26 L. J. M. C. 155, s.c. 2 H. & N. 219 ; Regina v. 
WillanSy Straits Law Reports 66, 92, 93. [a] The word" abscond- 
ing" in the charge was a clerical error for " absenting," as would 
be seen from section 2, clause 5, Ordinance 3 of 1883 to which it 
expressly referred, and also as '' absconding" was not an offence, 
nor was punishable [section 13, Ord. 4 of 1880 ; ss. 13. 16, 27 of 
Ord. 1 of 1882]. The Magistrate ought under section 11, clause 
2, of Ordinance 1 of 1882, to have amended the charge, by changing 

[a] Supra p. 16. 



STEAITS SETTLEMENTS. 



191 



the -word " absconding" to " absenting," and inserting after the 
figures " 1880," the words " and thence continuously from day 
to day till the 2nd day of October, 1884." At all events, the 
Magistrate did not dismiss the case because the charge was for 
*' absconding," but treated the case, as his reasons, — [read in 
con junction with the Section, Clause and Ordinance referred to in 
the charge], — might justly imply, as an ordinary case of '^ absent- 
ing," and this Court, under section 32 of the Appeals Ordinance 
12 of 1879, would amend it, so as to deal with the real question in 
the case. 

Ross [acting Solicitor-General] for the Magistrate, conceded 
that the contract was not rendered void by reason of the repeal of 
the Ordinance of 1877, but that the penal liabilities thereunder 
^vere alone done away with. He contended, the question here 
was, whether the absenting after the date of Ordinance 1 of 1882, 
was an offence under the provisions of that Ordinance ; that 
between the repeal of the Ordinance of 1877 on the 14th April, 
1881, and the 28th February, 1882, when Ordinance 1 of 1882 
became law, there was no such thing as punishing criminally* for 
breach of contract by Chinese laborers. Then section 10 of 
Ordinance 1 of 1882, did not help the appellant, as it could only 
apply to contracts, not only in force on the 28tli February, 1882, 
but contracts the breach of which would be an " offence," and 
punishable criminally. If section 10 was held applicable to this 
case, it would make all persons in the relationship of master 
and servant, liable to penalties for breach of contract, as 
the words were, ''All contracts for service in force at the 
coming into operation of this Ordinance" — but that could 
not be its meaning. It meant something less extensive, and 
if so, it should be limited to contracts, breaches of which 
were " offences" — or in other words, contracts having cri- 
minal penalties attachable thereto. The present case did not 
fall within that class, by reason -of the laborer being exempt 
from criminal consequences between the dates named. If the 
words " all contracts for service" were to have this more extensive 
meaning, why limit them only to agricultural contracts, why not 
apply them to domestic servants as well ? He further contended, 
that what was formerly not criminally punishable, should not be 
so made by ex 'post facto legislation, as section 10 in effect was. 
The contention on the other side also gave no meaning to the 
words " subject to the express provisions in any such contract." 
The contract here was, on 28th February, 1882, not a contract 
subject to penalties, and the words " express provisions" do not 
necessarily mean expressed in wi'iting^ as Ordinance 1 pf 1882 
applied to verbal as well as to written contracts. If there had 
not been the interregnum, the contention of the appellant might 
have been upheld, but with that fact before the Court, it could 
not extend section 10 to include such a case as this, and there- 
fore the laborer could not be punished, and the Magistrate was 
right in dismissing the charge. He also contended that the 
offence was committed before Ordinance 1 of 1882 was passed, and 
so could not be adjudicated on under that Ordinance, Mao^well 



Wood, J. 

1884. 

Ong Hong 
Jiow 

V. 

Teh Tan 

KlAT. 



192 



MAGISTRATES' APPEALS. 



Wood, J. 

1S84. 



on Statutes^ 377 el seq. The breach was not a ebntinning breach, 
and there was no oflfence " de die in diem,^' The cases referred to 
Ono Hono did not bear out the appellant's contention on this point ; they did 
not go far enough for him, and were distinguishable from the 
present. In both cases referred to, there was a conviction, and a 
distinct second absenting — and all that Lord Campbell in ex-parte 
Baker said was, "A fresh offence was committed when the 
" prisoner, after being liberated from imprisonment^ did not return, 
" to the service, because the contract continued, and he absented 
"himself." Here it is all one absenting from IGfch August, 1880 
to 2nd October, 188 1 ; there was no break in it, or a second refusal 
to return to work, and therefore there was but one offence. 



Jiow 

V. 

Tkh Tan 

KlAT. 



10 
or 
no 
of 



Van Someren, in reply, contended the woi'ds of section 
were large enough to include this case, and being a remedial 
saving clause, should be construed liberally. There was 
" express provision " in this contract to prevent the operation 
the section in this case. The ratio decidendi in ex-parte Baker 
was, that each day the labourer omitted to return to work was a 
distinct absenting; and even if what occurred here was all one 
offence, such portion of it as was after February, J 882, was 
punishable under the Ordinance of that year, as amended by the 
Ordinance of 1883. 

Cur. Adv. Yult. 



18th Tebruary, 1885. Wood, J.. This, was an appeal from 
the decision of the Magistrate, under the following circumstances: 
Teh Tan Kiat, a coolie, by contract dated 24th April, 1880, agreed 
to serve Ong Hong Jiow for 360 days, as a labourer, and on the 
16th August following, "absconded" from the service of Ong 
Hong Jiow and was accordingly charged with so doing. The 
Magistrate was of opinion that the prisoner could not be prose- 
cuted for such absconding and dismissed the case, and in his 
statement of the particulars of the case, gives bis reasons as fol- 
lows: "The contract was made under the provisions of Ordinance 
" 2 of 1877. This was repealed on 13th July, 1880, by Ordinance 
" 4 of 1880, which was itself repealed by Ordinance 1 of 1882. 
" Therefore I hold, that the defendant cannot be prosecuted under 
"Ordinance 1 of 1882, as he was not engaged under it — nor under 
" Ordinance 3 of 1880 for same reason — nor under Ordinance 2 of 
" 1877 as that Ordinance was repealed unconditionally." The 
appellant [the master] now appeals against the decision of the 
Magistrate, and Mr. Van Someren on his behalf has contended 
1st, that the contract, though made under the Ordinance of 1877, 
was still in force, and was not put an end to by the repeal of that 
Ordinance, but such repeal did away only with the Statutory inci- 
dents given to the contract by that Ordinance, and 2ndly, that if 
the contract was still a subsisting contract, the Magistrate could 
have punished the labourer under the provisions of tlie Ordinances 
of 1882 and 1883. The acting Solicitor-General conceded the first 
point, and I think properly so. It is erroneous to suppose that 
the contract was repealed along with the Ordinance of 1877, unless 



STRAITS SETTLEMENTS. 



193 



there are explicit terms in the Ordinance of 1882 to effect that 
purpose. The second point remained to be decided ; and on this, 
section 10 of Ordinance 1 of 1882, was relied on. The section is 
as follows : " All contracts for service in force at the coming into 
-'^operation of this Ordinance, shall continue to be in force after 
" the passing of this Ordinance, and subject to the express pro- 
pulsions in any such contract, the parties thereto shall be subject 
^^ to, and entitled to the benefits of the provisions of this Ordi- 
" nance." By section 11, it is provided that ^* whenever under any 

" contract of service in writing under this Ordinance 

^* the labourer shall absent himself from his service, the 

** party feeling aggrieved may make a complaint," and so forth. By 
section 14, sub-section 5 [as amended] "if the complaint relates 
" in the case of parties bound by a written contract of service, to 
^^ neglect or omission on the part of the party complained against, 

" without reasonable excuse to fulfil the contract of service 

*'or if the labourer shall without reasonable excuse, to be allow- 
" ed by the Magistrate, absent hims'elf from his employer's service, 
" the Magistrate may, &c.," — then follows the punishment or 
penalty to be inflicted by the Magistrate. In this case the com- 
plaint arises on a written contract of service which is now exist- 
ing, and in view of the language of section 10 of the Ordinance 
of 1882, it was contended it must be held to be a contract under 
the Ordinance, seeing that contracts " in force at the coming into 
** operation of this Ordinance," shall continue to be in force after 
the " passing of the Ordinance," and shall be " subject to the 
" provisions of the Ordinance." It is thus expressly declared by 
section 10, that contracts for service in force at the time of the 
coming into operation of the Ordinance, shall continue in force. 
I think I cannot but therefore hold that this is a " contract of 
^'service in writing under this Ordinance " within the meaning 
of section 14. And thus the only question which remains is, is 
the breach of contract, in absenting himself, a continuing breach ? 
Ex'parte Baker, 7 E. & B. 697, and the remarks of Sir Benson 
Maxwell in Regina v. Willans, Straits Settlements Cases, 92, 93, [a] 
were referred to as decisions in point. The Acting Solicitor- 
General contended that the question had not arisen since the pas- 
sing of the Ordinance of 1882, and that this was not the case of 
a continuing breach. I observe that the case states that the coolie 
was charged with " absconding," but the argument was based 
on the broader ground of the charge being one of " absenting 
himself from the service," and I entertain no doubt of the sound- 
ness of the contention on the part of the appellant, that the 
Magistrate should have dealt with this " absenting from the ser- 
" vice," and that the absenting himself from service is a continu- 
ing breach, upon which the Magistrate had ample jurisdiction to 
adjudicate. The appeal will be allowed with costs. 



W0OD,X. 

1884. 

Osa HoN« 
Jiow 

V. 

TbhTait 

KlAT. 



[a] Supra, p. 16. 



194 



MAGISTRATES' APPEALS. 



Tekaxq, 

Wood, J. 

1884. 

J>eo.22. 



EEGINA V. KELLY & ANOR. 

A i>erson who is de facto a Police Constable [whether he be under a formal 
engagement to serve as such or not] is liable to be punished under section 26 of 
the Police Force Ordinance 1 of 1S72, if he commits any of the offences eniunerated 
yi that section. 

Se^nbU. Where there is no time specified by an wder of the Governor, under 
section 1 of Ordinance 9 of 1881, for the term to be named in a Contract of a 
Constable, a Contract made under that Ordinance is void, if it be for a term of 
five years [a]. 

This was an appeal from a conviction by the first Magistrate 
of Penang, C. W. S. Kynnersley, Esq., but on the appeal being 
this day argued before the Superior Court, it was ordered under 
section 45 of the Appeals Ordinance 12 of 1879, that it should be^ 
heard before the Court of Appeal. The appellauts, Kelly and 
Brooks, were Constables in the Police Force, stationed at Penang, 
and had entered into a contract to serve as such for a period of 
five years. Before such term had expired, they deserted the force, 
and were found on board a vessel in the harbour, about leaving for 
Europe. They were arrested and charged before the Magistrate 
with desertion, under section 15 of the Police Force Ordinance 1 
of 1872, but that Ordinance having been amended by Ordinance 9 
of 1881, the charge had to be withdrawn. By section 15 of the 
Police Ordinance of 1872, the Contract of a Constable was not to 
exceed three years ; by the Ordinance of 1881, section 1, the term 
of the contract was to be for such a time as might be ordered by 
the Governor. No such order had been passed, and the appel- 
lant's contract, in the usual course, was made for five years as 
stated. On withdrawal of the charge of desertion, the appellants 
were again charged, but with disobedience of orders and neglect of 
duty under section 26 of the Ordinance of 1872. Section 18 of 
the latter Ordinance, is as follows : 

" Every .... Constable who shall hereafter enter the 

Police Force without formal engagement, if not engaged or re-engaged for a 
term of years, shall be held to be under engagement to the Government to 
sei've in the Police Force, from month to month, every, such engagement 
after the first month's service being held to commence on the first and to be 

detei'minable on the last day of each successive month ; and any such 

Constable afoi'esaid, shall not be entitled, without written permission from 
the Inspector- General or Chief Police OflBcer to withdraw from the duties of 
the Police Force, imless at least one month previously to such withdi'a^^'al he 
shall have given notice thereof in writing to the Inspector- General or Chief 

Police Officer. Every Constable offending against the provision in 

this section, shall be liable to a penalty not exceeding fifty dollars, or to 
imprisonment not exceeding three months, and all arrears of pay due to him 
at the time shall be forfeited." 

27id March, 1885. The appeal now came on to be heard before 
the full Court of Appeal consisting of Sidgreaves, C. J., Ford and 
Wood, J. J. 

Thomas [E. W. Presgrave with him] for appellants, contended 



[a] See now Ord. XI. of 1885, and Orders in Council thereunder, dated 12th 
June and 15th September, 1885^ G. G. p.p. 1046 & 1418. 



STRAITS SETTLEMENTS. 



195^ 



that the contract under which the Constables served, was illegal, Sidgeeaves, 
as being more than three years and not for a term named by the ^^^^^ ^' 
Governor ; that it was for the Cro^vn to shew there was such an & ' C j.j. 



:} 



Begina 

V. 

Kelly 

& ANOB. 



order, and that the contract here was within its provisions. It WooDj 
was for them to shew everything that went to give validity to the ^^^* 
contract, and was a negative not peculiarly within the knowledge 
of the prisoners ; that sectio)i 18 did not help the prosecution as 
the prisoners could not be brought under that Ordinance, except 
by operation of section 12 of the Ordinance of 1881, but 
that section only applied to persons engaged under that Ordi- 
narce, which the prisoners had not been, their contract being 
otherwise than that provided by that Ordinance. Section 18 did 
not help nlso, as it only applied to cases without " formal'' con- 
tracts, and without an agreement for a " term of years" — ^here 
there was such an agreement, and an agreement, though void in 
law,^ was yet perfectly formal as regards its execution, &c. It was 
also' contended, that the act of the prisoners amounted to a deser- 
tion, and it was improper to convict of a lesser crime, the neglect 
of duty, simply because there was no punishment for desertion in 
cases of persons not engaged under the Ordinance of 1872 ; that 
absence from duty, meant an absence with an intention of return- 
ing to duty, and not an absence with no such intention. 

Ross [acting Solicitor-General] for the Crown, was requested 
to confine his argument to the first objection taken, viz,, the vali- 
dity of the contract, and effect of section 18. He contended that 
as the contract was to be for such term as the Governor might 
name, and the contract was for five years, and signed before the 
proper authorities, it was, prima facie in accordance with such an 
order : that it was for the prisoner to shew it was otherwise if 
they c<5uld. There was nothing in the Ordinance to prevent Con- 
stables making agreements for what term they pleased. Section 
18 was conclusive against the prisoners, as if the contract was 
void, they were without formal engagement — " foi^mal engage- 
ment" included a ^^ valid contract," and the expression, without 
an agreement " for a term of years," did not help the prisoners, 
as they were really blowing hot and cold. They first said there 
was no contract, because it was void, then to meet this section 
they said there is a contract, and therefore we are not within the 
section. They must take one line of argument or the other — if 
the contract was void, it is as if there was no contract, and so no 
agreement for a term of years, and section 18 applied. The pri- 
soners being de facto Constables, wearing Constables' uniform, 
and drawing Constables' pay, was sufiicient to bring them within 
section 26, if they committed any of the offences enumerated 
therein. 

SidgreaveSy C. J. The appellants in this case, were convicted 
under section 26 of the Police Ordinance 1 of 1872 for disobe- 
dience of orders and neglect of duty. It appears to me they must 
be considered Police Constables, subject to the regulations of the 
Police Force Ordinance. They de facto weresuch, and I consider 
it is perfectly inimaterial whether they were under a formal 



< 



196 MAGISTRATES' APPEALS. 

SiDOBEAYEs, engagement or not. As the conviction appears to be borne out 
C. J. by the evidence, and the Magistrate's decision fairly arrived at, 
FoED, •) it should, I think, be affirmed. 

Wood, ) 

1884. Pord, J. I concur. 

KGTNA Wood^ J. T arrive at the same conclusion. The Magistrate 

Kelly properly dealt with the case, as the appellants were de facto Con- 
& ANOE. stables, and were absent from duty without good cause. The 
contract, I am inclined to think, was illegal, and the appellants 
entered without a formal engagement ; but under the combined 
operation of sections 26 and 18, their service was from month to 
month. Such service had not been legally terminated at the 
time the appellants absented themselves, and they were therefore 
liable. 

Conviction affirmed. 



End of Vol. III. 



INDEX. 



ABETTOR OF MISCHIEF— Advance of 
money to owner of Estate — mortgage — 
security ------ 154 

see Mischief. 3. 
ABSENCE— Contract~Labour-16, 62, 71, 

164, 189 

see Labour. 1, 2, 3, 6, 7. 
OF COUNSEL~«ee Coun- 



sel 

ACTS: 

1 of 1849 - 

see Jurisdiction. 
7 of 1854 - - 

see Jurisdiction. 

2 of 1855, s. 57 - 

see Evidence. 2. 

13 of 1856 - 

see Conservancy. 

8.57 - 

see Gambling. 1. 

14 of 1856, 8. 36 

see Conservancy. 
8.43 - 



2. 



2. 



3. 



1,2. 



see Conservancy. 
13 of 1859 . 

see Labour. 2, 3. 
14ofl866, s. 5 - 

see Post Office. 
8. 46, cl. 2 - 



1. 



50 



51 



51 



79 



140 



43 



13,45 



140 



62,71 



104 



97 



122 



152 



see Post Office. 
29 of 1866. 

see Court of Requests. 3. 
ADMIRALTY JURISDICTION— 
see Jurisdiction. 7. 

ADULTERY — Criminal house-trespass — 
Insult ------ 131 

see Trespass. 
ANIMAL— Wounding of, - . 88 

see Mischief. 1. 

ANIMUS PURANDI— Theft of Govern- 
ment Timber — evidence - - - 143 
see Theft. 2. 

ANNOYANCE— Insult-Criminal house- 
trespass -. 131 

see Trespass. 

^eeaZ«o Claim TO property, 3.167 



APPEAL— Refusal of Magistrate to ad- 
joum case on ground of absence of Conn* 
sel, — no ground f or • - - • 50 
see Counsel. 

2. Prosecutor dissatisfied with deci- 

sion of Magistrate mar appeal in the same 
way as a prisoner might - • • 92 
see Prosecutor. 1. 

3. Crown — Costs . • • 99 

see Labour. 4. 

4. Smallness of fine - - 108 

see Magistrates. 11. 

5. No appeal lies under the Ap- 
peal Ordinance 9 of 1874, from the decision 
of a Court of two Magistrates, and such 
proceedings can therefore be brought into 
this Court onljr by Certiorari. The origin 
and constitution of the Court of Quarter 
Sessions, of two Magistrates, and Police 
Courts, considered. Reg. v. Kuck Sin 
Loi 110 

6. Notice of, — Ordinance — Inaccu- 
racy 119 

see Notice of Appeal. 

7. In a Magistrate's appeal under 

section 18 of the Appeals Ordinance 12 of 
1879, the only parties to the appeal are the 
prosecutor and prisoner, the parties in the 
Court below. Neither the Crown, nor the 
Magistrate, is a party thereto ; and have no 
locus standi to be heard, as of right, in such 
appeal. Punghulu Allang v. Him. 144 

APPEAL CASE— Information in an Ex- 
cise Case and Commitment, no part of, — 136 
see Magistrate. 16. 

ASSAULT — A person who is charged with 
assault and robbery cannot be simply con- 
victed of the assault. A charge stating 
an assault to have been " feloniously" made 
is bad, the word " feloniously" not only 
being surplusage, but actually converting 
an assault, which is a misdemeanour, into 
a felony.— iSfew&^e. The Statute 24 & 25 
Vict. c. 96, does not extend to this Colony. 
Regina V, Mahomed Oosman & anor. 50 

AND ROBBERY— «ee As- 

sault 50 

ASSIZES — Conviction of Magistrate quash- 
ed — prisoner directed to be retried and 
committed to, — - - - . 99 
see GrRiEVOT^g Hurt, 



I 



198 



INDEX. 



ASSIZES— eon«tnue(2. 

;— It is irregular and improper for 

a Magistrate, to give a prisoner the option 
to be tried summarily or be committed to 
the, — or any option in any criminal mattt»r 
at all ----- . 182 
see Maqistrate. 20. 

BAD CHARACTER— Evidence of,— Con- 
viction 130 

see Magistrate. 15. 

BONA FIDE CLAIM TO PROPERTY— 
see claim to Property. 

BOOKS — No Warrant will be issued for 
search of private books of prosecutor, to be 
evidence for the defence - . 107 

see Search Warrant. 
BREACH OP CONTRACT— see Labour. 
BREACH OF THE PEACE— Before an 
order can be made under section 61 of 
Ordinance XIII. of 1872, there must be a 
full hearing of the complaint. Where a 
Magistrate only caused the informations 
sworn in order to procure the warrant, to 
be read to the informants, in presence of 
the accused, and thereafter made an order 
that the accused find secunty under the 
aforesaid section, — Held, this was no hear- 
ing, and the information was quashed with 
costs. Reg. v. Goh Choo - - 106 

see also Insult. 1. - - 90 

BREACH OF TRUST.— A pnsoner was 
charged with breach of trust of certain 
monies entrusted to him by the prosecutor, 
to remit to China : the prisoner had receiv- 
ed the money but omitted to remit it, and 
gave no account thereof, beyond his own 
statement it had been remitted. To shew 
the money had not been received, the 
Magistrate received in evidence a letter 
written by the remittee to the prosecutor, 
stating the non-receipt of the money. The 
prisoner was convicted,— iTe/d, the letter 
was inadmissible in evidence. Several 
persons, besides the prosecutor, who had 
been cheated by the pnsoner in the same 
way, were called on the hearing of the 
above-named charge, and proved the several 
frauds practised by prisoner on them, — 
Held, their evidence was not admissible, as 
proving each, a distinct offence. Ong 
Cheng Yew v. Leong Wee Quan - 104 
see also Pai-tnership. - - 79 

BRITISH INDIA— Natives of,— Immi- 
grant 99 

see Labour. 4. 
BRITISH SHIP— see Jurisdiction. 7. 152 

-SUBJECT— see J u r i s d i c- 

tion. 7. ------ 152 

BUILDlNG--see Conservancy. 1,2. 13,45 



CASBy-Reasonable objection to conviction 
— Magistrate ordered to state, — - 120 

see Magistrate. 12. 

Tara Buss Bhuttacharje v. Bha. 

loo Sheik [8 Suth. W. R. 69] not foUow. 
ed ----- - - 71 

see Labour. 3. 
CAUSING HURT— 5ce Grievous 
Hurt 99 

CHANDOO — Being in possession of illicit 
chandoo, under the Excise Ordinance 4 of 
1870, is a possession with a guilty know- 
ledge. Where it was shewn that the ap- 
pellant was a brothel-keeper and lived in 
the brothel — that some illicit chandoo was 
found in a room of the house, which was 
occupied by one of the prostitutes, and 
when it was found, both he and the woman 
denied they smoked opium, which statement 
was proved to be false, — Held, there was 
no evidence of guilty knowledge. — Query, 
Was the chandoo at all in the man's 
" possession," within the meaning of the 
Ordinance. — Ong Ah Huat v. OpruMEAR- 
MER. 100 

2. Before a person can be convicted 

of ** knowingly being in possession of illi- 
cit chandoo," it must be shewn affinna- 
tively, by direct and reasonable evidence, 
that the place where the chandoo was 
found, was occupied by him, so that the 
things, in such place, must be under his 
control or custody. Therefore, where it 
was shewn that certain chandoo was found 
hidden away in a room in which the pri- 
soner was found at the time of the search, 
but it was not shewn that he was the occ q- 
pier of the room, but merely had access 
thereunto along with many others, — Held, 
there was not that direct and reasonable 
evidence of the chandoo. being in his con- 
trol or custody, and the conviction was 
quashed. An illegal entry into a house, in 
search of illicit chandoo, although it might 
be the subject of an action, does not make 
the finding of any chandoo illegal, and so 
as to render the '' possession" of such chan- 
doo, no offence. Tek Wee v. Opium 
Farmer 132 

3. The appellant having obtained a 

permit for conveying two chests of opium 
by certain specified boats to Kulim, in the 
Malayan territory, proceeded with the 
chests in such boats up to the mouth of 
the Kulim river. On arrival at the Kulim 
river, he found there was not sufficient 
water to permit of these boats going up it : 
he accordingly engaged smaller boats, but 
these were too small to take in a single 
whole chest. The appellant accordingly, 
with the view of carrying on the transit of 
the opium to KuUm, in these latter boats, 



t 



INDEX. 



199 



CBANBOO-'Contin'ucd. 
and without any fraudulent motive, broke 
bulk, placed the 80 balls of each chest into 
a gunny bag, and put them in the two 
smaller boats, — Held, he had committed an 
offence under section 5 of the Excise Ordi- 
nance 4 of 1870, as amended by section 1 
of Ordinance 6 of 1879. The forfeiture of 
illicit or contraband articles, on conviction 
of the offender, is imperative on Maj^is- 
trates. Low Chu v. Opium Farmejr. 156 

4. Where chandoo is not found in the 

actual occupation of the prisoner, and there 
is any ground for supposing that the place 
in which it is found, is not in his usual 
occupation, — fair evidence should be ad- 
duced by tbe prosecution to shew, that he 
had some sort of occupation of that place, 
in order to make the actual occupier's occu- 
pation, the occupation of the prisoner. 
Tan Sim Tee v. Opium Farmer - 174 
5. — —A Magistrate has no power under 
the Excise Ordinances 4 of 1870, 6 of 1879 
or 4 of 1884, to order the forfeiture of a | 
ship, on board of which illicit chandoo is j 
found, — Semhle. This Court is the proper | 
tribunal for making such order. In re, ; 
S. S. Chi Yuen - - - - 176 1 

CHARGE — ^A charge imder one Section 
of an Act followed by a conviction un- | 
der a different section of ahother Act, is i 
bad ....... 98 I 

see Gambling. 3. i 

No offence stated in, — in point of > 

law — conviction quashed notwithstanding 
plea of guilt . - - . - 140 

see Conservancy. 3. 

• When more than one, — power of 

Magistrate — cumulative term - - 182 

see Magistrate. 20. 
CHARTER OF 1826— ♦* Debt, Duty or 
matter in dispute" 1 

see Court of Requests. 1. 
CHEATING— Conviction for,— theft- 
evidence - - - - - 117 

see Theft. 1. 
CHE QUE — see Immoveable Property. 86 
CLAIM TO PROPERTY— Where there is 
a bond fide claim to property, the subject- 
matter of the charge, no conviction for a 
criminal offence in respect thereto, ought 
to be made. Therefore, where it appeared 
that the congregation of a Hindoo Temple 
was divided in the election of a trustee, 
and each party appointed the person chosen 
by them, and one of such parties resolved 
to repair the temple, and their trustee 
thereupon directed the repairs to be done, 
in the course of which a wall of the temple 



CLAIM TO PROPERTY— conhnwe^?. 

was pulled down, — Held no criminal offence 
had been committed. Under such circum- 
stances, the Court on appeal, quashed the 
conviction as regarded the fine imposed on 
the prisoner, but upheld the further order 
of the Magistrate by which he directed the 
prisoner to be bound down to Iceep the 
peace and also refused the appellant his 
costs. Dorehsawmy Pillay v. Arna- 
shellam Patten - - - 105 

2. A claim set up by a prisoner to 

property which is alleged to be stolen or 
criminally misappropriated, does not oust a 
Magistrate of his jurisdiction, unless the 
claim be homt fide raised. Where, from 
the case as sent up, it was doubtful whether 
a witness, the wife of the prisoner, was 
called for the prosecution or defence ; and 
on appeal, the prisoner alleged she was 
called by the prosecutor, and the prosecu- 
tor alleged she was called by the prisoner, 
and the Magistrate had no recollection on 
the point, but subsequently believed she 
was called by the prisoner, and then, for the 
first time, in a foot-note to the case, stated 
she " was called for the defence" — both 
prosecutor and prisoner being prepared to 
tile affidavits by themselves and others in 
support of their respective allegations, — 
Held, as the evidence of the wife, if called 
by the prosecutor, would clearly be inad- 
missible, and her evidence was of a mate- 
rial kind, that the conviction ought to be 
set aside, and the prisoner tried afresh. 
Mat Issah v. Mas Etah - - 134 

3. The entry and taking possession 

of property under th*:** bona fide belief of a 
right thereto, and in assertion of such 
right, although accompanied by high-handed 
acts, which insult or annoy the person in 
possession, — provided such acts are merely 
incidents to the assertion of title, and not 
done with the piimary intention of insult- 
ing or annoying, — do not make a person 
liable to be convicted under secjiions 441 & 
447 of the Penal Code. Mat Salleh 

V. Sarah 167 

CLUB — Observations on games played 
at, — see Gambling. 2. - - - 94 
COLLECTOR OF LAND REVENUE— 
Survey of land in dispute — powers — costs 
see Landmarks. 

COMMON GAMING HOUSE— «e« Gam- 

bling. 

OBJECT— see Rioting . 61 

see also Unlawful Assem- 
bly. 1 89 

COMPENSATION— Negligence — 

Pledge 161 

6e€ Faws^s^osgk, 3, 



200 



INDEX. 



CONJCJGAL DOMICILB— «ee Married 
Woman. 2 126 

CONSERVANCY— Section 36 of the Con- 
servancy Act XIV. of 1856, has no applica- 
tion to the case of a house erected before that 
Act was passed, but the roof of which is 
renewed with inflammable materials, sub- 
sequently to that Act coming into operation. 
Bkgina v. Mbbra Lbbbt - . 13 

2. The roof or external wall, of a 

house built before the coming into operation 
of Act XIV. of 1856 and which is not contigu- 
ous to or adjoining any other building, cannot 
be compulsorily removed : and the fact that 
such roof is removed subsequently to the 
Act being law, makes no difference. A 
detached hut or building in existence before 
that Act, may therefore not only stand, but 
be repaired from time to time, provided such 
repairs do not amoimt to a renewal of the 
structure. Rbqina r. D*Oliveiro - 45 

3. - — The mere keeping of pigs in one's 
premises, is no offence under the Conser- 
vancy Act XIV. of 1856, and Ordinance 2 
of 1879 : to bring the case within section 43, 
it must be shewn the premises are ** in or 
near any street," and such "street" is 
within the prescribed limits. Where 
a person is charged with doing an 
act without a license, but the existence or 
non-existence of such license is peculiarly 
within the knowledge of the prosecutor, it is 
for the prosecution to shew tne prisoner had 
no license, and not for him to shew he had 
one. A conviction which states a prisoner 
is ordered to pay costs, but omits to state 
the amount, is bad and liable to be quashed. 
— Semble. Such an error might be amended, 
by the case being remitted to the Magistrate 
to state a definite amount. — Query, — Has 
the Magistrate power to fine for costs, on 
convictions for offences other than under 
the Police Act XIII. of 1856? A prisoner 
held a license for a slaughter-house, — Held, 
such license necessarily implied a right to 
keep pigs for the purpose. A prisoner who 
pleaded guilty to a charge v/lncli stated no 
offence in point of law, anl against whom 
the evidence also disclosed no (offence, was 
permitted to appeal against the conviction 
and sentence thereby following, and euch 
conviction was quashed. MuN. Comers. 
V, Chuah Seng & ors. - - - 140 
CONSTRUCTION OF CONVICTIONS 
— Justices of the Peace - - - 10 

see Record op Conviction. 
CONTRABAND ARTICLES— Forfeiture 
of, — imperative on Magistrates on convic- 
tion of offender .... 156 

see Chandoo. 3. 
OONTEACT— Infancy ... 1 

99Q Court qv R£<^V£Sts. 1« 



CONTRACT— continued. 

Labour, — see Labour, 1, 3, 6, 7. 

16, 71, 164, 186 
Engagement of Police Consta- 
bles - . 194 

see Police. 2. 

CONVICTION— Where the Information 
and Summons against a defendant charged 
him with an offence under one section, — 
Held, that a conviction under a different 
section could not be sustained - - 6 
see Witness. 1. 
2. ^—Doubtful meaning of Regulation 

or Act 10 

see Record of Conviction. 

3. Amendment of, — by Court, where 

mistake one of form - . . 67 
see Lottery. 
4. Indian Evidence Act — see Evi- 
dence. 2. 79 

5. A conviction which awards costs, 

must shew the amount thereof, otherwise 
the conviction will be bad- - - 88 
see Mischief. 1. 

6. Sentence under a section different 

from that charged, bad - - - 98 
see Gambling. 3. 
7. Irregularity in calling of wit- 



a 



10. — 
offences 



see Irregularity. 

see also Witness - - 6 

-Jurisdiction - - - 99 

see Grievous Hurt. 

-Theft— Cheating— Evidence 117 

see Theft. 1. 

■One penalty for two distinct 
119 

see Notice of Appeal. 

11. When reasonable or arguable 

ground of objection to, — Magistrate order- 
ed to state case . . - . 120 

see Magistrate. 12. 
12. Sealof Office— Defect - 

see Magistrate. 16. 

13. Costs when ordered to be 

amount must be stated in 

see Conservancy. 3. 

14. A conviction for two offences, 

and awarding one pimishment, is bad. 
The objection is not a lormal one, and is not 
aided by Sections 32 and 33 of the Appeals 
Ordinance 12 of 1879. Cartan v. Mee- 
NACHEE 151 

15. Proof of previous, — formal re- 
cord—evidence - - - - - 171 
«ee GambIiING. 5, 



136 



paid, 
140 



t 



hjdex. 



201 



COSTS — As to Magistrate's power to award, 
— ^under the Penal Code — costs in Convic- 
tion 88 

see Mischief. 1. 
Crown not being named in Ap- 
peal Ordinance not liable for, — in an ap- 
peal ^^ 

see Labour. 4. 

rAs to Magistrate's power to fine 

for Qpsts on convictions for offences other 
than under the Police Act XIII. of 1856 — 
amonnt to be stated in Conviction — 140 

see CONSBEVANCY. 3. 

Survey — Land in dispute - 158 

see Landmarks. 

COUNSEL— The absence of Counsel for 
a prisoner, although unavoidable, is no 
ground for postponing the trial of a case; 
and the refusing to do so by a Magistrate, 
is no ground for an appeal, although the 
prisoner be convicted. Velloo Pullay 
V. KaDIEB & ANOK. - - - - 50 

COURT OF REQUESTS— The Court of 
Requests has jurisdiction to adjudicate on a 
case, where the debt originally exceeded 
the limited amount, but has been reduced 
below it, by part-payment, — the Statute of 
Limitations, — or the infancy of the con- 
tractor : and the reason for this is, because 
these defences go to the root of the claim 
and operate to the disaffirmance of the debt, 
and although a larger sum may become the 
subject of enquiry, yet the whole existing 
debt, is within the necessary amount. Such 
original debt, however, to which there is 
only a partial defence as a set-off or tender, 
is not within its jurisdiction, as it is op- 
tional with a defendant whether he will 
avail himself of the defence or not, and 
until he does so, there is no existing debt 
within the necessary amount. The gene- 
ral principle for deciding whether a defence 
is to be taken as part- payment or set-off is, 
to ascertain whether, by the course of deal- 
ing between the parties, the items of their 
respective accounts are to be set against 
each other, and any monies or the v^ue of 
goods received by the one are to be treated 
as made in liquidation of the other's account 
— or whether no such course of dealing ex- 
ists, and the transactions are substantially 
unconnected and distinct. In the former 
case, the dealings will operate as a part- 
payment, and any balance on the ac- 
count, under the limited amount, will be 
within the jurisdiction of the Court of Re- 
quests — in the latter they will be mere 
matter of set-off, optional to the defend- 
ant, and will not be within such jurisdic- 
tion. The clause in the Charter of 1826, 
relating to the *' debt, duty or matter in dis. 



COUNSEL— continued. 

pute" triable before a Court of Requests, 
must be read riddendo singula singulis , 
and the words " matter in dispute " mean: 
the thing claimed and denied, and not 
anything which may come incidentally in 
question, and has not the same meaning as 
the previous word " debt." The word 
" debt," applies to cases where there is a 
definite sum due, within the limited amount, 
and the words '* duty or matter in dispute," 
to the unspecified class of other suits and 
causes of small amount, to which the power 
of the Court also extends. Warn v. Gau- 

DART ------ 1 

2. A plaintiff sued a defendant in 

the Court of Requests, for money lent to the 
defendant, in order to help her in distress 
during her husband's illness, and obtained 
judgment against her. On appeal, this 
Court refused to interfere with the decision, 
although the loan was made to the defend- 
ant, a married woman, during her 
I husband's lifetime, and since his death 
neither she nor anv one else had taken 
administration to his estate. Mymoona v, 
Mahomed 10 

3. A Commissioner of the Court of 

Requests, although he is and can only be a 
Magistrate, has not, when he sits as Com- 
missioner, the powers of a Magistrate, and 
cannot therefore fine, or commit to prison 
for an assault on his peon, or the like, except 
as provided by the Court of Requests Act, 
1866. In re Vanjoor Mustan - 122 
COURTS — Origin and constitution of the 
Court of Quarter Sessions, of two Magis- 
trates, and Police Courts, considered. 110 
see Appeal. 5. 

CRIMINAL BREACH OP TRUST— «ee 

Partnership 79 

see also Breach of Trust. - 104; 



CONYERSION— «ee Moveable 

Property ----- 86 

INTERCOURSE— we Tres- 

pass 131 

MISAPPROPRIATION— see 

Moveable Property - - - - 86 
see also Claim to Propei*ty. 2. - 134 

CRIMINAL TRESPASS— Before a person 
can be convicted of criminal trespass, it 
must be shewn aflRrmatively, that he enter- 
ed into the place in order *' to intimidate, 
insult or annoy, or to commit an offence," 
withing section 441 of the !^enal Code, — 
Query. Has the Magistrate power under 
section 60 of Ordinance 12 of 1872, to bind 
a person over to keep the peace on con- 
viction of criminal trespass? Cassim 
V. Haji Ma^om£p Sygd • • 101 



I 



202 



INDEX. 



CRIMINAL TRESPASS— co»th*n?tc(?. 
2. Adultery — Annoyance — Insult- 131 

see Trespass. 
CROWN— Costs in appeal - - 99 

see Labour. 4. 

No party to an appeal — locus 

standi 144 

see Appeal. 7. 
LAND-Trespass — Evidence — ani- 
mus furandi 143 

see Theft. 2. 

Encroachment — abettor of 

mischief - - • - - - ISi 

see Mischief. 3. 
CUMULATIVE TERM— Distinct offences 
— power of Magistrate - - - 182 

see Magistrate. 20. 
DEBT — ^Part-payment — Defence — Statute 
of Limitations - - - - 1 

see Court of Requests. 1. 
DEFENCE — Evidence in reply after de- 
fence closed— irregularity - - 79 

see Evidence. 2. 
Calling of witnesses for prose- 
cution after defence closed - - 98 

see Irregularity. 

Application to search for 

prosecutor's books to be evidence for, — 
refused 107 

see Search Warrant. 
DISHONEST MISAPPROPRIATION 
OF PROPERTY— «ee Partnership - 79 
DISTINCT OFFENCES— One penalty for 
two, — Conviction quashed - - 119 

see Notice of Appeal. 

. Magistrate no 

power to sentence for, — for cumulative term 
exceeding six months - • - 182 

see Magistrate. 20. 
ENGLISH LAW— As applicable to this 
Colony - 16 

see Labour. 1. 

see also Gambling. 2. - 94 
EVIDENCE— Witness present in Court 6 

«et> Witness. 1. 

2. After the case for the defence has 

been closed, evidence in reply, which con'o- 
borates the case for the i)rosecution is in- 
admissible : but if the evidence is immate- 
rial by reason of there being sufficient 
evidence to comvict, apart from the evidence 
so wrongfully admitted, the irregularity is 
cured by section 57 of Act II. of 1855^ and 
the conviction will be upheld. Act II. of 
1855, sec. 57, applies to convictions by 
Magistrates. Yersay v. Mahomed Ha- 
NiyF • .,..-- 79 



3. Conviction for unlawful assembly 

—evidence of free fight - - - 89 
see Unlawful Assembly. 1. 

4. Conviction on the evidence of a 

lesser offence — appeal by prosecution— no 
interference with Magistrate's decision. ^1 
see Prosecutor. 1. 

5. Irregularity — witnesses called for 

prosecution after defence closed - 93 
see Irregularity. 

6. On the hearing of a criminal 

charge against a prisoner, the Magistrate's 
notes of evidence of a previous case tried 
before him, although relating to the same 
subject-matter and against the same pri- 
soner, is not admissible in evidence. 
Letchmee & ANOR. V. Ramasawmy. 102 

7. Production of Letter - - 104 

see Breach of Trust. 

8. Production of prosecutor's hooks 

as evidence for the defence - - 107 

sec Search Warrant. 

9. Magistrate's decision not reversed 

unless grossly against the weight of evi- 
dence - • - - - - 108 
sec Magistrate. 11. 
10. Kidnapping from lawful guar- 
dianship — age of minor - - - 109 
see Kidnapping. 1. 

11. Conviction for theft or cheat- 
ing - - - - - - 117 

see Theft. 1. 

' 12. Bad character of accused — 

I conviction ----- 130 

I see Magistrate. 15. 

I 13. Possession of Chandoo — custody 

— control - - - . - - 132 

see Chandoo. 2. 

14. Claim 

tion 

see Claim to Property. 2. 

15. Magistrate — knowledge of facts 

— cross-case - - * - - 138 

s3^ Magistrate. 17. 

16. Proof of previous convictions- 
production of formal record - - - 171 
see Gambling. 5. 

EXCISE CASE— Information in, and Com- 
mitment of person to Jail — no part of ap- 
peal in, — - 136 

see Magistrate. 16. 

FACT — Magistrate's decision on matters 
of, — non-interference of Court - - 92 

see Prosecutor. 1. 

see also Magistrate. 11. . 108 



to property — Jurisdic- 
- 131 



t 



DTDES. 



203 



FEAST— Holding of Kundnri or,— at 
private residence — Police Pass not re- 
quired ----.. 118 

see KuNDTJRi. 
FIGHT — Rioting — no common 
conviction quashed . - - 

see Rioting. 
«eea7so Unlawful Assembly. 1. - 

see also Insult. 1. - 
FINE — Magistrate's decision not 
on ground of smallness of - 

see Magistrate. 11. 

FOREIGNER— Jurisdiction of Magistrate 
to try, — for assault on high seas — foreign 

ship - - 152 

see JuEiSDiCTiON. 7. 
FOREIGN SHIP—see Jurisdiction. 7. 152 



object— 
- 61 



- 90 

reversed 

. 108 



GAMBLING— confmwcd. 

5. " Occupier," in section 2 of the 

Gaming House Ordinance 13 of 1879, means 
a person having actual, and not merely 
constructive occupation, of the place alleged 
to be the Guming House. In order to prove 
that a place is nsed as a Gaming House, so 
as 'to render the owner or occupier thereof 
liable under the Act, it is necessary to shew, 
by direct evidence, that the place had been 
so used ; or, if there are convictions against 
persons, for having been found gaming in 
such place, the formal records of such con- 
victions must be produced, and viva voce 
evidence of the fact of such convictions, is 
inadmissible. Reg. v. Aw Eng Tho - 171 

6. The mere possession of instru- 
ments for garni i»g, is not permissible under 
^ ^ ,,^ the Gaming Ordinance 13 of 1879. Reg. v. 
GAMBLING— In order to render a person Abbass k anor. . . - - 184 



liable to conviction for gaming, it must 
appear he was gambling in a street or in a 
place used as a common gaming house : 
the fact of being merely found gaming 
with others in a casual private spot or 
house, does not bring the case within the 
Act. Regina v. Tan Ah Fook - 43 

2. — ^ — A house kept up by private 
subscription among members, at which they 
met, ate, drank, played games of ** chike," j 
dominoes, cards, Ac., for money, on certain I 
days of the week, and occasionally remained j 
one night, was^ not a ** common gaming 



GAMING — see Gambling — see also Lottery. 
GOVERNMENT TIMBE R— Evidence- 
Theft - - - . - . 143 
see Theft. 2. 

GRATIFIC ATION—Receiving,— Official 
act 114 

see Receiving Geatification. 1. 

GRIEVOUS HURT— Where, in an attack 
on a person, a bone is broken, this makes 
the offence " grievous hurt" under the Penal 
Code ; and a Magistrate has no jurisdiction to 



house,'* withm the Gaming Ordinance 9 of . dispose of the case summarily. • The evi- 



1876. The Statute Law of England relat- 
ing to gaming, and the Enojlish Statutes 
declaring certain games illegal, do not 
extend to this Colony. Observations on 
games played at Clubs, &c., and on games 
of skill and chance. Reg. v. Tan Sin 

Hap&anoe. 94 

3. Before a person can be con- 
victed of gambling or being the owner 
of a common gaming house, the prosecution 
must shew by evidence, what the game is 
that is played, ao that the Court can decide 
whether the game falls within the Act or 
not. A charge under one section of an 
Act followed by a conviction under a dif- 
ferent section of another Act, is bad. Reg. 
V, She;k Hossain & orb. - - - 98 

4. A Justice of the Peace is entitled 

under the Gaming Ordinance XIII. of 1879, 
to enter a house without a warrant, on receipt 
of information that a house is a common 
gaming house. The fact that a Justice of 
the Peace so acts imder section 10 of the 
Ordinance, and afterwards appears as pro- 
secutor in the case, does not make the seizure 
bad, or the proceedings before the Magis- 
trate, irregular. Reg. v. Lee Hong Kang | 
& OBS. -.-•,- 145 I 



deuce in the case shewed that the respondent 
had been attacked, and a bone of his finger 
broken: the Magistrate having tried the 
appellants summarily, and convicted them 
of voluntarily causing hurt, this Court 
quashed the conviction as having been made 
without jurisdiction, and directed the case 
to be remitted to the Magistrate to be heard 
as a preliminary proceeding, and com- 
mitted to the Assizes. Man & anoe. v. 
Samsah 99 

GUILT — Plea of, — Conviction quashed on 
appeal 14<0 

see Conseevancy. 3. 

HURT— Attack—jurisdiction . 

see Geievotjs Huet. 

HUSBAND— Loan to married 
administration 

see CoxTET OP Requests. 2. 

Magistrate no jurisdiction to 

order married woman to returii to her, — 126 

see Maeeied Woman. 2. 

ILLEGAL ENTRY— Finding of Chandoo 
— Civil Action - . - . X32 

see Chandoo. 2, 



99 



woman— 
10 



204 



htbbz. 



ILLICIT ARTICLES— Porfeihireot— im- 
perative on Magistrates on conviction of 
offender 156 

see Chandoo. 3. 
IMMIGRANT— «ee Labour. 4,5. 99, 148 
INACCURACY— Notice of Appeal - 119 

tee Notice of Appeal. 
INDIAN ACTS— «ee Acts. 

INFANCY— Part.payment— Statute of 

Limitations 1 

see CouET of Requests. 1. 

INFORMATION— OfPence disclosed— 
Magistrate to issue summons - 102 

see Summons. 

; Order on, — being read — 

no hearing 106 

see Breach of the Peace. 

Excise Case — Commit- 
ment— no part of appeal case - - 136 

see Magisteate. 16. 

INSULT — Before a conviction can be bad 
under section 504 of the Penal Code, it 
must be shewn that the insult was given 
with the intention of causing the person 
insulted to commit a breach of the peace. 
Where therefore five men, of a night, visited 
the house of the prosecutor, and called him 
out to fight, and abused him, — Held,Hi2it 
as the prosecutor single-handed was not 
likely to go out and attack the five men, 
there was no evidence of such intent, 
and the conviction was quashed. Query, — 
Whether the Magistrate can, on a convic- 
tion under section 504 of the Penal Code, 
order the prisoner to be bound down to 
keep the peace P — Query. Is an order to 
keep the peace bad, if it omit the alterna- 
tive sentence of imprisonment under sec- 
tion 60 of Ordinance 13 of 1872 P Mootoo 
& OES. V. Ayah Doeeh Pillay - 90 

2. Criminal Trespass — Intimidation 

—Intent 101 

see Ceiminal Teespass. 1. 

3. Criminal house- trespass — Crimi- 
nal intercourse . . - . 131 
see Teespass. 

4. Taking of property by force — high- 
handed acts 167 

see Claim to Peopeety. 3. 
INTENT— Insult— Breach of the Peace 90 

see Insult. 1. 
INTEREST^Mortgagor— N on-redemp- 
tion of mortgage — Notice — Mortgagee 186 

see Moetgaqb. 1. 
IRREGULARITY— A mere in-egularity 
in the trial of a case before a Magistrate, 
such as calling witnesses for the prosecu- 



i ntREGXTLARITT— co»«nu«<l. 

tion after the prisoner has been called on 
for and stated his defence, is not such as 
will induce the Court to quash the conWc- 
tion. Chooashaey & anoe. v. Cassim. 98 

I JURISDICTION— Part-payment— Statute 
of Limitations — Infancy of Contractor- 1 
see CouET of Requests. 1. 

2. A prisoner who commits an oifence 

out of the jurisdiction, cannot be proceeded 
against, unless it be under Act 1 of 1849, or 
VII. of 1854, and the Information for a 
Warrant for his arrest, ought to disclose 
such facts as bring the case within those 
[ Acts. Therefore, where A. laid an inform- 
ation against B, alleging that certain tin 
I belonging to him was stolen hj a tbii-d party 
at Larut, and that such third party had 
shipped the tin on board B's vessel, and 
ordered him to get it resmelted, so as to 
obliterate A's marks, and then to bring the 
tin to this Settlement for sale, which B. 
accordingly did, knowing all the while it was 
stolen property, — and praying for a searcli- 
warrant to seize such tin and compel B. to 
give an account of the manner in which it 
came into his possession, — but did not 
comply with the provisions of either of the 
above-named Acts, or disclose such facts 
as to bring the case within those Acts, 
— Held, [affirming the decision of the Police 
Magistrate], that the Information was in- 
sufficient, and on the face of it, no jurisdic- 
tion appeared, and that therefore a search 
warrant ought not to issue. A Magistrate 
has power U) recall a warrant issued by him, 
although it may be in the hands of the 
Police, if he subsequently considers that by 
granting the warrant he exceeded his juris- 
diction. Ho Ghee Siew & anor. v. Na- 
coDAH Mahomed - - - - 51 

Discontinuation of Nui- 
sance- ------ 85 

see Nuisance. 2. 

3. A Magistrate has no, — to dispose 

of a case of " grievous hurt" siimmarily- 99 
see Grievous Hurt. 

4. Conviction of Criminal Trespass- 
Order to keep the peace - - 101 
see Criminal Trespass. 1. 

5. Where the evidence in a case leaves 

it doubtful which of two or more offences 
[some within and some beyond the Magis- 
trate's jurisdiction] a prisoner has commit- 
ted, and the Magistrate has convicted for 
one within his jurisdiction, this Court will 
not interfere with his decision : but where 
the evidence shews that the prisoner has 
committed only one and that a graver 
offence, and the Magistrate has wrongly 
convicted him of a lesser offence and one 



INDEX. 



205 



JURISDICTION— cowfinwec?. 

over which he has jurisdiction, the Court 
annulled the conviction, and remitted the 
case to be dealt with as on the graver charge. 
Where therefore a Constable in order to 
obtain money, falsely charged a milk-man 
with having adulterated milk in his posses- 
sion, and threatened to take him before the 
Magistrate on such charge, and thereby 
obtained money from the man in consider- 
ation of his releasing him, — and the Magis- 
trate convicted the Constable of receiving 
a gratification for forbearing to do an official 
act,— IfeZt?, that the conviction could not be 
sustained, as the Constable forbore to do 
not an official act, but a wrongful act, and 
the Magistrate had no jurisdiction. Se- 
CUNDER V. Kyamboo — Reg. V. Shavoo-116 
6. mari'ied woman — return to con- 
jugal domicile- - . - . 126 

see Married Woman. 2. 

7. A Magistrate has no jurisdiction 

to try a foreigner for an assault on the high 
B3as on board a foreign ship. The words 
" any person" and' " wheresoever commit- 
ted," in the Statute 12 & 13 Yict., c. 96, s. 
1, though general in its terms, apply only to 
offences committed by British subjects, or 
on board British ships. The Statute merely 
confers on the Criminal Courts of Common 
law, the jurisdiction formerly possessed by 
the Admiralty, but no more : the jurisdiction 
of the Admiralty was limited as above. 
Hass i?.' Choo Chye Hok. - - 152 
JUSTICE OF THE PEACE— General ob- 
seryations on duties of, — Construction of 
their convictions - - - . 10 

see Record of Conviction. 

; ; Power to enter 

gaming-house without warrant on Inform- 
a!}ion received - - . - - 145 

see Gambling. 4 
KIDNAPPING— Where a prisoner is 
charged under section 363 of the Penal 
Code, with kidnapping a minor under six- 
tein, from lawful guardianship, the prose- 
cution ought to shew by satisfactory and 
conclusive evidence, that the child is under 
that age. Where the only evidence was, 
that of the minor that her mother had told 
her her age, and the alleged guardian stated 
that the mother had also told her the same, 
but the parents of the child,— being out of 
the jurisdiction, were not called,— JTeZ(?, that 
the evidence of age was too slight for con- 
sideration, and the conviction was annulled. 
Where the alleged guardian stated the 
minor was a niece of her husband, and had 
bean adopted by her for the then past seven 
years, and the minor spoke of the guardian 
as her aunt, — Held, [in the absence of evi- I 
dence to the contrary] that there was | 



KID'SATTINGr-eonUnued. 
ample evidence of lawful gaardlanship. 
FoNG Ah Chan v. Kah Sew - 109 
KNOWLEDGE OF FACTS— Adjudica- 
tion by Magistrate — Evidence - • 138 

see Magistrate. 17. 
KONGSI— Secret Society,— Fight— Com- 
mon object 61 

see Rioting. 

Unlawful assembly — Common 
- 89, 118 



object 



see Unlawful Assembly. 1, 2. 



KUNDURI— The holding of a kunduri or 
feast in one's private residence, does not 
require a pass from the Police authorities, 
and the holding of such kunduri, apparently 
without a pass, is not illegal, so as to render 
persons assembled with the object of dis- 
turbing such kunduri and preventing people 
from attending same, not punishable under 
section 143 of the Penal Code. Nawas 
& ANOR. V. Shaik Rajah Alli - 118 
LABOUR— The fact that a labourer has 
already been convicted under Act 4, Geo. 
lY., c. 34, for absenting himself from work, 
is no bar to his prosecution under the same 
Statute for a second absenting, although 
during the existence of the same contract. 
The Act 4, Geo. IV., c. 34, is law in this 
Colony, and the Magistrate's power under 
it, is not exhausted by such first convic- 
tion. The Law of England [Common law. 
Equity, and Statutory] as applicable to this 
Colony, discussed. Regina v. Willans, 16 

2. The respondents were laborers, and 

had entered into a contract to work as such, 
on appellant's Estate, for 24 calendar 
months ; six days before the contract ex- 
pired, they refused to work any further, and 
were sununoned before the Magistrate— 
they were summoned before the term ex- 
pired, but the case was heard after the 
expiration of the term. They had also 
refused to work on various other days 
during the term.— HeZ^Z, the Magistrate 
could, under the Act XIII. of 1859, order 
them to return and work the six days, as 
also for such other days as they had refused 
to work. Lamb v. Ponen & ORS. - 62 

3. The respondents, who were laborers 

on a Sugar Estate, and had entered into a 
contract to work for one year, were charged 
before the Magistrate with fraudulent 
breach of contract. It appeared that the 
contract was still unexpired, but the ad- 
vances had been paid off. It^lso appeared 
that they refused to work in consequence 
of the appellant, their master, claiming to 
withhold their wages for seven weeks, after 
it was due, on the ground of a general 
custom to such effect. The contract was 
silent as to time of payment of wages.— 



INDEX 



LABOUR— coniinu«(2. 

Held, firstly, that there can be a fraudulent 
breach of contract, notwitll^?tandillJ^ the 
advances had been paid oil*, aud tlio Act 
XIII. of 1859 was applicable to such a case. 
Secondly, that the custom was neither uni- 
versal, certain nor reasonable, and the 
laborer had *' lawful and reasonable excuse," 
for refusing to work. Tara Buss JBhutta- 
eharje v. Bhaloo Sheik, [8 Sutherland's W. 
R. Cr. 69] not followed. Lamb v. Kattan 
& 0R8. 71 

4. The Labour Ordinance 1 of 1876, 

which makes the biinging of an Immigrant 
to this Colony from India, without observ- 
ance of the formalities therein prescribed, 
an offence, applies only to Immigrants who 
are natives of " Britith India." The Crown 
not being named in the Appeal Ordinance, 
no costs can be awarded against it in an 
appeal. Reg. v. Shaik Ishmael Lebby 99 

5. "No rules for the accommodation 

of Immigrants employed on Estates, having 
been prescribed under secticms 36 & 39 of 
Ordinance 1 of 1876, no conviction for neg- 
lecting to provide such accommodation can 
be had. Reg. v. Tan Sim Ho - - 148 

7. A laborer contracted, in consider- 
ation of certain advances for his passage 
money, &c., and a promise by the employer 
to pay him small monthly wages, to serve 
his employer, as a laborer on his estate, for 
a period of 360 days ; and should he boiTOw 
of his employer sums of money in excess of 
the wages and advances agreed to, that he 
would not abscond or run away or othei-wise 
leave the estate before having paid the 
amount of work agreed to, or the monies 
borrowed in excess of his due. He there- 
after worked out his 360 days, but during 
this time drew monies in excess of his due. 
After the 360 days were over, he refused to 
work any longer under the contract at the 
wages therein specified, but having drawn 
in excess of his due, he remained on the 
estate ready to work at the usual wages of 
the coimtry, and neither absconded, ran 
away or otherwise left the Estate. The 
employer considering he was entitled to the 
laborer's services beyond the 360 days, until 
the amount drawn in excess of the man's 
due for that period was paid off, by wages 
stipulated for in the contract, charged the 
laborer under section 14, clause 5 of Ordi- 
nance 1 of |1882, with absenting himseK from 
his employer's service, — Held, on appeal, 
affirming the , decision of the Magistrate, 
that there was no absenting himself [by the 
labourer] from his employer's service, as 
there was nothing in the contract requiring 
the labourer to work beyond the 360 days ; 
that the labourer had done all he contracted 
to do in consideration of^his being in his 



LABOUR— confinue^. 
employer's debt, by remaining on tbe estate 
without absctmding or running away or 
otherwise leaving the Estate, and the 
Magistrate was right in dismissing the case 
uo sooner these facts appeared. XohBoo 
An v. Tioh Jee - . - - 164 

7. A labour contract made under the 

provisions of an Ordinance, is not put an 
end to, by a subsequent repeal of that Or- 
dinance ; but [provided the repealing Or- 
dinance does not re-enact the penalties], 
' the Statutory incidents only, — [such aa 
i dealing with breaches of the contract 
I criminally], — are done away with. Seo- 
' tion 10 of the Labour Contract Ordi- 
I nance 1 of 1882, includes cases of contracts 
; for labour, — breaches of which, prior there- 
I to, were not punishable criminally ; pro- 
I vided there is no express provision in 
' the contract itself, to the contrary. 
I The absenting from service by a labourer, 
i is a continuing breach, and an " offence" 
I committed de die in diem ; and may so 
I be dealt with. Where therefore a lal^or- 
I er contracted under Ordinance 2 of 
I 1877, to serve his master for a certain 
I number of days, but before the time 
I was out, absconded from the Estate 
I and was never seen again until aiTcst- 
I ed in October 1884 — ^but in the int^r- 
I val, the Ordinance of 1877 was repealed by 
Ordinance 4 of 1880, which did not re-enact 
penalties for breaches of Contract^ — and by 
Ordinance 1 of 1882, which became law in 
February, 1884, all contracts for service 
made prior to that Ordinance, were to be 
considered in force after the passing of that 
Ordinance, and subject to the liabilities of 
that Ordinance, whereby criminal liability 
for breaches of labour contracts was res- 
tored [although between 1880 and 1882 
there had been a suspension of such liabi- 
lities] — and the laborer having been ar- 
rested in 1884, was charged before the 
Magistrate with absenting, — Held, 1st, the 
contract for service was still a subsisting 
one ; 27id, that it was a contract for sei'vice 
within Section 10 of the Ordinance of ISS'2, 
and that breaches thereof were liable to he 
dealt with criminally ; Si'd, that the absence 
of the laborer was a continuing breach, and 
an offence de die in diem, and so punishable 
under that Ordinance, as amended by Ordi- 
nance 3 of 1883. Ong Hong Jiow v: Teii 

TanKiat 189 

LAKD — ^Encroachment on Crown, — Cut- 
ting of timber ^ . . - 154 

see Mischief. 3. 
Power of Collector of Land Re- 
venue to order survey of, — in cases of dis- 
pute — landmarks - . . - 158 
see Landmarks, 



( 



INDEX. 



207 



LANDMARKS — Except there is a dispute 
as to the proper position^ of landmarks, 
and the matter is reported to the Collector, 
there is no power in the Collector of Land 
Revenue to order a survey of any land with 
a view to putting up or repairing landmai-ks 
under Ordinance 7 of* 1882 ; and the owner 
of such land cannot be ordered to pay the 
expenses of such survey. The fact that 
the land is overgrown, and there are no 
proper landmarks marked out, although 
necessitating a survey, does not render the 
owner of such land liable to pay the ex- 
penses of the survey, where the Collector 
has proceeded merely after notice, under 
Section 6 of the Ordinance. A Magistrate 
[on the prosecution by the Collector of Land 
Revenue] having, under such circumstances, 
ordered the defendant, the owner, to pay 
the expenses of such survey, on appeal, 
such order was quashed and costs awarded 
against the Collector. Reg. v. Kweh Te 
HiN ------ 158 

LAWFUL GUARDIANSHIP— Kidnap, 
ping from, — Age — Evidence - - lU9 
see Kidnapping. 

LAW OF ENGLAND— As applicable to 
this Colony 16 

see Labour. 1. 

see also Gambling. 2 - 94 

LICENSE — Where a person is charged 
with doing an act without a license, but 
the existence or non-existence of such a 
license is peculiarly within the knowledge 
of the prosecutor, it is for the prosecution 
to shew the pnsoner had no license, and 
not for him to shew he had one - 140 

see Conservancy. 3. 

see aZso Pawnbroker. 1 - 124 
LIMITATIONS— Statute of,— Juiisdiction 
— Part-payment ... - 1 

see Court of PtEQUESTS. 1. 

LOCUS STANDI— Crown— Parties to an 
appeal - 144 

see Appeal. 7. 

LOTTERY — Where a person carries on 
the business of a public lottery, and all the 
proceedings therein, up to the time of 
declaring the winner and paying him his 
winnings — such as the sale of tickets, stak- 
ing, &c., — is done by means of Collectors 
who go from place to place in pursuit of 
their object — ^l3ut the declaring the winner 
is made from a house or compound, at which 
the players are notified to assemble, — Held, 
that although the actual declaration may 
have been made on land which abutted from 
such compound upon a public street, yet 
such declaration is from a " place" within 
tixe meaning o£ Ordinance 13 of 1870. 



IjOTTBRY— continued. 

Where a conviction was in effect under one 
clause of the Ordinance, but by mistake 
was stated to be under another, — Held, the 
mistake was only as to matter of form, and 
the Court amended the conviction by strik- 
ing out the incorrect clause, and inserting 
the proper one. Regina v. Koomah 67 
MAGISTRATE— Not legaUy justified in 
allowing Revenue case to be withdrawn, 
offence not being of a private nature — A 
Magistrate may adjourn a case to consider 
his decision - - . . - 6 

see Witness. 1. 

2. The doubtful meaning of a Regu- 
lation or Act does not excuse a Magistrate 
from stating in the record of conviction the 
particular clause or section alleged to be 
infringed .... - 10 

see Record of Conviction. 

3. A Magistrate has power to recall 

a warrant issued by him, although it may 
be in the hands of the Police, if he subse- 
quently considers that by granting the 
warrant he exceeded his jurisdiction - 51 
see Jurisdiction. 2. 

4. A Magistrate may, in the cases 

referred to in section 62 of Ordinance 6 of 
1873, convict for one offence when the 
charge is for another - - - 84 
see Nuisance. 1. 

5. As to his power to award costs for 

offences under the Penal Code - 88 

see Mischief. 1. 

6. It is inconsistent, and open to 

serious objection, that a person who is 
Assistant Superintendent of Police and 
receives reports of cases as such, should act 
as Magistrate, and afterwards try the same 
cases ------ 89 

see Unlawful Assembly. 1. 

7. Adjudication of, — on evidence 

before him — refusal of Court to interfere 

with decision 92 

see Prosecutor. 1. 

8. Evidence disclosing more serious 

offence — commitment ordered to Assizes 99 
see Grievous Hurt. 

9. -As to his power to order a person 

to be bound over to keep the peace on 
conviction of criminal trespass - 101 

see Criminal Trespass. 1. 

10. No option in granting or refusing 

a summons 102 

see Summons. 

11. ^A Magistrate's decision will not 

be reversed on the ground of its being 
against the weight of evidence, unless it be 



INDEX. 



MAGISTRATE— c(mhHtt€(£. 

grossly so. When a Magistrate has fined 
a 'prisoner, the Court wifl be reluctant to 
allow an appeal, when the only complaint is 
the smallness of the fine. Gan Kim Swee 

V. Newland 108 

12. If there is a reasonable or argu- 
able ground of objection to a conviction, 
an application to state a case under the 
Appeals Ordinance, Section 18, is not *' fri- 
volous." A Magistrate refusing, under 
such circumstances, to state a case, will be 
ordered to do so. Nabainasawmy 
V. Mabiapen 120 

13. Powers as Commissioner of the 
Court of Requests in regard to fines and 
imprisonment - . . . 122 

see Court op Requests. 3. 

14. No power to order a married 

woman to return to her husband if she 
refuses to do so of her own accord - 126 
see Married Woman. 2. 

15. A Magistrate should not admit 

in evidence, even against a well known of- 
fender, evidence of general bad character 
of the accused. If he so do, the conviction 
is liable to be quashed. Mamsah; v. Ma- 
homed Lbbbye ... - 130 

16. Where a Magistrate awarded a 

penalty against a prisoner, and after the 
Court had risen, changed his mind, and 
ordered the fine to be reduced, — Held, he 
had no power to do so, and the conviction 
for the original Amount was sustained. A 
conviction which is not sealed with the 
Magistrate's seal of office, is not liable to 
be quashed, as the defect is only formal 
and may be amended. The Information in 
an Excise case, and commitment of a per- 
son to Jail, are no part of the appeal case 
required to be stated under section 18 of 
the Appeals Ordinance 12 of 1879. Lim 
Chow Lenq v. Opium Farmer - 136 

17. A Magistrate who ^ as tried and 

adjudicated on a case, cannot import his 
knowledge of the facts thereof, acquired in 
such case, into a cross case by the same 
parties, concerning the same occurrence; 
but is bound to hear the whole of the evi- 
dence denovo, and adjudicate thereupon, 
otherwise the conviction is liable to be 
quashed. Merican&ors. v. Mahomed 138 

18. As to power to fine for costs, on 

convictions for offences other than under 
the Police Act XIII. of 1856 - 140 

see Conservancy. 3. 

19. The forfeiture of illicit or contra- 
band articles on conviction of the offender, 
is imperative on Magistrates - - 156 
see Qhandoo. 3. 



MAGISTRATE— con^mtt€(Z. 

20. A Magistrate who tries a case 

under any of the sections enumerated in 
Section 5, clause 2, of Ordinance 13 of 1872, 
which may consist of more than one charge, 
cannot sentence the prisoner on each charge, 
so that the cumulative term exceeds six 
months. — Semhle. A Magistrate in no case 
has power to sentence for distinct offences, 
all tried together, for a cumulative term ex- 
ceeding six months, — Query. Has he the 
power to do so, where each distinct offence 
18 tried and dealt with separately, when by 
law they might have been tried together? 
It is irrefjular, and improper, for a Magis- 
trate to give a prisoner the option to be tried 
summarily, or be committed to the Assizes ; 
or any option, in any criminal matter, at 
all. Kader Khan v. Ho Fuk Weng & 

ORS. 182 

MAGISTRATES— Origin and constitution 
of the Court of two, — considered - 110 
see Appeal. 5. 

Ordinance 5 oi 1B70 



[Criminal Procedure Ordinance^ does not 
apply to proceedings or convictions by - 117 

see Theft. 1. 

' APPEAL— Parties to 

— Crown - . ' - ' 144 

see Appeal. 7. 

' NOTES— Previous Ciise 

102 



— ^Evidence 

see Evidence. 6. 
MARRIED WOMAN— Debt contracted 
dming husband's life-time - - 10 

see Court op Requests. 2. 

2. The Magistrate has no jurisdiction 

under section 44 of Ordinance 13 of 1872, to 
order a married woman to return to her 
husbaftd, when she is not detained from him 
against her will, but of her own accord, wlQ 
not do so. That section, in cases of married 
women, applies only to cases of sucli women 
detained by some one else, and against their 
will. Wee Lalah v. Oh Kan — Oh Kan 
V. Tan Chuan ... - 126* 
MINOR — Kidnapping minor under siiteen 
from lawful guardianship — Evidence of 
age — prosecution . - - - 109 

see Kidnapping. 
MISAPPROPRIATION OF PROPER. 
T Y — A partner punished criminally for - 79 

see Partnership. 
MISAPPROPRIATION OF PROPERTY 
— Cheque — illegal conversion - - 86 

see Moveable Property. 
MISCHIEF — The wounding of an animal, 
though slight, is a sufficient change therein 
to dumAish its value as to make the act 



nraEx. 



209 



MISCHIEF— conimweeZ. 

" mischief " within section 426 of the Penal 
Code. A conviction which awards costs, 
must shew the amount thereof, otherwise 
the conviction wiU be bad. — Query. Has 
the Magistrate power to award costs in 
cases of conviction for offences under the 
Penal Code. Mahomed Aniff v. Ebram 
Khan - 88 

2. Bond fide claim to property — sub- 
ject-matter of charge - - - 105 
see Claim to Property. 1. 

3. The mere fact of a person advanc- 
ing money to the owner of an estate in order 
to enable him to work his estate, and taking 
a mortgage of the estate as security, does 
not make him liable to punishment as an 
abettor of mischief, by reason of the owner 
having encroached on Crown lands, and cut 
down timber. Nor does the fact that he is 
indirectly benefited by getting his wood 
free, make him so liable. Reg. v. Tan Poh 
Keah 154 

MORTGAGE — A mortgagor who does not 
redeem his mortgage on its due date, but 
permits the same to run on, and continues 
paying interest thereon, and who thereafter 
on notifying to the mortgagee his intention 
to redeem forthwith, is told that he will not 
be permitted to do so, except on payment of 
certain months further interest in lieu of 
notice, and who thereupon, but only in order 
to get back his Deeds and complete a sale 
he had arranged for, pays to the mortgagee 
the whole amount of principal and interest 
due, and also the further interest demanded 
by him — is not entitled afterwards to recover 
tack the amount paid for such further 
interest, as money paid under duress, or by 
mistake, or as money had and received. — 
Query. Has a mortgagee in this Colony, 
whose mortgage is allowed by the mortgagor 
to run over its due date, by law or custom, 
the right to a notice from the mortgagor, 
of his subsequent intention to redeem, or to 
charge further interest in lieu of such 
notice, and if so, for what period ? Is the 
practice in England of a six months' notice 
of an intended redemption, on six months' 
interest in lieu thereof, applicable hereP 
Mahomed Sham v. Komorapah Chet- 

TY 186 

2. Owner of Estate — advance of 

money — abettor, of mischief - - 154 
see. Mischief. 1. 

MORTGAGOR— Mortgagee— Redemption 
of mortgage — Interest — Notice - 186 

see Mortgage. 1. 

MOTEABLE PROPERTY— A cheque 
payable to order, but not endorsed by the 
payee, is *' moveable property " within the 



MOVEABLE PROPERTY— con^inwed. 

meaning of the Penal Code. The words 
of section 403 being " misappropriates* or 
converts," it is not necessary, in order to 
bring a person within that section, to shew 
he converted the property — it is sufficient 
if he appropriates the same, and such ap- 
propriation is wrongful. Tuan Puteh v. 
Dragon ------ 86 

MUNICIPALITY— see Conservancy. 

NEGLIGENCE —Pawnbroker — Compen- 
sation - 161 

see Pawnbroker. 3. 

NOTES OF EVIDENCE— Criminal 
charge — ^Previous case - - - 102 

see Evidence. 6. 

NOTICE — Redemption of mortgage — in- 
terest — practice - - - - 186 

see Mortgage. 1. 

NOTICE OF APPEAL— The mention in 
a notice of appeal of the Ordinance under 
which it is given, is not essential, and any 
inaccuracy in that respect is immateiial. 
AVhere therefore a notice of appeal pur- 
ported to be given under the Appeals Or- 
dinance 9 of 1874, a few days after its re- 
peal by the new Appeals Ordinance 12 of 
1879, — Heldy the inaccuracy did not render ' 
the notice void or prevent the appeal being 
heard. Appellants were convicted for ob- 
structing with their floating nets, the fair 
way of the South Channel, under section 
25 of the Harbour Ordinance 8 of 1872, 
and in a second count with floating their 
nets in more than 2i fathoms water, under 
section 37 of the Ordinance, — Held, these 
were two distinct offences, and as only one 
penalty was awarded, the conviction was 
bad. Sections 25, 32, 33, & 34 of the Ap- 
peals Ordinance 12 of 1879, do not enable 
the Court to amend such an error in a 
conviction. Reg. v. Ooi Tim & ors. 119 
NUISANCE— Section 62 of the Criminal 
Procedure Ordinance 6 of 1873, applies to 
Police Courts, and a Magisti^ate may, in 
the cases there referred to, convict for one 
offence, when the charge is for another. 
The carrying on of an offensive trade, is an 
offence within section 268 of the Penal 
Code, although the trade may have been 
for a long while acquiesced in, or was car- 
ried on long before the persons who com- 
plain, went to reside in that neighbour- 
hood, Reg. v. Lim Peng &-^ors. - 84 

2. The Magistrate, on convicting a 

person under section 290 of the Penal Code, 
has no power to order the discontinuing of 
the nuisance. Mtjn. Comers, v. Ah 
Chin 85 



210 



INDEX. 



OCCUPATION— Place — Occupier— find- 
injj of cbandt>o - - - - 174 

see Chandoo. 4. 
OFFENCE OUT OF JUEISBICTION— 
8CC Jurisdiction. 2. - - - 51 
OFFENSIVE TRADE— 8CC Nui- 

8ANCE. 1 84 

OFFICIAL ACT— see Receiving Grati- 

fication 114 

ONUS PROBANDI — License — prosecu- 
tion — evidence • - - - 124 
see Pawnbroker. 1. 
see also Conservancy. 3. - 14*0 
OPIUM— «ee Chandoo. 
ORDINANCES: 

4 of 1870 ... - 100,176 

see Chandoo. 1. 5. 
8. 5 - - - - 156 



see Chandoo. 3. 
5 of 1870 . - . . 

see Theft. 1. 
13 of 1870 . . - . 

see Lottery. 
20 of 1870, 8. 25 . - . 

see Search Warrant. 
4 of 1871, 8. 143 . - . 

see KuNDURi. 

8.144 

see Unlawful Assembly. 
8. 147 



see Rioting. 
4 of 1871, 8. 149 . . - 

see Unlawful Assembly. 
s. 161 



117 

67 

107 

118 

89 

61 

118 

114 



see Receiving Gratification. 



s- 162 



see Jurisdiction. 

8. 268 

see Nuisance. 1. 
s. 290 



see Nuisance. 2. 
8. 324 

see Grievous Hurt, 
s. 363 



see Kidnapping. 
8. 403 - . 

see Partnership. 

see Moveable Property 
8. 426 

see Mischief. 1. 
8. 441 - - 



see Criminal Trespass. 
88. 441, 442 

see Trespass. 
88. 441, 447 



see Claim to Property. 
8.504 



1. 



see Insult. 
1 of 1872, 8. 26 

see Police. 2. 
7 of 1872, 8. 5 - 

see Pawnbroker; 



1.2, 



116 

84 

85 

99 

109 

79 

86 

88 

101 
131 
167 
90 
194 



124, 148 



1. 



3. 



ORDINANCES— con^inwed. 

8 of 1872, 88. 25, 37. 

sec Notice of Appeal. 

12 of 1872, 8. 60 - - 

see Criminal Trespass. 

13 of 1872, 8. 5, cl. 2 - 

see Magistrate. 20. 
8.32 - 

see Vagrancy. 
8. 44 - 



see Married Woman. 
8. 60 - 

see Insult. 1. 
8. 61 . - - 



see Breach of the Peace. 
6 of 1873, 8. 62 - - - 

see Nuisance. 1. 
9 of 1874 . . . . 

see Appeal. 5. 

see also Notice of Appeal 



• 8. ii^ 



see Prosecutor. 

1 of 1876 

see Labour. 4. 
88. 36, 39 - 

see Labour. 5. 
9 of 1876 - - • . 

sec Gambling. 2. 

2 of 1877 - 

see Labour. 7. 
2 of 1879 - 

see Conservancy. 
6 of 1879 

see Chan;doo. 



1. 



-s. 1 



see Chandoo. 
12 of 1879, 8. 18 - 

see Magistrate. 
see also Appeal 



o. 



12, 16. 

7 - 
, ,34 
see Notice of Appeal. 
- 88. 32, 33 



120, 



■ 88. 25, 32, 






see Conviction. 
13 of 1879 - 

see Gambling. 



14. 



see Gambling. 

8.10 



see Gambling. 4 
4 of 1880 - 

see Labour. 7. 
9 of 1881, 8. 1 - 

see Police. 2. 
1 of 1882, s. 10 

see Labour. 7. 
. 8. 14, cl. 5 - 

see Labour. 6. 
7 of 1882, 8. 6 

see Landmarks. 

3 of 1883 

see Labour. 7. 

4 of 1884 

9eQ Chandoo. 5. 



119 

lol 

182 
103 
126 

90 
.106 

84 
110 

119 

92 

99 

li« 

94 

189 

140 

176 

156 

13\j 

144 
111) 

151 

184 

171 

145 

189 

194 

1S9 

164 

158 

189 

176 



INDEX. 



211 



ORDINANCES— conhwM^flf. 

PARTIES TO AN APPEAL— Prosecutor 

— ^prisoner --.--. 144 

see Appeal. 7. 
PARTNERSHIP— A partner who dis- 
honestly misappropriates pai-t of the part- 
nersliip propei'ty, is liable to be punished 
criminally under section 403 of the Penal 
Code. Haji Sahid v. Shaik Peroo 79 
PART-PAYMENT— Statute of Limita- 
tions — Infancy of Contractor - 1 

see Court op Requests. 1. 
PASS— Police,— Kunduri— Feast - 118 

see Kunduri. 
PAWNBROKER— On a charge under sec 
tion 5 of the Pawnbroker's Ordinance 7 of 
1872, it is for the accused to shew he has a 
license, and not for the prosecution to shew 
that he has not. The Pawnbroker cannot 
prosecute for a breach of the Ordinance, 
committed before the term of his exclusive 
privileges, and during the time of the pre- 
vious Pawnbroker. Prosecutions under the 
Pawnbroker's Ordinance are, by the Ordi- 
nance, impliedly confined to the Pawnbroker, 
or a person acting as his informer on his 
behalf as his Chinting or Revenue Officer. 
Khoo Aing Hong v, Meyapah Chetty, 

&c. - 124 

2. A single act of taking a pledge or 

l)awn, does not make a person punishable 
under section 5 of the Pawnbroker's Ordi- 
nance 7 of 1872, for " carrying on the trade 
of a pawnbroker." Pawnbroker v. Ram- 
SAWMY Padiachee - - - 148 

3. A pawnbroker who permits large 

numbers and grades of his employes to 
have access to articles of value pledged with 
him, beyond what a man of ordinary pru- 
dence would do, when such goods had been 
deposited with him, is guilty of negligence 
and liable to make compensation if such 
goods are lost without explanation. Boey 
Ah Sam v. Seow Ah Seonq - - 161 
^ PE ACE-^Breach of the,— see Breach of the 
Peace ...-.- 106 

Order to keep the, — power of 

Magistrate under Section 504 of the Penal 
Code — alternative sentence of imprison- 
ment ------ 90 

see Insult. 1. 

Order to keep the, — power of 

Magistrate under Section 60 of Ord. 12 of 
1872 -....- 101 

see Criminal Trespass. 1. 

Order without hearing, for breach 

of the, — informality - - - 106 

see Breach of the Peace. 
PENAL CODE— [Ord. 4 of 1871]— see Or- 
dinances. 



PENAL CODE— cowKnwpdf. 

As to costs under the, — 

see Mischief. 1. - - - - 88 

PENALTY— Reduction of ,— by Magistrate 
after rising of Court - - - 136 

see Magistrate. 16. 
PIGS — Street — License — Slaughter- 
house ------ 140 

see Conservancy. 3. 
PLEA OF GUILT—Conviction quashed on 
appeal notwithstanding, — - - 140 

see Conservancy. 3. 
PLEDGE— Single act of tc^king pawn - 148 

see Pawnbroker. 2. 

POLICE — It is inconsistent and open to 
serious objection that a person who is 
Assistant- Superintendent of Police and 
receives reports of cases as such, should act 
as Magistrate and afterwards try the same 

cases 89 

see Unlawful Assembly. 1. 

2. A person who is de facto a Police 

Constable [whether he be under a formal 
engagement to serve as such or not] is 
liable to be punished under Section 26 of 
the Police Force Ordinance 1 of 1872, if he 
commits any of the offences enumerated in 
that Section. — Senihle. Where there is no 
time specified by an order of the Governor, 
under section 1 of Ordinance 9 of 1881, for 
the term to be named in a Contract of a 
Constable, a Contract made under that 
Ordinance is void, if it be for a term of five 
years. Reg. v. Kelly & anor. - 194 
see also Summons - - 102 



tion 



-Receiving 



Gratifica- 
- 114 

Jurisdiction. 5. - 116 

Magistrate. 20. - 182 

POLICE COURTS— Origin and Constitu- 
tion of, — considered - - - - 110 
see Appeal. 5. 

PASS— Holding of Kunduri or 

feast 118 

see Kunduri. 
POST OFFICE— Where a person is charg- 
ed imder section 46, clause 2 of the Post 
Office Act XIY. of 1866, with performing 
postal services otherwise than through the 
Post, it is no excuse that the Post neither 
do, nor can undertake the carriage of such 
letters to their ultimate destination and 
beyond a certain port. Reg? v. Khoo Sim 
Choon - - - . - - 97 

2. Where a person is charged with 

breach of the Post Office Act XIV. of 1866, 
in performmg postal services other than 
through the Post Office, — it is for him to 



212 



INDEX. 



POST OFFJCR-^eoniinued, 

shew that bo comos within the exrrption in 
Btvtion 5, and not for the prosecutor to 
shew that he does not. Reg. v. Tan A 
Yeap&ors. ----- lol 
POSTPONEMENT— Absenee of Counsel 
no ground for, — of case - - - 50 

gpe Counsel. 
PREVIOUS CASE— Notes of Evi- 
dence 102 

8pe Evidence. 6. 

see also Magistrate. 17. - 138 
PRISONER — It is irregular and improper 
for a Magistrate to give a prisoner the 
option to be tried summarily or be commit - 
te<l to the Assizes ; or any option in any 
criminal matter at all - - - 1S2 

fteft Magistbate. 20. 
PROSECUTOR— A prosecutor in a pro- 
ceeding before a Magisti-ate, who is dis- 
satisfied with the decision of the Magis- 
trate may, imder section 25 of the Appeals 
Ordinance 9 of 1S74. appeal in the sanu* way 
as a prisoner might. Where the Magis- 
trate had decided a case on the evidence as 
one of simple assault, and the prosecutor 
wa« dissatisfied therewith, and contended 
tlmt the evidence disclosed an assaiUt with 
int+mt to murder, tlie Coui-t refused to dis- 
turb the Magistrate's decision. Towers v. 
MUSTAN & ORS. - - - - 92 

2. Production of books of, — as evi- 
dence for the defence— Search WaiTant re- 
fused ------ 107 

spe Search Warrant. 

3. Doing of an act without a license 

— onus proband! on prosecution - 140 

see Conservancy. 3. 

see also Pawnbroker. 1. 
PUBLIC LOTTERY— see Lottery. 
PUBLIC OFFICER— see Receiving Grati- 
fication ll'^' 

see also Jurisdiction. 5. 116 

see also Magistrate. 20. 
QUARTER SESSIONS— Origin and Con- 
stitution of Court of ,— considered - 110 

see Appeal. 5. 
RECEIVING GRATIFICATION— No 
conviction can be had for receiving a grati- 
ficition under section 161 of the Penal Code, 
unless it be received for doing what would 
be a strictly official act. The appellant, an 
apothecary, came to this Colony under a 
contract with the Indian Government, that 
he was required to do only Hospital duties, 
and was not to be restricted from private 
practice. On his arrival here, he was placed 
in charge of a Hospital in Province Welles - 
loy. Not long after, a patient was admitted 

i 



RECEIVING GRATIFICATION— cowfdf. 

into the hospital suffering from wounds re- 
ceived in a fight, and his friends apphed to 
the appellant for a certificate of tlie wound- 
ed man's condition, in order to procure a 
wan*ant for the apprehension of the assail- 
ants. The general pi*actice of the apothe- 
caries in the Settlement was to grant such 
certificates without remimeration, and the 
Medical Officer considered it was the duty 
of the appellant to have granted the certifi- 
cate without charge. There was no other 
evidence of its being an official act. The 
appellant declined to grant the certificate 
unless he was paid, as he considered it no 
part of his duty to give it, whereupon he 
was paid 35, and then granted the certifi- 
cate. The Magistrate convicted him under 
section 161, — Heldy the conviction could 
not l>e sustained. Connor v. Tan Jim 

Sin lU 

see also Jurisdiction. 5. 116 
Magistrate. 20. - 182 



RECORD OF CO:^{VICTION— The douU- 
f ul meaning of a Regulation or Act, or the 
inability to reconcile two apparently con- 
tradictory clauses, or imcertainty as to 
whether the alleged infringement is of any 
one or more particular sections, does not 
excuse a Magistrate from stating in the 
record of conviction, the particular clause 
or section of the Regulation or Act alleged 
to be infringed. A conviction for " infring- 
ing the Opium Regulation" is uncertain 
and bad, and will, on appeal, be quashed. 
General observations on duties of Justices 
of the Peace and the construction ot their 
convictions. LimBehv. Opium Farmer 10 
REDEMPTION OF MORTGAGE— Inter- 
est — Mortgagee - - . . 133 

see Mortgage. 1. 
REQUESTS, COURT OF— see Court of 
Requests. 

REVENUE CASE— Magistrate not legal- 
ly justified in allowing prosecution of, — to 
be withdrawn -----(> 

see Witness. 
RIGHT — Appeal— Crown— Magistrate- 
Locus standi Ml- 

see Appeal. 7. 
-Claim of, — to property — see Claim 



to Property. 
RIOTING — The appellants, some members 
of the red, and others, of the white flag 
Society, were convicted by the Magistrate*, 
of rioting, under section 147 of the Penal 
Code. From the evidence, it appeared that 
the appellants, as members of the respecti>e 
Kongsees, were having a free fight amongst 
themselves, — Heldf the conviction could not 
be sustained, inasmuch as the appellants 



INDEX. 



215 



RIOTING — continued. 

bad not a common object. Reg. v. Abditl- 

BAHMAN & ORS. - ... 61 

see also Unlawful Assembly. , 
ROBBERY — Assault and, — see Assault. 50 
SEAL — Conviction witbout Magistrate's 
seal of office — defect only formal - 136 

see Magistrate. 16. 
SEARCH WARRANT— A searcb wan-ant 
will not be issued for tbe production of tbe 
pnvate books of a prosecutor, in order to 
be evidence' for tbe defence, — Query. Is an 
appeal from a Magistrate's decision, an 
" enquiry" witbin Sec. 25 of Ord. 20 of 
1870 ? Khoo Tean Tek v. Opium Far- 

MBR 107 

SECRET SOCIETY— see Rioting. 61 
see also Unlawful Assembly - - 170 
SEIZURE OF SHIP— see Cbandoo. 5. 176 
SHIP — Offence committed on board foreign, 
— see Jurisdiction. 7, - - - 152 

Seizure of — see Chandoo. 5. 176 

SLAUGHTER-HOUSE— License— rigbt 

to keep pigs 140 

see Conservancy. 3. 
SMALLNESS OF FINE— see Magis- 
trate. 11. . . - - - 108 
STATUTE OF LIMITATIONS— see Court 



THEFT— cotiiinwecZ. 

tbat tbe timber was cut in Britisb Territory 
was very unsatisfactory, — Held, tbe con- 
viction could not be sustained. Even if tbe 
trees were feUed in Britisb Ten'itory, yet, 
as tbere was notbing to sbew that tbe ap- 
pellants knew tbey were trespassing, the 
conviction could not be sustained, as no 
animus fur andi could, under the circum- 
stances, reasonably be implied. REa, v. 
LiM A Si & ANOR. - - - - 143 
TITLE — Assertion of, — to property — In- 
sult 167 

see Claim to Property. 3. 
TRESPASS— Tbe act of a person in going 
into tbe bouse of another, with intent to 
have ci-iminal intercourse with the latter's 
wife, although necessarily resulting in an- 
noyance, or as an insult to the latter, is not 
an offence within sections 441 & 442 of tbe 



of Requests. 1 
STATUTES : 

4 Geo. IV. c. 34 

see Labour 1. 
12 & 13 Yict., c. 96, s. 1 - 
see Jurisdiction. 7. 
24 & 25 Vict., c. 96 - 
see Assault. 

-The Statute Law of England, 



Penal Code. Abbass v. Tomby 

see also Criminal Trespass. 1. 
— ^-^^— Theft 2 - - 

TRUST— Breach of,— see Breach 

Trust 



131 

110 

143 

of 

104 

79 

for, — one 

- 119 



and tbe English Statutes declaring cei*tain 
games illegal, do not extend to this Co 



140 



lony 

see Gambling. 2. 
STREET— Pigs— License 

see Conservancy. 3. 
SUMMONS — Where a person applies to a 
Magistrate for a summons, and the inform- 
ation discloses an offence, the Magistrate 
has no option in granting or refusing the 
summons ; but is bound to issue it. Abdul 
Gunny v. Newland - - - 102 
SURVEY — Expenses of, — Land in dis- 
pute - 158 

see Landmarks. 
THEFT— A conviction for theft or cheating 
must shew that the property stolen or 
cheated, is the property of some person, so 
as to be certain and not vague. The ob- 
jection is not one of form, — Semhle. The 
Ordinance 5 of 1870, does not apply to 
proceedings or convictions by Magistrates. 
Veramah I'. Thaivoo - - - 117 

2. The appellants were convicted of 

theft of Governmont timber. The evidence 



see also Partnership. 
TWO OFFENCES— Conviction 
penalty awarded 

see Notice op Appeal. 
see aZso Conviction. 14. - 151 
UNLAWFUL ASSEMBLY— Where pri- 
soners were convicted of being members of 
i an unlawful assembly under section 144 of 
1 to ' the Penal Code, but the evidence shewed 
that they were having a fight among them- 
selves, — Held J they had no common object, 
and the conviction was set aside, and the 
I case remitted to the Magistrate for rehear- 
ing on a fresh charge for assault or such 
1 other ofPence, — Semble. It is inconsistent, 
j and open to serious objection that a person 



16 



50! 



94 



who is Assistant Superintendent of Police 
and receives reports of cases as such, should 
act as Magistrate and afterwards try the 
same cases. Reg. v. Cheng Hee - 89 

2. The appellants were members of a 

secret society, and were found standing in 
front of the Society or Kongsee House, in 
which apparently several others were as- 
sembled. They, in company with the others, 
fled on the approach of the Police, who 
visited the said house in consequence of in- 
formation that the members of that society 
were gathering there, with the view of at- 
tacking another society. The appellants 
were however arrested by the Police, and 
in the Kongsee House were found a great 
number of clubs or poles,, apparently in- 
tended as weapons of ofPence: some of 
these were thrown about the house, while 
others, in bimdles, were hidden, — Heldy 
[quashing the adjudication of the Magis- 
trate who convicted the appellants of being 
I members of an unlawful assembly, under 



214 



INDEX. 



UNLAWFUL ASSEMBLY— canfirtucd. 
sootion 14J) of the Penal Code], that there 
wa« n(» reasonable evidenee that the appel- 
lants fonued pai*t of the assembly, or had 
any eommon objeet of eommitting a breaeh 
of the pi»aee. The word ** assembly" in 
strtion 141>, has the ordinary meaning? of 
the word, and means a meetinj? of persons 
in the same place, so as to be able to com- 
mimieate freely with each other. Reg. v. 
Khoo See Hee & obs, - - - 170 

see also KVVDXJILI - - 118 
VAGRANCY — Before a conv-iction can be 
had under section 32 of Ordinance 13 of 
1S72, for ]>eing ** found wandering about 
withcmt being able to give any satisfactory 
account of oneself," the prosecution must 
shew that all, and not one or more only of 
the conditions mentioned in the section, 
existed. Reg. v. Ben Hooie & anor. 103 
WARRANT— Recall of,— by Magis- 
trate 51 

see Jurisdiction. 2. 

see also Search Warrant. 107 
WIFE— see Trespass - - - 131 
WITNESS— It is no ground for excluding 
the testimony of a witness that he has been 
present in Court, and heard the evidence 
given by other witnesses : such a fact goes 
merely to the credibility of his evidence, 
but not to its admissibility. A Magistrate 
is not legally justified in allowing b> prose- 
cution for breach of the Revenue Regula- 
tions to be withdrawn, since the offence is 
not of a private nature. A Magistrate has 
power, after hearing out a case, to adjourn 
same to consider his decision. Where the 
information and summons against the ap- 
pellant charged with an offence under 
Section 11 of the Revenue Regulations of 
1830, — Held, a conviction for an offence 
under Section 5 of such Regulations — with 
which he was not charged, nor informed 
of, — could not be sustained. Edwards v. 
East India Co. - - - - 6 

2. IiTcgularity — Evidence. - 98 

see Irregularity. 

see also Evidence. 2. - 79 
WOMAN— see Married Woman. 2. 126 
WORDS— " Any person" - . 152 

see Jurisdiction, 7. 



118 

99 



WORDS— con^inwed. 

" Assembly" 

see Unlawful Assembly. 
** British India" 

see Labour. 4. 

" Carrying on the trade oi a 

Pawnbroker" - - - - 148 

see Pawnbroker. 2. 
** Common Gaming House" 94 

see Gambling. 2. 

" Debt, duty or matter in dis- 

1 

see Court of Requests. 1. 
"Enquiry" - - - 107 

see Search Warrant. 

. " Feloniously" - - . 50 

see Assault. 

Found wandering about with- 



pute" 



12. 



103 

120 

99 

140 



out being able to give any satisfactory 
account of oneself" 

see Vagrancy. 
" Frivolous" 

see Magistrate. 
" Grievous Hurt" 

see Grievous Hurt. 
" In or near any street" 

see Conservancy. 3. 

*' Intimidate, insult or annoy, or 

to commit an offence" - - - 101 

see Criminal Trespasg. 1. 

" Kjiowingly being in possession 

of illicit chandoo" - - - - 132 

see Chandoo. 2. 

" Lawful and reasonable ex- 

- 71 



vei-ts" 



see Labour. 3. 
- " Misappropriates 



Con- 
86 



see Moveable Property. 
-"Mischief" ... 88 

see Mischief. 1. 
- " Moveable property" - 86 

see Moveable Property. 
- " Occupier" - - - 171 

see Gambling. 5. 
-"Place" - - - . 67 

see Lottery. 
-"Possession" - - 100,132 

see Chandoo. 1, 2. 
-"Street" .... 140 

see Conservancy. 3. 
- " Wheresoever committed" 152 

see Jurisdiction. 7. 



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