/I ^"w* Qlorn^U 21am i'lrlyonl IGibtaty CORNELL UNIVERSITY LIBRARY 3 1924 080 340 338 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924080340338 to^B HEARD AND DETERMINED IN HER MAJESTY'S SUPREME COURT OP THE 1808H890. EDITED AND EEPOETED WITH A JUDICIAL-HISTORICAL PREFACE FROM 1786 TO 1890 AND THE RULES AND ORDERS OF COURT IN FORCE. BY JAMES WILLIAM NORTON KYSHE, Esq., OF LINCOLN'S INN, BAEEISTEB-AT-LAW, ACTING EEGISTEAfi OF THE SAID COUET AND COMMISSIONEE OF THE COUET OF REQUESTS IN MALACCA. Law is beneficence acting by rule. Sxirke. VOL. IV. 1885-1890. CiVI L, Ecclesiastical, Habeas Corpus, Admiralty and Bankruptcy Cases. Criminal Rulings and Magistrates' Appeals. Copyright. SINGAPORE: PeINTED AT THE " SiNGAPOKE AND StEAITS PRINTING OFriCE." 1890. TO HIS HONOUR EDWARD LOUGHLIN O'MALLEY, m.a., Chief-Justice of the Straits Settlements, &c., &c., lic. IS, WITH PERMISSION, BESPECTFTJLLY DEDICATED THU AUTHOR. JUDGES THE SUPREME COURT, His Honour Edward Loughlin 0'Mali.ey, Chief- Justice of the Straits Settlements. His Honour Thomas Lett Wood. His Honour Etienne Pellereau. His Honour John Tankerville Goldney. ATTORNEY-GBNEEAL. The Hon. John Winfield Bonser. solicitor-general. Daniel Logan, Esq. PREFACE TO THE FOURTH VOLUME. 'I'^HB favourable reception whicli the preceding Volumes of this work, published five years ago, has met with from the Judicial and Executive Authorities, the profession and the public, renders it unnecessary for me to say more as a Preface to the present one than that the same care has been bestowed in preparing it to render the work worthy of being still considered a standard authority on the subjects of which it treats. The numerous important cases which have been a.djudioated niDon since the first appearance of this work* have been carefully reported in the present Volume, in the preparation of which I have had to rely, apart from such Eeports as are entirely my own — the materials of which I continued collecting after the manuscript of my first three Volumes had been completed before iny previous transfer to this Settlement — upon Eeports and in some instances mere notes furnished to me [the correctness of which however cannot be impugned] by some of the leading members of the profession at whose suggestion principally, apart from the late Chief Justice and other Judges, this work is now continued, and to whom I beg to tender my most grateful acknow- ledgments. For the majority of the cases decided at Singapore, I have been guided to a great extent by such Eeports as have appeared * No partiouUir luentiou is made in this Preface of the cases reported, but a point argued before the Court of Appeal iu Singapore, In June last, \_Regiiia. v. I'anfa/aiu — infra, p. 605J as to the right of reply by the Attorney-General even when no \\itnesses are called for the defence, may be here mentioned. Their Lordships as will be seen while holding that the "right of reply was a prerogative of the Crown from of old, and ^vas exerciseable by the Attorne3'-General " did not decide whether such privilege could be claimed by the Solicitor-General or by private Counsel prosecuting for the Crown. ^Ir, Montagu AVilliams, however in his interesting work recently published liiis the following passage on the subject : — " T/ie Altorneii-Qeneral is ilie onltf man at the Bay, save his representative, the Solicitor-General, who has a prescrijjfiiv right to reply to a defence where no witnesses ai-e called " — Montagu Williauis, Q.C. — [ije- miiiiscences, 1890, Chap. XLYI., p. 283.] This quotation ^^■ouldhave been inserted in its proper place had not the passage been met with only after the case in question had gone through the press, — JiW.N.K. ii PREFACE. ^ in the daily press, from time to time, but only after all doubt as to their correctness had been removed have the important ones alone been accepted, and most of these have been greatly abridged and judiciously condensed. The cases decided in Penang, virhere I have been stationed the longest, will therefore be found to be in excess of those reported from the other Settlements. Such important cases as have been decided in this Settlement or transferred hence to Singapore for decision, and which I have been able to rely upon — for accuracy throughout has been my constant aim and it is but right, I should say, I have not shrunk from any pains to secure it — will also be found duly reported herein. This stated, I shall now proceed — in continuation of the Judicial-history contained in Volume I. of these Reports — to note such changes in our local laws, and in the constitution or personel of the Courts as have been effected since its publication. CHAPTER VIII.* CONTENTS. 188S— 1890. Number of Judges increased — location of Judges — two Judges no longer required to reside ordinarily in Penang — Appeals — Judge not to sit on appeal of his own decision — Appeals how decided — Courts of Appeal when held — Jurisdiction of Supreme Court on vacancy in the office of Judge— Rules and Orders — Commissions to Justices of the Peace— District Delegates — Advocates and Solicitors— Taxation, recovery and scale of Costs— Costs recovered by Crown— Conveyancing — Bills of Sale — Bankruptcy Laws — Shortening of language in Ordinances — Orders of the Queen in Council — Wigs — origin — Mr. Serjeant Robinson's book — Indian Acts — Oaths in Judicial Proceedings — Jury — law of Evidence — Bankers' Books— Distraints for rent — Pees in Courts of Requests — Changes amongst Judges— retirement of Sir Thomas Sidgreaves, C.J.— Chief- Justice ceases to be a Member of the Legi.slaturo —other mutations among Judges. By the "Courts Ordinance Amenclmeiit Ordinance" 15 of 1885, the number of Judges of the Supreme Court has been increased to four, that is to say, a Chief-Justice and three Puisne- Judges. The location of the Judges is dependent on an-ange- nients made by them with the concurrence of the Governor, but the Chief-Justice is required ordinarily to reside in Singapore and the Senior Puisne-Judge for the time being in Penang, and now by the " Courts Ordinance Amendment Ordinance " 19 of 1889, Section 3, it is no longer required that if there be more than two Judges present in the Colony, two Judges should ordinarily reside in Penang as was provided for in the former Ordinance. By the same Ordinance [19 of 1889, s. 6], Appeals are required to be heard before not less than three Judges, provided that a Judge shall not sit at the hearing of an appeal against his own decisiorr, bat when there are only three Judges in the Colony, one of whom is the Judge whose decision is appealed against, the appeal is to be heard before the two other Judges. Appeals are to be decided by a majority of votes, but when the votes are equal, the decision appealed against is to stand, and Courts of Appeal instead of being held twice a year as before are now held at such times and places as the Chief-Justice may appoint [Ordinance 15 of 1885, s. 5]. The " Courts Ordinance Amendment Ordinance " 19 of 1889 also lays down that the jurisdiction of the Supreme Court shall be deemed duly constituted during and notwithstanding a vacancy in the office of a Judge [s. 21] and by Section 7 the Court is empowered to make certain Rules and Orders as therein provided for, the Governor under Section 4 having power to issue Commissions to fit persons to act as Justices of the Peace, such Commissions being filed of record in the Supreme Court. By Ordinance 12 of 1887, provision is made for the appoint- ment of " Delegates" for the Judges of the Supreme Court, to grant Probate and Letters of Administration to Estate of deceased persons not exceeding $500 in value, and who at the time of death were permanent residents within the local limits or District of * For the previous Chapters of this Judicial-Historical Preface, see Vol. 1. of these Reports.— J.W.N.K. iv PREFACE. [Chap. Till. the Delegates. Several such appointments have recently been made and confined to District Officers under the Boundaries Ordinance and other recent legislation, By Ordinance 17 of 1886, certain rights, privileges, and duties are conferred on Advocates and Solicitors of the Court in reference to the taxation and recovery of their costs, and Section 52 of the Supreme Court Ordinance, 1878, is repealed and sub- stituted by this Ordinance. A new scale of costs chargeable by Solicitors has also been passed, and these are given in eoctenso in this Volume.* Costs recovered by the Crown are dealt with by Ordinance 22 of 1886. _ • The laws relating to Conveyancing, Bills of Sale, and Bank- ruptcy have also been repealed and greatly modified by recent legislation — the Ordinances dealing with these respective subjects being Ordinance G of 1886, 12 of 1886, and 2 of 1888. By Ordinance 1 of 1888 as amended by Ordinance 9 of 1888, the shortening of the language used in Ordinances and other written laws is provided for and " judicial notice " is required to be taken of all Orders of the Queen in Council published in the Government Gazette. The latter provision, doiibtless, being due to a recent decision of the Court in an Extradition Case.f Early in 1889, a learned Judge of the Court in Singapore, endeavoured to introduce the time-honoured custom of wearing wigs in Court, and which it may be added is in vogue in many of the Colonies. The custom however, not meeting with full approval here and not being made obligatory was allowed to be discontinued. J Unde» the provisions of Ordinance 8 of 1889, the Governor was empowered to appoint Commissioners to determine Avhat Indian Acts were in force in the Colony bind for revising and publishing the same. The result of this Commission composed of the Hon'ble J. W. Bonsek, Attorney-General, and His Honor Mr. Justice GoLDNEY, has been the publication issued early this year of one of the most useful compilations ever published in the Colony. The law relating to oaths in Judicial proceedings has also been greatly amended. Ordinance 6 of 1890 empowers the Court to tender oaths to witnesses in any form common amongst, or held binding by persons of the race or persuasion to which the witness belongs, a matter not altogether novel in the annals of the * See Rules and Orders of Court, ih/VcI, p. 31. t III re Eajah Samsudin Tunku Jaksa, iiifi-A, p. 346. I The origin of the wig as part of the dress of a Lawyer has given rise to much controversy, especially locally when it was attempted to be introduced.— the following- paragraph on the subject from the late Mr. Serjeant Robinson's book will therefore not prove out of place : " The wig or peruke was invented by the corn-tiers of Louis \IV. in order that they might appear with the fine flowing locks which nature had bestowed on the head of their monarch; and, when these began to grow scant, he followed the example of his subjects, and wore a wig too. The fashion was adopted by the Court ol Charles II and when all ,;l,o thought themselves respectable did the same. Tlie Bench and thenar, deeming themselves of course in lh-,t t-H^u-nrv followed the mode, to which they have adhered ever since -'Bct^. 'Sj,'. iJenii»i.!ce»ccs— Serjeant KobinsoD, London, 18S9. ana jsai 1885—1890.] JUDICIAL— HISTORICAL. Colony.* Otherwise existing forms of oathsf are to continue until determined by Order of Court. Summary punishment for perjury in open Court is also dealt with. An important alteration in the Jury law [Ordinance 11 of 1890] causes a fusion of the Special with the Common Jurors, the Court having power however, in. any case it may deem it necessary, to draw a Special Juiy from a smaller class ; the first trial under the new law, viz., a murder case, hitherto triable only by a Special Jui'y, and therefore the first since the foundation of the Colony [though it may be mentioned two of the Jurymen happened at one time to be on the list of " Specials "] taking place under the presidency of the present Chief-Justice, in Malacca, on the i7th December, 1890. The Law of Jjvideuce with respect to Bankers' Books has un- dergone modification, by their production in Court no longer being compulsory [Ordinance 12 of 1890] and the English Arbitration Act, 1889, has also been adapted to local requirements by Ordinance V3 of 1890, the Civil Procedure Ordinance therefore undergoing amendment in that respect. Of the lower Courts, one measure passed by the Lej^islature [ Ordinance 8 of 1890 ] introduces a new scale of fees to be levied in Courts of Requests in distraints for rent under the Distress Ordi- nauce 14 of 1876. It may be added that the Ordinance relating to Oaths above alluded to extends also to the Inferior Courts. The following are the changes that have taken place among the Judges. In February, 1886, the Chief-Justice Sir Thomas SiDGEEAVES retired on pension ; and on his retirement, the Chief- Sidgbeavbs, Justice, who had been a Member of the Legislature since the *^"^' transfer of the Colony in 1867, ceased to be one. He was succeeded in March following by the first Puisne-Judge Sir Theodore Thomas FobdJ whose post of Senior Paisne-Judge was Fokd, C.J. filled by the next Judge in rank Mr. Justice Wood, the latter being Wood, J. re-placed by Mr. Justice Shbbiff, Chief-Justice of the Colony Sherh-t, J. of British Honduras. In consequence of the increase in the number of Judges as stated above, it became necessary to appoint a fourth Judge, the post being conferred in June, 1886, on Mr. Justice Pellebeau, Pblleeeau, Pi'ocureur and Advocate-General of the Mauritius. With the J- sanction of the Secretary of State, in March, 1887, an exchange of stations was effected between Mr. Justice Sheeife and Mr. Justice Goldney, Puisne-Judge of the Supreme Court GoiDNET, j. of British Guiana, whereby the latter became the third Puisne- Judge of this Colony. On the retirement of the Chief-Justice Sir Theodobe Fokd early this year, the Hon'ble Edwabd Loughlin O'Malt.by, Attorney- o'Mallet, General of Hongkong was appointed his successor, and C.J. assumed duties as Chief-Justice of the Straits Settlements in February, 1890. * Vide .Tiidicial — Historical Preface, Vol. I. of these Reports, p. .\x,xv. t III re Native Witnesses, Cr. Kulings, Vol. II. of these Eeports, p. 1,5. X Knighted 1st June, 1888. PREFACE. A classification of the Eeports into different parts as in the previous Volumes has not been found practicable in the present one, owiag to the small number of important decisions given on some of the sides of the Court, and I have followed a plan similar to that adopted in the home Law Times and Weekly Reporter, of a general intermingling of the Cases. The head-notes at once shew the nature of the Cases, and the general and copious Index pro- vided, remedies at once any such apparent defect at non-classifi- cation. The plan also adopted by old Eeporters and still continued by the Incorporated Law Society of publishing as an Appendix to the Law Reports such Rules and Orders of Court as are in force, or ai-e promulgated, from time to time, and are difiicult to obtain, as an addition to the usefulness of their work, has been likewise followed by me, and herein re-produced in extenso with references and explanatory notes wherever found necessary, which I have no doubt will be duly appreciated. The usual Tables of Cases Reported and Cited will also be found in their proper places. This Volume having been published in the year wherein it purports to end, obviously it was impossible to delay its publica- tion till the last month of the year in anticipation of important decisions to be delivered. On the last completed Report being reached — such important cases as were determined, from time to time, being added to the work as it progressed through the press — the work necessarily had to come to an end : it therefore con- cludes in November, 1890. The favour shewn to the previous issues of this work — begun only when the lapse of time seemed to render it hopeless that the task would be performed by other hands — may I hope be extended to the present one. At all events it possesses one claim to indul- gence ; it offers to the ofiicial and the public, to the practising Lawyer especially, easy possession at a moderate cost, of that which has long borne a high value, but was not in this Colony to be procured without the utmost difficulty, and in some cases, diffi- culty upon any terms. J. W. N. K. Malacca, fS.S. 31st December, 1890. } ADTOCATES AND SOLICITORS. List of Advocates and Solicitors admitted to fractice in the Colony of the [Novem Sbttlembn' D WHEREIN 4 Admitted. Kame. U.iTE OB Admission. Penang. Singapobe. Samuel Robebt Gboom 4tli January, 1886 Singapore. Charles Goodricke Gaerard 18t]i January, 1 886 Do. William Nansost, b.a. lOtli May, 1886 Do. James Power Eveeard, b.a. 1st November, 1886 Do. SwiNFORD Leslie Thornton, b.a. ... 2nd November, 1886 Do. Herbert Henry HrDSON 7th April, 1887 Do. Arthur Robert Adams 8tli July, 1887 Penang. Samuel Bright Bailey 26tli Marcli, 1888 Singapore. EdALJEB JAMSETJEE KhORY, B.A. ... 7th May, 1888 Do. Arthur James SissoN 3rd September, 1888 Do. Edward Charles Harte 1st October, 1888 Penang. Edwin Rowland KoEK 15th October, 1888 Singapore. John Frederick Weepord 28th February, 1889 Penang. John Paesick JoAQUiM 28th Febriiary, 1889 Singapore. Walter John Napier, m.a., b.c.l. ... 4th March, 1889 Do. Thomas Gawthorne 1st May, 1889 Penang. Harey Scott 10th May, 1880 Do. Joseph Alexander Shearwood, b.a. 17th June, 1889 Singapore. Ernest Farrbr-Baynbs 19th November, 1889 Do. George Clement De Sotjza 6th January, 1890 Singapore. Charles Duncan GuRNEY 9th April, 1890 Penang. George Herbert Maylor 16th May, 1890 Do. Russell Ardagh 28th July, 1890 Singapore. * By Ordinance 5 of 1878, the Members of the Bar are styled "Advocates and Solicitors" — No preface, &c., Volume I. of these Eeports, p. xlii. — J.W.N. K. Memlers of the Home Bar in the Colony, Name. O'Mallby, His Hon. Edward Loughlin, Pellereau, His Hon. Etienne, GoLDNEY, HisHon. John Tankerville, Kyshe, James William Norton, When called, &c. Of the Middle Temple, 26th January, 1866 do. 6th June, 1860 Inner Temple, 30th April, 1869 Of Lincoln's Inn, 13th June, 1888 STEAITS SETTLEMENTS. Straits Settlements since the publication of Volume I. of these Beports. — her, 1885.*] Remarks. Of the Middle Temple, called 17tli November, 1879. Solicitor of the Supreme Court of Judicature in England — admitted 4th April, 1884. Do. do. do. —admitted 19th May, 1876. Of the Middle Temple, 27th January, 1879. Of Lincoln's Inn, 31st May, 1886. Is Registrar of the Supreme Court, &c., at Malacca — appointed 6th June, 1887. Solicitor — admitted in England, 27th November, 1877. Is Depnty.Registrar of the Supreme Court in Singapore— appointed 6th December, 1888. Solicitor of the Supreme Cou.rt of Judicature — England — admitted 25th April, 1884. Do. do. do. — admitted in December, 1887. Of the Inner Temple, 3rd May, 1882. Solicitor — admitted in England — 18th November, 1881. Do. do. —10th April, 1883. Of the Middle Temple— called 13th June, 1888. Solicitor of the Siipreme Court of Judicature, England — admitted 28th April, 1885. Is Assistant Official Assignee in Penang — appointed 1st October, 1889. Of the Middle Temple, 29th November, 1888. Of Lincoln's Inn, 29th June, 1881. Of the Inner Temple, 28th January, 1889. Solicitor — admitted in England — 23rd July, 1884. Of Lincoln's Inn, 17th November. 1869. ■Solicitor of the Supreme Court of Judicatiu-e, England — admitted 10th February, 1885. Of the Middle Temple, 13th June, 1888. Solicitor— admitted in England — 26th March, 1886. Solicitor, Supreme Court of Judicature, England — admitted 15th May, 1885. Do. do. do. ^admitted 3rd February, 1890. distinction whatever has ever existed in this Colony between the two branches of the profession — See not included in above List. E,i)MABKS. Chief-Justice, S.S.. see List of Judges. Infra. Puisne- Judge, S.S do. Puisne-Judge, S.S do. Deputy Registrar of the Supreme Court, S.S. LIST OF RULES AND ORDERS OF COURT. PAGE. No. I.— Table of Fees as authorised by the Coiu-t of Judicature of Prince of "Wales' Island, Singapore and Malacca. — Uh October, 1827* ... ... 1 II.— Rules and Orders for the guidance of Sheriffs and Deputy Sheriffs in the execution of the duties of their office. — 1st November, 1866 ... ... 2 III. — Rules and Orders made by the Supreme Court in pursuance of the Debtors' Ordinance, 1870.— 31si Decemfeen 1870 ... ... ... 5 IV. — Rules and Orders for the admission of Advocates and Attorneys in the Supreme Court, and for granting Certificates to persons to practice as Conveyancers. — 12th August, 1874 ... ... ... ... ... 7 V. — Rules and Orders made, and Table of Fees fixed, by the Supreme Court under the Courts' Ordinance, 1878.— 29* September, 1879* ... ... 10 yi. — Rules and Orders made, and Table of Fees fixed, under the Courts' Ordi- nance, 1878.— 29tt J"ime, 1880* ... ... ... ... ... 11 VII. — Rules and Orders as to Procedure in the Registry. — ZTth January, 1881... 16 VIII. — Fees to be taken in the Registry of the Supreme Court at Singapore under Section 58 of " The Conveyancing and Law of Property Ordinance, 1886."— ith August, 1886* ... ... ... ... ... 25 IX. — Rules and Orders for regulating the Practice and Procedure of the Supreme Court in its Appellate Jurisdiction. — 27^!. May, 1887 ... 26 X. — Rules and Orders on [Solicitors'] Costs under " The Com'ts' Ordinance, 1878."— 22m(J /Mi!,e, 1887t . . . ... ... ... ... ... 31 XI. — Rules and Orders for regulating the Practice and Procedure of District Delegates of the Judges of the Supreme Court. — 26th January, 1888 ... 47 XII. — Rul^s and Orders by the Judges under " The Courts' Ordinance, 1878," and Table of Fees fixed on grant of Probate or Letters of Administra- tion in non-contentious matters.^ — 18th October, 1888 ... ... 65 XIII. — Rules and Orders for regulating the Practice and Procedure of the Supreme Court at Singapore in Appeal Cases from Her Majesty's Consalar Court in Bangkok in the Kingdom of Siam. — 23rd April, 1889. 56 * Besides the Tables of Pees here given, there are other fees chargeable in the Eegistry of the Supreme Court under certain Schedules to Ordinances or Orders in Council [e.g. Sch. A. Ord. 14 of 1876— Distraints tor Bent ; Sch. 54, Ordinance 8 of 1880, [Sec. 31 c. Small Causes] ; and Order in Council, 8th April, 1889 [Scales ot Fees in Bankruptcy] G. G-. 1889, p. 662], but these not being Orders of Court do not appear herein. t In Bankruptcy matters, subject to the provisions of Ihe Bankruptcy Ordinance [2 of 1888] and the Eules thereunder " the fees and percentages to be charged in respect of proceedings under the Ordinance, the costs to be allowed to Solicitors shall for the time being be such as would be charged and allowed in like cases in England according to the scales now in use there, the dollar being taken for the purposes of this Eule [76 § 1] as being of the value of three shilUngs and tour pence" and by § 3 of the same Eule, "in all cases not specially provided tor the Eegulations as to Solicitors' costs for the time being in force with regard to civil proceedings in the Supreme Court shall apply as far as the same are apphcable'' — see also § 2 of the same Eule — Government Qazette, 1888, p. 2360, and Wms. Bank. Prac. [4th Ed.] p. 510. J See also ' Eules and Orders/ infr& p. 15— heading : Probate. RULES AND ORDERS OF COURT. Oedee or Court. 4:th October, 1827. Table of Fees as authorised by the Court of Judicature of Prince of Wales' Island, Singapore and Malacca.* Civil Matters. Peks to Registeae. f Reading every EiMbit, Document or Paper produced in evidence, unless the Court or Judge at the time direct a larger sum to be paid ... cts. 50 J. T. CLAEIDGE. * Abolished by Ordinance 6 of 1868, and re-oonstituted under the title of " The Supreme Court of the Straits Settlements." The power under the different Charters " to frame process and make Rules and Orders" was vested in the Court composed of the Governor, the Eecorder and the Resident Councillor in each Settlement. By Rules and Orders, dated 29th June, 1880 — Rule 4 linfra p. 12] — it is laid down that in all cases not provided for by the said Rules, " such fees shall be charged as have been charged under previous Rules or by customary practice." The above Order of Court is now retained as containing it is believed the only fee still claimed in the Registry of the Supreme Court, and not to be found in any other Order of Court. f See Judicial — Historical Preface, Vol. I. of these Reports, p. xov — also Letters . Patent, 28th November, 1860, G. N. 18th March, 1861, G. G. 1861, p. 107; and See. 8X § 9 of Ordinance 3 of 1878.— J.W.N.K, 1866. 2 rules and orders of court. Ordek of Couet. A. ■\ ^ll' AT l... 1 O/Jfl c-/~\AT J \si November, 1866. Rules and Orders for the guidance of Sheriffs and Deputy Sheriffs* in the execution of the duties of their Officef passed by the Court Wales' Island, Singapore and ^Itlalacca. j The Sheriff shall, unless he cause to the contrary, return all Writs or execution as follows, that is to [a] of Judicature of Prince of shall conceive that he has delivered to him for service good say; Everj' Writ of Sun mons, if completely executed, within twenty-fou- hours after execution; and if only partially executed, within twenty-four hours after the service of a written Notice from the plaintiff on him to return it. Every Writ oi Habere] Facias Possessionem within four days after the execution thereof. Every Writ of Execiition against property, if com- pletely executed/ within four days after such complete execution ; and if only partially executed within four days/after service of a written Notice from the Execution-Creditor on him to return it. Every other Wri| of Execution and every other Writ of whatever description, except Subpoenas to Witnesses if no time has been fixed in the Writ for its return, wlithin twenty-four hours after the execution or service thereof j and if a time has been fixed at thje time so fixed. II. The Sheriff shall, after the complete or any partial execution of every Writ, pay or deUver over to the Execution-Creditor, all moneys or property levied or seized by or paid to the Sheriff under the Writ, and to which the Execution-Creditor is entitled, within eight days after such complete lor partial execution.§ [d] * The Sheriffs were appointed under the Charter by the Governor yearly, and they in turn appointed their own Deputie s— the latter since done away with and permanent official styled Sheriff jiloneapjiointed by Government. The old practice however ol appointing the Sheriff yearly a revived. See Preface, S^e., Tol. I of these + Vide Veerappah Chetty v. Koh Sook Liat Sc A X Fitie foot-note 1, o«<^ p. 1. 1 t each of the Settlements has recently been Reports, pp. xcvii., xcviii. nor., infroi, p. 61-t. § See now however the Bankruptcy O -J.W.N.K. rdinance 2 of 1888, Sections 43, 44 & 124 STRAITS SE:?TLEMENTS. I] I If the Sheriff shall conceive that he has good cause for not returning any Writ or making such payment or delivery, he shall within four days after service of from the party who issued the written Notice stating that the Sheriff refuses to make such return payment or delivery, and setting intends to rely for his not so d out fully the causes on which he linff ; and shall also within the The Sheriff shall, within t Execution-Creditor or Debtor property seized by him, furnish intituled in the cause or proc made and stating the date of Writ under which the seizure v inent-debt for which tlie Writ the sale of the property seized, a written Notice on him so to do Writ serve such party with a •o ' said time affix ;i copy of such Nctice on a conspicuous part of his Office and another copy therec Registrar's Office, which said co )ies eight days on a conspicuous part of shall be kept so affixed the for IV. days after application by the or any adverse claimant of the o such applicant a memorandum eding in which the seizure was he delivery for execution of the as made, the amount of the judg- as issued, the gross proceeds of the amount of the Sheriff's fees, ]ie is entitled to retain therefrom poundage and expenses which and the balance available for tlie Execution-Creditor's debt V. The Sheriff shall, upon ap; dication in office hours, allow the Execution-Creditor or Debtor or any adverse claimant full liberty from time to time to inspect and copy free of expense, the inven- le account sale or other disposal thereof, the particulars of the Sheriff's fees, poundage and expenses, with all vouchers respecting (the premises or any of them, and also to inspect and copy all copaes of such inventory in the Sheriff's possession, and the rough drafts, original memoranda or notes first made by him or any of h|s subordinates in the matter. VI. The Sheriff shall also, o i application, give or cause to be given by his subordinates to ,he Execution-Creditor iill informa- tion in his power respecting ihe property seized, the time, place and particulars of the seizure, all adverse claims thereto and all other particulars in his or thoir knowledge, information or belief which may be demanded. VII. The Sheriff shall annex io his return to all Writs, a detailed account of the property seize! under it, the sale price thereof, the Sheriff's fees, poundage and expenses, and the disposal of the net proceeds or of the property il self under the Writ, with the original receipts vouching such dispo sal ; and until such return, shall allow the Execution-Creditor or D jbtor or any such adverse claimant, on application, full liberty ;o inspect and make copies thereof free of expense. 1866. or perforin the act or duty trary within two days after the 4 RULES AND ORD]]RS OP COURT. 1866. VIi: ■. Any person conceiving' himself aggrieved by.-any non-observ- ance by the Sheriff of any duty imposed on hiifi by these Rules may, on application to the Registrar, obtain a Rule Nisi as of course calling on the Sheriif to dc required or to show cause to the cor t service thereof. The Sheriff shall within that tiine file detailed statement of the cause or causes of his refusing compli- ance, otherwise the Rule shall be made absolute with costs Affidavits in support of the Rule must be filed within four days from the filing of the said statement and affidavits in opposition to it within four days from notice of the affidavits in support of it ; expiration of the last-mentioned period, deliver to the Recorder or other acting Judge, the said Rule Nisi, the Sheriff's statement and the affidavits, and will notify shall be fixed for the hearing of th to the applicant of the filing md the Registrar will at the IX. The times fixed in the foregoir ing any act or duty may be enlarge may require if the Court or Record think fit to do so. ; When the Sheriff shall seize to the parties the day which 3 said Rule. g Rules for doing or perform- from time to time as occasion r or other acting Judge shall under a Writ of Sequestration any property of a perishable nature, or live stock, or there shall guarding the same, he shall nd file in Coiirt a report inti- be any expense for warehousing o : forthwith on such seizure, make ar tuled in the cause or proceeding in which the Writ shall have issued, stating the quantity and c escription of the property, the expenses aforesaid with all other particulars respecting the same and shall take the instructions of the Court or Recorder or other acting Judge thereupon. XI. Whatever the Execution-Crfeditor or Debtor or adverse claimant may do or has a right to/have done to or for him by the Sheriff may be done by or shall hk done to or for his professional or private agent or the Registrar ing in his behalf when no such ng or any of his Sworn Clerks act- ent is employed. XI [. All applications and notices to the Sheriff under any of the foregoing Rules made or served during office hours at the Sheriff's Office shall be deemed sufficiently made or served on the Sheriff, XIII. The term Sheriff includes in who discharge the duties of Deputy Sheriffs, the foregoing Rules the Officers Sheriff whether as Sheriff or as Straits settli jMenTS It is ordered that the foregoing the 1st day of November, A.D. 1866. Rules shall take effect from 1866. ORFEUR CAK^ENAGH, Colonel, GoveviK >r of Prince of Wales' Island, Singapore and Malacca. * P. BENSON Okder of Court. MAXWELL, Recorder of Singapore, f list December, 1870. Rules and Orders made bf the Supreme Court in pursuance of the Debtors' Ordins(nce, I. 1870.+ Applications to commit to prise n under the 7th section of the Debtors' Ordinance shall be mace by summons specifying the date and other particulars of the judgment, decree, or order for non-payment of which the application is made, together with the amount due. ( 11. Proof of the means of the debtor may be given by affidavit, or viva voce ; if it appear expedient po the Judge, either before or at the hearing. For this purpose, uhe debtor or any other person may be commanded to attend for tUe purpose of being examined touching the matter in question, ajnd for the production of any document, subject to such terms and conditions as to the Judge may seem fit. * President of the Court — After tlie trau ifer of the Colony, by Ordinance 30 of 1867, Section 1, the Governor ceased to be a J udge of the Court — see also Preface, &c.. Vol. 1 of these Eeports, pp. cii, ciii. I t Styled Chief Justice of the Straits Settlements on the transfer — Ordinance 3 of 1867, Section 4, & G. N. 1st April, 1867. I I Those Eules seemingly have reference to certain Sections [4, 7 and 8] of the Debtors' Ordinance, 1870, which have since been repealed by Ordinance 8 of 1880, but the Eules themselves have not been cancelled re-enacted in the Civil Procedure Ordinance by the abovementioned Ordinance 8 of 18S0 ^ carried out [ex. gr. Rule 4 as security under amon? the Bules of Court now in force.— J.^ V.N.K As the repealed sections are practically ) of 1878, Chapters 34 and 36, as amended and as in practice these Rules are still Section 422 B.], they are retained by me 1870. 1870. RULES AND OEl BBS OF COUET, II : Upon payment of the sum oi and the Court fees, the creditor sums mentioned in the Order or his Attorney shall give the StracSS'stSlng^ ^^'"^The certificate shall be atteited by either the Keeper of the Jail, the Sherife, the Eegistrar, or one of the sworn clerks. IV. The secm-ity to be given by the defendant under the 4th or 8th section may be a deposit in Kurt of the amount mentioned m the Order, or a bond to the pWintifE by the defendant and two sufficient sureties, or, with leaU of a Judge, more than two, or, with the plaintifE's consent, at^y other form of security. V. The plaintiff may, within rour days after receiving the parti- culars of the names and addres 3es of the proposed sureties, and the form of the proposed bond give notice that he objects thereto, stating therein in what particulars; and in case of his so doing, the sufficiency of the security stall be determined by the Eegistrar, who shall have power to awar reference ' ' ' "" i,vc jt/w„^x .^ ^,,^4 to either party the costs of such If the plaintiff dois not apply for an appointment for this purpose within four days after giving notice of objection, the security shall be deemed sufficient. VI. The money deposited, tod the security, and all proceedings thereon, shall be subject to th3 Order and control of the Court. VII. Unless otherwise ordered order to arrest, shall be costs ing the bond or other secui-it the coats of, and consequent on an in the cause. VIII. Upon payment into Cour ; of the amount mentioned in the Order, a receipt shall be give: i by the Eegistrar ; and upon receiv- ^ a certificate to that effect shall be given, signed, or attested by ihe plaintiff's Attorney, or if he has not an Attorney, by the plain ;iff ; and the delivery of such receipt or certificate to the Sheriff shall entitle the defendant to be discharged out of custody IX. The Sheriff or other officer named either in an order of committal, or an order to arrest under the 4th or 8th section shall, within two days" after the arr^ ist, indorse on the Order the true date of such arrest. P. BENSON MAXWELL, Chief-Justice. WILLIAM HACKETT, Judge of Penang.* * See Preface, Sfc, Vol. I. of thesejEeporte, pp. oiii & civ. STRAITS SETTLEMBNTS. Oedkr of Oouet. 1874. 12th August, 1874. Rules and Orders for the adchission of Advocates and Attorneys [a.] in the Supreme Court, and for granting Certificates to persons to practice/ as Conveyancers. In pursuance of the powers anfl authorities vested in us by the " Courts' Ordinance, 1873 " [6.]i We, Sir Thomas Sidgreaves, Knight, Chief Justice, George Philaippo, and Theodore Thomas Ford, Judges of the Supreme Courp, have framed the following Eules and Orders. The General Eules and Orderj January, 1852, relating to the ad the suitors of the Court are hereh the following shall be from the da] and Orders regulating the admissioj and Attorneys of the Supreme C enrolment of persons approved Conveyancers at each of the Sett! urt, or as passed on the 21st day of ission of General Agents for repealed, and in lieu thereof, e hereof, " the General Eules and enrolment of Advocates ," and the admission and competent and fit to act as ents : — I. Every person who shall applj| to be admitted and enrolled as Advocate and Attorney of the Supreme Court, or as a Convey- ancer at any of the Settlements! shall do so by petition to the Court with testimonials of his good character annexed, and shall file the same in the Eegistrar's Office accompanied with a notice intimating that he has so applidcl, which notice shall be posted and continue posted in the Eegisjrar's Office for one month before any Order shall be made by the (^ourt on his petition. No examination shall be nedessary in the case of applicants for admission as Advocates and Attorneys of the Supreme Court, who have been called to the Bar of England or Ireland, or the Faculty of Advocates in Scotland!, or have been admitted Attorneys, Solicitors, or Writers to the Sianet in one of the Superior Courts at Westminster, Dublin, or jEdinburgh, or who have been admitted as Proctors in any Ecclesiastical Court in England, [a.] Styled " Advocates and Solicitors " by Ordinance 5 of 1878. [6.] The Courts' Ordinance 5 of 1873, was repealed by Ordinance 6 of 1878, as from the 1st January, 1879, the date thi Courts' Ordinance 3 of 1878 came into opera- tion. "These Eules however are preservted under Section 83 of the new Ordinance. There have been no further Rules and Orders on this subject since. — J.W.N.K. EULES A.ND OBDERS OE COURT. 1874. III. Every person who has beeil so called or admitted as aforesaid, shall, at the time of giving the notice hereinbefore required, file in the Office of the Registrar, ihe Certificate of such previous call or admission. He shall also ile a declaration signed by hun in the presence of the Registrar, virho shall subscribe his name as a witness thereto, which shall cditain a statement that the certifi- cate of his admission so filed as aforesaid is a true certificate, that the applicant is the person nafened therein, and that he is still a member of the Bar of Englar d or Ireland, or that his name has not been struck off the Roll o:: any Court, and that he has done no act or thing which would jause him to be disbarred, or which would cause his name to be si ruck off the Roll. IV, In the case of Law Cle|-ks who have served as such for a period not less than five years|[a.] in the Office of an Attorney and Advocate of the Supreme (Dourt, and who shall apply to be admitted as Advocates and .Attorneys of the Supreme Court, such the Judges, or " Judge for the time Division of the Court wherein the •lliereinafter mentioned, and the Court application shall be made to being, if only one," of the applicant resides, in manner shall thereupon appoint fit jersons, not less than two in number, to examine in writing the se to act as such Advocates anc id applicants as to their competency Attorneys of the Supreme Court. No person, not pre shall be admitted to act as shall produce the certificate proper person to be admittec Supreme Court, unless he provided. vionsly admitted elsewhere as aforesaid, such Advocate and Attorney, until he )f the Examiners that he is a fit and as an Advocate and Attorney of the have appealed as next hereinafter sh ill VI. The applicant may appiial to the Judges, " or Judge for the time being, if only one," oi the Division of the Supreme Court wherein he presented his petition against the decision of the Examiners, and the Court mft,y thereupon, if it thinks fit, call for the examination papers, and may, in its discretion, admit and enrol him as an Advocate an

of, (.Order ) Dated the day of [Here state Thei"e shall also be attached n the above suit. for the following reasons : — ihe reasons.]* to the Memorandum of Appeal : 1. — A copy of the Judge's if otes, or so much thereof as may have been supplied under Eule JIV, 2. — The Certificate, if any, biven by the Court or Judge as provided by Section 4 of Ordinamce 1 of 1883. 3.— The Documents and Writings, with authorised trans- lations of such Documents or Writings as require translating, or such portions thereof as the appellant wishes to be read at the hearing, and upon which! he intends to rely in support of his case. If the Memorandum be ndt drawn up in the manner herein- before prescribed, the Court mky reject it, or may return it to the party for the purpose of bein^ corrected. If the Memorandum be not presented within the cause be shewn for the delay. prescribed period, and no sufficient bhe appeal shall be rejected. * See S/ieri/n Shaika v. Haughton, InfjT^ p. 503.— J.W.N.K. STBAITS SBTTLEMEN/TS. 29 xr. If there be two or more plaintiffs, oif two or more defendants in a suit, and the decision of the Court flrom which the appeal is made proceeds on any ground common to all, any one of the plaintiffs or defendants may appeal against the whole decree, and the Court of Appeal may reverie, or modify the decree, or judgment ■ in favour of all the plaintiffs or defendants in the same manner as if they had originally been made parties to the appeal. XII. When a Memorandum of Appeal is presented in the pre- scribed form, and within the time allowed, the proper Ofiaeer of the Court of Appeal shall endorse thereon the date of presentment, and shall register the appeal in a ttook to be kept for the purpos^ and called the Eegister of Appeals XIII. Seven clear days before the /sitting of the Court of Appeal, the appellant shall deliver to tha Registrar, for the use of each of the Judges of the Court of Appeal , a copy of the Memorandum of Appeal previously filed, and in default of so doing, the appeal shall be struck out of the list of appeals, and shall be re-admitted thereto only upon such terms Mid conditions, as to costs or other- wise, as the Court may deem qt. /XIV. A copy of the decree, juflgment, or order disposing of the appeal, certified by the Court of Appeal, or the proper Officer of such Court and sealed with |he seal of the Court, shall be trans- mitted to the Registrar of tme Supreme Court which passed the first decree in the suit appealed from, and shall be filed with the original proceedings in the suit, and an entrj' of the judgment of the Court of Appeal shall pe made in the original register of the suit. 1887. XV. Application for execution of the decree of a Court of Appeal shall be made to the Court which passed the first decree in the suit, and shall be execufted in that mannei", as if it were an original decree of the Cc^urt. XVI. The service of notices required to be served under " The Appeals Ordinance" or/these Rules and Orders shall be effected in the same manner as| under the ordinary practice of the Supreme Court. 30 1887. RULES AND ORDERS Or COURT. XVIll Every return of service or of failure to serve the notice shall be accompanied by the affidavit or the Serving Officer specifying the fact and the mode of service, 6r the reason why service could not be effected in any of the modas allowed by law. XVJII. The above Eules and Order^, or any of them, shall not be deemed in any way to derogate/from the general powers of the Court to amend and rectify all prpceedings taken before it, whether in respect of form, extension, /or limitation of time, error, or otherwise. hx. All previous Rules and Orners in the Appellate Jurisdiction of the Supreme Court ai-e heralby repealed. Appeals fijom Magistrates. I. The notice of appeal required by Section 21 of " The Appeals Oi'dinance, 1879," to be given/to the respondent shall state specially the grounds of appeal, and d, copy shall be transmitted to the Registrar with the Magis trapes' case. II. No other grounds of ajjpeal shall be taken at the hearing of the appeal than those mentioned in the notice aforesaid, except by leave of the Supreme Cojnrt to be granted on such conditions , as it may seem just. THEODORE T. EORD, Chief-Justice. ETIENNE PELLEREAU, Judge. JOHN T. GOLDNEY, Judge. fl I certify the above to be a true copy . of the Eules and Orders made by the -{ Supreme Court, for regulating the Prac- I tice and Procedure of the Supreme I, Court in its Appellate Jurisdiction. THEODORE T. FORD, Ghief- Justice. STRAITS SETTLEMENTS. 31 Ordek of Court. 1887 22dd June, 1887. onor John Tankerville Court of the Straits execution of the powers " and all other powers Rules and Orders on [Solicitors'/] Costs under " The Courts' Ordinance, 1878." * His Honour Theodore Thomas Ford, Cnief Justice, His Honour Etienne Pellereau, Puisne Judge, and Higf H Goldney, Puisne Judge of the Supre Settleihents, do hereby, in pursuance an given by "The Courts' Ordinance, 187 and authority enabling them in this bemalf, repeal all other Rules and Orders dealing with the subject-miitters of the Rules follow ing, and order and direct in manner foBowing : — ORDER I./ 1. An order for the delivery of d Solicitor's Bill of Costs and order for for delivery up of any deeds, docuiWents, or other papers in the Bm™of Costs possession of such Solicitor, subjectf to any lien which such Soli- citor may have, and for the taxation of such Bill when delivered, may be obtained on a petition of course, and upon such petition being filed the Registrar will draw/ up the order thereon forth- with. to be obtained as of course. 2. An order for the taxatio: any Solicitor may be obtained o party chargeable therewith, or \ same either to the party charge time within six months from the] Solicitor after the expiration of year from such delivery : provl one calendar month from the of Costs. of a Bill of Costs delivered by 0'''"'J f°' , , . , . p T , , "^ taxation or a petition or course, by the delivered Bin any person liable to pay the le or to the Solicitor, at any delivery of such Bill, or by the ne calendar month and within a ed that after the expiration of livery of the Bill, the order, if made upon the application of the party chargeable or liable, shall contain such directions and such conditions as the Court may think proper, and any Solicitor aggrieved by any such order of course may apply by Summons/in Chambers that the same may be amended or varied. 3. After the expiration ibf such six months from the delivery After si: of a Bill of Costs or after payment of the same, no order shall be delivery or made for the taxation of a Solicitor's Bill of Costs except upon spSai" notice to the Solicitor and/ under special circumstances to be proved to the satisfaction of/the Court. piiyment circum- stances to be shewn for taxation. * Por Costs under the Bankruptcy Ordinance 2 oC 1888, see Eule 76, Sections 1, 2 and 3, of Bankruptcy Kules — Goijernment Gazette, 1888, p. 2360, and TFvis. Battle. Frac. [4th Ed.] 510.— J.W.N.K. EULES AND ORDERS OF COURT. 1887. Petitions taxation tp contain a sub- mission 10 pfty. 4. All petitions by a party cha(rgeable with or liable for a Bill of Costs shall, unless the same shall have been already paid, contain a submission by such party to pay the amount thereof to such Solicitor when taxed. Costs of taxa- tion how to be borne. 5. In case any order for taxation is made upon the applica- tion of the party chargeable or liaJble, or of the Solicitor, the costs of such order and taxation, except when the order has been made after the expiration of one yepr, are to be paid according to the event of snch taxation, that is |to say, if the Bill when taxed be less by a si.Kth part than the Bill delivered, then the Solicitor is to pay such costs, and if the Bill when taxed is not less by a sixth part then the part chargeable or liable, if such application is made by him or if he attends tWe taxation, is to pay such costs, and every order for such reference is to direct the Registrar to tax the costs of such reference and to certify what upon such reference shall be found to be due to, or from such Solicitor in respect of such Bill, and of the coats of such reference, if payable ; but the taxing ofiicer is to be a.\ liberty to certify specially and circumstances relating to such Bll or taxation, and the Court is to be at liberty to make thereuj on any such order as may be thought right respecting the payment of the costs of such tax- ation : but where such reference! is made when the same is not Costs of order for taxation fixed at 9e. Solicitor deliver of Bill of ('osts. Proceciure taxation. Definition "Solicitor.' authorised except under special at liberty to give such reference. circumstances, the Court is to be any special di rections relative to the costs of c er 6. The costs of obtaining including petition of course, or including any Court fees payable same shall be obtained by a Sol citor Solicitor, shall be the sum of five to copy an order for taxation of costs and service of order, but not thereon or disbursements if the for the applicant or by the dollars. 7. When application is made by a party other than the party chargeable, the Court maj the party making the applicatio of the costs of making such copj 8. Upon service of an orde delivered or the copy supplied order the Solicitor to deliver to a copy of the Bill opon payment for taxation the original Bill as under Rule 7 shall be carried in to the Registrar, and if the part r obtaining the order shall neglect to proceed thereon for the space of fourteen days after the service of the order on the other party, the other party may proceed to carry in the Bill of Costs or a c( py thereof and obtain an appoint- ment for taxation, and all costs occasioned by the neglect of the party obtaining the order shall be paid by him. ot 9. The expression Solieitbr in these Rules shall mean and include the legal representatives of any Solicitor deceased and if the Solicitor dies pending the proceedings an order may be obtained ex-parte to reviL-e the proceedings against his representatives. STBAITS SETTLEMENTS. 33 10. Upon the taxation of the Bill tWe certificate of the 1887. Registrar, unless set aside, shall be conclusivp as to the amount certin^ of thereof, and where the order contains a submission to pay, the Begi»trar to Solicitor may, after forty-eight hours, if tuere is no application nniess™et aside'! for review, issue execution for the same. 11. [1]. — When the Advocate and Counsel is not the same person who acts and is not of the same tirm and is instruisted by a Solicitor the fees paid to him shall not be liable to taxation as between Solici- tor and client. lOlicitor who acts as when Advocate ^ ,. .. . ., and Solicitor ,S Solicitor m the cause are counsel sted by a Solicitor +^° ™'y- red upon the hearing or f-^''9''^^^\' J'^ [2]. — A hearing fee is to be alio trial of any action, or upon assessmenj! of damages, or upon any in prnpercases? application to the Court in which it would be proper for the party to appear by Advocate. In estimatilig such fee [which is to include the fees hitherto allowed foriperusing cause papers and considering authorities] regard is to ue had to [1] the magnitude or difficulty of the case or application ; [2] any previous agree- ment between the parties ; [3] the length of time occupied there- on ; and [4] the other fees and allowances to the Solicitor in the same cause or matter, viz. : — On the Hearing or Trial of an Action. When the Solicitor's fees are to /be allowed upon the scale contained in the first column of the undermentioned Schedulp Refresher When under the second and tl/ird columns Refresher From $10 to S30 5 „ 15 25 „ 100 10 „ 50 Motions or Petitions if not very special. Where fees in first column apply Where fees in second and third columns apply From $ 5 to $10 10 „ 25 Note A. : — It les.? than half of a; day is occupied, a proportionate part of the above Refresher fees will alone be allowed. Note5. :— The maximum of tne above scales is to be allowed in general only where, in the opinion of the taxing officer, the case has involved such questions of law as require previous searching of autWorities. Assegsment of Damages and Undefended Gases. Wlien fees in the said first/column apply When fees in the said secpnd and third columns apply Prom $ 5 to $10 10 „ 30 [3] . — The Advocatefs fees in the foregoing sub-section may be exceeded in cases of itaxation as between Solicitor and client where the client has agreed to pay a higher remuneration, but 34 RULES AND ORDERS OP COURT. 1S87. the amount of such increased remunei/ation will be reviewed by " the taxing officer or if required by him/ or the client by a Judge. Retaining Fies. [4]. — No Retaining Pee will be/allowed where the Advocate and Solicitor in a cause is the same person or are of the same firm. In other cases a Retaining Bee may be allowed according to circumstances. In other applioations or matters the taxing officer is to be guided so far as (/ircurastances permit by the amounts above stated, but in no allowed on taxation as between p certifies that an attendance in Counsel to attend, a special fee for such attendance. ase will a Retaining Fee be rty and party. If the Judge hambers is a proper one for rom $5 to -1 15 may be allowed Lower Scale. ] 2. In the casc of actions/ within the meaning of the Slst Section of " The Civil Procedure Ordinance, 1878," and in cases whei'e the estate to be administered, or the trust estate in respect of which proceedings are taken, pr the value of the assets in suits for dissolution of partnership, or taking accounts, or the amount of a mortgage sought to be redeemed, or foreclosed, or the pur- chase-money in a suit for specific performance, and generally in all other cases where the estate fund or subject-matter of the action, suit, or proceeding does not exceed $500, Solicitors shall be allowed the fees set forth in the first column of the Schedule hereto. Higher Scales. 13. In Similar cases to those mentioned in the preceding clause, where the amount exceeds $500 and does not exceed $5,000, and in all other cases Iwhere the amount does not exceed $5,000, Solicitors shall be alBowed the costs and charges under the second column of the said Schedule, and in all cases where such amount shall exceed $5,000, the costs and fees under the third column in the said ScUedule. Solicitors shall be entitled to charge and be allowed the) fees set forth in the 3rd column in the said Schedule in all actions for special injunctions to restrain the commission or continuamce of waste, nuisances, breaches of covenant, injuries to properny and infringements of rights, ease- ments, patents and copyrigMs, or other similar cases where the procuring such injunction lis the principal relief sought to be attained. jria^'e'to^S-ect ^^' ^hould the amount recovered in any action be less than taxation on any that sought to be rccovered, the Court or Judge may in such and k)'we"caieB. in any other case direct /the fees set forth in any of the lower columns to be allowed to/all or either or any of the parties and as to all or any part of the costs and the Court or Judge may, notwithstanding the abovte rules, in any case direct the fees set forth in either of the columns to be allowed to all or either or any of the parties and as Ito all or any part of the costs. STRAITS SETTLEMENTS.- The Schedule above kefeeeeiV to ; 35 18S7. Writs, Summonses, and Warrants. Writs of summons for the commencement of any action And for indorsement of claim, if special Concurrent writ of summons Renewal of a writ of summons Writ of summons for sei-vice out of jurisdic tion Writ of mandamus or injunction Or per folio Writ of subpoena ad testificandum duces tecum And if more than four folios, for each folio beyond four Writ or writs of subpoena ad testificandum^ for any number of persons not exceeding miree, and the same for every additional nijmber not exceeding three Writ of execution, or other writ to enfoiifee any judgment or order including attendji-nce to obtain And if for more than four folios, for ejtch folio beyond four Any writ not included in the above These fees include all indorsements and copies or prcecipes for the omcer seali them, and attendances to is^ but not the Court fees. Summons to attend at Chambers Or if special, at taxing officer's (^scretion, not exceeding ... Copy for the Judge or Registrar when re- quired Services, Notices, and Demands. Sendee of any \vrit, summons, ^arrant, interroga tories, petition, order, notice, or demand on a party who has not entered/an appearance, and if not authorised to be served by post Affidavit of service including copy when required If served at a distance of more than two miles from the place of business, or office of.the Solicitor serving the same for each mile beyond such two miles merefrom Where more than one attendance is necessary to efBecfc sei-vice, or to ground an application for substituted service, such further allowance may be made as the taxing officer shall think fit. / _ _ For service out of the jumsdiction such allowance is to be made as the taxing officer shall think fit. Service where an appearance has been entered on the Solicitor or panty Or if authorised to be Served by post 1 25 25 1 00 30 1 00 1 00 35 50 2nd Column. 50 50 50 50 50 00 40 2 00 40 2 50 2 50 40 2 50 1 -25 2 50 75 75 50 35 1 00 50 3rd Column. 5 c. 00 50 50 50 5 00 6 00 40 2 50 40 2 50 3 50 40 3 50 2 00 5 00 75 75 50 35 1 00 50 36 RULES AND ORDERS COURT. 1887. 1st Column. Where any writ, order, and notice, or any iwo of them, have to be sei-ved together, one ieje only for service is to be allowed. In addition to the above fees, the following allow- ances are to be made : — ■ As to wi'its, for each copy for service As to summons to attend at the Judges' Cliambers, for each copy to sei-ve ... Or per folio As to notice in proceedings to wind-up dompanies for preparing or filling up each/ notice to creditors to attend and receive deljts, and to contributories to settle list of conti-ibutors And foi' preparing or filling up eaah notice to contributories to be served with a general order for a call, or an order for myment of a call ... And for drawing notice to be servejli on contri butors or creditors of a meeting, (per folio Por each copy of the last-mentiorfed notice to serve, per folio For preparing or filling up for servide in any other cause or matter, each notice to creditors to prove claims, and each notice »hat dividends or payment may be received specifying the amount to be received for principal and interest, and costs, if any . . . For preparing notice to produce orjadmit, and one «opy If special or necessarily long, such i,llowance as the taxing ofiicer shall think proper, not exceed- ing per folio And for each copy beyond the fin as the taxing officer shall tj exceeding per folio For preparing motion paper [including copy for Judge] Or per folio For preparing notice of motion Copy for service Or per f oho For preparing any necessaryor otherwise provided for . . . Or if special, and necessaril folios, preparing same, for three And for each copy for service aiid service Copies for service of interrogatories and petitions and of orders with necessary notices [if any] to accompany, per folio . Except as otherwise jh-ovided the allow ances for service incliiae copies for service. Where notice of filing affidavits is required, only one notice is to beiallowed for a set of affidavits filed, or which ought to be filed together. Where any appointmekt is or ought to be adjourned, .•service ofartiotice of the adjourn ment, or next appoi^,tment, is not to be allowed. J, such allowance link proper, not proper notice, not exceeding three aach folio, beyond 50 50 40 1 00 25 1 00 0"'60 50 60 0"50 2nd Column. 50 50 12 40 3rd Column. $ c. 75 75 12 40 40 40 40 40 15 15 40 1 75 25 15 2 00 40 75 50 15 50 40 50 15 40 1 75 40 15 2 50 40 1 50 75 15 50 40 50 15 STRAITS SETTLEMENTS. 37 / 1st. 2nd 3rd ' 1 Column. Column. Column. Appearances. 1 $ c. $ c. $ c. Entering any appearance including requisition . . . 1 26 2 50 2 50 If entered at one time, for more than one person, for every defendant beyond the first . . . / ... 50 50 50 If a person appearing to a writ of sunimdns to recover land, limits his defence by Ms inemo- randum of appearance, in addition /to the above /. 1 25 .2 50 2 50 Instructions. 1 To sue or defend / 1 00 O 00 4 00 For statement of complaint ... , . . / 3 00 5 00 10 00 Tor statement or further statement of defence . . . 1 50 O 50 5 00 For counter-claim ... .1 1 50 o 50 5 00 Tor reply by plaintifE when defendsmt sets up a counter-claim /. 2 50 4 00 6 00 For reply or further reply in any /other case by plaintifE or other person, with or without joinder of issue / 1 50 2 50 5 00 For confession of defence ... / 1 50 2 50 5 00 For joinder of issue without other matter and for demurrer / 1 00 2 00 4 00 For special case, special petition, any other plead- ing [not being a summons], and interroga- tories for examination of ^ party or witness... 1 50 2 50 5 00 To amend any pleading ../ 1 00 o 00 4 00 For afiBldavit in a.TiRwer to interrogatories, and other special affidavits ./ 1 00 -> 00 2 00 To appeal / 2 00 4 00 8 00 To add parties by order of Oioiu't or Judge 1 00 2 00 4 00 To make any application tor a Court or Judge . . . 1 00 O 00 4 00 Such fee may be allowed as the taxing officer shall think fit having regard to all the circumstances , of the case, for attendances on witnesses and procuring evidence, acnd generally getting up the case. / Drawing Pleading^ and other Documents. Statement of claim / 3 00 4 00 6 00 Or per folio ... / 40 40 Statement of deienoe i"'oo 2 00 4 00 Or per folio ... / 40 40 Statement of defence and counter-claim I'OO 3 00 5 00 Or per folio ... / 40 40 Reply, with or without joinder of issue, confession of defence, joinder of issue without other matter, memm-andum of demun-er, and any other pleading [not being a petition or summons] anfl amendments of any pleading 1 00 1 50 3 00 Or per folio .../ ... 40 40 Particulars, breaches, and objections, when required ana one copy to deliver 1 00 1 50 2 00 Or such amounji as the taxing officer shall think fit, not exceeding, per folio ,.. 40 40 1887. 38 RULES AND ORDERS /OF COURT. 1887. If more than one copy to be delivered, Jjbr each other copy, per folio Special case, whether original or iiy action, affidavits in answer to interrogatories, and other special affidavits, special petitions and interi'ogatories, per folio ... / . , . Accounts, statements, and other documents for the Chambers, when required, and fair copy to leave, per folio ... ... / . . . Advertisements to be signed by Regism'ar includ ing attendance therefor . . . / Bill of costs for taxation, including dopy for the taxing officer, for first four folios For every subsequent folio ... Copies. Of pleadings and other documents ■ provision is made at, per folio . dere no other 1st Column. 15 30 25 2 00 Copies are not to be allowed as of course, but the allowance is to depend on the pro priety of making or sending thi copies which in each case it to bejshewn and con sidered by the taxing office Inserting amendments case or petition . . . Or per folio any pleading, special Perusals. Of statement of com|)laint, staliment of defence, I'eply. joinder of issue, deUurrer, and other pleading by the Solicitor of the party to whom the same are delivered ... Or per folio Of amendment of any such pleading in writing Or per folio , , . ... . . . l ° Of interrogatories to be answel-ed by a party by his Solicitor ... ' Or per folio Of special case by the Solicitor or of any party except the one by whom i| is prepared Or per folio ... ... , . / Of copy, order to add parties, hotice of defendant's claim against any persori not a pai-ty to the action under Section 129, Civil Procedure Ordinance, and of defendant's statement ol defence and counter-claiiii served on a person not a party under Sectioi 130, by the Solicitor of the party served theJ-ewith, and in theae several cases the peruial of the plaintiff's statement of complaintJ is also to be allowed unless the Solicitor has bfeen previously allowed such perusal ... ' Or per folio Of notice to produce and riotice to admit by the Solicitor of the party siiTed 00 25 10 40 10 1 50 1 "oo 1 00 1 50 ] 00 1 00 2nd Column. 15 40 25 2 00 2 00 25 40 15 2 50 15 1 50 15 2 00 12 2 50 15 2 00 15 2 00 3rd Column. 15 40 40 4 00 2 00 25 15 15 1 50 15 4 00 15 2 00 15 4 00 12 5 00 15 4 00 15 4 00 STRAITS SETTLEMBiSTTS. 39 Of affidavit in answei' to inteirogatories hyj the Solicitor of the party interrogating, and of other special affidavits by the Solicitor *f the party against whom the same can be read, per folio Perusing title deeds, wills, or other paper^ when necessary such fee as the taxing offiofer may consider proper. Perusing drafts of Deeds prepared in course of suit and proper to be perused by the SoUcitor of a payty other than the pai"ty prepaxing the same, /for every folio Attendances. To obtain consent of next friend to/ sue in his name To file any pleading or special case To inspect, or produce for inspectio^, documents pursuant to a notice to admit . Or per hour ... To examine and sign admissions To inspect, or produce for inspection, documents refen-ed to in any pleading or affidavit, pur- suant to notice under Secl^on 291, Civil Procedure Ordinance Or per hour To obtain or give any necessarlr or proper con. sent / .'■• . ■■ To obtain an appointment to examine witnesses . On examination of witnesses/ de bene esse or otherwise before Examii/er, Commissioner, officer, or other person Or according to circumstance^ not to exceed Or reading over an affidavit in/answer to interi-oga- tories or other special affinavit when deponent does not read English, per folio On deponents being sworn, of by a Solicitor or his clerk to be sworn, to an/affidavit in answer to inteiTogatories or other/special affidavit On a summons at Judge's Chambers Or according to circumstaiKes, not to exceed On adjourament ... / . . . To enter or set down action, demurrer, special case or appeal, for heatt'ing or trial A clerk's attendance at the hearing of any pro ceeding in Court whenever in the judgment of the Registrar such attendance has been reasonably required. / Fee for such attendance, per diem ... Clerk's attendance to search list To deliver papei-s [whenf required] for the use of a Judge prior to a hiring On taxation of a bill of/ costs Or according to circumfstances, not to exceed To obtain or give an undertaking to appear To present a specia^ petition, and for same answered ... /.. On printer to insert Advertisement in Gazette or other paper 1st Column. $ c. 8 12 00 00 00 00 00 00 00 00 00 2 00 8 00 1 00 1 50 3 00 1 00 1 00 1 00 $lto$5 1 50 50 50 2nd Column, $ c. 15 15 00 00 00 00 00 2 00 2 00 2 00 2 00 3 00 12 00 06 1 25 2 00 $ltoS3 1 00 00 00 00 00 2 00 2 00 3rd Column. ? c. 15 1887. 15 00 00 00 00 4 00 4 .00 3 00 00 00 4 00 12 00 06 00 50 00 25 00 Sit o$5 1 00 1 00 2 00 10 00 2 00 2 00 2 00 40 RULES AKD ORDERS Olf COURT. 1887. 1st Column. S c. On Registrar that a cause set down is settled! or for any reason not to come into the paper|for hearing _ For an order drawn up by Registrar For preparing and drawing up an order made at Chambers in proceedings to wind-up a (com pany and attending for same And for engrossing every such order, per folio On the Sheriff with writ of execution To search for appearance, each defendant On judgment for default of appeai-ance for ^econd search before signing I To enter judgment by default, final or I inter locutory, including requisition to enteij On settling decree when necessary or accorcjing to circumstances, not to exceed ... On the Solicitor for the other party when nefcessary and other proper and necessary atteadances not being chargeable as " instractipns for hearing, &c." Or if long and special, not exceeding Exhibits, For marking each exhibit to an affidavit Translations:. Other than by Chief Intei-preter, when ileuessary, as taxing officer shall think proper, nAt exceed ing per folio Lettere. Such letters as in the opinion of the tax: ng officer were necessary and proper to be w! itten and not chargeable as notices Or if long and special ORDEll II 00 00 2 00 12 1 00 1 00 1 00 1 00 5 00 1 00 25 75 1 00 2nd Column. 00 00 00 12 00 00 00 00 00 00 00 25 1 00 3rd Column. 2 00 2 00 ■i 00 12 1 00 1 00 1 00 2 00 10 00 2 00 4 00 25 75 1 00 §2 to §5 Conveyancing and nom-contentious business. Costs in con- 1. The I'emiineratioii of a Solicitor in respect of business Ioi*?ontfn-°'°'' connected with sales, purchases! leases, settlements, and other tious business, niatters of conveyancing, and in respect of other business, not being business in any action, or transncted in any Court, is to be regulated as follows, namely : - Costs ol sales, purchases, and mort- gaf^cs com- pletefl, to be regulnted by ad valorem scale in Schedule. [a. J In respect of sales, purchases and mortgages com- pleted the remuneration of the Solicitor having the conduct of tpe business whether for the vendor, purchaser, mortgagor, or mortgagee, is to be that prescribed in tlte Schedule to this Order, and to be subject to the regulations therein contained, STRAITS SETTLEMENTS. 41 [6. J In respect of business connected with any trans action the remuneration for wtiich if completed, is in the" Schedule hereto prescribed, but which is not in fact completed, and in reslpect of settlements, leases or licenses, or agreements therefor, re- conveyances, transfers of mdrigage, or further charges, not provided for in me Schedule hereto, assignments of leases not by /way of purchase or mortgage, and in respect of all other deeds or documents, and of all other/business theremuner ation for which is not prescribed, the remuner thereto as may be, but su taxing officer. 1887. Costs of uncompleted matters and other than sales, pur- chases and mortgages, to be regulated by scale in Seliedula II. the Schedule hereto ion is to be as near I'ect to revision by the 3. The remuneration prescribed Order is not to include stamps, auction travelling expenses, fees paid on searc of extracts from any register, or othe and properly paid, nor is it to include tious character, nor any proceedings include the registration of docuinehts requiring registration, allowances for the time of the Solicitor and his clerks, and charges for copying and stationery, and all other similar disbursements. the Schedule to thisAstodis- 1 » 1 bursements, s or valuers charges, ^c .under id s or registrations, costs ™ioi'em scale. disbursement reasonably iiy business of a conten- any Court, but it shall 4. Where a conveyance and mortgage of the same property conveyance are completed at the same time, arJd are prepared by the same lomp\eteiV\ Solicitor, he shall be entitled to charge only his full charges upon •tmetime. the purchase- money with such additional sum as the taxing oificer may deem reasonable. 3. Fractions of |100 are tq be reckoned as §100. Fractions of SIOO. 6. Where the prescribed /remuneration would, but for this cost under es. provision amount to less than/ 15, the prescribed remuneration shall be $5. 7. Where a property charge shall be calculated upc tion. sold subject to incumbrances the saie of equity I the price of the equity of redemp- °' '^''^^'P'i''"- 8. The above scale as io mortgages shall apply to transfers Transfers of of mortgages where the titlL is investigated, but not to transfers ""tScha^Ri. where the title was investigated by the same Solicitor on the original mortgage or on any previous transfer ; and it is not to apply to further charges where the title has been so previously investigated. 1887. STUAITS SETTLEMENTS. OEDER III. Special Allowances and General Provisions. 43 1887 1. As to writs of summons reffluiring special indorsement, in special original special cases, pleadings, apd affidavits in answer to aiiOTvao'iea'''' interrogatories, and other special affiiJavits the taxing officer may, may be made. in lieu of the allowances for instructions and preparing or draw- ing, make such allowance for work,/ labour, and expenses in or about the preparation of such docurjents as in his discretion he may think proper, 2. As to drawing any pleading or other document, the "j'^'^j"^ fees allowed shall include any copy made for the use of the '' "^' Solicitor or client or for Counsel tol settle. 3. As to instructions to sue or defend, when the higher instructions scales are applicable, if in consequlence of the instructions being defend, &c. taken separately from more than three persons [not being co- partners] or from any other causa the taxing officer shall consider the fee above provided inadequaA,e, he may make such further allowance as he shall in his discretion consider reasonable. 4. As to affidavits when th|bre sworn, or it is necessary for the to go to a distance, or to e allowance may be made as the think fit. No instructions for the Solicitor or his clerk make are several deponents to be swearing urpose 01 an affidavit being sworn ploy an agent, such reasonable faxing officer in his discretion may n affidavit shall be allowed when the affidavit. 5. The allowances for instructions and drawing an affidavit Drawing in answer to interrogatories/ and other special affidavits and aSdattending attending the deponent to h& sworn, include all attendances on "Jeponent. the deponents to settle and read over, except when deponent does not speak English. 6. [1] — As to delivery of pleadings, services and notices the certain fees fees are not to be allowed when the same Solicitor is for both aUoweaVhen parties, unless it be necessary for the purpose of making an loiip""^^ affidavit of service. / acts for both parties. [2] — 'As to perusals th| Solicitor is for both parties/. fees are not to apply where the same 7. Where an Advocite and Solicitor not being the same where another person or of the same firm/ is employed as Advocate in any cause ^a solicitor or matter such fees shall /be allowed for attendances, preparing ™^'°y^'py°g briefs and other like matrers as having regard to the scale of "'Coart. costs hereinbefore set outiand to the other circumstances, to the taxing officer shall seem proper. 8. As to evidencei such just and reasonable charges and Evidence. expenses as appear to have been properly incurred in procuring evidence and the attendance of witnesses are to be allowed. 44 RULES AND ORDERS OF COURT. 1887. Cases not provided for. Attendances in Cliamber*. 9. In all cases for which a fee ori costs are not provided in these rules, or where from any exceptional feature the fees or costs allowed are not in the judgmentfof the Eegistrar sufficient, he may allow such fees or costs or mAe such addition to the fees or costs of the existing scale as the Jpdge on a reference to him may direct. 10. As to attendances at Cha non-attendance of any party [and it to proceed ex-pm'te] or where by r party in not being prepared with an other proceeding, the attendance is progress being made, the Judge or amount of costs [if any] as he shal to the party attending by the part ers, where by reason of the is not considered expedient ason of the neglect of any proper evidence, account, or djourned without any useful egistrar may order such an think reasonable to be paid so absent or neglectful or by the Solicitor personally; and the pArty so absent or neglectful is not to be allowed any fee as against any other party, or any estate or fund in which any other party is interested. Tolio. 11. A folio is to comprise lOO words, every figure comprised in a column being counted as one word. Hearing fee. Two Counsel not to be allowed unless certified for. Inspection under Section 291 o{ the Civil Procedurt Ordinance. 12. The hearing fee is to inc|lude the fees hitherto allowed for " perusing cause papers ano " reading over notes and preparind considering authorities " and for next day." 13. Fees for more than on4 Counsel or Advocate for one party or set of defendants shall not be allowed unless the Judge shall at the hearing so certify. 14. As to the inspection oi documents under Section 291, Civil Procedure Ordinance, 1878,1 no allowance is to be made for any notice or inspection, unless ip is shewn to the satisfaction of the taxing officer that there wera good and sufficient reasons for giving such notice and making sAch inspection. Set-ofI of costs. Attendances. 15. In any case where und order or direction of a Court entitled to receive costs is liable the taxing officer may tax the c( ir any rule of Court, or by the or Judge or otherwise, a party to pay costs to any other party, sts such party is so liable to pay, and may adjust the same by wa/ of deduction or set-off, or may, if he shall think fit, delay the a lowance of the costs such party is entitled to receive, until he h is paid or tendered the costs he is liable to pay; or such officer mty allow or certify the costs to be paid, and the same may be reco reved by the party entitled thereto in the same manner as costs ort ered to be paid may be recovered. 16. A.ttendances upon tht client are not to be allowed upon taxation between party and pai ty except in the case of consulta- tion before hearing or trial of ac tion, or assessment of damages, or motion for special injunction, )r other special applications, and except, when necessary, for obtcining the instructions of the client STRAITS SETTLEMENTS. 45 Ordinary discretion /of procedure. No ittempts at a com- upon matters arising in the cause beyond the of the Solicitor and not relating to matters / attendances or letters in respect of abortive promise or of arrangements for the convenie/nce of Solicitors or client are to be allowed on taxation between party and party. One letter or notice before action may be allowed, but no attend- ance on the client or defendant before writ issued shall be allowed, and no fee for receiving and perusing any yetter is to be allowed. 1S87. 17. Bill of Costs are to be copied on Jf^oolscap paper bnokwise ^°™ °* ^^"^ °' distinguishing by insertion in separate columns costs out of pocket from charges for work done and time expended, and shewing by a statement all sums of money received from, or agreed to be paid by, the client in respect of the suit or matter under taxation or in connection therewith. Dates must be fiurnished to each item, but they must be kept within the body of the bill, so as to leave the left hand margin for deductions. Every bill shall be headed in the cause or matter to which the same relates with the name of the party whose bill it is, and the decnee or order under which the same is to be taxed, and whether the/same is to be taxed between party and party or Solicitor and client and in proceedings in a suit or action the scale under which fthe same is to be taxed. One copy is to be made for the taxing officer and left with him on obtaining an appointment to tax, amd one copy for the other party, or in case whei'e several parties are entitled or directed to attend the taxation, each set of parties so/entitled or directed to attend. 18. Not less than twenty-foAr clear hours' notice of taxation is to be given to the other party or parties and on the expiration of fifteen minutes from the time /appointed for taxation or named in the notice if the other party pr parties do not attend, the tax- ing officer may proceed to tax /the bill in the absence of such other party or parties. The taxing officer may adjourn the tax ation, from time to time, if he ^all deem it necessary or desirable so to do. Notice of taxation. 19. In the taxation of ^osts between party and party, the o^BufS™' bill of costs may be amended at any time before the taxation costs. closes. 20. The taxing officer shall require vouchers for all disburse- ^^n"""' ments over |5. 21. When the taxation is finished, the Solicitor shall cast certificate. up the bill and the deductions therefrom which are to be checked by the taxing officer or His clerk, and the taxing officer is to proceed to make his certificate or allocatur for the amount of such costs less the deduction. 22. Any party whfll may be dissatisfied with the or disallowance by the taxing officer, in any bill of costs taxed by him, of the whole or any part of any. items, may at any time allowance objections to taxation. 46 RULES AND ORDERS /OF COURT. 1887- Review of taxation by taxing ni- cer. before the certificate or allocatur is sjfgned or within twenty-four hours thereafter, deliver to the other party interested therein, and carry in before the taxing officer, an [objection in writing to such allowance or disallowance, specifying/therein, by a list, in a short and concise form, the item or items, mrts or part thereof, objected to, and may thereupon apply to the/taxing officer to review the taxation in respect of the same. 23. Upon such application the paxing officer shall re-consider and review his taxation upon such /objections, and he may, if he shall think fit, receive further evidence in respect thereof, and if so required by either party, he shall state either in his certificate of taxation or allocatur, or by reference to such objection, the grounds and reasons of his decisioijl thereon, and any special facts or circumstances relating thereto. Review of Taxing Olll- cer's certifi- cate by Judge. 24. Any party who may be/dissatisfied with the certificate allocatur of the taxing officeii as to any item or part of an item which may have been objected to as aforesaid, may apply to a Judge at Chambers for an or the same item or part of an itei make such order as to the Judj cate or allocatur of the taxing oj as to all matters which shall nol aforesaid, er to review the taxation as to and the Judge may thereupon 'e may seem just ; but the certifi- .cer shall be final and conclusive have been objected to in manner Evidence on reviewal. 25. Such application shall/ be heard and determined by the Judge upon the evidence which/ shall have been brought in before the taxing officer, and no further evidence shall be received upon the hearing thereof, unless the/Judge shall otherwise direct. Irregularities in service of Notice no ground for setting aside judgment. 26. Any irregularity in delivery of copy of the bill U ground for setting aside any shall be a ground for an ai objections or application to n entering of the judgment fo| allocatur. ihe service of the notice to tax or the opposite party shall not be a judgment entered up thereon, but plication to review only, and no iew shall be a bar or stay to the the amount of the certificate or Interpreta- tion of terms Court or Judge. 27. The expression Cohrt or Judge in these Rules shall include the Registrar in applications or matters by the Civil Procedure Ordinance or anyf Rules of Court directed to he heard or taken before him. Costs endorsed on specially endorsed writ. 28. When a writ of Jummons is specially endorsed under Chapter VIII. of the Civil Procedure Ordinance, the following are the amounts which may be indorsed by the plaintiff's Solicitor upon the writ for costs and/to include mileage : — In actions above S5,000 „ above $ 500 „ below $ 500 ...$15 ...$12 ...86 8 STRAITS SETTLEMENTS. 47 Where the plaintiff's Solicitor, at the time ^f issuing the writ, claims more than the sums fixed as above/ the indorsement on the writ of summons in respect of costs snail be as follows : — " Such sum as shall be allowed on taxation /for costs." And in case the plaintiff shall be found not entitlea to more costs than such fixed sums, or if more than one-sixth snail be disallowed, the plaintiff's Solicitor shall pay the costs or taxation, so if the Solicitor has indorsed on the writ one of the fixed sums for costs of judgment, and claims more costs on sianing judgment and on taxation shall not be found entitled to mm-e than such sum, or if more than one-sixth be taken off on taxation, the plaintiff's Solicitor shall in like manner pay the costfs of taxation. 7. T. FOED, C.J. 5tne. PELLEREAU, J. ' JOHN T. GOLDNEY, J. I hereby certify that the above is a true copy ob certain Rules and Orders made this /day by the Judges of the Supreme uourt, of the Straits Settle- ments, unfler the pi-ovisions of "The Courts' Orflinance, 1878." 1887. (THEODORE T. FORD, Chief-Justice. Ordbe of Court. 1888. 2Qth January, 1888. Rules and Orders fon regulating the Practice and Procedure of District De^pgates of the Judges of the Supreme Court. His Honour Theodore Thoman Ford, Chief-Justice of the Supreme Court, of the Straijs Settlements, doth hereby, in pur- suance and execution of me powers given by " The District Delegates Ordinance, 1887,7' order and direct in manner follow- ing:— The District Delegates shall, not less than once in every two weeks, hold a Court for trae hearing of applications for Grants of Probate and Letters of Administration and notice of the days on which such applications may be taken shall be posted in the OfSce of the District Delegate. 48 RULES AND ORDERS OF/COURT. 1S88. II. Probi ite or Letters of Adtninis- le executors or the parties or by a duly constituted Applications for a Grant of tratiou must be made in person b^' entitled to Letters of AdininistratioiY Attorney of the party who is desirous of obtaining the same, or, in the case of infants and minor^, by their duly appointed guardian. III. Such applications may be mad testator or intestate had at the ti residence within the jurisdiction of| the application is made ; and [i] effects of the deceased exclusi in all cases where : — [a] the e of his death his permanent the District Delegate to whom be nett value of the estate and fe of what the deceased was possessed of, or entitled to, as trustee and not beneficially does not exceed ^500. The petition and all other documents that may be necessary for the purpose of obtaining a jGrant of Probate or Letters of Administration shall be drawn ip the Office of the District Dele- gate [when parties are not represented by a Solicitor] from instructions furnished by the applicants ; and in drawing up the same the forms in the Sehedulejhei'eto [a.] shall be followed, as nearly in each case as the circuinstances will allow, or such forms as, from time to time may, be prescribed by law. In case of Wills, Office copies of Wills, or other documents in a foreign language, there sJ thereof verified by the affidavj late the same, when the sar Interpreter of the Supreme all be filed therewith a translation of some person qualified to trans- have not been translated by a sworn urt or Magistrates' Courts. VI. All oaths and affirmations which may be necessary for the purpose of obtaining a GraiJt of Probate or Letters of Administra- tion, shall be taken before tUe District Delegate, and all documents requiring alteration for tho| like purpose shall be attested before the District Delegate. An uniform fee of $2 is received, shall be chai'gec VII. to be affixed to the petition before it in all cases before the District Delegate, [a.] These forms being numerbus and lengthy are not given in this work — they are however to be found inextensoTfi the Government Oazeiie of 1887, pp. 2399-2422, STRAITS SETTLEMENTS. 49 and such fee shall include and be in lieu of ill Court and other fees, charges and expenses payable in respect ofl the application and the grant. VIII. The statement contained in anypetij/ion for Grant of Probate or Letters of Administration must in ail cases be verified by the oath of the applicant sworn before t" " ^ Commissioner entitled to talie oaths, a the petition. IX. 188S. e District Delegate or a in the form contained on Whenever the applicant applies ks guardian of any minor or infant, or as Attorney of another/ person, the manner of liis appointment shall be slnn-tly stated in the petition. X. Upon receiving an applicatioiy for Probate the District Dele- gate must ascertain: — [ft] the dajte of the deceased's death; [h] the place of the deceased's deatW; [c] the value of the property to be covered by the grant. And before making any grant on such application he must see ihat the affidavit verifjnng the statements contained in the pet the account for the ('ollector h^ the applicant. tion, and the affidavit verifying ve been subscribed and sworn by :i. Upon the heai-ing of an typplication for Probate or Letters of Administration v^irh the Will annexed, the District Delegate must inspect the Will and /ach Codicil, and see whether by the terms of the attestation clause [if any ] it is shewn that the same have been executed in accordance with the requirements of the law. In order to prove that such requirements were in fact complied with, the Districtf Delegate must also examine on oath one at least of tlie subscrib/ng witnesses for that purpose. XII If on the sworn ovmence of the subscribing witnesses or witness it appears that /such requirements were not complied with, the District Delegate must refuse Probate. If both the subscribing witnesses are dead, or if from other circumstances their evidence cannot be obtained, resort must be had to other persons [If any] who may have been present at the execution of the Will or Codicil ; and if this cannot be obtained, evidence on oath as to/ the handwriting of the deceased and the subscribing witnesses/ and also as to any circumstances which may raise a prpsumppion in favour of the due execution must be procured. 50 1888. RULES AND ORDERS PP COURT. XIII. Interlineations, alterations, era^ires and obliterations are invalid unless they existed in the Will or Codicil at the time of execution, or, if made afterwards, unVess the}' have been executed and attested in the mode required by lavjr, or unless they have been rendered valid by the re-execution of the Will or by the sub- sequent execution of a Codicil theretjc XIV. Where any deed, memoranduhi, or other document ^¥hich was in existence at the time of the execution of the Will is refen-ed to therein, and is of such a nature jas to raise a question whether it ought or ought not to form a cohstituent part of the Will, its production must be required with/a view to ascertain whether it be entitled to Probate, or its non-riroduction accounted for. xvl Upon receiving an application for a grant of Letters of Administration the District Delegate must ascertain the same facts, and see that the same affidavits applicant as are prescribed in grant thereon ; and in addition the naaies and interests of all practice of the Court, would ha [fo] how such prior rights are c] persons have renounced, the df where the applicant claims as t the date and particulars of the re subscribed and sworn by the ule 10 before he can make any le petition should set forth : [a | persons who, according to the e a prior right to the applicant ; ared off ; [c] where any of such ;e of the rennnciation; and [d] representative of another person, rant to him. :vi. Where it appears to the persons who have a prior right made to them, he must issue the Schedule hereto] * or othf to such of them as in his opi™ grant for themselves ; but w| great, or undue expense woij JDistrict Delegate that there are (to the applicant to have the grant Citations [in the form marked G. in srwise give notice of the application Son may be desirous of obtaining a ^ere such pei-sons are numerous, or lid be caused thereby, he may, at his disci-etion, dispense with (the service of any citation or notice on any of them. ' XVII. Grants of Administratidn may be made to guardians of minors and infants for their use anfl benefit. In the case of minors [i.e., infants oyer the ageof se^en years], the minor may elect his next-of-kin or next friend Uy theTorm marked K. in the Schedule hereto * and such election/ shall be filed ; in the case of infants [i. e. under the age of sevfen years], the District Delegate shall, * Vide foot-note [a,] anU p. ks. ST/RAITS SETTLEMENTS. 51 in las discretion, assign a giuirdian to the infant; and in the case of there being both minors and ifnfants, the guardian elected by the minor may act as sucli for be X\^II. A citation shall be served o/i the person named therein, either personally by delivering a copy thereof to him, or by leaving a copy thereof at such person's Aast known place of residence, by the process server of the District Delegate's office; and the date of such service, within tiiree days at latest thereafter, shall be endorsed by the process server on (he citation. No such service shall be good if made/on Sunday, Christmas Day or Good Friday, or unless made betWeen the hours of 10 a.m. and 4 p.m. on week days, and of 10 a.m/ and 1 p.m. on Saturdays. XIX. Where any person seyved with a citation or notice as afore- said does not, within the/ period named, therein deliver or cause to be delivered a memoi/andum in writing dated on the day of delivering the same, and stating that he appears thereto, the applicant may ask for such Probate or Administration as is asked for in his petition, ancy the District Delegate may upon being satisfied of the due seiwice of such citation or notice make such order for the granting of Probate and Administration as may seem to him just or expedient. XX. Any person havijtig or taking any interest in the estate of a deceased person under his Will, or as one of his next-of-kin, or as a creditor or otherwise may without filing a petition for a Grant of Probate or Adminisfration to himself cause a citation to be issued in the form markefd /. in the Schedule hereto* directed to the executor or executors, or residuary legatees or legatee, or any other person or persons having a prior right to such Probate or Administration before himself, calling upon the person cited to accept or refuse such Probate or Administration. XXI. Such citatic/n shall be issued by the District Delegate upon an affidavit of the party applying, or of some other person shewing the interest of ihe applicant and the right of the person to be cited, and shallf be served as aforesaid. If the person to be cited shall not be resident within the Settlement in which the citation is issued the District Delegate shall make such order, as to the time when the same shall be made returnable, as to him shall appear reasonable and just. XXII. The person served with such a citation may if he intends to apply for Probate or Administration enter an appeai-ance as afore- * Vide foojt-note [a.J aiM p. 48. 1888. 1S83, 52 RULES AND ORDERS OH COURT. said; but if he shall not appear to the /citation according to the exigency thereof, he shall, upon proof hi due service thereof, be deemed to have renounced such Probatfe or Administration ; and if he shall appear, but shall not within/ twenty-four days proceed to apply for such Probate or Administi4tion, such person shall he deemed to have renounced the same. XXIII. In drawing the account for the Collector, the District Delegate should add a schedule of th* debts [if any] due from the deceased to persons resident in the Cdlony : and for the purpose of estimating the nett value of the estate and effects of the deceased, the aggregate amount of such debts felionld de deducted from the value^of the estate and effects as spefcified in the petition. xxivl. Debts which may be so deductted, are debts due and owing from the deceased and payable bir law out of any part of the estate and effects comprised in sncp account, but do not include voluntary debts expressed to be! payable on the death of tlie deceased, or payable under any instrument which shall not have been bond fide delivered to the doiJee thereof three months before the death of the deceased, or debts/in respect whereof a reimburse- ment may be capable of being cljiimed from any other estate or person. XI Where any immoveable property forms part of the estate and effects of the deceased, and such propex-ty is the sole security for any debts due and owing from him to any persons resident or non-resident in the Colony, thq amount of such mortgage debts may be deducted. xivi. An administration bond saall not necessarily in all cases be required, but only in such casjes as the District Delegate may think it desirable that such a bind shoiild be given : provided that in all cases referred to in Rule |7 it shall be required. In all cases where an administration bond shall be required it shall be as near as may be in the form marked Jil in the Schedule hereto annexed, * and shall be given in double the amount of property covered by the grant and be attested before the District Delegate, who must satisfy himself that the sureties proposed are responsible persons. XXVII. The District Delegate desirable, require proof in add administrator of the identity party applying for the grant. Vide fQot-flote [a,] anti p. 48. mil, in cases where he deems it tion to the oath of the executor or )r death of the deceased, or of the STRAITS SETTLEMENT/S. 53 XXVIII. In all cases where Probate or Admi/iistratioii is for the first time applied for after the lapse of 12 yet/rs from the death of the deceased, the reason of the delay and for the application being then made must be ascertained by the District Delegate ; and with- out making any order thereon the papeys with a statement of such reasons should be transmitted to the sApreme Court. XXIX. 1888. In all cases where the District, the Probate or Letters should or any question or contention arises i forward all documents that have together with a statement of th elegate is doubtful whether ould not be granted, or when relation to the grant, he must eeu filed with the application, case, for the direction of the Court, and then await the instrugtions of the Court. XXX. The District Delegate s application for grant of Pro endorse on the petition the or all forthwith, after hearing any te or Letters of Administration, which he makes thereon. er [XXI. If the order be that the grant applied for be made, the District Delegate shall, anter making such order, require the applicant to subscribe and /swear before him the usual oath for faithful administration in ihe form appended to the petition, and forthwith forward the saime with all documents which may have been filed therewith and notes of any evidence taken by him to the Registrar of the Supreme Court. XXXII. No order under the preceding rule shall be made by the District Delegate on a!ny jpetition, until after the expiration of seven days from the filing of the petition or until after the time named in any caveat, /citation or notice for appearance shall have expired, whichever period is the longer. XXXIII. On receiving jirom the Registrar the Probate or Letters of Administration for transmission to the applicant, the District Delegate shall delwer the same to the applicant, but before doing so, he shall certify in writing on the petition that the afBdavit for the Collector has/been delivered, and that such affidavit required no stamp duty; /and stating the gross value of the estate and effects of the deceased as shewn by the account delivered with or annexed to such/ affidavit. 54 RULES AND ORDERS Oil COURT. 1888. XXXIV. On receiving any accounts or otliet documents for filing in the Registry of the Supreme Court, thjb District Delegate shall forthwith transmit the same to the Kegi^rar of the Supreme Court. XXXV. Any person intending to oppose Probate or Letters of Administration form marked I. in the Schedule here caveat is lodged with the District Deleg the particulars thereof in a book to bi pose and forward the caveat to th Court. XXXVI. (the issuing of a grant of may enter a caveat in the io. * Whenever any such ite, he shall forthwith enter kept by him for that pur- Registrar of the Supreme Where a caveat has been entered, the District Delegate shall not grant Probate or Letters of Administration unless such caveat has been first withdrawn or otherwise duly disposed of. XXXVI- . If at any time it is brought to tie knowledge of the District Delegate that the estate or effects time of the grant of greater nett )f the deceased 'alue than once communicate the fact togetlier with any information he may have acquired on tbe subject tf were at the , he shall at the Collector of Stamps. THEODORE T. FORD, Chief -Just ice. None o :' the beforementioned Rules having be en disapproved by resolution of the Ljgislative Council within the i time app< inted by "The District Dele- gates Or linance, 1887," I do hereby make ' t tiese Rules, and they are from in force where District Dele- legally appointed. THEODORE T. FORD. Ghip.f-Jw'.tice. this date , gates are 26-\ -n •,-ttr\r\ i-W'trt 560 76 638 191 605 O. JLiCC XVclrll tlilLl (Jib. V. Mabot and ors. Payna Emanisah v. The Glen- falloch "' IVT'ili \\\ Olinnn 472 260 478 i- 1 l\i1 r\ l-i /-v • VI r\ /-I (J , J-tJ cIjII U 1 1 1 1; l.L Penang Tramway Co., Li Ah Chew V. 665 550 250 ■ V. Monteiro Pendek v. Broadrick 666 ■ V. Nja Abu and ors. 169 Piper, In re 221 V. Ojir and anor. 122 Pooles, In re Frederick, 670 V, Ong Kong Poon 346 Poonasamy Naiku and Co., V. Pantalani 605 Mana Nondn and Co. v. 511 V, Quak Ah Sah 385 Puteh, Chong Ah Nai v. 433 v. Rabia 613 V. Rodriguez 323 Q. V. Sahid - 615 258 Quah Loo Moye v. Law Seow w. Syed Mahomed Alsagoff 651 Pluck - 100 V. Tan Yok Lan and ors. - 668 Quaik Kee Ploek v. Wee Geok n» W -1 m 1— 1 IS 156 xN^eo - Siew Soon v. Kim 128 T1 T^n ^ It TTnn 317 375 V. Vong Ah Hoon - Gnn n Quak Ah Sah, Eeg. v. 319 385 /n ^A7<-ir-\ Giwi T'lnivi 1-1 n .-1 i-vmn 238 150 ■ t/« ttCC Oilll J-irllll clillUUIO. v.. Wong Ah Knm - V. Yeap Hock Tin - 237 R. V. Yeoh Boon Leng - 630 Riccard, Taserip v. 214 Rabia, Reg. v. - 513 Rodriguez, Reg. v. 323 Rajah Samsndin Tunku Jaksa, " In re - 346 S. Raman Chetty, In re 471 v.G6\nn\ Mydin- 97 Sabapathy Chetty v. Sitra Eamsamy v. Low 396 Mootar £30 Rawang Tin Mining Co., In re Saliat V. Hajee Brahim - 337 The 570 Sahid, Reg. v. - - 615 Eeg. V. Batty 441 V Fn Ml Soh 349 TABLE OF CASES REPORTED. Sahria and ors., Jayah Kaclii and anor. v. Sarneh Moordee, In re Sammug-um v. Fraser Satow, Marrable v. - Savavathy Chetty, In re - Scully, Duval v. ■ V. Scully Seah Lee and nnor. v bin Iviain Guan — Liang^ Seah, Yeoh Kian Guan V. Sha.ik Pareetho v. PJbramsah ShayiiaMustan Eowterz;. Kana Sbaik Ibrahim Shedumbrum Chetty v. Keng Cheow and Co. Shellapen v. Gordon Shenayah Chetty and anor. v. Veyna Sultan Mahomed Sherifa Shaikaz^. Haughton SherifEa Essah, In the goods of Simons v. "Jeo Guan Tye- liayoon Neoh, ma anor.. Chill Lim Sabapathy V. Guthrie Sinyak In re Sit Hoon Neo V. Sitra Moo tar, Chetty V. Solomon and anor and Co. Spirit Farmer v. Tok Tim Tong Stubbs and ors. v. Loh Hoh Seng and ors. Suprayen, Reg v. Syed Hassan bin Omar al Ha- deed v. Khoo Soon Tjio and ors. Mahomed Alsagoff, Reg. v. ■ — — Attas V. Tan PAGE. 413 530 338 274. 595 120 602 403 590 491 344 587 388 663 533 98 541. 329 492 530 679 546 409 258 Pok Sye V. Tek Lee Tan Boon Tay and ors., Tan Chin Hoon v. Chill Hoon v. Tan Boon Tay and ors. Chye Hoon v. Lim Seow 528 651 345 345 584 584 Chong and anor, Tan .Heng Wee, Fox v. Tanjong Pagar Dock Co. v. Municipal Commissioners, S. Tan Kim Keng and anor. v. Municipal Commissioners, P. . . . Pok Sye, Syed Mahomed Attas V. Seng Qui v. Palmer Sim Ho, Reg. v. Tua Kow, In re Yok Lan and ors., Reg. v. Taserip v. Riccard Taynappa Chetty, Brown v. - Tek Lee, Syed Mahomed Attas V. - - Tengah Chee Nachiar v. Naco- dali Meriean and ors. Teo Ah Hoo, Reg. v. - - Teo Guan Tye, Carr v. Simons v. - PAGE. 604 Thermopylce, The Thum Chee v. Ho Ah Fa Tijah V. Mat Alii - ■ V. Milah Tio Ang Boi v. Hia Ma Lai Tok Tim Tong, Spirit Farmer V. Turner v. Mansfield and Co. U. Ung Ah Mni and ors. v. Hamp- shire - - 296 Vanjoor v. Kaliapah Chetty - Vaughan v. D'Silva- Veera Padiachee and ors.. Coo- pang Chetty and ors. v. Veerappah Chetty v. Koh Suon Liat and anor. Vengadashellum, Brown 2'. "Vershat, Jamalsah v. Veyna Sultan Mahomed, She- nayah Chetty and anor. v. Vong Ah Hoon, Reg. z'. Vytilinguin, Jenabbooand anor V. 103 450 345 251 156 291 666 214 268 345 265 817 661 544 679 006 124 186 230 546 91 592 286 364 614 524 471 663 375 78 TABLE OF CASES REPORTED. W. Wee Geok Neo, Quaik Kee Hock V. _ - _ Kim Guan, Quaik Siew Soon V. N^a Neo v. Yeo Kiaii Guan and anor. - Sim Tian andors., Reg. 7'. Swee Hin v. Opium Farmer Wemyss v. Attorney-General Wong Ah Kum, Reg. v. Wi-ay and anor., Lim Seng Ee 7'. - - - Wi'ight, Beebee Samsoo v. PAGE. 128 319 558 238 527 10 150 240 199 Y. Yacob, Mootyah Clietty v. Yeap Hock Tin, Reg. v. - Yeo Kian Guan and anor., Wee Nga Neo v. - 7'. Seali Liang Seah Yeoh. Boon Leng, Reg. v. Cheng Kang and PAGE. 508 237 558 590 630 or.s., Yeoh Him and ors., 7'. 204., 500 -— Him and ors. v. Yeoh Cheng Kang and ors. - 204, 500 — Hong Ghee, Crane v. 587 TABLE OF OASES OITBD. A. Abbot V. Baker's Tea Association Abdullah, In the goods of Abdulrahim v. Draliman Abud V. Riches Adams v. Morsan •u. Scott Adolphin v. Ellis Adney v. Greatrex. Agnew V. Jobson Alford V. Viokery Alison, In re Allee v. Sama,n & anor Allen V. Knight • V. Meera Pullay & ors Allies V. Probyn Allison, Iti re AUsop V. Allsop Andres v. Andres Anglo-French Oo-operative Society, Annet Lyle, The Anonymous Arkwi'ight v. Gell Armstrong v. Armstrong V. Lewis Arnold v. Arnold V. Hamel ■ ■ In re . Ashby V. White Asher v. Whitleck Atkinson v. Baker V. Sittree Attoi-ney- General v. Aspinall ■ — — — V. Baliol College ■ V. Chamberlaine V. Chambers V. Compton V. Corporation of Bir- mingham V. De Wind V. Eastlake • V. Kwok A. Sing V. Lonsdale V. Norwich V. Sidney Sussex College — 1 V. Toniline In re PAGE. . 270 330, 334 . 226 433, 434 14L. R. . 182 . 359 438 . 133 241, 247 . 79 359, 362 W. N. 1871, 207, & 1872, 31 2 Kyshe [Bcc. Ca.] 8 . 1 Ibid. 171 2 L, R. Ch. Div. 528 . f 12 L. R. Jr. 1, Affd. on App. I Ir. 140 7 W. R. 213 14 r,. R. Q. B. 841 38 L. J. Ch. 414 47 L. J. M. C. 67 I Oar. & M. 280 II L. R. Ch. Div. 284. 293 1 Kyshe, 480 . 187, 5 Hare, 272, on App. 11 Jur. 527 1 Kyshe, 394 2 0. M. & R. 408 10 Ex. 561 29 L. J. Ex. 315 24 L. R. Ch. Div. 637 . 21 11 Prob. Div. 114 Alleri, 92 1 Lev. 68, g. 0. 11 Q. B. 112, 117 6 Mad. H. C. [App.] 10, 29 . 6 M. & W. 203 7 L R. Eq. 518 2 Cr. & M. 274, in En. 3 M. & K. 45 14 L. R. C. D. 270 9 Ex. 404 14 L. R. Ch. Div. 270 Ld. Raym. 938 1 L. R. Q. B. 1 4 T. R. 229 Willes, 482 2 M. & C. 613 9 Mod. 407 6 Jur. [N.S.] 745 4 De G. M. & G. 206 1 T. & C. 417 [ 15 L. R. Ch. Div. 423 I Kyshe, 303 II Hare, 205, 223 5L. R. P. 0. ]79 f 7 L. R. Eq. 377 252, 257 155 161 . 588 . 275 . 367- 133 . 196 . 480 73 73 157 452 132 186 455 241 469 438 226 445 73 48G 355 23 27 486 509 \ 16 Sim. 225 16 W. R. 162 12 L. R. Oh. Div. 58 Div. 214, s 250 486 172, 174 4, 32, 48, 50, 55, 56, 61, 64 . 486 . 509 c. 14 Ch. 33, 52. 60, 64, 67 TABLE OF CASES CITED. Attorney- Genei-al v. West Hartlepool Im- ) provement Commis- [ 10 L. R. Eq. 152 sionei-s . . J of Lancaster v. Dvike oil t. ^ -o r^ -o t\- m- Devonslnre . T* I^' »• Q' ^ ^^^ ^^^ Ayles' Trusts, 7n re . 1 L. R. Ch. DIy. 282 Ayre v. Craven . . , .2 Ad. & E. 2 PAGE. 486, 487 . 508 129 . 367 B. In re Trustees of Evans' Bagnall v. Carlton Bagot V. Williams Bahia & San Francisco Ry. Co., Bailey v. Haines Baker v. Read Ball V. Herbert Banister, In re Bank of Ireland Charities Barber & Co., Jm re . Barclay v. CoUett Barker, In re V. Hodgson . 's Estate, In re Barlow v. Orde Barnett, Ex-parte V. Smith V. South London Tramway Vo. Bai-rell, Ex-pai-te Barrow, v. Barrow Barsvick v. English Joint Stock Bank Bastin v. Bidwell Batavier, The Bateman v. Countess of Ross Beaumont v. Reeve . Beavan v. Delahay Bneston v. Weate Bell V. Corporation of Quebec Bettyes v. Maynard Bhiloo Mundul & ors. v. Mootu Jail Chore Mundul Bickett V. Mon-is Bidder v. Brydges Bignall v. Gale Birch i;. Allen Bird V. Gunston Blackburne v. Somers Blaiberg, In re . . . Blaieberg v. Beckett Blake v. White Blanchard v. Collins . . . . Blarrain v. Scott Blenkertim v. Robertson Blewett V. Tregonning Blight V. Hartnoll Bluradell v. Catterall Board of WorTrs for Greenwich v. Mandslay Bogg V. Midland Railway Co. Boman v. Wathen Bomarsund, The Bpngah V. Mat Din , . , . 6 L. R. Ch. Div. 371 3 B. & C. 235 . 3 L. R. Q. B. 574 19 L. J. Q. B. [N.S.] 73 18 Beav. 398 . 13 T. R. 253, 261 12 L. R. Ch. Div. 131 I 5 H. L. C. 389 9 L. R. Eq. 725, 731 et seq. 4 Bin.?. N. C. 658 17 L. R. Q. B. D. 259 . 3 M. & S. 267 . 15 L. R. Ch. Div. 635 3 L. R. P. C. 164 9 L. R. Ob. App. 293 . 10 L. R. Ch. Div. 491 . 18 L. R. Q, B. Div. 816 10 L. R. Ch. Ap. 512 . 18 Beav. 529 . 2 L. R. Ex. 259 . 18 L. R. Ch. Div. 238 . 2 Wm. Rob. 407 1 Dow. 235 8 L. R. Q. B. 483 1 H. Bl. 8 5 E. & Bl. 986 . 5 L. R. Ap. Ca. 84 (49 L. T. [N.S.J 389, rev. [ [N.S.] 766 I 9 W. R. 252 1 L. R. Sc. & Div. Ap. 47. 37 L. R. Oh. Div. 406 9 Dowl. 631 8 L. R. Ch. Div. 314 2 Chit. 459 5 L. R. [Ir.] 1 . 11 L. R. Q. B. Div. 537 18 96 1 Y. &. C. Ex. Eq. 421 10 Ohio, 138 3 Camp. 388 24 L. R. Q. B. Div. 543 3 Ad. &. E. 554 23 L. R. Oh. Div. 218 . 5 B. & Aid. 268 5 L. R. Q. B. 397, 401 4 L. R. Eq. 310 2 McLean. 376 Luahington, 78 Penang < 'ase [unreported] . 196 . 563 . 465 . 507 . 590 57,58 . 457 . 443 . 478 100 . 626 . 137 . 267 . 130 . 284 465 . 465 253, 256 . 379 . 545 . 23 . 480 . 328 7 79 . 452 . 24 L. T. 359, 664 . 313 ,48,49,50,52 . 588 . 208 . 590 . 241 . 452 . 471 . 624 559, 560 . 60 . 438 . 625 . 518 . 267 24, 55, 57 . 56 24 . 60 . 201 , 125 46 TABLE OF CASES CITED. PAOE. Boodle V. Daviea Bottle V. Knocker Bottomley v. Ambler Bourdin v. Greenwood Bourne v. Seymour . , Bowes V. Stand Boydell v. Dmmmond Brace v. Wehnert Bradford Banking Co. v. Briggs Bradsliaw v. Vaughton Brazier v. McLean Brice v. Bannister Bridgman v. Holt Bridgwater Trustees v. Bootle-cum-Linacre Briggs V. Boss Bright V. Boyd Briscol V. Drought Bristow V. Sequeville British India Steam Navigation Co. Commissioners of Inland Revenue British Seamless Paper Box Co., In re Brodrick v. Scale Brook Delcomyn & Badart, In re Brown i;. Bolton V. Clark V. Cure of Montreal V. Dale V. Royal Ins. Co. Browne v. Hope Brunsden v. Humphrey Bryson v. Russell Buckinshaw v. NichoU Budding v. Murdoch Burdett, In re Burke & ors., In re Burroughes v. Bayne Burton v. Wigley Bury Commissioners' Case Bushell's Case Byron v. Godfrey ■! 3 Ad. & E. 200 . 208 46 L. J. Ch. [N.S.] 159 90 38 L. T. [N.S.] 545 . 208 13 L. R. Eq 281 . 138 16 C. B. 337 483 2 L. R. Ap. Ca. 455 . 465 11 East 142 . 83 25 Beav. 348 . 464, 583 12 L. R. Ap. Ca. 39 . 465 30 L. J. M. C. 67 556 6 L. R. P. C. 397 . 438 3 L. R. Q. B. Div. S69 562 Show. P. C. 122 438 2 L. R. Q. B. 4 58, 60 3 L. R. Q. B. 268 121 1 Story Rep. [Amer.J 478 355 11 Ir. C. L. Rep. 250 . . 452 19 L. J. C. P. [N.S.] 289 . 633 7 L. R. Q. B. Div. 165 . 182 17 L. R. Ch. Div. 467 . . 196 6 L. R. 0. P. 99, 103 . 121 33 L. J. [N.S.] C. P. 246 . 209 :-il L, R. Ch. Div. 542 . . 1.33 3 Yes. 166 . 377 6 L. R. P. C, 157 366. 367 9 L. R. Ch. Div. 75 . 509 28 L. J. Q. B. [N.S.l 275 . 137 14 L. R. Eq. 343 267 11 L. R. Q. B. Div 712, rev. 14 L. R. Q. B. Div. 141 421, 655 14 720 241, 246 3 L. R. Ap. Ca. 1004 . . 465 1 L, R. Ch. Div. 42 . 418 20 L. R. Q. B. Div. 310 . 477 33 L. J. C. P, [N.S.] 246 . 209 5 H. & N. 296 216 1 Bing. N. 0. 665 . 208 6 L. R. C. P. 310, 319 . 308 1 Mod. 119 . 438 4 Ves. 6 . 90 c. Cader Mydin v. Shatomah. . Cadman v. Homer Cahill V. CahiU Calder v. Halket Caledonian Credit & Mortgage Corp. Ltd. Gomey Calvert v. Sebbon V. Thomas Campbell's Trusts, In re Cann v. Olipperton Capital Bank v, Henty Cape Breton Co., In re Carlos V. Pancourt Carlow V. Kenealy Carton v. Meenachee . C Woods' Or. Ca. 42, s. c. Str. L, R i 260 . . oo=; 18 Ves. 10 . ■ " 8 L. R. App. Ca. 420 3 Moo. P. O. C. 28 16 L. R. Q. B. Div. 24 4 Beav. 222 19 L. R. Q. B. Div. 204 34 W. R. 629 10 Ad. and E. 582 f 54 L. R. 0. P. Div. 514 on App t R. App. Ca. 741, 754, 787 P^n^-.^i^'i,- °i^- 221, on App. 29 L I. R. C. D. 795 . 5 T. R. 482 12 M. and W. 139 3 K.yshe, 151 . 7L. 228 545 225 438 625 90 623 132 242 367 196 182 182 191 TABLE OF CASUS CITED. Cartwright v. Vawdry Gary v. Stephenson . Cashin v. Mun-ay Cassidy, Goods of Oasson v. Roberts Casti'o V. Regina Catling V- King Caton V. Caton Cattley v. Loundes . Cattlin V. Brown Cander Mohuddeen, Goods of Cecil V. Langdon Chamber Colliery Co. v. Hopwood Chamberlain v. King Chambers v. Caulfleld V. Goldwin Chapman v. Brown . V. Day V. Shepherd Charlotte, The Charter v. Charter . Chasemore v. Turner . Chatterton v. Cave Ohattoch r. Mullar . Chawana Mahomed Hussein o. Mahomed Mustan Cheah Boon Hean v. Crown . Cheavin v. "Walker Che Him v. Robertson Ohetham i;. Ld. Audley China Gunny v. Muniandee Chin Guan Tak & ors. v. Chin Seah Pow Ohoa Choon Neoh v. Spottiswoode . Cholmondeley v. Clinton Chooashary & anor. v. Cassim Chua Ah Tong v. Opium Parmer Chulas V. Kolson binte Syed Malim . Clark V. Peckham Clarke v. Bradlaugli . V. Callow V. Clarke Clarke's Trusts, In re Clement v. Burns Clever, Ex-parte Cockell V. Bacon Cockerane v. Entwistle Cockerell v. Aiicompte V. Barber Cloles V. Bristow OoUette'M. Goode Collier 1). Hicks Collins V. Jones Colonial Bank v. Winney Oolvin V. Hartwell Compton V. Bloxham Connor v. Tan Jim Sin Cook V. Cooper Cook V. Leonard ■{ ■{ 5 Ves. 530 2Salk420 4 Kyshe, 435 [infra] 4 Hagg. Ecc. Rep. 860 ; 1 Wm. Exors, 8 Ed. 476 . . . . 31 Beav. 613, s. c. 32 L. J. Ch. [¥.S.] 105 .. . 6 L. R. Ap. Ca. 329 46 L. J. Ch. [N.S.] 384 ■ 1 L. R. Ch. Ap. 137, AfEd. 2 L. R. Eng. and Ir. Ap. 127 34 W. R. 193 . 11 Hare 372 Str. L. R. 281 . 28 L. R. Ch, Div. 1 32 549 6 L. R. C. P. 474 6 Bast 244 9 Ves. 254, 271 . 6 Ves. 404 31 W. R. 767 . 2 L. R. C. P. 228 2 Wm. Rob. 71 7 L. R. H. L. 364 PAGE. 129 312 617 499, 330, . 10 L. R. Q. B. 500 , 3 L. R. App. Ca 483 , 8 L. R. Ch. Div. 177 [ 4 Kyshe, 1 [infra] Penang Case [unreported] , 5 L. R. Ch. Div. 850 . , 1 Kyshe, 131 4 Ves. 72 4 Kyshe, 161 [infra] 1 Ibid, 586 . . 1 Ibid, 216, 221 . 330, 331, 333, 2 Jac. & W. 90 . . 3 Kyshe, 98 4 Ibid. 188 [infra] C Str. L. R. 462. s.c. Woods' Or. • I Ca. 35 . : , 10 R. I. [Amer.l 35, 38 C 7 L. R. Q B. 38, 61, on App. 8 i L. R. Ap. Ca. 354 . 46 L. J. Q. B. 53 . 9 L. R. Ap. Ca. 737 1 L. R. Ch. Div. 497 43 .N. H. 609, 617 18 L. R. Q. B. Div. 489 16 Beav. 158 W. N. 1890, 103 2 0. B. [N.S.] 440 1 Sim. 23, on App. 2 Russ. 585 6 L. R Bq. 149 . 7 L, R. Ch. Div. 842 2 B. & Ad. 663 . 10 B. & C. 777 . 30 L. R. Ch. Div. 261 5 CI. & Pin. 523 2 Coll. Ch. Rep. 201 3 Kyshe, 114 7 Ad. & B. 605 6 B. & C. 351 . 192 253 190 344 464 216 213 ,500 . 498 . 452 241 . 328 . 359 . 213 . 75 545 . 203 133 138 . 507 . 584. 241, 246 392 . 395 241, 247 . 90 391 383 334 359 231 242 334 60 275, 438 83, 344 . 590 , 509 . 60 622, 624' . 359 625 . 483 . 90 545 418 152 284 465 423 90 77 73 241 345 ill TABLE OJ? CASES ClTED. Oooke V. Booth • V. Crawford V. Eslielby Cooper V. Hood II. Wandsworth Board of Works Corbett v. Plowden Cotterell v. Stratton . (^owdell V. Neale Cox V. Coleridge Crawford v. Delaware Crawshaw v. Crawshaw Crockett, In re Croft i;. Day . Cromptoii V. Vane Railway Cu. Crook V. Whitley Crooks V. Allan Cross V. Eglin «• Sprigg Cumber v. Wane Cumming ti. Ince ■2 Cowp. 8iy 13 Sim. 91 12 L. R. Ap. Ca. 271 . (28 L. J. L^-S.] Ch. 212, s.c. I 2i):i . 14 C. B. [N. S.] 180, 194 25 L. R. Ch. Div. 678 . 8 L. R. Ch. Ap. 295 28 .L.J. C. P. [N.S.I 37 1 B. & C. 37, 54 7 Ohio St. 459 . 14 L R. Ch. Div. !^17 2 Ph. 553 7 Beav. 84 7 L. R. Ch Div. 567 7 De. G. M. & G. 490 . 5 L. R. Q. B. Div. 38. 42 2 B. & Ad. 106 6 Hare, 552 ISm. L. C. 288. 11 L. R. Q. B. 112. 117. PAGE. . 148 499 561, 563, 564 26 Beav. 464, 583 . 322 23 199, 359 . 153 152, 288, 351 60 . 267 586 . 270 . 583 132 . 529 483 . 90 . 588 . 73 D. Dance v. Goldingham Darbey v. Whitaker . Daubney v. Cooper Davey v. Durrant Davidson v. Ord Davies v. Price V. Rees -^- V. Solomon Davis V. Burton ■ v. Hedges V. Park Dawkins v. Antrobus ■ V. Paulet Day V. Brownrigg Dendy, lit re Denero, The . Dennis v. Lane Denton v. Denton Derecourt v. Corbishley Devezc, In re De Witt V. De Witt Dickenson v. Eyre Dickinson v. Shee . . . . Dickeson v. Hilliard Dillett, In re . Dimmock v Hallett . . . . Din Dyal Chattevjee v. Maharajah Ingutru- der Burururee . . . . Dix V. Reed Dobbins' Settlement, In re . Dobson V. Groves Doe V. Humphreys V. Oliver .... V. Passingham Doe d Cross v. Cross Doe d Cross v. Steel 8 L. R. Ch. Ap. 902 4 Drew 134 10 B. & C. 237 C 1 De Or. & J. 535. s.c. 26 L. J. (. Gh.[N.S.]805 1 Kyshi-, 205 34 L. J. Q. B 8 17 L. R. Q. B. Div. 408 112 537 687 11 6 8 L. R. Ch. Ap. 862 [note] 17 L. R. Ch. Div. 615 5 L. R. Q. B. 94 10 L. R. Oh. Div. 302 31 L. J. Ch. [N.S.] 184 38 L. J. Adm. 69 6 Mod. 131 S Jtir. :.!8S 5 E. A B. 1 88, s.c. 24 L. J. Q. B. 313 9 L. R. Ch. App. 293 11 Sim. 41 7 Q. B. 307 [not.'J 4 E.sp. ()7 9 L. R. Ex. 79, S4 12 L. R. App. Ca. 4:)!t 2 L. R, Ch. Ap. 21 I 1 W. R. :!10 1 Sim. c*t Stu. 237 C57L. T. [N.S.] 277. s.c. 56 I L. J. Q. B. 295. 6 Q. B. 637 2 East, 237 2 Sm. L. C. 634 6 B. & 0. 305 . 8 Q B. 714 3 Camp 116 486 67 163 351 359 241 438 210 477 367 471 6 1 421 511 486 628 438 90 678 278 100 242 284 586 73 318 367 507 544 138 90 400 ,401 209 307 74 100 179 307 Table of oases cited. Dolaret v. Puothschild Dorin v. Doriii Doss V. Doss Douglas V. Forrest Downes v. Glazebrook Downing v. Oapel Drew V. Drew Duke of Buccleucli v. Metropolitan Board of Works Duke of Cadaval v. Collins Clarence ■ Leeds v. Earl of Amherst Duncombe v. Mayer Dunhill 1). Ford Duval t!. Scully Dyson v. Mason PAGE. 1 S. & S. 500, 698 . 513 7 L. R. H. L. 568 129, 130, 131 14 L. T. P. C, [N.S.] 646 . 460 4 Bing. Rep. 686, 704 312, 313 3 Meriv, 200 359 2 L. R. C. P. 461 77 25 L. T. [O.S.] 282 209 5 L. R. Eng. i Ir. App. 418 . 24, 35, 65 4 Ad. & El, 868 73 1 Wm. Rob. 316 204 20 Beav. 230. 210 383 8 Ves. 320 100 3 L. R. 0. P. 36 . 209 4 Kysbe, 120 [infrii] 120. 1S3 22 L. R. Q. B. Div. 351 617, 619 E. Eads V. Williams Eagles V. Le Breton Earl of Oxford's Case Easum and ors. v. Cato Eaton V. Storer Eberle's Hotel Co. v. Jonas Eden v. Smytli Edlin V. Battaby Edwards v. "Edwards V. Jones Egyptian, Tlie Ellis V. Houston ■ V. Rogers Elmore v. Perree Emma Silver Mining Co. v. Grant Brlanger v. New Sombrero Co. Enlngton v. Aynesly Esdaile v. Visser Evans v. Davies V. Wood 24 L. J. Ch. 631 208 15 L. R. Eq. 148 . . 132 2 W. & T. L. C. in Eq. 604 . 421 5 B. & Aid. 861 . . 282 22 L. R. Ch. Div. 91 418, 420 18 L. R. Q. B. Div. 459 285 5 Ves. 341 . . 90 2 Lev. 162 . . 421, 424, 426 2 L. R. Ch. Div. 291 . 530, 632 1 Myl. & Cr. 226 . 90 1 Moo. P. C. C. 373 . . 480 10 L. R. Ch, Div. 236 . . 129 29 671 , . 465 57 L. T. [N.S.] 333 584 17 L.R. Ch. Div. 122 196 3 L. R. App. Ca. 1266 . 196 2 Bro. C. C. 343 464 13 L. R. Ch. Div. 421 435 7 Hare 498 . 132 5 L. R. Eq. 9 . 644 F. Farnell v. Bowman Farrance v. Bolton Fatimah & ors. v. Logan & ors. Favier & Provin, In re Feather v. The Queen Ferguson v. Ferguson V. Kinmore Fetherstone v. Cooper Field V. Laline Finch V. Finch ['. UndeiTvood . Fisher v. Calvert V. Webster Fletcher r. Moore Flower v. Local Board of Low Leyton 12 Ap. Ca. 643 67,70 8 L.R. Ch. Ap. 123 . 465 1 Kyshe, 265, 262 123 . 213, 334 ( L. T. Newspapei-, 30th ^ October, 1886 224, 348 (i B. & S. 283 23, 38, 62 10 L. R. Ch, Ap. 661 433, 434 8 CI. & Fin, 251 438 9 Ves. 67 209 30 L. J. Ex. [N.S.] 168 465 ( 23 L. R. Ch. Div. 267, 1 271 . 313 314 420, 599 2 310 .23, 42, 43, 45 27 W. R. 301 182 14 L. R. Eq. 283 . 586 18L. J. Ob. [N.S.] 384 . 362 5 L. R. Ch. Div. 347 , 214, 484, 487, 490 TABLJi OF OASES CITED. Flower v. Max-ten Floyd V. Barker Foakes v. Beer Feat V. Mayor of Margate Forbes v. Watt Ford V. Foster • V. Tiley Foster v. Wheeler Fowler v. Alexander ■ V. Barstow Fox V. Makereth Franks v. Martin Fray v. Blackburn Freeman v. Rosber Freuwin v. Lewis Fritz V. Hobson Fryer v. Kinnersly Fuller V. Abrahams PAGE. 2 Myl. & Or. 459 . 90 12 Coke 23 . . . 438 9 L. R. Ap, Ca. 605 . . 588 11 L, R. Q. B. Div. 299 . 214 2 L R. Sc. & Div. Ap. 214 . 148 7 L. R. Oh. Ap. 611 . . 395 6 B. & 0. 325 . . 23 ( 36 L. R. Oh. Div. 697, on App. [38 133 . . 583 3 Y. & J. 513 . . . 148 20 L. R. Oh. Div. 240 . . 511 f 1 W. & T. L. 0. in Eq. [4th Ed.] [ 150. 162 . . . 590 1 Eden 309 . . 464, 583 3 B. & S, 576 . . . 438 13 L. R. Q. B. 780 . . 320 4 M. & G. 249 . 486 14 L. R. Oh. Div. 642 . 24 33 L. J. 0. P. [N.S.] 96 366 3 Bro. & Bing, 116 . . 363 G. Gabriel v. Dresser Gan Kim Swee v. Lee Ah Kee V. Newland Gapp V. Bond Gai-me v Barnard Gai-nett v. Farrans Gaved V. Marty n Gibbons v. Hickson V. McMullen Gill V. Shelley Gillespie, In re Gillett !). Thornton Gilmorc v. Shuter Gilpin V. Fowler Glenfruin, The Goddard v. O'Brien Goh Ohin Tek v. Ramsawmv Chetty Goode V. Oheeseman Goodinge v. Goodinge Goodman's Trusts, In re Goodwin v. Roberts Granby v. Allen Gray v. Haig V. Lewis Greathead v. Bromley Greatrex v. Hay ward . Great Western Railwfiy r. Bagge Green v. Humphreys . Gregory v. Gregory . V. Hun-ill . )). Mighell . Grell V. Levy Gronveldy v. Bouwell Giinn V. Bolckow • V. Roberts Guy V. Pearkes 15 0. B. 622 Penang Oase [not reported] 3 Kyshe, 108 . 19 L. R. Q. B. Div. 200 54 L. J. Oh. Div. 517 . 6 B. & 0. 611 . 19 0. B. [N.S.] 732 55 L. J. Q. B. [N.S.J 119 L. R. P. 0- 217 9 L. J. Oh. 68 . 14 L. R. Q. B. Div. 963 19 L. R. Eq. 599 2 Lev. 227, s. c. 2 Mod. 310 23 L. J. Ex. [N.S.] 152 10 L. R. Pro. Div. 103 9 L. R. Q. B. Div. 37 ? Penang Oase [not reported] 2 B. & Ad. 328 1 Yes. Sen. 230 . 17 Oh. Div. 266 1 L. R. Ap. Oa. 476 1 Ld. Raymond 224 20Beav.'219 8 L. R. Eq. 526 . 7 T. R. 455 8 Ex. 291 I l.^iL. R. Q. B. D. 6-28 ' 23 L. R. Oh. Div. 207 . Ooop. 201 5 B. & 0. 341 18 Ves. 328 16 0. B. [N.S.] 73 Salk. 395 10 L, R. Oh. Ap. 491 . 9 L. R. 0. P. 3.31 18 Ves. 196 588 138 145 162 695 596 459 438 452 532 465 129 282 596 7 366 678 588 121 588 132 130 465 87 383 411 421 452 344 138 590 '. 138 ,145 584 127 438 465 679 , 680 377 ,379 TABLE OF CASES CITED. H. Hagger v. Bakev . . . , Haigh V. Haigh Hajee Sbaik Abdul Cader v. Aislia & ors Halimali v. Bradford Hall V. Levy Hammond •;'. Howell . V. Smith . Hams, In re 350, Hankey v. Smith Hanson v. Keating Hardman v. Bellhouse Hardwiok v. Moss V. Wright Hai'e V. Waiing Harpurshad v. Sheoli Dyal Harris, In re Hamson v. Bush V. Lay ■ — - V. Sterrett Harvey v. Shelton Hawah v. Daud Hawkins v. Maltby Haydon v. Brown Hayn v. Culliford Heath v. Brewer Heaton, In re Heeraman Halove, In re Henderson v. Forss . ■ — V. Henderson Hennessy v. White . Hermann Z'. Seneschal Hermitage v. Kilpin Hetherington v. Groom Hewlett V. Lay cock Hibblewhite v. McMorine pick, In re Hickok V. Hine Hickson v. Darlow Hill V. Crook Hinde v. Whitehouse Hindley v. Haslam pinton V. Sparks Hoar V. Dawes Hodgkinson v. Kelly . Holker v. Paritt Hole V. Smith Holt V. Sindrey Hooper v. Hooper Hope, The Hope V. Hope Hopkinson v. Marquis of Exeter Hopper, In re Hornor v. Heath Horton v. McMurtry Houlder v. Smith Howley 1/. Knight 14 M. & W. 9 . 31 L. J. Oh. 420 4 Kyshe, 1.51 [infra] Str. L. R. 383 . 10 L. R. C. P. 154 2 Mod. 219 33 Beav. 452 10 Ir. Oh. 100 [cited in Prid. on Conv. 741] ... 3 T. R. 507 283, 4 Hare, 116 421. 9 M. & W. 596 . 31 L. J. Ex. 205 35 Beav. 133 . 3 1W.&W. 362 3 L. R. Ind. Ap. 259, 285. C . 10 Ir. Oh. Rep. 100 5 B. & B. 344, 348 13 0. B. [N.S.] 528 . 4 H. & McHen. 540 . 7 Beav. 455 .... Str. L. R. 253 . . . 328, 4 L. R. Eq. 572. s. c. 6 L. R. Eq. 505 59 L. T. [N.S.] 330, 810, s. c. W, N. 1888,49 47 L. J. Q. B. 755 . 9 L. T. [N.S.] 653 . 27 L. R. Ch. Div. 570 . 1 Ind. Jur. 97 ... C Sebastian's Dig. Law of Trade-Marks, . ] 36, s. c. Lloyd on Trade-Marks, & (. Seton on Decrees, 4th Ed. 236 3 Hare. 114. 115 Sup. Ct. of Victoria, 1869 32 L. J. C. P. 43 9 L. R. Ex. 205 13 L. R. Q. B. Div. 789 621, 624, 625, 2 Oar. and P. 574 PAGE. 210 . 209 351 334 421 438 147 { 121 284 424 .588 241 478 465 507 1S4 367 208 60 209 334 545 532 678 241 395 336 690 283 .481 6 M. and W. 200 8 Taunt. 699 . 23 Ohio St. 523 23 L. R. Oh. Div 6 L. R. H. L. 265, 7 East 558 3 L. R. Q. B. Div 37 L. J, C. P. [N.S.] 81 Doug. 371 6 L. R. Eq. 496 8 L. R. Ex. 107, on App. 10 Ibid 17 L. R. Oh. Div. 444 7 L. R. Eq. 170 McCle T. 509 29 L. J. Pro. and Div. 59 2 W. Rob. 8 26L. J. Oh. 417 5 L. R. Eq. 63 2 L- R. Q. B. 367, 374 27 L. T. [O. S.] 330 . 19 L. J 465, 253 562, 565 59 452, 29 L. J Ex. 260 9 L. R. Q. B. 170, s. c. 172 19 L. J. Q- B. [k.s.] 3 Q. B. 270 421 270 241 435 626 209 470 210 60 676 130 83 421 256 5(i7 545 453 664 133 209 328 480 127 486 208 90 95 438 187 TABLE OF CASES OITED. ITudson V. Taylor H\iggins V. Waydey Hughes V. Buckland Humble v. Shore Hume V. Druyff Hunt V. Gunn Hunter v. Stewart Hutclieson t. Eaton Hutley V. Marshall Hutton V. Parker Cited in Fry, 232. 233 . 16 M. and W. 357 15 . 31-6 7 Beav, 247 8 L. R. Ex. 214 13 0. B. [N.S.] 226 31 L, J. Oh. [N.S.] 346 13 L. R. Q. B. Biv. 861 46 L. J. [N.S.] 186 7 Dowl. 739 PAGE. 33 241 . 241 267 2 465, 468, 469 421, 427 . 209 . 182 . 160 Ibimey v. Slocker Industrie, The Ing Ah Mit, In the goods of Ingleby & Boak, ]n n Ismail, III the gonds of 1 L B. Oh. Ap. 396 3 L. R. Ad. & Eco. Ca. 303 4 Kyshe. 380 [infra] . 13 L. R. Oh. Div. [Ir.] 326 4 Kyshe, 187 [infra] 452 . 480 630. 633 499, 500 252, 258 J. Jack V. Kipping Jacobs V. Amyatt Jamaludin v. Hajee Abdullah James v. David V. Dean Jemalah v. Mahomed AH & ors. Jenaiboo ■v. Naraiuen Chetty ^t anor. Jenks V. Turpin Jenner v. Olegg Jewis V. Lawrence Johnston & Co. v. Orr Ewing Si. Co. Jonassohn v. Ransome Jones T. Harris V. North V. Matthie V. Bowles -v. Rimmer V. Smith -v. St. John's College . Joule V. Jackson 9 L R. Q. B. Div. 113 . 285 I Madd. 376 [note] . 378 1 Kyshe, 503 330, 334 5 T. R. 141 . 589 15 Ves. 230 . 355 1 Kyshe, 386 . 311 4 , 359 [infra] . 661, 665 13 L. R. Q. B. Div. 505 .521, 522. 617 1 M. & Bob. 213 79 8 L. B. Eq. 345 . 90 7 L. R. App. Ca. 219 . 273, 404 3 C. B. [K.S.] 779 588 7 L. R. Q. B. 157 . 185 19 L. R. Eq. 426 . 161 11 Jiu-. [0. S.] 504, 761 359, 362 3 M. & K. 581 . 155 14 L. R. Oh. Div. 592 . 454 1 Hare 43, 'on App. 1 Phil. 244 . 85 6 L. R. Q. B. 115 . 161 7 M. & W. 450 98 K. Kader Bee & anor. v. Kader Miistan & anor. Meydin v. Shatomah . Mydin v. Hajee Abdul Cader Kamoo il Bassett Keams v. Cordwainers' Co. Kemp V. Neville Kendall v. Hamilton . Kensit ■». Great Eastern Railway Co. Kepp V. Wiggett Kerr v Clinton Kerslake v. Cox Khoo Aing Hong v. Meyappa Chetty 1 Kyshe, 432 . . . 102, 213 ( Woods' Or. Oa. 42, s.c. Str. L. R. I 260 . 225.427 1 Kyshe, 489 . . 509 1 Ibid. 1 . .628 6 0. B. [N.S.] 388 . 24 10 523 . 438 4 L. R. Ap. Oa. 504 . . 663 C 23 L. R. Oh. Div. 566, on App. 27 Ibid. I 122 . . . . 452 ( 10 0. B. 35, s.c. 20 L. J. 0. P. [N.S.J i 49 . . . 74 8 L. R. Eq. 482 . 130 16 L. T. [N.S.] 396 208, 209 , 3 Kyshe, 124 , 402, 66(3 TABLE OF OASES OITED. Klioo Poh V. Wan Mat Seok Haing i^. Khoo Wee Team & anor ■ Tiang Bee v. Tan Beng Gwat Yali Hong v. Khay Tliye & anor. Kimber v. Barber King, In re V. Hoare •■ V. Kemp Kirby v. Simpson Kirclmer -v. Venus Kirk V. East India Dock Oo. — V. Todd Kitchee Pakirmah & anor. v. Syed Akil Kitclien v. Campbell . Knatchbull v. Giieber Ko Bo An ■;;. Punghnln Sliaik Beenan Krans, Ex-parte Krehl v. Bnn-ell Kunja Pillay v. Visuveraden Daven Knrling v. Flight Kynnersley, In re Kyshe v. Tncbe Nap Pendek & ors Str. L. R. 247 . 1 Kyshe, 633 1 413 . 1 647 . 8 L. R. Oh. Ap. 56 3 De G. & J. 63 13 M. & W. 494 8 L. T. 255 10 Ex. 358 12 Moo. P. 0. 399 55 L. T. [N.S.] 245 21 L. R. Oh. Div. 484 . Penang Oase [unreported] 2 W. Saund. 827 3 Mer. 146 1 Kyshe, 273 . 1 B. & 0. 258 . 11 L. R. Oh. Div. 14C . Penang Oase [unreported] 2 Phil. 116 4 Kyshe, 151 [infra] . 1 Ibid. 624 PAQE. . 138 75, 102 129. 132 460 . 196 . 87 . 563 . 127 241, 247 . 465 . 209 609, 613 . 421 . 470 241, 245 288 444 360, 465 351 99 Lady EHbank v. Montolieu . Laird v. Briggs Laker v. Hordern Lambei-t ». Lambert Lao Leang Ann, In thp. gnnds of Larchin v. N. W. Deposit Bank Larios 1'. Gubrity Lavery v. Pursell Law V. Garrell Lawless v. Anglo-Egyptian Cotton Co. Lea V. Miller Leather Cloth Co., Ltd. v. American Leather Cloth Co.. Ltd. . Lebby Long, In the (joods of Lee V. Wilmojt Ijeete v. Hart Leigh V. Byron V. Jack Lepine v. Bean Leslie ». French Letchmee & anor. v. Ramasawmy Levy V. Soloman .Lewers v. Earl of Shaftesbury Lewis V. Levy V. Marshall Lids K. Jalf, The Liggins V. Inge Limbrey v. Gurr Tjim Chow Seng v. Opium Farmer . Chye Peow v. Wee Boon Tek . Guan Teet v. Shaik Ahamad Bashaib A anor. . . . . Limmei' Asphalte Paving Co. v. Commis- sioner of Inland Revenue . Linoleum Manufactory Co. v. Nairn Litton V. Litton , , , . 1 W. & T. L. 0. in Eq. 341 19 L. R. Oh. Div. 22 . 1 644 2 Bro. Par. Ca. 18 Woods' Or. Ca. 35 8 L. R. Ex. 80. on App. 10 5 L. R. P. 0. 346 39 L. R. Oh. Div. 508 . 8 26 . 4 L. R. Q. B. 262 f Sebastian's Dig. of I Oases, 513 1 11 H. L. 523, 539 2 Kyshe Ecc. Oa 27 1 L. R. Ex. 364 3 L. R. 0. P. 322 1 Sm. & Giffi. 486 5 L. R. Ex. Div. 264 10 L. R. Eq. 162 23 L. R. Oh. Div. 552 3 Kyshe. 102 25 W. R. 842 2 L. R. Eq. 270 27 L, J. Q. B. [N.S.] 282 7 Man. & Gr. 729. 744 Swab. 118 7 Ring. 682 6 Mod, 151 3 Kyshe, 136 il 7 3- Kyshe, 236 536 L. R. Ex. 211 L. R. Oh. Div. 834 793 [2nd Ed.] 378,'424 52, 54 . 132 . 378 . 334 L. R. Ex. 64. 121 . 465 569, 584 596 . 367 Trade-Mark . 395 273, 395. 404 187, 252 . 138 . 241 . 133 . 226 . 130 . 421 . 393 . 132 252, 257 . 163 . 465 . 480 67 . 213 . 161 252, 257, 328 . 138 . 182 . 396 . 418 XVUI TABLE OF CASES CITED. Liverpool Adelphi Loan Association Fairhurst . Lloyds Banking Co. v. Jones Locking v. Parker London Hamburg, &c. Bank, In re . Lord Cawder v. Lewis Lowen v. Pulton Lucas v. Beale V. Commaford Lumb V. Milnes Lumsden %>. Winter . Lyne v. Bruce Lyon V. Fishmongers' Co. Lyth V. Axilt j 9 Ex. 422 29 L. R. Ch. Div. 221 8 L. R. Oh. Ap. ;10 2 L. R. Bq. 231 . 2 Y. & C. Ex. E.;]. 427 19 Sim. 104 10 C. B. 738 3 Bro. C. 0. 166 5 Ves. 517 1 L. R. Q. B. Div. 6,50 2H. Bl. 327 . f 1 L. R. Ap. Ca. 6(52 _ 7 Ex. 669 PAGE. •it 3.55, 421, 424; ,155 359 545 42.5 590 563 464 377 418 589 24, 29, 30, 36, 47, 51, ,8, 59, 60, 02, 64, 67 588 M. MacGibbon v. Ablsott Mackay v. Commercial Bank of New Brunswick Macleod v. Jones Maddison v. Alderson Magellan Pirates, The Magor V. Chadwick . Mahomed Aniff %'. Ebram Khan Mushurddeen Khan v. Clarii Jane Mushurddeen Salleh V. Nacodah Merican Mamsah v. Mahomed Lebbye Man & anor. v. Samsah Martin v. Lee V. Waddell . Martinson v. Clowes .... Mai-y, The ... Mayor and Corporation of London ■;'. Southgate . . . . Mayor of Cork v. Southgate . — - Thetford v. Taylor. McAlister, In re . . . Andrew ■v. Bassett Gregor v. Deal & Dover Ry. Co. Hattie, Ex-parte .... Kinnon v. Armstrong & Co. Megson v. Kindle .... MeMlle v. Stringer . Mendies v. Gurdellas . Merican & ors. v. Mahomed . Merrill i'. Moi-ton Mersey Docks &. Harbour Board t. Over- seers of Birkenhead Steel & Iron Co. v. Naylor . Merten v. Adcock Metropolitan Board of Works i;. McCarthy Mew & Thome, In re Meyappa Chetty v. Khoo Bean Teen & cirs. Meyappah Chetty v. Hassan Hussain Meyerhoff v. Erochlich Midland Railway Co. v. Local Board of Wittington . . . . Miller v. Hope . , , , 10 L, R. App Ca. 653 . . 132 '■ 5 L. R. P. C 394 . . 515 24 L. R. C. D. 289 . . .359 8 L. R. Ap. Ca. 484 . . .583 16 Jnr. 1146 . . 172 llAd. &E. 571. . 452 3 Kyshe, 88 . 251 2 N. W. P. H. Ct. Rep. 173. . 138 4 Kyshe, 463 [infra] . . 584 3 Ibid. 130 . . . 231 3 Ibid. 99 . . 338 14 Moo. P. C. 142 . 132 16 Pet. 367 . . . 60 25 L. R. C. D. 857. on App. 52 L. T. [N.S.] 706 . . . . 359 1 Wm. Rob. 448 . . 204 I 38 L. J. Ch. [N.S J-141 . . 464 Ibid 584 8 L. R. Q. B. 95 . . . 79 4 Kyshe, 279 [infra] . . 400, 401 33 L. J. Ch. D. 561 s.c. 4 De G. J. & S. 380 270 22 L. J. Q. B. 69 . . 486 10 L R. C. D. 398 . . 184, 185 2 L. R. Ap. Ca. 531 . . . 285 15 L. R. Ch. Div. 198 . 132 13 L. R. Q. B. Div. .■!92 C21, 624, 626 2 J. & H. 263 . . 465 3 Kyshe, 138 . . 501 17 L. R. C. D, 382 . 132 8 L, R. Q, B. 445 . 105 9 L. R. App. Ca. 434 . . . 285 4 Esp. 251 . . . S3 7 L. R. Eng. i Ir, Ap, 243 . 24 31 L. J. Bank. 89 . . . 674 1 Kyshe. 610 . . 121.184 Penang Case [unreported] . . ."i96 ( 3 L. R. (3 P. D. .333, Appd, 4 L, R, 0. ( P. Div, 63 . . 138 ^ 11 L, R. Q. B. D. 788 . 215, 218, 241, ) 247. 487 2 Shaw's App. Ca. 125 , , 438 TABLE OP CASES CITED. Milnes v. Gery Mohan ii. Dunclalk Railway Co. Monetary Advance Co. v. Cater Monsom c. Boehi)i Moore V. Campbell V. Great Southern X Western Ry. Co Mootoo ii ors. 1'. Ayah Doreh Pillay Moraiss & ore. !'. DeSouza Morgan v. Mather Morley v. Newman Moritt, In re . Morton & Hallett, In re V. Tibbett Moseley v. Simpson . Mostyn v. Fabrigas Municipal Commissioners v. Chuah Senj & ors. Munster v. Lamb Munt V. Shx'ewsbury Railway Co. Murphy's Case Murray v. Bast India Co. IK McKenzie Mnstan Bee & ors. v. Sliina Tamby & anor. Myers v. Elliott PAGE. M Ves. 400 . . .67 6 L. R. [Ir.] 477 ... 307 •10 L. B. Q B. D. 785 . 477 26 L. R. C. D. 398 . 396 n Ex. s.c. 23 L. J. Ex. [N.S.] 310 465 10 Ir. 0. L. Rep. 46 . 60 3 Kyshe, 90 ... 391 1 Ibid. 27 . . . 120 2 Ves. jr. 15 . . 210 5 D. ct R. 317 . , . 208 ( 18 L. R. Q. B. Div. 222 620, 623, 624. I 626, 627 15 L. R. 0. D. 143 . . 499 19 L. J. Q. B. 382 . . . 511 16 L. B. Eq. 226 . . 208 1 Sm. L. C. 668 . 438 ] 3 Kyshe, 140 , . . 402, 666 ' 10 Q. B. Div. 5SS . . 488 13 Beav. 1 . .486 2 L. R. P. C. 535 . . . 259 5 B. & Aid. 204 . 312, 314 10 L. R. C. P. 625 . . 121, 1 Kyshe, 580 . 16 L. R. Q. B. Div. 526 184 213 472 N. Nash V. Duncomb — '— 0, Eads .... Neath Case Needier v. Wright Neesoni i). Clarkson Nelson v. Couch '■ — ■ V. Stocker Newill V. Newill Newiugton v. Levy Newman v. Bendyshe New Sombrero Pho.sphatc Co. v. Erlanger Nield V. London & N. W. Railway Co. Nind r. Marshall North Central Wagon Co. r. Manchester, (fcc, Railway Co. . . . . Noi-wioh Union Co, In re Nottingham Patent Brick, Ac, Co. v. Butler . . . . . Nuttall i'. Bracewell . . . . 1 M. & Rob. 104 .. . 177 25 Sol. Joxir. 95 . . . 359 6 L. R. Q. B. 707 105, 109 Nels. C. R. 57 [cited in Sug. on V. & P. [13th Ed.] 6157 . 421 4 Hare 97 ; 2 W. & T. L. C. in Eq. 518 15 C. B. [N.S.] 99, 108 28 L. J. Ch. [N.S.] 760 7 L. R. Ch. App. 253 5 L. R. C. P. 607, Affd. 6 L, R 180 10 Ad. ck El. 11 5 L. R. 0. D. 73 10 L. R. Ex. 4 1 Bro. & B. 319 35 L. B. C. D. 191 13 L. R. [Ir.] 326 16 Q. B. D. 789 2 L. R. Ex, 1 356, 421, 424 421, 562 . 87 . 586 P. . 421 190, 191 . 196 49 . 148 ,C 532 499 455 452 O. Occleston v. FuUalove O'Dwyer, /*( ve Official Receiver, Ex-parh O'Keefe v. Cullin OUey V. Fisher Ong Cheng Neo i\ Yeap Cheah Neo k ors Ong How V. Abdulrahmfcin . 9 L. R. Ch. App. 147 • 19 L. R. [Ir.] 19 ( 18 L. R. Q. B. Div. 222. 7 Ir. R. 0. L. 319 34 L. R. Ch. Div. 367 . ( 1 Kyshe, 326 Str, L, R. 354 129, 130 . 477 620, 623. 625, 626, 627 . 366 . 252 132, 213, 226. 330. 331. 333, 334 . 231 TABLE OF OASES CITED. Opium Farmer v. Koh Boo Ann Oridge i'. Sherborne Oriental Inland Steam Navigation Co. Scinde Railway Co. Orr V. Newton Orr Ewing & Co. v. Johnston Osborne v. Rowlett ' Oyerhill's Trvists, In re Str. L. R. 278 . 11 M. & W. 374 . I 9 L. R. Ch. Ap. 557 2 Cox 274 7 L. R. App. Ca. 219 13 L. R. Oh. Div. 774 1 Sm. & Gif. 3«2 71, 576, PAGE. 190, 191 . 182 578, 680, 581, 682 590 . 270 . 499 . 133 Paine v. Hutchinson . Palaniapah Ohetty v. Lim Poh Palmer ii. Temple Parker, In re . Parkes, In re . Panneter v. Attorney- General Paj-nell, In re . Pai'Bons V. Bland Pascal V. Richards Paul V. Children Payler v. Homer sham Peace v. Hains Pearoe v. Watts Pearks v. Moseley Peax'ree, Ex-parte Peat V. Jones Peirce v. Corf Perry v. Jenkins Peterson v. Hicksman Peto V. West Ham Phelips V. Hadman District Board Phillips V. Phillips Phips V. Ingram Phosphate Sewage Co. v. Molleson Piokard v. Bretz V. Marriage Pickering v. Stephenson Pickord v. Seai'.s Fillings' Ti'usts, In re Pimiel's Case, In re . Piper, In re Plant V. Cotterell Plimmer v. Mayor, &c., of Wellington Plews V. Baker — V. Middleton . Pollard's Case Pootoo V. Valee Utu Tavcn Poi'cheste v. Petrie Postlethwaite v. Rickman Poulton V. Lattimore . Powell v. Butler V. Farmer V. Thomas Pratt '«. Swaine Prestney v. Mayor of Colchester Proctor V. Mainwaring Prunath Ohowdry v. Rakeah Begum Pryov V. Pryor Pulido V. Musgrave . Pullen V. Suelus Punghulu AUang v. Him \ o L. R. Eq. 257, on App. 3 L. E I. ( Ch. Ap. 388. 544, 64S 1 Kyshe, 548 7,182 9 Ad. & E. 508 . 253. 256 15 L. R. 0. D, 528. s c. 17 C. D. 264 132 13 L. R. [Ir.] 85 400 10 Price, 378, 412 57, 65 10 L. R. Cb. Ap. 512 253, 256 38 W. R. 388 . 621. 622, 625 44 L. T. [JSr.S.] 87 . 418 12 L. R. Eq. 16 . 129 4 M. & S. 423 . 148 11 Hare 151 90 20 L. R. Eq. 492 . 583 5 L. R. Ap. Ca. 714 . 213 25 L. R. Ch, Div. 656 . . 624 8 L. R, Q. B. Div. 147 . . 285 9 210 . . 83 1 M. & C. 116 . 312 2 W. & T. 506 . . 421 28 L. J. M. C. 240 105, 108 1 C. X E. 67 . 214, 484 4De G. F. & J.208 . 155 3 Dow. 669 . 209 1 L. R. Ap. Ca. 801 . 421 5 H. A, N. 9 . 184 1 L. R. Ex. Div. 364 . 184, 682 14 L. R. Eq. 322 . 489 6 L. R. Ex. Div. 364 . 121 26 L. R. Ch. Div. 432 . . 499 5 Rep. 117 . 588 4 Kyshe, 221 [infra] . . 348 29 L. J. Ex. 198 . . 446 9 App. Ca. 69!t, 714 . 67 16 L. R. Eq. 564 . 696 6 Q. B. 845 209 2 L. R. P. C. 106 . 438 1 Kyshe, 622 . 328, 334 3 Doug. 273 . 438 :56 W. R. 808 . 590 9 B. & C. 259 . . 340 5 Ir. R. C. L. 301 1 452 34 L. J. [N.S.J C. P. 72 . 116 6 Hare, 300 . 356 8 B. & C. 285 . 312 21 L. R. Ch. Div. Ill . . 509 3 B. & Aid. 145 . . 605 7 Moo. Ind. Ap. 323 . 138 10 L. R. Ch. Ap. 469 . 75 5 L. R. Ap. Ca. lo-,^ . 438 48 L. J. (i. P. [N.S.] 394 . 344 3 Kyshe, 144 , . 238, 606, 608 TABLE OF OASES CITED. Q. Quarrier v. Colston . Queen v. Chandra Sekhar Roy V. Dwarkanath Dutt . ('. Farrell V. G-ibson V. Grand Junction Railway V. Great Western Railway Ci V. Heeraman Huloye V. Herm Lai Das V. Jordan V. Midland Railway Co. V. Nuddy Moosalamee V. Overseers of Neath V. Panna & ors. V. Payne V. Southwark A Vauxhall Co. V. Thompson . ' — V. Ungun Lall . Quincey v, Sharpe PAGE. 1 Ph. 147 . . 127 -, Ben. L. R. 100 157 7 W. R. Cr. 15 . . . 651 :! Cox C. C. 130 . 318 18 L. J. Q. B. Div. :.o7 . . . 507 l:! L. J. M. C. 221 106, lOS 1 5 88 . 108 5 W. R. Cr. 5 . . . 336 8 Ben. L. R. 422 . 157 36 W. R. 589. Aifd. Ibid. 7P7 . 438 10 L. R. Q. B. :i8!t 105, 108 6 Suth. W. R. Cr. R. 60 , . 514 () L, R. Q. B. 707 . .109, 116 7 N. W. P. H. C. Rep. 202 652, 662 1 L. R. C. C. R. 347 516, 518 li E. A B. 1008 . . 109, 114 1 L. R. 0. C, R. 377 . . 516 N. W. R. Selected Cases, 21 . . 157 1 L. R. Ex. Div. 72 . . . 138 R. Rada Bhai v. Shama Rameshur Pershad v. Ramsamy v. Low Ramsay v. Shelmedine Raudegger v. Holmes Rawlina, In re Redgrave v. Hurd Reed & Bowen, In re ■ V Cowmeadow Reeves v. Brymer ' Trust, In re . Regina v. Abass V. Adams V. Appleby ■ V. Baker ii. Barley ■ V. Beckwith . !'. Bertrand , ('. Brittleton . V. Bull V. Burdett V. Bums t'. (Carpenter V. Cassidy V. Chan Ah Tye & ors. — V. Chapman . V. Chappie V. Christie V. Clegg — ; V. Commissioners of Pagham Level j . — V Cooper V. Dayal Jairaj & ors. V. Denoo Bundhoo . — V. Drui'y , . .4 Bom. H. Ct. Rep. [App.J 165 Koonj Behari 4 L. R. App. Ca. 121 ( 4 Kyshe 396, [infra] 230, 624, • I 526, . 1 L. R. Eq. 129 1 L. R. C. P. 679 18 L. R. Q. B. Div, 489 622 20 L. R. Ch. Div. 1 17 L. R. Q. B. Div. 244 6 Ad. & E. 661 . 6 Ves. 516 4 L. R. Ch. Dir. 841 . 3 Kyshe, 184 50 J. P. 136 '•\ Stark. 33 C 26 L. J. M. C •(. 697 . 2 Cox 0. C. 191 7 505 (IL. R. P. C. 620, sc l [N.S.] 51 193, s.c. 7 El & B. C. 226 452 .525, 527 267 696 ,624 545 673 241 90 90 237 517 516 190 318 606 36 L. J. P. C. 81.176,177,: ( 12"L. R: Q. B. Div. 266, s.c. 50 L. T. t [N S.] 276 9C.iP. 22 24 L. J. M. C. 63 16 Cox C. C. 195 1 72 1 P. >t E. 79 4 Kyshe, 518 [infra] . 8 C. L 33 L. J. Ex. 65 50 L. J. 0, 297, on App. W. N 156 . 33 L. J. Q. B. 249 1 Gift. 421 9 Mad. 263 6 2 1 L. R Pro. & Div. 384 31 L. T. [N.S.] 285 2 East 283 2 Wils. 322 38 L. J. Oh. [N.S.] 648 2 Wils. 253 .". Man. & G. 613 4 M. A S. 101 . 8 Ad. & B. 290 . 13 L. R Eq. 290 3 L. R. Q. B. 689 '_> j^94 2 Kyshe [Eco. Ca,] 6 2 Ibid. [Hab. Cor. Ca.J 10 31 96 367 267 307. 308 . 241 [1881] 452 . 367 359, 362 . 355 . 179 395 609, 612, 613 420 . .345 . 24 4 . 209 325, 326 544 . 465 90 . 348 SaflSgu V. Adams Sahrip v. Mitchell and anor Salkeld, In re Sabnah &. anor. ii. Soolong Salmon ■:'. Duneombe Sampson i'. Sampson Sandilands, Buttery <$: Co. ■:■. Commissioners In the goods of Santos V. Ulldge Sard 1). Rhodes Saimders v. Saunders. Foster The Collyer Jardine Nixon V. Stanfield Scratton v. Brown Seaton v. Seaton Savage ■ Saxonia, Sayers v. Scarf V. Scott V. . Cro. Jac. 61 .312 . Str. L. B. 466 . . 250 12 Ad. and E. 767 . 210 1 Kyslie, 421 . . 328 . 11 L. R. Ap. Oa. 627 241, 261 . 8 L. R. Eq. 479 102 Municipal 1 Str. L. R. 309 Penang Case [unreported] 452 , 594 6 C. B. [N.S.] 841 127 . 1 M. and W. 153 . 588 . 2 East 254 . 215 . 8 Mod. 35 . 37 Lush. 410 . 480 28 L. R. Ch. Div. 103 . 252, 257 7 L. R. Ap. Ca. 345, 351 . 588 3 D. & W. . 45.4 3 L. R. Ex 220 . 438 . 4B. &C. 485 . . 24 . 36 W. R. 865 . 421, 426 TABLE OP CASES CITED. PAGE. Seounder v, Kyamboo Seddon v. Tutop Selby V. HiggR Selmes v. Judge Selwyn v. Garflt Serrao i'. Noel Shafto's Trust. In re . Sliaik Ahmoodeen Moalleu i'. Mamat Safoora Bilice Sliaik Madar v. Jaliai'vali Sliarpe v. Foy V. .Jolinson Sliatomah v. Kader Meydin . Shaw V. Fisher V. Port Philip Mining Co. Shedumhruni Chetty ■<■. Adagai:>pa Chetty Sheffield Benefit Building Society v. Plav risen Sherratt v. Mouutford Showell V. Winkup Sibree t\ Tripp Simpson v. Charing Cross Bank Sims V. Bond Singer Manu. Co- 7'. Wilson Skeet ii. Lindsay Skrymsher v. Northeoto Slaney v. Watney Smart v. Magistrates of Dundee Smith V. Smith V. Monteith Soanes v. Edge Societe Generale de Pnris v. Dreyfus V. Walker Soilleux V. Herbst Somervill v. Hawkins Somerville v. Schombri Spiller, III re Spread v. Morgan Springett v. .Jenings Sreenath Chose, In re St. Leonai'fl's Parochial Schools. In re Stacey v. Elph Stamford, Ex-parte Steel V. State Line Steamslijp Co. . Stein V. Valkenhuy.sen Stephens v. Peel , . '* Stikeman v. Dawson Stockport Waterworks (.'o. v. Potter Strathnaver, The Stickland v. Weldon Stringer v. Gardiner Sti-oug V. Bird Stuai-t ■zi. Greene Sturgis V. Champneys Sutolife V. Booth Sutton V. Sutton Suwerkrop v. Day Swan V. Swan . Sykes v. Sykes . SKyshe, 116 . r- — i i . 6 T. R. 607 421 15 L. R. Q. B. Div. 619 '. 621 ,624 6 724. 215, 218 241, 247 ,487 38 L. R. Ch. Div. 273 . 664 . 15 L. R. Q. B Div. 54H 421 . 29 L. R. Ch. Div. 247 . 498 1 6 Suth. W. R. Misc. Rules 123 . 1 Kyshe, 385 . 334 328 . 4 L. R. Ch. Ap. 35, 42 87 4 Dowl. 324 73 . Str. L. R. 275 225 2 De G. & S. 11 465 13 L. R. Q. B. Div. 103 465 1 1 Kyshe. 663 . 421 1 15 L. R. Q. B. Div. 358 15 L. R. Eq. 305 676 133 (10 L. T. [N.S.] .39] 509 15 M. & W. 33 588 . 34 W. R. 568 471 5 B. & Ad. 389 563 . 2 L. R. Ch. Div. 434 395 2 L. R. Ex. Div. 314 . 138 1 Swan 566, 570 267 2 L. R. Eq. 418 90 8 Bro. Par. Ca. 119 39 20 L, R. Eq. 500 444 13 M. & W. 427 73 Johns. 69 584 :57 L. R. Ch. Div. 21.") 511 11 L. R. Ap. Ca. 20 465 470 2 B. ct P. 444 . 328 20 L. J. C. P. 131 367 12 L. R. Ap. Ca. 453 272 404 18 L. R. Ch. Div. 614 . 267 11 H. L. C. 688 . 427 C 10 L. R. Eq. 488, on App. 6 L R. Ch! / Ap. .333 267 10 W. R, C. R. 33 157 \ 10 L. R. App. Ca. 308 . 505 1 My. & K. 195 590 17 L. R. Q. B. Div. 2.")9 622, 624. 626 4 L. R. Ap. CiL 72 678 27 L, J. Q. B. rN.S.l 237. 23.^ 630 16 L. T. [N.S.] 145 270 1 De G. & Sm. 90 S7 3 H. ii C. ;!0(.) 452 1 L. R. Ap. Ca. 58 2(io 28 L. R. Ch. Div. 42t; 505 508 27 Bciiv. 35 132 18 L. R. Eq. ;!1.-. 90 5 Ir. R. Eq. 47(i 509 5 M. & C. 97 . 378 :i2 L. J. Q. B. [N.S,] 136 452 22 L. R. Ch. Div. 511 . 43C 8 Ad. i El. 624 . 192 8 Price, 518 421 ( 4 L. K. Eq. 200, on App 3 L. R. Oh. ' ■ I Ap. .301 , 207 TABLE OF OASES CITED. Taafe v. Downes Tan Kay v. Tam Lat . Tan Kim Keng & anor. v. Municipal Commissioners Tan Tek Soon & ors. v. Tan Ching Seng & ors. Tanner v. Smart Taylor v. Caldwell V. Manners ' V. Martindale . V. Meads V. Nesfield V. Poi-tington . V. Taylor Teman, In re . Terraz, Ex-parte Thomas v. Brown V. Kelly V. Moms Thompson v. Christie Thorbiim v. Barnes . Thorpe v. Cregeen Tidswell, In re TiHam v. Copp ToUett V. Thomas Toogood V. Spyring . Tozerti. Child TrafEord v. The King Tufnell V. Oonstahle . Tunniclifle v. Teed Tunno & Bird, In re . Turner v. Hancock 3 Moo. P. C. C. 28 [note] Woods' Or. Ca. Appx. 3 I 1 Kyshe. 478 • Singapore Case [not reported] 6 B. & C. 603 . 32 L. J. Q. B. [N. S.] 164 1 L. R. Ch. App. 48 IT & 0. C. C. 658 34 L. J. Ch. [N. S.] 203 3 El. & Bl. 724 7 De. G. M. & G. 328 20 L. B. Eq. 155 33 L. J. M. C. 201 4 L. E,. Ex. Div. 63 1 L. R. Q. B. Div. 714 13 L. R. App. Ca. 506 16 L. T. [N.S.] 398 1 Macg. H. L. 236 2 L. R. C. P. 384 55 L. J. Q. B. 80 33 Beav. 213 5 C. B. 211 6 L. R. Q. B. 521 1 C. M. & R. 181, 193 6 E. & B. 289 . 8 Bitig. 204 8 Sim. 69 17 L. J. M. C. 5 B. & A. 488 . 20 L. R. Ch. Div. 303 PAGE. . 438 . 73 215, 451, 452 . 585 . 147 . 160 90 . 454 225, 228 241 . 583 . 270 172, 288 223, 224 253, 256 622, 624 . 208 . 196 . 209 . 472 209 209 598 367 438 49 90 . 556 209 . 199 U. Ullee, In re . Underbill v. Stamp . Ung Ah Chin v. Cheah Tek Soon . Ungley v. Ungley Union Bank v. Lenanton United Joint Stock Association, Ex-parte United States v. Klintoch V. Pirates Usill v. Hales .... ( 53 L. T. [N.S.] 711 s.c. on App. 54 L. T. i [N.S.] 286 . 1 Ld. Raymond, 254 4 Kyshe [infra] . C 4 L. R. Ch. Div. 73, on App. 5 L. R. I Ch. Div. 887 3 L. R. C. P. Div. 243 3 De G. & J. 63 5 Wheaton's Rep. 184 3 L. R. C. P. Div. 319 334 530 253 464 596 87 172 172 153 V, Vaughan v. Tender stegen . 23 L. J. Ch. [N.S.I 793 . 87 Vauxhall Case . 6 E. & B. 1008 . . 109 Veale's Trusts, In re . . 5 L. R. Ch. Div, 622 . 132 Veazic v. Williams . . 3 Sto. 633 . 363 Venour's Settled Estate, In re . 2 L. R. Ch. Div. 522 . . 436 Teramah v. Thaivoo . . 3 Kyshe, 117 . . 231 Versay v. Mahomed HanifE . . 3 Ibid. 79 . 231 Vickers v. Tickers . 4 L. R. Eq. 529 . . 67 Vivid, The . . 1 Asp. [N.S.,] 601 . 480 Vyse V. Poster . 8 L. R. Ch. Ap. 309 . . 196 TABLE OF CASES CITED. W. PAGE. Waddell v. Blockey . Wake V. Hill . Waloott V. Lyons Walker v. Foobislier . & Husthes' Contract, In ■ 4 L. R. Q. B. Div. 678 7 296, Affd. 8 Ap. Ca. 195 ■ V. London AN. W. Railway Co. Wallt; Stubbs Walley v. Walley Walmesley v. Walmesley Walslie V. Pro van Ward V. Dudley Warner v. Jacob Watkins v. Evans Watson V. Bodell V. Fraser Watts, In, re Webb -u. Firmauer V. Kir by Webster, Ex-parte Wederbmi v. Wederbun Wedge V. Berkeley Welch ■V. Knott Wells' Estate, In re . V. Wells Whelpdale's Case White V. Morris Whitehonse v. Fellowes Whittaker v. Whittaker Wild's Case Wilkins, In re Wilkinson v. Adam . V. Schneider Wilks V. Davis Willesford v. Watson Williams, In re V. Snowden • ■ V. Stevens . v. Stratton V. Walker V. Wilcox . Willis V. McLacklen Willonghby, In re Winter v. Brockwell v. Letchbridge Wood V. Wand Woodward v. Humpage Woolam V. Heax-n Wootton V. Collins Wordsworth v. Harley Worly V. Worly Wotherspoon v. Currie Wright V. Colls V. Leonard ■ V. Morley Wyld, Ex-parte 29 L. R. Ch. Div. 584 6 Ves. 70 24 L. R. Ch. Div. 698 . 1 L. R. C. P. Div. 518, Affd. on App. 36 L. T. [JSr.S.] 53, 58 [note] 297, 301, 306, 545 676 509 209 498 1 Madd. 80 1 Tern. 484 3 Jo. & Lat. 556 8 Ex. 852 57 L. T. [N.S.] 20 C20 L. R. Ch. Div. 220, [ [N.S.] 657 18 L. R. Q. B. Div. 386. 14 L. J. Ex. 281 R. & M. 17 22 L. R. Ch. Div. 5 3 M. & W. 473 7 De G. M. & G. 376 22 L. R. Oh. Div. 136 . 4 My. & Or. 41 6 Ad. & E. 663 . 4 K. & J. 747 . 6 L. R. Eq. 599 . 18 504. 3 Co. 241 21 L. J. C. P. [N.S.l. 185 30 L. J. 0. P. 305 21 L. K. Ch. Div. 657 . 6 Coke's Rep. 17 8 L. R. Q. B. 107 1 V. & B. 422 . 9 L. R. Eq. 423 3 Mer. 507 14 L. R. Eq. 572 25 L. R. Ch. Div. 656 . W. N. [1880] 124 9 Q. B. 14 50 L. J. Oh. [N.S.] 495 9 L. R. Q. B Div. 576 8 Ad. & E. 314 1 L. R. Eq. 376 30 L. R. Ch. Div, 324 8 East 308 McCle. 253 3 Ex. 748 8 Jur. [N.S.] 256 2 W. & T. L. 0. in Eq. 404 Mich. 9 Geo. II. I B. & Ad. 391 28 Beav. 58 5 L. R. H. L. 508 19 L. J. C. P. 60, s. c. 8 C. II 0. B. [K.S.] 258 II Ves. 12 30 L.J. Bank. 10 307. 308, 309, 310 . 545 3.55, 421, 426 . 383 562. 563 676 s.c. 48 L. T. . 359, 362, 664 623, 626, 627 438 208 199 624, 626 . 192 400 . 590 241 . 270 . 132 132 73 . 625 452, 453 125 584, 585 2 129, 130 . 267 . 67 . 596 . 624 356, 664 79 . 87 . 225 24 . 438 334 67 208 452 90 252 73 215, 241, 452 .590 273, 278, 404 B. 150 23, 24 . 87 . 379 . 308 TABLE OF CASES CITED. xxvii Y. PAGE. Yates ('. Milwankee . . 10 Wallace, 497 ... 60 Teap CteaH Neot .. Ong Ckeng Neo . J6 L. E. P. G^^-^l ^^^^^ 33^ Tor. „ now„ i 3^ W. R. 203, Rev. on App. 33 W. R. Teot-.Dawe . . .| 739, g. c. 53 L. T. [N.S.T125 . 182 Teomans v. WiUiams . . . 1 L. R. Eq. 184 . . 90 Yorkshire Engine Co. v. Wright . 21 W. R. 15 . . . .2 Young V. Bank of Bengal 1 Moo. P. C. 0. 150 . . . 282 z. Zouch V. Wallinsgate . . . 1 H. Bl. 31 . . 79 ERRATA Page. 46 Line 6 ; dele brackets. 125 last word of foot-note— /or "cotss" read "costs." 149 line 50; /or "forlorne" read "forlorn." 151 last word of foot-note; /or "nfra" read "infra." 181 line 9; /or "Mamomed Oader Hussain" read "Mahomed Oader Hussain" ,, ,, 9 of head-note ; /or "agreament" read "agreement." „ „ 26 ; for "as follow" read "as follows." 256 ,, 26; /or "pm-ehase" rea(i "purchase." ,, ,, 34; /or "ferfeiture" read "forfeiture." 257 ,, 10 ; /or "plaontife" read "plaintifE." 409 ,, 9 of head-note ; for "A purchase of land" read "A purchaser of land." 416 „ 1 „ ; /or "Sections 153 and 107" read "Sections 153 and 207." ,, „ 16 ,, ifor "Story's Eq. Jurisdiction" read "Story's Equity Juris- prudence." 433 margin; before "Nov. 12." mseri "1888." 441 line 1 of head-note ; for "uses" read "user." 558 „ 6 from bottom ; for "wos" read "was." 625 ,, 20 -jfcn- "mortgage" read "mortgagee.'' 628 Donahue v. Joaquim, line 5 ; for "struck not" read "struck out." Note. — For correct quotation and spelling of '■'■Cases Cited" in this Volvme, see ''Table of Gases Cited." — Supr^. CASES HEARD AND DETERMINED IN HER MAJESTY'S SUPREME COURT OF THE STRAITS SETTLEMENTS, 18 8—1 8 8 4. VOLUME IV. 1885—1890. Civil, Ecclesiastical, Habeas Corpus, Admiralty AND Bankruptcy Cases; Criminal Rulings and Magistrates' Appeals. CHAWANA MAHOMED HUSSEIN v. MAHOMED MUSTAN. A defendant who has been nrrested on mesne process, under Section 422 B. of the Penang. Civil I'rocedure Ordinance 5 of 187S, and given security that he will not leave the — ;- jurisdiction without the permission of the Court, is at liberty to leave without such Sidgeeaves, permission immediately after the plaintiff has obtained judgment in the action. The C. J. security bond is at an end no sooner such judgment is pronounced, and tlje sureties 1885. therein, cannot be made liable thereon for the departure of the defendant after the date of such judgment. February 9. The words " either or otherwise" in the aforesaid section, have no meaning, or at least do not extend the "prosecution" of the action beyond iinal judgment; and though they are not found in the corresponding section of the English Debtor's Act [32 & 33 Vict., 0. 62, s. 6] the effect of the two sections is the same, and the Enghsh oases on the latter, are authorities on the construction of the former. Yorkshire- Mnffine Co., v. Wright, '2,1 W. B. 16 [rfi'cif«m of Bramwell, B.] approved of and followed. This was an action on a bail bond entered into by the defendant as surety for one Shina Tamby. The plaintiff on the oth June, 1884, had commenced an action against the said Shina Tamby, and also procured bis arrest, under Section 422 B. of the Civil Procedure Ordinance o of 1878, [as amended by Ordinance 8 of 1880] on mesne process. The defendant went bail for the THE SUPREME- COURT. SiDOBEAVES, C. J. 1885. Chawana Mahomed Hussein V. Mahomed MnSTAN. said Shina Tamby, in a specified sum, and executed the bond herein sued on. The bond, aftei' reciting the actioir against Shina Tamby and his arrest as .aforesaid, was conditioned .to be of no' effect "if the said Shina Tamby should not leave tlie jurisdiction of the Supreme Court, without the leave of the sa.id Court, first liad and obtained." Tliere was nothing in tlie bond to sliew it was intended to be a, security only till judgment, nor anything to mark ■ its duration. Sliina Tamby put in no appearance to the action, and on the 1 3th June aforesaid, the phiintiff signed final judgment against him and took out execution. On the 14tli June, the said Shina Tamby left the jurisdiction for Larut, without first obtaining the leave of the Court. The plaintiff then sued tlie defendant, the surety, on the bond, to recover the sum specified alleging that the condition of the bond had been broken. Ross, for defendant contended, there had been no breach of the condition, as Section 422 B., only intended to secure the. presence of the defendant np to judgment, and that arrest after judgment was provided for by Section 393 of the Ordinance [asamended.] He cited Re Wilkins, 8 L. li. Q. B. 107, and Hume v. D ujj, S L-. R. Ex. 214, as in point. Van Someren, for the plaintiff' conceded, that if Section 422 B. was worded in the same way as Section G of the Ti]nglish Debtor's Act of 1869 [32 & 33 Vict., o. (32] on which the case-s cited turned, they would be conclusive against him, though possibly it might at first sight be thought that those cases were distinguishable, as in neither of them had the defendant been bailed, but was in custody in prison — such a fact however, made no difference ns appears by the dictum of Bramwell, B. in York- shire Engine Cotnpany v. Wright, 21 W. R. p. 16. Those cases however, in truth,- were no authorities on Section 422 B. as that Section dealt with tlie absence of the defenda.nt, as materially prejudicing the plaintiff' '^cither in the prosecution of his suit, or otJifirwise.''' The cases cited only .shewed that the "prose- cution" of the action stopped with final judgment, but the words of Section 122 B. meant by " either or otlierwise " -something beyond or other than the " prosecution " of the action : that Section 393 in no way interfered with this contention, as full scope could be given_ to that Section, by holding it applicable to arrests after judgment, where the defendant had not been arrested liafore ; and full scope could also be giveii to the three extra worc's iii Section 422 B., as applicable to the detention of the defendant, or con- tinuing his bail, even after judgment, where he had, been arrested before. The Legislature must have mea.nt somethinu' by tlie insertion of those words, but tlie argument on the other side would treat them as if they were not in the Section, it gave no meaning to them at all. Sidgreaves, C.J. — This case turns on Section 422 B. of the Civil Procedure Ordinance, which is as follows: — " When the^ plaintiff in any Civil proceeding in the Supreme Court proves, a,t ■ axLj timo before final judgmoiit, decree, or order, by evidence on oath, to the satisfaction of the Court that the plaintiff has a good cause of STRAITS SETTLEMENTS. •action oi- other valid claim against the defendant, and that there is probable cause for believing either that the defendant is concealing himself or that he has removed or concealed any of his property or having regard to his conduct or to the state of his ailau-s or otherwise, that he has withdrawn, or is about to withdraw himself or any of his property from the Settlement for the purpose of avoiding the process of the Ooui't, or under such other circumstances as to induce the Court to believe that the ends of justice are likely to be defeated unless he be aiTested ; and that there is also pi'obable cause for believing that the absence of the defendant froin the Settlement will materially prejudice the plaintifE, either in the prosecution of his suit, or otherwise, the Court may order such defendant to be arrested and imprisoned for a period not exceeding six months unless and until he sooner gives security that ho will nr)t go out of the Settlement without the leave of the Court." SlDQHEAVES, C.J. 1885. Chawana Mahomed Hdssein V. Mahomkd MUSTAN. The question is, what is the meaning or effect of the words " either in the prosecution of his suit or otherwise." Now looking at the whole scope and object of the Section, there can be no doubt it was meant to apply onlj' to cases before final judgment, and if corroborative evidence is required to this fact, we have it in Section 393, whif^h provides for arrests after judgment. If Section ■422 B. had been worded as in the English Act, there could be no doubt as to the efPect of the Section, but the words " either .. or otherwise" — words not to be found in the English Act, — are said to make a difference iii the meaning to be given to the Section. .The cases cited by the Counsel for the defendant are conclusive to shew that, the " prosecution" of the action terminates with final judgment, and the case of Yorlcaliire Engine Company v. Wright, cited by tlie Counsel for the plaintiff, is still, stronger and more applicable to the present case, as shewing the effect of final judg- ment (!ven on the s.^curity bond entered into by the defendant. Then do these words ''either or, otherwise" make any difference ? I think not. We, are to look at the Section as a whole, and give no greater effect to these words, than the whole scope a,nd object (jf the Sectiini requires. Judging from my own ex- perience of our local Legislature, and knowing how redundant expressions are sometimes put into Ordinances, perhaps to satisfy some question that is raised, but without intending to alter the effect of the Section, I cannot but look on these words as of that oliaraeter, and consider they really have no meaning. In an}' case, I am of opinio.n those words do not extend the "prose- cution" of the action beyond final judgment. I consider there is no difference in meaning on this point between Section 422 B. and the corresponding Section in the English Debtor's Act, and the authorities decided on the latter, are authorities on the former. The bond was therefore at an end when final judgment was entered up against Shiiia Tamby, and he was not liable to be held on b;ul after that date. It is admitted 'he left the jurisdiction only after that date, and there has been therefore no breach of the' condition of the defendant's bond. The judgment must be for the defenda.nt with costs. Jndgmevt for defendant. 4 THE SUPREME COURT. KHAN MAHOMED v KATZ BROTHEES. Penanq. If a riparian proprietor erects an embankment on his own land as a protection to his land against the river, and thereby causes injury to the land of his opposite SiDaBEAvES, neighbour, he is liable in damages to such neighbour for the loss sustained by the injury. C. J. A riparian proprietor finding his land was being washed away by the river, which 1885. was gradually leaving its old channel and was encroaching on his laud, drove in piles in the river, in a line which was his original boundary by grant prior to the washing. "February 18. away of- his land, with a view to reclaiming his land, but in so doing obstructed the free use of the new channel by adjoining riparian proprietors, who, in consequence, sustained special damage by being put to extra expense in bringing their goods by another route to their land and in removing the piles, Held, he was liable to them for such special damage, although the obstruction may have also been a public nuisance. The nature and facts of the plaintiff's case sufficiently appear in the judgment. The defendant counter-claimed by reason of the plaintiif luiving driven in piles into the river to the limit of his original boundary with a view to reclaiming his land, and thereby obstructing them from bringing up their goods in boats to their land, vrhich necessitated them bringing their goods overland at an extra expense, and also further expense in removing portion of the piles. The obstruction was a public nuisance, and the plaintiff had been prosecuted by the Crown for it until it was entirely removed. JRiiss \_Van Someren with him] for the plaintiff, cited Bickett v. Morris, 1 L. R. Sc. & Div. App. 47 ; Attomen-General v. Lonsdale, 7 L. R. Eq. 377; and on the counter-claim i^ose v. Mills, 4 M. & S. 101. Thowas for defendants. Gur. Adv. Vult. March 9. Sidgreavef-; C.J. In this case, the plaintiff who is possessed of land situate at the south side of the Penang River, and whose northern boundary is the said river, sues the defend- ants who occupy Lind nearly opposite, and whose southern boundary is the said river, for damages alleged to have been sustained by him in consequence of the defendants having lately raised a granite and brick embankment or wall by the side of the said river, along their southern boundary, which caused a silting up of the said river and a diversion of it on to the plaintiff's land. If this injury has accrued to the plaintiff's la'nd, and accrued since and in consequence of the i-aising of this wall or embank- ment by the defendants, then the defendants are liable to make good to the plaintiff the damage sustained by such injury, and it is upon this point that I propose to decide the ease. The plaintiff Khan Mahomed, got possession of the land by Conveyance dated the 30th May, 1881, and he has committed himself to two statements — lnt, that at that time thegodowns on the defendants' land were not finished, and that the manager's house, outside of which is the wall or embankment, had not then been begun, but was begun a few days afterwards ; 2nd, that at that time, when he took possession, he had his full quantity under his grant between his southern boundary and the river. The first statement is -undoubtedly incorrect ; it is clear from the evidence of Mr. Halifax, Mr. Heim, and Mr. St. John, that the whole of the buildings including the wall, had been finished for about two years. before the plaintiff took possession. Mr, St. John, a private surveyor and a v?itness on behalf of the plaintiff, said Straits settlements. that a plan of Messrs. Katz Brothers' property bearing date, March, 1880, bore his signature, and bad been made by him or under his directionf;. On that plan, the godown, manager's house and detaining wall are delineated as completed. . An entry in the defendant's ledger, shewed that the last paymeiit for the godown and manager's house was made on the 13th June, 1879. Taking this in coiijunction with the second statement, it amounts to this, that for a period of about two years after the wall was completed, it did not ill the slightest degree, influence the course of the river or affect the laud afterwards occupied by the plaintiff, but that as soon as the plaintiff got possession, the wall which had stood for two years, without causing any mischief whatever, began all at once to.develope the qualities which Ihe plaintiff says has proved so disastrous to his land. This at all events makes it extremely doubtful as to whether the injury to the land now held by the plaintiff, — undoubtedly caused by t-he washing away of the banks by the scour of the I'iver, — was caused by the erection of this wall or not, or whether other causes were not at work unnoticed by previous holders, or if noticed, not heeded until the late extraordin- ary rise in the value of the land, ca.used it to atti-act tlie notice of the plaintiff, and as he tells us that in May, 1881, hepurcluised the piece of land for f 1,205, and has since refused |17,.5()0 fur it, he would, no doubt, regard its gradual disappearance -^vith alarm. A review of the whole of the evidence forces me to the con- clusion that this wall which had been innocuous for two years before the plaintiff entered into possession of the land remained so afterwards, and that the irruption of the stream on to the plaintiff's land was caused by the natural bend of the river which describes a considerable curve as it flows by the j)laintift''s land aggravated by the imprudence or heedlessness of previous owners, 'when the land was of little value, who deliberately stripped it of its natural protection by cutting down the bakow on its bank, and leaving it defenceless against the never-ceasing scour and gradiial invasion of the river. To this may be added the blocking up of one of the three arches of the bridge some seven years ago, to which Captain Fox attributes the great increase- of the b'end of the river, and consequent eating away of the plaintiff's land. .Mr. Ross attempted to shew that some statements elicited by him in cross-examination from Mr. jjarnett, the Engineer to tli6 Municipal Commissioners, were confirmatory of the case set up by the plaintiff, but it is quite clear that the whole of his evidence is against it, and that he considered that what effect had been produced by the erection of this wall, was so infinitesimal, that it need not be taken into consideration. I find therefore that the injury to the plaintiff's land was not caused by the act or default of the defendants, and a verdict must be entered for the defendants. On the counter-claim by the defendants against the plaintiff for having obstructed the navigation of the river by placing piles across the channel of the river, and so causing expense to the defendants in removing them for the passage of their boats, I assess the damages at $150. SiDGEEAVES, C.J. X885. Khan Mahomed V. Katz Brothers. 6 THE SUPREME COURT. CHEAH BOON EAN v. CHEAE CHONG BENG k ANOR. Penang. SlD'JlEEATES, C.J. 1S85. March 4. The provision iu Schedule 1 of the Stamp Ordiuauce, 1881, as to Promissory-nates not being payable after sixty days, has no application to a Pi-omissory-uote made before that Ordinance, though sued on after that Ordinance became law. Talaniapah Cliethi v. Lim Poll, Civil Cases, Vol. I of these Eeports, 548, distinguished. A Promissory-note given by a husband to a wife, is not enforceable by the wife, either against the husband in his lif ;• time, nor against his Executors after his decease : and this, though the note be given in consideration of the husband having neglected to maintain the wife for many years. Action to recover §p7,200, as the indorsee of a Promissoi-y- note dated 29tli November, 1880, made by the defendant's Testator, Cheah Pek Ee deceased, payable on demand to one Boey Sin Neoh, and by her indorsed to the plaintiff. The defendants wefe the Bxecntors of the said Cheah Pek Ee, and in their statement of defence denied the note was made by him : they further submitted that the note, if made by the deceased, the same was illegal and void us given for an immoral consideration. At the trial, the Promissory-note was proved to have been given by the deceased, and it was alleged that the consideration for his giving it -was, that the said Boey Sin Neoh was his second wife, but he having neglected to maintain her for twenty years, had, on the date aforesaid, given her the Promissory-note in lieu of such twenty years' maintenance, which was calculated at ^30 per month. The defendants maintained that the said Boey Sin Neoh, was only the kept mistress of the deceased, and the note was given for her maintenance as aforesaid in consideration of past co-habitation. The point of fact whether the said Boey Sin Neoh was the second wife, or only the l;ept mistress of the deceased, was not decided, owing to the view the Couist took of the law applicable to the case. The pronnssorj-note, on beinij produced, had a three cents Revenue Stamp thereun. properly cancelled as required by the Stamp Ordinance 8 of 1873, Section 12, the Ordinance in force at the time the note was given. This Ordinance •was repealed, and the Stamp Ordinance 2 of 1881, became law on 1st September, 1881. By Schedule 1 of this latter Ordinance, under the head " Bill of Exchange or Promissory-note," is the following : "No PromiBsory-iiotc, Bill of Exchange, or other similui- instrument executed and payable, iu either eaae, in the Colony, for a sum e.>cceeding SfSO, payable on demand, sh;ill be held to be payable at any time longer (h°in (jO days from the date of the making, unless it bi'urs the proper stamp for a Promissory-note or Bill of Exchange [b], [o], or [d], or otherwise, as the case may require." B. C. and D. provide for nd valorevi duties on Bill and Notes drawn in sets, or paya^ble by instalments, &c. This action was commenced on _ 24th August, "l 883. It w;is admitted at the trial, that the plaintiff ha,d given no considern.tion for the indorsino- of the note to him by Boey Sin Neoh: that he was aware of ^the circumstances under which the note was given, and in fact was suing for her, as she was his mother, who could not well attend Court. Straits sJittlbments. 7 • Fan Someren [Capel with him] for the defendants contended, Sidgreaves, that -the promissory-note conld not now be sued on, as being ^„^.' more than 60 days ; it was not paijable under the afoi-esaid clause - of the Stamp Ordinance 1881, and therefore not suable — Kimja Cheah Boon Pillay V. Visuveraden Daven [a] decided by Mr. Justice Wood. ^'^^ In that case the note was made after the Ordinance of 1881, Cueah but that was immaterial as the Court of Appeal had held in Chons Beno Palania'pah Clietkj v. Lim Poh \_b] that the Orainance in force at ^ Anoe. the time of trial, and not the one under which the document was stamped or made, must be the one to govern the case in a question of Stamp Law. The case therefore, having to be decided at this date, when the Ordinance of 1881 was law, the note was not payable after (30 days, as it was for more than $50, was payable in the Colony on demand, and had only a three cents stamp on it. They fuither contended that the said Boey Sin Neoh was only the kept mistress of the deceased, and past co-habitation being the consideration for promising the mainte- nance and giving of the note, the same was illegal and void, and cited Benumoid v. Reeve, 8 Q. B. ISJJ ; Rohinson y. Co-r. 9 l£o&. 260. They also contended that if the said Boey Sin Neoh was the second wife of the deceased, the note was still void and could not be enforced, as husband and wife were but one person, and the wife's chose in action vested in the husband, and he could not therefore make a promise to himself or sue himself. GhiUy Oil, Contracts, 152, 714. The Plaintiff as indorsee, was in no better position than the woman Boey Sin Neoh, as he gave no value for the note, and took it with. notice of the circumstances under which it was made and in fact was suing for her. Thomas, for the' plaintiff contended that Boey Sin Neoh was the lawful second wife of the deceased, and although during her lifetime she could not have sued him, and as between her and the deceased the note was valueless, yet since his death her rights thereunder accrued to her, and there wiis no reason wiy it should not be enforced against the defendants, his Executors. On the point raised on the Stamp Ordinance, he was stopped by the Court. Sidgreavcn, C.J. — The point raised on the Stamp Ordinance is untenable. To uphold the defendants' contention would be to give a retrospective operation to the Ordinance of 1881, and to defeat vested rights. In Da'c/rci.s on StaUden, p. 510 it is said, "A retroactive Statute would p.irfcake in its characler of the mis- " chiefs of an ex-j><>i^t facto law, as to all cnses of crimes and pemil- "ties: and in matters relating to contracts or property, would "violate every sound principle." It then cites the case of Gilmore V. Shuter, 2 Lev. 227, s. c, 2 Mod. olO ; and proceeds, " the Court "said, 'It cannot be presumed that the Statute was to have a " retrospect, so as to tdie away a right of action which the plaintiff "was entitled to before the time of its commencement'." [c]. [«.] Not reporlcJ. [J.l Volume 1, Civil Cnses, p, 5-J-S. ^ . . • ^, [cJ See III the Gooils of William Ciiuuter, deceased, Ecdesiastioal Cases, Volume II, p. 2U, and lit re E.\-S Lilian Abdullah, Hibgajs Corpus Cases, Volume 11,' p. 2. J. W. N. K, S The supreme court. SiDGEEAvEs, Here, tlie plaintiff had undoubtedly a cause of action before the '^■i- Ordinance of 1881, but it the passage in the Schedule to. that Act, is to be held applicable to this note, the effect of it would Chjdah Boon be to render the note not suable after 60 days from-itsdate, by ^^^ operation, as at that dat", of a law which was then not in Chbah existence. The case of Palaniapah Chetty v. Lini Poll, wliich ^has Chong Beng been referred to, wn,s in reference to the adm^nsihility of the note & Anoe. iji evidence, which is quite a different matter from the objection raised here, where, the admissibility of the note is not objected to, but the question is as to ihe legal effect of the note at this date, and under the new Act. I may add Mr. Justice Wood concurs with me on this point [«]. On the other point, I am of opinion that even on the supposiiion that the payee of the note [Boey Sin Neoh] was the lawful second wife of the deceased Cheah Pels: Ee, the note is void, inasmuch as husband and wife cannot con- tract with each other. I can see no distinction in point of law, between the rights of the wife on such a note as against the husband, and as against his Executors. They stand in the husband's place ; and what he was not liable for, surely they cannot, as in his place, be made liable. I hold that the note is void as against both the husband and his Executors, and cannot be enforced. Judgment will be en- tered for the defendants. Judgment fur defendants. TAN CHYE HOON v. LIM SEOW CHONG & ANOR. Pbnang, SlDGEEAVES, C.J. 1885. March 9. Au Executor of an Admiuistralor with the Will annexed of a third person deceased, does not represent the Estate of such third deceased ; and this, notwithstanding the Administrator purports in his Will, to delegate his powers as Administrator to his Executor. ^he Executor, after entering into possession of the Estate of such third deceased, under the idea that he represented the said deceased's Estate, cannot on discovering his ' error and continuing his possession, set up his possession under the Statute of Limita- tions, against such Estate. Action to recover possession of title deeds wrongfully detained by defendants, aad for a declaration that the lands situate at Batu Lanchang in Penang, comprised in a Deed of Conveyance, registered No. 4,481, ■ dated 24lh January, 1877, from the Defendant Lira Seow Chong to the defendnnt Lim Chye Neow, was fradulent and void, and to have same cancelled. It appeared that the lands iind title deeds aforesaid belonged to one Lim Mah Hee, deceased, who died in 1848, leavijig a Will, by which he appointed one Tan Kim Neow, his Executrix. The said Tan Kim Neow, died without having proved the said Will, and on the 8th September, 1856, the siiid Will was proved by Lim Hong Guan, a son of the deceased Lira Mah Hee, and letters of administra- tion, with the said Will annexed, were granted to him. The said Lim Hong Guan died in 1864, without having fully administered [«.] The point was raised at an early stage of the case, and his Lordship had conferred with Mr. Justice Wood thereon, J, W. N. K. STRAITS SETTLEMENTS. the Estate of tlie said Lim Mali Hee. On IStli October, 1883, lettesa^'of administration de bonis non to tliS Eslatfe of tlie said Lim ^llli Hee, were granted to the plaintiff, us his grnnd niece; who m that capacity now brought this action. Tlie said Lim Hong (^uan left a Will in which he sUited : "Whereas by virtue of letters "of administration granted to me by Her Majesty's Court of "Judicature appointing me Administrator of the estate " and effects which were of Lim M.ah Hee, which estate I have " not fully administered, now I, as such Administrator, hereby " nominate and appoint Lim Seow Chong [1st defendant] Adminis- " trator in my place and stead, to administer the affairs of the "s:i,id Lim Ma-h Hee's estate, according to the wordings of the " Will of the said deceased." The defendant, Lim Seow Chong, proved the Will of the said Lim Hong Guan deceased, aTui obtained prqbate thereof; and thereupon took possession of the aforesaid lands, and title deeds theieof belonging to the said Lim Muh Hee, deceased. He, as such Executor, remained in posses- sion of these lands and deeds, for several years, and on the 24th January, 1«77, by the aforesaid Conveyance of that date, sold anil conveyed the land and title deeds aforesaid, to the defendant, Lim Chye Neow, claiming to do so by virtue of long possession which he alleged extended over 30 years. The said defendant Lim Seow Chong, had neither administered these lands in accord- ance with the Will of the said Lim Mah Hee, deceased, nor distributed the proceeds of such sale among his relatives. This action was commenced on the 8th May, 1884. Van Someren, for plaintiff, contended that the plaintiff on these, facts, wasentitled to the possession of the title deeds sued for, and also to have the aforesaid Conveyance of 24th January, 1877, delivered up, to be cancelled. He submitted that as Executor of an Administrator, notwithstanding the attempted delegation by the Will of the Administrator, the defendant Lim Seow Chong did not represent the estate of the original deceased Lim Mah Hee, but such estate was represented by the plaintiff as Administrator de bonis non. Broom's Com. p. 605 ; that as Administrator, the said Lim Hong Guan could not delegate his powers, delegatus von potest delegare. The defendant Lim Seow Chong could therefore confer no estate or interest by his Conveyance to the defendant Lim Chye Neow, unless it was by virtue of his alleged long pos- session. The possession, from the dates given, could not however have been for 30 years as the defendant Lim Seow Chong came in only after Lim Hong Guan who did not die till 1864; but even if such possession was for more than 12 years, it was not a possession adverse to the estate of Lim Mah Hee deceased, as the defendant took and kept possession of the lands and deeds, claim- ing through Lim Hong Guan to represent Lim Mali Hee. He was in fact trustee for the next-of-kin of Lim 'Mali Hee, and could not set up his possession as against them or the plaintiff' who represented their interest. G. H. S. Gottlieb, for the defendants, conceded that as Executor, of the Administrator Lim Hong Guan, the defendant Lim Seow Chong did not represent the original deceased Lim Mah Hee, and SlDGKEAVES, C.J, 1885 Tan Chye HOON V. Lm Seow Chong & Anob. 10 THE SUPREME COURT. SiDGEEAVES, C.J. 18S5, Tan Chye HooN ■V. Lim Seow Chong & Anoe. the fact that Liiu Hong inst the estate of Lim Mah Hee, which lie had in fact done, by his Conveyance of 1877, having then had more than 12 years' possession. Act XIV. of 1859, s. 1 cl. 12. Van Somtiven, in reply. Sidyreiiven, C.J. held, that as Administrator, although with the Will annexed of Lim Mah Hoe, deceased, the said Lim Hong Guan had no power to delegate his authority, .and the defendant Lim Seow Chong did not, as Executor of the Administrator, represent the estate of Lim Mah Hee. He further held that although this was so, yet, the defendant Lim Seow Chong having entered into possession of Lim Mnh Hee's estate, as his representative, could not afterwards claim adversely to that estate; but such possession was only that of a trustee, for the benefit of the next-of-kin : he had no authoritj' to convey the lands to the defendant Lim Cliye Neow and the Conveyance by which he purported to do so must he cance.Ued mid the title deeds of the land returned to the plaintiff. The decree would be in terms of the prayer of the statement of claim, and the plaintiff would have her costs against the defendants. WEMYSS V. ATTORNEY-GENBEAL. Penanu. SlDGKEAvBS, C.J. 1SS5. March 10. Tlie owner or lessee of laud adjoiiiiii,L,' the sea shore ha.s a private right of access to the sea, and any person even the Crown iiitsrferiuL;- with sucli access, as by raising an emliankment iu front of his- laud, so as to deprive him thereof, is liable to him in damages. Li/OH V. Fii-hmoiif/en-' Coiiijiaii!/, 1 li. E. ,V.j>p. Ca. G62, considered and ap])lied. A lessee of land with its easementsaud appurtenances for a term of years with a covenant for a renewal at his option by giving six months' previous notice', withiu the six months' give the notice and chimed the renewal. Some time after the expiration oi the lease he and the lessor arranged tint the new lease should contain several further and different covenants and include portion only of the lands iu the former lease together with additional lands which had been e.xn-pted from the old lease, wi-fh certain rights iu specific terms over the sei fronlugc. ' The new lease was accordingly made and was declared to be a renettnl and made iu pursuance of the covenant for renewal The lessor, subserjhently to the receipt of the aforesaid notice, but prior to nrakiuo- the aforesaid arrangement and executing such new lease, made an agreement with the Crown the effect of which wao to give up all rights ho had to object to the Crown reclaiming a mud bank iji front of the lands by which his access to the sea mi<>ht be out off. The Crown under this agreement proceeded to reclaim the bank and ere'ct a quay and for so doiug, was sued by the lessee for depriving him of his access to the sea The Crown objected that tbe new lease was not in lfi,w or equity, a renewed lease iiiado in pursuance of the covenant for renewal and the notice,— and' that the agreement they held being prior in point of date to the new lease, the lessee had no ri<^hts against them. y/eM, by the Court of Appeal affirmiug the judgment of the Court below that although the lessee could not have compelled his lessor to grant a renewal of a lease in terms with such uew lease, yet as the lessor bad executed such ries" lease iutending it should be a renewed lease made iu pursuance of the covenant for renewal th° Crown STEAITS SETTLEMENTS. 11 had' 110 right to disinite such uew lease as not beiu^' a renewal, and that such new lease was a renewal made in pursuance of the covenant and the alterations in parcels and conditions and verbiage as to the easements and appurtenances did not prevent it being so. Judgment of the Court ol Appeal affirmed by the Privj' Council. This was a petition of right to recover !g4.0,000- from the Government for depriving the petitioner of his access to the sea by their rechimatiDii works at the back of Beacli Street commonly called Weld Quay. The material statements in the petit-'on and statement of defence, and -evidence adduced at the trial, except the several exhibits which are here set forth at full .leu ytb, suflici- eiitly appear in the judgments of the learned Judges. The following were the exhibits put in at the trial : — A. SlDSEBAVES, C.J. 1S85.' Weiiyss V. Attoeney- Genebal. This Indenture made the '2iid day of July, in" the year of Oiu' Lord one thousand eight hundred and seventy-seven, between ' Tunkoo Muda Nyah Malini, of Simpang Oolim, in Sumatra, hereinafter called the le^iBOr of the one part, and Francis Watson Mackie and Walter Oldham, of Pcuaiig, Merchants, trading under the style or firm of Oldham, Mackie and Coinpany [hereinafter called the lessees] of the other part, witnesseth, that in consideration of the rent and lessee's covenants hereinafter reserved and contained, he the said lessor doth demise and lease unto the said lessees their executors, administrators, and assigns all the godown or messuage situate and being No. 37, Beach Street, George Town, Penang, aforesaid, with the actual and reputed rights, members easements and appurtenances, except and always reserved unto the said lessor his heirs, executors, administrators and assigns a piece of land at back or sea side of the said premises and outside and adjoining the present back wall thereof, and measuring, from the northern wall oi' boundary of the said premises thirty-six feet in breadth by thirty-feet in length measured from the said back wall with liberty for the said lessor his heirs, executors, admi- nistrators and assigns to build on the land so reserved as aforesaid, and with full and free liberty of egress and regress for all legitimate purposes, along, over, and through the cartway and v/harf situate along the southern portion of the premises hereby demised for the said lessor, his' heirs, executors, administrators or assigns, and his and their Agents, friends, servants and work- men, and the tenants and occupiers for the time being of the land hereby excepted, or of any building to be erected thereon and whether to or from the sea or Beach Street aforesaid ; to have and to hold the said messuage or tenement and all and singular other the premises hereinbefore expressed to be demised with the appurtenances unto the said lessees their executors, administrators and assigns for the term of six years from the 2nd day of- July, instant, yielding and paying therefor monthly and every month during the said term the rent or sum of one hundred ancl thirty dollars [Sl-lll] payable on the 2nd day of every calendar month the first of such payments to be made on the 2nd day of August, next ; and also yielding and paying a proportion- ate part of the said rent for any period which may elapse between any of the aforesaid days of payment and the period of the determination^ of the said term in case the same shall happen to determine tmder the proviso for that pui-pose hereinafter contained, such proportionate rent to become payable immediately upon such determination. And the said lessees do hereby for themselves, their heii-s, executors and administrators and assigns covenant with the said lessor, his executors, ' administrators and assigns in manner fol- lowing, that is to say, that they the said lessees their executors and adminis- trators will, during the said term, pay unto the said lessor, his heirs, executors, administratoi's or assigns the rent hereby reserved at the time and in manner hereinbefore mentioned and appointed for payment thereof without any deduction or abatement whatsoever, and also will pay rates and all Municipal assessments and rates now payable or hereafter to become payable in res- pect of the said premises or any part thereof and will indemnify the lessor THE SUPREME COURT. SlDGEEATES, C.J. 1885. Wemtbs V. Attoeney- Geneeal. therefrom. Provided always, and it is expressly agreed that if the rent here- by reserved or any part thereof shall be unpaid for one month after any of the days on which the same ought to have been paid although no formal demand shall have been made thereof, or incase of the. breach or non-per- formance of any of the covenants and agreements herein contained on the part of the lessees, their executors, administrators or assigns, then and in either of such cases it shall be lawful for the said lessor, his heirs, executors, administrators or assigns to re-enter and- the same to have again, repos- sess and enjoy as of his or their former estate anything herein contained to the contrary notwithstanding. And it is hereby expressly agreed between the lessor, his heirs, executors, administrators and assigns and the lessees, their executors, administrators and assigns that the lessees, their executors, administrators, and assigns shall be entitled at anytime during the said term at their own cost and charge to make any alterations and improvements to the buildings now standing and erected, and also to erect new buildings and structures whether of wood and iron or bricks and tiles upon the land and premises hereb}^ demised. Provided, that should the lessees, their executors, administrators and assigns desire to erect any buildings or structures of bricks and tiles on the said land, and be willuig to lend and advance to the lessor, his heirs, executors, administrators and assigns the costs of erecting such building or structures of bricks and tiles, and also to enter into a covenant with the lessor, his heirs, executors, administrators and assigns to pay an increased rent for the said premises equivalent to the interest charged by the lessees, their executors, administrators ■jnd assigns for the money so lent as aforesaid, then the lessor, his heirs, executors, administrators or assigns shall forthwith erect such buildings or structures if he or they shall approve of the plans and designs thereof. And further, that the lessees, their executors, administrators and assigns shall be at liberty at the expiry of the said term to remove and take away all buildings and structures whether of wood or iron or of wood and iron which inay have been erected hy them, provided such removal and taking away shall not injure or damage the present existing buildings ; and also that if the lessees, their executoi-s, administrators or assigns shall be desirous of taking a renewed lease of the said premises for the further term of six years from the expiration of the said term hereby granted, and of such desire shall prior to the expiration of the said teiTii give to the lessor, his executors, administrators or assigns or leave at his or their last known place or places of business six- calendar months' previous notice, in wi-iting, and shall pay the rent and observe the several covenants and agreements herein contained on the part of the lessees, their executors, administrators or assigns to be observed and performed up to the expiration of the said term hereby granted he the lessor, his executors, administrators or assigns will upon the request and at the expense of the lessees, their executors, administrators and assigns and upon their executing and delivering to the lessor, his executors, administrators or assigns a counterpart thereof, forthwith execute and deliver to the lessees, their executors, administrators and assigns a renewed lease of the said premises for the term of six years at such rent as may be at the time of execution of such renewed lease either agreed upon by mutual consent, or fixed by four arbitrators, two of whom shall be chosen by the lessees, their executors, administrators or assigns and two by the lessor, his heirs, executors, adminis- trators or assigns. Provided, that the lessees and their assigns shall only be entitled to a renewal of this for only one term of six years after the expiry of the present term, and the said lessor doth hereby for himself, his heirs, executors, administrators and assigns covenant with the said lessees, their executors, administrator.^ and assigns that he and they paying the rent hereby resei-ved and performing the covenants hereinbefore on his and their part contained,- shall and may peaceably, possess and enjoy the said term hereby granted without any interruption or disturbance from or by the said lessor, his executol-s, administrators or assigns or any other person or persons lawfully claiming by, from, or under him, them, or any of them ; and also that the lessor his heirs, executors, administrators or assigns shall and will as often as the said premises hereby demised shall be burnt down or damaged by fire forth- with and expeditiously re-build or repair the said premfses or such parts thereof as shall be' burnt down or damaged by fii-e as aforesaid. STRAITS SETTLEMENTS. 13 In witness whereof, the said parties have hereunto set their hands and Sidgeeaves, seals, the day and year first hereinbefore written. C. J. 1SS5. Signed, sealed and delivered | [Sd.] TUNKOO MUD A NYA MALIM, [seal] in the presence of ) ' [in Malay cliaracters.] Wemyss '>'■ [Sd.] Shaik Ismail, „ V. WATSON MACKIE, Attornet- „ P., B. Peebiba. by his Attorney. [seal] <>ENEiiAi,. „ W. OLDHAM, „ WALTER OLDHAM. ' [seal] This Indenture made the eighteenth day of March, in the year of Our Lord one thousand eight hundi-ed and seventy -nine (1879). Between John Pinlay- son, of Penang, Merchant and Trustee of the ' Estate and Effects of Walter Oldham and Francis Watson Mackie, Bankrupts, of the .one part, and John Leith Wemyss and Earquhar Matheson McLarty, hoth of Penang, trading as Engineers and Iron Pounders under the name of the Penang Foundry Com- pany of the other part. Whereas, by an Indenture of Lease, dated the 2nd day of July, 1877, and made between the Tunkoo Muda Nya Malim, of Sim- pang Oolim, in Sumatra, therein called the lessor of the one part, and Francis Watson Mackie and Walter Oldham trading under the style of Oldham, Mackie and Company thereinafter called the lessees of the other part, all the godown or messuage situate and being No. 37, Beach Street, George Town, Penang, aforesaid, with the actual aud reputed rights, members ease- ments and appurtenances except, and always reserved unto the said lessor, his executors, administrators and assigns a piece of land at the back or sea side thereof in the said lease more fully set out, were demised by the said lessor to the said lessees, their executors, administrators and assigns from the 2nd day of July then last past, for the term of six years at the monthly rent of dollars one hundred and thirty [ i{?130 ] and under and subject to the covenants and conditions in the said Indenture of Lease contained, and on the part of the lessees their executors, administrators, and assigns to be observed and performed ; and whereas under or by virtue of a petition in the Supreme Court of the Straits Settlements in its Division of Penang in Bankruptcy on the 17th day of April, 1878, the said Francis Watson Mackie and Walter Oldham were adjudicated Bankrupts, and the said John Finlay- Bon was on or about the 14th day of May, 1878, duly chosen the Trustee of the Estate and Effects of the said Bankrupts ; and whereas the. said John Finlayson aa such Trustee as aforesaid bas_agreed with the said John Leith Wemyss and Farqrrhar Matheson McLar£y for the absolute sale to them of the hereditaments and premises comprised in the said Indenture of Lease for the residue of the said term of six years, subject to the several covenants and conditions aforesaid but free from all other incumbrances at the price of Dollars One hundred, [.?100] ; Now This Indenture Witnesseth that in pursuance of the said Agreement and in consideration of the sum of Dollars One hundred [$100] the receipt whereof the said John Finlayson doth here- by acknowledge, the said John Finlayson as such Trustee as aforesaid doth hereby assign unto the said John Leith Wemyss and Farquhar Matheson McLarty, all the godown, messuage and premises comprised in and demised by the hereinbefore recited Indenture of Lease or expressed so to be, and all the estate, rights, title, interest, claim and demand whatsoever of the said John Finlayson as such Trustee as aforesaid to the said premises or any pai-t thereof. To have and to hold the messuage and premises hereby assign- ed or expressed so to be unto the said John Leith Wemyss and Farquhar Matheson McLarty, their executors, administrators or assigns for all the residue now imexpired of the said term of six years at the rent reserved by the said Indenture of Lease and under and subject to the covenants and con- ditions in the same Indentm-e contained and which henceforth on the part of the lessees, their executors, administrators or assigns. ought to be observed and performed; And the said John Finlayson as such Trustee as aforesaid doth hereby for himself, his executors or administrators covenant with the 14 •THE SUPREME COUET. roaEKAVEs, said John Leith Wemyss aurl Favqiiliar Matheson McLarty, their executors, C,,T. administrators and assigns that lie the said John Finlayson as sucli Trustee as aforesaid, hath not at any time heretofore done or committed or Imowiugly suffered or Iseen party or privy to anything whereby the said leasehold pre- mises hereby a'ssigned or expressed so to be or any part thereof are, is, can or may be in any wise incumbered. In Witness whereof the parties aforesaid have hereunto set their res- pective hands and seals in Prince of Wales' Island the day, month and year, first hereinbefore written. 1883. Wemtss V. .4.TT0RNET GENEU.iL, Signed, sealed and delivered " in the presence of [Sell C. V. BoupviLLB. [S(7.] J. FINLAYSON, [seal.] Trustee. „ J. L. WEMYSS, [seal.] „ F. M. McLARTY, [seal.] B-i Endoesed on Lease B. This Indenture made the day of July, 1879, between Farqahar Matheson McLarty, of Penang, Engineer, of the one part, and John Leith Wemyss of the same place, Engineer, of the other part. Whereas the said Farqnhar Matheson McLarty has for the consideration of ,S agreed to transfer his estate and interest in the premises, and for the term described and created by the Lease recited in the within written presents unto the said John Leith Wemyss ; Now this Indenture Witnesseth that in consideration of the sum of S paid by the said John Leith Wemyss to the said Farqnhar Matheson McLarty, he the said Farquhar Matheson McLai'ty doth hereby assign to the said John Leith Wemyss, his executors, administrators or assigns all the godown, messuages and premises therein described with their appurtenances ; To hold the same unto the said John Leith Wemyss, his executors, administrators and assigns for all the residue and unexpired of the term of six years created by the lease recited in the within written In- denture and at the rent and subject to the covenants therein reserved and contained and on the lessees part to be paid' and performed ; And the said Pai'quhar Matheson McLarty doth hereby for himself, his executors, adminis- trators and assigns covenant with the said John Leith Wemyss,. his executors, administrators and assigns that the said lease is now valid and stibsistingly lease in laws and in full force for the unexpired residue of the said term not- withstanding anything by the said Farquhar Matheson McLarty done or suffered to the contrary and that the rent has been paid and thecovsnants and conditions thereof have been performed to this date. And that the said Farquhar Matheson McLarty now hath good right to assign the premises in manner aforesaid notwithstanding anything done or suffered by him to the contrary, and that free from all incumbrances made, created, or occasioned by the said Farquhar Matheson McLarty or any person or persons, lawfully or ■equitably claiming under or in ti-ust for him ; And that, the said Farquhar Matheson McLarty and all such persons will, at all times hereafter, at the re- quest and costs of the said John Leith Wemyss, his executors, administrators and assigns execute aU svioh acts and things for more effectually assignino- the said i^remises in manner aforesaid as shall or may be reasonably re° quired. And the said John Leith Wemyss doth hereby for himself his heirs, execvttors, 'administrators and assigns covenant with the said Farqnhar Matheson McLarty, his heirs, executors and administrators that froin this date the rent reserved by the said lease and the covenants therein contained shall be performed by him, his executors, administrators and assigns that he will, at all times, keep indemnified the said Farquhar Matheson McLarty, his executors and administrators and his estate and effects from alluctions, suits and other proceedings and from all costs, claims and expenses which may be incun-ed by reason of the non-observance or non-performance thereof. In witness whereof the said parties have hereunto put their hands and seals the day and year first above wi-itten. Signed, sealed and delivered') in the presence of ) [Sd.-j F, M. McLAIlTY, [seal.] STRAITS SETTLEMENTS. 15 B— 2 Endorsed on Lease B. I the within named Tunkoo Muda Nyah Malim hereby demise unto John Sidgeeav es, Leith Wemyss, his lieirs, executors, administrators and assigns the i^remises C. J. of land at the beach or seaside of the said premises and aiijoining the present 1885. back wall thereof, and further described in the exception contained in the within-mentioned lease subject to the covenants and conditions therein con- "^Vemyss tained, and in like manner in all respects as if it had been included in the said i'- .lease; provided thereof the rent payable therefor shall be ?15 [Fifteen] Attoknet- Dollars] per month. Genekal. In witness whereof the said parties have heretinto put their hands and seals the day and year first above written. Signed sealed and (delivered 7 in the presence of ) ISd.} J. NlETIKT. [8(1.'] HABIB OOSMAN IDID, [in Arabic characters.^ J. L. 'WEMYSS. This Indenture made the 15th day of November, 1883, between Lee" Ohin Tuan and Lee Chin Soon, of Beach Street, Penang, land-holders [ here- inafter called the lessors] of the one part and John Leith Wemyss, of Penang, aforeBaid, Engineer, trading under the style of the Penang Foundry Company, [ hereinafter called the lessee ] of the other part. Witnesseth that in pur- suance of the proviso for renewal in the former lease [which the said John Leitli Wemyss is the assignee of the original lessees ] and under which he held the premises hereinaftei; mentioned, dated the second day of July, 1877, and made between Tunkoo Muda Nyah Malim of the one part and Francis Watson Maclvie and Walter Oldham of the other part, and of the agreement as to the rent and terms entered into by the said lessee with the said lessors [ who were the assignees of the original lessor ] in their respective letters of the ■22nd day of Juno last past, and in consideration of the rent and lessee's covenants hereinafter reserved and contained, they the said lessors do demise and lease unto the said lessee, his executors, administrators and assigns, all that piece of land situate and being the back part of the premises numbered 37, Beach Street, . in Penang, on the seaside thereof, outside and adjoining the wall of the present godov/ns, and extending from tliat godown to the sea upon which the offices, store-rooms, machinery, working shops and slip i.if the- said lessee now stand, and as the same is now occupied by him ; together with the right of way adjoming the southern portion of the said godown from the sea to Beach Street either by land from Beach Street or by the sea and whether by hand or Imllock carts, horses, ox, by foot or by day or by night wlien necessary to do so with the right of the approaches of boats or vessels to the foreshore or wharf and landing place of the said premises for the pur- pose of docking and repairing boats and vessels and of landing or shipping machinery and' other wares, goods and merchandises ; And also all privileges, sewers, drains, water-courses, lights, liberties, easenients and appurtenances whatsoever to the said land or wharf belonging, or in any wise appertaining or connected therewith respectively ; And reserving to the lessors or either of them their or either of their heirs, executors, administrators or assigns the like liberty of using the said right of way provided that this latter reservation shall not be permitted to interfere with the exclusive right of the lessee to use the said premises or any part thereof as a Dock or slip-way for vessels to which right this latter reservation shall be held in all cases to be subject. To have and to hold the land or tenement and all and singular other the premises hereinbefore expressed to be demised with the appurtenances unto the lessee, his executors, adiuinistrators and assigns for the term of six years computing from tbe second day of July, 1883, yielding and paying therefor monthly and every month during the said term the rent or sum of one hun- dred and forty-five dollars [S 145 ] payable on the .second day of each calen- dar month. And the said lessee doth hereby for himself, his heirs, executors, administrators and assigns covenant with the lessors, their heirs, executors. Impressed Stnii]|) Fifty Cents. 16 THE SUPREME COUET. C.J. 1885. Wemtss V. Attoeney- Genehal. SiDQEEAVES, administrators and assigns in manner following that is to say, tliat he the said lessee, 'his executors, administrators and assigns will, diiring the said term, pay unto the said lessors, their heirs, executors, administrators or assigns the rent hereby resei-ved at the time, and in manner hereinbefore mentioned and appointed for payaient thereof without any deduction or abatement whatsoever, and shall and will also keep the right of way and passage on and alongside his part of the premises herein demised in repair at his own cost, and shall at the expiration of the term herein created peaceably sui-render and yield up the said land unto the lessors, in the same condition as it may then be. Provided always, and it is herein expressly agi-eed that if the rent hereby reserved or any part thei'eof shall be unpaid for one month after any of the days on which the same ought to have been paid although no formal demand shall have been made thereof, or in case of the breach or non-performance of any of the covenants and agreements herein contained on the part of the lessee, his executors, adminis- trators and assigns, then and in either of such cases, it shall be lawful for the said lessors, their heii-s, executors, administrators and assigns to re-enter, and the same to have again, re-possess and enjoy as of their former estate anything therein contained to the contrary, notwithstanding subject in all cases to the proviso hereinafter expressed for removal of all buildings and substractures erected by the lessee oji the land hereby demised. And it is hereby expressly agreed between the said lessors and each of them, their and each of their heirs, executors, administrators and aseigns that the lessee, his heirs, executors, administrators and assigns shall be entitled at any time during the said term at their own cost and charges to make any altej-ations and improvements to the buildings already erected by him on the said land, and to erect new buildings and structures of wood and iron or brick, and to make excavations thereon ; Provided further that the lessee, his executors, administrators and assigns shall be at liberty at uhe expiry of the said term to remove and take away all buildings and structures whether of wood or iron which may have been erected by him or them, provided such removal or taking away shall not injure or damage the present brick-buildings of the lessors or on the land adjoining. Provided also that the said lessee shall, during the term hereby created, be allowed to keep his present water seiwice pipe from the main in Beach Street along the side of the passage or way above-mentioned above ground, ^nd the said lessors for themselves their or either of their heirs, executors, administrators and assigns covenant with the lessee, his executors, administrators or assigns that he [the lessee] paying the rent hereby agreed and performing the covenants hereinbefore mentioned on his or their part shall and may peaceably possess, hold and enjoy the land and premises herein demised during the full end and term hereby granted without any molestation or disturbance from or by the lessors their and each of their executors, administrators or assigns or any Other person or persons lavrfully claiming by, from or under them or any of them. And that the said lessors shall and will, during the said term bear, pay and discharo-e the Muni- cipal Assessment rates and taxes whatsoever chargeable on the land and pi-emises hereby demised, and that the said lessors shall and will, at their cost and charges, keep in repair the right of way and passage from Beach Street to the land herein demised. In Witness whereof the said parties have hereunto set their hands and seals at Penang the diiy and year first hereinbefore written. Signed, sealed and delivered \ [_8d.'\ LEE CHIN TUAN' fseall in the presence of ) hij his Attorney L. Chin Soon. "' Clerks to B. P. frciinTmi^Ti.- rr,-,-,^ „„ Thomas, Soli- \ t^^-] L. T DeMkllo, [ScZ.] L. CHIN SOON, [seal] citor. ( " K. TuckChoon. „ J.L. WEMYSS. [sealj Messenger to above. [Sd.] Shaik Mydin, in Tamil characters. „ Edw. F, Thomas, STRAITS SETTLEMENTS. 17 To D. LEE CHIN TUAN, AND LEE CHIN SOON, EsQtriEES, Present. Fencing, Idtli December, 1882. C.J. 1885. Wemyss V. Attornby- Genebal. Gentlemen, I beg to give you notice that I am desirous and intend taking a renewed lease of the premises now occupied hy me in Beach Street, under 2 leases, dated respectively, the 2nd day of July, 1877, and the 12th day of July, 1879, from Tunkoo Muda Nyah Malim, and an assignment thereof from John Pinlayson, Trustee of the estate of Oldham and Mackic, dated the eighteenth day of March, 1879, to myself and Mr. McLarty, dated the 3rd day of July, 1879, for the further term of six years fx-om the expiration of the term created by the said lease, and upon the like rent and conditions therein reserved and contained. I am. Gentlemen, Tours faithfully, [Signed'] J. L. WEMYSS. Ti-ue copy ISigned'] Edw. F. Thomas. OHIN TUAN, Esq. E. Penrmg. June 22nd, 1883. My Deae Sir, Impressed Stamp. Fifty Cents. As the first term of my lease is nearly expired, and wishing to remain in occupation of the premises I now occupy with my works for the next term of six years as allowed in the lease, I now submit the following proposal : — The present godowns and offices are in such a bad state that they are useless to any one, and believing you will repair ttem and re-build where necessary, if I give jou possession of them, I am willing to do so on the fol- lowing conditions : I will occupy the space from the present back wall of the godowns on the east side to the sea and on the same terms as the present lease with right of way by day or .night on the present passage to Beach Street, and to keep my present water service from the main on the side of the passage above ground, you keep the passage in proper order, you pay all assessments and rates, and give me the use of the east godown for two moaths until I shift my stock into the works, 1 give you possession of the four godowns and the offices with godowns underneath, also right of way to the sea Duly stamped, by night or by day. I pay you the same rental as at present, less the assess- r ^^ n q. jjorris. ments and rates before mentioned. I keep the roadway opposite my works in ' ■ repair. This, I trust, will be agreeable to you and save a lot of time being wasted by arbitration or otherwise quarrelling over the matter. This can take effect on and after the 2nd July this year, 1883, but if you agree to give me a note to that effect, I will proceed at once to give you possession of the front offices and godowns by removing my goods. I remain. Dear Sir, Yours faithfully, [Signed] J. L. WEMYSS, Collector of Stamps. M-n-83. 18 THE SUPEEME COUilT. SiDGEEAVES, C.J. 1885. Wemtss V. Attornet- Geneeal. Impressed Stamp Four Dollars- Impressed Stamp Ten Dollars. 22nd Jinie, 1883. J. L. WEMYSS, Esq. My Deab Sib, I have received your letter of tliis clay's date, with reference to your tenancy of my property in Beach Street, and agree to, and hereby accept, the terms set forth in the said letter. 1 desire at once to take possession of the front offices and godowns, and should feel obliged if you v/ould kindly remove your goods from them as soon as possible. I am. Yours faithfully, [ Sigued ] LEE CHIN TUAN, l_in Chinese rliaraders.] Duly Stamped [Stl.] G. NOERIf, Collector of Stamps. 14-11-83. It is this day mutually agreed between Oldham Mackie & Co., of the one part, and the Penang Foundry Company of the other jpai-t, as follows : — Oldham Mackie & Co., agrees to sublet unto the Penang Foundry Company, part of the property, 37, Beach Street, owned by Tunkoo Muda Nyah Malim from whom the said Oldham Mackie & Co., holds a lease of said property for a tenn of six years, dating from 2nd July, 1877. In consideration of the monthly rent of seventy dollars to be paid by Penang Foundry Company to Oldham Mackie & Co., the said Oldham Mackie & Co., agrees to sublet unto the said Penang Foundry Co., three portions of the property named as follows : that part measuring fi'om the red line on the east to the boundary of the reserved Achinese ground on the West, and that part measuring from the wall at the back of the said Achinese ground to the end of the godowns on the West, and the whole of the lower part of the building facing Beach Street, extending from Beach Street east- wards to the small store that is situated between the said lower part of build- ing and next to the principal godowns. The Penang Foundry Co.. agrees on their part to pay from this date the monthly rent of seventy dollars unto the said Oldham Mackie & Co., for the right of ground and part of building afore- said. This agreement to hold good until a formal lease shall have been drawn up yielding to the said Penang Foundry Co., all the rights and privi- leges which the said Oldham Mackie & Co., hold in virtue of the lease, dated 2nd July, 1878. Entry to the two back pieces of ground named to date from to-day, and entry to the lower part of front building to date from 1st Jaly, 1878, till then Oldham Mackie & Co., yields to the Penang Foundry Co., all the use of that godown neai-est the sea in lieu of lower part of building. The expenses incurred in drawing up the lease to be borne by the Penang Foundry Co. [Signed] OLDHAM MACKIE & Co. [Signed] PENANG FOUNDRY & Co, Penang, 13th March, 1878. STRAITS SETTLEMENTS. 19 H. An Agreement made the twenty-ninth day of November, 1882, Between The Lietjtenant-Goveenoe of Penang for and on behalf of the GovEBNMBNT of the Steaits SETTLEMENTS [ hereinafter called " The GovEENMENT " ] of the One part, and the several persons whose signatures are affixed hereto being owners of lots of land on the East side oe Beach Steeet, Penanq; [hereinafter called the Owners] of the other part. 1. The Government will reclaim and fill up bo much of the mud bank in the harbour of Penang lying between the land owned by the owners on the East side of Beach Street, and a line drawn two hundred and fifty feet to the East of 'the line marked on Government map of the harbour of Penang, and commonly known as the " Red Botjndaet Line," such reclamation to com- mence from the Jetty and to terminate at the mouth of the Peangin Rivee. 2. The Government will construct, along the sea end of such reclaimed land a road way of Quay 60 feet wide, extending from the Jetty to the mouth of Prangin River with approaches thereto from Beach Street through the present Ghauts, and will also construct suitable and convenient landing Jetties on the said Quay in front of evei-y such approach. The said Quay, Jetties and approaches shall be reserved for the use of the public, subject nevertheless, to the rights of the Municipal Commissioners of Penang in and over the present Ghauts. 3. All the reclaimed land between the inner line of the Quay and the land already reclaimed by the said owners shall be filled up and raised to the level of the Quay. 4. The said reclamation and Quay shall be commenced and completed with as little delay as possible, and if possible, within a term not exceeding three years from the date of the Secretary of State's sanction to the under- taking being received by the Government. 5. In consideration of the Government executing the said work, the owners agree to repay to Government the cost thereof in the following man- ner : every owner of a lot of land situate on the East side of Beach Street will pay to Government a sum not exceeding sixty-five cents [65 cents] for each and every square foot of land reclaimed between his present lot and the inner edge of the Quay, and between the extended boundary lines of his present lot to the Quay. 6. The said cost has been calculated so as to cover that poi-tion of the reclamation which is appropriated for the Quay approaches and Jetties, and the construction of the Quay and Jetties, and Government will contribute iu the same proportion as the owners for that portion of the • reclaimed land lying between the Government Offices and the Quay, and also for that portion of any land reclaimed at the end of any Ghaut and lying between such Ghaut and the Quay, and in the event of the said work being com- pleted for less then the said calciilated cost. Government will make a reason- able proportioriate deduction from the said sum of sixty-five cents [•? — 6.5 cents] per square foot. 7. The said payment of sixty-five cents per square foot shall be made by the owners as the reclamation progresses, and at siich times, and in such poi-tions as Government may require, but tv/enty days' notice of every pay- ment shall be given by Government to the owners. 8. On failure by any of the owners to pay any instalment of the said sum of sixty-five cents [6.5 cents] per square foot, interest on the amount for which due notice of payment shall have been given to the owners or any of them at the rate of nine per centum per annum shall be added to the said instalment. 9. On the completion of the said reclamation and Quay and on pay- ment of all the said instalments, Government will give to each of the owners a grant in fee simple of the portion of land lying between his present lot and the Quay, but such grant will contain a reservation in favour of Government of "a sum of one dollar and fifty cents [$1.50] as quit- rent per annum for every one thousand sqiiare feet of land or fraction thereof therein granted, SlDGEEAVES, C.J. 1885. Wemtss V. Attoknet- GrENEKAL. 20 THE SUPREME COURT. SiDGKEAVES C.J. 1885. Wemtss V. Attorney- General, lit. All the reclaimed land lying between the said Qnay and the present lots on the East side of Beach Street which shall not be paid for as herein- before mentioned, or as provided in the nest sncceeding paragraph of this agreement shall be Government property, and shall be sold in such manner and at snch prices as the Government ma.y decide, and all instalments already paid sliall thereupon be forfeited, and all claims for compensation [ if any ] in respect of any damage done or alleged to be done to such prepent lots or any of them shall thereupon be deemed to be waived and released to the Government by the party or parties so being in default. 11. The Government will appoint a Committee to consider and decide whetherany of the owners are unable, owing to want of pecuniary resources to pay any instalment, and in the event of the said Committee deciding that any of the owners are so unable to pay any such instalment in the manner required by the Government, the Government will give time to such ownei for the repayment of the said instalment an d interest on the amount of the said instalment at the rate of seven per centum per annum shall be added to the said instalment, and the said instalment and interest shall be paid, if not paid before, at the expiration of twelve years from the date of the com- mencement of the reclamation work, but the aggregate amount of all such instalments for which time shall be so given to the owners for repayment shall not exceed in the whole the sum of one hundred and fifty thousand dollars [150,000 J. 12. Every grant given to any of the owners under the provisions of the 9th pai'agi'aph of this agreement, and every grant given to a purchaser under the pro^-isions of the 10th and 11th paragraphs of this agreement shall contain a covenant by the grantee for himself, his heirs, executors, adminis- trators and assigns that he or they will not erect or suffer to be erected along the Quay front of the said reclaimed land any building or buildings without first submitting to the Government a plan showing the style and elevation of the buildings and obtaining the approval of Government for the same, and no such buildings shall be erected unless the approval of Government, in wi-iting, be first obtaineil for the same. 13. The prospective boundary lines between the different lots from the present frontages of the owners up to the said Quay will be defined and marked by the Surveyor- General, and in the event of any dispute between adjoining occupants as to the directions which these prolongations of bound- aries shall take the same will be left to the decision of Government. In Witness Whereof, the said parties have hereunto set their hands, the day and year first above written. Here follow the signatures. I. Extract pkom thk Register op Grants op Lands, 1st August, 1801. Date. No. 2;34. To whom Granted. Mr. Jnlin Colhoun. Article. a ]necc of Ground. Measui'ement and Descx-iption. Boiimlcd .I."; follows ; — Ea^t 100 feet hv the sea. West 107 feet ' by liencli .Street. North 80 feet liy Mr. Mcliityre's yvouiitl Soutli soft, hy the VAv.mt. Estimated lo rontain .">8.j square jumbahs. Situations and Remarks. East side of Beacli Street subject to one dollar' quit-rent annunllj'. STRAITS SETTLEMENTS. 21 No. 122. Gbant of Land. J- STRAITS SETTLEMENTS. [Signed] A. E. H. Anson,. * Administrator of the Government. ViCTOEiA, l:iy the Grace of God of the United Kingdom of Gi'eat Bi-itaiu and Ii'eland, Queen, Defender of tlie Faith, to all to whom these Presents shall come, Greeting : Know Yejihat for good considerations Us thereunto moving We, for Us, our Heirsj and Successors do hereby granb unto Tuan Syed Oosman his Heirs and Assigns : All that piece of land situate in George Town, Pi'ince of Wales Island, containing an area of Seventeen thousand One hundred and Sixty-eight square feet, and bounded as follows : — East — )5y the sea — Forty- six feet, AVest — by the said Tuan Syed Oosiuan's land — Fifty-three and a half feet. North — by Forbes Scott Bru-\vn's laud— Three hundred and fifty-six feet. South — by Messrs. Eraser & Co.'s land — Three hundred and seventy- one feet. As the same is delineated in the plan endorsed hereon, with all the rights and appurtenances thereto belonging : To have and to hold the same unto the said Tuan Syed Oosman, his Heirs and Assigns for ever. In witness whereof, His Excellency the Administrator of the Govern- ment of the Straits Settlements hath hereunto set his hand, and caused the Public Seal of the said Colony to be affixed, this Sixteenth day of June in the year of Our Lord One thousand Eight himdred and Seventy-one. By His Excellency's Command, [Signed] ARTHUR N. BIRCH, Acting Lieatenant-Guvertior. SlDGREAVES, C.J. 1885. "Wemtss V. Attoenbt- Genbeal. Scale 100 feet to an inch. Oeorge Town. No. 6,758 Area 17.168 Square feet. [Signed] JOHN B. PEEL, Assistant Surveyor, for the Surveyor-General, Straits Settlements. 22 THE SUPREME COURT. SiDGBEAVES, JSJ-Q. 123. K. Voa-' Gkant op Land. ^- STRAITS SETTLEMENTS. Wemtss [Signed] A. E. H. ANSON, "■ Administrator of the Government. "g'^eeal ' Victoria, by tlie Grace of God of the United Kingdom of Great Britain '^' ' and Ireland, Queen, Defender of tie Faith, to all to whom these Presents shall come, Greeting : Know Ye. that for good considerations Us thereunto moving We, for Us our Heirs and Successors, do hereby grant unto Tuan Syed Oosman, his Heirs and Assigns : All that piece of land situate in George Town, Prince of Wales Island, containing an area of Two thousand Eight Jiundred and Seventy square feet, and bounded as follows : — East — by the said Tuan Syed Oosman's land — Fifty-thi'ee and a half feet, West — by the said Tuan Syed Oosman's land — Fifty-one feet. North — by Forbes Scott Brown's land — Sixty-six feet. South — by Messrs. Eraser & Co.'s land — Forty-eight feet. As the same is delineated in the plan endorsed hereon, with all the rights and appiirtenances thereto belonging : To have and to hold the same unto the said Tuan Syed Oosman, his Heirs and Assigns for ever. In witness whereof, His Excellency the Administrator of the Govern- ment of the Straits Settlements hath hereunto set his hand and caused the Public Seal of the said Colony to be affixed, this Sixteenth day of June in the year of our Lord One thousand Eight hundred and Seventy-one. L. S. By His Excellency's Command, [Signed] ARTHUR N. BIRCH, Adhuj Lieutenant- GoveiTucr. <-. -\ / \ V <' \. \ \ % \ Scale 100 feet to an inch. Oeorye Town. No. 0,8iJ7 Area 2,S7<) Square feci. [Signed] JOHN B. PEEL, A^aistant Suirciinr. for the Surveyor-General, SU'iiiU Settlements. STRAITS SETTLEMENTS. 23 i88n. Weiiyss V. Attobney- Geneeal. -Soss for tlie defendant contended — [I.] That the lease of 15th Simbeaves. November, 1883, [C] was not a renewed lease, but a new lease of *^"'^- new premises — the Godown No. 37, Beach Street, was leased by A. with portion of the lands reserved to the lessor — the covenant for renewal was in respect of those premises only — the lease covenanted to be given by way of renewal was also to be on the same terms and conditions, except as to the rent which was to be settled by_ arbitrators. The lease of 15th November, 1883, [C] was a lease of something- very different— the Godown No. 37 was given up, and the lands at the back which bad been reserved, were leased in its place — the covenants and conditions in the two leases, as also the rights of the lessee on the sea frontage were entirely different. If the lessee chose to take new lands and on new terms, he could not say it was in pursuance of covenant for renewal in the old lease. The plaintiff could not have com- pelled his lessor to grant him such a lease on the covenant for renewal, Finch v. Underwood, 2 L. R. Ch. Div. 310 ; Badin v. Bidwell, 18 L. R. Ch. Div. 238 ; Gorbett v. Plowden, 2.5 L. R. Ch. Div. 678. The lessee having taken a new lease, he should have enquired as to whether his lessor had not changed his position — he could then have discovered the agreement of 29th November, 1882, and the rights of the Crown to make the reclamation thereunder. [II.] That the Crown was entitled to the foreshore and to use it for the benefit of the public ; the plaintiff's loss as an individual was counter-balanced by his gain as one of the public. Phear o?i Waters, 44, and for any loss he would recover of his lessor, Woodfall [;i2ai Ed.] 88 ; Wright v. CMs, 19 L. J. C. P. 60; Ford V. Tiley, 6 B. & C. 325. The accretions belonged to the Crown. Grant No. 234 described the land by metes and bounds, and shewed the plaintiff was entitled to 80 feet from Beach Street to the sea, and that was the then high-water mark. In construing grants from the Crown it was to be construed most strictly against the grantee, and nothing passed which was not specifically mentioned. Feather v. Queen, 6 B. & S. 283; Hall on Sea Shores, 17 [3rd Ed.]. From the accretions, seawards from the 80 feet, the plaintiff's predecessors had taken out grants [J. & K.] The accretions beyond the red line shewed by those grants was the Crown's, and mere user by the plaintiff was not sufficient to establish a right in him against the Crown. Attorney-General v. Ghamberlaine, 6 Jur. [N. S.] 745. ■ Thomas \_Presgrave with him] for the plaintiff contended [I.] that the lease C. was a renewal; that it was true, part of Beach Street premises had been given up, but under the old lease they had a right of way and access to the sea. The reserved piece they had acquired [B. 2] a year or two before lease C. The defend- ant in paragraph one of his statement of defence admitted the present lease was a renewal. The giving up of the Beach Street godown was nothing, the effect was the same as if they had taken a lease and then re-assigned those godowris to the lessors. The cases cited on this point were all distinguishable as being 2-1 iKE SUPREME COURT. SlDGREAVES, C. J. 1885. "Wemtss V. Attornet- GliNEEAL. between lessor and lessee, Bo_Qg v. Midland Railway Co., 4 L. R. Eq. 310. They were in possession, and the Crown should have enquired as to their rights. Williams v. Wilcox, 8 Ad. & E. 314; Wright V. Colls, 8 C. B. 150; Wood/all L. & T. 120. The agree- ment of 29th November, 1882, [H.] only bound the reversion, Woodfall, 61 . [II.] Their boundary was the red line, and they were well within it. The accretions beyond, having been formed gradually belonged to them — the Crown was therefore a tres- passer, Scrattnn v. Brown, 4 B. & C. 485. [III.] As a littoral pro- prietor they had a private access to the ssa which they had been deprived of, and were entitled to damages. LyoJi v. Fishmongers' Co., 1 L. E. App. 66'I ; Rose v. Groves, 5 Man. '& G. 613 ; Duke of Duccleuch v. Metropolitan Board of Works, 5 L. E. Eng. & Ir. Appls. 418; Mdropolitim Board of Works v. McCarthy, 7 L. R. Eng. & Ir. App. 243; Rkx v. Ward, 4 Ad. & E. 384; Goulson on Water, 14, 33. Ross in reply, contended the question here was not a right of navigation, btit of pi'ivate access, but no case had been cited to shew a littoral proprietor had a pi-ivate right of access, or if deprived of it he was entitled to redress. Lyon v. Fishmongers'' Co., which was relied on wns the case of a riparian proprietor and was considered and explained in Bell y. Corporation of Quebec, h L. R. App. Ca. 84, and Fri.tz v. Hobson, 14 L. R. Ch. Div. 542. He* submitted the case of Kearns v. Cordwainers' Co., 6 C. B. [N. S.] 388, and Blundell v. Cattera/l, 5 B. & Ad. 268, were against the plaintiff. A /ii/orai proprietor, in fact, had no greater rights on the foreshore than the general public. As to the second point, Scraiton v. Broivn was not applicable as the land here was described by definite measurements. As to the alleged admission of the renewal in paragraph one of the statement of defence it was qualified by calling for production and inspection of the lease, and on production, it was found to be different from the old lease, and to be based on the letters E. and F. Sidgreaves, C. J, said this was so. Cur. Adv. Yult. 30th March, Sidgreaves, C. J. The petitioner is an Engineer and Shipwright, Boiler-maker and Iron founder, of No. 37, Beach Street, Penang, and alleges in his petition that he has for the last seven years under his present firm, or in partnership with his former partners, carried on business at the above address upon land and premises bounded by the sea and harbour of George Town, Penang, which he leased from the owner of the freehold of the said land under certain ancient grants from the Crown, which by the description therein contained give " the sea" as the Eastern boundary [by those words] of the land thereby vested in fee, in the respective grantees thereof. This statement is traversed by the defendant, and, as a matter of fact, the boundaries as given in the original Grant of 1802 define the boundaries of 37, Beach Street, thus : — " Bounded as follows,-^East 106 feet by the Sea; West 107 feet by Beach Street; North 80 feet by Mclntyre's ground; South SO feet by the Ghaut, estimated to contain 58 square jumbahs." Attobney- Geneual. STRxVlTS SETTLEMENTS. 25 In the second paragraph of the petition, the petitioner alleges Sidgbeaves, that he has leased from the present owners, in fee, part of the ^'i.- premises JSTo. 37, Beach Street, described as " all that piece of land situate and being the back pa,rt of the premises numbered 37, Wemtss Beach Street, in Penang, on the sea side thereof, outside and adjoining the wall of the present godowns, and extending from that godown to the sea upon whicli the offices, store-rooujs, machi- nery, working-shops and slip of the said lessee now stand, and as the same is now occupied by him, together with the right of way adjoining the southern portion of the said godown from the sea to Beach Street, either by the land from Beach Street,. or by the sea, and whether by hand or bullock-carts, horses or by foot, or by day, or by night, wben necessary to do so, with the right of the approaches of boats or vessels to tlie foreshore or wharf and laud- ing place of the said premises fur tlie purpose of docking and repairing boats and vessels, and of landing or shipping machinery and other wares, goods, and merchandise, with all the privileges and appurtenances to the said land belonging.'^ The third paragraph of the petition alleges that " his lessors had, under their grants from the Crown to their predecessoi's in title, good right and full power to make the above mentioned lease to your petitioner, with the privileges of access to and egress by sea from the land and premises thereby leased, by navigation thereto and therefrom, which he has hitherto enjoyed as herein- after mentioned." The petitioner further alleges that under clauses fcr building, contained in his previous leases, he has erected large oifices and store-houses, engine-works, and a wharf and a channel for repair- ing vessels and steam-ships, having enjoyed, access and egress to and from the premises by sea during his occupancy thereof, and during such time exercised the right of navigation over the sea to the shore at his premises, in order that he might overhaul, dock, and repair vessels brought by sea thereto, and beached on, or brought alongside his premises, for the purpose of his trade or business. Since the original Grant of No. 234< in 1802, the sea which at that time came up to within 80 feet from the thereby demised premises No. 37, Beach Street, has gradually receded ; and before the Eeclamation Works were commenced, it is admitted that the line of the medium high-tides was 15 feet, 3 inches, inside" the red boundary line referred to in the 7th para, of defendant's answer, as forming petitioner's Eastern boundary under Grant No. 122 :— " The petitioner alleges that the land forming the seaward portion of the premises, from time to time, since the original grant of the land adjoining Beach Street, has been de die in diem, and by slow and gradual imperceptible projective subsidence and accretion of ooze, mud, and matter, and by the sea having imperceptibly and daily, gradually receded therefrom, and by gradual and impercepjible increase of soil for a long period cast up and settled from the daily flux and reflux of the tides and waves of the sea, in and upon and against the land comprised in such original grant and the same when, a,nd as it was so daily and imperceptibly formed, became and formed part of the land comprised in such original grant, and alleges that his lessors as o-rantces from the Crown, and he as- lessee under them of the seaward portion ■M THE SUPREME COURT. SiDGREAvES, of the Said lot are entitled to tlie use, possession, and occupation of the land C. J. lyino- between the high springs and the ordinary tidal low-water mark, and, 1885, if necesstiry, to nse and occupy the same, apart and distinguished from his right as an occupier of land in the sea shore, and also as one of the public of VVemyss tijg Island of Penang, to navigate to and from the shore in harbom- of George ■"- Town, and of egress and regress and right of way to the shore now covered Attorney- , ^j^^ Reclamation Works. That the land now forming your petitioner's (jENeral. pj.gmiges and the sea and shore adjoining thereto, have been previously to your petitioner's occupancy thereof, used by the owners and occupiers of the said premises from time immemorial for the purpose of beaching vessels, fishing boats and prahus and repairing the same, there having always been at this spot a natural inlet from the sea." Petitioner further alleges that the right of navigation over the sea to his premises, and access and egress by the sea thereto and therefrom, is of the utmost pecuriiary value and importance to him, forming, in fact, the sole and intiinsic value of his works to him ; and were he deprived thereof, he would not only sustain grievous and permanent and irreparable loss and damage in his business, but would have to quit his premises and seek another site elsewhere. That he claims a right to the navigation of the sea opposite his present frontage as it existed previous to the said Eeclaniation Works being carried across them, and to access to the shore and egi'ess therefrom by sea as one of the public resident in Penang, in addition to his further claim as lessee. In his pleas the defendant states that in 1867 disputes arose between the proprietors of land on the Bast side of Beach Street and the Crown, as to their respective rights in the land occupied by the former in excess of the measurements contained in the different Grovernment Grants under which they claimed. Such disputes, it is alleged, were finally settled by an Agree- ment, dated the 10th May, 18(39, the effect of which is set out. At the hearing of the cause, however, this document was not forthcoming, and although a copy was tendered in evidence, on its admissibility being objected to, it was withdrawn, so that I am unable to take it into consideration. The defendant admits the carrying out of the Reclamation Works, and says that they have been commenced and are carried out under the provisions of an Agreement, dated the 29th day of November, 1882, and made between the Government of the one part, and the several owners of the lots of land on the East side of Beach Street of the other part. That the petitioner's lessors as such owners as aforesaid, executed the said agreement, and that the petitioner as their lessee is estopped from making any claim. By this agreement, however, which was not under seal, the lessors could not do more than bind their own reversionary interest ; whatever rights the petitioner had under his lease from them could not be affected by it. The petitioner further alleges that the said Reclamation Works, besides inflicting great and irreparable loss upon him, and depriving him of access, ingress and regress by sea, and of the use of the shore, are a trespass upon the land vested in him under his lease from the owners in fee thereof; that such Reclamation Works are not a general public benefit to this Island and the STRAITS SETTLEMENTS. ^... i,j.*v^ iou jjMJi tu^i cL|jia WL LurxciiLL.iiiU & cl,iia vvtJl , UWK that petitioner leased the premises so occupied by Chin Tuan and Lee, Chin Soon, under a six yeiirs community of George Town, and that, in effect, they are so far a public nuisance as not only will the general public be unable to beach boats _ a.nd vessels thereon, but they will be deprived of the right of navigation, access and egress over the sea, which they at present rightfully enjoy. In the 1st paragraph of defendant's answer, defendant admits him from Lee yeiu's' lease termi- nating in July, 1889, and made in pursuance of a covenant contained in a prior expired lease, but for greater certainty defendant craved leave to refer to the said lease when produced. The lease was referred to, and it was stated to be made " in pur- suance of the proviso for renewal in the former lease [which the said John Leith Wemyss is the assignee of the original lessees] and under which he held the premises hereinafter mentioned, dated the 2nd day of July, 1877." On reference to the deed, Mr. Ross contended that the lease of the 16th November, 1883, to the petitioner, was not to a continuance of the lease under the covenant for renewal running with the land, but was a new lease of new premises with different covenants ; and that assuming that the lessors had parted with their property and right by the Agreement with the Government of the 29th November, 1882, this new leafe was inoperative. The original lease under which the petitioner claims, wns made on the 2nd July, 1877; and it conveyed the whole of the premises, except a small reserved portion at the back, measuriug 3fi feet by 30 feet. This reserved, portinn, however, came into the possession of the petitioner by assignment of the 12th Julj-, 1879, subject to the same covenants as the original lease. The petitioner was then by various assignments, in possession of the whole of the property on the terms contained in the lease of 2nd July, 1877, and entitled to a further lease for six years on the same terms on giving six mouths' notice of his intention, which it is not disputed that he did. This covenant for renewal was carried out by the lease of 15th November, 1883, and as the petitioner found the godown and offices in Beach Street in such a bad state of repair as to be usuless to him, he gave them up and took a renewal of the lease of the rest of the premises in pur- suance, as it appears to me, of the proviso for renewal contained in the original lease. It becomes important, in the first place, to define the exact boundaries of the land in the occupation of the petitioner under the three grants before referred to. It will be seen that petitioner claims that the whole of the land between high and low-water mark accrued to him under the terms of his grant, and that the Reclamation Works were carried out on land in his occupation and so constituted a trespass. This proposition is quite untenable, however. The case of The Attorney-General v. Ghambers, 4 De G. M. & G. 206, decided that the shore is that portion of the soil which lies between high-water and low-water mark at ordinary tides. The property in the sea-shore belongs to the Crown ; and ■ it call only vest in the subject by ancient Charter or Grant from the SiDGHKAVES, C.J. 1885. Wemyss V. Attokney- GrENEEAL. 2S THE SUPREME COURT. C.J. ]885. Wemtss V. Attoenbt- Genekal. SiDGBHAVES, Crown, of wliicli there is no proof whatever in the present instance. ^ ' It would be difSoult to produce any, inasmuch as the Crown itself has been restrained and rendered incapable of alienating any portion of the sea shore since the passing of the Statute 1 Anne, Chap. 7. It being claimed by the petitioner and admitted by the defendant, that the petitioner's Eastern boundary extended to the red line boundary and the ordinary high-water mark being inside that boundary, the whole of the land outside and to the East of thiit red boundary line, indisputably belonged to the Crown. Upon this land so belonging to the Cjown the Reclamation Works were carried out. The position of the Crown is thus defined in Hall on the Sea Shore, 2nd Edn., p. 181 : "B-veryper- "manent occupation of the shore by exclusion of the sea is an " embankment or in-takiug; and every owner of the soil whether the "King or subject proving his ownership has a right to appropi-iate " such soil ; but subject and without prejudice to existing rights of "others." We have to consider then whether any existing rights of the petitioner have been prejudiced by the action of the Government in this matter. The Government not having obtained any Legislative sanction for the Reclamation Scheme, can claim no better right than a private proprietor could have, to make a similar use of his lands. As such proprietors they have by Grant 122, given the petitioner's lessors a boundary by the sea, and, as before stated, at the time of the Reclamation Works being commenced, the sea came inside such boundary. The Grant was given manifestly and taken for the purpose of making use of such boundary and the Grantors must have been aware of it at the time. They have now how- ever, by building these Reclamation Works on their own land between high and low-water mark, deprived the petitioner of the boundai-y which they had previously given him, and cut him off from all access to the sea, and so deprived him of what was the main consideration for the original grant. Finding, as I do, that his rights were not affected by the Agreement of the 29th No- vember, 1882, he occi^pies the position which the original grantee of the premises would have occupied previously to any such agreement being entered into. The position of a proprietor of land on the sea shore, though •widely different from that of a riparian proprietor where the river is a non-tidal one, is precisely analogous to that of a pro- prietor on the bank of a tidal navigable river. In the former case, the riparian proprietor on each bank has a property in the river extending to the middle of the stream, but in the latter the same property only as he would have as an occupier of land adjacent to the sea shore. The same law, therefore, which governs the case of a proprietor on a tidal navigable river must apply to the proprietor of lands adjacent to the sea shore. • " The King of England's exclusive dominion not only extends over the open seas, bat also over all erceks, ai'nis of the sea, havens, ports and tide rivers as far as the reach of the tide around the coasts of the Kingdom. All waters, in short, wluch communicate with the sea and are within the flux and retiux of its tides are part and pared of tlic sea itself, and subject in all res- pects to the same ownership," Hall on ihe Boa Shore, p. 3. ' STRAITS SETTLEMENTS. 29 The petitioner, being- in the occupation of land thus adJL „ the sea, has a private right of access to and egress from the sea totally distinct from his public right to the fishery and navigation therein— none of the public could make use of his land for that purpose, and it could be regarded, therefore, in no sense as a public right. It is on the invasion of this private right that the peti- tioner's case, I consider, must finally rest. The case of Lyon v. The Fishmongers' Co., L. E., H. of L. Cases, Vol. I. p. 662, revers- ing the decision of the Lords Justices, has settled the law upon the matter as regards the owners of lands adjoining tidal navigable rivers. It establishes that " the right of navigating a "tidal river is common to the subjects of the Realm, but it may " be connected with a right to the exclusive access to particular "land on the bank of the river, and the latter is a private right "to the enjoyment of the land, the invasion of which may form "the ground for an action for damages or for an injunction." In his judgment, the Lord Chancellor [Cairns], saj^s : — " Unquestionably the owner of a wharf on the river bank has, like every other siihject of the Realm the right of navigating the river as one of the public. This however, is not a right coining to him qua owner or occupier of any lands on the bank, nor is it a right which per se he enjoys in a manner different from any other member of the public. But when this right of navigation is connected with, an exclusive access to and from a particular wharf it assumes a ver;^ different character. It ceases to be a right held in common with the rest of the public, for other members of the public have no access to or from the river at the particular place, and it becomes a form of enjoyment of the laud and of the river in connection with the land the distm-b- ance of which may be vindicated in damages by an action or restrained by an injunction." And per Lord Selborne ; " Even if it could be shown that the riparian rights of the porprietor of land on the bank of a tidal navigable river are not similar to those of a pro- prietor above the flow of the tide, I should be of opinion that he had a right to the river frontage belonging by nature to hi« land, nlthmigh the only practical advantage of it might consist in the access thereby afforded him to the water for the purpose of using when upon the water the i-ight of naidga- tion common to him with the rest of the public. Such a right of access is his only, and is his by virtue and in respect of his riparian property ; it is wholly distinct from the public right of navigation." In the words of Lord Justice Mbllish, "the right of embarking and disembarking and' so using his property a.s a wharf for the Joa.ding and unloading of goods is a most valuable right." In the present instance there has been an invasion of a valuable private right of the petitioner in a similar way, and one for which he is entitled to ' ' SiJJU-KJL'AVKS, C.J. 1885. Wemtss a ttoene y- Geneeal. claim damages. Without prejudice to the rights of the defendant to appeal, the question as to the amount of damages was referred to arbitra- tion, and the ai-bitral;oi-s awarded the plaintiff 9:^-5,000. Bonser [Attorney-General] thereafter appealed against the judgment of the Court below, oti the following grounds : — I. That the Court was wrong in deciding that the petitioner as lessee of the land adjoining the sea had a private right of access to and egress from the sea, and that for the invasion of such private right he was entitled to damages, !!0 THE SUPREME OOtJET. FoED, C. J. II. That the Court was wi-ong in deciding that the lease, dated the 15th Wood ^ ^ day of November, 1883, tinder which the petitioner was in oociipation, was _ a Sheriff. ) 18S5. V. Attornet- GrENEEAL. ■J- renewed lease granted in pursuance of the covenant for renewal contained in the former lease, dated the 3rd day of July, 1877. III. That the lease of the 15th of November, 1883, having been executed by the Jessors a;fter they executed the reclamation agreement, dated the 29th November, 1882, the rights granted by such lease to the petitioner were subject to the rights of the Grown under the said reclamation agreement. IV. That the petitioner if entitled to any damages was not entitled to such damages from the Crown, but should have sued his lessors for the same. 16ih June, 1886. The appeal now came on to be heard before the Court of Appeal, consisting of Ford, C.J., Wood a.nd Sheriff, J.J. Bonser [Att'jr}iey-General'], D. Logan [Solicitor-General], and Ross, for appellant. Van Someren, Thomas, and Fresgrave, for respondent. Bonser. This is an appeal from the judgment of His Honor the late Chief Justice, Sir Thomas Sidgreaves, by which he found the Crown was liable in damages to the respondent by reason of its having erected certain works at the baok or sea side of Beach Street, and thereby deprived, as it was alleged, the appellant of his access to the sea. The judgment of the Court below rests on a supposed analogy between the rights of a proprietor on the sea shore, and that of one on a tidal navigable river. The words of the learned Chief Justice in his judgment are " the position of a "proprietor of land on the sea shore though widely different from " that of a riparian proprietor where the river is a non-tidal one, " is precisely analogous to that of a proprietor on the bank of a "tidal navigahle river," and then applying the law as laid down in the case of Lyon v. Fishmojigers' Co., 1 L. R., Ap. Ca. 662, finds the plaintiff, the respondent, is entitled to damages for his loss of access. Now, on looking at the authorities, it will be found that this is the first time such a doctrine has been enunciated, and they are if anything the other way. We propose, therefore, to shew a difference between the rights of. such two classes of proprietors. The first difference to be found is, that a littoral proprietor may embank against the sea, although he may thereby cause injury to his neighbour, while a riparian proprietor cannot. Rerjina y. Gomm'ssioiier.t of Pagham Level, 8 B. & C. 355. The Commissioners in that case, who must be taken to be the owners of the land, embanked against the sea, thereby causing the sea to flow with greater violence on the adjoining land and doing injury to it. It was held the injured party was not entitled to damages. Lord Tenhrflen, C.J., at pages 360-1, says: " It is contended that this new groyne has caused the sea to flow with greater violence against the land of Mr. Oousens, and made a. greater inroad upon it than possibly it might otherwise have done, and that as the Commis- sioners acting for the benefit of the level have occasioned this damage they must make compensation for it. It may be conceived that such is the effect of the groyne ; but the sea is the common enemy to all proprietors on that part of the coast, and I cannot .see that the Commissioners acting for the common mterest of several land-owners are, as to this question, in a different situation from any individual proprietor. Now, is there authority for sayinc that any proprietor of land, exposed to the inroads of the sea may not endea"- vour to protect himself by erecting a groyne or other reasonable defence STRAITS SETTLEMENTS. 31 C. J. 'OOD ~) & SJ.J although it may render it necessary for the owner of the adjoining land to' do Ford tJie nice . I certainly am not aware of any, authority or principal of law which Wooj can prevent him from so doing The extent to which the principle & f must be earned, if once admitted, satisfies me that it cannot he sustained in ShekifpJ reason or m law. I am, therefore, of opinion that the only safe rule to lay aown IS this, that each land-owner for himself or the Commissioners acting tor several land-owners, may erect such defences for the land imder their care as the necessity of the case requires, leaving it to others, in like manner, to protect themselves against the common enemy." 3885, Wemtss V. Attoenet- G-ESEEAL. Baylei/ J., [p. 361-2 | says: " It seems to me that every land-owner exposed to the inroads of the sea has a right to protect himself, and is justified in making and erecting such works as are necessary for that purpose, and the Commissioners may erect such defences as are necessary for that purpose, and the Commissioners may erect such defences as are necessary for the land entrusted to their super- intendence It has heen argued that Mr. CousenS having sustained damage from the groyne erected by the Commissioners is entitled to com- pensation. I do not agree to that as an abstract proposition. If a man sustain damage by a wrongful act of another, he .is entitled to a remedy ; but to give that title, two things must concur, damage to himself and a wrong committed by the other : that he has sustained damage is not of itself suffi- cient. Now here, Mr. Cousens may have sustained damage, but the Com- missioners have done no wrong." Then, in Rex v. Traford, 1 B & Ad. 874, whicli was the case of an embankment on a river, we find Lord Tunterden again saying [p. 887-888] : " It has long been established that the ordinary course of water cannot be lawfully changed or obstructed for the benefit of one class of persons to the injury of another. Unless, therefore, a sound distinction can be made between the ordinary course of water flowing in a bounded channel at all usual- seasons, and the extraordinary course which its superabundant quantity has been, accustomed to take at particular seasons, the creation and continu- ance of these feeders cannot be justified. No case was Jited, or has been found that will support such a construction." In that case the dnfendant relied on the Pagham Cdne already cited, but the Court distinguished it. Lord Tenterdfiii sa.ying [p. 888 ]. " The Pagham Case quoted in the argument for the defendant is of ;i very different kind. It is a well-known fact that the sea occasionally by some change proceeding from natural and well-known causes makes gradual inroads on parts of a coast, which had been free from its v/ater for centuries. On such occui'rences it has been compai'ed, and justly compared, toasommoii enemy against which every person may defend himself as he can ; but this is perfectly different from an occasional course of superabundant inland water flowing in the same direction, whenever the occasion happens, and the ordi- nary channel is become insufiicient to caiTy it off. In the one case if the works be successful, the water is prevented from coming where within time of memory at least it never has come ; in the other it is pi-evented from passing in the way in which when the occasion happened, it had been always accus- tomed to pass." These oases shew there is a difference between a riparian a?id littoral proprietor, and the learned Chief Justice below was there- fore wrong in saying these rights were '" precisely analogous." [ Wooil, J. Was Btix V. Trafford the case of a tidal navigable river ? ] 32 THE SUPREME COURT. POBI), C, J. Wood ~) & ^JJ Sheriff.) 1885. "NVemtss T. Attoenet- Generai,. No — but the Pagham Case bavino' failed to be extended to a non-tidal rive:-, it was attem23ted to be applied to a tidal navi- gable river in a subsequent case. The case is that of the Attoriieii-General v. Lonsdale, 7 L. R. Eq. 377. It was attempted in that case to extend the rights of a proprietor embanking against the sea to that of one embanking against a tidal estuary. The river in that case was the river Eden, a tidal navigable river. The plaintiff there complained that the defendant had put up a bulwark and jett3', which caused the water to flow with greater violence than before. Jessel. Q.C., arguendo, at page 382, says; '■ The place in question is what in law is considered an estuary or arm of the sea, since the tide runs up to the lomisin quo, and according to the law as decided in Regina v. Pagham Commissioners, a man may erect any works he finds necessary for the protection of his land against the sea, notwithstanding that an injury may thereby be caxised to his neighbour's land. In Viner's Abr. Prerog, of the King, it is stated that every water which flows or re-flows is called an arm of the sea; so far as it flows, such liver participates of the nature of the sea and is, therefore, said to be an arm of the sea. The defend- ant was conseqiiently justified in erecting this jetty, which is proved to be for the protection of his land from the encroachments of the tide." Sir RouNDELL Palmer argued on the other side, so that we may take it that the case was thoroughly sifted. He says [ p. 385 ] : " As to the alleged distinction between a tidal and non- tidal stream the difference is wholly imaginary, and if anything the injury is greater upon a tidal river. It would be absurd to suppose that a line could be drawn at the termination of a tidal stream such for instance as Teddington upon Thames above which a riparian proprietor should have rights which one below would not have." In a considered judgment, Mnlins, V. C. [page 387-8] says : " Supposing this not to be a tidal river, or that the rights of riparian proprietors on tidal and non-tidal rivers are the same, the law is now settled that no riparian puaprietor can without the consent of the opposite proprietor erect any buildings or make any change in the alveus of a river Unless, therefore, the fact of the Eden being a tidal river distinguishes the present case, these authorities are conclusive against the defendant Does then the fact of the river being a tidal river make any difference? I am of opinion that it does not. It was strongly contended by the Counsel for the defendant that the place where the jetty is erected is an estuary and tlierefore an arm of the sea, and that the defendant has consequently all the rights of protecting his land which he would have had if it had been on the sea shore instead of the river Eden, and Regiiia v. Pagham Commissioners was cited This woald have been conclusive for the defendant if his land had been on the sea shore, but is this principle applicable to a riparian proprietor on a navigable river P It must be borne in mind that the greatest work of man must be insignificant as compured with the power of the sea, but that this is not so \vith reference to a navigable river. If the principle contended for were sustainable, it would follow that every riparian proprietor on a navigable river however distant from the sea, and however gentle the How of the tid(^ at the place, might throw any works into the alveus that he. might deem necessary for his protection however injiuious such works might be In a sense there is no doubt, that every water which flows and reflows is called an arm of the sea as stated in Vin. Abr. But I find no authority for the proposition contended for ; on the contrary, all the cases including those cited by the defendant's Counsel tend in the opposite direction, .1 am, therefore, of opinion upon principle and authority that a riparian proprietor on a tidal river has no greater rights against an adjoin- ing or opposite proprietor than such a proprietor on a private or non-tidal river, and that the defendant cannot therefore justify the erection of the jetty on this ground," STRAITS SETTLEMENTS. 33 [Ford, O.J. Do you understand tlie Court below meant to FoED,r'..T. state that their rights were the same in all rei^peds, or only in ^°°" | respect of the subject-matter of the decision; the right of access, Sheeifp.) egress and ingress?] isss. The Court below certainly so considered it, the words of the ,„ Court ai-e " the position of a proi:irietor of land on the sea ^ ' ' shore is preciseh/ analogous to that of a proprietor on the Attoenet- bank of a tidal navigable river." " Geneeal. \_Ford, C.J. Surely such expressions must be considered in reference to the matter iminediately before the Court ?] Not necessarily ; and we are entitled to take advantage of the learned Judge's own expressions to shew the foundation of his judgment is wi'ong. One more case will be cited, a ad it points to a second difference between the two classes of proprietors. The case is that of the Attorney-General v. Tomline, 12 Ch. Div. L. E. 214. In that case, the Crown was held to have a right to restrain a littoral proprietor from doing an act which might cause the sea to encroach. [Ford, C.J. It was there held the Crown had the right to protect its own property.] ISTot exactly, Fry, J. [p. 232-3] says: ''In Hiichuii V. Taylor, wlien before tlie Coiu-t of Appeal, the existence of tlie prerogative was refen-ed to, the Court said : " The King has probably from the very earliest times, had ;i right as part of the prerogative to defend the realm against waste of the sea, and to order construction of defences at the expense generally of those who are to be benefitted by them" I come therefore to the conclusion that there isxists in the Crown this preroga- tive right and duty, a dut}'. of course, to its subjects of which the law must tate cognizaucc, althougli the law does not enfore the pei'formance. And, if this prei'ogative aiid right exists in the Crown, it seems to me impossible to suppose that the subject can have a right to do that which the defendant i^daiius to do. It would be absurd that the subject shoiild be at liberty to destroy that which the Crown is bound to protect There are, I should observe, traces in the earlier books of some public right in the banks of the sea I do not rely upon either of those authorities as being con- clusive with re,4'ard to the rights of the public; but they seem to me not unimportant as shewing that our earlier writers considered that the bank of the sea was not absolutely private property, .fi'ee from all public use, in the same way as other private land might be." The word ''bank" here does not mean the Fea shore ; the bank is the upper portion above ipedium high-water mark,, while the sea shore is that strip of land lying between medium high and low- water mark." [Wood, J. Technically called the foreshore.] Yes, as we understand it. That case was athrmed on appeal, 14 L. R, Ch. Div. '58, and it is important to observe that the defendant was only doing an act. which was but a natural use of his land. Ford, C.J. On looking into the case, I see there was there a Martello Tower ; it was wanted for the protection of the realm probably, and it was possibly in danger of being injured by the defendant's act.] The reason for the decision is clearly set out in the passage of Fry J.'s judgment already cited, and he found, as a fact, the 34 THE SUPREME COURT'. POKD, C.J Wool) ~) & [j. Sheriff.) 1885. AVemyss V. Attobney- Gkneeal. ■ defendant was only making a natural use of his land in removinor y and selling the shingles, but nevertheless his Lordship restrained him fi'om so exercising his natural rights. It would seem there- fore that it would be inconsistent for a privat_e individual, as here, to acquire a right over the foreshore, the interfering with which renders the Crown liable iii damages. Any private rights a littoral prciprietor may have, are subject to the rights of the Crown to embank against the sea. [Wood, J. For all purposes?] For purposes of protecting the realm against the sea. [Wood, J. What about the Martello Tower then ?] It only happened as an accident to be there. Ford, C.J. I expect if the Marfcello Tower had not been there, we would never have- heard of the case. Did not tliat case only decide that the Crown hiid a right to prevent an act being done, which might bring about that which it was its duty to protect the land from ? That is not the only ground on which that case went. [Ford, C.J. Do I understand you to say then, that case shews the Crown can do anything which may be for the public benefit.] Yes. [Ford, C.J. I don't so understand it.] [Sheriff, J. Should not the Crown shew a necssity first?] I admit it is, but if the Crown has the right, then it is incon- sistent that a pi-ivate person should have a right which might interfere with it. [Sheriff, J. Here they shut out the plaintiff without any necessity from the sea, and from placing a boat on it from his land.] That is a right of navigation as one of the public ; there can be no right to maintain a private action for such a claim. The claim here is for such a private right of access to the sea. There is no authority for such a claim. [Ford, C.J. One hardly wants an authority for it. There seems to liave been no occasion to raise it as probably the point was too clear.] ' • It is- for the other side, who claim the right to support it by authority. In the present case too, the plaintiff's [the respon- dent's] predecessors in title, acquiesced in the rights of the Crown by accepting grants from time to time of the accretions from tlie sea; this acknowledged the right of the Crown' over those Lmds ; how then can he claim a right inconsistent with their rights. The plaintiff claims a right of egress, and ingress over these accretions whicli form gradually as the sea i-ecedes, but his predecessors acknowledge the accretions to be the Crown's. [Ford, C.J. The plaintiff here only claims a right of access, an easement.] That is so, but such a right is inconsistent with the rights of the Crown, and can at most l3e acquired by pi,"escription. STRAITS SETTLEMENTS. 35 in of [Ford, C.J. Suppose a person have a wharf or jetty, has he no right to get to the sea by it? By.it he gets his' access, plies his boats, and loads and unloads his cargo.] There the pier wonld be his, and he has therefore the right to it. [Ford, C.J. He would be entitled to walk over it.] Certainly ; but he must have a grant for his pier. [Ford, C.J. I am assuming that ; but I only put the case reference to your contention that the rights are inconsistent.] If the plaintiff had a right of access, he would claim a right way over the accretions already accrued, and for which his predecessors have taken grants as well as over that which might hereafter accrue. [Ford, C.J. The accretions since the embankment are caused by your acts in building that embankment. I much sus- pect the reclamation here is similar to that in Singapore which was only a filling of stufp in one place, and squeezing it out in another.] Then the learned Judge below assumed that plaintiff was in the same position as if he were the owner of the fee in the land he is on — but according to his own case he is only a lessee. In Lyon V. Flahmonqms' Co. already referred to, it was held there was no difference between rights of riparian proprietors on a tidal and non-tidal river, but in both cases they are proprietors and owners of the land; and not mere lessees. That case also only dealt with and decided as to the i-ights of a riparian proprietor — and it was held that a tidal and nou-tidal river were substantially the same. There is not however, a word in the whole case as to a littoral proprietor, and the supposed right of access of such a proprietor was never alluded to, or relied on as analogous or as affording an illustration. The facts of that case were these — the plaintiff was the owner of certain freehold land and buildings on the North bank of the Thames known as Lyon's Wharf the whole of the Southern side of which fronted the river. At the Western extremity of this frontage there was an inlet which extended about fort}' feet to the Northward and formed the Western boundary of the plaintiff's property — this inlet communicated with the main river, and was called Winkworth's Hole, and at the bottom of it 'stood a wharf belonging- to the defendant-company known as Winkworth's ' Wharf. Tlie plaintiff had thus a double river frontage. The defendant-company by the erection of an embank- ment in front of their wharf [Winkworth Wharf] up to the main line of the river entirely shut out the plaintiff from using the inlet as he had previously done, and it was for this the House of Lords lield he was entitled to damages. The plaintiff and defendants were both riparian propriett)rs, and the case rests entirely on the right of such a proprietor. Snch a proprietor is, undoubtedly, entitled to an uninterrupted flow of the river along his frontage, bnt in the case alluded to the plaintiff had his access to one of his frontages interfered with. In Duke of Bucdevch v. Metropolitan Board of Works, 5 L. E. Eng. '& Ir. App. 462, 3, Lord Caibns, says : " It has appeared to me ' throughout that the property of the FOBD.O.J. Wood ~) Sheriit.) 1885. "Wemtss V. Attoenet- (tENEEAI, 30 THE SUPREME COURT. POED, C.J, Wood ") & ^J. Shbeiff.J J885. WicMYSS Attorket- Genebal. plaintiff in error in this cnse was what is commonly called riparian J propert3^ The meaning of that is, that it had a water frontage. "The meaning of its having a water frontage is this, that it had a right to the "undisturbed flow of the river which passed along the whole frontage of the property in the form in which it had formerly been accustomed to pass." [Ford, C'.J. That wns the case of the Thames Embnnkment P] Yes. The plaintiff there was a riparian proprietor, whose right to the uninterrupted flow of water was disturbed,^ and he was held entitled to damages. In Lyon v. Fi'-ua.ran- teod him such a. boundary. STRAITS SETTLEMENTS. -11 [Ford, C.J. No one gutirantees a boniidai'y evun on laiicl as it Fobd, C..T. may be removed by an eartliciuake. You gave him the land " with ^^""^ '} all the rights and appurtenances thereto belonging."' Exhibit J.] Shekut.J That only means wliat was appurteuanl;"to the laud at fho i-ssr). time of the yrufd, and which was so when the land was in the ,„ Crown ; that is before the grant. WEjiYb. [Sheriff, J. There was evidence of user avus there uotVj Attokney- Yes, but not sufficiently long enough, and then not on the '^^enekal. accretions to the land granted in ls7 1, [Exhibit J. and K.] Then as to _ objections two, three and four ; the point here is that the plaintiff does not claim under lease X., but under a lease made afier the reclamation agreement. [Sheriff, J. That is the lease of the loth November P] Yes, 15th November, 1883, [Exhibit C] [Ford, C.J. There is nothing in the agreement of 'i'Jth November, 188:^ [Exhibit H.] to destroy private rights?] No, but that agreement is (■arliei- iu point of ilato to the lease of loth November, 1»83, and tlii> question is whether the second lease is a renewal of earlier lease. [Ford, C.J. On reading througli the case I could see nothing but renewal. The lease of 1888 purports to be a renewal made under the covenant in the qriyinal lease. You have not had it set aside for fraud or otherwise.] No, but the lease cannot bind third parties. The parcels in the original lease, [Exhibit A.] nre as follows: — '■ All the godown or messuage situate and being No '-M. Beacli Street, George Town, Penang aforesaid, witli the actual and reputed rights, members, easements, and appurtenances, except and always 'reserved unto the said lessor, liis heirs, executors, administrators and assigns, u jiicce of land at the back or sea side of the said premises, and outside and adjoining the present liaek wall thereof, and measuring from the Northern wall or boundary of the said premises, thirty-six feet in breadth )jy thirty feet in length, measiu'ed from the said back wall, with liberty for tlie said lessor, his heirs, exeeiitors, administrators, and assigns, to Imild on the land so reserved as aforesaid, and with full and free liberty of egress and regress for all legitimate purposes, along, over, and through the cart-way and wharf situate along the Southern portion of the piremises hereby* demised, for tlie said lessor, his heirs, executors, administrators or assigns, and his and their agents, friends, servants and workmen, and the tenants and occupiers for the time being of the land hereby excepted, or of any building to be erected thereon, and whether to or from the sea or Beach Street aforesaid." The covenant for reneNvnl is as follows : — "And also that if the lessees, their cxeeutura. adminisl]-at(irs or assigns, sliall be desirous of taking a renewed lease of the said ^jremises for tlie fuither term of six years from the expiration of thi' said term liereljy granted, and of such desire shall, prior to the expii-ation of the said term, give to the lessnr, his executors, administrators or assigns, or leave at his or their last known place or places of business, six ealendar months' previous notiee. in writing, and shall pay the rent and .observe the several covenants and agreements herein contaiued on the part uf the lesspes, thei]- executors. a.dministratDrs, or assigns to be observed and performed up to the expiration of the said term hereby granted ; he the lessor, his executors, administrators or assigns • will, upon tiie request and at the expense of the lessees, their executors, adniiiiistrators and assigns, and upon their exeeutiug and delivering to the •lessor,, his executors, acUuiuistrators or assigns, a cuuiiterpart thereof, forth- 42 I'HE SUPREME COURT. Ford, C.J. Wood ~) & J..! SlIEKIiT.) 1885 Wemtbs V. Attobne \r- Genekal.' with execute and ilelivci' to the lessees, their executors, administrators and assigns, a renewed lease of the said premises for the term of six years, at such rent as uiiiy be, at the time of execution of such renewed lease, either a.greed upon by mutual consent, or fixed by four arbitrators, two of whom shall be chosen by the lessees, their executors, administrators or assigns, and two hj the lessor, his heirs, executors, administrators or assigns." The only tenii that is j)rovided may be changed, is the rent. A renewed lease is a similar lease as the first, altered only in so far as the proviso provides might be done. In the present ease, the only thing that might be altered, is the rent. [Ford, C.J. Not necessarily.] No, not even that, necessarily. Then Exhibit B^. is relied on, and plaintiff claims that its effect is to bring the land therein mentioned [the land excepted in lease A.] within the proviso of tlie original lease A. On 16tli Decembei-, 1882, plaintiff gives notice of his desire for a renewal, [Exhibit D.] Nothing was done under that; no counterpart was delivered nor renewed lease executed. Then comes letter E. by which the px-evious notice D., is rendered useless and is gone. The letter is promptly answered by P. and these exhibits E. and P. are stamped. [Sheriff, J. What is the stamp on a renewed lease?] The same as on an original lease. Now, if A. and C. are com- pared they will be found to be entirely different. [Ford, G.J. Why should not the parties to a renewed lease alter such things as they choose?] They might of course ; but here the lessors had previously made the agreement with us of 1882. The lease C. differs from A. in its parcels, a right of way is given, a way for oxen and beasts, for landing of machinery, beaching of boats, &c., rights not to be found in A. These words, no doubt, were put in for some reason, but the lease cannot be said to be a renewed lease on the same terms. [Wood, J. Surely if the subject-matter is the same, that is all that is required? .The general words as to "easements and appiirtenances" are not used,- but specilic words of things included in the general expression.] The enlargement of words, works perhaps to our prejudice. It possibly affected the views of the arbitrators. [Ford, C.J. What is there in it affecting your right?] [Sheriff, J. The question is does the verbiage alter the lease] The whole question here refers to the sHpway — the lease C. in words and ter.ms, gives more than A. [Wood, J. You adjnlt then that the subject-matter is the same in both ? No, I don't; I_ say the larger words are not included in the original expressions in the first lease. [Foi-d,, C.J. That is what we want you to shew us. The parties acted under a compulsory covenant.] Not so, for had the les.sor 'been sued, the Court would not have granted him specitLc performance of a lease like C Finch v Umlerwood, 2 L. R.,Ch. Div. 310. STRAITS SETTLEMENTS. -13 [Ford, C.J. You admit the tlimy given is tlie same, but the -L'^oed, C.J. extra words might prejudice the views oi' the iirhitrators 'J ^^?°° ) . t JNo; i do not admit the same thing was givuii — that is just yuEBiiT.) what I am e(.)ntendiug against. ^^''5- [Ford, C.J. The right of egress and regress is granted in Wemyss the first lease A.] v- No, that right is reserved to the lessor. Attorney- I'uird, O.J. iiut even it so, B-- gives him all that is rewerved by the exception in lease A. and <.^ purports to be made in pur- suance of A.] That is only a recital in C. which is not always consistent with fact — and as to B"-^- I sha.U refer to it later on.' I am now only dealing with A. and C. and when they come to be compared, I say they will be found so entirely different that the one cannot be said to be a renewal of the other. \_For.d, O.J. Did not the fact that the lease A. had expired when the lessor made the agreement of 18'<2 Avith the Govern- ment, bind the lessor by his covenant to renew ? ] The. agreement was made with wh before the lease A. had expired. I say, would anybody reading these two documents A . and C. say the latter was a renewal — and when we consider that in law a covenant for renewal will be construed strictly the objection receives immense strength. [Wood, J. Such a covenant is to be construed strictly inter 'partes.'] [Ford, (J.J. Not where it does not affect you.] It is impossible to say how far it will not afEect us. The effect of the letters of June 1883, E. and F. is to do away with the covenant for renewal and the notice D. , [Wood, J. The expressions in E. clearly shew the parties did not intend to do so, but acted with a view to give effect to the covenant.] Whether they intended it or not may be doubtful, but the legal effect of the letters is to waive the covenant and the notice D. Then to come to B^.. This document is not a lease. It is not signed by Tunku Muda Niah Malim, but by Habib Oosmai). Van Someren. — Habib Oosman,'as my learned friend Mr. Eoss knows and will admit, was the attorney of Tunku Muda Niah Malim. Eoss. I don'tknow it of my own knowledge ; I have heard so. [Ford, C.J. If there is any question on that subject Ave will give the respondent leave to adduce evidence on the point.] But B^- is invalid as it is not under seal. [Ford,Qi.3. That is not required u/ ply they had it iu view ?] These letters do not refer to the notice. They do not claim a right, but only submit a proposal which is accepted. [Ford, C.J. In the letter E. th« lessee refers to the lease and says he wants " to remain as allowed in the lease.'' He seems to do all in view of that lease and its provisions.] . But they do not I'efer to the notice D. and they stamp the letters as a lease from fear of the lessor withdrawing. [Ford, C.J. I don't see the reference you wish us to draw from the stamps. Please repeat what you said.] T say that the plaintiff knew he could only sue his landlord on E. and E,, and could have no cliuin on t-lie covenant in the old lease, because it had been varied and waived l)y arrangemenb made by those letters, and the fact that he stamps those letters shews clearly lie so knew it. The terms of the new intended lease were then altered from the old lease, and Finch v. Underwoor/ comes in to shew that unless the terms are precisely the same there can be no renewal. [Wood, J. Do .j'ou mean that the landlord must have his pound of flesh and nothing more nor less?] Yes. [Sheriff, J. Was it not within the power of the parties to modify their terms ?] Yes, but then it would not be a renewed lease. [Ford, C.J. In a covenant for renewal for lives tliere inust be a change as you cannot have always the same lives?} That is a mere accident and is beyond the control of the parties, though not beyond that which they contemplated ; but here they have voluntarily altered their position by these letters. [Ford, C.J. The letters are based on that very covenant to renew as I have already pointed out.] They may purport to he, but when the leases themselves [A. and C] come to be compared, they will be found to be ciuite distinct. The Attorney-General's point as to B2. was not to nffect the action of the parties inter se, but to shew that unless they 46 THE SUPREME COURT. Ford, r..T. Wood ) & -J..! Shebiff. I 1SS5. Wemtss v. Attobnet- (tEN1?TCAL. have acted in a strictly legfal way, we can call in question their acts where it affects us. All that he meaut was that it was not ai legal demise as it was made by an Attorney, and we have no evid- ence he had power to lease. . [Ford, C.J. la that what you meant, Mr. Attorney-G eneral ?] [Bonser. Certainly, my Lord.] The plaintiff was bound to prove his case in every point. [Ford, C.J. Yom should have objected to B-- at the trial. It was certainly recognized by the landlord Chin Tuan, and what have you g'ot to do with ilp] Everything- I submit, when oitr rights are affected. The signatnre to it wi\s in Malay, and the document passed in as evid- ence at the trial. Counsel for the Crown thinking it was the signature of Niali Malim. It was only discovered when the papers in this present appeal were being prepared. [Fnrd, C.J. The Crown chose to let it go "in unchallenged and without formal proof of execution. How can they now object to it?] • On looking at the plaintiff's evidence it will be seen tlie lease A. and its endorsements B.,B1- and B2- were put in in a bundle ; it was this which bronght about this oversight on our par(. [Ford, C.J. If you think you can still insist on the objection, we shall, as already intimated, give the plaintiff', if necessary, leave to adduce evidence on the point.] Assuming B-- to be good it does not help the plaintiff's case, but as it is half-pnst four, and. I shall still be sometime on this point, perhaps your Lordships will adjourn for the day. [Ford, C.J. We shall adjourn till to-morrow at 11 a.m. lltli June, 1886. [Ford, C.J. Before you begin Mr. Ross, I wish to call your attention to paragraph one of the statement of defence. You there admit the second lease is a renewed lease made in pursuance of the covenant for renewal in the previous lease. You there treat thi' plaintiff as a tenant in possession with a good title a.gainst the whole world ; should not the Government have thej-efore enquired before they made their agreement with his landlord?] Eossi. The first paragraph of our defence is qualified. It admits the lease and allegedrenewal, but craves leave to refer to it at the trial to see if it bore out the allegation. [Ford, C.J. At the trial, the lease bore out your statement]. Not. exactly, for the lease did not only refer to the covenant for renewal, but also to the letters E. and E. which introduce new terms. However, the point that we are concluded by our admis- sion in the para^graph in question is not a new point, "it was raised ill the Court below and disposed of. To take up my a.rgument from last evening. The premises included in lease C. are not the same as those in the. original lease ; it included a second piece which it is supposed the plaintiff acquired under B2. , biit J^2. is not a legal demise. [Sheriff, J. I thought that point was disposed of yesterday.] STRAITS SETTLEMENTS. 47 1885. Weiitss V. Attorney- Genkral. [Ford, C.J. How does tliat concprii yoii ; lie was in posse .ssion "Poed, p. J. of it long before.] " ^"^'r'Mjj I am entitled to'rely on the objection to shew the second lease Shekiff.) was not a renewal — his previous possession was not a possession with the benefit of renewal as to that piece. [Ford, C.J. You are bound to take your agreement with all the existing incumbrances, one being the fact of the plaintiff being a tenant in possession. He had a possessory title at least.] Yes, possessory, but not a legal title. [Ford, C.J. Is not a possessory title a legal title ?] In one sense it is, but he alters his possession by trying to better his title by taking a lease. [Ford, C.J. SujDposing the Court should be of opinion the. second lease was not a renewal, but the plaintiff had a possessory title, how does that better you ?] It does, as there could be no continuing title by lease. On the 2nd July, 1883, the first lease expired, the second lease is not made till November, 188-3. In the interval, the plaintiff''s title was only possessory. If that were not so, it is only because of the letters B. and F., but these letters we say gave different premises and different rights. In lease A. the words' " easements and appurtenances " may have included the'right of way if it had stood alone, but that, right of way is especially reserved to the lessor. B2. does not give the right of way, but only the reserved land. That was the right of way which gave "access" [to use the term of the Lords in Lyon v. Fiahvuongers' Go.^ to the sea. On turning to lease C, we find the words " together with the right of way adjoining the Southern portion of the said godown from the sea to Beach Street, either by land from Beach Street, or by the sea and whether by hand or bullock carts, horses, ox, [sic] by foot, or by day or by iright when necessary to do so, with the right of the approaches of boats or vessels to the foreshore or wharf and land- ing place of the said premises for the purpose of docking and repairing boats and vessels and of landing or shipping machinery and other wares, goods and merchandizes andreserving ti) the lessors or either of them their, or either of their heirs, execut- ors, administrators, or assigns, the like liberty of using the said right of way, provided that this latter reservation shall not be permitted to interfere with the exclusive right of the lessor to use the said premises or any part thereof as a dock or slipway for vessels, to which right this latter reservation sha.ll be held in all cases to be subject." So that the reserved right of wiiy under lease A.,. is how subject to certain rights of the lessee. [Ford,Q'.i. The lessor's right 'of way under lease A. was surely always subject to the right of way of the lessee.] True, but here the plaintiff has a slipway, and he claims in his petition a channel to bring in his ships into the slipway. [Ford^, C.J.' The slipway was on the pLiiutiff's own land?] Yes, but it is for the lo^s of the we nf t/m slifwny that he claims damages. 46 THE SUPREME COURT. FOKD, ("'.,T Wood & I SifEEirF. J 18S5, ].T Wemtss 17. Attokney Gkneral. [Fnrd, C.J. We have iinthiiio' to do with the da.mao;eft,. oiily -r the invasion of a private right, Iii.s accesf? to the sea.] In Lyon' If Cnae the damages claimed were in connection with his wharf, here it is in consequence -of his loss of his slipway. By lease C. the lessor's right of way is subject to the slipway, and as to the premises, about half was given up. [Ford, C.J. The sea frontage is however tlie same. How can the portion given up- have anything to do with the sea front- age ? Surely that is quite immateriarp] Whether it be immaterial or not is not the question; my point is that if the pai-cels are not the same, the lease is not a renewed lease, and if not a renewnl we are first in point of date under our ngreeraent of 1882. [Sheriff, J. The lessor's agreenn^nt can only bind his revei'- sionarj- interest.] [Ford, C.J. Not existing rights.] But the lessor's reversionary interest came into- possession on the termination of lease A. If plaintiff had then obtained a lease in exactly the same terms, under the covenant for renewal, the Crown would have been out of Court — but when he does not do that, but takes a lease giving differeirt premises, different rights, and with different covenants, it makes all the difference. Then to point out these differences hi^tween the two lenses. By A. ihe lessee pays assessment, in ,says[p.56.]- SheL..)'''- 1885. mi„;,+ ,; 7f M^i'^'\,"' argument, whether a proprietor on the banks of a river might not build^ a boat house upon it ? Undoubtedly this would be a perfectly Wemyss tair use of ns rights, provided he did not thereby abstract the river or divert . "■ Its course; but li the erection produced this effect, the answer would be, that ^^TOENEy- cssential as it might be to his full enjoyment of the use of the river, it could ^enebal. not be permitted. A fortiori, when the act done is the advancing soUd build- ings into the stream, not in any way for the use of it, but merely for the enlargement of the riparian proprietor's premises, which must be an in- trmgement upon the right and interest of the proprietor on the opposite J^^i -, /°^ Pi-mciple, then, the respondents had a cause of action in respect ot the defendant's buildings, and were entitled to a declaration against the encroachment, and a decree to have the obstructions removed. Ihe autho- rities cited m the argument at the Bar support the principle and establish a satisfactory distinction. The proprietor on the banks of a river are entitled to protect their property from the invasion of the water by building a bul- wark, riinir munlendae causa, but even in this necessary defence of themselves they are not at liberty so to conduct their operations as to do any actual injury to the property on the opposite bank of the river." [Ford, C.J. On looking at Goddard on Easementu, I find he says [p. 5oj, " Every landowner has aright at common law to protect his land from damage from floods, and for that purpose to erect drains or other defences to divert the flood water from its natural course," and cites Trafford v. The King, 8 Bing. 204, and ISfield V. London and North Wedern Railway Co., 10 L. E. Ex. 4.] Nield's Ga.se was the case of a flood, and the difference is there pointed out between a natural stream and an artificial water- course. It is submitted it has no bearing on the present question, but if it has, and is inconsistent with Bickett v. Morris then tlie latter being a decision of the House of Lords must be taken as over- ruling it. [Ford, C.J. Bicheti v. Morris is a Scotch case.] [Sheriff, J. And decided on Scotch law.] That is so, but it has been approved of in subsequent English eases, and Lord Cbamwouth [p. 58] distinctly says the law of England and Scotland in this respect are the same. Lord West- bury [p. (50-62] says : " This is the first decision establishing the important principle that an enci'oachment upon the n.lveus of a running stream may be complained of by an adjacent or an ex adverso proprietor, without the necessity of proving either that damage has been sustained or that it is likely to be sustained from that cause The interest of a riparian proprietor in the stream is not only to the extent of preventing its being diverted or diminished, but would extend also to prevent the course being so interfered with, or afEected as to direct the current in any different way that might possibly he attended with damage at a future period to another proprietor It is wise there- fore, to lay down the general rule that even though immediate damage cannot be described, even though the actual loss cannot be predicated, yet, if an obstruction be made to the cuiTent of the stream, that obstruction is one which constitutes an injury which the Courts will take notice of, as an encroachment which adjacent proprietors have a right to have remove^." 50 THE SUPREME OOUET. Ford, C. J Wood ^ & [j. Sheriff. 3 18S5. Wemyss 1'. Attoeney- Geneeal. J. This case then shews that no encroachment whatever, even if it lias caused no damage is allowed on a. river. In Attorney-General V. Lonsdale, the facts were these. A Mr. Monnsej- at whose relii- tion the Attorn ej^-General sued, and the defendant, were opposite riparian proprietors on the hanks of the river Eden which was a tidal navigable river; at the particular point where the river ran passed their properties it did so with considerable force, so much so, that it had at all times caused a washing away of both the defend- ant's and plaintiff's lands. For the purpose of preventing this, the plaintiff and his predecessors in title, had been in the habit of erecting bulwarks on his land, and the defendant and his pre- decessors in title, also erected certain works. The j)lsiiiitiff's works were erected on his own land ; the defendant's projected a consi- derable distance into the bed of the river. Tlie plaintiff from time to time complained of the defendant's works as throwing the water with greater violence on to the plaintiff's land, but took no further action in the matter. Just before the suit, the defendant proceeded to construct a new jetty for the protection of his land, which wns to extend one hundred yards into the a toew-s ; to pre- vent this the plaintiff sued. Upon these facts, it wns said by Jessel, Q.C. [p. 382] "The place in question is what in law is considered an estuary or arm of the sea, since the tide runs up to the locus in quo, and, according to law as decided in Rer/ina v, Payham Commissioners, a man may erect any works he finds neces- sary for the protection of his own land against the sea, notwith- standing that an injury may thereby be caused to his neighbour's land." And after citing Viner's Abridgment to shew every water that flows and reflows is called an arm of the sea so far as it flows, nnd remarking that the i-iver partakes of the nature of the sea, and is, therefore, an arm of the sea, he submitted the defendant was justified in erecting the jetty for his own protection. Sir EouNDKi^i, Palmer in reply said, " On this third point as to inter- ference with private rights, Bicleett v. Morris is a conclusive authority where, as in this case, there is proof of actual injury. As to the alleged distinction between a tidal and non-tidal stream, the difference is wholly imaginarj'', and, if anything, the injnrj' is greater upon a tidnl river The right established by BickM V. Morris is to have the b;inks protected and tha.t right aj)plies a fortiori to the banks of a tidal river." He then refers to Reyina V. Pagham Commissioners, and points out how there the defendants only fortified their own banks, whereas in this case the defendant's woidrs extended nearly one hundred yards into the alveus of the river. From this it will be seen that it was contended that a tidal river was more like the sea, being an arm of the sea ; hut Malins, V.C, in giving judgment, [p. 387-8] says: "Unless, therefore, the fact of the Eden teing a tidal river distinguishes the present case, these authorities are conclusive against the defendant, for it is admitted that his jetty is a solid pier extending eighty-eight yards ohliquely a,nd fifty-three yards perpendicularly into the alvevs of the river. Does then the fact of the river being a tidal one make any difference ? I am of opinion that it does not. It was strongly contended by the Counsel for the defendant that the place where the jetty is erected is an estuary, and therefore an ai-m of the sea, and that the defendant has consequently all the STRAITS SETTLEMENTS. 51 S^'s^Ll^wl';''^"^*^!? ^"""^ '"^t ^^ ^^"^^"^ ^^'^^'^ l^ad if it had been on the Foed, C. J. ?^^'^:^:°±^^iiL^^'^F^'^°^ ?"-d o'n the sea shore has f & ^J.X 1^ 'J Weiitss V. Attoenet- Genebal. Tio-lit +n flvo^ra T IX, ? ,f™P"et;oi- ot land on the sea shore has a & T,'.v'^ ^^'''K^ P''°P"' *°'' *^« P^POse of protecting it Sheeipf. ShL^^l, • .°* *'''' n'ff ■ *^°^S^ ^"°^ ^'^^s^ may be injurious to a 1885- ^^& T^-^''°^''Ia^"'' ''?'^^^^* ''^'"^ imdoubtedly authoritative on that Wn n^' +Z T '^ ^f! ^'!?. ^o'lpl^^i^e for the defendant if his land had o^a rv;^!>flf ■ V rf '' \\' P|;mciple applicable to a riparian proprietor mnn XF?;^ ^^''4 "."'"'^ ^'^ ^°™<^ ^^ ^^'l' tJ^^t the greatest work of man must be insignificant as compared with the power of the sea, but that this IS not so with reference to a navigable river. If the principle contended for were sustainable, it would follow that every riparian proprietor on a navigable river however di.stant from the sea, and however gentle the flow ■ {^^ 1 *^*^ P''"'"''' "^""S^^ *^™'^ ^"y ''^oi'^s into the alveus that he might deem necessary for his protection, however injurious such works mignt be to the adjoining or opposite proprietor; and thus taking the jm°^j?'''x^ example, any riparian proprietor between 7auxhall Bridge and ieddmgtou, where the tide ceases, might, by such works, obstruct the navigation at his pleasure, because the Thames is there a tidal river, and therefore an estuary or arm of the sea. In a sense, there is no doubt, that every water which flows and roflows is called an arm of the sea as stated in Vm. Abr. Prerog. of the, Kituj. But I find no authority for the proposition contended for; on the contrary, all the cases, including those cited by the detendMit's Counsel tend in the opposite direction. In both the case of Rex. V. Russell, and Rex v. Ward, the rivers the Tyne and Medina, in which the navigation was impeded, were tidal rivers and it does not appear to have been suggested, either at the Bar or by the Bench, that the parties indicted for the nuisances had any greater right in these rivers than they would have had if they had been non-tidal. The same principle was acted upon in Attm-ney-Oeneral v. Johnson, I am therefore of opinion, upon principle and authority, that a riparian proprietor on a tidal or navigable river has no greater rights against an adjoining or opposite riparian proprietor than such a proprietor on a private or non-tidal river, and that the defendant cannot therefore justify the erection of the jetty in question on this ground." [Ford, C.J. How do you apply that to this case ?] In this way, the Pagham Case shews that a littoral propi-ietor may embank against the sea though he thereby causes damage to his neighbour. Biehett v. Morris shews a riparian owner cannot embank against a river though he thereby causes no damage to any body. Attorney-General v. Lonsdale shews that the fact that though a tidal river is an estuary, an arm of the sea, it does not alter the case, there can be no embankment ; and Uex v. Trafford shews that it is the same on a non-tidal river, and there the distinction between the rights of riparian and littoral proprietors as to embanking are clearly pointed out. • [Ford, C.J. Those cases only decide there is a difference in that particular.] These cases shew there is a distinction between these two classes of proprietors, and they lay a foundation for my arguments now aboiit to follow. In Lyon's Case, Malins, V.C., following the same reasoning that there was no distinction between a tidal and non-tidal river as regards embanking, decided in favour of the plaintiff. The Lord Justices in 10 L. E. Ch. Ap. 679, took a different view, but their decision was reversed by the House of Lords who considered that there was no distinction. [Wood, J. What we are anxious to point out is that the cases which hfive been referred to, only shew that while the case of 52 THE SUPREME COURT. FOED, C. J. Wood ") & ^J.J Shekiff. ) 3885. Wemtss V. Attoenet- Geneeal. embanking on a tidal and non-tidal river is the same, there are differences between the sea and a river, but it is only in the one particular of embanking. [Ford, C.J. The cases don't go to the length you contend for, that because they are different in one respect, therefore they are different in all respects.] They shew that one difference it is true, but further cnses shew further differences. In Atlorneij-General v. Tomline, ib was first claimed that there was a right in a private individual to prevent a man using his land, although in a natural way, from doing so to tlie injury of his neighbour, but eventually the ciiiiin was based on the preroga- tive of the Crown to protect the land against encroachment by the sea. [Sheriff, J. Is not that case only an illustration of the maxim sic utere tuo, &c.\ No; for the defendant was using his land in a natural way. That case is important as shewing that there is a liahility to which a littoral proprietor is subject. If the Crown lias a right to protect the land from encroachment by embanking, it has also the right to prevent anything being done which would bring- an encroachment by the sea. Tiie Crown therefore nets in doing or preventing a thing being done for the benefit of the public, and applying that principle to this case it follows that the Crown has a right to do that which will be for the public benefit, though a private individual might suffer by it. [Ford, C.J. That was not the defence in the Court below.] Not in the pleadings, but it was raised in argument at the trial. This reclamation was done and will be for the benefit of the public ; the littoral proprietors it is true get a benefit too, but only by paying for it; the benefit to the place and the com- munity at large is the main object of Ihe work. [Ford, C.J. According to the authorities the Crown can only embank when there is a necessity for it. How has the necessity arisen to give rise here to that prerogative ?] [Sheriff, J. As a fact, has the sea. here given offence ?] It is sufficient if it, might arise according to Bickett v. Morris, as nobody can tell what turn the sea might take. However the case closest approaching to the present, but one which has not as yet been referred to, is Laird v. Brigijs, 19 L. R. Ch. Div. 22; unfortunately however it went oft' on the point that the plaintiff had no right to sue. The facts of that case were, the plaintiff was in possession of the foreshore belonging to the Marquis Conyngham under an agreement made with him as the Lord of the Manor ; the foreshore was part of the manor. The defendant was a tenant of certain premises called the " Clifton Baths," and he claimed to use the foreshore for the purpose of bathing and placing thereon his bathing machines. In his statement of defence he claimed this right as an easement to the " Clifton Baths" premises, which he alleged had been enjoyed by the various owners of the Baths since 1829. He failed to prove so lono- a user. In his statement of defence, he denied the plaintiff was in STRAITS SETTLEMENTS. J.J. Wemtss V. Attoknet- Genekal. possession of the foreshore, " save subject to the rights of the Pokd, C. J. owners of the Clifton Bath's property and their tenants over and ^°° upon sucli foreshore." Shekiit.. IFord, C.J. There the foreshore was in the hands of a private 1885. owner.] True, but a grantee from the Crown has no greater rights than the Crown itself. I cite the case to shew that the plaintilf 's claim there was not based on a right of access to the sea, but on prescription. He claimed to enter upon the foreshore fronting his property, and to place bathing machines thereon. That is practically the case here where the plaintitf claims the same I'ight, but in order to reach vessels for purposes of repairing them. At the trial we see [p. 44-5.] North, Q.C., asks leave to amend his defence by denying absolutely the plaintiff's claim, but Fey J., refused leave, saying [p. 445-(5.] — ■ " The application made is to allow an amendment of the statement of defence. In that statement it is in effect admitted that the plaintiff is in possession of the foreshore, subject to the rights of the defendant.^ This is only a qualified denial of possession, that is to say, the possession is denied, save subject to the rights of the defendant, which is equivalent to admitting possession subject to those rights. I am now asked to allow the defendant to insert in his statement of defence an unqualified denial of the plaintiff's possession. The efiect of tbat would be very serious in the conduct of the case. The plaintiff is n.o^v entitled to rely upon his possession as giving him a prima facie title; if I allow the amendment to be made, he will not be able to rely upon it in any way." Id giving judgment in the case, [p. 447] he says : " According to the admission of the defendant he [the plaintiff] is in possession of the foreshore in question, and as it appears to me, he is in posses- sion in some way or other under the present Marquis Conjngham, and derives from him at any rate an estate-at-will, if nothing more. The defendant has from the year 1829, according to the statement of his Counsel, exercised certain rights which may amount to evidence of an easement over the fore- shore in question. But it appears that the estates of the Marquis have been settled, and that there has been from the year 1829, downwards, a period occupied by tenancies for life, which, when deducted from the actual period of enjoyment, will bring that period to less than forty years. That being so a question arises upon the 8th section of the Prescription Act." His Lordship then deals with that question. [Ford, C.J. There I see the person claiming the use of the foreshore was the defendant.] -j, i Yes, but he wns a littoral proprietor, and I sny it such a right of access was in him as such proprietor, could his Counsel have overlooked it. Why, they could then have dispensed with their amendment and user, and would have had a complete right of access to the sea for their own purposes. Here, the plaintift claims such right and seemingly this is the first time such a claim has ever been made. He claims to draw his vessels across the beach into his slip. . , . , , ■ < i • i [Ford C J. He only brings in his vessels during the high- tides, and then it is within his boundary as the high-water mark is on the land side of the red line which has been given hun as a boundary by grants.] 54 THE SUPREME COURT. FOED, C. J. Wood ) & [J.J. Shbbiff. ) 1885. Wemtss V. Attoe.net- Genebal. But part of his vessel would continue on the foreshore when the tide recedes. Supposing the whole foreshore belonged to the plaintiff, still the public would have a right of passage along it; but to allow him to obstruct them by portion of his vessel project- ing across the foreshore ! Why, he would himself be liable to an action for it, and the nuisance might be abated by the Crown as a prepresture. The embankment here does not deprive him of access to the sea, for he can still get to it across the reclamation work though the particular use he desires to make of the foreshore in drawing across his vessels and beaching them would be obstructed ; but such a right he never had. The case of Laird v. Briggs was carried up to the Court of Appeal, 19 L. R. Ch. Div. 22, but there the point was not decided, as the case went ofE on another point. The case however is important as here again Counsel and all the Judges must be taken to have forgotten this right of access. It is impossible they could have done so. [Ford, G.J. Why not?] Surely it would be supposing too much ? The presumption therefore is that a littoral proprietor has no such right. [Ford, C.J. You say because one plaintiff in an action he brings, does not claim a right he ha.s, ergo another plaintiff in another action has not the right?] No, but when we see learned Counsel and Judges, and that in two Courts say not a word as to such a right, it is a fair inference that such a right does not exist. The case of Lyon relied on by the Court below does not show that a littoral proprietor has such a right of access; as already pointed out it is confined to riparian rights. Here also the plaintiff' claims even something more, he claims the use of the foreshore ; he could not make use of his slipway without bringing his vessels across the foreshore. It is for this that he claims such heavy damages — but when his ship is in the shp, it is several feet beyond the red line. [Wood, J. You say he has no right of access, because he perhaps commits a trespass by allowing his vessel to be six, eight, or ten feet on your land ?] [Ford, C.J. Which you have hitherto permitted him to do? However that is, that is not the point before us ; you are not here to question the award and the amount of damages the arbitrators have awarded.] But the preventing by the reclamation works of such user of the foreshore by the plaintiff could not but have been taken into consideration by the arbitrators. [Ford, C.J. We know nothing of the principles by which they were guided.] [Wood, J. The only question here is, has or has not the plaintiff a right of access— in other words, whether the analog he relies on does or does not hohl.] I have shewn there is no such analogy. Then as to the second head of the first point made by the learned Attorney- General, do the words "by the sea" in the plaintiff's grant, "ive hini the sea as a fixed boundary, so that he can follow the s'ea it recedes, in order to keep his access to the sea. ^87 as STRAITS SETTLEMENTS. 55 & Sherifp. 1885. Wemtss V. Attoknet- GliNJDKAL. [Sheriff, J. You admit the sea is his boundary. Do you Ford, C.J ine:i,ti he has no right to take advantage of that boundary, and so "^^""^ nave recess to the sea ?] We admit tlie sea is now his boundary, but the words I have referred to are in his original grant, they do not however in hiw give the sea eis a fixed boundary. Unless I hat were so the Crown wouldhave been bound to allow him a right of way over the accreth)MS. He has now tnken those accretions under grants, [J. and K.] which give the sea as his Eastern boundarj-, but that does not of itself give him a right of acce.ss to the sea. [Sheriff, J. You mean that if the Crown gives a row of apple trees for your boundary, you are not permitted to take the apples from the trees ?] You could not, it is conceived, take the apples on the other side of your boundary. [Sheriff, J. Suppose a person has the sea for his boundary, has he not qua owner the right to go and bathe in it ?] We say not — The public certainly have not the right of bathing iu the sea or using the foreshore for that purpose. Jilun- dell V. Gatterall, 5 B. & Aid. 268. [Ford, C.J. You say he might have a private right of bath- ing in a river ?] Yes. [Ford, C,J. Well, why not then in the sea?] Because the river flows against his land, but the sea is not always so. On the whole, the rights of a riparian and littoral proprietor are, it is submitted, not the same ; the analogy relied on in the Court below therefore fails, and the judgment should be reversed. J.J. Van Someren. I propose first addressing myself to the question of the foreshore. There can be no doubt there is one difference between the rights of littoral proprietors and of riparian proprietors, and that distinction is clearly pointed out in the three cases of ReginaY. Pagham GommissionerK, Rexy. Trafford, and Attorney-General V. Lonsdale; but that I submit is the only distinction to be found. It is supposed however by the other side that the right or duty of the Crown to protect the land from encroachment by the sea, by embankment, is a burden which is jDeculiar to a littoral proprietor, but not to a riparian owner; and it is assumed that herein lies a second diiference between the two classes — but we propose to shew that this right on the part of the Crown to interfere by embankment with the rights of a littoral owner is applicable to the riparian owner also. In Ghitty's Prerogative of the Crown, p. 173, it is said : " Under this head it may he mentioned, that the King possesses the sovereign dominion in all the narrow seas, that is, the seas which adjoin the coasts of England, and other seas within his dominions. This prerogative power is vested in the King, as the protector of his people, and guardian of their rights. It is subservient, however, to the jura comnmnia, which nature and the principles of the constitution reserve for his Majesty's subjects. It can neither prevent them from trading or fishing. As a consequence of this prei'ogative, the King possesses also the power of reforming, pi-eventing, and punishing any nuisances or obsti'uctions in the seas and rivers over which his 56 THE SUPREME COURT. Shebiff, 1S85. Wemtss V. Attoenet- General. FoEDjC.J. jurisdiction extends, and it was held on the same ground, and on the con- WooD "^ sideration that all matters of a public nature are in a special manner under the & J-J.J. King's care and protection, that he might [before any Statute made foi' Commissioners of Sewers] provide against any inundations, by embank- ments, or other necessary means." This passage, it is true is not so clear as one could wish, but it is to be noticed that the author evidently speaks of both the sea shore and banks of ;i. river in the same terms. Then in Couhon on Waters, p. 24., we find the following : — " The King has probably from the very earliest times had a i-ight as part of the prerogative to defend the realm against the waste of the sea, and to order the construction of defences at the expense severally of those who are to be benefitted by them. The power to erect a sea-wall or embankment as a protection against the sea, arfroiii the ivfliix of the tide in rivers, is one of those things which emanate from the prerogative of the Crown for the general safety of the public ; and no doubt the ordinary rights of property must give way to that which is done for the protection and safety of the public, but only to the extent to which it is necessary that private rights and public rights should be sacrificed for the larger public purposes — the general common weal of the public at large." This last passage are really the words of Cockburn., C.J. in Brard of Works for Greenwich v. Mauchlay, 5 L. R. Q. B. 397, 401. It is a distinct authority to shew that the Crown has the same rights to embank against a I'iver as it has against the sea, and it is a further authority as shewing that that right of the Crown arises only when a necessity arises. That burden therefore exists both as to the littoral as well as to the riparian proprietor, and the distinction therefore sought to be made out between such proprietors, based on this prerogative, fails. The only distinction between the rights of such propi-ietors is the one first refeied to, namely, the right of a littoral proprietor to embank against the sea, although he may thereby cause damage to his neighbour, and the want of such right in the riparian proprietor — but the reason for this distinction is obvious. [Ford, C.J. Why do you sa.y ohvious'?] Because the necessity for it is that which gives rise to it — and this is clearly pointed out in the well-considered judgment of Malins, V.C. in Attorn cy-Gevf ml v. Lonsdale. At p. 387-88 his Lordship says : " It must be borne in mind that the greatest work of man must be insigni- ficant as- compared with the power of the sea. but that this is not so with reference to a navigable river. If the principle contended fur were sustain- able, it woiild foUow that every riparian proprietor on a navigable river, however distant from the sea, and however gentle the flow of the tide at the place, might throw any works into the alveas that he might deem necessary for his protection, however injurious such works might be to the adjoining or opposite proprietor." " To hold that a riparian owner however high up the stream where he was exposed to no injury, had the right to embank, would have worked considerable evil, as his neighbours might be affected by his acts without any necessity for it; but unless the distinction between the sea shore and river bank was held and confined to them only, it would introduce a distinction between Straits settlements. npariau owners higher up and those lower down th^ stream, a Ford, C.J. distinction indeed sought to be made by the Lord Justices in ^1°° \ Lyonv. Finhmongers' Co., but disnllowed by the House of Lords, sheriff. i 1885. To avoid this distinction as well as the evil already referred to, the only hue to draw was between a riparian proprietor [whatever p-irt of thestream situate] and a littoral proprietor. The reason for the distinction between these two classes is therefore obvious — but that distinction in no way detracts from the analogy relied on by the learned Chief Justice in the Court below. These were the only two distinctions attempted to be made out ; the second proceeds on an erroneous assumption, the first on a reason wholly inapplicable here. The incidents to tlie rights of the littoral and ripai'ian proprietor are otherwise the same. Now Earl Cairns in Lyon V. Fishmongers' Co., says the right of access of a riparian proprietor is qua owner and not as one of the public, and so far back as 1812 we see this private right as distinct from the public was alluded to in Parmeter v. Attorney-General, 10 Price 378, 412, in connection with the sea shore. The defendants there claimed under a Charter and put up certain erections on the foreshore at Portsmouth and Lord IIedesdale [p. 4-ib'] asked this nuestion, " Did these letters patent grant all the land between high and low-water mark, from tlie county of Sussex to the county of Dorset excluding every individual from access to their lands from the sea, as well as the public, supposing their enjoyments to have been equal iu extent to the granting of the letters patent." No reply was given to this question as regarded the access of the individual owner, but as regarded the public it was said it was ■not meant to contend that the letters patent were to be taken to exclude public rights — and at page 450 we see Counsel saying, " In the present case there is not a shadow of evidence that by the building remaining, any subject has been prevented from landing on any part of the shore where it was possible for hiin to land, or that any access was prevented either to an individual disposed to go there, or to people having property not being able to get at it by reason of obstruction from these buildings." He was interrupted by the Attorney-General who said, " There is no part of the case, no part of the evidence is directed, to shew that these buildings are injurious to the landing, the injuiy is to the King's moorings in the harbour of Portsmouth." There was no necessitj^ therefore to decide the point alluded to by Lord Eedesdalb. This passage however is only :i hint on the point though it shews that his Loi-dship thought private access was something distinct from public rights on the foreshore. However, authority is not wanting to shew no distinction [save in the one respect already mentioned] exists between the banks of a river and the sea shore ; so that Li/on's Case is a.pplicable to the present. In Blundell v. Cattcrall, which, was the case of the sea shore, we find Counsel for plaintiff [p. 270] relying on Ball v. Herbert, 3 T. R. 361 ; but in answer Counsel for the defendant sought [p. 271] to distinguish Ball v. Herbert, as being a river case ; Best, J., dis- senting judge indeed says [p. 286] " Lord Hale makes the dis- tinction between the shore of the sea and the banks of a river which Loi'd Kenyon points out in Ball v. Herbert ; the former is Wemtss V. ATTOE^'■ET- Genebal. s§ THE sfpHeme Court. free for all to come and nnload, but the King cannot grant a liberty to unload in the latter without the consent of the owner," evidently FOED, G, J. Wood ") sea flows and re- Hows, and so far only as the sea flows and re-flows Shkeij.'i\) But it seems that although the water he fresh at high-water, yet the domina- tion of an arm of the sea continues if it flow and re-flow, as in the Thames above the bridge.' He then proceeds to treat of the sea shore without any distinction between sea and tidal river ; and treating [at p.p. 26,27.] of the land which is covered by the ordinary flux of the sea, he points out, in the passage already cited by the other side, how such land may he shewn to be within a parish There must be some mistake in what is attributed to Patteson, J., in Rp.x v. Landidph ; at all events there is no authority to support the ruling as applied to tidal river." In delivering judgment, MeJlor,J., says [p. 7.]^ — " In the absence of any evidence such as perambulations or other acts by the parish a.uthorities, the land between medium high-water and low- water mark cannot be presumed to be within the adjoining parish; the presumption seems rather to be that it is extra parochial; and here there is no evidence on the point, I cannot help thinking that there must have been some misajD- prehension in the report of Rex v. Landidph, as what is attributed to Patteson, J. seems quite inapplicable to the circumstances of the case; at all events the ruling as reported is inconsistent with the authorities on the point ; for there seems to he no distinction between the sea shore and shore of a tidal river . There is no foundation for this rating either on the above principle or on the construction of the Highway Act."' As before stated, in the head-note we find the principle here enunciated somewhat narrowed ; it says there is no distinction " in this respect." [Wood, J. j\Ir. Justice Mellok there appears to have used language too large, just as the Court below did here, when it said the' rights of littoral and riparian proprietors were "precisely analogous " — the head-note is meant probably to narrow the language to the facts of the particular case, just as as you would say we should do here ?J Yes. The other Judges Shee and Lush, J. J., concurred with Mellor, J. The Court there doubtless had iu mind what had been pointed out by Hellish, Q.C., as to Hale de Jure Maris makingno distinction between the sea shore and tidal rivers. In conclusion on this point, and at the request of my learned friend, Mr. Presgrave, T shall refer to one authority more, and that is Angell on Watercourses [7th ed.], p. 732-33 [note] where we find the following : — "In Lyoii V. Fishmongers' Co., App. Ga. L. P.,. 662, it was held that the right to the exclusive access to particular land, on the bank of the tidal river is' a private right to the enjoyment of the land the invasion of which may form the ground for an action for damages or for an injunction. It is not necessary that the access should be entirely destroyed. This right of access is not held by the owner of the particular land, in common with the rest oi the public, for other members of the public have no access to or from the river at the particular place; and it becomes a foi-m of enjoyment of the laud and of the river in connection with the land the disturbance of which is actionable. The right of access to and from a tidal river was treated m the a.bove case as depending on the same principle with the right of access which a man has from a public highway to his house adjoining. Lord Selboene said- the cases as to tlic alterations of the level of pubhc highways by which houses immediately adjoining have been deprived of their access to and J.J. THE SUPREME COUllT. FOED, C. J. Wood "1 & J-.J., Sheeifp.J 18Sr.. Wemyss V. Attobnet- Genekal. from tlie highway, seem to be authorities a fortiori on this point, because they had not tlie element of a right jitre mdhirce. See Moore v. The Oreat ■ Southern and Western Railway Co, 10 Ir. C. L. Rep. [U. S.] 46; HickokY. Rine, 23 Oliio St. .520 ; Potter, J. in Clark v. Peckham, 10 R. 1 58. It is a doctrine recognized by a great v amber of cases, that while the shore itself and the space between high and low-water mark, is public for passage, the littoral owner has a right of access to the great highway of nations of which he cannot be deprived : Clement v. Burns, 43 N. H. 609, 637, 619; Soman v, Wathen, 2 McLean 376; Blanchard V. Collins, 10 Ohio, 138; Crawford v. Delaware, 7 Ohio St. 459; Martin v. Waddell, 16 Pet. 367; Clark v. Peckham, 10 R. I. 35, 38; and this littoral right of access is valuable, is property, and can, only be taken on compensation being made. Ya'es v. Milwankee, 10 Wallace 497, 504. So far as co'icijrns the front of his land, the littoral owner has the undoubted right of access to it ; and no one could do anything in front of his land to make it less accessible without rendering himself liable for damages. Richardsony. Boston, 24 How. [U. S.] 188; Harrison v. 'Sterrett, 4 H. & Mc Hen. 540. But where- evcr the tide w -iter flows, and so long- as it flows, it is u portion of the great highway ." [Sheriff, J. Is that then an American work?] Yes. The passage read deals first with and api^lies Lyon v. Fishmongers' Oo., and then proceeds with rights of littoral pi'o- prielors. It is exactly in point, and concdudes the question in favour of the respondent. Then as to the point about the renewal. [Ford, C.J. We shall not tronble you on either of the remaining points, neither about the grants nor the renewal.] Thomas, [on same side.] — I have but little to add to that which has fallen from my learned friend, Mr. Van Someren. ff this embankment was an exercise of prerogative, why should the Crown have gone to the Vii.rious littoral proprietors and made the agreement of November, 1882? But the fact is, this is not an embankment : it is no less than three hundred feet in breadth, and as to any supposed necessity for it, there is not a word of evidence to shew there had been an encro;ichment by the sea. It was notorious that the reverse was the Ciise, for the sea was gradually receding. With regard to authorities, and not to take up too much of the time of the Court, I shall only refer to the pages of Coidson on Waters, and Hales de Jure i^faris, which bear on the case; it might help your Lordships in finding the passages. Coidson on m(/ersp.p. 53, 45,46, 51, 74, 87, 98, 111, 135, 140, 154, 160, and 214; Hales de Jure Maris, 7, 9, 12, 14, 16, and 18. Bonser in reply — As to Mr. Thomas' remark that there was no reason for tbe Crown making the agi'eement of Novembei", 1882, we say it was done in order to prevent disputes. It was not done from any idea we had not the right to embank. The Crown was the best judge of the necessity of the embankment. As to the American Cases referred to by Mr. Van Someren, although such cases are instructive and convenient to borrow arguments from, yet they are not binding. Avgell on Watercourses is only a text book, and cannot be taken as of any great authority. As to Bridgwater Trustees v. Booth, Mellish, Q.C., it is true says, Hale makes no distinction between the sea shore and a tidal river, and perhaps that may be so, — but the subsequent cases we 'have referred to show a distinction— and especially Attorney-General v. Tomline shews the rights of the Crown on the sea shore. Hale on STEAITS SETTLEMENTS. 61 doubt is ail aulhority, bat it is a very old work. As to what was Foed, C.J, said by Melloi?,, J. i'li the same case, the answer is that it is not ^'^°" |j j true, and what his Lordship only meant, at most, as the reporter Sheriff, j has corrected him. If it means more than that, it goes beyond tlie 18,S5. necessity of the case, and is merely an ohiter dictum; it cannot ~ upset, the cases deliberately decided on points expi-essly raised. ^'^s.s In Attorney-General .v. Lonsdale it was said if an embanianent is Attokset- allowed at the mouth of a liver, to be consistent with riparian '>enekal. owners, it must be allowed the whole course, and Lyon v. Fisk- mojujers'' Co. shews the absurdicy of such a rule — so here, to allow the plaintiff a right of access, would be to permit all littoral proprietors to make the like claims, to the prejudice of the public good, for which alone the sea shore is vested in the Crown — If this Court holds there is an analogy between the sea shore and a tidal river, it will be an enunciating of that principle for the first time. [Foirl, C.J. We shall only decide as to this particular reclamation work and to this particular case.] The other side admits there is a distinction, as to embanking, between riparian n.nd littoral proprietors ; this is a substnntial distinction, and it cuts down the basis of the judgment of the Court below, and the superstructure topples over. In lilundell v. Gatterall it was held, the puplic had no right of bathing in the sea, or using the foreshore for that purposo, as otherwise it would be to strike sterility on the whole sea shore, as any one might then anywhei'e, claim the right, and so prevent improvements — So here, it would be the same; this reclamation is beneficial to the public — the private rights of the plaintiff should not be allowed to interfere with it. He alleges the work is a private nuisance, the oHM.s is on him tj shew it. Hy has not attempted to prove it, and it. must be taken as not being a nuisance. The case is of great importii.nce as settling the law as to the rights of littoral proprietors. We have produced all the cases which might be said to have any benring on the point, and it now remains with the Court only, to decide it. (.hir. Adv. Vult. 2'Uh June, 1886. Ford, C.J. I have hnd the advantage of perusing and considering with my brother, Mr Justice Wood, the judgment he is now about to deliver, and as it expresses precisely the view which I take of this case, my learned brother will read it as our joint judgment. I only desii'e to add to it by saying that in my view, the configuration of the sea at the locus in quo, the fact that this portion of the sea has long been within the Hmits of the Harbour of Penang, and has always been used as a means of transit for cargo and other boats belonging to the res- pective owners of land abutting upon it, make the littoral owners' claim in this particular , in strict analogy with the rights conceded to riparian owners on a navigable and tidal river. Wood, J. In tliis case, I can see no material difficulty. Mr. Wemyss being tenant in possession and in actual occupation of 62 THE SUPREME COURT. FOKD, C. J. Wood T & [JJ. Shf.eipf. J 1885. Wemyss V. Attoeney- Gexeeal. land with a frontage to the sen, the Crowu without the knowledge of the tenant purchases of the superior landlord the sea frontage. So purchasing the Crown has constractive kiuiwledge of the rii^hts of the tenant, one of which is to take a 6 years renewed lease of tliat sea frontnge, and being the actual obstructors to the enjoyment by the petitioner of tliis right, is answerable for the injury done. it is argued, I think without any valid reasoning, that" because Mr. Wemyss when he took his renewed lease took some- thing different from what he had a bare right to demand, has altered his condition for the worse, but I am at a loss to see how Mr. Wemyss who in all simplicity was dealing with his landloi-d as if he and liis landlord were free agents, has in anyway weakened his right to have the sea frontage granted to him or has forfeited his equity. It is enough that the Crov,'n knowing, constructively it may be, but still in law knowing, that the superior landlord had a^greed to give it to the lessee, got for itself the subject-matter of this suit, the sea frontage; and it is a iniitler which seems to me to have no bearing on the case, that Mr Wemyss took the lease of the sea fiontage ultimately in a form or with adjuncts different from what he had contemplated as advisable when the covenant for renewal was entered into. That Mr. Weymss on getting his new lease obtained some advantages which he conld not have demanded may probably be the case, and if so, these advantages mny have swelled the amount -of damages which the arbitrators eventually gave, but the answer to this is that if such advantages existed tliat matter should have been brought before the arbitrators or have possibly been made the gi'ound of opening the award, but as no objection is raised against the finding of the arbitrators it must be taken that this matter was rightly decided by them. The question of whether a man having a sea frontage has a right of access to and from the sea for the purpose of hauling up boats on to his land is, I consider, equally clear. It maj' be called in one sense a case primm impresnionix be- cause there is no case which actually shows that for purposes such as this, what is true of tidal rivers is true of the sea shore, and it may be conceded tbat the cause is difEerent for certain other and different purpose of navigation. It is difficult to conceive any dis- tinction between a tidal river and the sea, and it may be taken as conceded that had this case been a case of a tidal river, the authority of Lyon V. The Fifthmongers' Co. is decisive of the question. Such a right of access and of beaching and landing and hauling up boats on the sea shore is matter of common notoriety and common usage, generally exercised and apparently generally conceded and as fairly referable to the shore of the sea as to a tidal river. The only remaining point is whether the Crown has at law or in fact granted such a right. It may be true that grants from the Crown must generally be specific in terms ; but in the autho- rity relied on by the Crown, Feather v. The Queen, 6, Best & Smith 283, CocKBURN, C.J., speaking of Grants of the Crown says : STEAITS SETTLEMENTS. 63 " Nothing passes but that which is expressed or which is matter Foed, C.J. of necessaiy and vmavoidable intendment in order to give effect to "°°° I the plain and undoubted intention of the fjrant." And tried by shj-riff. this test it can hnrdly be contended that the use of the foreshore for purposes of access, and the beaching of boats is not a right necessary to the reasonable enjoyment of the land granted. Sheriff, J. This is an appeal from the decision of Sir Thomas Sidgi; eaves, late Chief -Justice of the Straits Settlements. The respondent is an Engineer and Shipwright, Boilermaker and [ronfounder of 37, Beach Street, Penang. I would briefly refer 18S5. Wemtss V. Attobnet- _General. to those facts which form the gi'oundvvork upon which certain points of law have ariseji and upon which the decision in the Court below was based. The appellant in his answer to the respondent's petition of right says in paragraph 1 : — " I admit tliat tlic petitioner for tlie last 7 years under his present firm or in partnership) with his former partner carried on business at the back part of the premises numbered 37, Beach Street, Penang, and that lie leased the premises so occupied by him from Lee Chin Tuan and Lee Chin Soon under a six years lease tei;minating in July, 1889, and made in pursuance of a covenant contained in a prior expii-ed lease, but for greater certainty I crave leave to refer to the said lease when produced. 2. I say that Lee Chin Tuan and Lee Chin Soon claim the said pre- mises No. 37, Beach Street imder a grant from the Crown No. 234, dated 2nd November, 1802, and two G-overnment Grants Nos. 122 and 123 respectively, dated the 10th of June, 1871. In Exhibit J, Grant No. 234 is defined as to the Eastern boundary which only is material to the present ease as " bounded as follows : East 106 feet by the sea." In Exhibit I, the piece of land thereby granted is described as to its Eastern boundary as "bounded as follows : East by the sea 46 feet." Since the ^rant in 1802 the sea has gradually receded, and from the judgment of the Court below it is stated to have been admitted that the line of the medium high tides was 15 feet 3 inches inside the red boundary line referred to in the 7th para, of defendant's answer as forming petitioner's Eastern boundary under grant No. 122 [,see plan Exhibit J.] The petitioner iilleges thiit among other things done by him on the land he made a wharf and a channel for repniring vessels and steamships. On the 29th day of November, 1882, an agree- ment was entered into [not under seal] between the Government and certain persons described as "being owners of Lots of Land on the East side of Beach Street, Penang," and this agreeinent was signed by Lee Chin Tuan and Lee Chin Soon as owners of Lot 37, they being the persons under wliom the i-espondent claims. ' The purport of this agreement was to settle the terms upon which the Government were to carry out certain reclama- tion works. „ -, , , 1 ^, , ^ The learned Chief Justice found that the Government by building these reclamation works on their own land between high aifd low-water mark deprived the petitioner of the boundary which they had previously given him and cut him off from all 64 THE SUPREME COURT. FOED, C.J. Wood ~1 & J.J.. Sheriff. J 1885. Wemyss V. Attorney- General. access to the sea, etc., etc." Upon these facts and upon the authority of Lyon v. The FinlinioncjPA-if' Co., L.R., H. of L. cases, vol. 1 page 662, the Court below decided: — "That the position of a proprietor of land on the sea shore though widely different from that of a riparian proprietor where the river is a non-tidal one, is pi-ecisely analogous to that of a proprietor on the bank of a tidal navigable river." The Court fui-ther decided that the petitioner being in the occupation of land thus adjoining the sea had tlie private right of access to and egress from the sea, etc., etc., and concludes in the words of Lord Justice Melltsh in the case of The Fishmongers' Company: "The right of embarking and disembarking and so u.siiig his property as a wharf for the loading and unloading of goods is a most valuable riglit. In the present instance there has been an invasion of a valuable private right of the petitioner in a similar way, and one for which he is entitled to claim damages " The correctness of this decision is impeached on the part of the Crown on four grounds, and I will deal with each seriatim.. Ist.^It is said : — " That the Court was wrong in deciding that the petitioner as lessee of land adjoining the sea had a private right of access to and egress from the sea and that for the invasion of such private rights he was entitled to damages." Under this head the Attorney-General tried by citing autho- rity, to show that the passage in Sir Thomas Sidqhkavks' decision to whicti [ have pi'eviously referred, in which he asserts that the position of : "A littoral proprietor is precisely analogous to that of a proprietor on the bank of a tidal navigable river," is incor- rect, lie cited Reqina v. The Commissioners of Sewers of Pa gham Level, S B. and C. 355; Re.v. v. Trafurd, 1 B. & Aid., 874, or- 8 Bing. 204; and A. G. v. the Earl of Lonsdale, 7 L. E. Eq. 337. The first case established that a littoral proprietor may, acting in good faith, bank the sea though he thereby injures others, but the like authority does not appear to h.old good in the case of a riparian proprietor on a tidal navigable river; and in the Earl of Lonsdale's case, it was held that a riparian owner who owned the soil of a navigable river had no greater rights to use the alveus of a tidal river than of a non-tidal river. As was observed however during the argument it is quite possible that the words of the learned Chief Justice " precisely annlogous" are too large, but that they must be read as modified to menn qiio ad the parti- cular point he was then about to decide, because it does not matter how widely the littoral owner's position may differ from that of a riparian owner on a tidal navigable river so long as for the purposes of this case, these private rights in relation to access, &c., to and from a private wharf, together with the other rights incident to such ownership, are annlogous. In this view I quite concur, and I therefore fail to see how these cases apply. So iii the same way, I am prepared to admit that the right to a sea frontage is subject to the right of the Crown to enter and take steps to exclude the sea, as was decided in Attorney-General v. Tomlin.e, 12L.Ii. Cb.Div. 214, but in the present case tlie sea was passive nay STRAITS SETTLEMENTS. 65 so far from being a common enemy it was imperceptibly receding, Foed.C.J. and it was not even urged on behalf of the Crown that there was ^°o" | any imminent danger; it was merely alleged to be a work of sheeifp. j improvement in the interests of the public at large, but I am not 1885. aware that the prerogative which exists for the protection of the public goes beyond this, and authorises an interference with private rights merely for the purpose of effecting what may be an improvement, at any rate, no authority has been adduced in support of such a proposition, but on the contrary, it is in evidence that it was deemed expedient by the Government to have an agreement with the adjacent land owners befoi-e commencing the so-called reclamation works. Attorney- General ' V. Wemyss. This agreement the Attorney-General remarks must be regarded as being an act ex abundante cautela and not further or otherwise. I cannot see that the case of the Duke of B-ucdeuch V. Metropolitan Board nfWorhn, 5 L. E. Eng. & Ir. App. 418 in any way strengthens the appellant's position. But it is further urged that even if we find that the rights of riparian proprietors on a tidal navigable river are analogous to those of littoral proprietors, yet the petitioner has not the right of access, &c., &c., to the sea, because the sea was merely given to him as a boundary and not conferring any right thereto : that a grant between subject and subject is to be construed most strongly against the grantor, but that in cases of Crown grants nothing passes, except what is plain and intended. While I admit that Crown grants are so to be construed, yet T approve and adopt what was urged by the Counsel for the appellant in Parmetur v. Attorney-General, 10 Price p. 432, viz. : that "that principle of law is accompanied with another that when the Court expounds the grant most favourably for the Crown, it, at the same time, always expounds it liberally and for the Crown's honor, in order that it may pass to the subject that which it was the clear intention of the Crown to give, and which the Com-ts of law would say should be given by the grant itself." I cannot therefore assume that when the Crown grants the sea as a boundary, the grantee is not to have access to it, any more than if in lieu of the sea a highway had been given as a boundary. Bearing in mind the particular portion of the sea here referred to, that is, if I may so express myself, its locality — viz., at the back of Beach Street [a name which carries its own meaning] a street occupied by stores, I should say that free access, &c., to the sea was essential to the full enjoyment of a water lot. Chan Ah Hiang swears " they formerly used the sea front, it was used by owners of shops for landing goods for upwards of 20 years."' I do not refer to this evidence on any point of prescription ; but to show the nature of the user which is the most natural. Moreover, twice has the Crown given the sea as a boundary to the same tot, and it would, in my opinion, be doing violence to common sfMise to restrict the grantee's enjoyment of the sea which he was obviously intended to have so long as his user thereof was not injurious to, or did not afEect the paramount rights of the public. We are told that Lyon v. The Fishmongers' Co, was the cage 66 THE SUPREME COURT, POSD, C.J "Wood ~) & ^J Shekiit. 1885' Attorney Geneeai, V. ATemtss. of the banks of a river, but that we are dealing with the sea frontage J and that such a case is not covered by authority. Assuming this 'to be so, a.nd while I regret not having the landmarks of authori- tative decisions for my guidance, I am prepared rather to err with the Court below than to lend my voice in support of what I consider to be the harsh and inequitable theory advanced by the Crown ; on the contrary, I hold that it was intended by the Crown to give access, &c., and that it wns given and having been given, the Crown cannot by cutting off communication with the sea derogate from its own grant. A second ground of appeal is that the Court was wrong in deciding that the lease, dated the LJth day of November, 1883, under which the petitioner was in occupation was a renewed lease granted in pursuance of the covenant for renewal contained in the former lease, dated the 3rd day of July, 1S77. The Crown wishes to treat the lease of 1883 as a new lease so as to charge the petitioner with the equities arising under the Reclamation Agree- ment of the 9th November, 1882. Cases were cited to show that the Court will not grant a specific performance for the renewal of a lease, where the original terms have been varied even in some minor particular, and that the term of the lease of 1883 are different in several particulars from those of the lease of 1877. Surely, the answer to this is that the parties themselves may modify the terms upon which a renewed lease is to be granted. The petitionei- gave due notice of his intention of taking a renewed lease, and the instrument itself sets out that it is made " in pursuance of the proviso for renewal in the former lease." This at any rate goes to show what the intention of the parties was, and in my opinion the}' effctually carried out their intention. I do not consider it necessary to go into the variances which were pointed out because, assuming thnt the lease of 18S3 had been identical in terms with that of 1877, the petitioner would have had, in my opinion the same right of way, access, &c., as is conferred in fuller terms by the lease of 1883. The third ground of appeal is practically involved in the second, and it is unnecessary to deal with it separately. The remaining ground is to the effect that if the petitioner was entitled to damages, he should have sued his lessors and not the Crown, but this proposition was not supported by authority, and I should have been surprised if any had been forthcoming. Having given the case my best attention, I am of opinion that the appellant has failed to shake the decision of the Court below, which I therefore think should be affirmed with costs. Appeal dismissed. Judijment affirm-od vith costs. The defendant appealed to Her Majesty in Her Privy Council. STRAITS SETTLEMENTS. On the 19th and 20th January, 1888, the appeal came on to be heai-d before — Lord Watson. Lord PiTZGEEALD. Lord HoBHOusE. Lord Macnaghten. Sir Barnes Peacock, [a] Biyhij, Q.C. [Joyce with him] for the appellant, contended tha.t the respondent as lessee under his renewed lease in 1883, took the premises comprised therein subject to and bound by the rights which his lessor had by the agreement of 1882 conferred upon the Government. Having regard to the terms of the covenant for renewal in the former lease, the respondent could not have compelled its specific performance either against the lessor or a purchaser fi-om the lessor, or the Crown claiming under the lessor. Fey on specific performance, 151, 660; Milnes v. Gery, 14 Ves. 400; Vichers v. Vickers_ L. E- 4Eq. 529; Wilks V. Davis, 3 Mer. 507; Darbey v. Whitaker, 4 Drew. 134. Further, if the lessor has so a.cted with regard to his property as to have incapacitated himself from renewing the same, it matters not what he purports to do, the renewed lease is pro fanto inoperative. This agreement of 1882 was not revocable, it amounted to a license by the owner to do certain works and thereby affect the owner's position and rights of property. Thereafter the owner could not grant any interest in the land derogating from that license; and the lessee took by his renewed lease, subject to the license. As to licenses by an owner to do something on his land detrimental to his neighbour, see Winter v. Brockwell, 8 East, 308 ; Liggins v. Inge, 7 Bing. 682 ; Plimmer v. Mayor, &c. of Wellington, 9 App. Gas. 699, 714. As regards the Crown's right of property and prerogative in respect of the fore- shore, see Attorney-General v. Tomline, 12 L. R. Ch. Div. 214; s.c. 14 Ch. Div. 58. This is a claim which, when properly examined, is a tort, and no such action will lie against the Crown. Reference! was made to Farnell v. Bowman, 12 App. Cas. 643, 647, and to] the Crown Suits Ordinance 15 of 1876, Sec. 18. FOED, C.J. Wood ) & [ J.J. Sheriff.) 1885. Attoenet- Geneeal V. Wemyss. [Judgment of the Privy Council.] Sir Horace D'lvey, Q.C. \_Wurtzhurg with him] for the respondent, after their Lordships had observed that theydid not requ ire to h ear tlie r espondTenir m refe rence _ to tH e'effect oTlhe 5Jdrnance_iu|lIcited71;on tended that the respondent was' entitled to the'TIama^^s^ilaiined. As lessee of land adjoining the sea, and with a frontage thereto, he has a private right of access and eoress to and from the sea,, from and to such land, and of beach- ing and landing and hauling up boats on the sea shore. He was in the same position as is a riparian proprietor with regard to access to a tidal river. Lyon v. Fishmongers' Co., App. Cas. 662. // [o] This Report of the case before the Privy Council is taken from 13 J(. B. App. Cas. 192. 68 THE SUPREME COURT. Ford, C.J. Wood ") & [j.J SlIEEIliT. ) 1885' Attokney- Gesebal V. Wemyss. [Judgment of the Privj- Council.] The renewed lease was granted in pursuance of a covenant for renewal in the lease of 1877, and consequently the rights to which the respondent is entitled are paramount to any riylits which the Crown obtained under the agreement with the lessor in 1882. The Government could only contract with the owner of the reversion, subject to the due performance of the legal obligations which attached to the ownership. Joyce replied. Cur. Adv. VuU. The judgment of their Lordships was 4th February, 1888. delivered by — Lord Hohhoune. This litigation was commenced by a petition of right presented by Mr. Weymss, in whicli he claimed 4.0,000 dollars from the Government, on account of damage done to his tenement by the execution of works upon the foreshore in front of it. His case is, that free commnnication between his plot of land and the sea is of great importance to his business, and that whereas he was previously in enjoyment of such communication, the works of the Government cut it ofE. The Chief Justice of the Supreme Court held that the petitioner could recover damages, which were afterwards assessed at 35,000 dollars. The Attorney-General appealed, but the Court of Appeal agreed with the Chief Justice. He now appeals further from their decree. Wemyss is the lessee of the plot of land in question, which was acquired by grants from the Crown. At the date of the latest grant it was bounded by the sen, and is so described in the deed of grant. But the land gains upon the sea at this point, and in course of time a considerable deposit was formed in front of the plot, pushing back the sea and leaving an extent of open uncovered ground. There have been several changes of proprietorship in the land as regards both the freehold and the leasehold interests. But they do not affect the present question, and it will be sufficient to speak of the successive owners of the freehold as the lessor, and the successive owners of the leasehold, including Wemyss, as the lessee. On the 2nd July, 1877, the lessor granted to the lessee a lease of the plot, with some specified exceptions, for the term of six years, at the rent of 130 dollars per month. And it Avas agreed that if the lessee should be desirous of taking a renewed lease for the further term of six years, and should give six rao]iths' notice in writing of his desire, the lessor would execute a renewed lease for the term of six years, at such rent as might be either agreed upon by mutual consent, or fixed by four arbitrators, two to be chosen by the lessee, and two by the lessor, STiRAlTS SETTLEMENTS. 69 At some subsequent time, it does not appear precisely when, the excepted portions were thrown into the lease at an additional rent of 15 dollars per month. On the 29th November, 1882, an agreement for reclamation of land from the sea was made between ;.he Government and a number of persons, of whom tlie lessor was one, described as " owners of lots of land on the East side of Beach Street." The effect of the agreement wa,s that the Government would reclaim and fill up the mud bank lying between the land owned by the owners, nnd a certnin line drawn to tlie Eastward, which was the seaward side of it, and would construct a quay at the seaward end ; that each owner would pay 65 cents a square foot for the reclaimed land lying between his lot and the quay; and should receive a grant of such land in fee simple with a quit-rent reserved. On the 16th December, 1882, the lessee gave to the lessor, written notice of his desire to take a renewed lease of his plot at the former rent, and on the former conditions. On the 22nd June, 1883, the lessor and lessee agreed to vary the terms of the lease by leaving in the hands cf the lessor some godowns, said to be in disrepair and useless, in consideration of his paying assessments and rates upon them. But the lessee's rent was not to be diminished on that account With this varia- tion, the lease was renewed at the former rent, by deed, dated the 15th November, 1883, according to the covenant for renewal. The reclamation works came opposite to the lessee's plot in February, 1 884, when he presented his petition of right. The Gov- ernment denied his right to recover damages on several grounds. First, it was contended that his right to use the foreshore as an access to the sea was no greater than the right of any other of the public, and that it gave him no ground of action. To this it was answered that, with respect to riparian owners on tidal rivers, the contrary rule was laid down in Lxjon v. The Fishmongers' Co., and that for this purpose no distinction can be taken between a tidal river and the sea. Both the Courts below were of this opinion, and their Lordships concur in it. In- deed, it was not seriously combated at this Bar on the part of the Government. The next defence of the Government was that the Crown cannot be sued in tort, a point apparently not raised in the Colony, but insisted on here. It is disposed of by the Crown Suits Ordinance of 1876. The object of that Ordinance is to make better provision by law for [among othei- things] giving redress to persons having claims against the Crown in the Colony. And by Section 18, Sub-section IT., it is enacted as follows : — " Ajiy claim against the Crown founded on the use, or occupation, or right to use or occupation, of Crown lands in the Colony, and any claim arising out of the revenue laws, or out of any contract entered into, or which should have, or might have been, entered into on behalf of the Crown, by or by the authority of the Government of the Colony, which would, if such claim had arisen between subject nnd subject, be the ground of an action at law or suit in equity, and any claim against the Crown for damages or compensation arising in the Colony, shall be a claim cognizable under this Ordinance." F0ED,C.J. Wood ") & ^J.J. Shekiit.J 1885. Attoknet- GrENEBAI, V. Wemyss. [Judgment of the Privy Council.] 70 THE SUPREME OOUllT. FOED, C.J Wood & i-J.J Sheeiff 1885, Their Lordships are of opinion that the expression " claim "against the Crown for damages or compensation" is an apt expression to include claims arising out of torts, and that as claims arising out of contracts and other classes of claims are expressly mentioned, the words ought to receive their full meaning. General i In the case of Farndl v. Bowman, attention was directed by "■ ! this Committee to the fact that in many Colonies the Crown was Wemtss. -j^^ ^j^g j^g^^,-^. Qf undertaking works which, in England, are usually [Judgment ; performed by private persons, and to the consequent expediency of the Privy: of providing remedies for injuries committed in the course of Council.] 1 ti^ggg v/orks. The preseni case is an illustration of that remark. ; And there is no improbability, but tlie reverse, that when the i Legislature of a Colony in such circumstances allows claims ; against the Crown in words applicable to claims upon torts, it / should mean exactly what it expresses. Another contention which appears to have been more pres- sed in the Court below than here, was that the lease of 1883 was not in pui-suance of the covenant of 1877, because the subject- matter of it was not identical. If that were so, the lessor could not by his lease pass to the lessee any right which he could not himself have enforced; and the agreement of November, 1882, effectually precluded the lessor from complaining of injury from the reclamation works. Their Lordships however are clear, agreeing herein with both the Lower Courts, that the circumstance that the later lease did not embrace the whole property comprised in the earlier one is no reason for holding that it was not a fulfilment of the covenant for renewal. The lessee insisted on his covenant, and not the less so, because for mutual convenience an arrangement was made which the parties might have made at any time, and which did not in any way affect the interests of the owners of the foreshore. An ingenious argument was then presented, and very ably presented, on behalf of the Government, to the effect that its right to execute works which might injuriously affect the land of the ov/uers was prior in time to the interest conferred by the renewed lease. It is said that the covenant for renewal was one that could not be enforced by way of specific performance ; that it conferred no interest in the land upon the lessee ; that no such interest was acquired by him till the 22nd June, 1883, when the terms of renewal were agreed on ; that in November, 1882, the lessor had given to the Government a license to execute the works affecting the land; that he thereby bound himself not to grant any interest in the land which should derogate from that license; that his obligation affected the land ; and that what the lessee took under the renewal, he took subject to the license. Whether the argument would be sound if the agreement of the 29th November, 1882, purported to give such a license to the Government, is a point on which their Lordships do not pronounce ' any opinion. They think that the agreement is not to be so construed. The owners, agree to nothing except to pay for the land. They give no warranty, covenant, or license. They do not purport to represent anybody but themselves. There is nothing STRAITS SETTLEMENTS. 71 Atioknet- Geneeal V. Wemtss . to show that the Government was not taking the usual course, by Foed.C.J. making inquiry of the parties in actual possession, and dealing ^°°^ ) with them according to their interests. Undoubtedly, the owners sueeifp.J preclude themselves, and of course all who claim through them by 1S85. title siibsoquentiy arising, from complaining if the works they have sanctioned injure their property. That is all. '!'he interests of other parties, of all who claim under prior obligations, are left untouched. The view now put forward by the Government comes to this, thiit without; any express word to that effect, the lessor rr .^ bound himself farst to commit thi- injustice of refusing to perform of the Privy his covenant with the lessee, and, secondly, to pay the very sub- Council.] staritial sum whi(di would be awarded ns damages for breach of covenant. iSuch a construction puts an unjustifiable strain on the expressions in order to reach a very improbable conclusion. Their Lordships hold that the agreement of 29th November, 1882, does not in any way diminish the lessor's power or obligation to perform the covenant for renewal, or the lessee's rights under that covenant. The result is that, in their Lordships' opinion, the appeal ought to be dismissed, with costs, and they will humbly advise fler Majesty accordingly. CHE AH POH NHOO v. ONG LOON TEK & ORS. A "Writ ou mosue process, tefore judgment, wiis directed to isiue under Section -122 B. of the Civil Procedure Ordinance, 1878, for the arrest of a defendant and his imprisonment for six weeks, "unless he give security that he would not leave the jurisdiction without the leave of the Court." The form of such a AVrit is No. 53 in the appendix to the amending Ordinance 8 of ISSO. The plaintiff thereupon took out a writ in accordance with the repealed form No. 40 in the appendix to the Civil Proce- dure Ordinance 5 of 1878, directing the arrest of the defendant and his imprisoimient for six months, unless he gave security in the sum of $1,200 for his " appearance at any time when called upon, while the suit \v:\s pending or until execution or satisfaction of any judgment that might be passed therein against him, and in default of such appear- ance, for the payment of any sum of money that may be adjudged against him in the said suit with costs, or until he shall otherwise be lawfully delivered from custody." The defendant having been arrested and kept in custody, a few days after was released on bail. The bond A\'liich he and his sureties were required by the Sheriff's bailiff to execute, before releasing the defendant, was in ?2,000, and after reciting the aforesaid suit and writ, was conditioned to be void, if the defendant would " not go or attempt to go into parts beyond the jurisdiction of the Court without first satisfying the amount of judgment and costs recovered against him in the suit." The defendant and sureties were aware of the terms of the bond and executed the same willingly, they did not then know however, that the writ was void or that the security they were required to give, was beyond what the law required under an arrest ou mesne process. The plaintiff having thereafter obtiined judgment with costs, the defendant immediately absconded, without paying up any i>art thereof. The plaintiff then sued the sureties to recover the ?2,000 on the aforesaid bond. PenanGt. Wood, J. 1885. March 16. Held [1] the writ which had been issued against the defendinl was void ah initio, as being in contravention of the order of Court, and not authorised by law, [2] that the sureties in the bond were not estopped by their bond and the recital of the writ of iCrrest therein, from questioning the validity of such vmt, and |'3] that the bond was void, — as having been obtained by duress, as the security required of the sureties in order to procure the release of the defendant, was more than i\as required by law, and as the detention of the defendant under the aforesaid writ was illegal and could not be enforced against the sureties, by the plaintiff. ?2 THE Supreme court. V. ONa IiooN Tek & Obs. Wood, J. This was an action to recover $2,000 on a bond made by the ]^' defendants, as bail or sureties for one Poh Dait, to the plaintiff. Cheah Poh The bond had been given under the following circumstances. The Nhoo plaintiff, as the attorney of one Khoo Nai Snan, had in February, 1884, commenced an action, in this Court, against the said Poh Dait, to recover $1,000, for money had and received by the said Poh Dait from Messrs. Ban Chin Hong & Co. for the plaintiff's use. On the 25th February, the plaintiff applied for and obtained an order under Section 422 B. of the Civil Procedure Ordinance, 1878, for the arrest of the said Poh Dait, and his imprisonment for six weeks "unless he gave security that he would not leave the jurisdiction without the leave of the Court." This was the only form of security that was authorised in an action for debt under the Civil Procedure Ordinance before judgment; and the form of the writ is given in No. 53, in the appendix to the amending Ordinance 8 of 1886. The plaintiff, on obtaining this order, through inadvertence or otherwise it did not appear, toot out a writ which was addressed to the Sheriff and omitting formal parts, was as follows : — ■ " Whereas it lias been shewn to the satisfaction of the Court, that Poh Dait, the abovenamed defendant, is about to abscond, you are hereby com- manded to take and arrest the body of the said Poh Dait, and to deliver him to the keeper of tlic Civil Prison, there to be kept for a period not exceeding six months, until he shall have given bail, or security, in the sum of $1,200 by deposit or otherwise, to the satisfaction of our said Court, for an ap- pearance at any time when called upon while the above suit is pending, and until execution or satisfaction of any judgment that may be passed therein against him, and in default of svTch appearance, for the payment of any sum of money that may be adjudged against him in the said suit with costs, or until he shall otherwise be lawfully delivered from custody under the said arrest." This form was the old form. No. 40, in the appendix to the Civil Procedure Ordinance 6 of 1878, Section 393, as regarded ar- rests after judgment, which section and form had been repealed by Section 14, Ordinance 8 of 1880. The sum of $1,200 was made u]} of the amount ftl,000 sued for, and $200 the probable costs of suit. The said Poh Dait was taken into custody by the Sheriff on this writ, and kept in custody till the 27th February, when the defendants in this action, offered to go surety or bail for him. The Sheriff's bailiff, acting as he considered in pui-suance of this suit, and after communicating with the plaintiffs' Solicitor, re- quired that before the said Poh Dait could he discharged from custody, he and they as sureties, should execute a bond in |2,000 [intended to be double the amount sued for in the action] which, — omitting the usual words binding them, their heirs, executors and administrators to pay the said sum, and the attestation clause, — proceeded as follows : — " Whereas the aboveuamed Poh Dait has been arrested by the above- named Cheah Poh Nhoo as such attorney as aforesaid, by virtue of a writ of arrest tested the 25th day of Fedruary, 188 1, issued out of the Supreme Court of the Sti'aits Settlements, in the Settlement of Penano-, in a certain suit wherein the said Cheah Poh Nhoo as such attorney as aforesaid is plaintiff, and the said Poh Dait is defendant, and whereas the above bounden STRAITS SETTLEMENTS. 73 Ong Loon Tek, Lim Gm Tek and Khoo Khay Hock now stand bail or secu- rity for the said Poh Dait, and the said Poh Dait has to be delivered up to such bail, now the condition of the above wi-itten obligation is such, that if the a,bove bounden Poh Dait, will not go or attempt to go into pai-ts beyond the Jiu-isdiction of the said Court, without first satisfying the amount of judgment and costs recovered against him in the said suit, then the above written obligation to be void and of none effect, but otherwise to be and remain in full force and virtue." The said Poh "Dait, and the defendants herein as sureties, were aware of the terms of the bond, and of their own free will agreed to execute this bond, knowin^, 9 Q. B. 14; Zouch V. Wallinsgate, 1 H. Bl. 311 ; Bi'avan v. Delnliay 1 H. Bl. 8 ; Mayor of Tlutford v. Taylor, 8 Q. B. 9.5 ; Wnodfall on L. & T. 829, 384, 389, 391 & 527 ; Redman on L. & T. 154, 155, 213 ; Distress Ordinance 14 of 187C, sec. 22; 8 Anne c. 18, ss. 6, 7; Addison on TortK, 518, 523. Wood, J. considered that theie was no power in a landlord to increase his tenant's rent by a notice, and unless there was an agreement by the tenant to pay such increased rent, or there were such facts in the case, as by his conduct or otherwise, from which the Court could infer an assent on his part, he could not be made liable therefor; that if a landlord considered he should get more rent and the tenant declined to pay it, the only remedy open to the landlord was, after giving the tenant a proper notice to quit, to sue him in an action of ejectment ; but he had no right to distrain for his increased rent. That to entitle a landlord to distrain there must be an agreement to pay rent, and that for a fixed and defi- nite amount. Here the rent at $5 per month was not agreed to, and the amount of the rent that should be paid per month was a matter in dispute between the landlord and tenant. The distress therefore was iiTegula.r and improper, and the rule must be made absolute — reversing the decision of the Commissioner— discharging the distress warrant — and ordering the refund by the landlord to the tenant of the $18.25 taken out by him, together with the costs of this rule. LIM TUAN HONG v. HBEMANN JEBSEN" & Co. It is irreo-ular for a Magistrate, on investigating into a charge against a prisoner for an offence during the course of the investigation, to place a witness who has given evidence before him, in the dock, and to enter a charge against him for the offence, and to proceed therewith and convict him thereon. Such a conviction will be quashed • An order to try a prisoner on a charge, de nono, does not prevent a fresh and different charge-but of the same class— being entered against him, and enquired mto. An amended charge, mu.st be read or explained to a prisoner, under Section 53 of the Criminal Procedure Ordinance 6 of 1873, whether the prisoner be defended by Counsel or not ; an omission to do so renders a conviction on the amended charge, liable to be quashed. Penang. Wood, J. •^ 1S85. April 27. 80 THE SUPREME COURT. Wood, J. 18S5. LiM TaAN Hong V. Hermann Jebsen & Co. Though it may not be actually illegal for a Magistrate who has once tried a case and convicted a prisoner, to try the prisoner de novo, on an order by the Supreme Court directing a trial de novo, still it is highly objectionable that he should do so. He should allow the trial de nooo to be had before another Magistrate. One Kurpen, a coolie in the firm of Hermann Jebsen and Companj^ was, on the 28th dn.y of July, 1881., charged before Henry Arthur Thompson, Esquire, Magistrate, Penang, for that he the said Kurpen did, on the 25th day of July, 1884, at Beach Street, Penang, commit theft in a building used for the custody of property by Hermann Jebsen & Co., to wit, seven bottles of Vermouth, one bottle of Brandy, one bottle of Beer and six boxes mirror lids valued at $2, and had thereby committed an offence punishable under Section 380 of the Penal Code. On the hearing of the charge, the abovenamed appellant, who was a clerk in the employ of Hermann Jebsen & Co., was called as a witness for the prosecutii)n, and after he had given his evidence, and on the prisoner Kurpen thereupon stating that the witness had given the bottles done up in a gunny bag and had told him to take them to the witness' house, the Magistrate ordered the appellant to be placed in the dock and a similar charge to be entered against hiin. The case then proceeded, and after further evidence had been called, the prisoner Kurpen was discharged, and called as a witness for the prosecution, and at the close of the case the appellant was sentenced to six weeks' rigorous imprisonment. Against this con- viction, the appellant appealed ; which apjDeal came on for hearing on the 8th September, 1884, when the Court held that the case had been irregularly heard and determined, and quashed the con- viction, remitting the case back for re-hearing on a fi-es li charge. The appellant was thereupon, on the 26th September, 1884, again charged before the same Magistrate, and as the case stated by the Magistrate shewed, upon the same charge [Section 380], but the convictioii was under Seotion^^Sl, for the offence of theft as a clerk, and the appellant was sentenced to three months' rigorous imprisonment. On this appeal, C, Logan, who had appeared for the appellant before the Magistrate, filed an affidavit, wherein he stated that at the second hearing of the case, the Magistrate had called for the notes taken by him on the first hearing, and had among other things therein recorded, read the evidence given on oath by the prisoner himself [the present appellant] at the first hearing, before he was placed in the dock, and that he believed that the second hearing was not a fair one to the prisoner, as it was evident all through, that the Magistrate could not divest his mind from the conclusion he had formed at the first trial of the prisoner's guilt, and had therefore, for some reason or other, sentenced the prisoner to double the term of imprisoinent he had at first sentenced him to. To this affidavit the Magistrate filed a counter one, admitting that he had called for his notes of evidence taken on the first trial, but stating that he had only referred to the notes to see if the witnesses ha,d given substantially the same evidence as on the first trial, that he verily believed he had not read the evidence given on oath by the appellant at the first trial, and denied that he had been in any way influenced against the appellant by anything that had taken place on the first trial ; that STRAITS SETTLEMENTS. SI before beginninjT the second hearing, ho had informed Mr. Charles Wood, J. Logan that his client would be charged mider Section 381, and ^^' tliat he had nnder that charge increased the punishment, as he Lim TnAi,- considered the prisoner's offence more serious than a common Hono theft. It was admitted that the Clerk had omitted to alter the jj^j^^'^j,,, charge to one under Section 381, or to read the new charge to the jemenTco. prisoner. Van Somsren for the appellant. TJie order was to try the case de novo, that is, upon the original charge, and not upon a fresh charge 2. — The amended charge was not read to the accused as directed by Section 53 of the Criminal Procedure Ordinance 6 of 1873, and although the Counsel for the accused might have been informed of the amended charge, that is not a compliance with the direction in the Ordinance that amendments shall be read and explained to the accused. A prisoner can consent to nothing, much less his Counsel — Be^iwa v. Bertrand, 1 L. R. P. 0. 620. The omission to make the formal amendment, and to read the same to the prisoner, was fatal, being a non-compliance with a statutory enactment. 3. — The Magistrate read or consulted the evidence taken before him in the first trial, this evidence was, in the first place, not evidence taken on the second trial, and secondly, it contained the evidence of the prisoner himself, which was not properly admissible, and even if the Magistrate did not read the evidence of the prisoner, he did read the evidence of all the witnesses. 4. — -It was objectionable, though not illegal, that the same Magistrate should have re tried the case, as his mind had been made up. D. Logan, [Solicitor-General] for respondent. The only irregu- larity is the substitution of Section 381, for Section 380, in the conviction, and as this has occasioned no failure of justice, the Court can amend the conviction, or direct the accused to be tried again on a proper charge. Appeals Ordinance 12 of 1879, Section 34. Wood, J. The firsr, ground of appeal does not appear of any weight, but the omission to read the amended charge to the , prisoner, was an irregularity of a grave kind, and although I doubt ; whether I am called on, imperatively, by Sub-section J of Section 3i of the Appeals Ordinance of 1879, to direct the prisoner to be tried on a proper charge, I think that in the interests of justice, the irregularity should not be overlooked. I also consider it is to be regretted that the Magistrate should have referred at all to his previous notes. It stands almost to reason that it is improper for a Magistrate who has tried a prisoner in a summary proceeding, and is thus both judge and jury, to try the prisoner again on a fi-esh charge, when it is in any way possible to secure the atten- dance of another Magistrate. Such a trial is identical with the re-trial of a case by a jury, which as already found a verdict of guilty on the same charge. Such a proceeding is always regarded as, if not actually illegal, highly objectionable, and I therefore remit the prisoner to be tried again by another Magistrate on a fresh charge [o.] [a.] The case was eventually dropped and the prisoner discharged.— J. W. N. K. 82 THE SUPREME COURT. NANA EBRAMSAH v. KAT BAWA & ANOR. PEicANa. A memorandum of purcliase of lands, at public auction, ivhich does not on its face shew what the conditions of sale are, — or at least something connecting it with Wood J. conditions of sale on a separate paper — is not a sufficient contract within Section 4 of 1SS5. " the Statute of Frauds, 29 Car. II. c. 3. It is the duty of a plaintiff, before he sues upon a contract for the sale of land, to May I. satisfy himself that there is a sufficient contract under the Statute of Frauds — and although the defendant may not plead the Statute as required by Section 175 of the Civil Procedure Ordinance, but at the trial is allowed with the plaintiff's consent to amend his defence, by doing so — he [plaintiff] ivill be ordered to iiaj the costs of the action, even if the case goes oil solely on account of the Statute. This was an action to i-ecover $169-55 daitiages for breach of contract for the purchase of land by one Shayna Ebramsah deceased, of whom the defendants were the executors. The phiintiff's case wn.s that he had"put up cerlain lauds situate C)ff Biirmah Road, in lots, to sale by public auction, and that two of such lots had been purchnsed at such auction by the said Shayna Ebramsah. deceased, who had signed the memo, of purchase, but had died before completion of the purcliase, and the defendants, his executors, had refused to do so. That under the conditions of sale, the two lots had thereupon been put up fur re-sale by auction, find had together fetched $103 below the sum for which they were knocked down to the said Shayna Ebrnmsah, which sum, together with the charges attendant on such re-sa.le, the plaintiff now claimed of the defendants. The memo, of purchase which was in the auctioneer's book, was to the effect that the lots thereunder mentioned, of all that piece of land situate off Burnnih Road in Penang, beloriging to the plaintiff, were sold by public auction subject to conditions of sale to the persons signing, and at the prices set opposite each respective lot — then followed three columns, the lirsfc, of the nuuiber of the lots, the next, the prices for which they were knocked down, and thirdly, the signatures of the purchasers. The memo, showed in the iirsr, column the two lots purchased by the said Shayna Ebramsah, with the amount bid for each lot in the second column— which lots and figures were bracketed and signed in the third column by the said Shayna Ebramsah. No conditions of sale appenred on the face of this memo ; nor was there any reference therein to any specific conditions of sale. At the trial the auctioneer produced certain conditions of sale on a separate piece of paper which he said were the conditions of s:i,le referred to in the memo, of pur- chase; but there was nothing on the face of the conditions of sale which connected them with the memo, of purchase. The defendants had, in their statement of defence^ denied the contract but did not plead the Stiitut(^ of Frauds, 29 Car. TI c. 3. They however, on the opening of the case, applied for lea.ve to amend, by adding such a defence, which the idaintitt''s Counsel consented to, and leave wa,s granted and the amendment made. The case then proceeded, and on the conclusion of the plaintift''s case^ Van iSomerrv, for defendants submitted there was no case to answer as tliere was no sufficient contract within the fourth section of the Statute of Frauds, as there was nothing on the face STRAITS SETTLEMENTS. 83 of either the memo, or conditions of sale, to connect them together, and there was therefore notliing to make the defendants liable for the deticienoj and expenses on the re-sale. Hp referred to Merten, v. Adcnck, 4 Esp. 251 ; Hinde v. Whitehouse, 7 East 558 ; Boyddl v. Drummond, 11 East 142 ; and Peine v. Corf 9 L. E. Q. B. 210. Hogan, for plaintiff cnntrd. He further submitted he was taken by surprise and aslced for an adjournment. May 8. Hogan, for plaintiff admitted that having looked up the authorities he could not contend the contract was sufficient within the Statute of Frauds, but he contended that under Section 175 of the Civil Procedure Ordinance, 1878, the Statute of Frauds must be specially pleaded— and but for his having con- sented to the statement of defence being amended, the defendants would have been debarred from relying on the Statute. Ho referred to Clarke v. Callow, 46 L. J. Q. B. 5;3. Had the Statute been pleaded earlier, he submitted he could have had an opportu- nity of looking lip the authorities, and would not have proceeded further with the case. The defendant's omission to do so, had brought about the whole of the cost of the action from the date of the filing of the defence ; aud he asked therefore that the defendants should not be allowed their costs. Van Someren for defendants submitted that the fact that the case was on forbearing for a second day, was due to the plaintiff. He should have satisfied himself there was a sufficient contract before he sued ; and when he found he could not support his case after the last hearing, he should have notified the fact to the defendants so as to have saved them the expense of that second day. Wood, 3. said it was clear there was no sufficient note or memorandum of purchase within the fourth section of the Statiite of Frauds, and had the plaintiff troubled himself to see if the contract here was sufficient he would without any difficulty ha.ve found it was not. He should have done this before he com- menced bis action; so that the costs incurred were entirely due to his own laches — As regarded that second day's hearing also, the fault was his, for he might have intimated his intention of not proceeding further with the action, so as to have saved the defendants the cost of that day. The defendants, no doubt, would have been debarred from relying on the Statute as the statement of defence originally stood — but the plaiiatiff had con- sented to allow him to amend by raising the defence. He had only himself to blame again. There was no doubt he was taken by surprise at the first day of hearing, when it was pointed out the contract was insufficient. On the whole, he [the learned Judge] considered that the most the plaintiff could expect was, to be excused from paying the costs of the first day of hearing [1st May] — and the order he would make was, that judgment be entered up for the defendants with costs except the costs of 1st May, the first day of hearing. Wood, .T. 1885. Naxa e beams ah U. Kat Bawa & Anob. 84 THE SUPREME COUilT. EBGINA V. CHEAH TEE & ANOR. Wood, J. 1885, May 4. A common brothel is not a "public place" within the meaning of Section 159 of the Penal Code. A person, not an inmate of the place, who is found armed in a brothel is not found "abroad" within the meaning of Section 32, clause 5 of Ordinance 13 of 1872. Tlie appellants witli others had been convicted by H. A. Thompson, Esquire, Magistrate, for committing' an affray under Section 161 of the Penal Code. The appellants were also con- victed of being found abroad after sunset and before sunrise armed with two tridents without a pass, under clause 5, Section 32 of Ordinance 13 of 1872, and were severally sentenced to fine and imprisonment. The evidence shewed that at 9.30 p.m., on the 6th October, 1884, cries for Police were heard to proceed from a licensed brothel in Campbell Street, and upon the Police enter- ing the house a large number of Chinese were fonnd fissaulting each other. The Police arrested nine of the men of whom the n.ppellants were two; the appellants were found armed each with a trident, the others with sticks. None of the men, belonged to the house. The fight was between a party of Cnntonese and a party of Ilokiens and several of the men were much hurt. The appellants appealed against their conviction. Thomas, for the appellant. A brothel is not n, " piiblic place," but a private establi.^liment to which access may be denied by the proprietor to whomsoever he pleases. To constitute an "affray" the place mnst be a public place — Section 1-59 of the Penal Code, and the disturbii.nee must be to the tenor of the public, 1 Rns!^. on Crimes, 390. As to the conviction on second charge the appellants were not "'found abroad," but in thebi-othel, and were not therefore within Section 32, clause 5 of Ordinance 13 of 1872. D. Logan, [Solicitor-General] for the respondent. A brothel is open at all times to any one who chooses to enter. At all events such a house may well be regarded as a public place while such a la.rge number of men [as shewn by the evidence] were assembled in it. 1 Bishop's Cr. Law, 315 ; Mayne on the Penal Code, 246 [note to sec. 294J, and Regina v. Harris, 1 L. It. C. C. R. 282. Wood, J. Inasmuch as a brothel in the ordinary acceptation of the word [and without evidence that the proprieti.r has given any general privilege to the public to enter at their will] is not an establishment into which aTiy one is at liberty to enter whether the proprietor likes it or not, I consider an ordinary brothel, such as this one appears to be, is not a '■ public place" within the meaning of Section 159 of the Penal C^ode. I also consider the prisoners cannot be said to be " abroa.d " when in such brothel, within the meaning of Sub-section 5 of Secli(m 32 of Ordinance 13 of 1872. The conviction must therefore be cpiashed. Conviction quashed. STRAITS SETTLEMENTS. AEMOTHA PULLAY v. MARIMOOTOO. 85 A Magistrate who dismisses a uluirgo of extortion has no power to order the return of tlie property or ro-paynient of the money alleged to be extorted. The appellant. Armotlia PulLiy on 29fcli October, 1884, wais charged before J. K. Birch, Esquire, Magistrate, under Section 384- of the Penal Code with extorting- $3 from the respondent by threatening to expel the respondent from the hindu community. The evidence shewed that the appellant was a headman of the hindu community, and had fined the respondent |3 for some irregularity committed by him, and threatened to expel him from the community unless the fine was paid, upon which the -f 3 wns paid to him, and was to be applied towards some idol feast. On the conclusion of the case for the prosecution, the Magistrate dismissed the cnse, considering that although the appellant had no authority in law to impose a fine, yet he had acted hov a fidf. under the belief he was discharging a duty. The Magistrate further stated that he had reason to believe that certain persons taking advantage of the ignorance of those of their nationality about them, constituted themselves headmen in order to practice imposition by fining people with that object He considered that this should be put a stop to. While therefore dismissing the case he directed that the §3 paid by the respondent should be refunded by him in order that headmen might know that they would not be allowed to retain any fines Ihey imposed, and the people that they need not be imposed on. The appellant paid the ^3 under protest and then brought this appeal. Anthony, for the appellant contended that the Magistmtehad no power to direct a refund of the §3, and his order should be set aside. J). Logan, [^Solicitor-General] for the Crown was heard in support of the order. Wood, J. Though it is desirable that the poor and ignorant should be protected, yet I know of no law which enables a Magis- trate to make an order such as this. Having dismissed the case he was functus officio, and could make no order for the re-payment of the $3. The appeal will be allowed, and the $3 must be repaid by the respondent with the appellant's costs out of pocket. Penano. Wood, J. 1885. May 4. NAIN BOON KEOW v. LETCHMAN CHETTY & ANOR. A person ^^'ho deals with a woman, is bound fully to enquire wliellier she is a married \y6man or not, and he is not excused from such enc(uiry, simply because she represented herself to be a wido\v, although she m:iy have in so repi-esenliug herself intended to mislead and defraud him and did in f;ict do so. [a.] The husband of a married woman, on disroverini.'- his wife had purchased some lauds, [altliongh the money for such purchase was raised on mortgage of the land by her to a tliird party, by means of a misrepresentation that .she was a widow] —is entitled to [a.] But see Jones v. Smith, 1 Hare 43 ; on Appl. 1 Phil. 244 ; and Lloyd's Banking Co. v. Jones, 29 L. E. Gh. Div. 231.— J. W. N. K. Penang. Wood, J. 1885. Mav .■). THE SUPREME OOURl'. Wood, J. 18S5. Nain Boon Keow v. Letohman CllETTT & Anok. recover possession of the land, and have the Mortgage Bond to such third party cancelled notwithstanding he neither offers to, nor in fact recoups the Mortgagee the amount he had lent. This was a suit to Lave a Deed of Mortgage declared void and ordered to be given np to be cancelled. The facts were as follows ; the plaintifE was a Siamese Doctor and bad a wife of the name of Nonia Lim Chee by whom he had several children, some of whom had grown up. He entrusted his savings with his wife, but some time before her death she had taken to gambling and without bis knowledge had spent all his savings. The wife, witliout tlie knowledge of the plaintiff, her husband, agreed with oneNoniaGek, for the purchase of certain lands in Bridge Street, Peuaug, for $G00, and tboreupou arranged with the defendant Letcbman Chetty for the loan of that sum to her for the purpose on the mortgage by her of the lands. The defendant Letchman Chetty did not know Nonia Lim Chee before, and was introduced to ber by the said Nonia Gek as a "widow," Nonia Lim Chee also said the same and reiterated the statement to the Conveyancer wJio drew up the mortgage bond. The defendant Letchman Chetty was not acquainted with the plaintiff, and made no further enquiries beyond questioning tlie two women as above stated. On the next day, the 13tb September, ISS'-i, the defendant Letcb- man Chetty in fall fnith of the representation made to him,- and believing he was dealing with a widow lent Nonia Lim Chee the §600, and she then and there paid it to the said Nonia Gek and jsrocured a conveyance of the laud from her and immediate!}' thereafter, executed the aforesaid mortgage bond thereof to the defendant Letchman Chetty, for the full sum of $600. In botli the conveyance and mortgage bond the said Nonia Lim Chee was described as "widow." The two women afterwards arranged ^yith the Chett3'-defendant that be should call for payment of his interest at the house of Nonia Gek as he did not know the residence of Nonia Lim Chee. He thereafter did so and was regularly paidhisinterest tillthe death of NoniaLim Chee in August, 1884. Not being able to obtain his further interest and the bond being overdue, the defendant Letchman Chetty advertised the lands for sale by public auction ; through the second defendant, an auctioneer. The plaintiff had a few daj-s previous to the death of Nonia Lim Chee been told by the said Nonia Gek, of the purchase of the lands, but not of the mortgage. This he only discovered on the notice of sale by the auctioneer as aforesaid, being posted on the land. He then commenced this suit, but neither paid up nor offered to pay the amount of the mortgage. Thomas, for plaintiff'. The authorities shew that a wife or infant, guilty of fraud, must pay for the fraud out of some fund over which she, or he, had some power of disposition. Here the land was conveyed by Nonia Gek to the plaintiff''s wife, and the property eo instante became the propertj- of the plaintiff, the husband ; and he is entitled to get it unincumbered. 1, Roper on Hus. and Wife, 3d. It did not form the " separate estate " of the wife and she had no such estate out of which two recoup the defendant. The defendant also had had recourse to subterfuge, StRAlTS SBT'tLEMENTS. 87 by collecting his intevest at Noiiia Gek's. Why did he remain satisfied, without knowing- where Nonia Lini Chee lived? In dealing- with ;l woniaii he sliould have been cautions ; here he made no reasonable enquiry to find the true s/c/its of Nonia Liin Chee; had he dune so he would have found she had grown up children and he would have discovered she had a husband living. Van Smni'reu, for defendaiits. The defendant used all reason- able precaution. He and the conveyancer both questioned the woniaji as to her status and were answered by both the women that Nonia Chee was a widow. The defendant did not know Nonia Lim Chee before,, he did not know who were her friends or acquaintances ; of whom then was he to enquire further concern- ing her y The description of the v.'oman in the conveyance and bondfunher led him to believe all was right. There was in fact, nothing suspicious in the whole transaction and nothing to put him on enquiry. The arrangement as to where the interest was to be paid was not an uncommon thing and was entered into bond fide, for thf woman's convenience. There was nothing to excite the defendant's suspicion about it, and it was only made after' the money had been lent and the mortgage bond executed. The property was the husband's only by a legal fiction. As a fact neither he nor the wife, had supplied the money for the purchase of the land, but the defendant; and the property might well be considered his. A married woman or an infant who is guilty of fraud, is liable to make good the loss they occasion out of their property ; Liverpool Ailelpki Loan Association v. Fairhnrst, 9 Ex.422, Wriylii V. Leonard, 11 C. B. [ N". S. ] 257; StiJcuvian v. Dinvson, 1 De G. and Sm. 9U ; Ex-parte United Joint Stock Association, EsKing, 3 De G. & J. G3 ; Nelson v. Srockar, 'IS L. J. Uh. [N. S.] 760; Savaye v. Foster, 8 Mod. 35; Vaughan v. Vauder- stegen, 23. L. J. Ch. [N. S. ] 793; William v. Stratton, 50 L. J. Ch. [ N. S. ] 495 ; 8har]je v. Foy, 4. L. E. Ch. Ap. 35, 42 : Even if the property be considered the husband's, and not the wife's own, — as by claiming the property as his, he ratifies her pur- chase, — he is bound to ratify her acts as a whole, including the mortgage made for the purpose of obtaining the money with which fihe land was purchased. He would claim the entire benefit, without any expenditure or outlay. If the Court grants him a decree, it will only do so on the ground that he recoup the defendant the amount he had lent for the purchase of the land. Granbi/v. Allen; 1. LJ. EaymoHd, 224. Wood, J. 1885. Nain Boon Keow V. Letchman Chettt & A NOB. Thomas, replied. Cur. Adv. Vult. June 12. Wood, J. In this case the facts are simple. Lim Chee, the wife of the plaintiff and entrusted by him with money purchases land in her own name without his knowledge, — the land she subsequently, also- without his knowledge, mortgages to the defendant representing herself to him to be a widow. Shortly before the death of Lim Chee, plaintiff is told of the purchase of the laud— but is never aware of the mortgage until after his 88 THE SUPREME OOUKT. Wood, J. 1885. Nain Boon Keow V. Letchjian Chettt & Anoe. wife's death, wlieu in default of payment of the principal sum the defendant proposes to sell the mortgaged premises under a power of sale. The plaintiff in his suit seeks to set aside the mortgage which he asks may be giv-u up to be cancelled. No authorities exactly in point were cited, and judgment was reserved. In a case like this it is necessary in the absence of direct quotable authority to rely on the main principles which govern the law of husband and wife in dealings with land. There is no doubt of the spoliation of the husband by the wife. The defendant in dealing with any woman should have satisfied himself of her true position and it is not enough that he also is deceived and suifers loss. The general rule is, " that whatever is sufficient to put the part)' to an iiiquii-y, is good notice in equity." 2 Fonhlavque on Equitij, note [m.]; and applying this principle, I have no doubt that neji'lifjence such as tliis structive notice, and the case is the same as were cognizant of the misconduct of the wife. Judgment for the plaintiff, in terms of costs, [a.] IS a form of C(jn- if the defendant th. e prayer, with NOOR MAHOMED MEEICAN & ANOR. MEEICAN & ANOR. V. NAOODAH Pekano. a legatee, does not lose his ri.i^lit to a legacy, by voluntarily intimating without . any valuable consideration that he never intends to take it, and even dies without Wood J. changing his mind on the point, but without having actually executed a release there- 1885. "'' — '^"''' l"'^ executor or administrator is entitled after his death to claim jiayment of the legacy. It makes no difference that such legatee is the executor of the testator June 23. '•'■"'^ ^^^ always refu.sed to credit himself with the legacy. A testator bequeathed " to mj- brother A'a.poo ilerican Xoordin whom I appoint the executor and trustee of this mjT will" a legacy of 54,000 "for his own use absolutely." Mnid, the legacy wa.s annexed to the office of executor, and the executor was not entitled to charge the usual executor's commission, in addition to the legacy. Calvarl v. Sehljon, 4 13eav. 222 followed. Comptoii V. Bloi^ham, 2 Coll. (:h. Hep. 201, distinguished. This was a special case filed in order to obtain the opinion of the Court as to whether under the circumstances hereinafter set out, a legacy could be considered as released, and whether the legatee [y\\o was also the execut:.or] was entitled to charge the usual executor's commission in addition to the legacy. The following are the only material facts [set; out in the case] which need be given in this report. One Nina Merican Noordin died in Penang, having first made a will dated 16th December 1879, by which he appointed his brother Vapoo Merican Noordin, his sole executor. In a.nd by the will, the said testator devised and bequeathed all his real and personal estates to his '' brother the said Vapoo Merican Noordin, whom he appointed the executor and trustee of the will," in trust to dispose of the same, as he \_(i.'] The defendant appealed against this judgment, but having left the Settlement before the Court of Appeal sa,t the appeal was dropped.— J. \V. N. If. STRAITS SETTLEMENTS. 89 thought proper aud thereout, iiiL:r alia, to pay himself " for his own use absolutely " the sum of $i,()00. Nothing was mentioned in the will as to whether or not the legacy was given in lieu of the usual executor's commission ; and no mention whatever was made in the will, as to commission. Vapoo Merican Noordiii proved thewill and took out Probate thereof, and administered the estate in accordance with the will [except as to paying him- self the legacy of $4,000] until the date of his death, on 24th July, 1884. Vapoo Merican Noordin died leaving a wiJl by which he appointed the plaintiffs herein his executors, and the defend- ants herein [also his executors] as his successors and executors of the said Nina Merican Noordin. The plnintiffs proved Vapoo Merican Noordin's will, a.nd took out probate thereof. By Vapoo Merican Noordin's will, he bequeathed the sum of $1,000 to each of his executors for their own absolute use and benefit, upon their proving his will and acting as his executors, in lieu of all commissions they might be entitled to, as such executors for administering his own estate and the estate of his brother the said Nina Mei-ican Noordin with a proviso allowing them nevertheless to charge a monthly or yearly commission at the usual rates on the rents and interest they collected for either estate. The said Vapoo Merican Noordin, frequently in conversation with friends said he never intended to take the legacy of §4,000 bequeathed to him by his deceased brother Nina Merican Noordin or any part thereof, and also never intended charging his estate with commission for administering the same ; he never mentioned the fact to the plaintiff Noor Mahomed Merican [one of his executors], but to the plaintiff [and defendant] Nacodah Merican [his other execu- tor] he frequently did so. The said Vapoo Merican Noordin always refused to credit himself with the legacy, and so far as was known died without ever having changed his mind on the subject, but he never however reduced his purpose and intention to writ- ing and never actually executed a release therefor. The state- ments were made by him voluntarily, and without any valuable consideration. In is will, he made no reference whatever to the legacy or commission. The plaintiff Noor Mahomed Merican was a legatee under the will of Vapoo Merican Noordin, aud there were several other legatees thereunder who were infants. The defendant Nacodah Merican was not [except as to the legacy of §1,000 in lieu of commission as aforesaid] a legatee thereunder. The commission, if chargeable, would have been about ecjual to the legacy of |4,000. Doubts having arisen as to tlie right or liability of the respective executors to credit or not credit the estate of the said Vapoo Merican Noordin with the said legacy or commission or both, this special case was filed for the opinion of this Court on the points as above stated. Vim Snmfir en, for plaintiffs contended, that under the circum- stances and without an actual release having been executed or any person having altered his position on faith of the deceased's statements the legacy was not forfeited nor released. No case in point could be found, but cases of an intended release of a debt, Wood, J. 1885. NooE Mahomed Mekican & Anob. V. Nacodah Mekican & Anob. 90 THE SUPREME COURT. Wood, J. 1885. Nooii Mahomed Mekican & Anok. V, Nacodah Mebican & Anok. were, in principle, applicable to this case. Byron v. Godfrey, 4 Ves. 6 ; Eden v. Smyth, 5 Yes. 341 ; Beeves v. Brytner, 6 Ves. 516 ; TufnelL V. Condahlej 8 Siinc-n 61); Flotcer v. Murteu, 2 Myl. & Gr 459; Cross V. Siirigij, 6 Hare 552; Peace v. Hams, 11 Hare 151 : Edwards v. Jones, 1 Myl. & Or. 226 ; Ilornor v. Heath, 27 L. T, [0. S.] 830; Taylor v. Mauneis, 1 L. R. Cli. Ap. 53 ; Yeoma.ns v )raiw;;(.v, 1 L. E. Ec|. \SA:; Strong Y. Blvd., 18 L. K. Eq. 315 Bottle V. Knocker, 46 L. J. (.li. [N. S.J 159; Woodward v. Hiimpage 8 Jur. [N. S.] 256 ; 1 Story Eq. Jur. §§ 433„ 706 [note]. He also contended the leo-acy was not ^iven in lieu of commission and the latter could be churged in addition to the former, and referred to Cockerell v. Barler, 1 Hmv. 23 ; and Gompton v. Bloxham, 2 Coll. Oh. Rep. 201. The latter he submitted was conclusive, the word " brother " coming in connection with the legacy shewed the testator gave the legacy to his executor, not qua executor, but apart therefrom and out of natural affection. Ross, [E. W. Presgrave Avilli him] for defendants contended, that in equity a release need not be by deed, and as Vapoo Merican Noordin Wiis the sole executor, he could not have executed a release to himself. The legacy was, under the cir- cumstances, released in equity — and they relied ou Peace v. Hains, and Flower v. Marten, supra. They also contended, the commission was about equivalent to the legacy, and could not be charged in addition thereto — that the legacy was a.nnexed to the office of executor, and they referred to t)ix v. Reed, 1 Sim. and Stu. 237 ; Ghetham v. Ld. Audley, 4 Ves. 75 ; Gockere/l v. Barber [on appl.] 2 Russ. 585 ; Slaney v. Watney, 2 L. R. Eq. 418; Re Dendy, 31 L. J. Ch. [N. S.] 184; Jewis v." Lawrence, 8. L. R. Eq. 345; and Re Reeves Trust, 4 L. R. Ch. Div. 841; and relied on In the goods y/' Russell [a.] and Calvert v. Sehbon, 4 Beav. 222, as decisive on this point. Gompton v. Bloivham, they submitted, was distinguishable, as the word " brother " here, was merely descrip- tive ; and in addition thereto, we had the words " whom I appoint the executor and trustee of this my will." Van tiomeren replied, contending these last words formed a parenthetical clause merely, and the word " brother" was not descriptive, and was wholly unnecessary except as evincing the testator's regard for Vapoo Merican Noordin. Calvert v. Sebbon, he submitted, was a short and unsatisfactory report, and was distinguishable froni the present, as there the legatee was spoken of '• as executor." Wood, J. held, that whatever might have been the intention of Vapoo Merican Noordin, it was clear he never effectually carried it out — and although the Court wished it could have seen its way to support that intention, it was bound to hold that the mere statements made voluntarily a,nd without valuable consi- deration, amounted to nothing in law or equity, and the legacy was not released. The fact tha.t the legatee here was also'^the executor of the deceased, made no difference, .is regarded the commission, the plaintiffs were not entitled to charge it in addi- [a.J Siuue reported— see Vol, 2 of these Beports, Huoles. Cases, 6. STfeAlTS SETTLEMElfTS. ^i tioii to tLe legacy of ^'?4,000. That legacy was given in lieu of ^Vood, J. commission, and was annexed to the office of executor— and the ^Jf^' words relied on by tlie Counsel for defendants were sufficient nook reason for holding it so be so, and Calvert v. Sehbon was a strong Mahomed authority in support of that view. The case of Gumptou v. iJ/ox'/iam had not words in the will jiijproaching to those words; and the mere fact that the word " brother" was there used and hiid holcl of by the Court as shewing a different intention was only a coincidence, but did not govern this case where the wording of the will was different. As each party had succeeded in one of the two points submitted, each estate would pay its own costs of this case. Mehican & Akoe. V. Nacouah Mbeican it Ano g. TURNER V. MANSFIELD & CO. lu order to justify the dismissal of a servant, it is not necessary tin I there should he Singapore. auy moral turpitude iu any act done by him ; it is a sufficient cause to dismiss him if he represent an untrue condition of tilings to his employer, though ho thereby causes Sidgbeaves, his emploj'er no actual loss. Whore therefore the jlauaycr of a Mercantile lirm had overdniivu his account, and was requested by the fiiiu to liquidate his debt ns soon as pn>sil]lc and at the end of the half-year not having done so, but — in order to induce the firm to believe he had to a certain extent done it — in making up the balance sheet he entered a balance only as due by him, and the difference betMeeu his actual debt and the balance he entered into the firm's Suspense account and i\rote to the firm enclosing the balance sheet and stating he had made payments to account of his debt, leaving oub' the balance shewn, — but a couple of months thereafter he paid off his iihole debt to the firm, so that the firm lost nothing by his above conduct, — but the luontli following the firm discovered what he had done and considering it no longer possible to entrust its affairs in his hands, summarily dismissed him from their service, upon A\"hich he sued them for wrongful dismissal, Jlehl, the firm was j iistified iu dismissing him. The nature and facts of this case, sufficiently appear from the judgment. DaDidson, for plaintiff'. Donaldson, for defendants. Owr. Adv. VuU. On this day Judgment was delivered by Sidgreaves, C.J. This was an action by the plaintiff' to recover damages from the defendants for improper dismissal from their service before the completion of his term of 3 years' service to be followed according to plaintiff''s contention by his being admitted into the defendants' business as a partner. At the trial, the defendants rested their justification for such dismissal upon one ground only, and although a number of other incidents were relied upon as explaining to a certain extent and leading up to this final act, none of them were relied upon as being sufficient either by themselves or conjointly to justify such dismissal. The plaintiff, who was engaged for the purpose of managing the defendants' business in Penang, arrived there on the 1st August, 1882, and in the following month, Mr. Bogaardt, then in partnership with Mr. Mansfield and now alone represent- ing the defendants' firm, went for the benefit of his health to C.J. WHS. June 2U. 92 THE SUPREME OOUiii*. SlDGBEAVES, C.J. 1885, Turner V. Mansmeld &Co. Europu. Ill May, 1883, Mr. Bogaardt returned, and on the 30th June of that year it appeared that the plaintiff had overdrawn his account ^2,157, and there was a conversation between them regarding it, nothing nnpleasant however being said by Mr. Bogaardt who was not at all unwilling apparenhly to assist the plaintiff at that time. On the 2()fch January, 1884, Mr. Bogaardt wrote to the plaintiff from Singapore as follows : — My deal- Turner, Singapora, 20Wi January, 1884. I sou further that you yourself have not paid off anything towards your deht to the firm. As I will sewn have to settle with Mansfield, I should like to know how you intend repaying thitj money. Since you have had §400 per month, you should certainly have heen able to make a move in this matter. Reniemlier that the money is enjoyed by you also without a single cent of interest, which I think is rather rougb on me. I hope now you will do your best to clear this debt before the end of the year. [Signed] Bogaaedt. On the 23rd January in a letter from plaintiff' to Mr. Bogaardt, the following occurs : — • Penanrj, 'iord January, 1884. My dear Mr. Bogaardt, As to mine. — May I remind you that I have twice proposed to pay interest, and I understood you to decline it ; but of course now yon Mnt at it I sliall at once debit myself with the amount at the rate you will name from any date, and you may be sure, I shall make every effort to work oil this debt as soon as possible. I must confess, I have not hitherto made it a first consideration, but henceforth will regard it as Gladstone does a tree — a thing that must be cut down at any cost. [Signed] George E. Tuenbe. To this, Mr. Bogaardt replied on the 26th Janiiary : — As to your deljt, don't think I will charge you any interest, but I certainly at the time expected you would at once have begun to pay off, and' shewn at least some difference at the end of the year. You have now a pay ample to pay off, and^ I now hope you will do your best to get it wiped off at your earliest convenience. In consequence of this the plaintiff determined that he would now begin to clear off the debt by paying $100 a month for that purpose, and during the first 3 months of that year he did with the exception of $2'0 in one month for a reason which he subse- quently explained, reduce the debt by $100 a month. At the end of the second quarter however, on the 30th June, the plaintiff found that he had not paid off anything. The over-draft then stood at ?2, 241.55 and would have to be sent in to Mr. Bogaardt at once. That would have been pn admission that for the last three inonth.s he had paid nothing towards discharging his debt. If he had sent in a true balance sheet, a,nd explained to Mr. Bogaardt his reasons for not up to thnt period, having been able to continue his payments, nothing detrimental to his position could have happened, and Mr. Bogaardt says he would not have been very STRAITS SETTLEMENTS. 93 angry with him if he had found o\it then that he had not continued such payments. Unfortunately, instead of adopting a plain straightforward course, the plaintiff adopted a tortuous one which has brought him into his present difficulties. The account of the transaction for which the defendants justify their dismissal of the phiintiff is thus given by the defendants' book-keeper, Mr. Romenij, who says he began as book-keeper to defendants in February, 1883, having come straight from school and without any previous experience : — SiDGREAVES, C. J, 1885. Turner V. Mansfield &Co. I made out the June Isalance sheet. The over-draft was !?2,24J-.5."). as it stood in the draft. I took the draft balance sheet to the plaintiff. He said " I cannot have so large a debt balance on my account; i mnst reduce the amount to §1,900." He told me to credit the amount over :?1,90() with the difference, and to debit the Suspense account. I said that the cash-book was closed, and that he coxild not pay in for that month. I said cash won't do for the account is closed. — He made no offer to pay in cash. He said — " The balance I want reduced to 1^1,900 and the difference I want to keep hanging till I have money in hand to pay it in." I said " I understand what you mean — ■ like a suspense item that you want to keep separate from your account and square it up when you have money in hand." He gave me to understand that he had made arrangements with defendants to reduce his debit balance, if the balance went down with that larger amount it would not shew. When he told me to put it down to suspense account, I asked him if he could do that he said : — Yes, I should think so, that is the only way to do it " upon that I made the entries as they appear. I showed plaintiff the book ; he looked at it in the Journal and approved it. One or two days before Mi-. Alfred Turner went to Penang I was at my books ; when plaintiff came at my desk and said : — I am going now away, as Mr. Alfred Tm-ner will be hei-e in a few days^he is rather inquisitive and is sure to look over our books, so don't forget to write that item back in the suspense account. I did so and entry appears on the 18th August. Before I signed the first balance sheet plaintiff said : " There will probably be questions about this with defendants, but never mind I can explain that." The account which the plaintiff himself in cross-examination by Mr. Donaldson gave of this transaction wa,s as follows: — The payment for the first qitarter was 55280 ; for the second quarter 1 said that if I sent my remittance home I could not pay the .9100, as I put in the hands of the cashier and other clerks of the office, as well as in the hands of two auctioneers and others in Penang, the carriage and horse I had from Mr. Bogaardt and a pony and harness which I considered ample even for 1S.300. On the 7th April I made up my mind to do this. Up to the end of June these things had not been sold. Mr. Romenij asked me what I was going to d about my balance. There were two parties in treaty at that time, and I thought at any time the sale would come in. I said to Mr. Romenij " Make my balance .151.900, evtn money, and pass the difference, about J3-10, to suspense account to wait the return of the sale of this property." I did not explain all this to Mr. Bogaardt. I did not send him a copy of my account, — that would have been quite unusual — nor of the suspense account. I wrote that I had been paying that account — that was partly true. About 2nd July I bought a pair of horses for S630 from Mi-. Brown for use. I paid for them by a cheque of the firm. I gave an I.O.U. to the cashier for them, I got them for a month on trial. I did not put it to the debit of my account. I paid for the horses on the 2nd July. I had made arrangements if the horses suited me to get the money elsewhere. I had not arranged with Mr. Jebsen, but if they had suited me I should have gone to him and have asked for an even |1,000. I had spoken to Mr. Jebsen about lending money— we were very intimate friends, 91 THE SUPREME COUET. SiDGEEAVES, C. J. issn. On tlie lOLh July the balance sheet for the previous quarter was sent off by plaintiff to Mr. Boo-aa.rdt with a letter com- TUBNEE V. Dear Sirs, — Enclosed please find copy of om- lines of yesterday and Mansfield Balance Sheet and Profit and Loss Account to SOtli June, 18S4, wfiich we & Co. hope will be fotmd in order. In this balance sheet the amount of plaintiff's debt was put down as |1,900, the real amount being !?2,244..r)5. Kow, un- doubtedly, if Mr. Bogaardt as employer, was .entitled to have from the plaintiff as employed, a balance sheet at all, he was entitled to have a correct one — if it was the duty of the plaintiff to let the defendant know the state of his account, he was bound to give him a correct statement of his account. If the ph^intiff really thought that this device of putting down to suspense account a sale which had not come off, and then taking credit for it in the balance sheet forwarded to his employer was a matter with which his employer would not find fault, he should have explained it to his employer. Tliis unfortiinately he did not do, but was at great pain to conceal the true state of the ease from Mr. Bogaardt. Oil the 22nd of the same month he wrote to him as follows : — ■ 3fy debt. I think yon will remember writing to me at the end of last year about it, and since then I have been paying back 25% of my salary every month towards its redaction [except S2i.> short when the baby was born]. Now this, instead of being in the nature of an explanation of the previous incorrect balance sheet, could only have been written with the object of making Mr. Bogaardt believe that that balance sheet was a correct one. As a matter of fact, Mr. Bogaardt never did know the true state of the case with regard to this balance sheet till his arrival in Penang on the 9th September following. On the 4th of that month, in anticipation of Mr. Bogaardt's visit to Penang, the plaintiff wrote the follow- ing letter to Mr. Eomenij : — No. 19, Hotel de L'Europe, Siiif/apore. 4-9-84. My dear Romenij, I jnst am told that Mr. Bogaardt will leave here for Penang in the Achilles to investigate his business in Penang. I tliink everything is pretty straight and that ho will be satisfied. If there is a balance to my debit at end of August you can get the amount at once by asking Mr. Thomas for it, who has cash of mine in hand, or I will square it up here. It can't be much cither way, and Oohen has yet to sell the big house, insti'uctions as to which have been given him. Please hand friend Paiwau the enclosed draft for §;180, which I promised to send liim, and oblige me by asking him strongly not to say a word to Mr. Bogaardt about our private business, as were he to do so under present -an- pleasant situation, it would only plunge me into more hot water. The cashier too has promised to keep his mouth shut on the subject. Give both best " eh in chins." I hope I am not asking too much from you in this matter, and I beg that you will exercise yoiu' good judgment in answering any ques- tions that may Ije put to you by Mr. Bogaardt as to my private affairs. [Signed] Geobqe E. Ttjenbk. STRAITS SETTLEMENTS. 95 As regards this entry in the Suspense account, the Honorable Sidqbeates, James Graham who was called as a witness, explained what a r'-^j Suspense account wns. He stated that : — -1^' A suspense account is used by Merchants to keep tlieir credit balance to meet expected losses on other accounts ; for instance, if I bad some venture, and foresaw a loss at the end of the year, I would write off £200 or £300 to meet tbat anticipated loss ; the expected loss would be on the debit side, the expected profit from some other transaction would bo on the other side to meet it. If I make a bad debt of £1,000 and hoped to get some of it back some day, I put it down to suspense account till a dividend is declared or the amount paid. If the manager of a firm being about to sell some furniture credited himself with a sum on account in his ov/n account, and then debited himself in the suspense account, that would be a very improper use of the suspense account. I should call it concealing the true state of his account. It was chtiracterized also in the same manner by Mr. Gunn, Public Accountiuit and Auditor of most of the Companies in Singapore. The question is whetlier this is such conduct on the part of the plaintiff as would justify the defendant Mr. Bogaardt in refusing; to retain him any longer in his service. It is quite clear that no misappropriation of money was at any time intended by the plain- tiff ; his one object was to make Mr. Bogaardt believe that he had been making a monthly payment of $10b during the 3 months ending June 30th, in reduction of his debt, whereas he had not been making such payments. It was a small matter perhaps, but it seemed of sufficient importance in his eyes to lead him to make an improper use of his employer's books, to send in to his employer a false balance sheet, and 12 days afterwards to write to his employer untruthfully about the matter for the purpose of carrying out tlie deception. As regards the law, there are very few legal decisions upon the subject because these matters are invariably left to the deci- sion of a jury at home, but in the case of linrton \. McMuriry, 29 L. J. Exch, 260, the present Lord Bramwell, then Baron Bramwell, thus lays down the law upon the subject : — Cases may be cited in which the Court has laid down certain criteria or rules, under which a master would be justified in discharging his servant. It is quite clear, wlien these decisions are 'examined, that tbey do not give an exhaustive set of .cases, but only a certain number; and I think it is very correctly stated in Mr. Manley Smith's book on Master and Servant, 2nd edition, page 76, that, '' it is difficult to lay down any general rule as to what will justify the discharge of a servant, which shall comprise and be applicable to all cases, since whether or not a servant in any particular case was right- fully discharged must, of course, depend upon the nature of the services he was engaged to perform, and the terms of his engagement." I think it is a very g(X)d observation to bear in mind, and it seems to me, that in this case, there was a ground on which the defendant, the master, might properly discharge the plaintiff ; at all events, to say the least of it, there was that which my Lord might propei'ly, and ought to have left to the jury, for t'lem to say that the defendant was justified in discharging the plaintiff. That misconduct, including moral turpitude, is not necessary, manifestly appears from the case of Smith v. Thompson where all the man did, as I understand it, was, that he had appropriated £80, out of some money he had got, in payment of liis own salary. It is quite plain that there was no moral tiu-pitude in that. Now, as to the particular case before us, the plaintiff it may be assumed, supposed that he had acted rightly ; at least there is no evidence TUENEB V. Mansfield & Co. 96 THE SUPREME COURT. SiDGEEAVES, O. J. 18S5. Turner V. Mansfield &Co. that he committed any fraud ; but the plaintiff in tj-uth did one tiling and said another, and it may; be put compendiovisly in this way ; bladders were bought by him fronl a person, and he represented to his master that another person was the seller to his master. Now I am inclined to think that it is immaterial what the motive of the act was ; he could have no right to represent an untrue condition of things to his employer ; and that being so, to say the least of it, it was a proper question for the jury to say whether he was justified in discharging the plaintiff, and I think the question, therefore, was properly left to the jury. In the case of Ridgway v. The Hungerford Market Go., 3 Ad. & Ell., 171, the Clerk to the Company at a salary of £200 a year, whom the Company had decided upon discharging, was directed to call a Meeting of Directors to elect his successor. This lie did, and having entered a resolution to that effect as clerk in the Minnte-book, he subjoined a protest in his owji handwriting against the proceeding. For this it was held that he was pro- perly dismissed. Gohridge, J. in his judgment said : — Although a party be hired for a given time, the master is justified in discharging him for miscondnot, and in that case he cannot recover jpro rata — as to the existence of a sufiiciont cause the jury have found it and they were i-ight in so doing. The act of entering the protest on the minute-book was inconsistent with his service; a servant of this kind if allowed to do such acts would be useless. On the whole, I find myself compelled to the conclusion that this unfortLinate act of the plaintiff was quite inconsistent with the service which the defendant had a right to expect from him, and that although no harm was done, and the whole debit balance was cleared off in Augnst, he yet, by that act of misconduct, in the proper and non-invidious sense of the word, put it in the power of the defendant to retain him or discharge him as he pleased. Mr. Bogaardt gives his reasons for adopting the latter alternative in a letter dated 18th September : — I have received your letter of to-day's date,, and having considered your explanation respecting the " suspense a/c," I cannot say that I think it satisfactory, and you have omitted to explain how it was that you did not, as yon told Mr. Romenij you would do, — explain the matter to me. Taking everything you say into consideration, it is apparent to mo, that from some reason or other you have not dealt with me with that candour and straightforwardness which I have a right to expect from one in a position like yours. I am bound to tell yon also that there are other matters in which I am by no means satisfied with you. It is quite out of the question that you should occupy a subordinate position in my office and my frequent and necessary absences from Singapore render it impossible that you should always act under direct instructions as you suggest. I am therefore compelled to repeat what I said in my former letter that it is necessary that our connection should end, but I shall be ready to deal liberally with you. A passage will be provided for you and your family in the Stentor or our next succeeding steamer if yoit wish to avail yourself of it, and I shall hand you a draft on London for £500, which I trust will be ample for your needs until you obtain another situation. That was an offer certainly conceived in a generous spirit and one which I very much regret that the plaintiff did not see his way to accept. With so little to guide either judges or lawj^ers upon the subject however, it- is not to be wondered at STRAITS SETTLEMENTS. 97 that conscious of having committed no act of fraud or dishonesty, Sidgeeaves as he certainly has not, the plaintifE thought the punishment too heavy for what probably seemed to him so trivial an offence. But the higher the position the greater the danger of any deviation from the " candour and straightforwardness " which in every position is as much the best policy as honesty is proverbially declared to be. I find a verdict for the defendants. C.J. 1885. TUKNEE V. Mansfield &Co. EAMAN CHETTY v. GOLAM MYDIN. In re CHEW HOCK SBNQ. Any ■question as to the right of property or possession to any goods taken under a Distress "Warrant under Ordinance 14 of 1876, and claimed by a third party may he raised and decided as an Interpleader under Section 379 of the Civil Procedure Ordinance, 1878. Chinese theatrical costumes which are let to hire by their owner to another for purposes of enabling each other person to carry on a wayang or theatre are not exempt from distress for rent put in by a landlord against such other person. This was an Interpleader summons under Section 379 of the Civil Procedure Ordinance, 1878, taken out by the Distraining BailifE [through the landlord Raman Chetty] in order to obtain the decision of the Court as to who was entitled to certain wayang or Chinese theatrical costumes which had been taken on a distress for rent under the following circumstances. The landlord Raman Chetty had on 6th May, 1885, leased a theatrical stage, premises Nos. 104, 106 and 108, King Street, Penang, to the tenant Golam Mydin for a term of thirty-two days commencing from the 10th instant, at a daily rent of ^9.16| and 35 cents for assessment and water rate per day. The tenant entered into possession of the stage and premises on the day his tenancy began, and continued so in possession up to the time the distress hereinafter mentioned was put in ; and during that time carried on therein Parsee theatricals for his own benefit. During the term the tenant hired at a daily hii-e, of Chew Hock Seng the claimant hei-ein, lar^e quantities of Chinese theatrical costumes for the use of his [the tenant's] performers at their theatricals. These costumes were kept in four large boxes specially used for keeping wayang or Chinese theatrical costumes, and were placed by the tenant on the demised premises. The tenant having got into arrears with his rent to the landlord, the latter on the 10th June put in a distress for same, and among other things, distrained on the boxes and theatrical costumes. Chew Hock Seng their owner thereupon claimed them and refused to allow them to be sold on the distress ; but did not avail himself of the provisions of Section 14 of the Distress Ordinance 14 of 1876. The present summons was then taken out by the Distraining BailifE. Thomas, for claimant contended 1, that the case did not fall within Section 379 of the Civil Procedure Ordinance, 1878, and the summons should be dismissed ; 2, that the costumes were exempted from disbress under clause [g.J Sub-section ll of Section 10 of the Distress Ordinance 14 of 1876 as having been handed to the tenant in order to be " managed in the way of his trade or employ." Penang. Wood, J. 1885. June 20. Wood, J. 1885. Eaman Chuttt V. GOLAM Mtdin. In re Cliew Hock Seng. 98 THE SUPSEMB COUET. Van Someren, for the landlord contended 1, that the seizure on the distress warrant was a seizure " in execution under an order in a proceeding" within the meaning of Section 379, and that as neither the claimant nor the tenant had availed themselves of Section 14 of the Distress Ordinance, 1876, the only remaining mode of proceeding was by way of Interpleader ; 2, that the theatrical costumes had not been delivered to the tenant as " a person exercising a pxiblic trade to be carried, wrought, worked up, or managed in the way of his trade or employ," but liad been hired to him for his own use and benefit. Wood/all L. & T, 401 ; Joule V. Jackaon, 7 M. & W. 450. IVood, J. held 1, that the case fell within Section 379 of the Civil Procedure Ordinance, 1878, as an Interpleader ; but even if it did not as the parties interested were before the Court and justice could be done between them, the form of the summons was im- material — the Court now looked only to the rights of the parties in the litigation and the justice of the case, and not to technical formality; 2, that the costumes were not delivered to the tenant "to be managed in the way of his trade or employ" within the meaning of clause [g.J, but to be used by him for his performances, for his own convenience and profit, and were not exempted from distress under the Distress Ordinance nor by the Common Law. Judgment for the landlord ivith cods. Penano. "Wood, J. 1885. September 7 In the goods of SHERIPFA ESSAH. Section 27 of the Mahomcdan Marriage Ordinance 5 of 1880 is not retrospective so as to affect an Estate wliich lias been commenced to be administered before the coming into operation of the Ordinance. When one of tlie parties to a suit refuses to consent to the section being applied, the Court cannot grant leave tliat it should, if the suit is one that was commenced after the coming into operation of the Ordinance. The. right of a husband to administer to the Estate of his wife under the aforesaid circumstances is therefore untouched. This was an application by one Che Essah for Letters of Administration to the Estate of the abovenamed deceased, as her daughter-in-law. The deceased had died on the 1 0th of March, 1835, intestate, leaving her husband one Tunku Syed Abdnlrahman bin Mahomed Bilfakld and one child, a son, named Syed Hamid, her only next-of-kin her surviving. Her estate then consisted of only a piece of land in Acheen Street. On 15th October, 1838, Letters of Administration to her Estate "for the special purpose of disposing and conveying theliinds thereof " were granted to the said Tunku Syed Abdulrahma,n bin Mahomed Bilfakki as the husband of the said deceased on his own petition [No. 276 of 1888] and the usual Administration Bond was given by him, and the land aforesaid sold and conveyed away. Syed Hamid, the son, had married Che Essah the petitioner in the present instance, and by her had one child, a daughter, named Sheriffa Noor. He also had another wife one Inche Sittee, who was at this date at Banjar Masane in Borneo. Sheriffa Noor died about six years prior to this date, leaving two daughters surviving STRAITS SETTLEMENTS. 99 her. Syed Hamid had died some four years before, leaving the Wood, J. petitioner and the said Inche Sittee, his widow, and the said ^^^°- Sheriffa Noor his daughter surviving him. It was now alleged jmiftej/oodso/ that the petitioner had been divorced by Syed Hamid before his Shekipfa death, but this question was not gone into. Owing to the case of Essah. Kyshev. Inche Nap Pendeh & ors. [a.] being decided in favour of the plaintiff and a large strip of land now proving to be the estate of one Tunku Syed Hussein Idid deceased, the father of Sheriffa Essah the present deceased, who survived him — she [the present deceased] came in for a share of this property which now formed a further portion of her estate. With the object of obtaining such share on her behalf as her estate, the present petitioner as the only person in the Settlement representing Syed Hamid the son, filed this petition [No. 100 of 1885] and now applied for Letters of Administration to her Estate. Syed Abdulrahman bin Mahomed Bilfakki had died about 1865 at Singapore, intestate, leaving one Syed Mahomed, his son, [but not by the deceased herein] to whom Letters of Administration had been granted in about 1866 at Singapore. Syed Mahomed, as such administrator, had transmitted a Power of Attorney to one Hajee Omar, of Penang, appointing him his attorney, to oppose the present petition and apply for letters to be granted to him as the attorney of the administrator of the husband of the deceased herein. A Caveat was accordingly filed to this petition by Hajee Omar. The parties were all Mahomedans. By the Mahomedan Marriage Ordinance 5 of 1880, Section 27, clause 9, the sons [of full age] of a deceased Mahomedan married woman are entitled to a grant of Letters of Administration to her estate in preference to her husband; and by (!la,use 18 of the same section, the aforesaid clause 9 [inter alia] is declared to be applicable " to all cases in which the death or marriage happened before as well as after" the coming into operation of that part of the Ordinance, provided that nothing in that Section [27] contained should " without the consent of the parties interested or in case of suits, the leave of the Court be held to affect any suit commenced, or any contract entered into, or the adiTiinistration of any estate commenced before the coming into operation of that part " This petition now came on for hearing. Petitionee- in person. Van Someren, for Caveator submitted that clause 9 aforesaid did not apply as the administration of the estate of the deceased had been commenced in 1838, before the passing of the Mahomedan Marriage Ordinance, and his client refused to consent to the Ordinance applying. Leave could not be given by the Court to apply the Ordinance as this suit was not commenced bi'/ore the passing of the Ordinance. He submitted therefore, clause 9 was not retrospective so as to affect the rights of the husband vested in him in 1838 by the Common Law and the Statutes of Distribution, and the Caveator as representing his administrator, was entitled to administration in preference to the petitioner, who represented the son. [a.] Vol. 1 of these Eeports, 624, 100 THE SUPREME COURT. Wood, J. Wood, J. was of this opinion aiid refused the prayer of the ^^^° ' petition ; and under Section 492 of the Civil Procedure Ordinance, Intliegoodsof 1878, granted Letters of Administration to the Caveator as the Shebipfa attorney of the administrator of the husband of the deceased. EssAH. rpjjg power of attorney was directed to be filed with the record of the case. Order accordingly. Penang. Wood, J. I8S5. September 8. QUAH LOO MOYB v. LAW SEOW HUCK. Where tlie pluintiff was merely the sole survivor of numerous trustees of a Chinese burial ground charity, but had never acted except to bring this action in orderto get possession of the Deeds from the defendant who had no right to them, but who alleged that they had been entrusted to him by certain jjersons of the Chinese community for safe custody, and who alleged that the plaintiil: intended to make improper use of the Deeds, Se!d, the Court M'ould not order the Deeds to be given vip to the plaintiff or even enter up judgment for him ; but directed the Title Deeds to be deposited with the Registrar of the Court for safe keeping until further order. This was an action to recover possession of the title deeds of a piece of land at Mount Brskine, in I'enang, which had been pur- chased in 1856 by general subscriptions raised among the Chinese community of Penang, for the purpose of a Chinese public cemetery, and had been so used from that time. The land was however con- veyed to the plaintiff and numerous other persons as joint tenants, but did not disclose any trust. The plaintiff was the survivor of the joint tenants, but had taken no part in the management of the land on the trust, except to bring this action. The title deeds had at a public meeting of the Chinese community beeji by vote entrusted to the defendant for safe custody pro tem,. ' This meeting was however attended by very few persons, and it was alleged by the plaintiff consisted only of relatives and friends of the defendant. At this meeting also, tJie defendant and others were nominated " Trustees " of the burial ground. A portion of the Chinese community repudiated this appointment and vote, and having ascertained the plaintiff's name was in the deed and he was the last survivor, procured him to bring this action for the recovery of the title deeds. This was not denied by the plaintiff, nor was it attempted to be made out that the land was not intended to be held in trust for the Chinese public as a burial place. On the part of the defendant it was alleged that a desire on the part of cerhiin of the plaintiff's supporters to acquire a portion of the land for private purposes was the cause of the whole dispute. Ross, for plaintiff claimed judgment to be entered up for him, and to have possession of the title deeds. He cited Doe v. Passing- ham, 6 B. & C. 305, Barclay v. GolUtt, 4 Bing. N. C. G58. Van Someren, [Prescjrave with him] contra cited Buncombe Y. Mayer, 8 Ves. 320 ; Denton v. Denton, 8 Jur. 388, and Hill un Trustees, 259, STRAITS SETTLEMENTS. 101 Law Seow HucK, Wood, J. considered that the Coui't had to deal with sub- Wood, J. stantial rights and not mere empty claims ; that the cestuis que ^^ trust [the Chinese community] were the persons the Court ought Quah Loo to protect ; that the land was a public charity, but there was no Mote properly appointed trustee thereof ; and as there were difPerences between members of the community as to the lands, and it was possible improper advantage might be taken if the deeds which disclosed no trust were handed to plaintiff, he should not be justified in entering up judgment for him. Under the circum- stances, he considered the justice of the ca.se required that the title deeds be deposited with the Eegistrar of the Court for safe custody until further order. Order accordingly . [a.] Penang. Wood, .T. 1S8.5. MAHOMED GHOUSE v. HAJEE MAHOMED SAIBOO & ANOR. A testator, "being possessed of a large piece of land which as a fact were five lots comprised in five grants, but believing the whole piece was comprised in four grants, by his Will declared, that "of the /oKc grants of land situate in Toh Kramat, I have converted ons grant into a AVakoff to bury my children and grand children and reli- tions, and the three grants are the portions of my ten children [whom he designated] ■ — they will take the produce thereof, and divide and take in equal shares, but tliey shall October 15 not sell nor mortgage theland." Held, the gift of the lauds to the children, was not void on the ground of uncer- tainty — that the testator did not die intestate as to the lot comprised in the fifth grant, but such lot passed with the " portion" for the children. That the whole clause was not void as tending to a perpetuity, but the restraint on alienation alone was void — and the ten children [to the exclusion of all his other children] took as estate in fee, as tenants in common, in the lands referred to as their "portion" inclusive of the lot in 'Can fifth grant. This was a suit for the construction of a clause in the Will of one Madinasah deceased^ of whom the first defendant was the executor, and to have a conveyance made by the defendant, as such executor, to certain of the testa.tor's children, in pursuance of the clause, declared void and ordered to be cancelled. The clause in question was as follows, " Of the four grants of land in Toh Kramat, I have converted one grant into a Wakoff to bury my children, grand children a,nd i-elations, and the three grants are the portions of my ten children aforesaid, they will take the produce thereof and divide and take in equal shares, but they shall not sell nor mortgage the land." The ten children referred to were mentioned in the preceding part of the Will, and were all children of the testator by liis first wife ; the plaintiff was one of the ten. The testator had also another child, a daughter, named Showtomah, by his second wife ; but she was not one of the ten referred to. Tlie testator's land at Datoh Kramat, was a large piece, and from the evidence of a Surveyor, while the one piece spoken of as having been converted into a Wakoff was separated from the rest by a distinct boundary, there was nothing to show [a.] The plaintiff filed an appeal against this order, but before the hearing the parties hid come to terms and the appeal was dropped.— J. W. N. K. 102 THE SUPREME COURT). Wood, J. 1885. Mahomed GHOtrsE V. Hajee Mahomed Saiboo & Anoe. how many lots or grants were comprised in the remaining portion. The testator always spoke of the remaining portion as being in three grants, believing the whole land including the Wakoff piece was comprised in four grants. As a fact, on the survey, it was found to be comprised in five — the Wakoff piece in one, and the remaining portion in four. The defendant, as such executor, conveyed the remaining portion as contained in four grants, to the ten children, limited to the strict wording of the latter part of the clause in question. The plaintiff thereafter brought this suit praying that the whole clause might he declared void for uncertainty and as infringing the law of perpetuities, and that the conveyance might be declared also void, and be ordered to be can- celled. The said Showtomah was made a defendant by order of the Court, made on 27th August last. E. W. Presgrave, for the plaintiff contended, the whole clause was void as tending to a perpetuity, and being in restraint of alienation — that it was also void for uncertainty, as it was not clear whether the testator meant to give the children lands comprised in only three grants or four.' If it was not void, then the ten children took the fee, as tenants in common, in the land compris- ed in all the four grants, excluding the Wakoff piece. He referred to Sampson v. Sampson, 8 L. R. Eq. 479 ; and 1 Jarman on Wills, p. 361. Van Someren, for the executor submitted the interests of the estate to the Court, but suggested, that there was no uncertainty as three grants were clearly devised to the children — nor was the clause void, as a whole, as tending to a perpetuity, and the restraint on alienation alone was void. He referred to Kader Bee & anor. v. Kader Mustan & or.i. [«.] eniilKhoo Seok Hainff v. Khoo Wef. Team & anor. [6]. He further suggested that the children took in fee, as tenants in common, in the lands in the three grants only, and as regarded the land in the fourth, [exclusive of the Wakoff land] the testator must be held to have died intestate. Hoyan, for Showtom^ah contended the whole clause was void, and the testator must be held to have died intestate as to all the four grants, [exclusive of the Wakoff] and the same were divisible among his next-of-kin, of whom the said Showtomah was one. Wood, J. held, that the description of the land as " three grants'" was an erroneous description. It was clear the intention of the testator Avas to give the whole of the remaining land after setting apart the land for the Wakoff to his ten children for their portion — that the evidence showed the testator was always under a wrong belief that the whole of the remaining land was in three grants and the features and landmarks were such as to confirm him in that belief. It was clear that under that belief he devised the remaining whole. The lot in the fifth grant therefore passed with the portion for the ten children, and they were entitled to the whole remaining land, iu fee, as tenants in common. There was no uncertainty in the clause, except that which at first sight [a.] Yol. 1 of these Reports, 432. [J.] Vol. 1 of these Reports, 633. STRAITS SETTLEMENTS. 103 might appear from the erroneous description of the land ; that Wood, J. being cleared all uncertainty was removed. The testator for the ^• saiue reason could not be declared to have died intestate as to the Mahomed lot in such fifth grant. Neither was the whole clause void as Ghouse infringing the rule against perpetuities — the restraint on aliena- hJjee tion alone was void, but it could be well severt'd fiom the rest of mahomed the clause without affecting its meaning. The conveyance would Saiboo be set aside or rectified according to this decision. * Anok. Order accordhujlij . Costs of all jxii'ties out of the Estate. TANJONG PAGAE DOCK Co. v. MUNTCIPAL COMIVIISSIONERS. In assessing the rent which a tenant might reasonably be suppcised to give for Singapore. any premises, it is not necessary to suppose such tenant Avill oceupy the i\hole of the premises : any portion which is capable of separate beneficial occupation might be Sidgkeaves, rated separately. ' C. J. Where Wharves and Warehouses adjoin each other, and the one is an adjunct to J-Soo- the other and must be worked together, it might reasouabty bo e.xpected that no tenant „ ~ would rent the one without the other, and the two might therefore well bo rated "■^o^^mber J. together, and that as " buildings" within the meaning of Acts 25 and 27 of 1856. Coal sheds connected with the business of a Wharf and Warehouse Company, but not inseparably so, and being capable of separate beneficial occupation, ought to be valued and assessed separately from the Wharves and Warehouses. Profits of trade, such as on labour supplied, on insurance, on cartage aud such like should not be rated ; but as under the aforesaid Acts the question is what would a tenant reasonably be expected to give for his occupation of any given promises, aud the capacity to carry on a profitable trade would very largely enter into his consideration when deciding what rent he could afford to pay, such profits niaj properly be taken into consideration in estimating the rent which such a hypothetical tenant might reasonably be e.xpected to pay for the occupation . Interest on capital employed in a business ought to be deducted in rating pre- mises in which such business is carried on. Kine per cent, on such capital is a fair rate of interest to allow. General charges for management of a business, expenses of office, Directors' remu- neration, and payments to shareholders for bringing in business ought to be deducted from the general receipts of the business. " Laud" in the above Acts is not necessarily confined to land used for purposes of agriculture only, but may include land upon which there has been anything artificially done, and money invested for commercial purposes. The fact however that a detached dry Pock is used for commercial purposes is not alone sufficient to prevent it being " land" within the aforesaid Acts. A Dock would bo liable however to be rated under the hio-her scale provided by the aforesaid Acts if it is so mixed up with warehouses, jetties and other things surrounding it ; and in that case the whole must be considered one entire properly and rated as " buildings." The enhanced value given to land by the presence of machinery thereon, cannot be taken into consideration under Ordinance 3 of 1879, Section 2, except in cases where the "machinery is employed for manufacturing the produce of such land." The word " buildings" in Section 4 of the aforesaid Act of 1856 and Section 21 of Act 27 of 1856, is ejitsdem generis with " houses" in the same sections, and a detached dry "Dock" is neither a "house" nor a "building" within the meaning of those Acts. The provisions of these sections are not so general as those of Section 33 of 3 & 4 A^'m. IV. 0. 90, and the English authorities on the latter section giving a narrower interpre- tation to 'it are a fortiori authorities on the former sections. The above held by the Court of first instance, and on appeal as to the sixth, seventh, eighth and ninth points, the same was affirmed by the Coiwt of Appeal. 104 THE SUPREME COURT. SiDGKEAvEs, Tlils was z spGcial case stated by the plaintiffs and defend- f • ^' ants in order to obtain a decision of tlie Court as to the principles on which the plaintiffs' Wharf and Dock Company's property Tanjong should be assessed. The facts and arguments sufficiently appeal- Pagab^Dock fj.oQ^ tjjg judgment. V. Davidson, for plaintiffs. Municipal Bonser \ Attornev-GeneraU and Joaquim, for the defendants. COMMIS- '- ^ -' ^ ■, TT 1 sioNEBs. Cur. Adv. Vult. On this day judgment was delivered by Sidgreaves, C.J. It will be convenient to consider the special case stated and agreed on by the abovementioned parties as being already set out, and to i-efer to it in general by the numbered paragraphs. The Indian Acts referred to in para. 4 are first, Act 25 of 1856, Section 4, which is as follows : — " The estimated gross annual rent at wUcli the houses, buildings and lands Hable to the rate might reasonably be expected to let from year to year shall for the purposes of the rate be held and deemed to be the annual_ value of such houses, buildings and lands. The value of a house or building so estimated shall not include the value of any machinery contained therein." And Act 27 of 1856, Section 21, which is as follows : — " An annual rate not exceeding ten per centum of the actual value shall be imposed upon all houses and buildings and not exceeding 5 per centum upon all lands within each Station." By Ordinance No. 3 of 1879, Section 2, at the end of Section 4 of the Indian Act No. 25 of 1856, the following words shall be added, that is to say : — - " but in estimating the annual value of any land on which machinery is employed for manufacturing the produce of such land it shall be lawful to take into consideration the enhanced value given to such land by the presence of such machinery." These provisions are somewhat different from those contain- ed in the English Acts, upon which, of course, the decisions referred to in the authorities are based. The 3 & 4 Will. IV. c. 90 Section 33 enacts that — " The overseers aforesaid shall, for the purpose of collecting, raising and levying the rate necessary for the purposes of this Act, proceed in the same manner and have the same powers, remedies and privileges as for levying money for the relief of the poor in the same parish : Provided always that owners and occupiers of houses, buildings and property [other than land] rateable to the relief of the poor in any such parish shall be rated at and pay a rate in the pound three times greater than that at which the owners and occupiers of land shall be rated at and pay for the purposes of this Act." The 6 & 7 Will. IV. c. 96 Section 1 enacts that— " No rate for the relief of the poor in England and Wales shall be allowed by any justices or be of any force which shall not be made upon an estimate of the net annual value of the several hereditaments rated thereunto ; that is to say, of the rent at which the same might reasonably be expected to let STEAITS SETTLEMENTS. 105 from year to year free of all usual tenants' rates and taxes and tithe com- mutation rent charge, if any, and deducting therefrom the probable average annual cost of the repairs, insurance and other expenses, if any, necessary to maintain them in a state to command such rent." In endeavouring to fix the rent which a tenant might reason- ably be supposed to give for the occupation of the premises occupied by the plaintiffs, it is not necessary to suppose that such tenant would occupy the whole of the premises. Any portion which is capable of separate beneficial occupation can be rated separately — Mersey Docks and Harbour Board v. Overseers of Birkenhead, 8 L. R. Q. B. 44-5. As set out in para. 8, the defendants have valued the wharves, godowns and coal sheds together, and charged the assessment thereon at ten per cent. As regards the wharves and warehouses, no tenant could reasonably be expected to rent the one without the other. Paras. 5 and 6 shew that tliey must be worked together or they would be practically useless. Whether, as Mr. Davidson contended, the warehouses were adjuncts to the wharves, or, as the Attornej^-General contends, the wharves were adjuncts to the warehouses, the result seems to be that they are so closely united that separation for commercial purposes would be practically impossible^ and the defendants were right in assessing them together. This contention, however, was for the purpose of settling the question which would arise when the Court had decided whether the wharves were to be considered as rateable as "land" or as "houses or buildings." In the one case it was contended that the warehouses would follow the wharves, in the other, that the wharves would follow the ware- houses, which it was admitted, if separately assessed, must be assessed upon the higher scale. The plaintiffs contend that the wharves and warehouses ought to have been assessed as " land." It has been decided in the Neath Case, 6 L. R. Q. B. 707, that a canal is "land," and in The Queen v. Midland Railway Co., 10 L. li. Q. B. 389, that a line of Railway is "land" and therefore only rateable at the lower rate. The reasonings, however, upon which these decisions are based would hardly support the conclusion that wliarves and warehouses also are to be considered and rated as " land." In Pido v. West Ham,, 28 L. J. M. C. 241, the reasons given by Lord Campbell, C.J., for holding that warehouses, jetties and other things surrounding the dock and being in the middle of the dock were to be considered as part of one entire property and that so the dock and basin are property ejusdem generis as the " houses and buildings " seem to apply with even greater force to these wharves and warehouses. It is true that he prefaces his judgment by describing the dock and basin as being " property other than land " within the meaning of Section 33 of 3 & 4 Will. IV. c. 90, and that in our Act we have only the words " houses, buildings and lands," but he also states that the docks and the basin, are property ejusdem generis as the houses and buildings. As regards the wharves and warehouses now under consideration, I find that they must be taken together and that they are properly assessed under the head " buildings " within the meaning of Acts 25 and 27 of 1856. SiDGREAVES, C.J. 1885. Tanjong Pagae Dock Co. f. Municipal COMMIS- BIONEKS. 106 THE SUPRilME OOtJiElf . SiDQEEAYES C.J. 1885. Tan JONG Co. V. Municipal COMMIS- sionebs. The coal sheds being capable of separate beneficial occupa- tion and not being inseparably connected with thebufsiness carried on at the wharves and warehouses, should have been separately valued and assessed. The assessment should have been based ^^'^^^^^°°^ upon a consideration of what a tenant laking the coal sheds from year to year might reasonably be expected to give for the use of "them, taking into consideration all the surrounding circumstances inclusive of the advantages and facilities which might be afforded by the neighbourhood of the Tanjong Pagar Dock. In the result, the assessment would probably not be widely diffes'ent from that already made by the defendants. The plaintiffs contend that in any valuation of the wharves, warehouses and coal sheds, .whether made jointly or separately, the profit on the labour supplied, pro- fit on insurance, profit on cartage, and profit on sundries ought not to be taken into consideration. Para. 15 shows how these matters have been dealt with by the defendants. Now, although it is against the principle of the law to bring the profits of trade into the rate, j'^et, as the question is what a tenant would reason- ably be expected to give for the occupation of the premises, it is obvious that the capacity to carrj^ on a profitable trade or trades would enter largely into his consideration v>?hen he was deciding what he could afford to pay for the occupation of those premises. Lord Denman, C.J., puts this very clearly in the case of The Queen v. The Grand Junction Railway Co., 13 L. J. M. C. 94 : — " To this then existing state of facts we applied the established principle of rating, that the rate is to be ^ipon the occnpier in respect of the beneficial nature of his occupation ; in estimating which, as to the amount, or, to put it in otlier words, in ascertaining how much annual rent such an occupation may be expected to command. Parish Officers are to consider, not drily and only what would legally pass by the demise of it, but all the existing circum- stances, whether permanent or temporary, wherever situated, however arising, or secured, which would reasonably influence the parties to the negotiation for the tenancy as to the amount of the rent. In both cases the inquiry must be the same — what is the value of the occupation, from whatever source derived? In neither, can the i)ro fits of trade, as such, be brought into the rate, but if the ability to carry on a gainful trade on land adds to the value of the land, that value cannot be excluded, on the ground that it is referable to the trade. Suppose a house occupied by a private family to-day, which, having greater advantages of situation for the purposes of trade should be turned into a shop to-morrow, and, in consequence, let for double or treble the former rent, would not the rate be properly increased in proportion ? Could it be objected, that to do so is to rate the profits of trade ? The lessee would undoubtedly consider the facilities and advantages which the occupa- tion as tenant woiild afford him for carrying on a lucrative trade as a carrier ; and in whatever proportion that consideration would increase his rent, in the same, after due allowance, would his I'ate be raised also. The two proposi- tions are equally true, that the rate is not to be imposed in respect of the profits of trade, and that it is to be imposed in respect of the value of the occupation ; and two propositions that are true, and applicable to the same subject-matter, (;annot be inconsistent." I consider, therefore, that these four items may propei-ly be taken into consideration in estimating the I'ent which a hypothe- tical tenant might reasonably be expected to pay for the occupa- tion from year to year of the wharves, warehouses and coal sheds. In regard to the plaintiffs' contention that interest on the capital employed in working this branch of the plaintiffs' business STRAITS SETTLEMENTS. 10? C.J. 1885 Tanjons Paoae Dock Co. V. Municipal GOMMIS- SIONEES. ought to be deducted, the Attorney-General agreed that such a Sidgkeaves; deduction ought to be made. As it was agreed that the Court should lay down the principle and that the parties themselves should woi-k out the details, I confine myself to doing so and to deciding that interest at the rate of nine per cent., which seems to me as near an approximation to the average banldng and com- mercial rate of interest as can be arrived at, shall be allowed upon such capital. The plaintiffs contend that a proportional reduction ought to made for the general charges of management, the expenses of the town office, the Directors' remuneration, and the payments to shareholders for influencing business to the Company. The ques- tion is what view would an incoming tenant take of these various items of expenditiire and how would they affect the rent which he might be reasonably expected to pay for the occupation of the property, assuming that he would carry on the same business under the like circumstances. It is not unreasonable to suppose that, looking at the success which has hitherto attended the operations of the Company and the position it has now attained, the supposed tenant would wish to ciirry on the business as far as possible in a precisely similar manner to that in which it is now carried on. He would assume that the object of the Company had been to make the business as remunerative as possible and to do that they would naturally have endeavoured to bring down the working expenses to as low a point as was compatible with efficiency. Para. 29 describes how the business of the Company is managed at an average cost of $24,786.22 a year. It may be taken that this is a necessary cost, without which the receipts upon which the assessment is now made would have been much lower. The incoming tenant would be compelled to employ a staff of persons to assist in the management of so large a business, and to keep offices for the transaction of such business and he would probably act in these respects as far as possible on the lines of his predecessors — they are clearly expenses in regard to which a proportional deduction should be made from the general wharfage receipts. On the same principle it would be for such a tenant to consider whether he would continue the practice set out in para. 30 of payments to shareholders for procuring or influencing business. He might assume that such a practice would not have been adopted and continued unless it had been considered and i5roved to be beneficial. If he discontinued it, he might secure an immediate gain, but incur a future heavy loss. It may be assumed that, at all events, this expenditure of .?11,000 odd brings in a return of at least equal amount to the general receipts. Stop this expenditure therefore of 1 11, 000 as we may call it, and the general receipts sink at once from ?p98,000 to $87,000, which would then be the rateable amount. The probability, however, is that this expenditure brings in a very much larger amount, and that the diminution of the rateable receipts would be very much greater. It is only fair therefore to allow a proportional deduction for this necessary expense, without the incurring of which the rate would l08 THE SUPREME COURT. SiDGKEAVES, C.J. 1885. Tanjong Co. V. Municipal CoMMLS- SIONEKS. be diminished in proportion to the earnings at present accruing from it. As regards para. 36 [6], I have had some difficulty in determining the mode in which the profits of a hypothetic;!.! tenant should be ascertained. Two courses seem to be open — one to allow Paqab Dock ^ percentage on the gross earnings, and the other to ascertain the amount of Cripital employed on the plant or moveable stock and allow a percentage on that. In The Queen v. the Grand Junction Railway, 13 L. J. M. C. 96, the case states that — " The Parisli Officers adopted, and the Court of Quarter Sessions sanctioned, by their judgment, a different mode of arriving at the nett annual rateable value of the property of the appellants in the parish. They ascer- tained the gross yearly receipts of the Company throughout the Railway as above stated, viz., the sum of £440,366 and then made therefrom the following deductions, viz., 6 per cent, for interest on £255,000 being the capital necessaiy for and actually invested by the appellants in the purchase of engines, carriages, and all the other moveable stock necessary for the business of the carriers as conducted by them in manner aforesaid ; secondly, £20 per cent, on the same sum for the tenant's profits and the fair profits of such a trade carried on by means of so large a capital and with such large risks." This pi-inciple seems to have been adopted by Lord Denman, O.J. in delivering the judgment of the Court of Queen's Bench. In the case of Queen v. The Great Western Railway Co., 15 L. J. M. C. 88, Lord Denman, C.J. delivering the judgment of the same Court, says — " Two more questions are stated ; the first as to the mode of ascertaining the tenant's profit in order to their deduction from the rateable value. The respondents have taken the original vahie of the plant, or moveable stock, and allowed £10 per cent, ui^on it for their profits as the profits of trade. The appellants say that the more correct mode would be to ascertain them by a percentage on the gross receipts, and claim to have 15 per cent, deducted from these on that account. We are very unwilling to withhold our aid in settling questions for the Sessions of such novelty and difficulty as the Railway rating must often bring before them, but wc ought not to go beyond our province and so perhaps mislead them. This question involves no princi- ple of law, and we decline to answer it," Not having a Court of Quarter Sessions here to fall back upon, I cannot avoid the attempt to solve the difficulty, and it seems to me that under all the circumstances and bearing in mind the somewhat risky nature of the business as described in para. 27, that 20 per cent, on the gross earnings exclusive of the last four items in para. 15, would be a fair percentiige to allow for the profits of a hypothetical tenant. The next question relates to the valuation and assessment of the plaintiff-Company's Docks, and that depends upon whether the docks are to be assessed as "laud" or "buildings." In decidino' that they are to be assessed as land, it might seem as if this were inconsistent with the case of Peto v. West Ham already referred to. An examination of that case, however, will show that the decision does not go to the extent of laying down that all docks and basins are to be rated as "buildings," but only docks similarly circumstanced and located to those therein referred to. In The Queen v, Midland Railway Co., 10 L. R, Q. B. 394 Blackburn, J. STRAITS SETTLEMENTS. 109 thus comments on that case. " Then came Peto v. West Ham upon wliicli the Parish Officers in the present case very properly mainly rely as being very material. In this case the majority of the Court, for Erie, J. dissented, came to the conclusion that a dock covered with water [which was surrounded with warehouses and other things which certainly would be in the nature of buildings] was rateable at the higher rate ; and Lord Campbell, O.J. who delivered the judgment, gives, as it seems to me, two reasons for it. In the first place he says he thinks that the spirit of the decision on the Midland Railway Company's Acts should prevail and that the legislature meant to tax at the higher rate all land in which there had been m.oney invested for commercial purposes on the one side, and on the other side land that still remained for the purpose of agri- culture or cultivation or " vegetation " the word used in the other case. Now, if that were the principle upon which the judgment went, it would certainly be inconsistent with the Vauxhall Case, 6 E. & B. 1008, for in no sense of the words that I can see, can it be denied that the occupying the land by putting down the water-pipes and thus investing money for commercial purposes was not using the land for the purposes of vegetation. But then Lord Oampbkll gives another reason for the judgment, which is that the ware- houses, jetties and other things suiTOunding the dock and being in the middle of the dock were to be considered as part of one entire property ; they were to be treated as the legislature had in Section 34 directed that the courtyards or gardens attached to a house should be treated as being a part of the prin- cipal building to which they are auxiliary, and on that ground, also, judgment was given for the parish." He then proceeds to comment upon the case of Regina v. Neath and saycs : — " It is to my mind perfectly impossible to deny that though this canal was occupied as a water-way, it was artificially made, and money had been invested for a commercial purpose — to use Lord Campbell's phrase — as com- X^letely as you could say in the case of the dock Then comes the question — Is that to be considered houses, buildings and property other than land or land within the meaning of the Act p Now, as to that the Court of which OocKBiTBN, C.J., my bi'others Mblloe, Lush and myself were members, on considering the case came to the conclusion that the canal was to be considered as land, and I think that the reasoning, when looked at, clearly shews that we did, rightly or wi'ougly, dissent from the idea that " land " in this Statute was to be considered as land used for the purpose of agriculture only, and was not to include land upon which there had been, anything artificially done and money invested for commercial purposes I certainly intimated then that I thought if it were attempted to be said that "land" meant only agricultural land, that would not do. My brother Mellob says very nearly the same thing, and my brother Ltjsh pointedly says, referring to Begina v. Midland Railway Go., "there is nothing in Section 33 of this Act to warrant us in holding that land is confined to agricultural land." From these cases, then, I deduce the principle that the fact that a dock is used for commercial purposes is not sufficient to raise it from the lower scale of rating as " land " to the higher scale of rating as a "building," but that if it be so mixed up with werebouses, fettles, and other things surrounding it and in the middle of it, or in some such fashion, then it is to be considered as part of one entire property, and must be rated on the higher scale. The plaintifP-Company's Dock is quite detached from all such surroundings, for there the carpenter sbeds and brick-built house containing steam engines and pumping machinery are mere necessary accessories to the dock itself, and I am brought to the conclusion, therefore, that it must be assessed on the lower scale SlDGEEAVES, C.J. 1SS5. Tanjong Pagae Dock Co. V. Municipal COMMIS- SIONEES. as 'land.' Commis- sioners. 110 THE SUPREME COURT. PoBD, C. J, It remains to be considered whether the enhanced value of ^&Tr^|j J ^^^'^^ ^"""^ ^y ^^^'^ presence of machinery thereon should be taken LEEBAu. j " into consideration, and it appears to me that such enhanced value — • cannot be taken into consideration. Section 2 of Ordinance 3 of Tanjono iQJ.J. LEREAU. Tanjong Pagae Dock Co. u. Municipal Commis- sioners. by the case cited by the Attorney-General in which a case some- ^o^'^, C. J. what analogous, the Courts in England held somewhat similar ^™^^ ' privileges to certain shareholders, were primarily liable to income tax. But the question here is not one of liability to income tax, but simply whether or not the hypothetical tenant or tenants would continue the practice of these payments. This is, I think, a practical question and its answer dependent upon an intimate knowledge of the character of the business which this Company carries on and the persons they deal with. I can very well believe that the hypothetical tenants would do so in the future as their predecessors have found it desirable to do in the past. The practical men of business who conduct this Company's affairs are of opinion that this money is well laid out in earning business for the Company, and I do not see my way to dispute this conclusion. T am, therefore, of opinion, that although described as paid out of the profits, these payments are really paid out of the gross earnings, but dependent upon some profits being made, and thus may fairly be considered as out-goings of the Company. With reference to the statement so much pressed that the result of the decision of the Court below would be manifestly inequitable in comparatively freeing this profitable portion of the Company's business from Municipal rates, it must not be forgotten that throughout the English authorities the principle that proper- ties are rated for benefits received is recognised, and I am by no means sure that in the result the Municipality, when rating this part of the Company's premises as land, will not get a fair quid •pro quo for the benefits conferred on it. The greater part of the business of these docks, facing as they do water communication, is, from its nature, dependent very little upon the roads of the Company and the adjacent advantages of lighting, &c., which the Municipality provide. Nearly all the materials used in the repair of vessels, the wood, iron, machinery, paint, and so on, are landed at the Company's v-;harves already rated at the higher rate. They leave these docks in a different form by the same water communi- cation, by which they are brought. The docks are lighted by the Company, and not by the Municipality, and except in some of the lighter materials used,, and in the trafiio of the servants and labourers to and from the town it is questionable if the Company in respect of these particular docks gets any further share of those Municipal benefits which the mere general public enjoy. That a rating on the lower scale, and on land may be a very fair equi- valent for benefits received under these circumstances, T am much disposed to believe. The difference between the character of the Company's transport traffic from the warehouses, and these dry repairing docks is obvious. Again, it ma.j well be that in con- sideration of the benefits, which such properties confer upon navigation generally, the concession of a lesser rate of rating can be sustained on well founded grounds of public policy, rendering such concession by no means inequitable. Sheriff, J. — This case comes before the Court on appeal from certain portions of the judgment of Sir Thomas Sidoreaves, late 114 THE SUPREME COURT. POBD, C. J. Sheriff ■) & Pel- i J.J LEKEAU. ) Tanjono Pagar Dock Co. V. Municipal COMMIS- SIONEES. Chief Justice of the Colony. There n.re three grounds of appeal, and I will deal with them seriatim. 1. It is urged that the Court was wrong in deciding that the docks were to be assessed as land. I think the Court was right, ■ and I arrive at this conclusion upon what I believe to be a true construction of the Indian Act 25 of 1856, Section 4. The words used in that section are "houses, buildings and lands." A dock is certainly not a " house." Is it a building, within the meaning of the section ? In the present case we have a dry dock standing by itself with mere necessary accessories thereto. Is such a dock, I repeat the question, a building? The question may be answered according to the light of the English cases which have baen cited, and which were, or at any rate most of them, discussed by the learned Chief Justice in his judgment, or it may be answered by simply putting a construction on the words of the Act. I shall adopt the latter course, because the English Cases based upon the construction of the Imperial Act 3 & 4, Will. IV. cap. 90, sec. 33, and the language there employed is : " houses buildings and property other than land," and the last four words are not to be found in the Indian Act. Now, the word "■' buildings " in the section we are considering, is preceded by the word " houses." They must, I think, be read together and the f.juadam generis rule of construc- tion be applied, and if so, then the dock is certainly not a build- ing, and it follows that I hold that it was rightly assessed as "land." I would merely add that it must not be supposed that I dissent from the conclusions arrived at in th? Court below upon a consideration of the Nenth G^ise, Peto v. Went Ham, Queen v. Midland Railway Co., The Vauxhall Case, &c., &c. I have merely decided without reference to these authorities, except when reference is made to the ejusdem generis doctrine. The second objection reads thus : — " That the Court was wrong in deciding that if the docks were to be assessed as land the enhanced value given thereto by the presence of machinery ought not to be taken into considera- tion." I must confess that, while I did my best to follow the Attorney-G-eneral in the distinction lie endeavoured to draw between machinery, the value of which he admitted was not to be taken into consideration, and the enhanced value given to land by the presence of the same machinery, I am unable to see my way to recognize any such distinction ; on the contrary, I concur with the Court below in its reading of Act 25 of 1836," Section 4 coupled with Ordinance 3 of 1879, and I think these laws, read together, are incapable of any other construction. The remaining point is : — " That the Court was wrong in allowing a deduction for pay- ments made out of the net profits to shareholders for influencing business to the plaintiff-Company." It is alleged that this is merely a division of profits in differ- ent shares, the more active shareholders receiving a larger share STRAITS SETTLEMENTS. 115 ■.3" LEKEAU, Tanjong Paoae Dock Co. V. MtJNICIPAIj COMMIS- SIONEllS. of the profits, and that the assessment should be on the net pro- I'oed, C.J. fits without any such deduction, but this proposition is not ten- ^™™|j j able. I read net profits to mean after the payment of all ' ^^' ' expenses, and if there shall be a surplus, then there shall be a further deduction in payment of those shareholders who, by their active exertions, have procured or influenced business. If the hypothetical tenant is viewed as a Company, they would doubtless continue the practice, but if he is to be regarded as a solitary person, I think it only reasonable to suppose that although there would be no shareholders upon whose exertions he could rely, yet the advantages to be derived from getting per- sons to procure or influence business would be so obvious to the tenant that he would employ agents on the same terms. I think money paid for procuring or influencing business is a legitimate charge, and to be i-egarded in the same light as money paid for advertising, and for the reasons I have given, I do not consider it material whether the payment is to be made to shareholders or not. The judgment of the Court below on all these points will, therefore, stand affirmed with costs. Pellereau, J. This is an appeal brought by the Municipal Commissioners of Singapore, from a judgment of the late Chief Justice Sir Thomas Sidgbeaves. They contend that the Court below was wrong. 1st. — In deciding that the docks of the Tanjong Pagar Dock Company, Limited, are to be assessed as land. 2nd. — In deciding that if the docks are to be assessed as land, the enhanced value given thereto by the presence of machinery ought not to be taken into consideration. 3rd. — In allowing a deduction for payments made out of the net profits to shareholders for influencing business to the Company, In examining the first ground of appeal, it must be noticed that the judgment appealed from has proceeded on certain decisions given in England under Act 3 & 4 Will. IV. c. 90, s. 83, which, for purposes of assessment, creates two categories of property, first, houses, buildings and property other than land ; and second, land. It was ruled in England that property other than land must be ejusdem generis with houses and buildings, and it was decided in the case of Peto v. West Hamthat a dock worked in connection with warehouses and forming with these one estab- lishment should be considered as falling within the class of property other than landj whilst in the cases of The Queen v. The Overseers of Neath and Regina v. Midland Railway. Company, it was considered that a canal with its towing paths, and a dock lined with masonry, or a plot of land with part of a line of Railway laid on it, were not comprised within that expression. On the strength of the authorities under the English Act, the late Chief Justice came to the conclusion that the Company's dock which he found to be detached from wai-ehouses and were worked separately from such warehouses shoirld, with their accessories, be considered as land. 116 THE SUPREME COURT. FOED, C.J. Sheeipf & Pel- I.J.J LEEEAU .-\J.i Tanjong Pagae Dock Co. V. Municipal Commis- sioners. It was contended with great force for the appellants that by the light of the authorities, the docks could not be viewed as mere 'water-way, as in the Canal Case, nor as mere land as in the Rail- way Case, that they were dry docks, were excavated at great cost, were lined with masonry, had a cradle laid in, that a car- penters' shed and brick-built house containing steam engines and puniping-machinery were attached to them, and that the docks, considered as a whole, could not be mere land. Whatever may be said of this contention under the English Act, there is no doubt that there is a difference between the woi'ding of that Act and the local law, which we have to apply. Section 4 of the Indian Act 26 of 1856 creates two categories for the purpose of assessment — one consisting of houses and buildings,' and the other of lands. The words in the English Act " and property other than land" ai-e not to be found in the description of the first category, which, in Singapore, should be assessed at the higher rate, for that it may be considered that that category is not so comprehensive in the Indian as in the English Act, and, subjects of taxation may be conceived which would be rateable in England on the higher scale as not being mere land, whilst it would only be rateable on the lower scale in Singapore as not being clearly buildings. When the word 'building ' is used hj a law after one or more words of a more definite or pointed sense like the word ' house,' the proper rule of construction is that it should comprise only subject ejusdem generis with houses, and this I'estricted meaning which primarily attaches to it cannot be rejected unless there are adequate grounds to show that it was not used in the limited order of ideas to which its predecessors belong. It is so stated in Maxwell's Inti-rpretation of Statutes, 2nd edition, pages 410 and 412, and so laid down by Justice Ekle in Powell v. Farmer, 34 L. J. [JSr. S.] C. p. 72, and Mr. Justice Blackbukn in The Qi.ieen v. The Overseers of Neath, 6 L. E. Q. H. 711. Applying this rule of construction to Section 4 of the Indian Act, I think that buildings include only those subjects which are ejusdem generis with houses, and it is impossible for me to hold that the docks, whatever their importance or the cost of their construction may be, are ejusdem generis with houses. Nor do I see that there are adequate grounds to show that the word building should be taken in a wider sense. The case of Peto V. West Ham must have great weight in the case of docks worked in common with buildings, and may lead to the inference that what is not per se a building may acquire that character if work- ed in common with buildings as one establishment. But in this case the docks are separate from the warehouses, the carpenters' shed and brick-built house containing certain machinery to work the docks are mere adjuncts and accessories thereto, the whole, taken together, is separate from the warehouses, and ca,nnot therefore; on the authority of Peto v. West Ham, be taken to be buildings. Besides, tlie authorities quoted in Maxwell's work at page 349 are to the effect that the subject is not to be taxed unless the language of the Statute clearly imposes the obligation, and that in S'rRAITS SETTLEMENTS. 117 Tanjong Pagar Dock Co. V. Municipal C0MM1&- SIONEKS. a case of doubt the construction most beneficial to the subject Ford, C.J. should be adopted. It is, to say the least, far from clear that ^™5?'^^), docks considered per se should be taken to be buildings ^'^wscZera lereTu) generis with houses, and they were, I think, rightly assessed on the lower rates. For these reasons, the first ground of a.ppeal should be repelled. On the second, I also agree with the judgment appealed from. Under Section 2 of Ordinance 3 of 1879, it is clear that in estimating the value of any land on which machinery is employed for manufacturing the produce of that land, it is lawful to take the enhanced value given to such land by the presence of such machinery. As no property should be taxed unless expressly mentioned in the law, this leads to the inference that if the machinery is not used for manufacturing the produce of such land, the enhanced value which it may give to land should not be taken into consideration for purposes of assessment. A distinc- tion has been made by the Counsel for the appellants between the value of machinery and the enhanced value which it gives to the land on which it exists, but this distinction is more imaginary than real, so far as this case goes. Under Section 4 of the Indian Act, the estimated gross annual rent to be considered is that which an hypothetical tenant might be reasonably expected to give ; a tenant having to rent lands with machinery thereon would ascertain the cost of purchasing the machinery and of setting it up on the land, would take the interest on the amount and add it to the rent he is prepared to give for the lands ; so that it is difficult in a case of this nature, and under this law, to conceive any enhanced value caused by machinery into which the value of the machinery would not enter for a part. I hold, therefore, that when Section 4 excludes the value of machinery, it excludes also the enhanced value given by the presence of machinery. This construction derives greater force from the addition made by the Ordinance of 1879. If the enhanced value were not excluded from consideration by Section 4 as it originally stood, it would have been needless to pass the Ordinance to declare when the enhanced value should be considered for purposes of assessment. As regards the third ground of appeal, I fully concur in the reasoning of the Court below. It may be that in England, under a different Act for the purposes of the income tax, the profits referred to in the present case should be considered as profits, but our local law requires that the position of a hypothetical tenant should be assumed, and I have no doubt that such tenant would consider the payment to influence business as an outlay to be deducted from profits, and not to be looked at in the light of the profits, and if he stood alone he would consider that in order to obtain the same amount of profits that a Company would get, he must employ and pay certain agents, therefore sums so disbursed, although they may come out of the profits and by whatever name parties may call them, are to the hypothetical tenant expenses and not profits. The appeal should be dismissed with costs. Pekahg. Wood, J. 1885. lis THE SUPHEME court. ABDULEAHMAN & ORS. v. MANNAR ASARY. A prisoner ivho is charged with the coimnissiou of an offence as a principal, cannot be convicted of an abetment of the offence without the charge being first amended by chai-giug him with the abetment. Section 64 of the Criminal Procedure Ordinance G of 1873 does not include such November 11. a case. There were three appellants in this case; the first tvvo of wlioni Abdulrahmau and Mootoosamy had been convicted by Henry Arthur Thompson, Esquire, Magistrate, under Section 34'2 of the Penal Code, of wrongfully confining the respondent — the third appellant Singaravello, had been convicted under Sections 109 and 342 of abetting the fii'st two appellants in such wrongful act. The appellants were all charged before the Magistrate as principals under Section 342 only; on the conclusion of the case, the Magistrate convicted the first two appellants as principals, and the third of abetment as aforesaid. There had been no amendment of the charge into one of abetment against the third appellant. All the appellants appealed. The case was before this Court on 17th August, when it was remitted back to the Magistrate for amendment. It having been amended and returned into Courtj the appeal came on for final hearing this day. Van Someren, for appellants contended, the conviction was against the weight of evidence as regarded the first two appellants. As regards the third, he contended there could be no conviction of a prisoner as an abettor, when he was charged only as a principal, and submitted Section 64 of the Criminal Procedure Ordinance 6 of 1873 did not apply to such a case. He referred to Mayne on the Penal Code, 423, 24 [9th Ed.], and per West, J. 11 Bom. H. Ct. Rep. 241. It was different in the case of a convic- tion for an attempt under Section 67. T>. Logan [Solicitor-General] for the respondent contended, that Section 64 applied to the case, and the authority cited was merely the opinion of a single judge, and not binding on this Court. Wood, J. held, there were no grounds for the appeal as regarded the first two appellants. As regarded the third, that a prisoner who was charged with the commission of an oflience as a principal could not be convicted of abetting that offence without the charge being first amended by charging him as abettor. The authorities cited were in point and shewed that Section 64 did not include such a case, and he was of opinion that that was the right construction of the section. Convictions of Nos. 1 and 2 affirmed. Conviction of No. 8 quashed.. STRAITS SETTLEMENTS. il9 In the goods of MUCKDOOM NINA MBRICAN. Where an interest or estate vests in a irersou, as the "heir" of a deceased, prior to Penang. A(;t 20 of 1837, the fact,— that such "heir" did not insist on his rights, and was dead, Lat the time the question arose between his descendants and others] so that he could not Wood J. personally be deprived of such estate— does not prevent the case falling within the 1885. second proviso of the xVct, and the property [lands and shops, which were still iu the .same condition as they were at the time the deceased died] cannot, even at this dale, be November 16. treated as chattels real. Q,neri/. Is Act 20 of 1837, retrospective ? This was an application under Section 491 of the Civil Procedure Ordinance 5 of 1878, bj one Hamid, as the son and attorney of one JVlahoined Mah^ a daughter of the abovenamed deceased, that Letters of Administration to the Estate of the deceased, granted to one Mowna IMerican, a gi-andson of the deceased, might be revoked, and the said JMowna Merican in the meanwhile restrained by in junction from selling and disposing, as such Administrator, the estate of the deceased. The grounds of the application were firstly, that the deceased had left a Will a,t the French Settlement of Karrikal, in India; and secondly, that as the daughter of the deceased, the applicant had a right to administration, prior to the said Mowna Merican, his grandson, but she had not been cited to a.ppear, nor service on her dispensed with by tlie Court under Sections 480, 481. A Rule Nisi was granted, and an interim injunction issued. The deceased had died a.t Karrikal aforesaid in 1827 leaving, among others, his eldest son one Mam Meera Lebby Merican, his heir, who had obtained administration to his estate here, in IBol, and distributed the rents of the lands and shops, the estate of the deceased, among all the children of the deceased including the said Mahomed JMfah. The said Mowna Merican was the eldest son of the said Mam Meera Lebby Merican ; he was born in 1843, shortly before the death of his father. The said Muckdoom Nina Merican, the deceased herein, was possessed of the aforesaid lands and houses in this Settleinent, which he purported to devise by his aforesaid Will, but the Will was attested by only one witness. The said Mam Meera Lebby Merican had never insisted on his exclusive right to the lands and shops as the heir of the deceased, but during his lifetime, he treated them as his father's estate, to which all the childi'cn [including the said Mahomed Mali] were entitled — and the property was so treated, by all the parties, till shortly before the issue of the Rule Nisi herein. The case now came on the Eule Nisi, and was further heard on 11th January, 1886. Ross, for Mowna Merican the administrator, shewed cause. He contended, that the Will was invalid as it was not attested according to either the Wills Act 25 of 1838, or the law prior to that Act; that as it affected lands in this Settlement, it was in- operative. As regarded the second point, he contended, the question of priority of right to administration, did not arise, as the deceased died prior to the passing of the Act 20 of 1837, and the lands descended to Mam Meera Lebby Merican, as the deceased's heir, and was therefore, his property, [and not the deceased's herein] , and was now distributable among his next-of- kin, of whom the applicant Mahomed Mah was not one. 120 THE SUPREME COURT. Wood, J. 1885. MncKDooM Nina Mekican. Penang. Wood, J. 1886. January 8. Van So'inereii, ior the applicant in support of the rule, conceded the first point. As regarded the second, he contended Act 20 of inihegoodsof 1837 was retrospective, and the lands which were now in the same IT condition as they were at the time of the deceased's death, must be treated as " chattels real " and did not pass to Mam Meera Lebby Merican as the deceased's heir. Moraiss & ors. v. De Souza^ 1 [{iyshe, 27, 29. That Mam Meera Lebby Merican never claimed the property as his, but always treated it as the estate of the deceased to which all his children alike were entitled. That the second proviso to the Act did not apply to the case, as the heir never had entered into possession of the property, as such — Moraiss V. De Souza, 1 Kyshe, 30, and he would not now be deprived of any interest, having long since died, — and the property must, at this date, and between the present parties, be treated as the estate of his fatlier's, the deceased Muckdoom Nina Merican, and distribu- table now among his next-of-kin. He also contended this matter was a question as regarded administration to the estate of Muckdoom Nina Merican deceased, and not, whose property the lands and shops were ; and the Court would not in these proceed- ings enquire whether the deceased herein had, or had not, any property ; or of what such property consisted. The matter being for administration to the estate of the original deceased, the question of priority did arise. Ross, in reply, relied on the proviso aforesaid. Wood, J. declined to decide whether Act 20 of 1837 was retrospective, but considered the case fell within the second proviso of the Act, and the fact that the heir, Mam Meera Lebby Merican, did not insist on his riglits, or that it was his only by doctrine of the Common Law, and not also by actual possession and enjoyment, and that he would not in fact now he deprived of such his interest, as he had been long since dead — did not pre- vent the case falling within such proviso. The property mnst be looked on as the estate of the heir. Mam Meera Lebby Merican, and not as the estate of his father, the deceased herein, and the question of priority of right to administration to the father's estate, did not arise. The Eule would therefore be discharged with costs and the injunction dissolved. Order accordingly [a. J DUVAL V. SCULLY. In re HO KIM HOCK. Au affidavit of the e.xecution of a Bill of Sale wlu(;h describes the occupation of an attestiiijr ivitness as a " Clerk" merely, is insuflicient under the Bills of Sale Ordiuunce 22. of 1870, Section 18, and the Bill of Sale is void against an Execution-creditor [6,] Interpleader summons. The plaintiff had obtained j udgment against the defendant, and the Sheriff on the 23rd December 1 885, seized under a/, fa. issued at the suit of the plaintiff on such [a.'i An ap].c:a was filed agaiust this Judgment, but was dropped on the parties coming to a setllcment. [4.] Ordinance 22 of 1870 has since been repealed, but this case is relained as po.ssibly apfdicablo to (he recent Ordinance 12 of 1886. See Dorat v Le<:slar September, 1886, bifra.—S. W, N. K. ' ' STRAITS SETTLEMENTS. 121 judgment, certain goods belonging to the defendant being his stock-in-trade in the " Colonial Warehouse," which were then in his possesshai. The claimant claimed such goods under a Bill of Sale, dated 20th October, 1885, made by the defendant to him to secure the re-payment of a loan of .?1,200 and interest. The Bill of Sale was attested by two witnesses, and the aiBdavit filed with it, under Ordinance 22 of 1870, Section 18, described the abode and occupation of one of such witnesses as follows : " the abode of the said T. C, is Muntri Street, in Penang, and lie is a clerk." There was no farther description of his occupation in either the Bill of Sale or Affidavit. The plaintiff, the execution-creditor, refused to release the goods alleging the Bill of Sale to be void against him, and hence this Interpleader. Hogan, for claimant contended, the affidavit was a sufficient compliance with the requirements of Section 18 of the aforesaid Ordinance. Van Someren, for plaintiff, the execution-creditor contended, the description of an attesting witness' occupiition as "a clerk" merely was insufficient, and the Bill of Sale was void against his client — Meyappa Chetty v. Khoo Bean Teen & ors., 1 Kyshe, 510, and cases there cited ; re Hams, 10 Ir. L. R. Ch. 100, where the description of an attesting witness as "Law Clerk" was held insufficient; 1 Prideaux on Conveyancing, 741, and Goh Ghin Tek V. Ramsaivmy Chetty, unreported, [a.] Ross, as amicus cwricB mentioned an unreported case the name of which he had no recollection, in which Ford, J. had held some years bef o: e that the description of an attesting witness as " clerk to Mr. Capel" without staring who, what, and where Mr. Capel Avas, was insufficient. Wood, J. I regret that in conformity with English decisions and previous decisions of this Court, I am obliged to decide in favour of the execution-creditor. In so small a place as Penang, I think no European or Eurasian is in point of fact, unknown. The Ordinance however requires the abode and occupation of the grantor and every attesting witness to the Bill of Sale to be given, and the decisions referred to shew the description of a witness as a " clerk " merely is insufficient, and the Bill of Sale void. Judgment for Execution-Creditor ivith costs. [rt.j 17tk August, ISSo. — Uamsamimi Chelty v. Tan Iluat — Goh Chin Tek, claimant. Interpleader for goods seized under a,fi.fi.i. at suit of plaintiff. The affidavit filed with the Bill of Sale, described two of three attesting witnesses as follows : "they are clerks." Capel, for claimant referred to Briggs v. Boss, 3 L. &. Q. U. 268. Van Someren, for execution-creditor, referred to Larchin v. N. V. Deposit Bank, 8 L. E. Ex. 80, on app. 10 L. R. Ex. 64 ; Murray -v . McJcenzie, 10 L. 11. C. P. 625 ; Brodrick v. Scale, 6 L. 11. C. P. 103 ; Vickord v. Sears, 6 L. B. Ex. Div. 364, and re Hams, supra. Wood, J. said the object of the Bill of Sale Ordinance was to enable persons to ascertain without difficulty who they might apply to for information regarding any Bill of Sale. The description 'clerk' lie was disposed to consider was too vague and uncertain to afford evidence of the identity of any of such persons who might be applied to, but at the request of Capel for the claimant, lie would allow an adjourn- ment to enable him to produce any f in-ther authorities he might find against that view. 28th August, lS8o. The case was mentioned as having been settled between the parties, and no judgment was given. Wood, J. ]886. Ddval V. Scully. In re Ho KjM Hock. THE SUPREME COURT. REGINA V. OJIK & ANOR. evidence cigctiii.sl each other is not touclied by any Ordinance, Act, or Statute in I'oroe in this Colony as regards criminal matters; and their evidence is, subject to those exceptions. Penanq. Although by the Mahomedan Marriage Ordinance 5 of 1880, a Mahomedan married ^^-oman■s property is her " separate" property, yet she cannot notwithstanding Section 27 Wood, J. Clause 1 'A of that'Ordiuance, prosecute her husband for theft of such property or cheating. 1886. The Common Law Rule that a Avife or husband cannot, except in certain cases, give evid I'Y'bruary 7. iljis Colony ; still inadmissible in criminal cases ar/ainsl each other. The fact that the husband and wife are both Mahomedans, and the wife's property is her "separate" estate by the aforesaid Ordinance 5 of 1880, does not affect the rule of rvidem.'o, inasmuch as that Ordinance has not rendered their evidence admissihle in criminal matters a'ffina v. Kenny, 2 L. R. Q. B. Div. 307; Regina V. Brittleton, 12 L. R. Q. B. Div. 266, s. c. 50 L. T. [N. S,] 276; Lush on Husband and Wife, pp. 423, 25. Her evidence being inad- missible against ISo. 1, who was jointly indicted and given in charge to the jury with prisoner No. 2 Choh, it was inadmissible against the latter also. Regina v. Thompson, 1 L. R. 0. C. R. 377. That cases decided in India on the point would have no beai-ing here, as the Indian Charters specially preserved the rights of different classes of natives for themselves — Fatimuh v. Logan, 1 Kyshe, 262. D. Loga.n [Solicitor-General ] submitted that in India such cases as this had often occurred, and the conviction in them have been upheld — Regina v. Khatahai, 6 Bom. H. C. Rep. Gr. C. i) ; Mayne on the Penal Code, 306, Section 27, clause 12 of the Ordinance 5 of , 1880, expressly gave the wife the right to prosecute " criminal pro- ceedings" against " all persons " which included the husband as well. Wood, J. said such a proceeding as this was entirely new to him ; that the Mahomedan Marriage Ordinance 5 of 1880 did not render the evidence of the wife admissible against the husband in criminal proceedings — and no other Act, Ordinance, or Statute in force in this Colony enabled her to do so. The Common Law Rule of Evidence was still in force, and her evidence could not be received against her husband No. 1 in this case, notwithstanding. Section 27 Clause 12 of the Mahomedan Marriage Ordinance, and Regina v. SriiiZe^om was an authority on the point. The evidence of the wife being inadmissible against No. 1, it was, on the authority of Regina v. Thom.pson, inadmissible against No. 2, who was jointly charged with him. The case for the prosecution being entirely dependant on her testimony and that being inadmissible, there was no case for the jury. No evidence was then tendered. Verdict : Not Guilty. [«,] See now also 47 & 48 Vie. c. ]4, Sec. 1. 124 THE SUPREME COUKT. TIJAH V. MAT ALLT. Penang. i Mahomedan married womau cannot maintain an action against her husband whether divorced or not, for a share of their yoiM< earnings. Such earnings are not the Wood, J. wife's " separate " ' estate under the Mahomedan Marriage Ordinance 5 of ISSO, 1886. Section 27, but belong to the husband by English law. February 15. Tliis Wiis a rule calling on J. K. Bircli, Esquire, Com- missioner of tlie Court of Requests, Province Wellesley, and the plaintiff, to bring up the proceedings under Section 10 of the Appeals Ordinance 12 of 1879 with a view to a new trial being granted. The proceedings were this day brought up and shewed that the plaintiif's claim in the Court below was for $50 being the "value of the half-shnre of the husband's property after divorce," that the Commissioner had taken no notes of evidence, but had given judgment for the plaintiff for the fall amount with costs. From the affidavit of the defendant in moving for the rule, it appeared that the Commissioner had not taken any evidence in the case, but simply asked the 23laintiff, the defendant, and a Kali, a few questions relative to an alleged divorce by the defendant of the plaintiff, and the Miihomedan law in respect of joint-earnings of husband and wife, and then gave judgment as aforesaid. This affidavit was not contradicted. Van Someren, for defendant submitted there was no evidence in support of the plaintiff's claim, and the claim was one unknown to law. Plaintiff, in person. Wood, J. considered the case must be properly heard by the Commissioner, and directed a new trial to be had, but intimated the claim was one that could not be supported in law. A new trial was had before the said Commissioner, when after taking evidence fully on both sides, he again gave judgment for ttie plaintiff for the full amount and costs. The defendant having again obtained a rule calling on the said Commissioner and the plaintiff to bring up the proceedings on such re-hearing, this was now done. From the evidence it appeared that the plaintiff and defendant were Mahomedan husband and wife, and had jointly rented lands and planted paddy, and also nuide nepah sugar— this paddy and sugar they from time to time had sold and the defendant had received the money, and except what they used for their daily expenses, had retained the balance for himself and subsequently divorced the plaintiff. The claim was for the value of half-share of this balance as being the joint-earnino's of husband and wife. A Kali was also called who proved that according to Mahomedan law a wife after divorce was entitled to , a half-share of all property acquired by joint-earnings of husband and wife during coverture. April 2. Van Someren, for defendant contended, the judsment STRAITS SETTLEMENTS. 125 should be reversed as the claim of a wife whether divorced or not for a share of joint-earnings of herself and husband coukl not be supported in law. Whatever the Mahomedan law on the subject was, the Mahomedan Marriage Ordinance 5 of 1880, Section 27 Clause 2, authorised the Court to administer that law, only in so far as it was enacted in that section ; that Clause 11 of that section made a Mahomedan's wife's own earnings, her seperate property; but it did not touch the jomi-earnings of husband and wife, and the English law that such earnings were the husband's therefore applied. Lufih on Husband and Wifn, 38, 149 — -55; Whitlaher V. Whittaher, 21 L. R. Ch. Div. 657, and Bongnh v. Mat Din, unreported [a.] Flaintiff, in person. The Commissioner did not appear. Wood, J. said the joint-earnings of husband and wife during coverture were according to English law clearly the propertj' of the husband, and such it must be even among Mahomedans here, unless the Mahomedan Marriage Ordinance had enacted otherwise. By Clause 11 of Section 27 of that Ordinance, the wife's own earnings were declared to be her separate estate, and by Clause 12 she was entitled to maintain an action therefor. The Court however could find nothing in that Ordinance which dealt with joint-earnings of husband and wife and it followed from the express power of Section 27 Clause 2, the Mahomedan law on the subject was immaterial. The case therefore was governed by English law. Under Section 10 of the Appeals Ordinance, 1879, the Court might direct a new trial or make such other order so as to secure " substantial justice." That meant, justice as understood by law. It was useless to order a new trial when all the materials were already before the Court for the sole reason that judgment might be given by the Court below for the defendant. The Court would therefore now make an order so as to secure to the defendant that which the law gave him. The order would be that the judgment of the Court below be reversed with costs. If any amount has been paid into the Court below, it would have to be refunded to the defendant. Wood, J. 1SS6. TiJAH V, Mat Alli. Judgment reversed with costs. [<7.] Snd April, 1884. Action by Mahomedan wife to recover iider alin a sum of money for her share of ioint-oarnings of herself and the defendant, her husband. The parties had separated, but had not been divorced. ran Somei-en, for the plaintiff. Eos.i, for defendant. JP^ood, J. by consent gave judgment for the plaintiff for $77 without costs, as to the claims' other than in respect of joint-earnings— but refused to give the plaintiff anything under that head, as he considered joint-earnings of a Mahomedan husband and wife— like other husbands and wives— were the property of the hiusband under English law. Judgment for S77 without cotss. 126 THE SUPREME OOTJRT. D'ALMEIDA v. D'MENZIES. SiNOAPOEE. A sale of M;milii LulLerii liwkels does not constitule the "keepiii"', usiuj;, peniiil- tin^ to be used, caring, mannging or assisting in the business of a lottery" within the PoRD, C. J. Gamblinc? Ordinance 13 of 1879 [«■] 18SG. A contract made in this Colony between residents here, for the sale of tickets in a lottery in a Foreign State where the lottery is lawful, is nol. an illegal contract as Pebrnary 25. contravening public policy, and will be enforced by the Courts of this Colony — AKter where the lottery is illegal in the Foreign State. There is no difference in principle between such a contract and the case of money lent tor the purpose of gambling in the Foreign State where gambling is legal. Qiiarrier V. Colston, 1 Phil. 147, and King v. Kenqi, 8 L, T 255, applied. This was an action to recover Spl54.25 for " £!;oods sold and delivered." The goods in question being Manila Lottery tickets. The facts were practically admitted, and snfficiently appear in the judgment. J. D. Vaucjhnn, for plaintiff. T. de M. Bra.dihll. for defendant. Chir. Adv. Vult. 26th March. Ford, C.J. A question of very considerable importance arose in the trial of this case, viz., whether the plaintiff could substantiate a claim for the value of certain tickets known as Manila lottery tickets, sold by liim to the defendant. It appears that the Government of Manila holds a periodical lottery for the benefit of the Eevenue of that Colony: the lottery differing in little or no respect from the form of transaction more generally known by that name, the process being for the State to issue tickets for amounts some 50 per cent above the prizes which are given; the tickets being purchased by whosoever will pay for tlunn, and certain numbered tickets carrying prizes of a greater or lesser value, whilst the remainder are blanks. A not incon- siderable trade is apparently done in these tickets outside the limits of Manila itself, and in this case the plaintiff, a resident in Singapore, having purchased some of the tickets apparently from agents in Manila, sold a portion to the defendant, also a resident here. The defendant now declines to pay for them upon the ground [1st] that such a contract being a violation of the provisions of the Gambling Ordinance 13 of 1879 is illegal and void ; and [2-nd] that if not illegal and void by force of those provisions it is still so by reason of its being a contract against the public policy of these Setblements. To the first of these objections, I expressed my dissent at the hearinir, being clearly of opinion that such a sale of tickets as this could not constitute the " keeping, using, permission to use, care, management or assistance to be given to the business of a lottery " for which some place of keeping or user within the jurisdiction is necessary, both upon the language of the Act, and general principles , of constructions. I reserved, however, my judgment upon the [fl.] This Ordinance has been repealed by Ordinance 5 of 1S88, and by Section 8 of that Ordinance the puridiase of a [Manila] lottery ticket is an offence, and Ijy Section 10 a contract for the sale of such ticket is void". — J.W.N.K, STRAITS SETTLEMENTS. 127 second objection, the qnestion wliother the public policy of these SettlemeDts bein<^ [as I concede it to be] ao-;iinst tlie existence of lotteries within their borders, this Court be justified in refusing- to give effect to a contract for the purchase of lottery tickets made within its jurisdiction in respect to a lottery held outside that jurisdiction and in a country where such lottery is legal. There could, I think, be no doubt of the illegality and invali- dity of such a contract v^ere it made in respect of a lottery illegal where the contract is made, but the question becomes a more difficult one under the circumstances of this case — a case indeed I believe of first impression — and not covered, although, as will be seen hereafter, I am of opinion, strongly vouched by authority. Had it not been for that authority, having regard to the great evils which might arise from a neighbouring State flooding these Settlements with enticements to gambling of this class, or to people of these Settlements taking advantage of the contiguity of a State where lotteries were legal to carry on the business of a lottery there, their actaal clients being citizens of these Settle- ments, I should have been stronsly disposed to have ranged this class of foreign contracts between the State and the ticket-holder together with the assignees and transferees of them here, under that class of which Santos v. liUdge, 6 0. B. [N. S.] 84d, Grell v. Levy 16 C. B. [N. S.] 73, and Hope v. Hope, 26 L. J. Ch. 417 are examples ; in which the Courts declared they would not enforce contracts legal in the country in which they were made, but illegal in England as contravening objects of public policy. In the above cases the public policy alleged to be contravened, was the declared law of England as against slavery, a^^ainst restraint of trade, and in favour of certain rights arising out of marriage, but the extension of the principle to contracts in connection with gambling in States where gambling is lawful, and were actual consideration has passed between the parties, seems to have been sucoesfully resisted in the cases of Quavrier v. Cohton, 1 Ph. 147, and King v. Kemiy, 8 L. T. 25-5, quoted by Mr. Vaughan. The facts in both these cases were alike. In each case A. had lent money to B. in a foreign State to gamble with. The plaintiff in the one case sought unsuccessfully to restrain an action at law for tlie amount lent, and the defendant in the other case set up the plea of the illegal purpose for which the money was lent. In both cases the lender was held entitled to recover. Nothing turned upon the question of where the money had been lent, nor do I see', how the place of lending could affect the question, I am unable, — and \. say it with some regret, for the application of the principle I have referred to in one class of cases and not in the other seems an arbitrary one — to distinguish these cases in prin- ciple from the one now before me. The contract in these cases will be simply put in this form. In consideration of A. lending B. a sum of money to gamble with, where gambling is lawful, B. promises to re-pay it; A. lending the money is entitled to recover. The contract here will, I think, be simply and accurately put in this form. In consideration of A. giving to B. a ticket which shall enable B. to gamble by taking his place in a lottery where POBD, C.J. 3 886. D'Almeida V. D'Menzies. 128 THE SUPREME COURT. FoKD, C.J. lotteries are lawful, B. agrees to pay A. a certain sum for the ticket, 1886. ^Yie transactions mutatis mutandis are in substance the same ; if A. ^■Almeida had lent the money to B. to buy tlie lottery ticket, the facts would v. be in form identical with the two cases to whicli I have referred, D'llENziEs. ^^^ j^g j^^g(. jjjj^yg recovered. But in what does the transaction differ ? In substance in no way ; in form only in this way that A. has shortened the process by selling a ticket to B. upon credit instead of obliging B. to procure it with money lent by A. Upon authority therefore, I think the plaintiff in this action is entitled to recover. I need' hardly add that the laws of England against lottery and gambling are generally as stringent as the laws of tliese Settlements, and that the stringency rests upon similar consider- ations of public policy to those which govern legislation here. Judgment for plaintiff with costs. QUAIK KEE HOCK v. WEE GEOK NEO. Singapore. The word " children " in a Will, means children horn in wedlock ; but if from the context or in the surrounding circumstances, the word is shewn to have heen used by FoBD, C.J. the testator in a broader sense, such wider meaning will be given to it so as, if 1886. necessary to include illegitimate or even adopted children. A subsequent ambiguous clause in a Will, which is somewhat inconsistent with March 12. a previous unambiguous clause, does not necessarily revoke or modify the previous clause, but the Court will, if possible, place such a construction on the ambiguous clause so that the two may stand together. A testator, a Chinese domiciled in Singapore, made a Will by which, after direct- ing all his just debts, funeral and testamentary expenses to be paid by his Executrix as soon a.s conveniently may be after his decease, gave, devised, and bequeathed all his household furniture, wearing apparel, chattels and other effects, and also all and every sum or sums of money which might be found in his house or be about his person, or due to him at the time of his death, and also all his stock, fund, rent and securities for money due on bonds, bills or notes or other securities, and all and every other his estate and effects whatsoever and wheresoever, whether in possession or reversion, remainder or expectancy, unto his " wives or widows and children hoth in Singapore and in China." The testator then nominated, constituted and appointed his widow [in Singapore] to be the Executrix of his Will "and to make also a remittance of money to his wife or widow and son in China, one-fourth [4] part of the residue of his estate." The testator at the date of his Will and time of his death had two wives [one in Singapore and one in China] — a daughter of his own in Singapore [who had since died leaving a husband but no issue] — an adopted son in Singapore [since deceased] — and two adopted sons in China. He had no sons of his own, either in Singapore or China. Prom the evidence it appeared that the position of adopted children was the same in all Chinese families and in ordinary language they would be included in the word " children," and it wa« not usual to make a distinction between those born in wedlock and those adopted. Held [by Ford, Acting C.J. and affirmed by the Court of Appeal ],* that the word " children" in the Will included the adopted sons both in Singapore and in China ; and that the clear language of the first part of the Will, giving the " children" all like shares wa.s not cut down by the latter ambiguous words as to " one-fourth part of the residue" — which latter clause indicated the class to be benefited, but applied — only to a "remittance" to be made [in part execution of the general beque.st] to sup- port the China wife and adopted sons, pending the winding up of the Estate. This was a suit for the admiiiistration of the estate of Tan Swee, deceased, of whom the defendant wtis the executrix. It was found, in proceedings before the Registrar, that the testator left surviving him two widows [one in Siiigupore and one in China], a daughter of his own in Singapore, who had since died STRAITS SETTLEMENTS. 129 leaving a liusband and no issue ; one adopted son in Singapore [since deceased], and two adopted sons in China. The testator had not been in China for over forty years, and had adopted the tvFO sons there when they were only a few months old, more than forty years ago ; one was a child of the testator's elder brother, and the other a sou of a relative. The deceased had no sons of his own in either Singapore or China. The words of the will, so far as they are material, were as follows : — " I direct ttat all my just debts, funeral and testamentary expenses be duly paid and satisfied by my Executrix hereinafter named as soon as con- veniently may be after my decease. I give, devise, and bequeath all my household furniture, wearing apparel, chattels and other effects, and also all and every sum or sum.B of money which may be found in my house, or be about my person, or due to me at the time of my decease, and also all my stock, fund, rent and securities for money due on bonds, bills, notes, or other securities, and all and every other my estate and effects whatsoever and wheresoever whether in possession or reversion, remainder or expectancy imto my wives or widows and children both in Singapore and in China. And I nominate, constitute and appoint my wife or widow Wee Geok Neo to be Executrix of this my Will, and also to make a remittance of money to my wife or widow and son in China one-fourth [i] pai-t of the residue of my estate." Donaldson, for the plaintiff, the husband of the deceased daughter, contended that the status of adopted children could not be placed higher, if as high, as that of illegitimate children under English law, and referred to the following cases : — Dorin V. Dorin, L. R. 7 H. L. 568; Gill r. Shelley, 9 L. J. Ch. 68; Paul V. Children, 12 L. R. Eq. 16; Re AyWs' Trusts, \ Oh. Div. 282 ; Occleston v. Fullalove, L. R. 9 Ch. Ap. 147 ; Gariwrightv. Vawdry, 5 Ves. 530; Wilkinson v. Adam, 1 V. & B. 422 ; ElUs v. Houston 10 Ch. Div. 236. The will was not iutelligible, having been drawn by a Kling man ; and the second clause as to a remittance showed an intention to benefit one son only in China, and if the Court held that the adopted sons could take at all, it was impossible to say which of the two sons was meant. In any case the share of the claimants from China was only for one-fourth, being cut down to that by the second clause. The persons to benefit were the wives and one lawful child, and amid such a mass of absurdity as to the words of the will, it might be in equal shares. Drew, for the Singapore widow and executrix of the deceased argued, that under the word "children" none could take except legitimate children, if the words of the will could possibly apply to legitimate children, unless children other than legitimate chil- dren, were clearly designated by name or description in the will, which was not the case in this will. Adopted children did not take any share in the estate of a Chinese intestate [a]. The last clause of the will clearly expressed what share of the estate should go to those spoken of as " in China." Buckley, for the China widow and adopted sons. — As to the latter clause of the will, it only speaks of a "remittance," meaning that the one-fourth should be sent at once to China to keep up the establishment where the China widow and the two [a]. See Khoo Tiang Bee v. Tan Beng Gicat, Vol. 1 of these Reports, 413. FOKD, 0. J. 1886. QUAIK Kee Hock V. Wee Geok Neo, 130 THE SUPREME COURT. FOBD, C. J. 1886. QuAiK Kkb Hock V. Wee Geok Nbo. adopted sons had lived for forty years. That the words of the second clause were not so distinct as to cut down the unqualified and absolute bequest in the first clause. Kerr v. Clinton, 8 L. E. Eq. 462. Adopted children were spoken of by Chinamen in the same way as they spoke of their lawful children ; all were treated alike. In this case the adopted children' were near relations, one being the son of an elder brother, the highest form of adoption. The status as adopted children was much higher than that of illegitimate children in England, and the reasons of the rule in England, which were the difficulty of identification and the refusal of the Courts to enquire into a question of reputation and not of fact, and to allow evidence to be given as to the actual paternity [Wilkinson v. Adam,l V. & B. 435 ; Oeelestonv. Fnllalove, L. E. 9 Ch. Ap. 170] do not apply to adopted children, because, among other reasons, no evidence of immorality can come into ques- tion. Unless the adopted children were intended, the will had no meaning, as the testator had not been in China for forty years, and his China wife had never left China. If the word " child " meant, by legal construction, only the testator's own lawful children the adopted sons had no case, but this was not so. [ Lord Cairns, in Eill V. GrooTc, L. E. 6 H. L. 265, 283, 285 ; Lord Eomillt in Le-pine V. Bean, L. E. 10 Eq. 162 ; Lord Hatheblet in Darin v. Dorin, L. E. 7 H. L. 675.] The Court here will not follow blindly the English technical rule as to illegitimate children. Barlow v. Orde, L. E. 3 P. C. 164. If a question arose as to the law in China, the adop- ted sons might possibly take under that law in Singapore. Good- man's Trusts, n Ch. Div. 266. Children in existence were spoken of, and the circumstances and the state of the family no doubt of the testatoi''s intention, and that must, when sufficiently clear, govern the construction of the will. Erom the evidence adduced it clearly appears that the position of adopted children was the same in all Chinese families. That a learned man writing a will would make a distinction in language between his lawful children and adopted children, but in ordinary language they would all be included in the word children, and it was not usual to make a distinction. Donaldson, in reply. — The word child has a definite meaning — the issue of the body of a man or woman. Aii illegitimate child does answer to this description in a will, an adopted child does not. It would be- dangerous and inconvenient, in Singapore, to extend the meaning of the word. The Chinese here know now the meaning of the word, and no exception should be made in their favour, because they use insufficient words of designation. Cur. Adv. Vult. On this day, judgment was delivered by Ford, Acig. G.J. — By this will the testator gives all his pro- perty " unto his wives or widows and children both in Singapore and in China," and after appointing one of the wives executrix directs " a remittance of money to his wife or widow and son in China, one-fourth [i] part of the residue of his estate." A ques- STRAITS SETTLEMENTS. 131 Ford, C.J. 1886. Hock V. Wee Gkok Neo. tion has arisen upon the construction of these paragraphs, the testator having at the date of the will, and at his decease, a wife and two adopted sons in China, and a wife and one adopted son q^aik Kee and one daughter by marriage in Singapore. The testator was at the time of making his will, and necessarily therefore at his death, over 60 years of age and he had married his wife in China 41 years ago, and with the exception of a few months had not seen her or at least lived with her since his marriage. It was urged that the adopted children could not take, although their designation as his children was to an ordinary mind tolerably clear, because the case must be governed by the rules of English law regarding illegitimate children. It was argued that adopted children among the Chinese must be piit on the same status as illegitimate children in England, and that as illegitimate children would not take in England, the adopted children here must labour under the same disadvantage. But I am of opinion, taking all the facts of the case into consideration, together with the terms of the beques), that even under the English authorities, and if adopted children ranked in all respects like illegitimate children [a position I am not disposed to concur in] sfiill they would be entitled to take under this will. In English cases the word children in a will means legitimate children, unless by necessary implication the reference is to, or comprises, legitimate children. To arrive at a decision whether such an implication is a necessary one, the Courts have certainly looked at the facts and circumstances of the testator's family at the time the will was made, although you are forbidden, it is said, to do so with a view to any speculation upon his intention. The facts in the case, I think, forbid speculation, and taken with the language of the will, even if the devising clause stood alone, supply the necessai-y implication, unless we are indeed to specu- late upon the possibilit}"- of a testator over sixty years of age rejoining a wife married to him in China forty-four years ago, and with whom he lived but a few months, and, at the common age of at least sixty, having children by her. I do not conceive that you are to exclude an implication which, having reference to natural laws and our experience of their operation, is a necessary one, for a hypothetical possibility which is contrary to that experi- ence. The case of Dorin v. Dorin, 7 L. E. H. L. 568, is not in contradiction to this view; for there, that the husband might have children after marriage with his mistress, was a natural and probable event, contradicting no experience of the opera- tion of natural laws. [The learned judge then referred to the facts of this case.] But this view of the testator's intention is confirmed by the reference in the subsequent paragraph of the will to a remittance to his widow and son in China. You could not, as you could in the case of Dorin v. Dorin, read the will as applicable only to non-adopted children, for there was no son in China, but an adopted child, and the sending a remittance to him must' be treating him as existing. The coupling of the widow and children in Singapore with those in China leads, I think, to the irresistible 132 THE SUPREME COURT. Ford, C. 1886. J. QuAiK Kee Hock V. Wee Geok Neo. inference that in each case he spoke of a similar class, and with a similar intent, and therefore the adopted child in Singapore will take as well as the adopted children in China. For the construction of the will it is not necessary to deter- mine the question, and I would rather not merely express an opinion upon it. Whether in a Chinaman's will a gift to children simply would include adopted children, or whether the Court here would be bound to apply the rule of the English Courts which excludes illegitimate children, to adopted children amongst Chinese residents here — questions which were argued before me at length and with ability. I think it will be better to determine those questions when they actually arise for decision, and when, so important do I consider them, the opinion of a Court of Appeal can, if desired, be taken upon them. The Court can give but an uncertain meaning to the second clause in the will, beyond pointing out that, by directing a remittance to be sent to the widow and son in China, the testa- tor indicated the class he intended to benefit by the previous actual gift. This direction to send a remittance of one-fourth I think clearly too ambiguous to operate as cutting down the previous gift, and I think the fair reading of it must be that the testator was thinking only of a remittance to support his absent wife and children in another country pending the winding up of the estate here. Possibly an error of the drawer of the will led to the word 'son' being inserted for 'sons.' Its practical opera- tion is not important as no remittance has been made and the estate is now, I understand, divisible. The result is that the two widows and the children [including the adopted children] take equal shares in the estate, and that the clause directing a remittance is to be treated only as of that character. The costs of all the parties may be borne by the estate. The defendant appealed from this decision, and the appeal was argued before the Court of Appeal on the 10th, 11th, 12th, 13th, 16th and 17th August, 1886. Bonser, [Attorney- General] Burkinshaw, and Joacjuini, for the appellants, in addition to the cases cited below, referred to Stringer v. Gardiner, 27 Beav. 35; Goodinge r. Goodinge, 1 Ves. Sen. 231 ; Veale's Trusts, 6 L. E. Ch. Div. 622; Megson v. Hivdle, 15 L. R. Ch. Div. 198; Re Parker, 15 L. R. Ch. Div. 528, s. c. 17 Ch. Div. 264; Wells v. Wells, 18 L. R. Eq. 504; Merrill v. Morton, 17 L. R. Ch. Div. 382; Crook v. Whitley, 7 Be G. M. & G. 496; Evans v. Davies, 7 Hare 498 ; Be Well's Estate, 6 L. R. Eq. 599 ; Re Campbell's Trusts, 34 W. R. 629 ; Armstrong v. Armstrong, 7 L. R. Eq. 618 ; Eagles v. Le Breton, 15 L. E. Eq. 148 ; MacGibhon V. Ahhott 10 L. R. App. Cases 653, Martin v. Lee, 1 1 Moore P. C. 142 ; Levy v. Soloman, 25 W. R. 842 ; Reg. v. Willans, 3 Kyshe, 16; Khoo Tian Bee v. Tan Beng Gwat, 1 Kyshe, 413; Yeap Cheah Neoh v. Ong Chenff Neo, 6 L. R. P. C. 318, s. e. 1 Kyshe, 326. Bucldey, for the respondent, in addition to the cases cited below, referred to Laher v. Hordern, 1 L. R. Ch. Div. 644; Leigh STRAITS SETTLEMENTS. 133 V. Byro7i, 1 Sm. & Giff. 486; Adney v. Greatrex, 38 L. J Ch. 414; Foed, C. J. Sherratt v. MovMford, 15 L. E. JEq. 305; Brown v . Bolton, 31 ^F'l^^''^) ^ ^ L. R. Ch. Div. 542; Charter v. Charter, 7 L. E. H. L. C. 364 ; i,™r. ] OverhiWs Trusts, 1 Sm. & Gif . 362 ; Rolt v. Sindrey, 7 L. R. Eq. 188H. 170; J(^, College, 6. L. E. Q. B. aI In ""^ Contracts, 371-2, 376-77; Chilly on Contracts. 46-47. ^ „. . Wood, J. said the distinction contended for on behalf of the Euso^fTco plaintiits was a well-known one, and the authorities relied on clearly proved it— this case was quite distinguishable from Taithv V. Caldwell RViA was one which fell within that class, where per- formance was rendered impossible by a subsequent event, which might have been provided against, and did not go to put an end to the subject of the contract; and neither impossibility, nor the being subject to numerous actions for each independant breach, was a defence. The agreements were perfectly fair and mutual, and were not in restraint of trade and competition. Jones v' North, 19. L. E. Eq. 426 [a]— the judgment of the Court below must be reversed, and that with costs. Judgment reversed with costs. CHINA GUNNY v. MUNIANDEE. The Court has power under Section reduce a sentence passed by a Magistrate. 25 of the Appeals Ordinance 12 of 1879, to Penanq. This was an appeal from the decision of C. W. S. Kynnersley, Esquire, First Magistrate, Penan g. The appellant [the prisoner] had in another case been bail for the respondent's brother, who was accused of theft — the accused had absconded, and the Bail Bond had been estreated, and the appellant obliged to pay $50 the amount of the bail. Having so done he went in search of the respondent and having met him accused him of having got away his brother and demanded the |50 from him. This led to words, whereupon the appellant struck the respondent a blow o*i the nose, which caused him to fall and then kicked him. The appellant, before the Magistrate, admitted he had struck the respondent and that he was wrong in having done so. The Magistrate convicted the appellant of voluntarily causing hurt, under Section 323 of the Penal Code, and sentenced him to one month's rigorous imprison- ment and a fine of $10, which he directed to be paid to the prosecutor [the respondent]. After the Magistrate had risen he considered he had inflicted too heavy a sentence on the appellant, but considered he was powerless to alter it [6] . He thereupon wrote to the appellant's Solicitor, stating he had no objection to the sentence being reduced to a fine only, if there was any way in which it could legally be done. The appellant appealed to this Court. Sheriff, J. 1886. June 7. [ff.J See Allen v. Meera Pullay, Vol. 1 of these Reports," 394. rj.J Lim Chow Leng v. Opium Farmer, Vol, 3 of these Reports, 136. 162 THE SUPREME COURT. J. Sheriff, 1886. China GUNNT, V. ■ MUNIANDEE. Anthony, for appellant. The only question here is, whether this Court has, under the Appeals Ordinance 12 of 1879, power to reduce a sentence passed by a Magistrate. Under Section 34, Clause 5 if the sentence passed is one which could not legally have been passed for the offence of which the accused was convicted, this Court could quash the sentence and remit the case to the Magistrate to pass a legal sentence. In the present case, the sentence was one which might have been legally passed on the appellant for voluntarily causing hurt, the offence which he was convicted of : Section 34, Clause 5, therefore did not apply. The appellant whs desirous of getting the imprisonment removed. The Magistrate had changed his mind, and would probably have remitted it, if he had the power. He however hadn't it, and there was no course left, but for the appellant to appeal to this Court. It is submitted that under Section 25 of the Appeals Ordinance, this Court may alter the adjudication of the Magistrate, by reducing the sentence. D. Logan, [Solicitor-General] for the respondent. We do not object to the sentence being reduced, if this Court considers it has the power to do so. It has on one or two occasions been done, but it has been doubted how far the Court had the power [a.] Sheriff, J. said, he had no doubt on the point, but as he was sitting in this Court for the first time, he had thought it right to consult his learned brother Wood, J. on the point : they were both agreed, that as by Section 25 this Court could "■alter the adjudica- tion of the Magistrate" it could do so by reducing the sentence he had passed, if justice seemed to require it. The case here was practically one of assault, and the justice of the case would be met with a fine only. The order would therefore be that the sentence of the Magistrate be altered by the imprisonment being remitted, and the fine increased to $40. Order accordingly . EEGINA V. DORASAMY. Penanq. a person who entices away a married woman with intent himself to have illicit intercourse with her, is liable to be punished under Section 19S of the Penal Code^and Wood, J. the words " any person " in that Section may include himself, and not necessarily refer 1886. to another person. June 15. Regina v. Kadir, 2 Kyshe, Cr. Eulings, 105, over-ruled. Section 12 of the Appeals Case stated by Wood, J. under Ordinance 12 of 1879, as follows: — At a trial held before me on the 18th December, 1885, the prisoner Dorasamy was found guilty of " enticing away from her husband a woman Amurthum whom he knew, or had reason to believe, to be the wife of one Tyen with intent to have illicit intercourse with him the said Dorasamy " and thus was alleged to [a.J See Beg v Lim Peng, Vol. 3 of these Heports, 85, foot note [a.] and Gen Kim Swee V. NewlanA, Ihd. 108, '" ^» •» *- J.J. robbery, if the act had been done within the body of an English Country." Shkeiff. J I am of opinion however that the objection taken by the e^^^. learned Counsel, viz., that these prisoners should have been tried v. by a special jury, is a good one. Clause 32 of Ordinance 6 of Nta Abu ]'878, says " trials in all cases punishable by death shall be had & Obs. before a special jury," and the only question is, whether or not piracy, of the class committed by these aliens [piracy jure gentium] is in this Colony punishable with death ? For the answer to this question, starting from the undoubted position that piracy was a felony at Common Law and punishable with death, we have to search and see if any alterations of that punishment have been made by statutory authority affecting this Colony which derives its jurisdiction to try piracy cases from the grant of Admiralty Jurisdiction in this particular, by 12 & 13 Vic. c. 96, Section 2 of which further enacts that persons convicted of piracy under the Act shall be subject and liable to, and shall suffer all such, and the same penalties and forfeitures as by any law or laws then in force, as persons convicted in England. We have therefore to enquire whether piracy was still punishable by death in England at the date of the passing of that Act, viz., the year 1849. The question is obscured by a number of more or less obscurely word- ed Statutes, but as before stated by Common Law piracy was punishable in the Courts of Admiralty only, and the offence being in aliens a felony, was punishable with death. The Statute of Hen. VIII. c. 15, seems to have done no more than give a co- ordinate jurisdiction to the King's Commissioners on land ; and the subsequent Acts cited, the 2 Wm. Ill, cap. 7; 4 Geo. I. c. 11 ; 8 Geo. I. c. 24 and 5 Geo. IV. c. 113, only made certain offences — such as [1] natural-born subjects and denizens robbing under a foreign flag, [2] persons trading with and being con- nected in certain ways with pirates and destroying rather than robbing goods on vessels, [3] and persons engaging in the slave trade— acts of piracy. Then comes the 7 Wm. IV. and 1 Vic. c. 88, which, repealing much of the above Statutes mitigates the punishment for piracy when without violence, but only as I read the section, [3] for offences which hy any of the 'acts t her einbe fare referred to, amounted to the crime of piracy and which were thereby made punishable with death. The acts referred to are those recited in the Statute— those I have enumerated above. The effect of these acts seems to me to leave the question of piracy JMJ-e gentium untouched. This being so, the offence seems to me in the absence of subsequent legislation affecting this Colony, still punishable with death, although in many cases the Court, ' acting under the provisions of 4 Geo. IV. c. 48, s. 1, might direct the sentence to he recorded only. This verdict there- fore cannot stand and muat be treated as a nullity. Prisoners discharged. 176 THE SUPREME COURT. Singapore. Pel- LEREAU, J. 1886. August 25. EEGINA V. GHEE TANG & ANOE. Although a prisoner might have successfully objected to the admissibility of a statement of a deceased j^erson, either as a dying declaration, or a deposition under Ordinance-20 of 1870, Section^26, yet he is entitled, in his defence, if he so chooses, to put in the statement as something which was said by the deceased, which goes to help his defence thereby waiving the objection which was ba.sed on the omis.sion of a formality required for his protection. Case stated bj Pellereau, J. which set out the following facts. The prisoners has been tried before him at the Assizes holden in Malacca on 28th July, 1886, on a charge of murder. Durinc: the course of the trial. Counsel for the prosecution tendered in evidence, as a dying declaration, a statement made by the deceased one Tan Jit Foo, in the presence of a Justice of the Peace ; but it being objected to, as it could not be shewn whether the deceased at the time thought himself to be in danger of approaching death, the statement was rejected. Counsel for the prosecution then tendered it in evidence as a deposition under Section 26 of Ordinance 20 of 1870. It was shewn by evidence that prisoner No. 2 was present when the statement was made, but No. 1 had not then been arrested. Counsel for the prisoners again objected its admissi- bility on the ground that notice in writing had not been given under the section, to either of the prisoners, and relied on Reg. v. 8hurmer, 17 L. R. Q. B. Div. 323. The Court again rejected the statement. After the close of the case for the prosecution. Coun- sel for defence tendered the same statement in evidence, for the defence, as b^ing a statement made by the deceased, which, as he contended, went to prove his case. Counsel for the prosecution consented to its being received, but the learned Judge considei'ed that the statement was inadmissible as no notice in writing had been given to the prosecutor tinder Section 26 aforesaid and that consent did not make it admissible in a criminal case ; he referred on the latter point to Beg. v. Bertrand, 1 L. R. P. C. 520, s. c. 36 L. J. P. C. [N. S.] 51, and rejected the statement again. The jury found the prisoners guilty of culpable homicide not amount- ing to murder, whereupon the learned Judge reserved the point, whether the prisoners, under the circumstances, were entitled to put in the statement as evidence on their behalf, foi' the consi- deration of the Court of Appeal; and that question now came on for argument befoie the Court of Appeal. Groom, for the prisoners contended, that the statement having been made by the deceased under circumstances which precluded any possibility of collusion between the prisoners and the deceas- ed, any statement made by the deceased as to how he was wounded, and by whom, was admissible, if tendered by prisoners. That the document was headed " The dying deposition of Tan Jit Foo, &c." and had been rejected, as such, both under the English law, and the Indian Evidfence Act II of 1 855, Section 29. It had also been rejected as a deposition under Ordinance 20 of 1870, Section 26 ; but neither of those matters afforded any ground for preventing the prisoners afterwards tendering it in evidence as statement made by the deceased, which went to show how he accounted for his wound— it would have been tendered by the prisoners, without the STRAITS SETTLEMENTS. 177 wrongly descriptive beading. The object of the Ordinance 20 of 1870 was, to throw protection around the accused, and to provide safeguards against the reception of improper evidence against them It was improper evidence for tbe prosecution, as they had not followed tbe requirements of the Ordinance, but could it be supposed, that because the prosecution had failed to give proper notice, the prisoners were to be deprived of the benefit of a state- ment made by the deceased ? There was nothing in the Ordinance which excluded them from putting it in as evidence. It would be said the prosecution had no notice under Section 26 — but it was their own document, taken under tbeir directions, in their presence. Suppose this statement had said the two witnesses for the prosecu- tion were the perpetrators of the crime and the prisoners were innocent, you would exclude what the victim himself had said and convict the accused on the evidence of the real culprits. He referred to Nash v. Duncomh, 1 M. & Rob. 104. He also con- tended the statement was admissible, as the prosecutor had consented to its going in as evidence — Beg. v. Haqan, 8 C & P. 167; R'g. v. Hunt, 2 Cox C. C. 261. He submitted Reg. v. Ber- trand was distinguishable because there the witnesses were alive and could have been examined, hare the man whose statement it was, was dead. It was relevant to the case and having been made by the deceased himself relating the circumstances which resulted in his death, the prisoners were entitled, if they chose, to put it in evidence. Bonser, [Attorneu-GeneraV] Drew with him for the Crown, contended the prisoner was blowing hot and cold, he first wanted the statement excluded and then he wanted it admitted. They relied on the language of Ordinance 20 of 1870, Section 26, which reqiiired notice to be given to the prosecutor just as it was required to be given to the accused — the section placed them on the same footing, and what was inadmissible to one, was equally inadmissible to the other. No notice in writing having been given, the statement was inadmissible. Reg. v. Shurmer, supra. Groom, replied. Cur. Adv. Vult. Pbl- leeeatj, j. 1886. Eeqina Cheb Tano & Anok. 29th August 1886, the judgment of the Court [Ford, C.J. Sheriff & Feller eau, J. J.] was now delivered by Sheriff, J. The point reserved by Mr. Justice Pellereau in this case, concisely put, amounts to this. Can a deposition, pur- porting to have been taken under Ordinance 20 of 1870, Section 26, to which Counsel for the defence has successfully objected on its being tendered against him by the Crown on the ground that an essential preliminary has been omitted, subsequently be produced and put in as evidence for the defence ? The Imperial Acts 11 & 12 Vic. Cap. 42 Section 17, and 30 & 31 Vic. Cap. 35 Section 6, regulate the taking of depositions. .In cases turning on the former Act, it has been held that to make the deposition admissible against a prisoner it must have been taken in the presence of the Magistrate and the accused, and it must appear that the latter had full opportunity of cross-examining the 178 THE SUPREME COURT. V. Chee Tano & Anor. Ford, C. J. witness. Sections 26 of Ordinance 20 of 1870 is based upon 30 ^&™njj * ^1 ^i''- ^^P- ^^ Section 6, and it is provided, among other LERElt.) " ' things " that such reasonable notice of the intention to take it, 1886. was given to the person, whether prosecutor or accused, against whom it is tendered in evidence," so that he or his Advocate or Attorney might have been present and have cross-examined the deponent. From this we gather that the Legislature while per- mitting a procedure for the perpetuation of testimony in criminal cases, provided a special safeguard for the protection of the person against whom such evidence might be adduced, so that it might not be sprung upon him unawares, and without his having had the opportunity of cross-examining the witness. This safeguard is " reasonable" notice," and such notice, it has recently been held by the Court of Crown Cases Eeserved, must be in writing. It is clear in the case before us, that the deposition was not admissible against the personers; and as it was a criminal case, they could neither waive the objection nor could they consent to its reception — but if subsequently [and it was matter in our opinion in the discretion of their Counsel] they wished to put that deposition in as evidence for themselves, we can see nothing in Section 26 which debars them from so doing. The prosecutor was present at the inquiry, so that he is not taken by surprise. In the case before us it appears that the Counsel for the prosecution did not object; but if the view we take is correct, it is hard to see on what grounds he could have objected with eifect. If an accused person could not make use of such a deposition in his defence he might be deprived of evidence which would secure his acquittal and which it might be impjjssible for him to prove aliunde. For instance, the deponent might say "the accused stabbed me but it was an accident." We do not see that the admissibility of siich deposition for the defence is affected by the fact that the personers had previously objected to the evidence when tendered by the prosecution. At that stage of the case they could by no act of theirs make such deposition admissible or inadmissible. They were entitted to say "you [prosecution] can't use it, but if, when we come to our defence, we think fit so to do we can tender this deposition in evidence." For these reasons we think the learned Judge was wrong in rejecting the deposition when tendered by the prisoners' Counsel, and that there should be a new trial for culpable homicide not amounting to murder. Conviction quashed. New trial ordered. In the goods of HAJIl^ MAHOMED THAIB. Pbnano. The deceased and his wife together, by an informal Malay document executed a paper appointing another their " Wakil Muthalak " [attorney] over all their property Pel- from the date of the paper, to take charge of the same and act in every way for them LEREAU, J. and on their behalf, and in case of his [the deceased's] death, the " Wakil " should pay 1886. all debts due by the deceased and demand and collect all debts due to him, and on refusal by the debtors to pay any of such latter debts to take legal proceedings for the August 31. recovery of the same and after payment of all his debts, the " AVakil " should divide the remainder of the property among his [the deceased's] children and his wife, share and $hare alike, STRAITS SETTLEMENTS. 179 Seld, the paper was a declaration of trust merely and not testamentary in its Pel- natiire, and Probate was refused to it as a "Will. [«.] lereau, J. Doe d. Croxs v. Cj-os.?, 8 Q. B. 714, distinguished. 1886. _ As a Malay document cannot under Act 16 of 1839, Section 11 ClaiLse 2, be registered — in order to enable the " Walcil" [the trustee] to convey the lands of the Inthegoodsof deceased to purchasers by Deeds or Conveyances that would be recognized and registered Hajee by the Registrar of Deeds, the Court granted administration to the " AVakil " [the Mahomed trustee] a.s the nominee of the wife and next-of-kin of the deceased, but required that the Thaib. dealing with the estate should be as prescribed by the Malay document or declaration of trust. This was a petition by one Hajee Hussain, the broker of the deceased for probate of a Malay document which, as translated, was as follows : — " Friday, the 21st day of Zul-ka-adak. In the year 1301. Whereas, at this time, this is to make known that I, Haji Mohamed Thaib bin Pungulu Hassan and my wife Mehnah request my uncle named Krani Kassa to write this deed and after executing it to give to my brother named Haji Hussin bin Pungulu Hassan to be held and kept. I and my wife Mehnah appoint the said Haji Hussin bin Pungulu Hassan to be our true and lawful Wakil Muthalak [attorney] over all our property real and personal. The Title Deeds of all the real property bear my name. Prom the date of the execution of this deed, I and my wife Mehnah make over to the said Wakil the whole of our real and personal effects and he shall take over the charge of the same and act in every way for us and on our behalf. In case I should die, the said Wakil shall pay all my just debts, and demand and collect all debts owing to me. Should any person or persons refuse to pay any snch debt or debts, he the said Wakil shall take legal proceedings for the recovery of the same. After all my debts shall have been paid, the remainder, should there be any, he the said Wakil shall divide equally ainongst my children and my wife Mehnah — share and share alike. The said Wakil shall do and act every thing in a just and proper manner, and to enable him to carry out all our wishes into effect we have caused this deed to be wi-itten and confirmed by putting our respective signature and mark of hand at the bottom of this in the presence of the undermentioned witnesses. Written this at the request of Haji Mohamed Thaib and Mehnah by me. [Signed'] KR4.NI KASSA. Signature of " HAJI MOHAMED THAIB Bin PUNGULU HASSAN" This is the mark of hand of MEHNAH. -i- [Signed] HAJI MOHAMED AKID. [Signed] LEBBY SAHID. The petition had originally come on before Sheriff, J. on 12th July, but the learned Judge having some doubt as to whether the document was a Will, adjourned the case to enable the petitioner to engage Counsel — subsequently there being two Judges in the Settlement and the estate being sworn to as under $500, the petition was put on the trial list of the second Divisional Court and now came on for healing before that Court. Van Someren, for the petitioner contended, that no form of attestation to the document as a Will was necessary, provided there was, as there was in this case, two or more witnesses to it, and they were both present at the same time, and had signed their names in the presence of the testator — Act 25 of ] 838, Section 7 ; that though the document might have had some operation in the lifetime of the testator, it also operated as a Will after his decease — and he relied on Doe d. Orosi v. Cross, 8. Q. B. 714, as in point. The application was not opposed. Cur. Adv, Vult, [«.] See Goods ofMoiinson, 1 L. B. Pro. & Div. 384. 180 THE SUPREME COURT. Pel- "j LEREAU ( & ( Sheriff J 1886. J.J Inthe goods of Hajee Mahomed Thaib. 7th September. Pelleredu, J. said he considered that the document was not a Will, but a mere declaration of trust, vesting the property in the petitioner, for the benefit of the husband and wife during their lifetime, and after their decease for their children — that it spoke of itself as a deed, though it was not under seal, and the petitioner was not referred to therein as executor but as " Attorney " simply — and the document from its own terms took effect from its date and had no new operation after the death, of the deceased — that in that respect, as well as in the fact, that here the document was the act of both the hus- band and the wife, — and so was, as operative as regarded the one, as the other, — this case was distinguishable from TJoe d. Gross v. Cross. The application was therefore refused ; but the petitioner was entitled to his costs, out of the estate. On the 16th day of September following, the said Hajee Hussain filed a petition for Letters of Administration to the Estate of the said deceased, as his brother, and as the nominee of the widow and children, who were all of age. The application was heard on the 28th September before Pellereau, J,, when judgment was reserved. At the request of the Court, the case was more fully argued on the Uth October, before Sherif and Pellereau, J.J. Van Someren, for the petitioner contended, that administration was necessary in order to enable the petitioner to acquire a title to the lands of the deceased in such a way as to enable him to sell and convey them to purchasers, and give them conveyances which would be registered in the Land Office — that although the document might be a good declaration of trust, it was an informal document, and being in Malay, could not be registered in the Land Office under Act 16 of 1839, Section 11, Clause 2— that although that section bad been amended by Ordinance 2 of 1871, and Ordinance 5 of 1875, its provision, that the mutation of title must be in English, was untouched — and Ordinance 13 of 1886, which repealed the section, had not come into operation. The object of the application was to enable the petitioner to register his letters of administration, and so acquire a right to deal with the deceased's lands in a way that would be recognized by the Regis- trar of Deeds, and to convey them to purchasers who could be able to register their conveyances — that as regarded the distribu- tion of the proceeds, the terms of the declaration of trust would govern the matter. No one opposed the application. Cur. Adv. Vult. 12bh October. Pellereau, J. said, that when the question had first arisen on this application, although Counsel had stated the declaration of trust was an informal document, he had not shewn how that could lead to the necessity of administration being granted — that it was on this question of necessity he had taken time to consider and had thought it right to require a further argument before Mr. Justice Sheriff and himself— that now that the necessity was shewn in the further argument, and was STRAITS settlem:Bnts. ISI J.J. plainly the result of Section 11, Clause 2 of tlie Act 16 of 1839,— he P^^-^ was sorry he had troubled Mr. Justice Sheriff on the point at all ^"'^•'^^ — and if they had not delivered judgment at the time, it was notsHERwr.) from any doubt they had in the ma-tter, but only from a desire to 1886. look more carefully into the Act and amending Ordinances, x^ the mods of Having done so, they were satisfied that sufficient reason had been Hajbe shewn to render it at least advisable to grant administration and Mahomed the application would be therefore granted. Thaib. HAJEE SHAIK ABDUL CADEE v. MAMOMED CADER HUSSAIN. A document which is enoumbared with conditions or puts a person on enquiry to ascertain whether any uncertain event has happened, is not a Promissory-note. "Where therefore A. gave a paper promising and agreeing to pay a sum of money by instalments to B. or his order in consideration of B. discontinuing certain actions which he then had against A. Meld, as it was necessary to shew that tlie actions had been discontinued, the docu- ment obliged any intending holder of it to enquire whether that event had occurred ; it was therefore encumbered with a condition, and was not a Promissory-note but an agreament only. Carlos V. Faneourt, 5 T. B. 4S2, followed. Costs and expenses incurred by a plaintiff before action in order to perfect his title to commence the action should not be allowed on taxation between party and party. Action to recover |2, 185-83 " on an Agreement or Promis- " sory-note" besides interest. Defence — that the defendant did not promise and did not make the note. The document sued on was as follow : — Penang, Ofh May, 1882. I, Mahomed Oauder Hussain, otherwise called Pah Etam do hereby in consideration of Sayna Mahomed Ghouse Merican wholly discontinuing from this date his two actions [No. 285 of 1880 and No. 52 of 1882] against me in the Supreme Court, Penang, promise and agree with the said Sayna Mahomed Grhouse Merican to pay him or Mahomed Mydin Nacodah Merican his attor- ney or either of their order, the sum of two thousand five hundred dollars [$2,500] in full of aU claims by monthly instalments of fifty dollars [S50] a month, commencing fi'om the Ninth day of May, 1882, and in default of pay- ment of any one instalment the whole amount then unpaid to become imme- diately due and payable. [Signed'] MAHOMED OAUDEE HUSSAIN, in Tamil. Penang. Sheriff, J. 1S86. September 8, Witnesses : {Signedl H. N. MERICAN. ISignedl A TAMIL SIGNATURE. Revenue Stamp. 25 Cents. 9-5-82. Endorsed on the back of above was the following : — Pay to Hajee Shaik Abdul Cader, otherwise called Bengala Kadersah or order Penang, 9th October, 1885 laignedi] SATNA MAHOMED GHOUSE MERICAN. iSigned] MAHOMED MYDIN NACODAH MERICAN. 1S2 THE SUPREME COURT. Sheeifi', J. 1886. Hajee Shaik Abdul Cader V. Mahomed Cadeb HUSSAIN. The balance due on the "Agrefiment or Promissory-note" was the amount claimed in this action. There was also a further document put in being an absolute assignment, dated 9th October, 1885, under the hands of the said Sayna Mahomed Ghouse Merican, and the said MuLomed Mydin Nacodah Merican of the aforesaid balance debt and the " Agi'eement, dated 9th May, 1 882," and all their right, title and interest therein to the plaintiff. Express notice in writing, dated 9th October, 1885, was given under Ordinance 4 of 1878, Section 2, Clause 6 to the defendant, before the bringing of this action. The "Agreement or Promissory- note " sued on was properly stamped as an " Agreement," but not sufficiently stamped as a " Promissory-note," and if the document was a "Promissory-note" there were no means by which the stamp could be now rectified, and it would have been inadmissible in evidence under the Stamp Ordinance 2 of 1881, Sections '62, 36. Ross, for defendant. The document sued on is not an "Agreement" but a "Promissory-note" and being improperly stamped as a note it could not be remedied and cannot be sued on. Palania'pah Ghetty v. Lini Poh, 1 Kyshe, 548. The factlhat it is payable by instalments does not prevent it being a note. OridgeY. Sherborne, 11 M. & W. 374; Carlow v. Kenealy, 12 M. & W. 139; Byles on Bills, 5, 6; nor the fact that it is attested by witnesses — Byles on B. 352 — [He was then stopped by the Court.] Van Someren, for plaintiff. The document is an " Agree- ment " it may also be called a " Promissory-note," but that does not prevent it operating as an agreement — per Martin B — Limmer Asphalte Paving Go. v. Gommissioners of Inland Revenue, 7 L. E. Ex. 21 1 ; Fisher v. Calvert, 27 W. E. 301 ; British India Steam Navigation Go. V. Gommissioners of Inland Revenue, 7 L. R. Q. B. Div. 1 6i. It is not a " Promissory -note" as it can only be sued on or used if the suits mentioned in them are actually " wholly discontinued." The plaintiff or the holder of the document must shew these suits have been discontinued or it would be a defence on the part of the defendant to shew that they had not been, and the consider- ation for the giving of it had therefore failed. This fact however shews the document is payable on a contingency : it shews it is " encumbered with conditions and contingencies " and is for that reason not a "Promissory-note" per Lord Kknyon, Carlos V. Fancourt, 5 T. R. 482; Byles on Bills, 71. The Court will look at the stamp also in order to construe the document as an "Agreement" or a note — Butley v. Marshall, 46 L. T. [N. S.j 186 • and if it be doubtful what the document is, and if in holdino- it to be of one kind it would be rendered useless, and in another would be to give it validity, the Court will hold it to be of the latter. Yeo v. Bawe, 82 W. R. 203, reversed on appeal 33 W. R 739, s. c. 53 L. T. [N. S.] 125; Adams v. Morgan, 12 L. R. Ir. 1, affirmed on appeal 14 L. R. Ir. 140. Ross, in reply. The note is not payable on a condition— the discontinuing of the action is only " cojisideration " for the promise; the document states the suits to be discontinued "from this date "—the holder of it need not therefore have enquired STRAITS SETTLEMENTS. 183 1886. Hajee Shaik Abdul Cadee ■y. Mahomed Cadeb HuBSAIN. whether, as a fact, the suits had been discontinued ; the document ^^'^J-J^' J- shews they were. Sheriff, J. said that at the outset he was strongly inclined to hold the document sued on was a Promissoiy-note, hut he was much struck with the observation of Lord Kbnyon which had been cited, and he could not see how the holder of this document could sue on it, unless he could shew that the suits mentioned in them had, in fact, been discontinued. The effect of that was to oblige persons with whom the document might be sought to be negotiated as a note, to enquire whether the " uncertainty" [the discontinuing or not of the action] had been reduced to a " cer- tainty" which is the very thing Lord Kenyon mentioned. The document, in fact, was as Lord Kenyon remarks " encumbered with conditions and contingencies," and it could not therefore be held to be a Promissoi'y-note. Judgment would be for the plain- tiff with costs. Judgment for plaintiff. On taxation of the plaintiff's costs he claimed a sum of $13.50, amount paid by him for Stamp duty on the absolute assignment aforesaid of the agreement and debt to him, besides certain Solicitor's fees for drawing the document and notice ; the Acting Deputy Registrar thought it ought to be allowed, but the defendant's Solicitor objecting he referred the matter to Sheriff, J. in chambers. 13th September. Ross, for defendant contended, that no costs incurred before the action should be allowed as between party and party. Van Someren, for plaintiff contended, that the item was absolutely necessary as the document sued on being an " Agree- ment" the plaintiff could only perfect his title to sue by the absolute assignment and notice in writing under Clause 6, Section 2 of Ordinance 4 of 1878 — the Stamp duty was incidental to the assignment. Sheriff, J. considered that the assignment, notice, and stamp fees were only necessary for the plaintiff himself in perfecting his title, but formed no part of the costs of the action, and should not be allowed as against the defendant. Order accordingly. DORAL V. LESSLAR. Tn re MEYAPPAH CHETTY. A defective affidavit filed with a Bill of Sale on its registration under Ordinance 22 of 1870, Section 18, only renders the Bill of Sale void as against the Sheriff when he is seizing under process issued against the property of the person giving the Bill of Sale, and in respect of whom the affidavit is defective [a]. Where therefore a Bill of Sale was given by two persons A. and B. and the affidavit filed, on its registration, only gave the abode and occupation of A., but not the abode [a.] Ordinance 22 of 1S70 has since been repealed — but see note [a.] Duval v. Scully, antfe p. 121. Penano. Pel- LEBEAU, J. 1886. September 8. 184 THE SUPREME COURT. ■ Pel- IjEBEATJ, J. 1886. DOKAL V. Lesslab. In re Metappah Chettt. of B. though it gave his ocoiipation — and the Sheriff seized under process issued against the property of A. alone. Held, that although the affidavit was deficient as to B. yet as it was sufficient as to A. and the execution was only against A. the Bill of Sale was not void as against the Sheriff. This was an Interpleader for household furniture and a car- riage and tvro ponies seized by the Sheriff on a fi. fa. issued at the suit of the abovenamed plaintiff against the abovenamed defend- ant. The claimant claimed under a Bill of Sale, dated 2nd June, 1886, made between the defendant and one John Henry Lesslar of the one part, and the claimant of the other part, to secure a sum of $700 and interest. The Bill of Sale was joint and several, and described the defendant as "of Penang, Clerk to Messrs. Gilfillan, Wood & Co.," and the said John Henry Lesslar as also " of Penang, Clerk to Messrs. Boustead & Co." It was attested by two attesting witnesses. The affidavit filed on the 12th June, 1886, on the registration of the Bill of Sale was made by one of the attesting witnesses and began thns : " I, W. A.. D. of Penang, make oath and say, &c." — and in para, four thereof stated that the abode of defendant was "at Larut Road and he was a Clerk to Messrs. Gilfillan, Wood & Co., Merchants, residing in Beach Street, and John Henry Lesslar was a Clerk to Messrs, Boustead and Co., Merchants, residing in Beach Street." There was no statement as to the "abode" of the said John Henry Lesslar. Para, six of the affidavit stated that the deponent resided at "Leith Street and was a Clerk to Mr. A. C. Capel, Solicitor, and the abode of J. B. C. [the other attesting witness] was at Larut Road, and he was a Clerk to Mr. Capel also." The plaintiff had recovered no judgment against the said John Henry Lesslar and ihefi.fa. was only against the property of the defendant. Kershaw, for the plaintiff, the Execution-creditor, contended that the Bill of Sale was void against the Sheriff under Section 18, Ordinance 22 of 1870, as [1] the abode of John Henry Lesslar was not stated — Pichard v. Bretz, 5 H. & N. 9, and Meyappa Ghetty V. Khoo Bean Teen & ors., 1 Kyshe, 510; [2] because the descrip- tion of the attesting witnesses as of "Leith Street" or of "Larut Road" was insufficient, without shewing where those roads were, — in Penang, Singapore, Malacca, or where. Pichard v. Marriage, 1 L. R. Ex. Div. 364; Re Harris, 10 Ir. Ch. Rep. 100 [cited in 1 Prideaux on Conveyancing, 741] ; Murray v. McKenzie, 10 L. R. C. P. 625 ; Ex-parte McHattie, lO L. R. Ch. Div. 398, and Duval v. Scully, ante p. 120; that where there were two or more grantors or witnesses, it was not sufficient to give the description of one or some only. Meyappa Ghetty v. Khoo Bean Teen, supra ; Pichard V. Marriage, supra— and although the Ordinance spoke of the "grantor" in the singular, yet by the Interpretation Ordinance 14 of 1867, Section 21, Clause 10, the singular included the plural and the plural the singular. Claimant in person. Cur. Adv. VuU. September 13. Pellereau, J. held that although the- affidavit was 'defective as not shewing the abode of John Henry Lesslar, STRAITS SETTLEMENTS. 185 yet the Bill of Sale was not void. That although no case, English or local, could be found on the point yet to decide the question here, the language of Section 18 of the Ordinance 22 of 1870, was to be looked at. By that section it was declared that in case an affidavit omitting to state all the particulars required by the section, the Bill of Sale was to be void [among other persons] as against the Sheriff seizing under process issued against the property of " such person," — that is the person who gave the Bill of Sale, and whose abode and occupation we required to be stated. Here the Bill of Sale was given by the defendant as one of the grantors ; the execution was against him alone — and not against John Henry Lesslar — and the affidavit as to him was sufficient. The defective affidavit as to John Henry Lesslar was immaterial, as he was not the person against whom the execution issued, — he therefore was not " such person " within the meaning of the section. The cases cited were all distinguishable, as in them, the Bill of Sale was given by the very person against whom the process issued and in respect to whom the affidavit was defective. For the purposes of this case, the name of John Henry Lesslar might well be left out, and if that was done there was no objection sustainable against the Bill of Sale as made by the defendant unless the next objection was good. The next objection was as to the attesting witnesses, and if good, was common to the Bill of Sale whether it was to be taken as given by the defendant and John Henry Lesslar jointly or by the defendant alone, — and was sufficient to invalidate such Bill of Sale. The objection was that the abode of the attesting witnesses as " at Leith Street" and " at Larut Road" without saying where those roads were, was insufficient. Oases had been referred to, to shew this ; and no doubt if there was nothing more in this afi&davit and the Bill of Sale itself, they would be conclusive on the point. They also however were all distinguishable, as on leferring to the affidavit here, we saw it made by a deponent who said his abode was " at Leith Street" and at the top of the affidavit he described himself as " of Penang" — and the abode of the next attesting witness was stated to be at "Larut Eoad" and his occupation was described as a clerk to the same Solicitor as the clerk was deponent to, — the inference was that he was also of Penang, and " Larut Eoad " was in Penang. Again, the abode of the defendant was stated to be also of the same " Larut Road "■ — and in the Bill of Sale itself, the defendant was described as " of Penang." The Bill of Sale might be referred to, to amplify the description in the affidavit — JoneR v. Harris, 7 L. E. Q. B. 157; and so doing, the case was clear, and no one could have been misled by reading the affidavit and Bill of Sale together, and this was all that was required — Ex-parte McHattie. This latter objection then failing, and the affidavit, as regarded the defendant [against whom alone the process issued] being sufficient, the Bill of Sale was not void under Section 18 and the claimant was entitled to judgment. Judgment for claimant with costs. Pel- LEEEAlr, J. 1886. DOBAL V. Lesslar. In re Mbtappah Chettt. . 186 THE SUPEEME COURT. TIJAH V. MILAH. Penang. Pel- LEKEAO, J. 188G. Sept. 28. Where a party to an action does not offer himself as a witness, but calls his witnesses who are examined, he is not entitled to a new trial on the ground that his evidence was not taken. It makes no difference that his not offering himself was done to ignorance of the procedure in a Court of Justice, and the Judge trying the case omitted to tell him of his right to so offer himself. A person who for a loan pledges goods to another who is not a Pawnbroker does nothing illegal and commits no offence punishable under the Pawnbroker's Ordinance 7 of 1872, and after tender of the loan with interest [if any] he may maintain an action against the other for recovery of the goods. Armstrong v. Lewis, 2 Cr. & M. 27, distinguished. This was an application by the defendant under Section 10 of the Appeals Ox-dinance 12 of 1879 for an order calling on J. B. Elcum, Esquire, Commissioner of the Court of Requests at Bukit Martajam, I'rovince Wellesley, to bring up the proceedings in the case with a view to a new trial being granted, or such order made as to secure substantial justice between the parties. From the affidavit of the defendant and a copy of the Commissioner's notes attached thereto, it appeared that the plaintiff's case was that in consideration of a loan by the defendant to her of $10 she had pledged certain jewellery of her's to the defendant as security for the re-payment of the loan ; that before action she had tendered the defendant the $10 with interest and claimed a retarn of the jewellery, but the defendant had refused to accept the money or to give up the articles. The defendant, on the case being called, was aslied by the Commissioner if she disputed the claim and she said [not on oath] she did. Her actual case was that she had purchased the jewellery of the plaintiff. On the conclusion of the plaintiff's case, the Commissioner did not call the defendant into the witness box nor did he take any further statement from her. She did not however offer herself as a witness. The Com- missioner did not tell her she could give her evidence if she pleased, but allowedher to call her witnesses and these he examined. On the conclusion of the case, judgment was given by the Com- missioner for the plaintiff' for 1 17.50 the value of the jewellery and costs. The defendant then made this application. Van Someren, for her now moved ex-parte for the order and contended 1, The Commissioner was wrong in not taking the defendant's evidence and hearing what she had to state on oath in support of her case; that in fact he had looked on her in the light of a prisoner and so unable to give evidence for herself. Her not offering herself as a witness was due to her ignorance of proceedings in a Court of Justice ; 2, that the evidence disclosed a transaction which was an offence under the Pawnbroker's Ordi- nance 7 of 1872 and was illegal and could not be set up by the plaintiff, a party to it, in order to recover back her jewellery. He cited Armstrong y. Leivis, 2 Cr. & M. 27 [in Equity SM. & K. 45] and Ordinance 7 of 1872, Sections 2, 5, 22. Pellereau, J. said that the weight of the evidence was in favour of the plaintiff, and he did not consider either of the points taken sufficient to induce the Court to call up the proceedings. There was nothing in the first objection as it was clear the STRAINS SETTLEMENTS. 187 defendant did not offer herself as a witness. It would have been proper if the Commissioner had informed the parties of their rig-ht to give evidence, but his not having done so did not make his proceedings irregular or entitle the defendant to a new trial. As tothe second objection even assuming that the defendant had been illegally acting as a pawnbroker and was unable to enforce the contract of pledge had she been plaintiff, still the pawnor the plaintiff here had not acted contrary to the Pawnbroker's Ordi- nance and was in no way punishable thereunder. She had done nothing illegal and was entitled to recover back her articles if the Commissioner believed her evidence which he had done; that the case of Armstrong v. Lewis, was distinguishable from the present as there both parties were acting in contravention of the Pawn- broker's Act and were both liable to penalties. There would be no order, except that the application be dismissed with costs. Pel- LERBAU, 1886. TiJAH V. MiLAH. J. In the goods of ISMAIL. The Probate Act of 1857 [20 & 21 Vic. c. 77] does not extend to this Colony and this Court therefore has no power to order an Administration Bond to be assigned in order to be put into suit. Qiienj. How are Administration Bonds made in former years in favour of the Secretary of State for India to be put into suit ? This was a rule obtained by Gapel calling on Haji Abubakar, the surviving surety in the administration bond given to this estate to shew cause why tbe bond should not be assigned to Mariamaniece of the deceased for the purpose of enabling her to sue him thereon. The bond was dated 3rd September, 1863, [before these Settlements became a Colony] and was made by Sadiah the widow of the deceased to whom administration had shortly before been granted by this Court, and the said Haji Abubakar and another as sureties for her; the bond was made in accordance with the then practice in favour of the " Secretary of State for India and his successor or successors in office," and was conditioned for the due administration of the estate of the deceased by the said Sadiah and for her filing her accounts thereof within a year from such date. The said Sadiah it was now alleged on affidavits which were not contradicted had not properly managed the estate and had not filed any accounts ; that she and the other surety were now both dead and the said Haji Abubakar was the surviving surety. Van Someren, for the surviving surety shewed cause and con- tended that the Cour-t had no power to order the administration bond to be assigned as that was only the procedure authorized by the Probate Act 1857 [20 & 21 Vic. c. 77, Section 83] which did not extend to this Colony. Allee v. Saman, 1 Kyshe, 480. He also referred to the Charter of 1855, 15, 16; Ordinances 5 of 1868; 5 of 1873 ; 8 of 1878 ; 5 of 1878 ; Section 493, and Howlev v. .Knight, 19, L. J. Q. B. [N. S.] 3. Ca.pel in support of the rule relied on In the goods of Lebby Long, 2 Kyshe, Ecclesiastical Cases, 27. Penang. Sheriff, J. 1836. October 5. 188 THE SUPREME COURT. Shekiff, J. 1886. Inthe goods of Ismail. Ross as amicus curiae mentioned 20 & 21 Vic. c. 106, Sections 1,2,64-66; 22 & 23 Vic. c. 41, Section 6 and preamble ; 29 & 30 Vic. c. 115, Section 1; Order in Council of 28th December, 1866, set out in Straits L. R. App. 8, and Ordinance 15 of 1876, Sec- tion 27. Van Someren contended, that those Statutes, Orders, and Ordinance did not help the case as links were wanting in the chain. Shenff, J. said it was unnecessary for him to express an opinion whether the right to maintain an action on such a bond as this was by the aforesaid Statutes, Order, and Ordinances now vested in the Attorney-General; it was sufficient for him to say that the applicant had quite misconceived her form of application — the rule was for an order assigning the bond in order to be put in suit : that was only prescribed by the Probate Act 1857, but the Act did not apply here, and the Court had no power to order the assignment. The rule would be discharged with costs. Rule discharged. OPIUM FARMER v. CHUA AH TONG. SiNOAPOKE. Ford, C. J. 1886. October 13. Offences though committed on different dates may be tried together under Sec- tions 59, 60 and 61 of the Criminal Procedure Ordinance 6 of 1873, if the offences are of the same kind ; but must be limited to three and such as have been committed within one year of each other. A conviction in the alternative is bad ; but it may be altered by the Court under Section 25 of the Appeals Ordinance 12 of 1879 provided the evidence shews clearly which of the alternative statements should be sustained. A conviction imposing one sentence for two offences is good, but at all events it may be amended under Sections 25, 32 and 33 of the Appeals Ordinance aforesaid. Those sections apply to objections of substance as well as of form. Opium Farmer v. Koh Boo Ann, Straits L. E. 278 ; Megiiia v. Ooi Tim, 3 Kyshe, 119; and Oartan v. Meenachee, 3 Kyshe, 151, over-ruled. This was an appeal from the decision of E. M. Merewether, Esq., Magistrate of Malacca. The facts and arguments so far as material sufficiently appear from the judgment of the Court. Drew, for appellant. Joaquim, [R. W. Braddell with him] for respondent. Cur. Adv. Vult. 8th November. Ford, C.J. This is an appeal from the decision of a Magistrate at Malacca, under the following circum- stances : One Ohua Ah Tong, the appellant, was charged with the ofEences of [1st] Selling illicit chandoo ; [2nd] Being in possession of illicit chandoo ; and after hearing the evidence, the Magistrate being of opinion that he was guilty, convicted him, Istly, " In that he the said Chua Ah Tong on or about the 19th day of August, 1886, in Malacca, did knowingly have in his possession, or did receive into his possession, custody, or control, a quantity of illicit chandoo of the value of $50, the same not having been purchased from the Opium Farmer of the Settlement of the current year or from a licensed shop-keeper of the Settlement of STRAITS SETTLEMENTS. 189 1886. Opium Farmee V. CnnA Ah TONG. the said current year, and thereby committed an offence punish- Fokd,c.j. able under Section 3 of Ordinance IV of 1884." •2ndly, " that he Sheeifp| the said Chua Ah Tong on the 23rd May, 1886, in Malacca, didLEEElu. j knowingly have in his possession, or did re'ceive.into his possession, '""" custody, or control, a quantity of illicit chandoo of the value of $21, and did sell or offer it for sale, the same not havinir been purchased, &c.," following the formal vyords of the first conviction. The Magistrate on these convictions passed a sentence directing the prisoner to pay a fine of $500 and to be rigorously imprisoned for a period of 3 months. Several grounds of appeal were raised, but those which I reserved for consideration were — I. — That the conviction is bad because the offences charged were of separate dates and tried together. II. — That the conviction is bad because the offences are found disjunc- tively and in the alternative. III. — That the conviction is bad because it awards only a single punish- ment for two separate oifences. To the first of these objections I think the reply is that there is nothing before me to take the case out of the exceptions to the rule " that there must be a separate charge for every distinct offence of which any person is accused and every such charge must be tried separately" [Section 68 of Ordinance 6 of 1873.] These exceptions are stated in Sections 59, 60, and 61 of that Ordinance, and although the effect of these sections is a little obscure, still, I think them sufficient to establish that if the offences charged are of the same kind, although committed on different dates, they may be tried together, or sepai'ately, or in the alternative [Section 61], [if limited to three, and committed within one year of each other.] The Magistrate would, however, if applied to, cleai'ly have a discretion so to order their framing, that the prisoner should not be put to any disadvantage by their form. With reference to the second objection, "that the convictions are disjunctive, and in the alternative" the Court would, I am of opinion, be going too far were it to lay down that all such con- victions were irregular. A reference to Section 72 of the Penal Code shows clearly that under its provisions some judgments may be given in the alternative, and, of course if a judgment is so given the conviction must be drawn in accordance with its tei-ms. These convictions are not, however, under the provisions of that Code, and I am unable to take them out of the general rule that convictions in such a form are bad for uncertainty, [see cases cited in Paley on Convictions, pages 173, 199, and 323] unless I am aided by the provisions for amendment given by the Appeals Ordinance 12 of 1879, or could read the conviction for selling as separate from the alternative conviction preceding. After a careful consideration of those provisions, the only section under which I "could alter such adjudication," or, in other words, amend the conviction, is Section 25, and had I in the evidence sufficient to show me which of these alternative convictions it indisputably sustained, I should exercise the power of alteration given me. T 190 THE SUPREME COURT. FOED, C.J. 1S86. Opium Faumeb V, Chha Ah TONG. am unable, however, clearl}' to determine this and therefore cannot exercise this power. Taking the view of the third objec- tion, which I feel compelied to do, the question of sustaining the last of the convictions for selling becomes in^material for consideration. The third objection, " that the conviction is bad because it awards only a single punishment for two separate and distinct offences," I feel constrained to allow, although rather on authority, than, in my judgment, on good sense. Were the question before me, apart from previous decisions of the Court, I should be bold enough to decline to follow the purport of Newman v. Bendyslie 10 Ad. & Ell. 11, upon which these decisions seem forest, and hold this error a mere error of form, and, under the provisions of Section 79 of the Excise Ordinance, 1879, not to be regarded, or to be amended under Section 32 of Appeals Ordinance, 1879. New- man V. Bendyshe was a case decided so far back as 1839 when the love of technicalities and forms was stronger than now, and the judgment of the Court is contained in three or four Jines and no "ratio decidendi" given. The decision also was in a civil action of trespass to which the conviction had been pleaded, and Jiot therefore one directly on the validity of the conviction [a] . I do not know any later case directly on the subject [Z>.] So far as the prisoner is concerned, this single form of sentence is probably somewhat to his advantage, for he probably gets a lesser punish- ment, and if one of the cliarges tarns out afterwards bad in law, he may get off altogether. The late Sir W. Hackbtt, Mr. Justice Wood, and the late Chief Justice, have however, decided cases in this Court in accordance with Newman v. Bendyslie [o] and Mr. Justice Wood, and the late Chief Justice have held that the error is not one of form, and is not remediable by this Court under the powers given by Ordinance 12 of 1879. T agree with the view that these clauses do not give the powers of amendment required, and follow reluctantly the authorities cited on the main question. Conviction quashed. At the request of Counsel for the respondent the Court subsequently under Section 38 of the Appeals Ordinance 12 of 1879, reserved the case for the consideration of the Court of Appeal. The points reserved were 1st, whether one penalty for two offences was good— 2nd, whether a conviction in the alternative was bad, and if bad whether the Appeals Ordinance 12 of 1879, gave remedial powers to the Court. The appeal was heard before the Court of Appeal, consisting oi Ford, G J., Sheriff and. Peltereau, J.J., on the 13th and 14th December. 1886. [a.] See Seg. v. Salmons, 1 T, K. 2.jl. [4.] See Jleff. v. Baker, 26 L. J. M. C. 193, s. c. 7 Ellis & B. C. 697, where the objection is spoken of as one of form." See also Castro v. Beg. 6 L. E. App. Ca. 329. 11Q MOpi^iJ" Farmer vKoh Boo A,,, Sir. L. R. 278; Reg. v, Ooi Tim, 3 Kyshe, 119; and Cartan v. Meenachee, 3 Kyshe, 151. > J- > STRAITS SETTLEMENTS. 191 Opium Farmer V. Chua Ah TONG. Bonser, [Attorney-General] and Joaqtdm, ior the Opium Far- Foed, C.J. mer contended, that the conviction was good and the t'ase of ^^p^^^)j j Reyina v. Ooi l\m, 3 Kyshe 119; Cartan v. Meenachee, Ibid. 151,i,ereatj". ) " " and Opium Farmer v. Koh Boo An, Stiaits L. R. 278 ought to 18S6. be over-ruled ; that at all events the Court had power under the Appeals Ordinance 12 of 1879, Section 32, to remedy the defect if any — or remit the case to the Magistrate for the purpose. Drew, for Chua Ah Tong contended, that the cases referred to being based on Neivman v. Bendyshe, 10 Ad. & Ell. 11, were good law and should be sustained; that the Section 32 of the Appeals Ordinance only applied to defects of form and not to those of substance as the present objections were. Sheriff, J. without expressing any opinion as to whether the objections were of form or substance considered the conviction could be amended under Sections 2-5 or 33 of the Appeals Ordi- nance 12 of 1879 ; that the case of Newman v. Bendyshe had no appli- cation in the face of that Ordinance, and the cases of the Opium Farmer v. Koh Boo An, Begiiia v. Ooi Tim and Cartan v. Meenachee [supra] should be over -ruled. Pellere'.iu, J. considered that as to the first objection the conviction was good both nccording to English law and the law of this Colony as the punishment awarded was such as might have been awarded for either of the ofPences of which the respondent had been convicted. That as regarded the second point, the con- viction was bad, but althotigh not in " form " only it could be amended under the Appeals Ordinance. Ford, C.J. held the objections to be of form merely, and such as could be remedied under the Appeals Ordinance. Order accordingly. Respondent to pay 8/3rds of appellant^ s qOsIs, and appellant to pay IjSrd of respondent' s costs. MAHOMED MYDIN v. PANA SITTEE MAHOMED. In the goods of MAHOMED HUSSEIN. The Court will not revoke Letters of Administration durante alsentia granted to a Penano. person under a power of attorney from a next-of-kin, or declare it to have ceased or expired, merely on the ground that since such grant of administration such next-of-kin Shkbiit, J. had cancelled and revoked the power of attorney. 1886. This was an action for an injunction to restrain the defendant, his servants and agents from selling or otherwise disposing of certain lands and pi-operty of the abovenamed deceased of whose estate the defendant was the administrator durante absentia of Mariam Beebee the" widow of the deceased who was in the Madras Presidency. Such letters of administration had been granted to the defendant on 9th April, 1883, uf on a power of attorney given to the defendant by the said Mariam Beebee as such widow, and dated the 23rd December, 1882. The defendant extracted the letters and thereafter entered into possession of the deceased's estate, but not giving satisfaction to the said Mariam Beebee in respect to his management of the estate she, by a further power Nov. 16. 192 THE SUPREME COURT. SHEEiFr, J. of attorney dated 28th June, 1886, appointed the plaintiff above- ^^^ named hei' attorney in the place and stead of the defendant. She Mahomed ^^ the same time gave the defendant notice in writing revoking Mtdin the power of attorney she had granted to him. The defendant _ "• after getting this notice proceeded to advertise the lands and Mahomed property of the deceased for sale by public auction and this action for the injunction was then commenced, and on 27th July, 1886, Inihegoodsof ^\^[g Court awarded an injunction restraining the defendant from HussEi™ ^° selling or otherwise interfering with the said lands and property. G. H. S. Gottlieb, on the first November, 1886, obtained a rule [in the Ecclesiastical Case, in the goods of the deceased abovenamed] calling on the administrator [the defendant in this suit] to shew cause why the letters of administration granted to him on 9tb April, 1883, as aforesaid should not be pronounced to have ceased and expired, and why letters of administration to the estate of the deceased should not be granted to the present attorney of the widow, the plaintiff in this suit. Boss, shewed cause and contended, that the only case in which the Court would revoke letters of administration durante absentia was on the coming into the Settlement of the grantor of the power of attorney himself ; but in this case the widow was still out of the jurisdiction, and the only case in which the Court would con- sider the letters bad been revoked was by the death of the grantor of the power of attorney. 8uwerkrop v. Day, 8 Ad. & E, 624; Webb v. Eirby, 2 De G-. M. & Gr. 377; that no case could be pro- duced where the Court had either revoked or pronounced to have "ceased and expired" any letters durante absentia where the only ground relied on was that the grantor had changed his attorney ; if once it did this there was nothing to prevent the grantor con- tinually troubling the Court each time he changed his mind as to the fitness of his attorney. The plaintiff's proper remedy was to call upon the administrator for an account and to have the estate wound up. He also referred to 1 Wms. on Exors. [6th Ed.1 384, 409. Gottlieb, in support of the rule contended, that letters of administration durante absentia were considered revoked by the death of the grantor of the power of attorney on the principle that the grantor's death operated as a revocation of the power so that the administration, issued on the strength of it, fell with it ; but if revocation had that effect why not a revocation of the powe r by the act of the grantor himself. In point of law one was as much a revocation of the power as the other. The administration was granted on the power — the power had_ ceased by being revoked — the administration had answered its' purpose and had likewise "ceased" and ought now to be pronounced to have "ceased and expired." Goods o/Cassidy, 4 Hagg Ecc. Eep. 360; 1 Wms. on Exors. [8th Ed.] 476, 517. Sheriff, J. said he could find no authority for such an applica- tion as the present one. If it succeeded there was nothing to prevent the Court from being continually occupied with applica- STRAITS SETTLEMENTS. 193 tions to revoke and regrant administrations as often as the grantor Sherifp, J of the power chose. The proper remedy was for the plaintiff ^_^- to file a suit to have the defendant's accounts taken and the estate administered, and he would suggest that the writ of summons in this action be amended to suit such a case. The present rule must „ %• be discharged with costs. ^^^^ ^^ Mahomed Mtdin TXEB Mahomed. Rule discharged with costs. In the goods of Mahomed Hussein. HABIB ABDUL RAHMAN & ANOR v. ABDUL CADER AND ANOR. It is not sufficient that Promoters and Directors of a Company, or partnership, or persons standing in a fiduciary relationsliip, to have purchased for themselves pro- perty of tlie Company, or partnership, or of wlaich they are the Trustees at its actual market value; it is also necessary that they should have done so with the full knowledge and consent of the shareholders, partners, or cesiuis que trust, and have first placed themselves itbsolutely at arm's length from the vendors : otherwise, the shareholders, partners, or cestuix que trust [the vendors] are entitled to follow their property and recover it back for themselves. Such Promoters, Directors or Trustees are bound to disclose all information they may acquire as to the property, to the shareholders, partners, or cestui^ que trust ; and to give them the fullest explanation relating to it. If such Promoters, Directors or Trustees purchase such property without acting as abovestated and afterwards sell the property to third parties who had notice of their position and circumstances — but afterwards re-purchase it from them for them- selves [the Promoters, &c.,] at a higher figure — they will not be allowed to deduct as against the shareholders, partner, or cextiii.i que trust, the amount they so paid in excess of the svim they had sold it to such third parties for. Had the third parties sold to bond fide purchasers for valuable consideration loiihout notice, it would have been different. Query. "Whether the third parties with notice, are liable to refund the excess to the Promoters, Directors or Trustees arising from a failure of consideration by reason of the shareholders, partners, or cesiuis que trust recovering back such property ? "Where therefore the defendants as Promoters and Directors of a land speculating Company or partnership acquired for themselves a valuable portion of the land at its actual market value, but unknown to the shareholders or partners,— and afterwards sold a portion of such land to third parties who were aware of their position and the circumstances of the whole transaction — but subsequently re-purchased the portion from such third parties for a sum in excess of the amount they had sold it to them, Hehl, the shareholders or partners the plaintiffs, were entitled to follow and recover back the land in the hands of the defendants, and were not bound to refund to the defendants the sum so paid in excess by them to such third parties. This was a suit for partnership accounts in certain land speculations and for discovery of the defendant's dealings with the land and moneys of the partnership as promoters, directors and managers of the partnership-business ; and for further and other relief. On the 2nd day of September, 1884, Wood, J. made an order by consent referring the suit to the Registrar to take the partnership accounts and for enquiry and report as to the matters alleged in the Statement of Claim. During the taking of the accounts and enquiry so directed, a question of law arose and was by consent referred to the Court for decision pending the further taking of the accounts. The facts giving rise to the question, and the nature of the question itself, sufficiently appear from the report of the Acting Registrar, dated 11th June, 1886, and a further " statement " of facts agreed to between the parties Penano. Sheriff, J 1886. Nov. 25. 194 THE SUPREME COURT. Shebipf, J. by way of supplement to the report. This latter " statement " ^_^- -^vas rendered necessary [and was directed by order of Sheriff, J.] HabibAbdttl by reason of certain notes of evidence of the Acting Registrar Rahman having been mislaid, and the Acting Registrar [Mr. A. W. Fawkes] having left the Settlement. The material parts of the report are as follows : — & Anob. V. Abdttl Cadek & Anob. I. Company A. purchased land from Brown & Co., for $100,000. The defendants who were two promoters of Company A. start a Company B. and purchase from Company A. for |32,000 a portion of the land which had been bought from Brown & Co. II. The defendants then form the Company B. The plaintiffs are two of the shai'eholders in Company B. III. The defendants after the formation of the Company B. and in pm-suance of the objects for which the Company was formed, cut up the land pui'chased from Company A. and sell a great number of lots. IV. One of the above lots was a large strip of land having situated on it the Bagan, and in consequence, the most valuable of the above lots — this lot was sold by auction and knocked down to the second defendant and a third party. V. The conditions of sale under which this lot was sold, provided, that in the event of the purchaser failing to complete the purchase within a certain time, the lot might be again put up for sale at the risk of the purchaser. VI. The second defendant and the abovenamed third party failed to complete the purchase and thereupon the first defendant brought an action for specific performance against them, instead of re-selling imder the con- ditions of sale. VII. A shoi-t time after the commencement of this action, proceedings tender the action are dropped, and an arrangement is come to, without the knowledge of the plaintiffs and most of the other shai-eholders, between the first and second defendant, to take this strip of land for themselves and two others named respectively Khan Mahomed and Shaik Ismail, as their private property at or about the price of §13,500 — this agreement is carried into effect. VIII. Within a few months, these four persons abovementioned value the strip of land in question at 5520,000, and the two defendants who are promoters of Company B. then buy out Khan Mahomed and Shaik Ismail at that valuation and now claim the strip of land in question as their own property. Upon these facts, the plaintiffs claim that the defendants being promo- ters are still in the position of trustees with respect to this strip of land for Company B. or that they should credit the Company B. with the 120,000. The defendants contend that they should only credit the Company with 813,500. The " statement " by way of supplement to this report was as follows : — 1. Auctions were held on the 12th, 19th and 26th November, 1881, by Company B. and some difficulty was experienced in getting the purchase- moneys_ from the purchasers — the plaintiff Haji Mydin being one of such defaulting purchasers to the extent of l|5390, although he eventually paid up on the 19th September, 1883, and then got his conveyance. In consequence of this difficulty it was proposed that the land remaining unsold should be divided among the shareholders in Company B. and an agreement to that effect dated the 18th May, 1882, was drawn up and signed by the two plaintiffs and some of the shareholders, but the others refusing to sign, the matter fell through. 2. The shareholders then requested the defendants again to put the land up for sale in lota by public auction, which was accordingly done on the STRAITS SETTLEMENTS. 195 26th November, 1882, when lots were sold to different purchasers to the value of $10,751 and again on the 2nd December, 1882, when lots were further sold to different purchasers to the value of §5,949. 3. Among the lots sold at the first of the said last mentioned auction, was the Bagan land which was knocked down to the defendant Ravena Peechayappah and a third party for the sum of $10,325. 4. These two purchasers made default and thereafter, namely on the 21st day of December, 1882, the defendant Abdul Cader sent them a notice demanding payment of the purchase-money within three days from the date of the service of such notice and threatening a re-sale in case of non-com- pliance. 5. This demand not having been complied with, the defendant Abdul Cader went to Messers. Palmer, Hogan and Norris [who were not share- holders in Company B.] but who had at the auction of the 25th November, 1882, bid the sum of 810,300 for the said Bagan land and asked them to purchase it privately, but they would then only ofer $8,000 for it. 6. The defandant Abdul Cader thei'eafter commenced a suit for speciiio performance a.gainst the defendant Peechayappah and the third party instead of re-selling the said Bagan land. 7. At both the said sales of 25th November and 2nd December, 1882, there were defaulting purchasers to the extent of $3,500, besides the $10,325 already mentioned, or in all the sum of $13,845. 8. Messrs. Brown & Co., were then pressing Company A. for payment of the balance of the purchase-money due by that Company to them and in turn the managers of Company A. were pressing the defendants for payment of the balance of the purchase-money due by them and they in turn were pressing Company B. 9. The defendants Abdul Cader and Ravena Peechayappah thereafter together with Shaik Ismail and Khan Mahomed, arranged among themselves, without the knowledge of the plaintiffs, or most of the shareholders, to take over the whole of the lots in which default had been made at the said two last mentioned auctions, at the price of $13,500, instead of the said sum of $13,845, — and the above arrangement was accordingly can-ied out, and the said action compromised on 1st May, 1883. 10. The defendants have, since the filing of the accounts in this action, intimated their willingness to credit Company B. with the difference between the said sums, namely, with the sum of $345 ; but such sum does not appear in such accounts filed by them. 11. Disputes arose between the said defendants and Shaik Ismail and Khan Mahomed, and it was ultimately, namely, on the 18th Pebi-uary, 1884, agreed— still without the knowledge of the plaintiffs and most of the share- holders, — that the defendants should purchase the interests of the said Shaik Ismail and Khan Mahomed, on the footing that the property should be valued at $23,000, and the defendants accordingly paid the said Shaik Ismail and Khan Mahomed the sum of $4,750. 12. The said value was placed on the property, owing to a rumour that a Railway was going to be laid between Larut and Province Wellesley, with its terminus at Bagan Tuan Kitchee, when the defendants hoped that they would, for their own benefit, be able to sell a considerable portion of the property to the Railway Company, at a large profit. 13. The rumour however proved baseless, and the defendants have smce sold a part of the said property, but have re-purchased some of the said land so sold, and now continue owners of such land re-purchased, as well as the unsold lands, which together are now valued at $15,000, at the least. 14. The matters mentioned in paragraphs four, five, six, nine, eleven and twelve hereof, were done without the knowledge of the plaintiffs and most of the shareholders, and were in no way communicated to them by the defendants, the promoters of their Company B. The facts came to the knowledge of the plaintiff's, and most of the shareholders, only after, and consequent on, the dispute between the defendants and the said Shaik Ismail and Khan Mahomed, mentioned in paragraph eleven hereof. 15. The defendants are speculators in land on a very large scale, and promoters and managers of various Companies for that purpose, and have thereby amassed a large fortune. Shebiff, J. 1886. Habib Abdttl Rahman & Anor. V. Abdul Cader & Anob. 19C THE SUPREME COURT. Shbbipf, J. 1886. Habib Abdtjl Rahman & Anob. V. ABDtri, Cader & Anok. 16. The Court is at liberty to draw any inference of law or fact, from the facts set out herein, and in the Registrar's said report. Ross, for defendants contended, that as there was no fraud shewn on the part of the defendants, and they had acquired the property at its true market-value, it was of no consequence that they happened now to be the owners of the property. That the auction sale, and default of the original purchasers, did not bear on the after bond fide dealing with the property, and the defend- ants should not be held trustees of the property for the shareholders — but they were only entitled to be credited with the $13,845. If however the defendants were to be held to be trustees of the property, — or the shareholders entitled to be credited with the $23,000, — then they should be allowed to deduct the $4,750 paid to the said Khan Mahomed and Shaik Ismail, in order to buy them out. He referred to New Sombrero Phosphate Go. v. Erlaiiger, 5 L. R. Ch. Div. 73 ; Bagnall v. Carlton, 6 L. R. Ch. Div. 371 ; Emma Silver Mining Co. v. Grant, 17 L. R. Ch. Div. 122; Erlanger v. New Sombrero Phosphate Co., 8 L. R. App. Cas. 1256 ; Re Anglo-French Co-operative Society, 21 L. R. Ch. Div. 492 ; Re Cape Breton Co., 26 L. R. Ch. Div. 221 ; on App). 29 L. R. Ch. Div. 795 ; Thompson v. Christie, 1 Maeq. H. L. 236, and Sugden on Vendors, 32. Van Someren, for plaintiffs contended, that as promoters and directors of the partnership, or " Company B," the defendants stood in a fiduciary relationship to the shareholders — Re British Seamless Paper Box Co., 17 L. R. Ch. Div. 467 : and could acquire no right to the property they had attempted to purchase, and fraud was not necessary to be shewn. Story Eq. Jur. §§. 315, 316, 316 [a], 322, 462, 468 ; Kimber v. Barber, 8 I.. R. Ch App. 56, per Lord O'Hagan, in Erlanger v. New Sombrero Co., 3 L. R. App. Cases 1256-7; that the plaintiffs as shareholders for the benefit of the general body of shareholders, were entitled to follow the property, and were now entitled to have it back, or at least its enhanced value, $28,000, Vyse v. Foster, 8 L. R. Ch. App. 326, 329, 388 ; that the $4,750 should not be allowed the defend- ants, as it was not a payment for the benefit of the shareholders, but rendered necessary by the defendants' own wrongful acts! He also referred to the other cases which had been cited, and claimed them as authorities in the plaintiffs' favor. Ross, replied. Cur. Adv. Vult. December 6th. Sheriff, J. The defendants in this suit were promoters and shareholders in Company B. In consequence of certain difficulties experienced in effecting sales of land, the pro- perty of the Company, the plaintiffs requested the defendants again to put up the same for sale in lots by public auction. This was done on the 25th November and the 2nd December, 1882 when land was disposed of to the value of $10,751 and $5,949^ respectively. STRAITS SETTLEMENTS. 197 Sheriff, J. 1886. Anoe. Abdul Cadee & Anoe. One lot known as Bagan land was knocked down to the defendant Ravena Peechayappah and another person for $10,325. They failed to complete this purchase. This sale is open to com- HabieAbdul ment, but as it is not the transaction which is impeached, I pass Rahman & on. The defendant Abdul Cader having failed in selling the land by private sale to certain persons who had at the public sale bid $10,300, filed a suit for specific performance against the defend- ant Peechayappah and his co-purchaser. It was open to the defendant Abdul Cader to adopt this course, or under the con- ditions of sale, again to expose the property for sale at the risk of the two purchasers. He had a discretion in this matter, and I think that up to this point, it may be assumed that he was acting within his powers and in the interests of the Company. Soon after the commencement of this suit, the defendants, to- gether with. Khan Mahomed and Shaik Ismail, arranged to take over not only the Bagan land the subject of this suit for specific performance, but the whole of the lots in which default had been made, at the price of |13,500 — the actual amount due for the same being $13,845. The defendants have admitted however their liability for the difference, viz., $345. They could not well do otherwise. The arrangement referred to, was entered into without the knowledge of the Company, or at any rate a majority of the shareholders, and only came to light in consequence of subsequent disputes between the four partners. Now, the law applicable to this set of facts is, I think, plain. It is laid down broadly in Story's Equity Jurisprudence, Section 315 " it is very certain that agents are not permitted to become secret vendors or purchasers of property which they are authorised to buy or sell for their principals." In other words, " no man acting as an agent can be allowed to put himself in a position where his interest and daty will be in conflict," or yet again, "that the purchaser has put himself absolutely at arms' length from his vendor," — and at Section 322, he remarks, "the cestui que trust is not bound to prove, nor is the Court bound to decide, that the trustee has made a bargain advantageous to himself, the true ground being that the prohibition arises from the subsisting relation of trusteeship." It has been ably argued for the defend- ants that they acquired the property at its actual market-value as evidenced by the prices realized at public auction, and it was immaterial to the plaintiffs, who became actual purchasers, and that the transaction must be viewed as if no default had been made by the purchasers who bought at public sale. But the answer to this is, that it must be assumed that the defendants considered that the property was worth more than the amount they gave, and that their fiduciary position precluded them from acquiring the property at its market-value, or supposed market- value, unless indeed they did so with the knowledge and consent of the Coxnpany ; as a fact however, so far from obtaining such consent, there was concealment. Now, one of the recognized badges of fraud is secrecy, and I must assume that the defendants must have had reasons for not disclosing their acquisition of the property to the Company. The Company were certainly entitled 198 THE SUPREME COURT. SflBBtlT, J. 1886. Habib Abdul, Rahman & Anok. V. Abdul Cadee (t A NOR. to the fullest explanation relating to the property, and the -mere fact that they were kept in the dark, engenders grave suspicion, and renders the transaction more than questionable. It may well be that the defendants acquired information as to the property which induced them to purchase it, but it was imperative on them to disclose such information to the Company. The defendants are condemned by their own conduct. It appears that the defendants, in consequence of the disputes I have referred to, bought out Shaik Ismail and Khan Mahomed on the 18th February, 1884, and that the property was then valued at |23,000, it being assumed that a Railway would be laid which would enhance the value of the property. This expectation turned out to be fallacious. The defendants contend that if the agreement is set aside it must be on terms, viz., that the plaintiffs should pay them the sum of $4,750 being the difference in the value of the moiety of Shaik Ismail and Khan Mahomed at the price at which they bought and re-sold the same. With respect to the original agreement between the four persons, it is not specifically alleged that Shaik Ismail and Khan Mahomed knew that defendants were not authorised to deal with the property as they were doing, but inasmuch as the transaction only became known to the plaintiffs in consequence of the differ- ences which arose between them, it would appear that Shaik Ismail and Khan Mahomed were parties to the concealment, and from this I infer, that they had, if not actual at any rate constructive notice. I am therefore of opinion, that Shaik Ismail and Khan Mahomed acquired no beneficial interest under the agreement, but that they and the defendants must be regarded as trustees for the plaintiffs. The agreement must be takeu as a whole, all the four parties to it are equally affected. It cannot be said to be operative as to Shaik Ismail and Khan Mahomed, and inoperative as to the defendants. This is important, because if the four persons who effected the agreement were in pari delicto, and are to be regarded as trustees for the plaintiff's, the Court vould have set aside the agreement upon the plaintiffs re-paying the actual amount paid by them, viz., 113,500. It is a rule [to which no doubt there are exceptions, but which exceptions do not, I hold, apply to this case,] that an assignee cannot take a better title than his assignor. The defendants purchase from Shaik Ismail and Khan Mahomed — that is, two trustees purchase ft-oni two co-trustees. The purchasers have full knowledge of the whole transaction, and they can acquire no better title than their vendors. If Shaik Ismail and Khan Mahomed had sold to some person who came within the definition of a purchaser for valuable consideration without notice, no doubt the case would have been different, but Shaik Ismail and Khan Mahomed would have been compelled to' make over the profits on their sale, viz , the $4,750 to the plaintiffs. I refrain from expressing any opinion as to what their position may even now be, as they are not parties to the suit, and I have commented on their past position, only in so far as it was neces- STRAITS SETTLEMENTS. 199 V. Abdul Cadbk &, Anoe. saiy to arrive at a decision on the question now before me, nor do ^^^^^J' ^■ lexpress aiiy opinion as to the liability of Shaik Ismail and Khan Mahomed to the defendants arising from a failure of consider- HabibAbdul ation. These are matters which are not before me. Holding as J^asman & I do, that the agreement was vitiated from its inception, the ' plaintiffs have a right to follow the property, and they find that it is 'vested in the defendants, the originators and prime movers in the wrongful act. As to their own moiety, their liability is clear, then as to the other moiety purchased by them, do they stand in any better position ? I think not. They were purchasers with their eyes open, and bought such moiety subject to the equities of the plaintiffs. I think therefore, that the agreement must be set aside — the claim of the defendants as to 14,760 disallowed, — and the parties, as far as it may be practicable, relegated to the position in which they stood at the time of the making of the said agree- ment. I have only to add, that I consider the circumstances under which Baron Grant was allowed by the Court, in the Emma Silver Mining Company, certain bond fide expenses incurred by him, such as advertisements, etc., are very dissimilar to the present state of facts, which are governed by other principles and rules of Equity. Judgment for plaintiffs. BEEBEE SAMSOO v. WRIGHT. A mortgagee cannot be deprived of his costs of defending an action at the suit of the Penano. mortgagor, unless he has been guilty of misconduct or fraud, and he is entitled to deduct such costs out of any balance that may be in his hands as payable to the mortgagor Sheriff, J. after satisfying his claim even if the mortgagor is suing as a pauper. 1887. This was a suit by a mortgagor against a mortgagee to have it declared that the mortgagee had improperly sold part of the mortgaged lands, as it was alleged her claim had been satisfied out of other lands previously sold by her, and such improper sale was also at an undervalue. The defendant filed her accounts with her statement of defence, shewing a balance to be in her hands [after satisfying all her claims for principal, interest, and auction charges] of $110.40 which she paid into Court. The plaintiff declined to accept this sum, and proceeded with the suit, but failed in proving her case. The plaintiff sued in forma pauperis. Van Someren, for defendant, submitted as mortgagee the plain- tiff was entitled to have her costs, and that out of the mortgage fund or balance proceeds in her hands ; and the fact that plaintiff sued as a pauper was immaterial, as this right was a claim on the fund or balance, and not against the plaintiff personally. He referred to Section 25 of the Courts' Ordinance 3 of 1878 ; Section 463 of the Civil Procedure Ordinance 5 of 1878, and to Gotterell v. Stratton, 8 L. E. Ch. App. 295 ; Turner v. Hancock, 20 L. R. Ch. Div. 3o3 ; and re Watts, 22 L. R. Ch. Div. 5. G. H. S. Gottlieb, ior the plaintiff, submitted that the plaintiff could not be ordered to pay costs as she was sning a.s a, pauper, January 6. 200 THE SUPREME COURT. Sheriff, J. 1857. Beebee Samsoo V. Whight. and to allow the defendant to deduct her costs from the balance which the plaintifE was admittedly entitled to was only another mode of making her pay costs. Sheriff, J. said the defendant's right as mortgagee to have her costs was looked on by the authorities as a matter of contract prior to the action, and she was entitled to add her costs to her claim against her mortgage security. In defending this suit the defendant- had incurred costs, and she should now have them against the balance in Court which were part of the jproceeds of her securities. The fact that plaintiff was a pauper could not deprive the defendant of this right, and the order he should make was that judgment be entered up for the defendant, and that the defendant's taxed costs be paid out of the $110.40 in Court, and if any balance thereof remained after payment of such taxed costs, such balance should be paid to the plaintiff. Judgment accordingly. THE HOK CANTON. Penang. Sheeipf, J. 1887. January 10. A person who renders salvage services to a ship at the request of the crew thereof, [the servants of the owner] has a claim for such services on the ship ; and the owner who has had the benefit of his services cannot deny such claim, In order to constitute services rendered in navigating a ship out of port salvage services, it is sufficient if at the time they are rendered the ship has encountered a misfortune [such as an attack in such port by pirates who have murdered some of her officers and carried away the captain and others as prisoners] which migJit possibly expose her to destruction if such services had not been rendered. Such services cannot be considered as mere pilotage services. Suit for salvage, in the Vice-Admiralty Court. The facts and arguments sufficiently appear from the judgment, and need no further statement. G. H. S. Gottlieb, for plaintiff. Thomas, for defendant. Cur. Adv. Vult. Sheriff, J. This is a claim of salvage on the part of Captain Roura for services rendered to the Stenmship Hole Canton on the 14th of June last. The Hok Canton, sails under the Dutch liaw, and is valued at $60,000, and was released on bail, the bond being in the sum of £3,300 sterling. A sum |125 has been paid into Court, which it is alleged, is sufficient to satisfy the plaintiff's claim. The following facts are not in dispute. The Hok Canton proceeded to Eigas from Penang to load with pepper. This pep- per was to be procured by the plaintiff. The firm Hermann, Jebsen & Co., at Penang, had shipped $45,000 by the Hok Canton. This amount was given to Captain Hansen with instructions to pay out the same to the plaintiff as against all pepper delivered on the steamer. Rigas is situate in Acheen in Sumatra. Tunku Omar is the first Chief on the West Coast of Sumatra, and it would appear that the plaintiff had arranged to procure pepper STRAITS SETTLEMENTS. 201 from him. It was also admitted that the Dutch and the Achi- nese have for a long time past been engaged in hostilities. The plaintiff informed Tunku Omar that he had $5,000 on board the Ilok Canton. In all probability the knowledge of this fact incited him to visit the ship. He left the plaintiff weighing pepper on shore, and said he would go on board about some rice. The plaintiff saj^s — " As Tunku Omar did not return I went on board the Kok Canton to see him. On my way I passed a little Island in the Bay. I saw a small boat coming from the ship. I rowed towards the boat and called out " Tunku Omar "—The men signed with their hands that Tunku Omar was still on board. I then went on to the Hok Canton. On arriving, instead of finding Tunku Omar, I found the crew in a state of consternation." It is unnecessary to dwell upon the details. Captain Eoura saw the bodies of the Chief Engineer, and the Chief Officer. They had been slain, and he was the only living European on board, the Captain, his wife, and Mr. Fay having been taken on shore as prisoners. The ship had been subjected to a piratical attack. There had been bloodshed, and she had been pillaged. Mahomed, the syrang [that is the boatswain] says that " Tunku Omar asked me, boatswain can you sail the ship ? I said *we have no sails, and no hands to weigh anchor.' He said, if you can sail the ship I want you to take her on a reef. Tunku Omar said to me that he was coming back with many men to take the ship ashore." On the other hand, John Fay, who was the 2nd Engineer on board the Hole Canton, and was taken prisoner, deposes. — "Tunku Omar told nie after I got on shore that he had no intention of going back to the Hoh Canton as he had got all he wauled. I asked him if he was going on board." The plaintiff says, " the boatswain gave me command of the ship and I took the same." I would here remai'k that the vessel was navigated from Rigas to Olehleh by the plaintiff'. Mahomed the boatswain says:—" Captain Roura was in charge I did not give any orders." It is true that Cho Ah Lip, the supercargo, asserts that — "Captain Roura did nothing at all on board the vessel, the boatswain gave the orders," and it is like- wise true that Chai Ah Guan says that " on the voyage from Rigas to Olehleh, Captain Roura was a passenger only" — but I don't believe either of them. It was laid down in " The Bomarsund" Lushington, p. 78. " The plaintiff is therefore entitled to salvage I'eward, and although his services may not have been of a very difficult kind, the owners whose servants received him on board, and kept him and took the benefit of his services can- not now turn roiind and deny that his services were in the nature of salvage." The owners of the Hoh Canton have, by payment into Court, admitted that services were rendered. The question which I have to determine is, whether |125 is sufficient to compensate the plain- tiff, and if not then what amount the Court should award ? The SHEKlFr, 1887. J. The Hok Canton. 262 THE SUPREME COURT. Sheriff, J. owners Say — 1st, Thab no great skill was required, as the boat- 1887. swain could have brought out the ship, and had the plaintiff come ThThok f^ little later, the Hok Ganton would have been moving out. 2nd, Canton, 'j'hat the services rendered were practically only pilotage, and the 85125 is considerably in excess of the amount which would be charged for pilotage. r>rd, That the Hoh Ganton was in no dan- ger, as the pirates did not intend to return [see evidence of John JFay, ante.] As to the 1st point — The boatswain says. " If there had been no European, I would certaiuly have taken the ship out, but as C-aptain Rotira had come, he being a European, I gave him charge of the ship. I liave sailed for two years and six months in the Hok Ganton on the Coast I have been in Riga^ 4 times." Captain Kerr, jiow commanding the Hok Ganton, called by the defence says, " I believe that the boatswain and the supercargo could have taken her out Had I been at any time too ill to have navigated the ship I would have allowed the "boatswain" to do so. He understood the telegraph. There were two passages, but the boatswain was competent to take her through. There were also two or three others who were also competent to bring the ship through." If Captain Kerr is right, then the Hok Ganton was singularly fortunate in having so many competent navigators on board. I would merely add that the supercargo kept all his nautical skill to himself. He simply did nothing. John Fay says, " I know the boatswain. I can't say if he was competent to take the vessel out of Rigas." On the other hand, there is the evidence of Captain Christiansen, a witness for the plaintiff. He is the Manager of the Prye Dock Company, and I must say that I was impressed by the manner in which he gave his evidence. He is a man of experience, having been 27 years at sea, and having been many times to Acheen. He says of Rigas harbour, " It would require local knowledge to know where are the reefs, and it would also require knowledge of the handling of a steamer. I don't think as a rule that a syrang [boatswain] is competent to handle a steam vessel. I am certain, however, that it requires some skill to get out a steamer from Rigas harbour when she is . heading to land." The -ffoZ; (7awresent at it. The arbitrators thereafter called on the defendants and their witnesses to meet them on a certain date and on that date met them and requested them to appoint some of tlieir number as '' spokesmen" and the defendants nominated two of their party as such, and these spokesmen then laid before the arbitrators the defendants' case and the evidence in support of it. The plaintiffs were not notified of this meeting and were not present at it. Each party at these meetings neither requested nor objected to the non-attend- ance of the other. Thereafter the arbitrators called on both plaintiffs and defendants and their witnesses to meet them at a given date, and on that date met both parties and in each other's presence further heard the case of each through their respective spokesmen, and then in the presence of both parties called for and examined certain books and accounts of the society, and the title deeds of lands belonging to the society, and on conclusion of this meeting informed both parties that" they would be publishing their award in a few days. Neither party objected to this nor did either offer any further evidence nor requested to cross-examine the opposite party or their witnesses. A few days after, the arbitrators made and published their award in Chinese writing, which being translated was as follows : — " By order of the Judge, and with the consent of the plaintiffs and defendants, and of the lawyers for both sides, the case brought in Penang against those persons of the Teoh tribe of the Ang Choo village, the Chang Bee village and the Eh Yeoh village of Sam Toe in the Hai Ting district, by those persons of the Yeoh tribe of the other villages is referred to us, Khoo Tean Tek, Khoo Sim Bee, Cheah Hoon Heap, Cheah Tek Soon, Tan Kim Keng Lim Whuah Cheam, and Lim Pek Keam, the seven arbitrators for decision. ' " After cai-eful investigation into the origin, the Sye Tow Kong was in fact founded by those persons of the Yeoh tribe of the Ang Choo village, the Chan Bee village and the Eli Yeoh village of Sam Toe in the Hai Ting dis- STRAITS SETTLEMENTS. 207 ti-ict, wto brought it over to Penang. At that time the number of those Sheriff, J. persons of the Yeoh tribe of the Ang Ohoo village, the Chan Bee village, and 1887. the Eh Yeoh village of Sam Toe in the Hai' Ting district, who came to ^ " Penang was great, but the number of those of the Yeoh tribe of the other ^^^°J? ^'"^ villages, who then came to Penang was small, and for that reason we draw "^ ^''^■ the inference that towards the establishment of the Idol of Sye Tow Kong for „ "■ worship, those persons of the Yeoh tribe of the other villages did subscribe, i^°" V" n^i* but to a small extent. ^*'"* * ""^• " Reasonably speaking, the Sye Tow Kong was founded about sixty years ago, and the management was conducted by the president, Mr. Yeoh Oheam of the Eh Yeoh village, in company with those of the Yeoh tribe of the Ang Ohoo village, the Chan Bee village, and the Eh Yeoh village of Sam Toe in the Hai Ting district, and thereby the property of the Institution pros- pered. But those persons of the Yeoh tribe of the other villages had not the management at all, and, in consequence of that, those persons of the Yeoh tribe of the Ang Choo village, the Chan Bee village, and the Eh Yeoh village treated the pi-operty as their own. " The subsequent establishment of the Soo Tee Tong shew some slight complication. Then those of the Yeoh tribe of the other villages also established the Ong Long Tong for themselves, but still they did not dispute the rights of the funds of the Institution. " Under these circumstances, we, the seven arbitrators unanimously decide that out of the property of Sye Tow Kong of the Eng Guan Temple of the Soo Tee Tong, shall be taken out the house situated with the back facing the sea, and the front facing the land, that is No. 157, Beach Street, now occupied by the chop Swee Chin estimated to be worth $14,000, as well as the house situated with front facing the sea, and back facing the land, that is No. 174, Beach Street, now occupied by the chop Shing Hing, estimated to be worth §8,000, and also the amount of §2,000 in cash, altogether §24,000, which are to be given over to those persons of the Yeoh tribe of the other villages of Ong Long Tong as the property of their Institution, that is, as the property of their Institution for ever. "With regard to the cash, and the conveyance of the grants, delivery thereof must be made within the specified time of 15 days. " Tbe property of the Institution of Sye Tow Kong of the Eng Guan Temple of the Soo Tee Tong and the other articles, shall all go over to the possession of those persons of the Yeoh tribe of the Ang Choo village, the Chan Bee village, and the Eh Yeoh village of Sam Toe of the Hai Ting dis- trict. " With regard to those persons of the Yeoh tribe of the other villages, whose names hitherto appear in the grants as trustees of the Sye Tow Kong's property, those names although they appear in the gi-ants become void from this day. " With i-egard to the Member-certificates formerly issued by the Soo Tee Tong, the same are to be brought back to the elders of the Yeoh tribe of the Ang Choo village, the Chan Bee village, and the Eh Yeoh village of Sam Toe of the Hai Ting district within the specified time of a year, and each holder thereof shall receive $2,124 instead. " The time allowed is a year, and if any one, whether he be a resident here or abroad, fails to come for that amount within a year, the Member-certificate becomes void. " The tablet of the late Mr. Yeoh Boom Hien together with the sum of 8120, shall be handed back to the elders of the Ong Long Tong, who shall have to take back the tablet of the said Yeoh Boon Hien. " The names of those ciders for the different villages of the Yeoh tribe, formerly appointed by the Soo Tee Tong, hereby become void. " Mr. Yeoh Cheng Hup kept inside the Eng Guan Temple the Idol of Sye Tow Kong, which they must take back. " Henceforth those persons of the Yeoh tribe of the other villages, no matter they belong to Hokien, or Kwitan, or Teochoo, cannot raise any dis- pute and claim again that they have any interest in the property of the Sye Tow Kong of the Eng Guan Temple of Soo Tee Tong in Penang, but those 208 THE SUPREME COURT. Sheriff, J. of the Teoh tribe of the Ang Choc village, the Chang Bee village, and the 1887. Eh Teoh village of Sam Toe of Hai Ting district, are now at liberty to do anything with the same. Tf,oh Him " This having now been justly and properly decided, every one must & Ors. abide by justice and cannot raise any dispute. "• "Each party must pay their own Court costs and the other expenses ■R-""" i'n "" incurred when they sued each other. iiANo & UBS. „ jjjoi.gover, those persons of the Teoh tribe of Ong Long Tong must advertise the following in the English printed paper for a year :— " The Eng Gtian Temple of Sye Tow Kong of the Soo Tee Tong in Penang, is the property of those persons of the Teoh tribe of the Ang Choo village, the Cham Bee village, and the Eh Teoh village of Sam Toe in the Hai Ting district ; those of the Teoh tribe of the other villages have no interest in it. " This is to prevent dispute — in future every one must obey this. " Dated the 27th day of the 10th Moon of the year Bear Soot, correspond- ing with the 22nd of November, 1886. Arbitrators : ISigned'] KHOO TEAN TEK KHOO SIM BEE. OHEAH HOON HEAP. CHE AH TEK SOON and his mark. + „ TAN KIM KENG. LIM WHUAH CHEAM. LIM PEK KEAM and his mark." + The award was filed in Court by the defendants on 1st December, 1886. On the 20th December, the plaintiffs obtained a rule calling on the defendants to shew cause why the award should not be set aside. The matters stated in the plaintiff's affida.vit were in several respects denied by the arbitrators in an affidavit filed by them. Boss, [Van Someren with him] for the defendants shewed cause and [after raising a preliminary objection as to the form of the rale which led the Court to amend it under Section 20-3 of the Civil Procedure Ordinance 4 of 1878] they contended that there had been no irregularity as the same course was adopted as to both sides— Fra7.so» V. Franer, E. & M. 17; Eads v. IVilliams, 24 L. J. Ch. 631 ; Thomas v. Morris, 16 L. T. [N. S.] 378 ; that the arbitrators in fact were dealing as experts and arbitrators, and were specially chosen because of their peculiar knowledge of the practices and usages of such societies as the Seh Yeoh Kongsi — Bottomley Y. Amhler, 38 L. T._[N. S.] 545; they also contended, the plaintiffs had waived any irregularity by not objecting to the mode of proceeding, but attending the third meeting without objection and lying by till they found the award was against them Bignall v. Gale, 9 Dowl. 631 ; Ex-parte Wyld, 30 L. J. Bank ID; Moseley v. Simpson, L. E. Bq. 226 ; Be Hopper, 2 L. E. Q. B. 367, 374 and Russell on Arbitration, 193, 685. They also contended that the award was not ultra vires — WinUr v. Letchbridge McCle. 253 • Burton V. Wigley, 1 Bing N. C. 665 ; Boodle v. Da.vies, 3 Ad. & e'. 200; Harrison v. Lay, 13 C. B. [N. S.] 528, 536-37; Morley \] Newman, 5 D. & R. 317, and Kerdahe v. Cox, 16 L T FN S 1 .396. ■ ■ L • -J Thomas, [B. W. Presgrave with him] contended, the proceed- ings were so irregular, as to require the setting aside of the STRAITS SETTLEMENTS. 209 award and cited Redman on ArUtration, 87 ; EaigJi v. Eaigh, 31 Sheriff, J. L. J. Ch. 420; Russell on Arbitration, 188; Harvey r. Shelton, 7 ^■ Beav. 455 ; and the fact that the mode adopted deprived the yeoh Him parties of their right to cross-examine was sufficient ground of & Obs. itself for setting aside the award, and no custom or practice, of „ p Chinese arbitration, could avail. Re Burke & ors., 33 L. J. [N. S.] kIno &Obs^ C. P. 246 ; they also contended there had been no waiver on the part of the plaintiffs and the arbitrators had acted ultra vires in having excluded the plaintiffs from further benefits of the society though they found them to be members ; — whether they should or should not be excluded was not a matter in difference in the suit, and therefore was not a matter referred to the arbitrators to award on. Ross, replied. Sheriff, J. said he was most reluctant to set aside the award, as he felt sure the case was one peculiarly fitted to be decided by Chinese arbitrators than by this Court, but the authorities cited, particularly re Burke and others, was too strong to be got over. The arbitrators' mode of proceeding was in law irregular and im- proper, and the award must be set aside ; but he would not give the plaintiffs the costs of this rule, but such costs would he cosbs in the cause. Prom this decision the defenda.nts appealed, and the appeal was heard by the Court of Appeal, consisting of Ford, C. J., Wood, and Pellereau, J. J., on the 15th, 16th, 21st and 22nd days of December, 1887. Ross, [C. Logan with him] for the appellants reiterated the former arguments and further contended that the award could only be set aside for misconduct in the arbitrators, but there had been none here, and in addition to the cases then cited, referred to Hewlett v. Laycock, 2 Car. & P. 574; Tillam v. Gopp, 5 C. B. 211 ; Drew v. Drew, 25 L. T. [0. S.] 282; Re Tunno & Bird, 5 B. & A. 488 ; and Sections 451, 452, 454 of the Civil Procedure Ordinance 5 of 1878. Thomas, [^Glutton with him] in addition to their arguments I in the Court below contended, there had been legal misconduct, I but the part of the award which found the plaintiffs to be mem- | bers of the society, was divisible from the rest of the award and the latter part only need be set aside ; that the arbitrators had not decided the case, but merely compromised it, which they had a right to do. In addition to the cases cited by them in the Court below, they referred to Section 451, Civil Procedure Ordi- nance 5 of 1878 ; Russell on Arbitration, 660; Dobson v. Groves, 6 Q. B. 637 ; Walker y. Foobisher, 6 Ves. 70 ; Featherstone v. Cooper, 9 Ves. 68 ; Re Brooke Delcomyn & Badart, 33 L. J. C. P. [N. S.] 246 ; Plews v. Middleton, 6 Q. B. 845 ; Kirk v. East India Dock Co. 55 L. T. [N. S.] 245 ; Phips v. Ingram, 3 Dowl. 669 ; Thorburn V. Barnes, 2 L. E. C. P. 384 ; Eooj)er v. Hooper, McCle. and Y. 509; Hutchesnnv. Eaton, 13L. E. Q. B. Div. 861; Ross v. Boards, 8 Ad. and E. 290 ; Re Tidswell, 33 Bear. 213 ; Kerslake v. Cox, 16 L. T. [N. S.] 396; DunhillY. Ford, 3 L. E. C, P. 36; Morgan 210 THE SUPREME OOUET. POKD, C. J rpr]j.J.34L.J.Q LBBEAU. J 18S7. Davies v. Price, Teoh Him & Obs. V. \ Yeoh Chens Kano & Obs Mather, 2 Ves. Jr. 22 ; Ra Hick, 8 Taunt. 694; B. 8; Re Salkeld, 12 Ad. and E. 767. [PMereau J. referred to Hagger v. Baher, 14 M. and W. 9.J Rons, in reply besides dealing generally with the arguments and authorities of the other side, contended the arbitrators had not as a fact found the plaintiffs were members, and the award was nut divisible — the award could only be set aside for " mis- conduct " on the part of the arbitrators. Civil Procedure Ordinance 5 of 1878, Section 454 ; and if necessary the matter should be referred back to the arbitrators. Ford,Q.3. The judgment must be ixpheld. I have some doubt whether the acts of the arbitrators amount to "miscon- duct" under our Civil Procedure Ordinance, bat I do not see my way to disturb the decision of the Court below. Wood, J. I have very little doubt that the judgment of Sheriff, J. must be supported. There is no satisfactory proof of moral misconduct. I do not think it indispensable under Section 4-54. We have to decide what that "misconduct" is. If the Court cannot fairly trust the tribnnal in the cf)nduct of the reference, — if there is anything to shew partiality, it cannot be the duty of the Court to refer it back to it. That being so, and without authority to shew what "misconduct " in this Section is, I can only conclude it is what the general run of authority shews it to be. "Misconduct" means "ill-conduct" or "legal mis- conduct" if you like. If we were to refer the matter bacdc to the arbitrators we could not be sure they would act impartially — thei'e is an imputation of perjury made by tlie arbitrators against the plaintiffs and the plaintiffs iigainst the arbitrators. This raises such a state of feeling between them as it seems to me would make it most unjust to refer the case back to them. The award is not final. I do not think the award declares the plaintiffs tobe members. I look upon it as extremely vague. I think the case is within Section 454 and I do not think Sections 451 and 452, apply. Pellereau, J. According to the plaintiff's statement of claim they pray 1st, that the defendants be directed to account and that the accounts be taken in the Registry of this Court in the usual way, and 2nd, for an order declaring that the defendants have not been duly elected and appointed trustees of the society, and directing that the Pi-esident, Trustees, Treasurer and Committee should be duly appointed under the direction of the Court by the members of the Seh Yeoh and for an order dii'ecting the defend- ants to pay over to such Trustees and Committee when appointed, such moneys ns may be found due iipon the taking of the accounts aforesaid. These two prayers are based upon the assumption that the plaintiffs are members of the society. The fact that they are members is denied; that was the main issue raised and that was what was leferred, with the other two matters, to the arbitrators. Hn.ve they decided that or not ? They have not, but have settled the case. I do not think that this award is divisible. I consider it ultra vires as being a settlement and not a decision. The arbitrators have not dealt justice to the parties as they had STRAITS SETTLEMENTS. 211 undertaken to do, but have decided on sometliingf which was not Fobd, C. J. the issue left to them. They have shirked their duty, they have ^°°°_ ]j j- knowingly abstained from doing justice with the best and most lebeau. ) conciliatory intention no doubt, but in a spirit which shews to 1887. my mind that they did not mean to deal with parties according yeobThisi to their rights; iii doing so, I think they have been guilty of )&°Oes, "misconduct." I need not attempt to define " misconduct " in all v. cases, but it is sufficient to set aside the award that the arbitrators ^Tf ^^^g^* should have committed personal misconduct as arbitrators, and I hold that the above facts amoiint to such, and bring the ease within the meaning of Section 464 of Ordinance 5 of 1878. I cannot tlierefore dissent from the judgment in the Court below, and t tliink it must be affirmed and the appeal dismissed with costs Judgment affirmed. 22nd August, 1888. The defendants [appellants] having Pobd, C..T. filed [within six months] a petition praying for leave to appeal "Wood, -j to Her Majesty in Her Privy Council, such petition came on this j^^^^atj ' J J. day for hearing before the full Court of Appeal. & Gold- I i^oss, [Fan Som.erera with him] for the petitioners [appellants.] net. ;' Thomas, [Presgraue with him] for the plaintiifs [respondents] ^^^' asked that if leave were given it should be only on terms of the yeoh Him appellants giving security in $2,000 for the respondents' costs — & Obs. Section 43 Clause iii of the Appeals' Ordinance 12 of 1879 ; and ^■ limiting a time within which the appellants should lodge their jj^^a & Oes. appeal with the Registrar of the Privy Council so as to prevent any unnecessary delay. Eoss, replied. Pellereau and Goldney, J.J. were of opinion this Court had no power or authority to limit a time as it would be interfering with the Privy Council who had their own rules, and could not be bound by what was done here. By one of their rules, unless an appellant prosecuted his appeal within twelve months the appeal stood dismissed. If these appellants did not lodge and prosecute their appeal within that time, all the respondents had to do was to procure a certificate from the Registrar of the Privy Council to that effect, and produce it here and their case would proceed. In their opinion Section 43 of the Appeals Ordinance was ultra vires. Ford, C.J. and Wood, J. were of opinion this Court had full power and authority to limit such a time, and it would in no way be interfering with or binding on the Privy Council, but only on these parties. It would have a very salutory effect by preventing appellants keeping respondents waiting indefinitely, and it should in this case be imposed, in addition to the secui-ity in ^2,000 for the respondents' costs of the appeal. The learned Judges being equally divided. Ford, C.J. gave his casting vote in favour of the opinion expressed by himself and Wood, J. Order — Leave given appellants to appeal to Her Majesty in Council, on the terms that they give security in %2, 000 for respond- ents^ costs of such appeal, and lodge their appeal with the Registrar of the Privy Council within nine months from, this date. [«.] r«.] The appeal to Her Mnjestv in Her Privy Council was never prosecuted. —J. W. N. K. 212 THE SUPREME COURT. Pbnano. Sheriff, J. 1887. January 13. ASHABEE & ORS. v. MABOMED HASHIM & ANOR. A devise by a testator ot land as " a Wakoff for his children and their descendants " is void as tending to a perpetuity and cannot he construed by application of the ci/prex doctrine as a devise to the children in fee. The doctrine ot cypres can only be applied when the intention of the testator can be ascertained. Cattlin V. JBromn, 11 Hare 372, and reayl:9 v. Moxele;/, 5 L. U. App. Cases, 7H, 19, per Lord Sklbouene, followed. A bequest of S400 for " maintenance " of his wife, and to be spent in " Kunduris for the testator,'' without shewing how much of it was for " raainteuance " and how much tor " Kunduris," is void for uncertainty and as tending to a perpetuity. This was a suit to have a certain devise of lands in Burmah Road, and a bequest of |400 in the Will of one Osaia,n deceased, declared void, and the deceased to have died intestate thereto; that the lands might be sold and the proceeds thereof as well as the ^400 or such part thereof as remained, divided among the deceased's next-of-kin, and to have the estate administered by the Court. The deceased died in 1863. The material parts of the Will which was in Malay and as translated, were as follows : " There is a piece of land in Burmah Road as per Bill of Sale number 167, the same I hereby devise as a Wakoff for my childi-en and their descendants. My children are seven in number, the issue of one mother, the first is named Pakir Mydin, the second Pakir Malim [and so on naming his seven children] . They have all obtained their respective shares in full. I owe nothing, but there is a Chinaman who owes me $400. Pakir Mydin will become my executor and demand the said sum of money, maintain his mother and Issahak [the youngest son] and spend for kunduris for me." At the foot of the Will was a list by which it was declared each child naming him or her had received his or her share in land or money, and "confirmed the Will " and was " finished." There was no residuary clause to the Will. Pakir Mydin obtained Probate of the Will in 1866 and died in 1875 leav- ing a Will by which he appointed the defendants his executors. The second and third paragraphs of the statement of claim, were as follows : — 2. " A ' WakoH ' is a Malay word signifying land devoted to, or set apart for some specific purpose, as a charity or the like, and so rendered inalienable — ■ and a Wakoff for a person's children and their descendants is a somewhat common way in which the natives of this Settlement attempt to tie up property in their families [but not as a charity in its legal sense] so that they may enjoy the produce or income thereof from, generation to generation, but the land is prevented from ever being mortgaged or sold. 3. A ' Kunduri' is a Malay word signifying a feast, and a Kunduri for a deceased person is supposed by Malays to confer sonae benefit on the soul of , such person and is generally observed first on stated dates after his death and then on the anniversary of his decease in such succeeding year." The defendants admitted these paragraphs to be true. On the pleadings being opened, the Court called on Hogan, for the defendants to support the devise and bequest. He contended that although the restraint on alienation intended STRilTS SET^TLEMBNT S. ^13 to be expressed by the word " WakofE " was void, yet full effect could be given to the clause by applying the cypres doctrine, and holding the land to be a devise in fee to the seven children as tenants in common, free from all restraint and referred to Kader Bee v. Kader Mustan, 1 Kyshe, 4^2. Tlie bequest of $400 for " Kundiiris " he admitted was void, but contended the clause for "maintenance" was good and valid. Van Someren, for the plaintiffs contended, that it was clear the testator never intended to give the lands to his children as their own, as he distinctly declared they had all received their shares in full, and the list at the foot of the will shewed this. To hold that the clause was a devise of the land in fee to the children would therefore be directly contrary to what the testator intended. Beyond the fact that the testator evidently wished to tie up the land for ever so that his children and their "descendants" should in some way enjoy it, — but not as their own, it was impossible to say what he meant. This tended to a perpetuity and as the inten- tion was otherwise uncertain and impassible to be gathered, the doctrine of cypres did not apply. Marsden on Perpetuitiea, 262, 4 — 305, 312 ; GcUtlin v. Brown, 11 Hare 372, and Pearks v. Moseley, 5 L. R. App. Cases 714, 719 per Lord Selbourne. As regarded the $400 lie contended that the gift for Kunduris was void. Fatimah v. Logan, 1 Kyshe, 256, 68, 70 ; Mustan Bee v. Shina Tomhy, 1 Kyshe, 580 ; and as it could not be ascertained how much of the $400 was for Kunduris and how much for "maintenance," the whole clause was void for uncertainty — Chapman v. Brown, 6 Ves. 404; Limbrey v. Gurr, 6 Mad. 151 ; Fatimahy. Logan, supra; as well as tending to a perpetuity. Sheriff, J. said the law against the perpetuities was law in this Settlement — Ong Cheng Neo v. Yeap Cheah Neo, 1 Kyshe, 326, 44 — and as regarded the devise, the only question was whether the cypres doctrine applied in this case. He was of opinion on the authority of Lord Selbouene in Pearks v. Moseley, supra, that it did not, as it could not be ascertained what the testator intended beyond creating a perpetuity, and that the children should not have the land as their own. Failing the application of the cypres docrine the clause was objectionable as tending to a f)erpetuity, and must be declared void. As regarded the $400, the same objection applied, and as it was also impossible to say how much was for "maintenance" and how much for Kunduris, the whole clause was also void for uncertainty. As the Will contained no residuary clause, the testator must be held to have died intestate as to both the land and the $400, and the same should be dealt with under the Statute of Distributions. The estate would be administered in Court, and there would be a decree in terras of the first and second prayer in the statement of claim. The costs of all parties to be paid out of the estate. Sheriff, J. 1887. ASHABEK & Obs. Mahomed Hashim & Anoe. Decree accordingly. 214 I'HE SUPREME COURT. Penanu. Pel- LEBEAU, J. 1887. January 18. TASERIP V. EICCARD. SecUous i-Z to 48 [both inclusive] of the " Police Force Ordinauce" 1 of 1S7:.', ilo not apply to any action against a Police Ollicer for the return of specific ^' ' Selmes \. Jndjie, G L. E, Q. J3. 724,, and Midlaud Sailivuii Go. V, Local Board of IFilliiigioii, 11 L. 11. Q. B. Biv. 788, distill,^■Lushed. A Police Officer has no right, after a reasonable time from the discharge of a prisoner, to detain property taken from him ; and the prisoner's possession of such i property is sufficient, -without proof of title, +" o"ni,ia l,i,„ tn nisiininin an !i<-i,inn , against such Officer for the return of it. Judgment of Fellereaii, J., affirmed on appeal. to enable hini to maintaiu an action This was an action [a small cause] to recover $100 forcibly taken from the plaintiff by the defendant's agents and servants and v^rongfully and maliciously detained by the defendant, or in the alternative, as money had and received by the defendant for the plaintiff's use. The defence endorsed on the Writ of Summons was [inter alia'] a denial that the §!1 00 was the plain- tiff's ; that on the 7th March, 1886, a robbery was committed in a house in Northam Road, and the plaintiff was suspected of being concerned in the robbery, and search having been made in the house occupied by the plaintiff, the said sum of $100 was found and was detained by the Police [acting under the instructions of the defendant, who was the Superintendent of Police at this Settlement], and the plaintiff was charged with the said robbery before the Magistrate, who discharged the prisoner ; that the defendant had reasonable and probable cause for believing that the $100 was part of the proceeds of such robbery, and therefore, notwithstanding the plaintiff's discharge, refused to return him the same. The defence also alleged that the defendant acted under Section 31, Clauses 1, 2, 3 and 10 of Ordinance 1 of 1872, and claimed that the action was not brought within three months of the thing complnined of, as required by Section 42 thereof. The evidence shewed that a robbery had been committed, and the plaintiff among others had been taken up by the Police on suspicion, that the plaintiff's house had been searched and in a box, of which the plaintiff had then the key, were found the $100. The plaintiff was charged before the M;igistr;\te with the robbery, but there being no evidence against him nor any to connect the $100 with the robbery, the chiiryu against him was dismissed. This was on the 6th day of April, 1S86. The Police, after this, were unsuccessful in procuring any evidence. The plaintiff then requested the defendant to return him the $100, which the defendant refused to do considering that, from a statement made by the plaintiff' :it the time of the seizure thereof, as well as his inability then to say what the amount of money in his box was, he could not be the owner thereof, and from these facts, and that the prisoner's relatives, some of whom lived in the same house with him, had been committed by the Magistrate to take their trial on the same charge, he suspected the §1 00 were part of the proceeds of the robbei'y. The charge against the plaintiff's [o.] See Foat v. J/uyur of UlargaU, 11 L. 11. Q. B. Div. i:9:i ; Fluwer v. Local Board of Low Le\/,'(i,i, 3 U. E. Ch. Div. 347; t'helijis v. Hadha.n District Board 1 0, & E. 67, STEAITS SETTLEMENTS. 215 said relatives was afterwards not proceeded with at the Assizes, a Twlle 'pros, being entered on account of the absence of the owner of the pi'opert)', the Kalahome of Siam, and the want of evidence to identify the property found on them. This was on the 28th day of May, 1886. On 8th July, the plaintiif, through his Solicitors, sent defendant a notice in writing requesting the return of the (iiilOO. The defendant still declined to do it. On August 17lh, the plaintiff gave the defendant a month's notice of his intention of suing him for the $100. This action was com- menced on the 19th October. At the trial, the plaintiff gave a different account to that which he had given the Police on the occasion of the aforesaid search as lo how he became possessed of the $100 ; he, however, denied he had made any such statement to the Police, as they alleged. He called evidence in support of his title to the money. The $100 had not been mixed up by the Police with other moneys, but were placed in a bag with a label as to the case and person with which it had been connected, and continued in this condition to the date of this trial and even afterwards. E. W Frcsgravii, for the plaintiff contended, the defendant's act was a trespass, and a continuing one die in dietn, and the three months had not expired, and referred to Tan Kim Keng v. Mvni- cipal Oommissioner-i, 1 Kyshe, -478. Kershavi, for the defendant referred to Saunders v. Saunders, 2 Bast, 254 ; Wordsivorth v. Harleu, 1 B. & A. 391 ; Selme.s v. Judge, 6 L. E. Q. B. 724 ; Hj'lidland Railway Co. v. Wittington Local Board, 11 L. K. Q. B. Div. 788. Pellerean, J. The evide/ice shows that the sum of money, restitution of which is cl/dmed, was in the possession of the plaintiff when it was seize/daii^^ie Police during a search for stolen property, and fromjall th^'fa cts pr oved, I am satisfied j that there is sufficient eviJance of possesSBIl_tolead^to^ the pre- sumption of ownership in the plaintiff, and to justify him in entering this action against the defendant, an alleged -vvrong- doer. It appears to me from the evidence, that the seizi;re ^of the money was made under circumstances which rendered. It lawful, and I cannot give judgment for the plaintiff on tlie ground of the forcible taking. I aim also satisfied that the Police were justified in retaining the money for a reasonable time, for the purpose of further iuquhy into the theft which had been com- mitted, and so long as they had reasonable ground for suspecting that they could obtain further proof as to the theft and the offenders. But the seizure had taken place on the 10th March, 1886, prosecution was subsequently entered against the pla,intiff^ and dismissed, the money being still kept by the Police/there does not appear from the evidence that there was, jdthin a reasonable time afterwards, any further grounds for^xpecting any discovery as to the theft and offenders, and the iJurty from whom the theft had been committed, never laid claim to the money, and was' not proved to have any claim thel-eto. I bold. Pel- LEBEAU, J. 1887. Tabbrip V. Rtccakd. 216 THE SUPREME OOURt. Taseeh' V. iilCCAKD. Pel- that then the detention by the Police of the money became illegal LEKEAu, J. ,^jj^ wrongful, and without reasonable or probable cause. _.' It was argued for the defence, that the action was not entered within three months of the act complained of ; this is true in respect of the seizure, but the seizure was lawfiil and cannot be the foundation of any action, it is the wrongful detention beyond the reasonable time required for the purposes of inquiry, which is the real and substantial cause of action, and should fonn the starting point from which the three months should be reckoned. It is difficult to fix, with precision, the time at which the detention became wrongful, but I um satisfied, from the circumstances, and the latitude which should be allowed to the Police for the detec- tion of crime, that that time occurred within three months of the commencement of the action, so that if Sections 42 and following, of Ordinance 1 of 1872, apply to this case, the action was entered within the statutory period. Besides, the wrongful detention was a continuous act, each day was a renewal of the wrongful detention, and it cannot be said that the action was entered beyond the three months laid down by the abovementioned sections, if they do apply. In fact, the wrongful detention on the day previous to the notice which was given, was sufficient to justify the action. But do the foregoing sections apply ? I think not. From the necessity of proving that the Police acted maliciously and with- out reasonable or pi'obable cause [Section 47], and the fact that if the plaintiff does not recover mbire damages than the sum ten- dered he must pay the costs of th^ action [Section 48], I hold that the sections do not extend to k case where a person seeks merely the restitution of his property, existing in kind, in the hands of the Police ; and I must, in consequence of all the premi- ses, give judgment for the plaintijaplin respect of the wrongful detention, and adjudge that ^iQu^mm-nkcover the $100 wrongfully detained by the defendant with costs af suit. Altliougk it_is not necessary that l\should certify my approval of the ^ction under Section 49 of Ordinance 1 of 1872, I have no hesitiiAion, on motion of Counsel for thfe plaintiff, in stating that I appT-ove of the action for wrongful detention. The defendant appealed against thi&\ decision, and the appeal was heard before the Court of Appeal, consisting of Ford, C.J., PeUereaii, and'^SMdney, J.J. on the 21st April, 1887. Ross, for app&Ri^nt. The Court below has not found that the plaintiff was the owiier of the $100, but considered that his pos- session at the time the'-^lice took the money from him, was sufficient to maintain the afrtjon. It is submitted, that possession only, is not sufficient to maintain, an action like this, [a.] ^^-^Z^The Court intimated that from the judgment of the Court below^^hey considered it had found, as a fact, the plaintiff was the own'fer of the money. — Goldney, J. also, as to possession being sufficient, ^'eferred to Burroughes v. Bayne, 5 H. & N. 296 ; and mentioned ii County Court decision which occurred about four [a.] See Cattley v. Lotmdes, 34. "W. B. 193. STRAITS SETTLEMENTS. 217 NET. 188T. Taserip u, KlCCABD. yeai-s ago, and was reported in the Times, where a gentleman had Ford, C.J. lost a breast-pin of great value at the Hayuiarket. The Police ^^^^^^ ) shortly thereafter, took up the plaintiff as a vagrant, and on his &Gold-K''^' person was found a breast-pin also of great value, which it was nkt. ^ very unlikely a man in his position could be the owner of. The breast-pin was shewn to the gentleman, who said it was not the one he had lost. The Police were unable to find the owner of the breast-pin, but Laving good reason to believe the plaintiff was not the owner, kept possession of it. The plaintiff then brought his action for the return of the breast-pin, relying simply on his possession, as he could make out no title to it, and he obtained judgment.] The next question that arises is as to Section 42 of the Police Porce Ordinance I of 1872. The action was not brought within three months of the seizure of the money or discharge of the plaintiff. The action is to recover a sum of money which, though not actually ear-marked, was sufficiently set apart so as to be identified. The case may, therefore, be looked at in the light of an action, in detinue, for return of a chattel. In taking tlie money, the Police were acting within the scope of their duty and are therefore protected by Section 42. [Gohlney. J. Section 42 speaks only of a thing done in exe- cution of duty. How was the detention and refusal to give up the money, after a reasonable time, in execution of duty ?] [Ford, C.J. I am inclined to think the sections do not apply at all; the defendant is not sued for damages, but the return of specific j)roperty.] The gist of the action is the detention and is quite indepen- dent of contract. If the defendant had an honest belief he had the right to detain the money, he is entitled to notice and the three months' limitation. [Ford, C.J. Do you claim to retain the money now V] Yes. [Ford, C.J. On what possible ground? Suppose some Police Officers came to your house and charged you with having taken certain goods by unfair means, and then took away the goods, but at the same time said to you " we are not going to prove the case against you." Do you think they are entitled to retain possession of the goods ?] In that case, as at the very outset they seemed to have no intention to proceed with the charge they made, there would be fair grounds for questioning theif bond fides. That is not this case, where the Police did prosecute the plaintiff, and though he was discharged for want of evidence, there is strong reason to suspect he was not only not the owner of the money, but that it formed part of the proceeds of the robbery. [Pellereau, J. Suspicion must be based on reasonable grounds.] Quite true, but I submit here the Police had reasonable grounds. [Ford, C.J. Suppose a case where property, believed to be stolen, is found on a prisoner, and he is put on his trial before a 218 THE SUPREME COUHT. FOBD, C.J. Pel- LBBEAU / f - &G0LD-H-^' NET. ^ 1887. Tabeeip u. KiC'CAED. Jury, but is acquitted by a majority of five to two. That is put- a strong case in support of the view taken by the Police as man's g-uilt. Do you tliiuk, that even in such a case, they "to refuse to give up the property to the ting the the right would have prisoner ?] Perhaps not, but there again, their refusal, under the cir- cumstances, would be evidence of their want of &o?tayid!e.s; thej' would have had both views of the case before them, and have known that an impartial Jury, by a majority, it is true, had acquitted him. That is not this case when the Police had nothing before them but their own view ; the evidence ca.lled by the prisoner in this case was never before them. That was the view they acted under, and did so reasonably, and under an honest belief they were doing their duty, and were entitled to notice. Selmes v. Judye, 6 L. R. Q. B. 724, is an authority in defendant's favour, the more so, as it was an action to recover back a sum of money, and yet ib was held notice was necessary to be given. [Golduey, J. lu that case, the defendants believed they were carrying out an Act of Parliament, and there wan a mode of levy- ing the rate they made ; but v/herc is the Act or law here, for detaining the plaintiff's money ?] If the Police had known the money was the plaintiff's, and yet wilfully detained it, probably they would not be entitled to notice ; but here they had fair grounds for believing it was not his. \_Pellereau, J. Section 48 speaks of tender of amends, which probably means payment of damages for the thing complained of in the action, it does not seem to countenance the detention for ever of the thing sought to be recovered.] In Selmes v. Jiuhje, and the next case I shall refer to, although there were sections in the Acts as to the tender of amends, the money was allowed to be detained for ever. [Ford, C.J. How could the plaintiff in that case, recover back his money, it would have been spent 'P] But he could have been paid out of future rates. \_Ford. G.J. How do you make out the Police had the rio-ht to detain the money for an unreasonable time ?] In Selmes v. Jadye there was n(.) right to levy the rate under the i-epealed Act. Yet the section as to notice was held to apply. [Goldney, J. But in that, case, the defendants were entitled to levy a rate ; the rate, which is a formal document, had not been properly signed under the proper Act. They had the right, but their proceedings were not those required by the new Act. Here there is a total absence of right in tlie Police.] Sections of this kind are intended for cases where the Police have no right to act in the way they have done, but have acted under an honest belief they had the right ; for if they had the right, there is no ground for an action, nor any need of protection. A more recent case, a decision of the Court of Appeal, Midland liailway Co. v. Wittinyton Local Board, 1] L. E. Q. B. Div. 788 is an authority for 4he defendant's contention. STRAITS SETTLEMENTS. 219 {Goldney, J. There the whole was a mistake on the part of both parties, but that is not our case.] [Pallareaii,, J. The words of the Act in that case were, "done or intended to be done."] That is so, but from the judgment of Bue r and Fey, L. J.J., their Lordships seem to consider the words wore the same as "done" only. In the present case, the Police, believing the money to be part of the proceeds of the robbery, how were they to act except by detaining it? [Goldney, J. Tbat may be the difficulty of their position, but it cannot give them the right.] Under the peculiar circumstances of this case, it is submitted, they had no alternative but to detain the money. If the defendant was entitled to notice, he was entitled to the three months' limitation, as Sections 42 and 43 hang together. But supposing the defendant's detention here was unlawful, the action was not brought within three months from the date it first became so. If the detention became unlawful, it became so on receipt of the notice of 8th July, and the defendant's refusal to comply with it. The Court below has not found on what date the detention first becauje unlawful, but that it was some time within three mouths of 19th October, the date the action was commenced. The detention it is submitted, however, if ever unlawful, became so on 8th July, that is, beyond three months of this action. {Vallereau, J. You were entitled to keep the money for a reasonable time in order to make further inquiries and obtain evidence if you could. But an exact date cannot be fixed as being a reasonable time ; every case must depend on its own facts. You were, however, entitled to some latitude and taking the notice of 8tli July as an intimation from the plaintiff that he wished his money returned, I thought the Police were thereafter still entitled to a reasonable time to make their inquiries and see whether they should return the money or not. Under the circumstances, 1 considered a fortnight from the 8th July, sufficient; and only after that time, seeing they nnide no further inquiries, nor had the owner of the money come forward to claim it, I held the detention of it became unlawful. A fortnight from 8th July, how- ever, brings the date of this action, 19th October, within three mouths. I think it is necessary that I should say this, to show how it was I came to the conclusion that, as a fact, the action was within three months,] The question, of course, is when did a reasonable time cease? If they were bound to return the plaintiff the money, because the Magistrate had discharged him, the Police were not entitled to any time after that date, and their detention was unlawful from that time. \_PeUereau, J. You say, an honest belief on the part of the Police Officer, that he is acting within the scope of his duty, is sufficient to entitle him to the protection of Section 42, and that the section applies to an action for restitution of property, as well as damages. But if the belief of an honest Policeman i§ to deprive iToBD, C, J, Pel- , LEBEAU i Gold- net. ■' 1887. J.J. Tabebip V. KlCCARD. 220 *HB SUPREME COltRT. FoiiD, C Pel- LEEEAU ) &GOLD-H NET. ■' 1SS7. TASERir V. RiCCABD. a man of his property, it would be a sad state of things. I am glad to think that is not the law. J ■J. [Ford, C.J. It certainly ought not to be the law.] His reasonable belief is, according to the authorities, all that is required to entitle hiin to a notice and the shorter limitation. \_Pdh:reau, J. Protection should no doubt be given to the Police, but it must stop somewhere. Protection clauses are made to protect officers who may suffer individual losses. Here it is a case of restitution of the plaintiff's property, the Police suli'er no loss if tijey have to give it up. What then do they want protec- tion for ? Again, if Section 42 applies. Section 41 will do so, and the plaintilf cannot recover back his property, unless he can prove the defendant does so maliciously, So that it comes to this, because the Police honestly believe that they are entitled to retain his property, however unlawful it be, the plaintiff is to be depriv- ed of his property, because he cannot prove malice. That is not a law of protection, but of spoliation.] No doubt in some cases that might be its effect, but not in this case, where there is fair reason to believe the money was connected with the robbery ; but even if it did, the hardship of the case cannot alter the law and take the case out of the section. Clutton, for the respondent was not called on. Ford, C.J. I concur with the judgment of the Court below in almost all respects. I am not at liberty to go into the question as to whether or not the detention ceased to be lawful on 8th July, the date of the first notice. If the facts of the case were before me, I might have doubts on the point. The learned Judge in the Court below, has distinctly found, as a fact, the detention first became wrongful within three months of the action. We are concluded by the fact found. With reference to the larger question, it is not necessary to determine whether this class of cases falls within the protection of the sections referred to. I strongly lean in favour of the view of the Court below. The sections seem applicable only to sections for damages, for misfeasance or omis- sion of duty on part of Police Officers, and not to action merely for detention of property of another. Having, however, regard to the importance of the question, I will not do more than express a strong leaning to the construction put on the sections by the Court below. It would indeed be strange if the law of the Colony entitled the Police to detain property for any length of time they pleased, simply because in the first instance they had the right to take them. The Court must fix a limit, and here the Court has done it. Within these exceptions, I concur with the judg- ment of the Court below. As the defendant has persisted in refus- ing to return the money even up to the time of this hearing, I can see no reason to take his case out of the ordinary rule as to costs. Pellereau, J. I have been following Mr. Ross' argument with great care, and though he has ably submitted them to the Court, I must say it has not shaken the opinion I formed in the Court below. The language of Section 42 and following sections of the Ordinance I of 1872 is, no doubt, very broad, and seems at first sight to STRAITS SETTLEMENTS. 221 Ford, C.J. Pel- net. 1887. Tasebii' RlCCABD. cover all kinds of actions. It begins with "all actions and pro- secutions, &c.," bat general words must be read secundum suhjeehim, lebeau ) materia. The sections are intended to protect Police Officers, &Gold.[ who through a mistaken notion of duty, exceed their rights; but "ut. ' here, they simply detain the property of another which will be no loRs to them to give up, and the occasion for the protection does not arise. The sections in my opinion must be restricted to actions in which the Police might be proceeded against for damages. I am confirmed in this view by Section 48, which provides for the tender of amends, whicli can only mean compensation by way of damages. What iippears to me further to exclude cases of this kind from these sections, is Section 44-. By that section, [if the case falls within Sections 42 and 43] the plaintiff must, before he succeeds, allege and prove malice on the part of the defendant. Why was that protection given? Surely in order to prevent Police Officers being mulcted in damages unless they had acted maliciously and without reasonable and probable cause. Why should the mere detention of property require malice to be proved ? If it did, then a Police Officer not actuated by malice, but honestly obstinate is entitled to deprive the owner of property of it simply because he cannot be proved to have acted maliciously. That, as I have said is not a law of protection, but of spoliation. I have already explained how I arrived at the conclusion that this action was bi'ought within three months of the detention by the Police first becoming wrongful, and there is not only no necessity to repeat it, but as a Court of Appeal [leave to appeal against the findings on facts not having been applied for or granted] we are pre- cluded from going into it. For these reasons, I adhere to my judgment in the Court below. Goldney, J. I concur generally with the judgment of the Court below, but I do not wish to lay down in what cases the Police are entitled to notice. Each case must be decided on its own merits. In Section 7 of the statement of defence, T see the defendant says he was acting under Clauses 1, 2, 8 and 10 of Sec- tion 31 of Ordinance I nf 1872, but lean see nothing in them corresponding to the facts of this case, nothing to justify him in detaining this money. The defendant has not made out his defence and is not ejititled to notice. J.J, Appeal dismissed ivilh cokI.i. In re PIPER. The order of a Masistrato, committingf a prisoner to prison under the Extradition Penanq. Act, ISVO [3.S & 34 Vie. o. 52] is final ; and all this Court has to decide is, whether y such order is legal or not ; if therefore the evidence before the Magistrate, is deficient/^ Pel- in any respect, or the formalities required by the Act have not been complied with, leeeau, J. this Court has no power [in an Extradition Case] to remit the case to tlie Magistrate to 1887. supplement the evidence. Qtieri/. Whether the Supreme Court has power, in any case committed to the February 23. Criminal Assizes, to remit the case to the Magistrate to supplement the evidence against the accused ? 222 THE SUPREME COURT. Pel- LEEEAU, J. 1887. In re PrPER. Query. THiether a proceeding by a Pule Kis! for a Habeas Corpus is the proper I, proceeding Ti'ithin Section 1.1 of the Extradition Act, 1870 ? Neither the " Eesident " of the East Coast of Sumatra, nor the " Consul-General" i for the Netherlands in Penang, are " Ministers of State" within Section 15 of the j Extradition Act, 1870, and their seals are therefore no " authentication " of the ' " Foreign Warrant " or " Depositions " within the meaning of that Act. If the " Foreign Warrant " is not " duly authenticated " according to Sections and 15, the proceedings in Extradition fail, and the order of commitment by the Magis- j tra.te is illegal, and this Court will order the prisoner to be discharged. Where a Pule Ifisi was m.ade absolute for a Bnhcas Corjyiis to issue for a prisoner's discharge vmder the Extradition Act aforesaid, the Court, in order to be regular in i(s proceedings, declined to discharge the prisoner then and there, but required the Habeas Corpus to issue and be retornable " rorthwitli " and iii)on return made, dis(.']iari,'Pd the prisoner. The aboveiiamed prisonor [J. W. J. Piper] liad been arrested in Penang', on the requisition of the Netherlands Government t)n a charge of culpable homicide not amounting to ranrder by cans- ing as ib was alleged, the death of a Chinese coolie at Taboeran Estate, in Deli, Sumatra. The extradition of the accused having been applied for. His Excellency the Governor issued an order . under Section 8 of the Extradition Act, 1870, to the First Magistrate to proceed with the enquiry. The accused was remanded from time to time between his arrest and the receipt by the Magistrate of this order, and was finally brought up before the Magistrate, on the 27th January last, when he wns committed to prison for fifteen days [under Section 10] with a view to his rendition to the Dutch :i.uthorities, and under the Magistrate's warrant was detained by the Gaoler. The " Foreign Warrant " and " Depositions" were signed by the " Deputy Attorney " [shewn by evidence to be the j Magistrate] of Deli, and were sealed, firstly, with the seal of the i " Eesident of the East Coast of Sumatra," and next with the seal ■ of the "Consul-General for the Netherlands, Penang." The signature of the " Deputy Attorney " or Magistrate to the depositions was attempted to be authenticated by the oath of a witness, viz. : Mr.Eruijt,tlie Consul-General, who said he was not personally acquainted with the gentleman who was the " Deputy Attorney " and had never seen him ; but he had frequently corresponded with him officially and received replies from him, and by this means he [Mr. Kruijt] was able to swear to the gentle- man's signature. No evidence was given as to the signa.ture on the "Foreign Warrant." There was also no evidence as to the prisoner's identity beyond the fact that his name was that which appeared in the " Foreign Warrant." On 9th instant, a'llule Ni!iia, iBom. H. 0. Rep. [App.] 155 ; AaherY. Whitloch, 1 L. E. Q. B, 1, and Leigh v. Jack, 5 L. R. Ex. Div. 264 ; and on the point of the conTeyance of a share, prior to administration being taken out, to Abdulrahim v. Brahman, 1 Kyshe 171. Cur. Adv. Vult. 14th March. PeUereau, J. In this case, the plaintiffs, who are the administrators of one Haleemah deceased, claim to have it declared that certain lands are the property of the said Haleemah deceased, and certain conveyances thereof, No. 745 of 1858-59 and ]08 of 1883, to be subject to a parol trust or arrangement mentioned in paragraph six of the statement of claim ; or in the alternative, to have the said con- veyances declared inoperative in law, and the latter of them also fraudulent and void in fact, and to have the_ conveyances delivered up to be cancelled, and for an injunction restrain- ing the defendant, his servants, and agents from disposing of, mortgaging, or otherwise, howsoever dealing, or interfering with the said lands, and for further and other relief. There are several points to be decided, both of fact and law. The first question — being one of fact — to be decided is, whether the said Haleemah was married to one Saboor Ally, from whom the defendant alleges he purchased the lands in question. There can be no doubt, from the evidence that Haleemah and Saboor Ally were reputed as man and wife, — and I think there can also be no doubt that they were married. A ceremony, purporting to be a marriage between them, took place in 1848 ; the Kali was called and produced his Register with the entry of the marriage, and there was also the evidence of other persons who were present at it. Mr. Thomas for the defendant however, argued that one Pakeer Bawa, the admitted first hnsband of the said Haleemah, was alive in 1848 ; and he relied on the state- ments of two witnesses in support of his contention. Of these witnesses, one was called by the plaintiffs, and the other by the defendant. The first of these two men, Hussain, no doubt says that Pakeer Bawa died about 31 years ago; and the other Gool- mal, says he thinks Pakeer Bawa died in 1850 or 1851 ; but the evidence of these witnesses on that point when carefully looked at, does not support Mr. Thomas' contention. Hussain, in re-exam- ination by Mr. Ross, said his memory was not good as to dates, but he was certain that Haleemah and Saboor Ally lived as man and wife only after Pakeer Bawa's death and not before — and Goolmal, in cross-examination, said he had no distinct recollec- tion of the date of Pakeer Bawa's death, and it might have been in 1846 or 1847 instead. I am satisfied that the memory of natives of the class of these witnesses is not to be relied on as to dates, but may be relied on as to facts. I cannot from these state- ments presume in favour of polyandry ; on the contrary, according to a case in 1 Kyshe [a.], the pi-estimption is always in favour of [,«.] Ong Cheng Neo v. Yeap CHeah Neo, Vol. I ol these ReportSj 326, STRAITS SETTLEMENTS. 227 Pel- marriage. In this case we liave abundant evidence of reputa- tion ill support of the presumption, and above all, we have the i^^^^g^'^' entry in the Kali's book, in which Haleemah is described as ' ' " widow " of Pakeer Bawa, and the agreement of 27th April, 1870, sFatimah & put in by the defendant himself, and made by Saboor Ally and ^''°^- Haleemah with him, in which Saboor Ally speaks of Haleemah as Iabmootah his " wife." I can have no doubt from the evidence that Pakeer I Pi'I'La.t. Bawa was dead when the ceremony of marriage took place | between Haleemah and Saboor Ally, and that these were lawfully ' married. The next question, also one of fact, is whether the Conveyance No. 745 of 1858-59 from Haleemah to Saboor Ally was fettered with a trust. It was admitted by Mr. Ross for the plain- tiffs that he had failed bj' his oral evidence to prove this trust, but he relied on the Act of 2,7th April, 1870, which I have already mentioned, as proof of the fact. In this document, Haleemah is a party, and the plaintiffs argued that there was no reason why Haleemah should have been a party if she had entirely divested herself of her interest by the conveyance of 1859 — that that fact was only consistent with the hypothesis that she, notwithstanding that conveyance, still retained an interest in the land, and the defendant in taking the agreement of her as well, shewed he so knew it. This act shews, no doubt, that the plaintiffs' contention is not altogether devoid of truth. It is true the defendant has sworn that Haleemah was only a witness to the document, but I prefer to believe the evidence of the act itself, rather than the oral evidence of an interested party. It may be that Haleemah and her son Kader Mydeen, had however, only an interest in the four lalongs which the act deals with, but whether this be so or not, unfortunately for the plaintiffs, this very act which shews > Haleemah had an interest, cuts both ways. It shews she must have had some equitable interest, but whatever that interest was, * it also shews she joins with Saboor Ally in ti-ansferring it to the defendant. What the legal effect of such a transfer is, is another question, and will be dealt with when I come to the question of acknowledgment ; but as a fact, she has so transferred her rights. On that ground I cannot say she retained any equitable interest in the land. On the second branch of the claim, I also do not think there is any evidence of fraud on the part of the defendant as regards the conveyance of 1883 from Saboor Ally, nor do I think he had notice of any rights retained by Haleemah. He only appears to have had notice of her claim to the four lalongs dealt with by the Act of April, 1870, but also sees that by it she divests herself of that interest, and when he saw the conveyance to Saboor Ally by Haleemah, may have acted in good faith in the sale in 1883. I must hold there is no evidence of fraud, and on the first branch of the case as on this question of fraud, judgment must be entered up for the defendant. I now come to the questions of law that have been i raised. It is first said by the plaintiff that the conveyance of 1859 from Haleemah to Saboor Ally is inoperative, as husband and wife are one person in law and cannot convey to each other — that this was so even in the case of Maho- 228 THE SUPREME COURT. 1887. Fatimah & Anob. 11. Armootah PnLLAT. Pel- medan married women, and the conveyance went for notliing. ''^^88?' ''' I ^'^ ""^^ think there is that unity between Mahomedan husband and wife as between Christians, biit I need not decide this point as I think the next objection fatal to the conveyance. It was not acknowledged under the Indian Act. XXXI. of 1854.. It was held by Sir William Hackett in this Court, in the case of Eader Meydin V. Shalomah [Woods' Oriental Cases, 42, s. c. St. L. R. 26()J, cited by Mr. Ross, that the Act of 1854 applied to all wives— the wife in that case being a Mahomedan. I do not know what I might have decided had the question come before me for the first time. There are sections in the Act itself, such as Sections 12 and 18 on which an argument might be raised. Section 18 says : " Nothing in this Act contained shall extend to any cases to which the English law is not applicable." It may be a question whether English law applied to Mahomedam wives. Section 12 says: " Nothing in this Act contained shall abridge, extend, or aifect the powers of alienation or disposition, which any married women might have exercised over any property or right otherwise than by levying a fine or suffering a recovery, or by joining in one of such assurances before the passingof this Act." It might be a question whether the Act applied at all to Mahomedam married women. But the point is concluded by precedent — the case I have referred to has laid down the principle of Jurisprudence and Practice in Conveyancing which has hitherto been followed throughout the Colony, and I cannot upset these, even were I disposed to do so, I must hold that the Act applied to Mahomedan married women, and that the conveyance by Haleemah is not binding on her nor on the plaintiffs, her representatives. This property was not settled to her separate use, so as to bring in the principle of Taylor v. Meads, [34 L.J. Ch. [N. S.] 203, and I have no hesitation in" ruling that Haleemah's conveyance to Saboor Ally is not binding and is invalid. The Act of 27th April, 1870, is also invalid for the same reason. The defendant knew Haleemah was a married woman ; he bought with his eyes open, and the maxim Caveat Emptor applies. It was contended, however, by Mr. Thomas for him, that Ordinance 5 of 1880 [the Mahomedan Marriage Act], was retros- pective, and he relied on Clauses 10 and 18 of Section 27. Clause 18 is as follows: — "The provisions of tlie several clauses of this section, except Clause XV, shall be held to apply to all cases in which the death or marriage happened before as well as after the coming into operation of this part of the Ordinance. Provided that nothing in this section contained shall, without the consent of the parties or, in case of suits, the leave of the Court, be held to affect any suit commenced or any contract entered into or the administration of any estate commenced before the coming into operation of this part." On reading the clause, it will be seen that so far from shewing that the act is retrospective, it is clear that it saves past rights. The conveyance of 1859 being inoperative, the one of 1883 falls with it. On the point then that these conveyances arg inoperative, judgment must be entered for the plaintiffs. /T next come to the question of Limitation. On this point, two questions arise ; firstly, Avhether there was STRAITS SETTLEMENTS. 229 adverse possession on the part of the defendant ; and secondly, Fel- if there was, when did the time begin to run. This second ^^^^.oty' •^■ point is dependant on the question of unity of a Mahomedan hus- _' band and wife, and need not, I think, be decided by me. It may Fatimah & be remarked that the Limita.tion Act deals with married women ■*^''°^- generally, and treats them all as being under disability during Armootah coverture, but the period of limitation after removal of the dis- Pull at. ability is three years under the Act, and not twelve as it was sup- I posed in argument. However, as I have said, there is no occasion | to decide this point as I find adverse possession did not exist. In I cases of realty there must have been possession, adverse to the i plaintiff. In Thompson on Limitation, under the Indian Act XIV. of 1859, which is our law, p. 162, it is stated: " In a suit to establish a right to possession to lands, it was held by the Court of first instance that inasmuch as the lands in dispute had been lying waste for a period of forty or fifty years, they had not during that time been in the possession of the plaintiff, and that his suit was consequently barred. / But, it was held on appeal that until there was adverse possession, there was i no cause of action, and that consequently, the suit was not barred if brought ' within twelve years from the time when adverse possession was actually taken." This is consistent with the other avithorities quoted in the / work. Adverse possession must be a possession in denial of the /' plaintiff's claim. Can the defendant say he was in possession!] adverse to Haleemah ? From his own evidence and the act of 1870 ' he has produced, it is clear the possession of Saboor Ally and the possession of the defendant was a confirmation of her possession, for both claimed through her. I rule that the Statute of Limita- i tions cannot apply. The authorities quoted by Mr. Van Someren are in point, they shew such possession to be permissive, and something must be done by the defendant to alter the quality of his possession. He must do something to shew he is in possession adversely, and no longer under the permission .y^On the question of limitation, judgment must be for the plaintiffs. Mr. Thomas . has however also contended, that as Saboor Ally survived Haleemah, as her husband, he was entitled to a share in her estate and so the conveyance by him to defendant was gooipro tanto. Unfortunately, for the defendant however, the local law is against him. I do not like the case of co-heiresses in England in whom the legal estate would be vested, on the death of the owner intestate, and a con- veyance by one of her share, would be good without administration being taken out. Here, realty on the death of the owner, is of the nature of chattels real, and the legal estate is in the executor or administrator. The husband has, no doubt, a right to a share in the proceeds of the estate after payment of deceased's debts, but cannot bind it before administration is taken out. The case referred to by Mr. Van Someren on this point is an authority if one were wanted. Under these circumstances, I hold that the legal estate was not in Saboor Ally ; he had only a right to claim a share of what proceeds there might be. The conveyance by him cannot hold good for a portion of the estate, which after all may not exist after payment of debts. The plaintiffs hafe taken 230 THE SUPREME COURT. Pel- L.EREAU, J. 1887, Patimah tt Anob. V. Abmootah PULLAT. out administration to Haleemah's estate, and the conveyance wHch was made before administration was granted cannot prevail against them. On this point, therefore, the jiidgment must be for the plaintiffs. I have made a summary of the judgment which I have just delivered, which I shall read, and then hand down to the Eegistrar to be filed with the papers in the case. It is as follows : — The Court finds, 1st.— That Haleemah was duly married to Saboor Ally in the Mahomedan year 1265, i.e., about 1848 of the Christian era. 2nd.— That there is no proof of any oral trust or arrange- ment as alleged in the statement of claim ; nor of Armootah PuUay having had notice of any such ; and that, in consequence of the first branch of the claim, judgment be entered for the defendant. 3rd. — That as regards the second branch of the claim, it is not proved that the conveyance to Armootah Pullay was fraudu- lent. But the Court rules as regards the second branch of claim, 4th.— That the Indian Act XXXI. of 1854 applied to the conveyance made by Haleemah to Saboor Ally which must be held ineffectual and inoperative for want of the acknowledgment re- quired for the protection of married women, and that Armootah Pullay can have no more right than Saboor Ally. 5th.^ — That the Statute of Limitations cannot apply against the representatives of Haleemah, as Armootah Pullay did not hold the land, the subject-matter of this suit by adverse possession. 6th.- — That Saboor Ally could not dispose of the share he might have claimed in Haleenaah's, his predeceased wife's estate, as the legal estate was vested in her legal representatives and the conveyance by him to Ai-mootah Pullay cannot be held valid even for that share. The Court thinks it needless to decide the following questions /'which were raised [1.] whether a Mahomedan wife can sell land I to her Mahomedan husband; [2.] at what time the right of action / accrued to Haleemah or her representatives under the law of limi- tation. Judgment for the plaintiffs on the second and third branches of the claim, except as to the point of fraud which is dealt with in para. 3 of the present judgment. Half costs of plaintiffs to be paid by defendant, [a.] TIO ANG BOI V. HIA MA LAI. Penano. The requirement towards the end of Section 13 of Ordinance 3 of 1887, of a notice in writing, applies only to the I^st of the alternative offences mentioned in that section, Pel- tIz-, the retaining of the men in service, [i,] LEEEAU, J. A Magistrate might after the case for the prosecution has closed and the prisoner 1887. has addressed the Courl; in his defence, allow a further witness to he called by the pro- secution, provided he gives the prisoner an opportunity to explain away or rebut by March 28. evidence or otherwise, such further evidence. [«!.] See Armootah Pillay v. Fatimali Bee Sf ami:, infra. September, 1888, [J.] See Bamsamy v. Low, X6th July, 1888, infrct. STRAITS SETTLEMENTS. 231 Ong Mow v. Abdiilrahman, Straits L. E. 354, and Chooashary v. Cassim, 3 Kyshe, Pbl- 98, followed. lbkeau, J. But even if it were irregular and improper for the Magistrate to have done so, still 1887. it is no ground for quashing a conviction, unless there is not sufficient other evidence to support it, or injustice has thereby been done. Tio ANa Boi Whether there is that sufficient other evidence or not, and whether injustice has v. been done or not, is tor this Court on appeal to determine, under Section 33 of the HiA Ma Lai. Appeals Ordinance 12 of 1879, and not for the Magistrate. Query. "Whether Ordinance 5 of iS70 applies to the Police Courts ? The words " knowingly " and " so bound " in Section 13 of Ordinance 3 of 1877, apply only to the contract for service, and not to the period of the contract — so held by the Court of Appeal. The appellant had been convicted by J. K. Birch, Esquire, Magistrate, Province Wellesley, of crimping, by harbouring or concealing certain labourers under contract of service at Batu Kav(ran Estate under Section 13 of Ordinance 3 of 1877. Gr. S. H. Gottlieb, for him contended 1, that notice, in writing, was necessary to have been served on him under the section before he could be convicted, in order to shew he " knowingly " harboured the men ; 2, that the evidence of Tan Ah Nio one of the harboured men was inadmissible as it disclosed a previous desertion and therefore a former offence ; 3, that this witness had been called by the Magistrate after the close of the case for the prosecution and the prisoner had made bis statement in defence, though, before he had called his witnesses, and the proceedings were therefore irregular. On these second and third points he cited Mamsah v. Mahomed Lehbye, 3 Kysne, 130. [Pelhreau, J. referred to Section 44 of Ordinance 5 of 1870. J Gottlieb contended that, that Ordinance did not apply to Police Courts, and referred to Veramah v. Thaivoo, 3 Kyshe, 117; 4, that the evidence of one Awang, a witness called by the appellant bad been improperly rejected. JSoss, for respondent contended, that notice in writing was not necessary and the words in Section 13 requiring a notice must be limited to the last alternative offence mentioned in that section — that the evidence of Tan Ah Nio did not refer to a previous desertion — that the calling of him by the Magistrate at the stage he did was not material, and that the evidence of Awang was as to irrelevent matters ; and also that no injustice had been done by any of the alleged irregularities, and there was sufficient other evidence to support the conviction which should not therefore be quashed. He referred to Ong How v. Abdulrahman, Straits L. E,. 354; Chooashary v. Cassim, 3 Kyshe, 98; Versay v. Mahomed Haniff, 3 Kyshe, 79 ; Reg. v. Mun Bomoh, 2 Kyshej [Cr. Rulings] 110 ; Act II. of 1855, Section 57, and Ordinance 12 of 1879, Sections 33, 34. Gottlieb, replied. Cur. Adv. Vult. 29th March. PtUereau, J. The Magistrate convicted the appellant of crimping by knowingly harbouring certain labourers on Batu. Kawan Estate under Section 13 of Ordinance 3 of 1877. The points raised by Mr. Gottlieb were, that under Section 13 it 232 THE SUPREME COURT. Pel- -was necessary that a aotice, in writing, should have been served in ""^Iss?' order to prove a guilty knowledge and constitute the offence of " knowingly harbouring or concealing ; but I do not agree with this Tio Ano Boi contention. If the words " after receiving notice, in writing, that •jT ^' y such labourer is so bound as aforesaid " in this section apply to ■ the offence of harbouring, they apply to all the offences mentioned in it, but if we were to adopt such construction, we should arrive at a strange conclusion. It would be this ; the section says : " Any person who shall knowingly seduce or take, or attempt to seduce or take, from his service or em.ployment any labourer bound by any contract of service, such contract being for a period of not less than one month, to serve any other person, whether within or without the Colony, or who shall knowingly take any labourer while so bound into his service or employment, or who shall knowingly harbour or conceal any labourer who shall have absented himself without leave from the service of such other person to whom he is so bound, whether such service is to be performed within or without the Colony, or who shall knowingly retain in his service any labourer bound under any such contract to serve any other person, whether within or without the Colony, after receiving notice, in writing, that such labourer is so bound.as aforesaid, shall be liable on conviction, to a fine not exceeding twenty-five dollars, or to imprisonment, which may be of either description, for any period not exceeding three months, or to both, in respect of each and every such labourer." The notice would then be required to be given even to the man who seduced the man away, before he did so. This would be absurd and shows that the requirements of the section, as to notice, in writing, is limited, and does not qualify the first of the offences in the section. But if it is limited, then how far is it so ? I con- sider it is Umited to the last of the offences mentioned in the section— the retaining the men in service. I can quite understand why it should be so and not to the offence of harbouring or con- cealing, which are in themselves more culpable acts. It was also argued by Mr. Gottlieb that the scienter had not been proved. I have carefully read the depositions, and they leave no doubt in my mind that the appellant acted with a guilty knowledge that the men were not only deserters, but were under some contract of service. I also think that this was so as to all the four men, and not only as to two of them as was contended. That disposes of the case on its merits. But a third point was taken, and it was contended, that there had been an improper admission of evi- dence, that the Magistrate, after the evidence for the prosecution had closed, had called Tan Ah Nio, and was wrong in doing so. From the authorities that have been cited, I have no doubt that, although Ordinance 5 of 1870 may not apply to Police Courts, a point I need not decide, yet the Magistrate may call witnesses 'as was done here, provided he allows the prisoner to rebut it by evi- dence, or otherwise, as he [the prisoner] chooses. Hero that was done, and I do not 'think the Magistrate acted improperly in admitting the evidence. Besides, supposing that the evidence was improperly admitted, still I consider there is sufiicient evidence [apart from the evidence improperly received] to support the con- viction. Under Section 38 of the Appeals Ordinance, I hav e o STRAITS SETTLEMENTS. 233 decide, not whether the Magistrate would have considered there Pel- was suificient evidence but whether the Court which hears the '^^H^^'^' appeal so considers it. As I have said, I think there is sufficient ' evidence, and no injustice has been done to the appellant. The I'^o Ang Boi case cited by Mr. Gottlieb is not at conflict with my so ruKng, as jjli Ma Lai. in that case, the Court, on appeal, considered there was not suffi- cient independent evidence, apart from the objectionable evidence which had been received, and therefore quashed the conviction. On the other hand, we have another case, in which it was held not to be a ground for setting aside a conviction under Section 33, although there had been an irregularity, which however had caused no injustice. I see no grounds therefore for quashing the conviction as I consider no injustice has been done. Then it is said the evidence of Tan Ah Nio disclosed previous offences and was also inadmissible on that ground. There are some cases, no doubt, in which previous offences might be given in evidence to prove a guilty knowledge, but I am not aware that it would apply to a case of this kind. But the fact is, I am not satisfied that the evidence of this man relates to previous ofPences. On the con- trai-y, I think it relates to the same offence with which the appellant was charged, as I find that the witness Awang was stopped as soon as it was found he was about to speak of some- thing which happened on a previous date. There is no proof that Tan Ah Nio's evidence applied to a previous offence, and this ground of appeal must be rejected by me. Next it is said that the evidence of Awang was improperly rejected. The Magistrate's note on this point is as follows : — " Awang sworn states : — I am a padi-planter at Alma Estate. AboT.it three months ago — told to stand down." This shows that he could not have known anything in connection with the offence charged. The Magistrate had to deal with a man who had no knowledge on that point. If the prisoner had insisted on the Magistrate examining the man further in order to ascertain whether he really knew anything in connection with the offence charged and the Magistrate had re- fused to do it, he would have been wrong ; as we have it now, it only appears that all Awang knew was something of a former occasion and was not evidence at all in this case. The Magistrate did not act wrongly therefore in telling him to stand down. He neither acted illegally nor improperly in so doing, and this point must also be dismissed. There is one point, however, which I shall reserve for the Court of Appeal, that is, what is the meaning of the word " knowingly." Is it to be construed as applying to harbouring or concealing only, or does it also apply to the fact that the deserter or absentee was bound by a contract of service, and in addition to that, a contract for service for not less than one month. I have some doubt on the point, but my impression is, that it means knowledge not only of the harbouring or con- cealing, but also of some contract of service, but not of a contract for not l^ess than one month. If it did, the section would be almost useless. I think this point should be reserved for an authoritative decision on it, and I shall therefore reserve it for the Court of Appeal, but only this point. AH the others I dismiss. 234 THE StlPREME COUJElT. FOED, C. J Pel- LEREAU & Gold- net. 1887. Tio Ang Boi HiA Ma Lai. The point reserved was argued on 21st April, 1887, before the Court of Appeal, consisting of Ford, G. J., Pellereau and Goklney, J.J. G. S. H. Gottlieb, for the appellant. D. Logan, [Solicitor-General,'] for the respondent. Ford, C.J. I think the construction of tlie section is clear ; the scienter extends only to the contract of service and not to the period of the contract. Pellereau, 3. I agree. The difficulty I felt arose from, the lirst phrase in Section 13. It appeared to me, that the expression " such contract not being less than one month " defined the con- tract of service, and " knovfingly " applied to the period as well as to the fact of the contract. The further clause, as regards harbouring or concealing, requires that the prisoner should do so, knowing that the men harboured was " so bound," which seemed to mean the contract of service and a contract of the particular kind. After considering the point, however, I hold" knowingly" and " so bound " apply to the contract of service only. The period , of the contract must of course be proved in order to bring the case within the section, but it is not necessary that the scienter should include the period of service. Gold.ney, J. I concur. Gonviction a^irmed. Appeal dismissed ivith costs. REGINA V. ISMAIL & ANOR. Penang. a coavictiou for letting a hackney carriage to hire the license of which has been cancelled can only be sustained where the license has not only been cancelled, but Pel- notice [in writing] thereof given under Section 11 of the Hackney Cari-iage Ordinance LEBEAu, J. 5 of 1879 to the owner. 1857. The driver of ajirsl class hackney carriage is bound as much as the drivers of . a carriage of any other class to take out a license as such driver : and the Mord "him- March 28. self" at the end of the proviso to Section 21 of the aforesaid Ordinance is confined to the owner who acts himself as driver and does not include another person who might act as driver for him — and the driver cannot be said to be " using " the carriage within the meaning of the proviso i\hen he is driving for the owner. The fact that tor ten or twelve years fn-st class carriage drivers have not been required to take out a license cannot alter the case. The only exception in favor of a first class carriage driver is that he is not required to carry any badge. A carriage which is engaged by a person for a month or any fixed period exclu- sively for his own use is by that very fact taken out of the category of " hackney carriages " and does not nor does its driver require to be licensed. The appellant Magness who was the owner of a hackney carriage was convicted by C. W. S. Kynnerslej-, Esquire, First Magistrate, Penang, under Section 9 of Ordinance 5 of 1879, for letting to hire on the 3rd December, 1886, a carriage the license of which had been cancelled. The appellant Ismail was convicted under Section 21 of the same Ordinance for having acted as the driver of the carriage when he had not been licensed as a driver. The evidence shewed that the appellant Magness held a license for the carriage as a first class carriage, dated 12th January, 1886 ; STfeAiTS SETTLEMENTS. 235 that at tlie half-yeai-ly inspection by the Eegistrar of Hackney Carriages, he or his officers considered the carriage should not be passed as a first class carriage, and refused to grant a license therefor, but offered to grant a license for the can-iage as of the second class. The appellant Magness refused the offer. The register of the carriage of 12th January, 1886, was cancelled in the books of the Eegistrar, but beyond the verbal intimation above no notice was given him as required under Section 1 1 of the Ordi- nance. The license of 12th January was still in his hands, and he continued to hire out the carriage as of the first class notwithstand- ing the intimation aforesaid. On the 3rd December aforesaid he did so, and the appellant Ismail acted iis the driver. The carriage was standing at Penang Road, not far from the appellant Magness' house, and was there engaged by certain passengers on hire to convey them to Ayer Etam. The respondent, a Constable, pursuant to previous iiistructions took Ismail and the carriage into custody, and the aforesaid charges were entered against the appellants by the Eegistrar of Hackney Carriages, which resulted in both appellants being convicted as abovestated. They now appealed. G. S. H. Gottlieb, for the appellants contended, that neither of the convictions could be sustained. 1. — As regarded the appellant Magness, the license was not cancelled in due course of law under Section 11 of the Ordinance by a notice in writing, and he had therefore committed no offence. 2. — As regarded the appellant Ismail, that the driver of a first class hackney carriage need not be licensed, and no such license as a fact had ever been granted to such a driver for the past ten or twelve years. He submitted the case fell within the proviso of Section 21 and the word "himself" there, included the driver of the owner, as well as the owner personally, as there was no reason for it to be otherwise and facit per alium facit per se. D. Logan, [Solicitor-General'] admitted the conviction of the appellant Magness could not be supported. He also admitted that drivers of first class hackney carriages had not been licensed for the past ten or twelve years. He contended however that that made no difference since now the question had arisen, and that a driver of such a hackney carriage was not exempted from taking out a license. A fii-st class carriage was a carriage used for the conveyance of passengers for hire, and was therefore a hackney carriage within Section 1 of the Ordinance, and as a " hackney carriage " the driver thereof required to be licensed. The proviso in Section 21 he submitted only exempted the owner personally while he was himself the driver, but not another person who was acting as driver for him. Pel- LEBEAU, J. 1887. Reqina V. ISUAIL & Anob. Gottlieb, replied. Cur. Adv. Vult. 31st March. Pellereau, J. In this matter the conviction as to Magness is quashed, the Solicitor-General admitting it cannot stand. With regard to Ismail, the point taken' was that a driver or coachTnan of a first class hackney carriage was not bound to 236 THE SUPREME COURT. Pel- LEBEAXr, J. 1887. Eeoina V. Ismail -f •'■■'• NET. -' 1887. April 21. REGINA V. MAHOMED. The Crown is not bound in a charge of giving false evidence on two contradictory statements under Section 63 of the Criminal Procedure Ordinance 6 of 1873 to prove that both or either of such statements are or is false. The proviso at the end of that section requiring that both statements must be within Section 191 of the Penal Code does not I'efer to the falsity of the statements, but only to their being on oath. Case stated by Sheriff, J. as follows : — " The prisoner was tried before me and a Oomnion Jury at the Assizes holden at Penang in December last, for perjury on two contradictory statements and v^as convicted. An objection was taken at the trial that Section 63 of Ordinance 6 of 1873 and Section 191 of the Penal Code rendered it impei'ative that both the contradictory statements should be false, and that in this case the fact was not established. I over-ruled the objection, and the Jury by a verdict of six to one found the prisoner guilty. On the following day, Mr. Ross moved pursuant to leave, to have the point raised by him, reserved for the consideration of the Court of Appeal. The point reserved is, whether the contention of Mr. Ross as abovestated is sound or not ? The prisoner was remitted to Gaol, but bail sanctioned. No sentence has been pronounced." The point reserved now came on for argument before the Court of Appeal, cotisisting of Ford, C.J., Pellereau and Goldney, J .J . Ross, for prisoner. Section 63 on which the question turns is as follows : — " A person charged with an ofience under Section 193 of the Penal Code on two contradictory statements may be convicted in the alternative without evidence to contradict either statement, if the Jury are satisfied that the statements are of such a nature that when the accused made them, he must have known or believed that one or other of them was false, or did not believe it to be true, and if both statements are within the meaning of the definition of the offence of giving false evidence in Section 191 of the Penal Code." By the section then, we are referred to Section 191 of the Penal Code. That section is as follows : — " Whoever being legally bound by an oath or by any express provision of law to state the truth, or being bound by law to make a declaration upon any subject, mates any statement which is false and which he either knows or believes to be false or does not believe to be true is said to give false evidence. Explanation 1. A statement is within the meaning of this section whether it is made verbally or otherwise. Explanation 2. A false statement as to the belief of the person attesting is withm the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe as well as by stating that he knows a thing which he does not know." In construing Section 63 we have no precedents to guide us. At home, if a prisoner has made two contradictory statements on oath, the prosecution has to elect on which statement it will prove, and must adduce evidence to prove its falsity. In India, they have no such section as this, though there is a form of a ST^RAI'fS SETTLEMBlfTS. 261 charge in the alternative for giving false evidence. Most of the Ford, C. J, sections of our Ordinance 6 of 1873 are taken from the Indian ^meau ) Act X. of 1862. Section 62 corresponds to Section 406 of the & Gold- [•'■•'^• Indian Act and Section 64 to Section 407 ; our. Section 63 is net. ' entirely an enactment of our own Legislature and this is the first ^^^^- time its construction has been sought. Now, referring back to Rbgina Section 63 we find that it provides that both statements must be «- within the definition of Section 191 of the Penal Code. 'On Mahomed, turning to Section 191 we find one of the things necessary to constitute giving of false evidence, is that the evidence be /afoe. It therefore follows that both statements must be proved to be false under Section 63. [Goldney, J. Section 63 requires both " statements " be within the definition of Section 191. On referring to Section 191 we find in explanation 1 thereof, what a " statement " is. A " statement " is there said to be a statem^ent " whether it be in writing or verbal." Falsity forms no part of the definition of a " statement."] Section 63 refers us generally to Section 191 and not to any particular part of it. If that construction be the correct one, then neither statement need be false. [Goldney, J. Section 63 requires that one be false.] [Ford, C.J. The wording of the proviso in Section 63 is peculiar; it is "within the meaning of the definition "of Section 191.] [Pdlereau, J. It is not that the whole offence must be within Section 191, but only the statement. Both must be on oath and in that sense within Section 191. Not the falsity or the belief, but the sworn chai'acter of the statements.] The section does not limit the statement to any particular essential of Section 191 but the whole. [Pellereau, J. Your construction would necessitate a proof of two perjured statements in order to obtain a conviction, whereas the section was intended to be in advance of the English law which did not permit of a prosecution on two contradictory statements.] The section itself requires it ; there is no reason why its language should be construed as excluding the first part of Section 191. [Goldney, J. You say the proviso in Section 63 repeals the previous part of it ?] Yes. [a.] [Pellereau, J. If both statements are required to be false, but at the same time by the section no evidence aliunde is to be adduced, how is it possible to prove the statements to be false?] My contention is that the pi'osecution is not forbidden by the section from adducing evidence aliunde, but only enacts that it should not be necessary to do so. [Pellereau, J. But if you are right, there always will he the necessity to adduce evidence aliunde in order to prove both state- [a.] But see Salmon v. Duncombe, 11 L. R. App. Cas. 627, 262 TllE SUPREME COURT. FOBD, C.J. Pkl- lbkbatj ) , t NET. ^ 1S87. Beqina V. Mahomed. ments false- What then becomes of that part of the section which says " without evidence to contradict either statement"?] Those words are stultified by the proviso which requires both statements to be within Section 191, one of the essentials of which is, the falsity of the statement. [Ford, G.J. Your construction would destroy the section. J [a.J No, I submit not, to give an illustration that it would not : Suppose a man on oath charges another with having assaulted him with a sticlc — afterwards on oath he says it was not with a stick, but with his fist. Suppose the accused to be acquitted and he prosecutes the other for giving false evidence, inasmuch as he never assaulted him at alt. He might chai'ge the other under this section and prove both his contradictory statements to be false. That is the kind of a case I submit the section is meant to apply to. [Ford, C.J. You shew a possible case, but is that the only class of cases Section 63 is meant for?] The section can only refer to such a class, when by requiring both statements to be within Section 191 the falsity of each is required. These are not alternative charges under Section 61 as they are both of the same kind — perjury. The Jury find under this section a general verdict of guilty or not guilty without specifying which statement is false, or both are false. [Pellereau, J. Under Section 72 the Courts in India have held that there may be a charge of perjury in two contradictory statements.] I am aware of that, but then they have not such a section as our 63. [Pellereau, J. Does not that make it all the worse for you ?"l I submit not, as it is Section 63 which requires both state- ments to be false. It is a canon of construction that the words of an Act should be given their plain meaning — apply that canon to this section and the language of the proviso is clear and simple, and so is the meaning. [Pellereau, J. I agree with you as to the canon of construc- tion — but does not the word "definition" in the proviso only mean explanation 1 of Section 191. If it meant the whole of Section 191, the requirement as to a knowledge or belief^ — which is one of the essentials in Section 191 — would not have been mentioned in the first part of Section 63.] [Ford, C.J. Section 63 does not say, provided all the essen- tials of Section 191 exist as to both statements.] I submit the Legislature has in effect said so by referring generally to Section 191. Section 63 it must be remembered is a penal clause. Previous to its enactment, every prisoner was entitled to have the case proved against him by evidence. The section deprives him of this right, and it should be construed strictly, and not given a bit more latitude than its express words enact. [Ford, C.J. But your construction reduces the- section to an absurdity— and it is also a rule of construction that a con- struction which leads to an absurdity is to be avoided.] [a.] See note [a.] previous page. STRAl(f S SETTLEMENTS. 263 My construction, I submit does not reduce the section to an absurdity — I have shewn the class of cases which will still fall within it. _ \_ForA, C.J. But it entirely does away with the provision which says it sha.ll not be necessary to call any evidence to prove either statement to be false.] The effect of the proviso itself is to do away with those words, [Pei/ej-eait, J. The proviso does not say, the full definition, but only if it be ''within" the definition of Section 191.] No doubt a part is " within " the whole — but " within the definition " means the whole definition — Culpable homicide not amounting to murder is within the definition of murder; but would any Court sentence a person who had been found guilty of culpable homicide not amounting to murder to death, simply because it was "within" the definition of murder ? The words " within the meaning of the definition of Section 191 " must be given their ordinary meaning. The words of the proviso are not dubious. I admit the latter half is inconsistent with the former, but they are not dubious. \Ford, C.J. You are in the conflict of two principles — the one to give words their ordinary meaning, and the other to avoid a construction which leads to an absurdity. An absurdity would be avoided in the present case by limiting the woi'd " definition " as my learned brothers suggest.] In a remedial section, such a construction would be proper, but here we have a penal section which seeks to abridge a prisoner's right to have the charge laid, jyrovei against him. Such a section should be differently construed. If a proviso be inconsistent with the previous part of a section the proviso prevails. Max. on Statutes, [2nd Ed.] 187. Here the proviso is repugnant to the first part of the section, the proviso should therefore prevail. [Goldney, J. It does not say one proviso prevails over another repugnant proviso ?] No, it does not. [Goldney, J. Well then here the first part of Section 63 provides the falsity need not be proved.] [PcUereau, J. Does not the phrase " without evidence to contradict either statement" shew that falsity and belief in falsity is provided for — and the proviso is intended only to refer to the sworn character of the statement ?] If that is the construction put on Section 63, the effect is to interpolate the word "otherwise " after the words " both state- ments "; but there is no right to put in words not found in the section. \_Ford, C.J. We do not interpolate, but we give a mciining to the whole section.] [Fellereau, J. The section is made for the express purpose of doing away with the necessity of evidence.] The Legislature may have so intended, but by the prOA'iso they have enacted otherwise. Gottlieb, for the prosecution was not called on. FOED Pel- LEBEAU &GoLD NET. i8a7. C.J. 'jj.j. Eegina V. Mahomed. 264 THE SUPREME COURT. i?0BD, C. J. Ford, C.J. I am fav from thinking tlie argument of the . Z™^'„ 1 learned Counsel is irrelevant — there is something in it, if you. XjEREAu I — ______ _ ^'~' _ _ . " _ (feGoLD-H-^' take the last two and a half lines by themselves and obliterate the NET. -' first part of the section. But if the section is taken as a vchole, ^^^' ' the meaning of it T think, is perfectly clear. The proviso at the Eegina end of the section requiring both statements to be within Section V. • 191 of the Penal Code refers to the statement being on oath simply, Mahomed, ^nd not to its falsity or the prisoner's knowledge or belief. I also think it is not necessary to read the words " within the meaning of the definition of Section 191" as meaning, with all the terms of the definition. Such a reading would make the proviso repugnant with the first part of the section and would reduce the section to an absurdity. That construction ought not therefore to be adopted. Construing the proviso as I have suggested, obviates all difiiculty. The conviction in my opinion should be affirmed. Pellereau, J. Section 63 when it relates to the statements, reads thus " if both statements are within the meaning of the definition of the offence of giving false evidence in Section 191 of the Penal Code." We must therefore refer to Section 191 to see what "statement" there means. On looking at Section 191 we find three ingredients necessary to constitute the giving of false evidence — firstly, the statement must be on oath or solemn declara- tion ; secondly, the evidence must be false ; thirdly, the prisoner must have known it to be false or did not believe it to be true. To which of these ingredients then does the proviso in Section 63 refer, or does it refer to all three? I am of opinion it refers only to the first — the statement being one on oath or solemn declara- tion. So read there is no inconsistency in Section 63. Another reason for so construing tbe section is the illogical consequence of another reading. The section says there shall be no necessity to prove the falsity of -either of the statement by evidence aliunde, but such a reading would always require evidence aliunde to prove both statements to be false. It was in order to get over the difficulty in English law, which required evidence to be adduced of the falsity of the statement, that this section was doubtless passed. It was intended that if two irreconcileable statements were made on oath, the one was to prove the falsity of the other. If the proviso is read as contended for, the result would be to coiivict a man of one perjury under this section, you are bound to prove him to be guilty of two. That is an absurdity, and such a reading would defeat the plain object of the section. I hold that the proviso in Section 63 refers only to the statement being on oath, and not to its falsity or the prisoner's knowledge or belief. The ruling of Mr. Justice Sheeipp i consider was right, and the conviction should be affirmed. Goldney, J. I agree with the rest of the Court and Mr. Justice Sheeipp in over-ruling the objection. Conviction affirmed. STRAITS SETTLEMENTS. 265 TENGAH CHEE NACHIAR v. NACODAH MERICAN & OKS. A testator [a Mahomedan] after bequeathing certain specific personalty, directed Penang. that "the rest" and "remainder" of his" personalty should" be divided into' five equal shares among certain persons whom he named. In another portion of the same "Will, after devising certain specific realty, he directed that " the rest and residue" of his real estate should be held in trust by his Executors for twenty-one years, who during that time were to divide the income thereof into six equal shares among the same persons as above, and another; aud after that period his Executors, were to realise and sell the said " rest and residue" of the real estate and divide the proceeds thereof into six equal shares among the same persons, There was no general residuary clause. One of the persons [the wife of the testator] who was to have a fifth of the residue of the person- alty and a sixth of the income and proceeds of the residue of the realty, died in the testator's lifetime. Held, that her oue-fifth aud one-sixth shares in the residuary, personalty, and realty respectively, did not go to the survivors of the persons aforesaid, but had lapsed and was undisposed of, and was distributable among the testator's next-of-kin according to the Statute of Distributions, as modified by the Mahomedan Marriage Ordinance 3 of 1880. This was a Special Case stated by the parties iu order to obtain the decision of the Court on a point of construction of the Will of the late Vapoo Merican Noordin deceased. The facts stated in the case so far as material to this report, were as follows : — The testator who was a Mahomedan, died in Penang on 24th July, 1884, having left a Will, dated 28th April, 1882, by which certain of the defendants were his Executors and Trustees. The executors obtained Probate of the Will on 18th August, 1884. The deceased having in and by paragraph three of his Will be- queathed to his first wife one Fatimah, otherwise called Che Mah, and her daughter the plaintiff, certain specific personalty such as jewellery, plates, linen, carriages, horses, &c., proceeded in and by the fourth paragraph as follows : " I direct that out of the rest of my personal estate all my just debts and funeral expenses, &c., shall be paid and also a legacy of ^-500 shall be paid to my second wife Moonah for her own personal use, and that thereafter the remainder shall be divided into five equal shares and paid and disposed of as follows" — then followed the names of certain persons who were to have those five shares the proportion each of them was to take ; among these the plaintiff had two shares and the said first wife Fatimah, otherwise called Che Mah, one share. The testator left a Codicil which howevei", in no way bore on the question here raised. The testator having in paragraph seven of his Will specifically devised certain of his real estate, proceeded in the ninth paragraph as follows : " I devise and bequeath to my executors all the rest and residue of my real estate in Penang, .Province Wellesley, and elsewhere, upon trust to hold and be possessed of the rest and residue of va.y real estate for the term of twenty years from the date of my death, and during such term of years, to divide the net income thereof [after deduction for repairs, collection and management] into six equal shares, and shall pay and dispose of the said net income monthly in the following manner " — then followed the names of the same persons as above [with that of certain others who between them were to have one share] with the shares they Pel- lekeatt, j, 1887. April 28. 266 'THE SUPEEMB COURT. Pel- lebbati, j. 18o7. TeN9AH Chee Nachiab V. Naoodah Mkkican & Oes. were eacli to take : among these the plaintiff was to have two shares, and the said Fatimah, otherwise called Che Mah, one share. The testator, in the same paragraph, further proceeded as follows : " Upon the determination of the said term of tweiity-oue years, my executors and trustees shall realise, sell, and dispose of, all the rest and residue of my real estate as aforesaid, and divide the same into six equal shares, and pay and dispose of the proceeds of such sale in manner following " — then followed the names of the same persons as were to share in the monthly income and in the like shares and pi-oportions. The fifth, sixth, and fourteenth paragraphs of the Will were as follows — [5] " I direct that the one-fifth share of my residuary personal estate bequeath- ed to my grand-daughter M. H. H." [one of the persons sharing under paragraph four] " shall be held by my executors who shall not pay the same until she shall marry or attain the age of 21 years, but they shall until she shall marry or attain her majority invest the same upon landed security only." [6] " I also direct that the one-fifth share of my residuary personal estate bequeathed to my sons M. H. M. and M. J. M." [two of the persons having one share between them under parargraph four] " shall be held by my executors who shall not pay over the same until they shall res- pectively attain the age of twenty-one years, and my executors shall invest the same upon landed security only" — [14] "I here- by declare that if either the said M. H. M. and M. J. M." [who between them were also to have one share of the monthly income and proceeds under paragraph nine] " shall die under the age of 21 years, leaving issue, then such issue shall take the said trust, premises, and accumulations, in substitution of their said deceased father as tenants in common, in equal shares if more than one. And if in default or failure of such issue as aforesaid, I direct that my said trustees shall hold the said trust, premises, and accu- mulations upon trust to pay the income thereof to my daughter Tengah Chee Nachiar [plaintiff] during her life, and after her death to her children." The said Fatimah, otherwise called Che Mah died in the lifetime of the testator, but the executors had regularly set apart her one-sixth share of the monthly income, and one-fifth share of the personalty ; and at this time the same had amounted to a large sum. There was no general residuary clause in the Will. The defendant Moonah was the second wife of the deceased and claimed to share with her children in the money so set apart. The question submitted for the opinion of the Court was — " What, under the circumstances narrated, became of, — or who were entitled to the shares which the testator's first wife, the said Fatimah, otherwise called Che Mah, would have got had she not predeceased the testator?" [Van Someren with him] for the plaintiff, contended her one-fifth and one-sixth shares in the residuai'y, personalty, and realty, passed to the survivors of the persons named in the fourth and ninth clauses respectively ; that those clauses in effect were separate general residuary clauses of personal and real estate respectively, and the intention of the testator was that those persons and they only should have the residue — the division into Sf RAITS SETTLEMENTS. 267 shares was only to shew how among themselves they were to take — and it would have been surplusage for the testator to have said that any of the residuary shares should go into the residue in case any of the legatees dying before him, because the law said it should. They contended that cases like Skrymsher v. Northcote, 1 Swan, 570; and Humble v. Shore, 7 Beav. 247, were distinguishable — as the intention there, judging from the language of the testator, was clear that the legatees were to take in certain proportions and not otherwise. Here the testator had provided for his second wife, and did not intend that she for one should have anything in the residue. There was therefore, no lapse, and the shares were not undisposed of. They referred to Syhes v. Sykes, 4 L. E. Bq. 200, on Appeal 3 L. E. Ch. App. 301 ; Willdnson v. Schneider, 9 L. R. Eq. 423 ; Springett v. Jennings, 10 L. E. Eq. 488, on App. 6 L. E. Ch. App. 333; Ramsay v. Shelmerdine, 1 L. E. Eq. 129; Browne v. Hope, 14 L. E. Bq. 843 ; Crawshaw v. Grawshaw, 14 L. E. Ch. Div. 817 ; Re Barker's Estate, 15 L. E. Ch. Div. 635 ; Re Spiller, 18 L. R. Ch. Div. 614; Blight v. HartnoU, 23 L. E. Ch. Div. 218; Re Ehoades, 29 L. E. Ch. Div. 142 ; Re Roberts, 27 L. E. Ch. Div. 346, on App. 30 L. R. Ch. Div, 234, and the Wills Act XXV. of 1838, Section 21. Glutton, for defendant Moonah, the second wife contended, the shares of Fatimah, otherwise called Che Mah, were only aliquot parts of the residue ; that the fourth and ninth paragraphs were not general residuary clauses so as to carry lapsed legacies ; that her shares had lapsed and were undisposed of, and this case could not in principle be distinguished from Skrymsher v. Northcote, and Humble v. Shore. The Executor-defendants appeared in person, and left the matter with the Court. Pellereau, J. Mr. Eoss contends that the principle that decides this case is Section 21 of the Indian Wills Act which is similar to the corresponding section in the English Wills Act which applies to realty what was formerly the law in regard to personalty. I agree with him so far ; but by that section the residuary is to carry everything unless a contrary intention appears from the Will. He also contends that it would be surplusage to say part of the residue is to fall into the residue, for that he says is the law. In all these cases, the duty of the Court is to try and ascertain the intention of the testator, and that intention is to be gathered from the words he has used, whether the legacy is for distinct persons or to a class. It will be found that in all cases in which jus accrescendi has been allowed as to the residue, there was a general residuary clause. Can the legacies in these fourth and ninth clauses then be looked on as general residuary legacies ? I think not. The testator does not in terms give the whole of the residue to the persons mentioned, but directs that the residue is to be divided into five shares in one case, and six shares in the other. If he gave the whole to the five persons, it might well have been said that the whole was to be divided among the survivors, in case any of those persons were dead ; but here, all the testator gives is a share to each difPerent person. Each Pel- LEEEAU, J. 1887. Tbnqah Chee Nachiak V, Nacodah Meeican & Obs. ges THE SUPREME COURT. Pbl- LBBEAtr, J. 1887. Tengah Cheb Nachiak V. Nacodah Merican & Oes. legatee gets only an aliquot part. I hold therefore that far from these persons being general residuary legatees, there is a contrary intention to be found in this Will, limiting the legacy of each person to the share given. If corroborative evidence of intention were required, I think clauses five, six, and fourteen shew clearly that each legatee was to have only an aliquot part, quite inde- pendently of the other persons. As to clause three, it is clear the plaintiff is entitled to the whole of the property comprised therein by right of survivorship — the Court accordingly finds that she is entitled to the bequest therein made [to all the subjects of that bequest] by joint tenancy ; but in rogard to the fourth and ninth clauses submitted for the consider- ation of the Court, the Court finds the shares [in both realty and personalty] to Tatimah, are left undisposed of by the Will, she having predeceased the testator — these bequests have lapsed and have now to be distributed among the testator's next-of-kin according to the Statute of Distributions, as modified by the Mahomedan Marriage Ordinance 3 of 1880. The costs of all parties must come out of that part of the estate disposed under clauses four and nine as between Solicitor and client. Decree accordingly. BROWN V. TAYNAPPA CHBTTY. Sinoapobe. POKD, C. J. 1887. May 7. The general provisions up to trial of the Civil Procedure Ordinance 5 of 1878, are not applicahle to Small Causes under Section 31 of the Ordinance as amended by Ordi- nance 8 of 18.S0, except those specially applied by Clause 4 of the section. A party to a Small Cause cannot therefore obtain under Section 289 of the former Ordinance, disco- very from his opponent of documents in his possession. This was a Small Cause. The defendant took out a summons in Chambers for an order under Section 289 of the Civil Procedure Ordinance 5 of 1878, directing the plaintiff to make discovery on oath of all documents which were or had been in his possession or power relating to the matter in question in the case. The question was, whether that section applied to a Small Cause. Donaldson, for the plaintiff, referred to Section 31 of the Ordinance, 1878, as amended by Ordinance 8 of 1880, and con- tended that such causes were to be tried summarily subject to the clauses in that and the following Sections 3 1a to 31i; that by Clause 4 the provisions of Section 36 and of Chapter V of the Ordinance, 1878, were declared applicable to Small Causes; the inference therefore was that the general provisions of the Ordi- nance, 1878, were excluded : the proceedings in a Small Cause were to be summary, but if the general provisions applied, interroga- tories and other expensive procedure would be introduced, and the name " summary " would be a misnomer; that Section 31g pro- vided for any difiiculties, and empowered the Court to strike out Small Causes, and place them on the general list, and after that they could be proceeded with as ordinary suits with all the pro- cedure of the Ordinance of 1878. STRAITS SETTLEMENTS. 269 Drew, for defendant, contended that all the powers in the Ordinance, 1878, were applicable to Small Causes unless expressly negatived, and were incorporated by Section 28 of the Ordinance, 1880. ^ [Ford, C.J., said there was a strong inference to the contrary.] It was true, it was provided that there should be no pleadings in Small Causes, but whether the case was one for §100 or for a very large amount, there should be the same facilities for getting up the case. [Ford, C.J., said that was so, but under certain circumstances a party could get the case transferred under Section 31g, and he thought the idea of the Ordinance of 1880, was that parties were to come into Court on a summons and statement of defence.] The Registrar referred to Clause 16, Section 31 of the Ordi- nance of 1880. [Ford, C.J., said that clause distinctly stated the cause was to go to trial on the summons and endorsements and notices there- on — bnt here the defendant wanted discovery in a Small Cause.] The right to discovery had not been taken away. Ford, C.J. The Ordinance, 1880, says that certain parts of the Civil Procedure Ordinance, 1878, are to apply to Small Causes. The expression of one is the exclusion of the other; and looting at the provisions for trying cases not suitable for trial on a mere summons and statement of defence [vide Section 31g.], I cannot but think that the general intention of the Ordinance, 1880, was to exclude all other procedure under the Ordinance of 1878, except that specially applied to it. Under Section 31f. you can even have a rule made to meet any difficulty arising from this limitation. The summons is dismissed, the costs to be plaintiff's in any event. Summons dismissed with costs. Ford, C. J. 1887. Bbown V. Tatnappa Chettt. FEASER & CO. V. NETHERSOLE. Ford, C. J 1887. May 2G. GOLDNET, J. October 25. The Court will not grant an interim injunction to restrain a person from using a Sinqapoee. trade-mark, unless the plaintiff by affidavit, establishes an exclusive right to the mark, as well-known to the public — per Ford, C.J. The Trade Marks Act, 1883 [46 & 47 Vic. Cap. 57] is not in force in this Colony by virtue of Section 6 of Ordinance 4 of 1878 ; and no authority exists here from whom an exclusive right to a particular trade-mark can be obtained, — but such right is wholly dependant on the general principles of Commercial Law — -per Goldney, 3. By the principles of that law as soon as a trade-mark has been employed in the market so as to indicate to purchasers that the goods to which it is attached, is the manufacture of a particular firm, it becomes to that extent the exclusive property of that firm, and no one else has a right to copy it, if by so doing unwary purchasers may be induced to believe that they are getting the goods of the particular firm — per Goldney, 3. The question how far the plaintiffs' exclusive right has been [infringed depends upon how far the defendant's trade-mark bears such a resemblance to that of the plain- tiffs', as to be calculated to deceive incautious purchasers : the introducing of one or two colourable variations will not make the copy the less an infringement — per Goldney, 3. In such a state of facts, it is not necessary to the plaintiffs' success that the defend- ant should have intended to misl&aA— per Goldney, 3. This was an application by the plaintiffs for an order that the defendant, his servants and agents, might be restrained by injunction, from selling or exposing for sale or procuring to be 270 THE SUPREME COURT. FoBD, C.J. gold any Soda-water in bottles stamped or moulded in the manu- ^°^im^' ^' f acture with the words " Singapore and Straits Aerated Water Co.," and the plaintiffs' trade-mark of a lion rampant between two Feaser&Co. shields, or in any other bottles having affixed thereto such labels Netheebole ^^ ^" ^^^^ ^^^^ affidavit mentioned, or any other labels so contrived ' or expressed as by colourable imitation or otherwise to represent or lend to the belief that the Soda-water sold by the defendant is Soda-water manufactured by the plaintiffs. It appeared from the affidavits that the plaintiffs among the many empty bottles returned in the usual course of their business, had found some of their own bottles had been used with ' the defendant's label which was alleged to be a colourable imitation of that of the plaintiffs. W. Nanson, for the plaintiffs contended, that in Singapore where the native community could not read English, the use of a name in Roman characters did not prevent deception. He refer- red to Henderson v. Forss, in Sebastian's Digest of the Law of Trade Marks, 36, before V. C. Wood, cited also in Lloyd on Trade Maries, and in the 4th Edition oi Seton on Decrees, 236, 294. Hen- nessy v. White, decided in the Supreme Court of Victoria in 1869, Ahhotv. Baher's Tea Associatio7i Limited, in W. N. 1871, p. 207, and 1872, p. 31 ; and Sebastian, 236. He contended that user at Common Law, established a trade-mark ; that the article was in the market as a vendible commodity, with the label affixed to it, was enough. The English Act of 1875 referred to registra- tion and the registration was made by the second section equiva- lent to user. Here by beginning to use the mark, a right of pro- perty was acquired in it. It was not necessary to advertise it ; as long as it was used, length of user was not necessary, McAndrew V. Bassett, 33 L. J. Ch. 566, s.c. 4 De G. J. & S. 380. The plaintiffs had established a user by course of time — the defendant had imtil quite lately his own label, and lie changed it to one at the least infinitely more like the plaintiffs' label and without reason for alteration — the necessary inference, as said in Taylor v. Taylor, 2 L. R. Eq. 290 was, that it was done for the purpose of misleading; Orr Ewing a.nd Co. v. Johnston, 7 L. E. App. Ca. 219, and Stephens V. Peel, 16 L. T. [N. S.] 145, were also referred to. In an early case in 1843, Croft v. Day, 7 Beav. 84, the Master of the Rolls spoke of general resemblance and the elements of fraud, such as similarity of colour, size, and shape — Welch v. Knott, 4 K. & J. 747, a Soda-water case where unintentional resemblance was held to be wrong. Here the defendant had used the plaintiffs' bottles with his imitation label which helped to mislead. He asked for an interim injunction. . ' Drew, for the defendant said that it was not necessary to refer to the bottles as it was understood that the application was now confined to the labels. All the defendant's lables were of the same shape. The plaintiffs said they had used their label for over two years. The defendant's labels had been used since 1st April last for all his mineral waters. The labels of the plaintiffs, for all other kinds than Soda-water, were of a different shape. As to the label, the plaintiffs did' not ask for STRAITS SETTLEMENTS. 271 protection of a trade-mark, tliey could scarcely ask that no one Fobd, C. J. should use a label of a similar size and colour. The essential ^"^J'g'^y^' ^' feature of their mark was a lion rampant. ' [Ford, C. J. Yon have same shape, size, and colour and same Fbasee&Co. general design.] Nethebsole. We have a number of labels and only one happens to resemble the plaintiffs'. [Ford, C.J. They have a right to object to the use of any mark so made as to deceive an ordinary intelligent purchaser.] They should register in London . By the Civil Law Procedure Ordinance of 1878, Mercantile law applies here. They should give public notice. [Ford, C.J. They could still rely on Common law rights. They could prove exclusive user and a known mark.] They have not shewn that any person has been deceived. [Ford, C.J. This is not necessaiy, but they might have shewn that the mark has a special value in the market.] The plaintiffs have not shewn an exclusive user to establish his case at Common law, and that it is known iu the market by the label. [Ford, C.J. Alter the colour of your lable from red to yellow and you can settle it between you. I think plaintiffs should shew more than a user, it must be shewn that it is known by the public, who cannot be deceived, unless they know the mark. ]!fo great damage can occur between this and the hearing, and this is an application for an interim injunction. It is so easy to change the colour.] The defendant had altered his labels because a Chinaman had copied all his labels, and he had ordered a new label from Bristol and this pattern had been sent. If the plaintiffs paid him what his labels cost, about £10, he would change his. Ford, C.J. I cannot allow the interim injunction that has been asked for — first because plaintiffs have not so far as is before the Court established an exclusive right to this label, as well- known to the public. At present it is only stated in the affidavit that they have manufactured and sold with this label for over two years. And also in this case no serious injury can be done by the matter standing over to be tried at the hearing. Defendant's costs of this application to be paid by the plaintiffs if they fail in the action. No costs of this application in any event. The case was subsequently tried before Goldney, J. The facts and arguments sufficiently appear in the judgment. W. Nanson, for plaintiffs. Drew, for defendant. Cur. Adv. Vult. October, 25. Goldney, J. In this action the plaintiffs claim an injunction against the defendant, restraining him from selling Soda-water in bottles having affixed thereto, labels designed by colourable imitation or otherwise, to represent or lead to the belief that the Soda-water sold by the defendant is manufactured 272 THE SUPREME COURT. Ford, C, J. by the plaintiffs. The plaintiffs and the defendant are rival ^"Ts^?^'"'^ manufacturers of Soda-water in Singapore. The plaintiffs, whose ^^ business in Singapore is one of considerable standiAg, are also Peabeb&Co. exporters of Soda-water to Penang, the Native States, Sumatra, "• and other places. Netheesole. '^ Some two years ago the plaintiffs adopted a crescent shaped red label for their bottles, with the words " soda-water " printed on it in large white capital letters and having between the two words " soda " and " water " a round white shield or disc upon which there is the figure of a lion rampant encircled by the words " Singapore and Straits Aerated Water Co." The lion and these letters are printed in red. Beneath the words "soda" and "-water" some directions are printed in small white letters. At the time that the plaintiffs adopted this label, the defendant was using and continued to use up to April this year long oblong labels with the words " Nethersole and Co.," in large black letters on a red ground. This label was not similar to the plaintiffs' label and could be easily distinguished from it. In April, the defendant affixed to the bottles containing Soda-water manufac- tured by him a label in every respect similar to the label the plaintiffs had in use, with the exception that instead of the shield or disc containing a monogram and in place of the directions printed in small white letters on the plaintiffs' label there are the words "Manufactured by Nethersole and Co., 23, High Street, Singapore." These words are of the same size and arranged in the same way as the directions on the plaintiffs' label. On the defendant adopting this new label, these proceedings were in- stituted by the plaintiffs. The defendant maintains in defence to this action — first, that Section 6 of Ordinance 4 of 1878 [Civil Law] incorporates the Patents, Designs and Trade Marks Act, 1883, Section 77 [46 & 47 Vic. c. 57 ] and that as the plaintiffs have not registered their trade-mark they are not entitled to institute any proceedings to prevent the infringement of it ; secondly, that the plaintiffs had not acquired any exclusive right to the label ; thirdly, that the label was not similar in shape, colour, and design to the plaintiffs' label. As to the 1st point, in this Colony there is no law or Ordinance establishing the registration of trade-marks and no authority exists from whom an exclusive right to a particular trade-mark can be obtained. The rights of the parties in actions which have reference to trade-marks are therefore dependant upon the general principles of the Commercial Law. This I understand to be the meaning of Section 6 of Ordinance 4 of 1878. Before I could say that the provisions of the English Trades Marks Act were incorporated among the Ordinances of this Colony in the wholesale way suggested on the part of the defend- ant, I should require words more specific than those used in the section referred to above. As to the 2nd point, the law is clearly laid down in the last reported case decided on trade-marks — Somerville v. Schembri, 12 STRAITS SETTLEMENTS. 273 L. K. App. Ca. 456. Lord Watson in givinQf tlie iudgment of the Foed, C. J. Privy Conneil, says : issr ' " These principles have been very fully illustrated and explained by the j, . „ House of Lords in The Leather Cloth Co., Ld. v. American Leather Cloth Co., ^ Ld., 2 H. L. 0. 538; Wotherspoon v. Currie, 5 L. R. H. L. 508; Johnston & Nj-theesolb Co. V. Orr Eioing & Co. 7 L. R. App. Cas. 219, all of which cases arose before the passing of the first British Trade Marks Regulation Act in the year 1875. In the first of these cases the interest which a merchant or manufactm-er has in a trade-mart which he uses was thus defined by Lord Ceanwoeth : ' The right which a manufacturer has in his trade-mark is the exclusive right to use it for the purpose of indicating where or by whom or at what manufac- tory the article to which it is affixed was manufactured. As soon therefore as a trade-mark has been so employed in this market as to indicate to pur- chasers that the goods to which it is attached are the manufactur-e of a particular firm, it becomes to that extent, the exclusive property of the firm and no one else has a right to copy it or even to appropriate any part of it if by such appropriation unwary purchasers may be induced to believe that they are getting goods which were made by the finn to whom the trade- mark belongs '." In the present case I find that the plaintiffs' label is employed by them in the market to indicate to purchasers that the Soda- water to which it is attached is the manufacture of their firm and that it was so employed some two years before the defendant commenced to use his present label. By such usage the label has become to that extent the exclusive property of the plaintiffs. The real question therefore, is that contained in the 3rd point raised by the defendant, viz., has the defendant infringed the plaintiffs' exclusive right? and that question as Lord KiNGSDOWN said in the Leather Cloth Company Case depends upon how far the defendant's trade-mark bears such a resemblance to that of the plaintiffs as to be calculated to deceive incautious purchasers. Upon this part of the case I entertain no doubt. I think on the facts it is impossible to say that the defendant adopted his present trade-mark for the purpose of indicating by whom the Soda-water to which it is affixed was manufactured, — did away with his existing trade-mark which was quite dissimilar to the plaintiffs and adopted a new one of the same size and shape and colour with those used in their trade by the plaintiffs' firm — and the device or lettering on the label is an exact copy of the plaintiffs' label with one or two colourable variations. Again to use the words of Lord Watson in Somerville v. Schembri, " whilst retaining all the essential features of the label the defendant has introduced certain differences which may very fairly be described in the language used by Lord Blackburn in Johnston and Co. v. Orr Ewing and Co., 7 L. E. App. Ca. 230. These are differences which might prevent purchasers being deceived. I do not think they are such as to prevent its being likely that they would be deceived." In that state of the facts it is not necessary to the plaintiffs' success that the defendant should have intended to mislead; but I think that it is impossible to acquit the defendant of that intention. Judgment will be for the plaintiffs with costs and an injunc- tion will be awarded to restrain the defendant in the terms of the plaintiffs' claim. 274 THE SUPREME COURT. MAEEABLE v. SATOW. fcember 30th for rain and inundation. There was no consensu,^ of minds as to the period or nature of the extension, no more than there was in Walker v. London & N. W. Railway Co. [supra]. In that case the plaintiff had exceeded by several months his contract time, he claimed an extension by reason of extra work and the defendants did not only consider the plaintiff entitled thereto, but actually offered the plaintiff a year's extension. The parties both there and here were indifferent by mutual consent to the period named in the contract, and yet there it was held too late to determine the contract after the date named therein. If there was an agreement for an extension it was only one the law could infer and that for a reasonable time ; but the defendant could not of his own wish suddenly put an end to the contract, for other- wise it would bring about the evil pointed out, and ought to be avoided, in Walker's Case, viz., allowing the defendant to be judge in his own cause. It was true the Court below had fixed a time, but that was not the time agreed to by the parties and the Court below admitted the difficulty in so fixing a time. So far from the defendants admitting there was an agreement for time, his Counsel in the Court below had contended that the contract being by deed could not be varied by parol ; the evidence of the defendant himself shewed if there was any such agreement that it was limited to rain ; it was only towards the end of the trial hia Counsel was bound to admit the plaintiffs were entitled to STRAITS SETTLEMENTS. 307 fourteen extra days for the basement, but even then, not that it Foed, C.J. was agreed to be given, but onty the plaintiffs were entitled to the ^°°°' 1 extra days. That was exactly Walker's Case. The defendant's lebeau [j.J. notice of October 8th, shewed his idea that the contract termi- &Gold- nated on the 30th September and there was no agreement for ''^Jgss extension. The case was undistinguishable from Walker's Case. ' Then again, if there was an agreement for an extension it was a Uno Ah Moi new contract and did not carry the incedents of the present * *^'^^- contract. Then again,if there was an agreement for an extension, Hampshire. the notice of October 20th was bad as it was prematurely given ; if the plaintiffs were entitled to time to November 10th, the defendant could not deprive him of the contract before that date. [a.] The notice was also bad as it did not give six days as required by Clause 8. The 2nd notice was served on October 15th and the notice terminating the contract given on October 20th. The first notice of October 8th was waived by the second notice of October 14th. The second notice shifted the reasons from objecting to the plaintiff's work, altered and narrowed the grounds of objection and required 40 men more to be employed on the buildings. Ross, for the respondent contended, the notice of 14th October did not waive that of the 8th. The 2nd notice was more specific than the first, but in the second the architect " insists " on the first. How then could he be said to have waived it. The question of waiver was also one of fact and had been found by the Court below in his favour. The principle applicable to waiver or renunciation of notices to quit was applicable ; and on that principle the second was not a waiver of the first unless clearly shewn or expressed — Doe v. Humphreys, 2 East 237 ; Doe v. Steel, 3 Camp. 116. The defendant had acquired a right under the first notice and could not be presumed to have given it up — the notices themselves shewed the second was a confirmation of the first. The plaintiffs had next relied on Walker v. London & N. W. Railway Go., but that case was distinguishable, Istly, because it was a special case stated by an arbitrator, of facts found by him [45 L. J. C. P. 787] and the facts being found and stated, the Court could not draw any inferences of fact as the Court below was here at liberty to do and had done. The arbi- trator there had found as a fact no agreement for an extension had been come to, the Court was bound by that finding. Here there were facts shewn in evidence and the Court thereon found there was an agreement for an extension ; this Court was bound by that finding. It had been said by the other side that the agreement was for rain only and indefinite in duration, but quid cestum est, quod certum reddi potest : the Court below, all things considered, had found a definite period ; 2ndly, Walker's Case was not well considered as the Judges who decided it took the trouble to distinguish Roberts v. ]hiry Commissioners, 4 L. R. C. P. 755, which they need not have done had they looked up the cases, as they would have found it had been reversed on Appeal, 5 L. R. C. P. 310; also as their reasoning as to the construction of their clause corresponding to our Clause 8 was inconsistent with their [a.] See MoJian v. Dun^alk Ry. Co., 6 L. E. [Ir.J 477, 308 THE SUPREME COURT. FoBD, C. J. reasoning on the preceding clause of tlieir contract, which they p°°'^' ) admitted applied to a time after as well as before the expiration LEEEAuljJ. of the contract [i L. E. C. P. Div. 522, 530-531]. The ratio &GoLD-( decidendi of that case was therefore absurd and this Court being NET, a Court of Appeal was not bound by that case which was only ' the decision of a Divisional Court [a. J The ground pointed out TJng Ah Moi in the Court below as to the use in Clause 8 of the word " penal- & Ors. ^igg " -vyhich could only have reference to that word in Clause 3 Hampshire, which could Only apply after September 30th was also a reason for distinguishing this ease from Walker's. There was nothing in the report of that case to shew there were not other clauses in the contract there, which used the word penalty, to which their clause corresponding to our Clause 8 might not have applied. The extension of time carried the provisions of this contract with it, including Clause 8 — Bury Commissioners' Case, 5 L. R. C. P. Div. 318, 19. But if there was no agreement for an extension, and Clause 8 did not apply on the authority of Walker's Case, then Clause 9 which was clear and unambiguous applied, and the defendant had authority to determine the contract by reason of the plaintiffs' breach. Thomas, in reply contended, as to the use of the word "penal- ties " in Clause 8, the case was identical with Walker's as it was limited to penalties for " non-fulfilment of contract " and not penalties generally. As to the notice the test was, if the work- men had been employed by the plaintiffs under it, was not the defendant feoMM^ to let them go on? If so, the first notice was at an end. The defendant had not given the plaintiffs their full time to see If they would employ the men, as he determined the contract on the fifth day. Walker's Case could not be distinguish- ed ; there was no more " agreement " here for an extension than there was then : in both cases the parties had gone beyond the time, but not by agreement. Cur. Adv. Vult. August 23rd. Ford, C.J. I agree with the decision of the Court below and for the reasons therein given. I had for some time difficulties [1] on the efEect of the notice of the 14th October [served on the 15th] and [2] with the bearing which Walker v. The L. '& N. W. B. Company had on the case. I think however, in addition to what has been said on this subject by the Court below that the notice of the 14th may fairly be said to have operated only as a prolongation of the time necessary before determining the contract under the notice of the 8th,— a prolongation of the time until the carpenters and workmen were supplied— but terminable at any time the defendant had reason- able ground to think these could not be forthcomino-. He cer- tainly had such reasonable ground by the 20th, the date when he puts a termination to the coHtraet. I The case of Walker v. L. & N. W. B. Company is I think certainly distinguishable in this, that there was in 'that case no [a.] Walker v. L. & N. W. Ry, Co. was affirmed on appejil^See 36 L T. fN S 1 53, 58 note, •!,'••=! STRAITS SETTLEMENTS. 309 Hampshire. definite understanding as to au extension of time. In this case Fobd,C. J. there was clearly such an understanding, and in some particulars, ^°°"' ] e.g., that for wet weather and 14 days for other matters, a good mbeati I J.J. parol agreement. Had there been a definite agreement for an AOold-I extension in Walker's Case, I apprehend the decision of the Court ^^7'^ would have been the reverse of that which it was, although the __ language of the judgment is perhaps open to exception. The XJng Ah Moi Court seems there certainly to have overlooked the effect of the * O™- double set of clauses, one having reference to breaches before and the other to those after the expiration of the day for completion of the contract ; and there is, I think, some ambiguity in the summary of facts, and the reasoning based on them. I apprehend, however, that the Court would have come to a decision contrary to that which it did, if there had been, as in this case, an arrange- ment for extension on some definite basis — ^that in such case the contract would have gone on with all its other incidents. I do not certainly understand the Judges in Walker's Case to have held that an extension of time vitiates any other part of the contract than that with which such extension has connection ; and I do not see any sound reason for holding that such extension should vitiate the terms of a contract as to proper progress being made. This can be made during the original and extended time; and even could the extension of time operate to create a new contract, generally such a condition would be an implied term of it. lam, however, of opinion that the extension of time varies the original contract only in that particular, and in incidentals dependent upon such extension. Such rate of progress as the architect shall think proper is not, I think, one of such incidentals. Wood, J. In this case two difiiculties have presented them- selves to my mind, the question of notice and the authority of the case of Walker V. The L. & N. W. Railway Co. with which questions I now proceed to deal. The fii'st notice of the 8th October I consider good, for it is expressed fairly in the terms mentioned in the agreement ; but then it becomes a question whether the 2nd notice, if notice it can be called, of October I4th delivered on October 15th, five days and not six, before the notice putting an end to the contract is or is not a waiver of the first notice. This I take to be a matter of fact and of law. The facts have been found by the Court below in favour of the defendant, and the only law in the matter is the construction of the meaning of this 2nd notice. This 2nd notice is given, not by Dr. Hampshire, but by the architect, and does not necessarily bind the defendant unless he was cognizant of it at the time it was given, and of this there is no evidence. While looking at the terms of this 2nd notice, it by no means follows that it was in terms a waiver of the first notice, but rather the reverse — [Exhibit B. 6 read]. The language of this letter which does not purport to be a notice at all, I look upon as consistent with the fact that no waiver was intended. The case of Walker v. L. & N. W. Railway Co. is apparently a case which does not favour the defendant, but I think it is 3i0 ' TitE SUtREMiJ COtJR*r. FoED, C.J. fairly distinguisliable from this case for the reason given in the Wood, -j judgment of His Honour the Chief Justice Here, as I appre- LEEBAu t-J.J. hend the facts of the case shew that although the original &GoLD- 1 contract was under seal, yet the parties have from the first agreed ''^^Isas *° waive the completion of the works on the 30th September. ■ At first by an absolute pledge on the part of Dr. Hampshire to Ung Ah Moi allow time for rainy weather aud incidentally by the imposition &Obs. Qf fresh work to which the plaintiffs make no objection. I Hampshibe. understand them to have varied the contract as to the time of completion, but to have acted on the terms of the contract in all other particulars, and the contract is finally determined by Dr. Hampshire consistently with the provisions of Clause 8 of the original contract. If the case of Walker v. L. & N. W. Railway Co. is opposed to this view, I am sorry to be obliged to express an opinion contrary to its authority [a]. I fail to see how in that case time could have been considered as the essence of the contract when the parties had agreed to waive it — but at least so far as the facts of this case are concerned I think it abundantly clear that the parties had not only waived, but actually come to an understanding by which the time for the completion of the contract was to be extended under certain circumstances, but consenting to follow its provisions in all other particulars. Pellereau, J. T am confirmed in the view I took of this case in the Court below. I think it is clearly shewn from the facts that there was an extension of time agreed upon. After the 30th September, it was not a different but the same contract unmodi- fied in any respect except the date for completion. In fact, what was the contract going on ? The same contract of course, though the circumstances shew it had been modified as to time. I am bound to come to the conclusion that except as to the time, the contract was in force with all its incidents including Clause 8. That clause I consider was in force up to the final period agreed upon — not the 30th September, but the deferred period, the 10th November. Then with regard to the second notice being a waiver of the first. Dr. Hampshire encloses in his letter Scharenguivel's first notice. By that notice he had acquired a right. Has he done anything from which it may be fairly argued he had renounced his rights* Such renunciation must be proved, it is not to be lightly presumed; I find nothing on the facts that shews a renunciation. On the contrary, Scbarenguivel by his second notice insists on the first notice and Dr. Hampshire adopts his acts. I can see no reason why the second notice should be considered a waiver of the first. I am, as I said, confirmed in my view, and in my opinion the judgment should be afiirmed. Goldney, J. I concur in the judgment delivered by the Chief Justice. Judgment affirmed. Appeal dismissed with costs, [b.] [«.] See note [a.] antfe p. 30S. [*.] Leave was given to the plaintiffs to appeal to Her Majesty in Her Privy Council, but the appeal was not prosecuted. — J. W. N. K. STRAITS SETTLEMENTS. 311 ISMAIL BIN SAVOOSAH v. MADINASAH MERICAN & ANOR. The words " cause of action arose " in the Limitation Act 14 of 1859 imply that there must be a person in esse capable of suing before the Act can begin to run. Where therefore a person takes possession of land after the death of the rightful owner and holds the same for over twelve years he acquires no title under Section 1, Clause 12 of the Act if administration has not been taken out, and the Act only begins to run in such a case from the date of the grant of such administration. The rule is the same in this respect as to pure personalty and chattels real ; but such land even in the hands of the person so in possession is of the nature of chattels real under Act XX. of 1837, and the administratiea-of the rightful owner may maintain ejectment for it at any time icilJiin twelve years of the grant of administration. The Statute 3 & 4 Wm. IV. c. 27, Section 6, has uo application to such a case as it is covered by the language of Section ], Clause 12 of the aforesaid Act 14 of 1859. Jemalah v. Mahomed AH ^ ors. 1 Kyshe, 386, over-ruled The passage and Indian decisions cited in Thompson on Limitation [2ud Ed.] 150, to the effect that the plaintiff must shew actual possession within twelve years have no authority here inasmuch as they rest on the provisions of the Procedure Act 8 of 1859, Sections 32, 525, Clause 4, and such Act [Section 385], is expressly confined to Bombay, Bengal and Madras, and is not in force in this Colony. Those decisions are also no authorities here on the words " cause of action arose," in the Limitation Act 14 of 1859, but the English authorities on Statute 21, Jas. I c. 16, and the old law of Limitation prior to 3 & 4 Wm. IV. c. 27, are. Query. \_Per Wood, J.] Whether the rule in England in respect to the Court not acting on the uncorroborated, but uncontradicted statement of a living claimant against the estate of a deceased person is so general, fixed, and inflexible as declared by Jessel, M. E. and JBaggallay, L. J. in re Finch, 23 L. E. Ch. Div, 267 ? Appeal from the judgment of Ford, C.J. in favour of the defendant in an action of ejectment. The plaintiff was the administrator of one Noorsah deceased, who at the time of his death was the owner of the lands sought to be recovered in the action. The defendants, the administrators of Syed Merican deceased, were in possession of the land. Under the statutory plea [Section 165, Civil Procedure Ordinance 5 of 1878] of pos- session, they claimed to set up a title to the land by reason of their own and Syed Merican's continuous possession for a period of time exceeding twelve years — in other words that by the operation of the Statute of Limitations, they had acquired a title and the plaintiff had lost his and was barred. The Court below decided in favour of the defendant and from that judgment the plaintiff appealed. The ground of appeal was that the Statute of Limita- tions did not commence to run against the plaintiff's right, until and /rom the date of his obtaining from the Court, Letters of Administration . The Court below following the Law of Limitations as it is in England, held that the Statute commenced to run from the date of the intestate's death. No question was raised in this Court as to whether the possession of the defendants under the circumstances of the case was fiduciary or non-adverse. The Court below had found as a fact that the defendant's possession commenced after the death of one Inche Bissy the onginal administrator of the intestate Noorsah deceased. This Court, in the course of the arguments intimated its concurrence with that finding. The Appeal now came on to be heard before a Full Bench, consisting of Ford, C.J., Wood, Pellereau and Goldney, J.J. SiNOAPORE. Ford, C. J. 1887. November 1. ,tin-^ 312 THE SUPREME COURT. Ford, C. J. The facts, arguments, and authorities cited so far as is material, ^el''" ] ^^^ mentioned in the judgments of the learned Judges. LEBBAu Ij.J. Bonser, [Attorney-Genei-al] for the appellant. ^°^"'J Davidson, for the respondents. 1887. Cur. Adv. VuU. Ismail bin Satoosah V. Madinasah Mekican & Anor. November 7th. Ford, C.J. The facts of the case are so concisely set out in the judgment of the Court below, and the iinding of that Court upon them having been affirmed during the hearing by this Court, that I need not refer to them again. But upon the question of the law which has been argued at such great, but not, I think, unnecessary length, I do not think myself justified in dissenting from the unanimous decision of my colleagues, which is, that my decision in the Court below was erroneous. I should feel less justified in doing so even had I stronger doubts than I have on the question after the admission of that Court of the difficulty of the question submitted to it and the strength of the authorities and arguments brought before us altogether upon somewhat different lines from those taken in the Court below. I give, I confess, my concurrence in this decision with reluctance, because of the great inconveniences which may arise from it, and because I have no doubt the law ought to be that which it no^v is both in England and in India, and I concur in the hope about to be expressed by my brother, Mr. Justice Wood that the Legislature at an early date will so render it. All my brother Judges are of opinion, that the words in Clause 12 of Section 1 of the Indian Limitation Act 14 of 18-59, still in force in this Colony, when construed in the light of the English authorities •[and there is no contrary decision in the Indian Courts] cover the case of an administration of chattels real, and that having by the language used so covered it, no question arises as to the application of the 3 & 4 "Wm. IV, c. 27, Section 6, either substantively or by way of analogy. In this view of the effect of those authorities I am bound to concur, although of opinion that the provisions of the Act of 1859, have covered the case of an administration of chattels real, rather by force of language previously somewhat loosely construed in the Enghsh Courts than by force of mental intention. The language of the Indian Act, Clause 12, Section 1, is that the period of limita- tion to suits for the recovery of immoveable property, or of any interest in immoveable property to which no other provision of this , Act applies, is the period of twelve years from that time in which the cause of action arose, and the authorities which I have collected in the following brackets, without drawing any distinction between pure personalty and chattels real [Douglas v. Forrest 4 Bintr. Eep. 686, 704 ; Mvrray v. E. I. Go. 5 B. & Aid. 204 ; Saffigu v. °Adams, Cro. Jac. 61; Gary v. Stephenson, 2 Salk 420; Pratt v. Swaine, 8 B._& C. 285; Perry v. JenUns, 1 M. & C. 116] have determined that such words as "cause of action" [Statute 21 of James I. c. 16] "cause of action accruing," [form of plea in Murray V. F. I. Go.'] and other words of a similar nature such as " right of action accruing " when used in .'pari materia alike imply that STRAITS SETTLEMENTS. 313 there must be a person in esse capable of suing before the Statute can begin to run — [Douglas v. Forrest, 4 Bing. 686, 704]. With reference to those cases cited in Mr. Thompson's book on the Indian Statute ruling that the plaintiff must shew actual dispos- session within twelve years, this obligation seems to rest on the provisions of a Procedure Act VIII. of 1859, Sections 32 & 525, Sub-section 4, an Act expressly [Section 385] confined to Regula- tions in Bombay, Bengal and Madras, not in force in this Colony, and are not, I think therefore, decisions as to the construction of the words " cause of action arose." One of these cases indeed, Bhiloo Mundul and others, defendants [appellants] v. Mootu Jail Ghose Mundul, plaintiff, [respondent] 9 W. E. 252, does seem to ■ draw a distinction between the date on which the plaintiff's " right to sue accrued," and that from which the " cause of action arose " and the distinction is confused from using the expression " cause of action accrued " as synonymous with " cause of action arose." I am compelled therefore upon the English authorities of construction, to concur in the reversal of the decision of the Court below. The contention of the respondent that this property remained in the nature of freehold in the hands of a possessing owner, arid that therefore the Statute would run as in the case of an heir, is, I think disposed of by the language of the Indian Aot of 1837 which makes land devolve on executors and administrators as chattels real for purposes of distribution. Wood, J. In this case referring to the judgment of the Court below, it is found as a fact upon the evidence given by the plaintiff that the defendant entered into possession of the land in question after the death of Inche Bissy, and upon this it is con- tended on behalf of the defendant, on the authority of In re JFinch, 23 L. R. Ch. Div. 267, that it is a Rule of Law that a claim upon the estate of a. deceased person by a living one cannot be sustained upon the undisputed testimony of the claimant. This rule is certainly propounded in explicit terms by Jessel, M. R. and by Baggallay, L. J., and in somewhat modified terms by Lindley, L. J. Jessel, M. E., p. 271, says : " I cannot find that anybody ever laid it down that the law or the doc- tz'ine that a claim against a dead man's estate should be supported by some- thing more than the uncorroborated testimony of the claimant, is confined to gifts. It is the first time I ever learned such a doctrine as this I have heard it decided over and over again in reference to the payment of a debt, and it is a mle of prudence that sitting as a Jury we do not give evidence to the unsupported testimony of the claimant with a view no doubt of prevent- ing perjury, and with a view of pi-otecting a dead man's estate from vmfound- ed claims. It is not a rule of law, but it is a question to be decided by a Jury, although the Judge must recommend the Jury not to trvstthe uncorroborated evidence ; but still, if they had, I do not know that any one could interfere with their verdict— but where we are sitting here as a Jury, we apply that rule to ourselves." Baggallay, L. J., p. 274 : " The circumstances of the case appear to me to afford a very good illustration of the value of the rule recognised by our Courts in administer- FoBD, C; J. Wood, • Pel- LEREAtr l-J.J, & Gold- net. J 1887. Ismail bin Savoosa V. Madinasah Meeican & Anoe. 314 THE StrPREMB OOUHT. FOED, C. J. Wood, \ Pbl- leeeau ^j.j. & Gold- | NET. J 1857. Ismail bin Savoosah V. Madinasah Meeican & Anok, ing the estate of a deceased person, namely, not to allow against that estate any claim which is supported only hy the parol testimony of the claimant, without any coiToborative evidence whatever." Lindley, L. J., p. 766, says : " This is a claim made by a living person against the estate of a person who is dead. It is a rule — and it is a sensible rule — to require, before giving weight to the testimony of the living claimant, that such testimony should be corroborated in some way or another. If this case had been tried before a Jury and the Jury had found in favour of the claimant, I am not prepared to say that there would be any principle of law to enable us to set aside the verdict ; but when we have not had the advantage of having ] 2 men in the box, the ordinary practice of the Court is to be very reluctant to give efBect to the uncorroborated statement of anybody as against the estate of a deceased person." Whether or no this rule can be taken to hold good in the general terras above quoted I think it hardly necessary to consider, inasmuch as when applied to the circumstances of this case, the assertion of the plaintifE cannot as it appears to me, be held to be uncorroborated. This is a claim in respect of land and if the defendants claim, as I understand they do, to have been in possession by virtue of some sale to their intestate from Noorsab, inasmuch as deeds of sale would necessarily exist when the owner- ship of land has passed from one person to another, the absence of such deeds is, in my judgment, such corroboration as may be held to take the case out of the rule above extracted from the judgment of the Court in the case of In re Finch, even supposing the rule to be so fixed and so inflexible as therein propounded by Jessel, M. E. and Baggallay, L. J., of the soundness of which I trust I may not be presuming too far when I say that I entertain considerable doubt — a doubt which would preclude the extension of /the rule to circitmstances, as in this case, so difBerent from the circumstances in In re Finch — and in particular where, as in this case, the rule is applied to land and not to a title to goods ; and I may add that there is in the case a technical, if not a substan- tial corroboration in the evidence, of an attempted but not a completed sale of the land in question. The only other point which is in my judgnient, material, is that which has been argued at such great length in the case, viz., whether in an action by an administrator for the recovery of land in this Colony, — where, by the Indian Act 20 of 1837, all immoveable property is declared so far as regards transmission on the death of any person, to be of the nature of chattels real and not of freehold, — the Statute of Limitations [applicable here by the Indian Act 14 of 1859] begins to run from the time of the grant of the Letters of Adminis- tration, and not from the time of the possession of the land by the defendant, assuming it to be a dispossession in the ordinary sense of the word, and without regard to the special character of the possession alleged by the plaintiff in his evidence, upon the simple ground that for want of a person capable of suing no cause of action can ari^e. Upon this point I consider myself bound by the authority of Mwray v. E. I. Co., 5 B, & Aid. 204, which I understand to be S'TRAif s SUTTLBMENTS. 3l5 undisputed law up to the present day with respect to chattels, not chattels real, and with respect to chattels real up to the time of the passing of 3 & 4 Wm. IV. c. 27. By this Act, Section 6, the law is reversed with respect to chattels real in England, so that the period of limitations runs from the death and not from the grant of Letters of Administration, but no similar law has ever been enacted so as to have effect in this Colony, and the language of Sub-section 12 of the Indian Limitation Act 14 of 1859, being similar — to use the words of Abbot J., 4 B. & Aid. 215 — " notwithstanding any slight variation in phrase, the object and intention being the same" — to those of the Act referred to in that judgment, we are I think, bound by the decision in that case. It is with much regret, bearing in view the inconveniences which will probably result from our decision, that I am obliged to hold that we can neither import into the case the Act of 3 & 4 Wm. IV. c. 27, Section 6, nor decide in analogy with its provisions, except with respect to what has been called in the Colony the " Ecclesiastical " jurisdiction of the Court and the obligation to exercise it with due regard to the religious opinions and customs of the native races, which is the subject of special mention in the Charters referred to. I have always considered that this Court is bound by the law of the Colony, and that however, we may consider that law to be defective, or even mis- chievous in its consequences [unless indeed that mischief be in extreme cases productive of such grievous wrong as to be prac- tically inapplicable] our mere sense of the law being unsuitable and inconvenient, and our desire to improve it cannot justify any forced modification of such law. In this case I can see no such grave reason as would make the law which prevailed in England in 1821 productive of such injustice as to justify any deviation from it. The law of the Colony, I take to be the law of England ' as imported into this Colony by the Charter of 1827, [though even as to this date some doubts may not unreasonably be entertained] modified by the Indian Acts passed since the period of the intro- duction of the English law, and having reference to this Colony — and by the Ordinances of the Colony of the Straits Settlements — and by English Statute Law in terms, or by reasonable inference, applicable to this Colony, and that the expressions in the various Charters and Ordinances which make it incumbent upon the Coui't to administer the law so as to secure justice and right, give us no power either to apply new English or any other law to any case which occurs in our Courts or to decide in analogy with it. Many points were raised in the arguments before us, but as the considerations above detailed are, as it seems to me, sufficient for the right determination of the case before us, I do not enter upon them, but I should say in reference to the rule propounded in the Indian cases cited before us, that when an ejectment is brought founded on a dispossession by the defendant, the plaintiff is bound to shew that such dispossession took place within 12 years of the commencement of the action, such cases, arising as they do under Eules of Procedure and by an Act of the Indian Legislature not in force here, have no application to this case. Ford, C.J. Wood, ^ Pel- I lereau s-j.j. & Gold- net. J 1887. Ismail bin Savoosah V. Madinasah Mekican & Anok. 316 THE SUPREME COURT. Ford, C.J. Another matter to which I desire to refer is, that looking at the Wood, -, nature of land in this Colony which is for purposes of transmission LEBEATj Ij.J. on the death of any person of the nature of chattels real, there &GoLD- ican I apprehend, be no doubt that for the purpose of such trans- ^Yoo/T mission — or in other words the devolution and distribution of ' ^property on the death of any person — the practice of the Colony Ismail bin that the personal representative is the person to collect and Savoosah i recover land, as being in accordance with the law of England as Madinaeah : regards chattels real, is so far sound, nor can I see that lands of Mebican & ! another person can for the purposes of this suit which is a suit for Anob. purposes of ultimate distribution to the next-of-kin, be looked j upon as other than chattels real in the hands of the defendants. I As the question of the nature of the possession by defendants, whether adverse or not, has not been raised before us, I of course say nothing, though fully agreeing with the language of the Chief Justice as expressed in his judgment that "the circumstances of relationship and dealing between the plaintiff and Syed Merican," alleged by the plaintiff, might perhaps entitle him to some relief against the lattei-'s acts in relation to the property, were that point raised before us. As a practical result flowing from the consideration of this case T may be allowed, speaking only for myself individually, to express a hope that the Legislature may be induced to pass an Ordinance in accordance with the pi-o- visions of 8 & 4 Wm. IV., c. 27, Section 6 ; possibly also another declaring at what exact period of time the law of England was first introduced into this Colony, and, in general, to bear in mind the advisability of enacting in this Colony by specific Ordinances, such modern legislation as tends to modify and improve the existing law in those matters in which for want of uniformity, inconveniences may arise. Goldney, J. read the joint judgment of himself unA^eUereau, J. [After stating the facts as above, his Lordship continued.] The only question for the Court to determine, is whether the Statute of Limitations commences to run from the date of the grant by the Court, of Letters of Administration to the plaintiff, or before. We need not go into the question of what power the Courts of this Colony have under the Charters of modifyino' the law of Engl arid when applicable to this Colony, so as to adopt it to local circumstances and institutions. The Statute of Limitations in force in this Colony is the Indian Act No, 14 of 1859. At the time of the passing of that Act, the Governor-General of India in Council was the duly constituted Legislative bodv of this Colony, and this Act, in terms, applies to this Colony, the case I before us comes within Section 1, Sub-section 12, of this Act. The question whether the Statute commences to run from the \ date of the death ^ from the Hate of the Letters of Administra- I tion depends upon the construction to be put upon this section. Upon the authority of the cases decided under the Limitation Act of James I, we hold that the Statute of Limitations in the case of an administrator in this Colony, commences to run only when there is a person in existence capable of suing, and there- fore that the cause of action arises in the case when the Letters STRAITS SETTLEMENTS. 317 of Administration are taken out. As in this case a sufficient Foed, c. J. number of years have not run from the date of the grant by the ^°°°- 1 Court of the Letters of Administration to the plaintiff to enable lebeau [j.J. the defendants to set up the Statute of Limitations as a defence, &Gold- the appellant is entitled to possession. We further think that '^'''igg^ the Indian authorities quoted by the respondent cannot apply to '.' this case and to this Colony. Therefore the decision of the Court Ismail bin below must be reversed. Savoosah V. Judgment of the Court helow reversed with costs. .Meetcan & Anoe. REGINA V. TEO AH HOO. All witnesses called before the Magistrate on behalf of the prosecution should as Sinoapore, a general rule be called for the prosecution in the trial at the Assizes, but the pro- secuting Counsel has a discretion in the matter and the Court will not interfere with Ford, C. J. such discretion. Wood, -) In future however, in all cases in which the prosecuting Counsel in exercise of Pel- his discretion omits to call such a witness, the witness should be produced in Court leeeau i-J.J. and the Counsel for the defence might, if he think proper, call him as his own witness. &Gold- If he so call the witness, such witness will be subject to cross-examination by the net. J Counsel for the prosecution in the same way as any other witness called for the 1887. defence. November 3 . Case reserved by Ford, C.J., under Section 11 of the Appeals Ordinance 12 of 1879. 1. " At the trial of one Teo Ah Hoo at the Assizes held at Singapore in January, 1887, the prosecution called and produced a witness whose name was on the back of the indictment, but did not have him sworn or examine him, and 2. The Counsel for prisoner at prisoner's request had the witness sworn and examined him. 3. At the close of such examination the Counsel for the prosecution contended that the prisoner had made such witness his witness, and he was liable to cross-examination and re-examination in the usual course. 4. The Counsel for prisoner contended that if no reasonable notice is given of the prosecutor's intention not to call a witness in the indictment, prosecutor is bound to have witness in Coui-t and the prisoner can cavise him to be swoi-n and cross-examine him subject to prosecutor's right of re- examination only. 5. The Court held the latter the more customary practice. The question for a Pull Bench of Judges is " What is the proper practice under the statement of facts set forth in paragraphs 1 and 2 ? " The case now came on for hearing before the Full Court of Appeal, consisting oi Ford,G.J., Wood, Pellereau, and Goldney, J.J. Bonser, [Attorn^y-Generall said this was not a contentious matter. He desired that a Rule of Practice might be laid down and followed uniformly throughout the Settlements, and for the guidance of the Court he would refer them to the English Cases and Text Books. This Court however, was not bound by the English law. It could make rules for its own guidance. He then cited Rex v. Woodhead, 2 C. & K. 520; Regina v. Edwards, 3 Cox C. C. 82 ; Regina v. Cassidy, 1 F. & F. 79 ; 3 Russell on Crimes, 562 [7th Ed.] ; Roscoe's Crim. Ev. 139, and Archbold's Pl. & Evid, 345. These Cases and Text Books he contended, 318 THE SUPREME COURT. FOED, C. J. Wood, Pel- lebea.u j-j.j. &GOLD- I NET. J 1887. Eeoina V. Teg Ah Hoo. shewed that it was fully settled Counsel were not bound to put in the box every witness whose name appeared on the back of the bill. Groom, for the prisoner said, the case of Regina v. Woodliead, was considered and hot followed in Regina v. Barley, 2 Cox C. C 191 ; and the authority of Regina v. Edwards, was not recognised in the later case of Queen v. Farrell, 3 Cox C. C, 139. Cases quoted and Text Books referred to confined themselves to stating that all witnesses or every witness need not be called merely because their names were on the bill. The names must be there properly, the Rule of Practice, perhaps, did not refer to names put on the bill after prisoner's committal, but he contended that every witness whose deposition had been taken by &• Magistrate at the instance of the prosecution and bound over to give evidence, must be put in the witness box as a witness for the prosecution,, or that in any event the prisoner was entitled to cross-examine. He referred to Regina v. Carpenter, 1 Cox C. C. 72 ; Regina v. Barley, 2 Cox C. C. 191 ; Regina v. Holden, 8 C. & P. 606; Rex v. Simmonds, 1 C. & P. 84; Regina v. Bull, 9 C. & P. 22; Regina y. Chapman. 8 G. SuT. 558; Rex v. Bodle, 6 C. & P. 186; Rexv. Beezley, iC. &F. 220; Rex V. Harris & Woods, 7 C. & P. 682. These and numerous other cases he contended would shew the Rule of Practice for many years, and it was the same now wherever the Criminal Law was administered. If the prisoner had once the right of cross-examina- tion during any stage of a judicial proceeding, it could not be takeia from him even if he called prisoner's witness, — per Lord Kenton in Dichinson v. Shee, 4 Esp. 67. An investigation directed by law pi-eliminary to a proceeding before a Court of Justice was said, in Explanation 2 of Section 193, Penal Code, to be a stage in a judicial proceeding, a stage really of the trial. The Magistrate committed on the evidence before him, — the charge was framed by the Registrar on that evidence. Was not the prisoner to be allowed to cross-examine the witnesses on whose evidence he was charged ? The authorities cited, he contended, would be sufficient to shew the practice. Bonser, replied, contending that the result of all the cases cited was to shew that before 1 847 the Law and Practice was un- settled, but that since then it had been fully settled in the way contended for by himself. Ford, C.J., said, the learned Judges were unanimously of opinion that the usual practice should be that all witnesses called before the Magistrate on behalf of the prosecution, should be called for the prosecution on the trial at the Supreme Court. At the same time there might be cases in which the prosecuting Counsel might, in his discretion think it was conducive to the interests of justice not to call a particular witness, and in these cases the Court wotfld not interfere with his discretion, but the witness should be produced in Court so that the Counsel for the defence might call him if he thought proper, as his own witness. The witness, if called by the Counsel for the defence, would be subject to cross-examination by the Counsel for the prosecution in the same way as any other witness for the defence. STRAITS SETTLEMENTS. 319 QUAIK SIEW SOON v. WEE KIM GUAN. An agent under a power of attorney whose power gives him no authority to use Sinoapobk. his principal's name and credit in financial transactions has no authority to hind his principal though he assumes to act under the power and puts his principal's chop Goldnet, J. on the Note, Bill, or Document he gives. 1887. Query. What if it is shewn that the money was borrowed and used for the pur- pose of the principal's business, or for his benefit ? November 1. There can be no ratification by a principal of the act of his agent, who in doing the act exceeds his authority, until it can be shewn that the principal in doing the act which is relied on as the ratification, acted with full knowledge of the nature of the act committed by his agent and with an intention to adopt that act at all events. Freeman v. Rosher, 13 Q. IB. 780, followed. A " material fact " is one which if communicated to the other of the parties would induce him either to refrain altogether from the contract, or not to enter into it on the same terms : this definition applies equally to the doctrine of subsequent ratification as it does to the Law of Insurance. The nature, facts, and arguments in this case sufficiently appear from the judgment. Davidson, {Koek with him] for the plaintiff. Bonser, [Attorney-Gerieral] and Dreiv for the defendant. Cur. Adv. Yult. Ooldney, J. This was an action brought upon three Promissory- notes for $500, $1,500 and |2,500, respectively. In November, 1884, the defendant who is a trader carrying on business in Singapore, went to China intending to stay there some 3 years. During his absence he left his business in the charge of his son giving him a power of attorney to carry on the business. This power of attorney is dated the 15th November, 1884. During the defendant's absence his, son bad several monetary transactions with the plaintiff who is a money-lender. The notes, the subject of this action, arise out of these monetary transactions. The defendant's son assuming to act under his power of attorney, put the defend- ant's chop and his own chop on these notes. In all the money transactions with the plaintiff the son adopted this course. On the defendant's return from China, the son absconded leaving the defendant's business in difficulties. The defendant denies his liability upon these notes on the ground that his sou, his agent, in putting the defendant's chop upon them exceeded his authority. The plaintiff on the other hand maintains that the defendant's agent in putting the defendant's chop on these notes, was acting within authority conferred upon him by the power of attorney of the 15th November, 1884; and 2nd, that even if the agent exceeded his authority, the defendant has subsequently ratified and adopted the acts of his agent, and so is bound by them. To deal with the 2nd point first, the facts upon which the plaintiff relies to prove ratification are disputed by the defendant. The plaintiff says that immediately after the defendant's return from China, first, his son, and then the plaintiff himself went to see the defendant in reference to the notes, the subject-matter to this action. That on both of these occasions the defendant acknowledged his liability and promised to pay the notes. The defendant on the other band denies in toto that any such interview 320 THE SUPREME COURT. Wee Kim GrUAN. GoLDNET, J. ever took place, or that he ever acknovyledged his liability upon ^^^' the notes. It will not be necessarj' for me to find which is in the QuAiK SiEw right on this particular issue, as the plaintiff has failed to prove Soon what may be said to be a condition precedent to a successful setting up of a subsequent ratification by a principal of an act done by his agent in excess of the limits of his authority. That is the plaintiff has failed to shew that at the time of the alleged ratification the principal was acting with full knowledge of the nature of the act committed by his agent, and with an intention to adopt that act at all events. Freeman v. Rosher, 13 Q. B. 780. It was admitted by the plaintiff that neither before nor at the time of the alleged ratification had he informed the defendant that there were other notes for a large amount outstanding [in addition to the notes sued on] upon which his chop had been placed by his agent, nor did he inform the defendant of the other monetary transactions which his agent had had with him in con- nection with Keng Swee's affairs. The plaintiff in fact, at the time that the alleged ratification took place, concealed or suppress- ed or neglected to communicate to the defendant a material fact within his knowledge which the defendant had not the means of knowing and could not be presumed to know. The definition of a material fact is given in Arnould on Marine Insurance [6th Ed. p. 548], a definition which I think applies equally to the doctrine of subsequent ratification as it does to the Law of Insurance. It is as follows : " A material fact is one which if communicated to the other of the parties would induce him either to refrain altogether from the contract, or not to enter into it on the same terms." If the defendant's agent in putting the defendant's chop on the various Promissory-notes which, from time to time, passed between him and the plaintiff did exceed the limits of his authority, the fact whether or not the three notes presented by the plaintiff to the defendant were the only three instances in which the agent had exceeded his authority would most materially affect the judgment of the defendant in considering whether he would ratify the act done by his agent. It must not be forgotten that a subsequent ratification of an act done in the name of the party who ratifies it is tantamount to a prior command and has relation back to the time of the act done and is in point of law a command. The effect of such ratification as the plaintiff wishes to prove would be the same as if at the time of the doing of the act his agent had received a prior command from the defendant to do it. If the defendant admitted wha.t in law is tantamount to a prior command in the case of the three notes sued upon, he could hardly hope to be able successfully to limit such command or authority to the three notes in question. The result would be that although at the time of the alleged ratification he was quite ignorant that any other similar notes existed, he would practically be admitting that he had given authority to his agent to exceed his powers and to make such other notes. As I have already stated any admission or conduct of the principal to be binding upon him as a ratification of the act of his agent must be made or done with a full knowledge of the nature of the act committed. STRAITS SETTLEMENTS. 321 Soon V. Wee Kim Gdan. r think therefore that the plaintiff has completely failed to shew Goldnet,J. that there was on the part of the defendant any such ratification ^• of the acts done by his agent in excess of the limits of the agent's Quaik Siew authority as would make such acts binding upon the defendant himself. The next question is whether in putting the defendant's chop on these notes, the defendant's agent was acting within the authority given to him by the defendant. What his authority was, is defined in the power of attorney given to him by the defendant on loth November, 1884, a power to act for him in his absence in certain matters therein specified. I can find nothing in the power of attorney that authorises the defendant's agent to use his [defendant's] name and credit in financial transactions with money-lenders. It was alleged that the money was borrowed and used for the purpose . of the defendant's business. What little evidence there was of this, I regret to say I do not believe, I give judgment for defendant with costs. Judgment for defendant with costs. BAWASAH MERICAN v. KOOTYAN CHETTY. There is no power to order the forfeiture of any illicit exciseable article under Section 48 of the Excise Ordinance 4 of 1870, unless there has been a conviction of a person for breach of that section in respect to such illicit article. The appellant Bawasah Merican had been charged before C. W. S. Kynnersley, Esquire, First Magistrate, for knowingly having in his possession five bales of bhang value |1,600 which had not been purchased from the Toddy Farmer of the Settlement, nor from a licensed Toddy shop-keeper under Section 48 of the Excise Ordi- nance 4 of 1870. The charge was enquired into on the 14th September, when it appeared that the appellant was the Chief Clerk of the "Prj'e Dock Landing and Shipping Company" and the bales had been landed from the s.s. Orion on the 5th July, and had been received by the defendant in the ordinary course of his duty. The defendant was not the owner of the bales. The Magistrate dismissed the charge, the prosecution admitting they were unable to prove the necessary scienter. Counsel for the pro- secution however, asked that notwithstanding the dismissal the five bales of bhang might be ordered to be forfeited under the section as there was no doubt of their being illicit. The Magis- trate took time to consider the point, and on the 21st September made an order for forfeiture. The appellant appealed to the Supreme Court, and the appeal was argued on this date before Vellereau, J., when on the conclusion of the arguments the learned Judge without expressing an opinion directed the case to be heard in the Court of Appeal, under Section 38 of the Appeal's Ordi- nance 12 of 1879. December 22nd. The Appeal now came on to be heard in the Court of Appeal, consisting of Ford, C.J., Wood and Pellereau, J.J. Fenano. Pel- lebeau, J. 1887. Nov. 14. 322 THE SUPREME COURT. Ford, C.J. Ross, [Anthony with him] for the respondent, objected ^p°"Oj J to the appellant being heard on the ground that he having been lereattJ acquitted by the Magistrate had no loeux standi under the Appeals 1887. Ordinance and was not the owner or consignee of the bales. Bawasah Mebioan V. KOOTTAN C HETTY. Thomas, for the appellant contended, he had a locus standi in order to object to the forfeiture of the bales which had been found in his possession, and so prevent an injustice being done to the owner of the bales by being deprived of his property witliout being heard — he referred to Cooper v. Wandsworth Board- of Works, 14 C. B. [N. S.] 194, 5, per Byles, J. The Court considered the appellant had a locus standi. Thomas, for appellant then contended, that the Magistrate had no power to order a forfeiture of the bales when there had been no conviction — he referred to Sections 47 and 48, of the Excise Ordinance 4 of 1870 and asked that on quashing the order the Court would direct the bales be given up to the a.ppellant. Ross, [Anthony with him] contended, that Section 48 provided for three offences [1] by a person who not being the Toddy Farmer or a licensed Toddy shop-keeper sold or offered for sale any toddy or bhang, [2] for a person who purchased any toddy or bhang from any person other than the Toddy Farmer or a licensed Toddy shop-keeper, [8] the person who knowingly had toddy or bhang in his possession which was not purchased from the Toddj' Farmer or a licensed Toddy shop-keeper. In the first two cases the toddy or bhang might originally have been purchased from the Toddy Farmer or a licensed Toddy shop-keeper, yet it was an offence if in the first case the person sells to any but the Toddy Farmer, or in the second if the person buys from any but the Toddy Farmer or a licensed Toddy shop-keeper. This being so it shewed the section via,snot limited to hhnngnot purchased from the Toddy Farmer or a registered Toddy shop-keeper. In the third case the burthen of proof was thrown by the section on the person " charged " and the words " all such' toddy or bhang " in the section did not mean the toddy or bhang which the accused might be shewn knowingly to have had in his possession, and for which he would be punishable, but the toddy or bhang which he was charged with knowingly having had in his possession although the charge as regarded the scienter could not be proved. The Court, [Ford, C.J., Wood & Pellereau, J.J.] held that unless there was a conviction of a person for breach of the Excise Ordinance 4 of 1870, Section 48, no order for forfeiture of the illicit exciseable articles in respect to which such breach was alleged to have been committed could be made under that section — they therefore quashed the Magistrate's order, but declined to make any order for the bales of bhang to be given up, leaving the appellant to his proper remedy therefor. Order quashed with costs — no order for the bhang to he given up. STEA.ITS SETTLEMENTS. 323 REGINA V. RODEIGUEZ. The Indian Act XITI. of 1850 is still law in this Colony and is a " Special Law " Sinqaporb. within the meaning of Sections 5 and 41 of the Penal Code. Ford O J Regina v. Overree ^ anor., 2 Kyshe [Cr. Rulings] 8S, followed. 1887 Setnble. The Criminal Procedure Ordinance 6 of 187.3 is however applicable to a ' prosecution under that Act, and the charge must, under Section 59 of the Ordinance, Nov. 22. be limited to three charges and not " any numbei*" as provided by Section 11 of the Act. The prisoner was charged under Section 9 of the Indian Act XIII. of 1850 on five separate charges of embezzling moneys of the Government which he had been entrusted with as a public servant, to wit : a Clerk in the General Post Office. The material portions of the Act, are as follows : — [1.] " Every person employed in the public service of Her MajeBty and entrusted by reason of such employment, with the receipt, custody and control of any chattel, money or valuable security, who shall embezzle the same or any part thereof, or in any manner fraudulently apply, use, or dispose of the same or any part thereof, for any pui-pose other than the purpose to which the same is applicable under the trusts reposed in him, shall be deemed to have feloniously stolen the same." « [8.] " Every person possessed or having the receipt, custody or control of any chattel, money or valuable security, in trust for any other person or persons, who shall embezzle the same or an.y part thereof, or in any manner fraudulently apply, use, or dispose of the same for his own use or benefit in bi'each of the trust reposed in him, shall be deemed to have feloniously stolen the same." [9.] " Every person convicted of having feloniously stolen any chattel, money or valuable security under this Act shall be liable to be transported out of the territories under the Government of the East India Company for life, or to be imprisoned with or without labour for any term not exeeeding seven years." [11.] " Any offender under this Act may be proceeded against on the same charge for any number of distinct acts of embezzlement or fraudulent application, use, or disposition as aforesaid, committed by him within six calendar months from the first to the last of such acts : and proof of a gi-oss deficiency in the accounts of any such Trustee or Public Servant shall be evidence of the ofEence charged, until such deficiency is otherwise explained." This Act had been wholly repealed in India by Act XVII. of 1862 which has never been in force in this Colony. In 1872 the Straits Penal Code [Ordinance 4 of 1871] came into operation in this Colony, and in 1873 the Criminal Procedure Ordinance 6 of 1873 was passed. The sections of the Penal Code material to this report are as follows : — [2.] " Every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the pi-ovisions thereof, of which he shall be guilty within the Colony, from and after the coming into operation of this Ordinance." [5.] " Nothing in this Ordinance is intended to repeal, vary, suspend, or affect any of the provisions of any Act for punishing mutiny and desertion of Officers and Soldiers in the service of Her Majesty or of any special or local law," 324 THE SUPREME COURT. Ford, C. J. [41.] " A " special law " is a law applicable to a particular subject.'' 1887. [42.] " A " local law " is a law applicable only to a particular part of the Eeqina Colony." V. EoDBiQUBz. g^ Section 59 of the Criminal Procedure Ordinance aforesaid, it is enacted : « " Wben a person is accused of more offences than one of the same kind committed within one year of each other, he may be charged and ti-ied at the same time for any number of them not exceeding three " On the prisoner being arraigned, Groom, for him contended, the indictment was bad as charging him under the Act XIII. of 1850, which he submitted was repealed by the Act XVII. of 1862 ; and although at that date there was no Criminal Procedure Act like it in this Colony, still at this date there were both the Penal Code and the Criminal Procedure Ordinance. The Act of 1850 must be considered no longer in force, as the Penal Code provided for punishments under it " and not otherwise," Section 2. He submitted the only reason for charging the prisoner under the Act of 1850 was, that if errors of any kind were found in his books, the owms was on- him to explain them. Section. 11. Honser, [Attorney-General] contended. Act XIII. of 1850 was still in force, although repealed in India. Begina r. Overree, 2 Kyshe [Cr. Rulings] 88 ; that it was a " special law " within Sections 5 and 41 of the Penal Code, and was saved. Section 11 dealt with falsification of accounts for which no provision was made by the Code ; this point as to the Act being a " special law" was not argued in the case cited, but it was obvious it must have been referred to as the Penal Code was in force when that case was decided. Groom, in reply contended, the report of Regina v. Overree, was not a full report of the case [a]. As it seemed so much at variance with Section 1 of the Act XVII. of 1862, and as provision was made by the Code for criminal breaches of trusts by public servants [Section 409], he asked that the question whether the Act XIII. of 1850 was still in force in this Colony, might be reserved for the Court of Appeal ; — it was a point he submitted which might well be reserved. Ford, C.J. prior to the case of Begina v. Overree being cited, was inclined to think Sections 5 and 41 did not apply, as this was a case of mere breach of trust which was provided for by the Code, and by Section 2 the case should be dealt with only under the [a.] It was not brought to the notice of the Court in this case that in Seqina \. Overree, though the question was decided in Singapore on 16th December, 1372, the prisoner had been tried and convicted in Malacca some time before [November, 1872] ; that the Penal Code came into operation on the 16th September, 1872, but the em- bezzlement in that case took place yn'oc to the coming into operation of tlie Code; that by Section 2 of the Code, its provisions applied only to persons ffuilii/ of an act committed a/i!ec its coming into operation; that tliat was not Overree's case and he could not be punished under the Code, but only under the old law— see Regina v. Lee Cheng, Volume 2 of these Reports, Criminal Kulings, 88. Had these facts been brought to the notice of the Court, the decision in this case might possibly have been different.— J. W. N. K. STRAITS SETTLEMENTS. 325 Code, but he eventually held that that case was directly in point Ford, C.J. and was based on too solid grounds for him to reserve the point ; ^f^^ he therefore ruled Act XIII. of 1850 was a " special law " within Eegina the meaning of the Penal Code, and was still in force. «• Groom, then contended, that the indictment was bad as it Kodbiqttez. contained five charges ; that it should be limited to three, com- mitted within ayearot each other, by' Section 59 of the Criminal Procedure Ordinance 6 of 1873, and the provision of Section 11 of the Act XIII. of 1850 as to " any number " of charges was impliedly repealed. Bonner, [Attorney-Generall consented to the indictment being amended by being confined to three charges only. The amendment was then made and on the prisoner pleading " guilty " he was sentenced to two years' rigorous imprisonment. LEE JOO NEO V. LEE ENG SWEE, "Where there are descendants, but no children living of an Intestate, on the proper Sinsaporb. construction of the Statute of Distributions [29 Car. II. c. 3, Section 7] the estate is to be divided into as many shares as there were children who had left living descendants Goldnet, J. and not according to the number of the descendants themselves. The descendants of each such child take as together representing such child and the share only of such child. Re Eoss' Trusts, 13 L. E. Eq. 200, foUovi'ed. The contrary opinions expressed in Text Books of authority [a.] must be considered incorrect and this Court is bound by the above decision. In distributing the estate of a person dying intestate domiciled here and leaving property here, the Statute of Distributions is the only rule, and the exclusion of females in sharing in such estate according to Chinese Law and Custom will not be recognised. The nature and facts of this case sufiB.ciently appear in the judgment. Drew, for certain of the next-of-kin. Davidson, for others of them. Cur. Adv. Vult. December 17th. Goldney, J. The question before the Court, was as to the shares in which the fund now in Court represent- ing Sit Tean Neo's estate is to be distributed among her descend- ants. By a decree dated May 28th, 1878, this Court, among other things, declared that the Will of the said Sit Tean Neo, so far as it relates to the property in question, was bad and ordered such property to be distributed amongst the next-of-kin of the testatrix, living at the time of her death, according to the Statute for the Distribution of the Estate of Intestates. The Registrar has reported that the three children of Sit Tean Neo predeceased her, and that at the date of her death there were seven grand- children and four great-grand-children. Mr. Drew, who appeared for Lee Kim Neo, one of the grand- children, the daughter of Lee Kian Soon, -contended that the fund should be divided into three parts, one-third of which should be sub-divided among the descendants of the testatrix's son, Lee [a,J 2 Wm. on Executors [8th Ed.]. 1503 and authorities there cited— also re Boss' Trusts, supra, 294. 1887. December 8. Lee Ens SWKE. §26 THE SUPREME COURT. GoLDNBT, J. Kian Ann ; one-tbird among the descendants of her son, Lee ^f^" Kian Soon, and one-third among the descendants of her son Lee LeeJooNeo Joo Ka}'. That, as those descendants consist both of grand- children and great-grand-children of the intestate, persons not all equally next-of-kin to lier, they can only take as representa- tives of their respective parents, and not in their own right as next-of-kin, i.e.. take per stirpes and not per capita. Mr. Davidson, on the other hand contended, that upon the proper construction of the Statute, that all the children being dead, grand-children take an equal share, for, as all the children are dead, their children take as next-of-kin, that is per capita or equal shares in their own right, and that the great-grand-children take as representatives of their own deceased parents. The point raised in this case was before the Court of Chancery in 1871, In re Eoss' Trusts, 13 L. E. Eq. 290. Although Text Books of great authority support Mr. Davidson's construction of the Statute, I feel myself bound to follow the decision of the Vice -Chancellor in that case. In the case of In re Eoss' Trusts, after discussing the opinions expressed in the various Text Books of authority, Vice-Chancellor Wickens came to the conclusion that the proper construction of the Statute was, that if there are descendants, but no children living, to share the estate, it is to be divided into as many shares as there a.re children who have left living descendants, and that the descendants of each such child are to take as representing the child, and of course only the child's share. Following this deci- son, I hold that in this case the fund must be divided into thirds of which one-third is divisible among the descendants of Lee Kian Ann, one-third among the descendants of Lee Kian Soon and the i-emaining third among the descendants of Lee Joo Kay. Another point was raised by Lee Eng Swee, viz., that the descendants of Sit Tean Neo, who are females, cannot share in the distribution of testatrix's estate. This proposition of Lee Eng Swee is founded upon the provisions contained in the Will of the deceased, and upon what he alleged is the Law and Custom of China. As to the provisions of the Will, this Court has declared that the Will in that respect was bad, and as far as such provisions refer to the property in question, the testatrix must be considered to have died intestate, and that such property is to be distributed according to the Statute of Distributions. This decision has not been appealed against. As to the alleged Law and Custom of China, Lee Eng Swee cannot incorporate such alleged Law or Custom with the Statute of Distributions. There is an entire concurrence of opinion among jurists, and there is a uniformity in the judicial decisions of all ages and countries in support of the rule [1] that the succession ab intestato to immoveable or real property, is wholly governed by the lex loei rei sitcB, and that it descends according to the order or law of succession prevailing in the coun-try where it is situated. STIlAlTS gETl?LEMENl?S. til Secondly, tliat the succession ab intestato to moveable property poLONET, J. is wholly governed by the law which prevails in the place where ^• the intestate was domiciled at the time of his or her death. Ilee Joo Nbo It has been proved in this suit that the deceased at the lime v. of her death was domiciled in the Colony. The moveable pro- ^^^ ^'"* perty also is situated in the Colony. Tlie law therefore which '^^'^' must govern the distribution both of the Intestate's immoveable . and of her moveable property is the law of this Colony, and not jA the law or custom of any other country. Jn re ARMOOGUM & OES, The terms on which a Hindu husband and wife should separate might be the pr-vANo subject of reference to arbitration ; and this Court has j urisdiction to order an award — ^ which directs the wife to return to her husband, or iu default, that she or her parents Wood "> and relatives who joined in the reference should restore to the husband certain . ppr,. L j jj jewelry which were given by the husband to the wife at the time of marriage —to be .^^.tJ \ ' filed in Court with a view to execution in so far as it orders the restoration of the ^^ jewelry. LBKBATJ. 18S7. This was an application by Armoogum for an order that an award made by certain arbitrators might be filed in Court with a view to its being enforced as a judgment. It appeared that certain disputes and differences having arisen between the appli- cant Armoogum and his wife Pakeerchee, her mother Anjayalay arid brother Kali, as to the return of the wife to cohabitation with the applicant, and the return of her marriage gifts, in default of her doing so, a submission was, on the 27th August, 1887, made and signed by all the said parties referring the said disputes to ai'bitration of certain headmen of the Hindu community. The arbitrators having enquired into the matter on the 12th day of November, 1887, made and published their award in writing, which, omitting formal parts, was as follows: — " We do hereby award that the said Pakeerchee shall return to her husband the said Armoogum forthwith, and that the said Kali her brother, and the said Anjayalay her mother, shall permit her so to do ; and if they shall refuse or neglect so to do, upon formal demand in that behalf, then and in such case the said Pakeerchee, Kali, and Anjayalay shall refund and return to the said Armoogum his marriage expenses and gifts to the wife, made by him, as follows" — then followed a list shewing account of expenses and articles of jewelry and their respective value. This award was notilied to the wife, mother and brother, and a formal demand for the wife to return to the applicant was also made — they all declined to abide by the award in any respect. The present application was thereupon made to Pellereau, J. on the 12th December, and the learned Judge on the 16tli, directed that the questions arising on the application should be re-argued before both Judges present in the Settlement. The questions were therefore again argued before the two Judges. Adams, for the applicant submitted that there were two questions for the Court — firstly, whether the matter in dispute Dec. 20. 328 THE SUPREME OOtJRt. Wood "^ -was referrable to arbitration ; and secondly, when referred and m;b«^' ) ^ awarded on, whether the award could be made a rule of Court. 18S7. -He contended that as to the first question it was clear on the authorities that the terms of a separation might be referred — Abwoogum ^'^^^^^^ °'^ ^'*^- [^^'"^ ^'^•J ^0; Soilleux v. Herhst, 2 B. & P. 444; & Obs Bateman v. Gountoss of Ross, 1 Dow. 235 ; Hooper v. Hooper, 29 L. J. Pro. & Div. .59 ; Redman on Arh. 13 ; Ghamhers v. Gaulfield, 6 East 244 ; Bodney v. Ghambers, 2 East 283 ; 2 Bright on Huk, and Wife 311. The matters being referrable, the second question depended on whether this Court had jurisdiction to order the award to be filed. The words of the Charter of 1855 as to Ecclesiastical jurisdiction were large enough to confer such a jurisdiction; but previous decisions, — Lim Ghye Peow V. Wee Boon Teh, 1 Kyshe, 236 ; Shaik Madar v. Jaharrah, lb. 385, had restricted the jurisdiction. Without going the length of arguing whether those decisions were sound or not, he submitted the award here was not an absolute direction for restriction of conjugal rights; that that part of the award was precatory, but the alternative part directing the return of the money and jewels was mandatory on default of compliance with the previous part of the award. The previous application was made solely with the view to enforcing the latter part. The award could not be said to be an order for restitution of conjugal rights, for an alternative was allowed. Although this Court had declined to enforce a native marriage by decreeing restitution of conjugal rights, it had often exercised jurisdiction in matters arising out of such marriages, Pootoo v. Valee Utu Taven, 1 Kyshe, 623; Hawah v. Baud, Str. L. R. 253, — and even as to ascertain- ing Avhether a husband was a suitable person or not, Salmah v. Fatimah, 1 Kyshe, 421. The Court had thus full power over every kind of settlement or dispute as to property resulting from native mai'riages, and the application was properly made on the Civil and not Ecclesiastical side of the Court. G. S. H. Gottlieb for the wife, mother and brother contended, the award was all one and indivisible; and the Court from the authorities quoted having no jurisdiction to order restitution of conjugal rights had no jurisdiction to order the filing of the award as to the return of the money and jewelry which would only be an indirect way of compelling the parties to render restitution of conjugal rights. Feller eau, J. The applicant asks for an order to file an award which is as follows [reads award] . The question is not merely one of restitution of conjugal rights between Hindus ; there is an alternative, the restitution of jewelry. On the first argument, I was inclined to consider that the two things were connected, and if there was want of jurisdiction as to the former, there was want of jurisdiction as to the latter. The authorities cited by Mr. Adams however go the length of shewing that the terms of a separation can be referred ; and considering those cases, 1 have come to the conclusion that the terms of a separation in the case of natives can be referred to arbitration. The terms imposed by the award here are, that if the wife does not return to the SfRAll^S SETTLEMEiJTS. d29 husband — if slie separates from hiin — she and her mother and brother must restore to the husband the jewelry he gave at time of marriagfe. I can see no reason why the Court should not enforce this part of the award ; and I am of opinion therefore, that the Court has jurisdiction to order the award to be filed, limiting the enforcing of it [if necessary] only as to the resti- tution of the jewelry. At present, I decide simply the question of jurisdiction ; the order for filing the award must be applied for on a later day on notice to the other side to shew cause why the award should not be filed. Wood, J. I agree with my brother Pellkeeau that we have jurisdiction to order the award to be filed. I do not think it necessary to go the length of saying that in all cases the Court would exercise the jurisdiction it has. As in this case there is an alternative, I think the case stronger, and the award should be filed. 11th January, 1888. .idaws, now moved that the award be filed. The wife, mother and brother in person, shewed cause. It appeared that the wife Pakeerchee was an infant under 21 years of age at the date of the award. Pellereau, J. ordered the award to be filed limited to the restitution of the jewelry as against the mother and brother only. Order accordingly. Wood LEEEATT. 1887. [j.J In re Aehoogtjm i Oes. In re SINYAK EAYOON & ANOE. The Court in deciding who is a fit and proper person to be appointed guardian Penang. of a native infant is not bound by any hard and fast rule of the law of England on the subject, but will under the words " so far as circumstivnces will admit " in the Charter Wood ) of 1855, take into consideration the law, religion, practice, or custom, of the nationality i!^ Pel- > J.J. or class to which such infant belongs, on the subject of guardianship. leeeatj. I Choa Choon Neo1i\. Spoitiswoode, 1 Kyshe, 216, and Yeap Cheali Neoy. Ong 1888. Cheng Neo, 6 L. E. P. C. 38 L, s.c. 1 Kyshe, 326, discussed. r The Charter of 1855 by the combined operation of Ordinance 6 of 1878 and January 10. Ordinance 3 of 1878, Section 83, is still in force in this Colony so far as it is not in- consistent with the latter Ordinance and the Ordinances i and 5 of 1878. Yeap Cheah Neo v. Ong Cheng Neo, [supra] as to this point, followed. This was originally an application for a Habcxs Corpus to obtain the custody of the abovenamed alleged infants, but it appearing that neither the applicant [the paternal uncle] nor the person detaining the alleged infants [the maternal grand-mother] had any right to their custody, the application was by leave of the Court so moulded as to be an application for the appointment of a guardian, it being alleged by the applicant [Haji Choot Mahomed Salleh] that by the Mahomedan Law the paternal uncle had a prior right to the custody of the infants than the maternal grand-mother. It was then intended to adduce evidence as to the Mahomedan Law on the subject, but this was objected to by Counsel for the maternal grand-mother [Choot Amamah] on the ground that such evidence was ii-relevant and could not be con- sidered by the Court, which was to be guided by the law of S30 ThS SOPREMB COUM. Wood ) & Pel- > LEREAn. ) 1888. J.J. In re SiNTAK Eatoon & Anob. England alone. This question was adjourned by the learned Judge [Wood, J.] for argument before both Judges present in the Settle- ment, and now came on to be heard. The further material facts appear in the judgments of the learned Judges. Ross, for the maternal grand-mother detaining the alleged infants contended, that the law of England moditied by Indian Acts or local Ordinances and Imperial Statutes applicable to the Colony was the law here. In the goods of Abdullah, 2 Kyshe Ecc. Cases, 8 ; Reyinav. Willans, 3 Kyshe, 19-23 ; that Ghulas v. Kolson binte Seydoo Malim, Str. L. R. 462, s. c. Woods' Oriental Cas. 35, was directly in point ; that in cases of guardianship the Court was guided by its own rules, that is the law of England, and if the Mahomedan law could have been recognised there was no need of the Mahomedan Marriage Ordinance 5 of 1880 having been passed. His further arguments and authorities will be found in the judgments of the Court. Van Someren, [Thomas with him] for the paternal uncle, the applicant, contended, that the Court would be guided exclusively by the Mahomedan law on the subject, if not, then it would certainly take that law into consideration, as to who would have been the guardian if that law was applied, and they relied mainly on the Charter of 1855, Choa Ghoon Neoh v. Spottiswoode [supra] and Yeap Cheah Neo v. Ong Cheng Neo [supra] . They also con- tended, that the Mahomedan Marriage Act only applied to the Mahomedan law of property — Jamaludin v. Hajee Abdullah, 1 Kyshe, 503; and no inference could be drawn against Mahomedan law on other subjects being considered. With reference to the dictum in Ghulas v. Kolson, possibly it was correct at that date under the peculiar wording of the clause in the Charter referring to guai-dianship, but the words of Ordinance 5 of 1868, Section 26 ; Ordinance 5 of 1873, Section 46 ; and Ordinance 3 of 1878, Section 12, were different and the general provision in the Charter for the law of England to be administered " so far as circum- stances would admit " included a case like this at the present time. Their further arguments and authorities will be found in the judgments of the Court. Ross, in reply contended, that the Charter of 1855 was no longer in operation as it was repealed by Ordinance 5 of 1868, Section 1— revived by Section 4, — but the latter was repealed by Ordinance 6 of 1878, which came into operation at the same time as Ordinance 3 of 1878. Section 83 of the latter did not keep the Charter alive — as the Charter being at that moment gone by force of Ordinance 6, it was not " in force " within Section 83 of Ordi- nance 3. [Pellereau, J. pointed out that Section 83 took the Court to the laws in force in the old Court of Judicature, of which the Charter of 1855 was one — and that Court was prior to Ordinance 6 of 1878 ; he also pointed out that the question now raised was in principle decided by the Privy Council as to the effect of the two Sections 1 and 4 of Ordinance 5 of 1868 coming into operation at the same moment.] Cur, Adv. Vult. Straits settlement's. 331 9th rebruary, 1888. Wood, J. read the judgments of Pellereau J. and himself as follows : — Pellereau, J, In this case it was admitted by both parties that the parents of the infants were at the time of their deaths domiciled in Acheen and that the children at that time were themselves resident there. Under such circumstances, the Court, which undoubtedly has jurisdiction under SecHon 19 of Ordinance 3 of 1878 over the infants who are now commorant in Penang should, in the appointment of a guardian, be guided by the law of Acheen ; as it has not however been shewn that this law is different from the law of Penang, the Court must presume that it is the same, and the question arises what is the law of Pena.ng on the subject of the appointment of guardians. It has been constantly ruled by the Courts of this Colony that the law of England such as it was in 1826 is the law of the Colony subject to any amendment passed by the Legislative authority of the Colony. The law of England was held to have been introduced into the Colony of the Straits' Settlements in 1826 by Letters Patent, and the special paragraph of those letters applicable to this case has been repeated by the Letters Patent in 1855, in the following terms : — " We further ordain that the said Court and the several Judges thereof do have such jurisdiction and authority as our Queen's Bench and our Justices thereof, and also as our High Court of Chancery and our Courts of Common Plens and Exchequer, respectively, and the several Judges, Justices and Barons thereof respectively have and may lawfully exercise within that part of our United Kingdom called England in all civil and criminal actions and suits and matters concerning the revenue and in the control of all inferior Courts and jurisdiction as far as circumstances will admit." In the case of Ong Cheng Neo v. Yeap Cheah Neo & Ors; 1 Kyshe, 344, the Judicial Committee of the Privy Council have decided substantially as follows : — "In their Lordships' view the Charters referred to [«iz., those of 1807, 1826 and 1855] if they ai-e to be regarded as having introduced the law of England into the Colony must be taken to have done so under the same qualification, viz., as far as circumstances will admit." Adverting to the judgment of Sir Benson Maxwell, C.J. in the case of Choa Choon Neoh v. Spottiswoode, 1 Kyshe, 346, their Lordships say : " It appears to us that in that judgment the rules of English law and the degree in which in cases of this kind regard should be had to the habits and usages of the various people residing in the Colony, are correctly stated." The expressions of Sir Benson Maxwell thus referred to, are the following : — • " In this Colony so much of the law of England as was in existence when it was imported here and is of general [and not merely of local] policy and adapted to the condition and wants of the inhabitants, is the law of the land, and further that law is subject in its application to the various alien races established here, to such modifications as are necessary to prevent it from operating unjustly and oppressively on them." Wood & Pel LEBEAU. 1888. ,. [J.J a.) In re SiNTAK Ratoon & Anor. 332 THti SUPREME COUfet. Wood v This judgment of Sir Benson Maxwell was given on the 19th & Pel- ^J.j. January, 1869, at the time when Ordinance 5 of 1868 was in force ; 1888. and ill spite of its first section, it was thus ruled by the Privy Council in the abovementioned decision, that the Letters Patent /» ;-e q£ ]885 were in force in this Colony in 1869; therefore taking Batoon A into account the re-enacting Section 83 of Ordinances of 1878 Anok. which at present regulates the constitution of this Court, and specially mentions the Letters Patent applicable to the previous Courts of Judicature of this Colony, I come to the conclusion that the words " as far as circumstances will admit," which have nowhere been specially repealed and are not inconsistent with any repealing law, do still continue the law of this Colony, and afford a rule for the conduct of the Court in the appointment of guardians to infant children belonging to alien or native races. I hold in consequence that in the selection of such guardians the Court should apply the law of England, and in doing so, should consider the circumstances of each case, the interest and welfare of the infants, their treatment, their sex, their education, the religion of their parents and the rules which, according to that religion, regulate their domestic customs and relations. Bach case must necessarily stand upon its own grounds, and it is a beneficial character of the law, such as I hold to be, that its elasticity allows the Judge in matters of guardianship to take into account, in the interests of tbe infants, the varied circum- stances of their position. I need not say anything in the case on the question, whether tbe Civil Ordinance of 1878 coupled with Section 10 of Ordinance 3 of 1878, has introduced into this Colony the law of England such as it was in 1878, with all the powers of the High Court of Justice in matters of guardianship ; such an introduction would lead probably to the same result which I have arrived at in applyingandconstruing the Letters Patent of 1855, and the words " so far as circumstances will admit." Wood, J. In this matter a Rule Nisi was obtained by Mr. Thomas calling upon Choot Amamah Lombak to shew cause why a writ of Habeas Corpus should not issue, directing her to produce before the Court the bodies of the infants abovenamed. The applicant is the paternal uncJe of the infants, and the respondent their maternal grand-mother; and it was asserted by the anpli- cant that as such uncle, he was entitled by Mahomedan law to the custody of the infants in question. It was intimated to the applicant by the Court, in order to proceed formally in this matter, it was obligatory upon him to prove his status as guardian, but inasmuch as the question would certainly arise in the matter now in dispute, wliether or no the Court would, in disposing of the custody of the children, act in conformity with Mahoiriediin law and custom, this point from the importance of the question, was argued at length before myself and Mr. Justice Pelleeeau sitting together as a Court of first instance. STRAITS SETTLEMENTS. 333 Mr. Ross, for the respondent contended, that this Court would ^°°^ ) jj administer only English law as modified by Legislative enactments leueTu.) applicable to this Colony, and would pay no regard to Mahomedan mss. law and custom. Mr. Van Someren [JMr. Thomas with him] con- tending thatthe Court in deciding upon this matter of guardianship s^tIk should take into consideration and be guided by Mahomedan law Eatoon & and custom. Mr. Ross urged in support of his contention, that Anok. although the Courts of this Colony may have recognised the plurality of wives, and the validity of marriages and divorces if efEected in accordance with Chinese, Tamil and Mahomedan Law and Custom; yet that they have persistently administered En£:lisli law though inconsistent with native law, custom, and religion in the case of adopted children, of testamentary disposition of the whole instead of a portion of a Mahomedan man's estate, personalty as well as realty — of the distribution of personalty — of the non- precedence of the 1st wife of a Chinese husband — and other matters. And shortly, that in all other matters except the mere recognition of the status of husband and wife and the facts of their divorce, the law of England has been held to be the law of the Colony and this rightly so, as English law is by our Charters, Acts and Ordinances declared expressly or impliedly to be law of the Straits Settlements. Mr. Van Someren, for the applicant contended, that although English law is the basis of the law of the Straits Settlements, j'et regard must be had to the laws and customs of the native population, and this upon the authority of the Privy Council in the case of Ong Cheng Neo v. Yeap Gheah Neo & Ors., 1 Kyshe, 344, in which it is stated " in their Lordships' view the Charters referred to [viz., those of 1807, 1826 and 1855] if they are to be regarded as having introduced the law of England into the Colony, contain the words 'as far as circumstances will admit'..." In applying this general principle, it has been held that Statutes relating to matters and exigencies peculiar to the local condition of England, and which are not adopted to the circumstances of a particular Colony do not become a part of its law although the general law of England may be introduced into it ; and in parti- cular in page 346, adverting to the language of the judgmput of Sir Benson Maxwell, C.J. in the case of Ghoa Ghoon Neoh r. Spottuwoode, their Lordships say : " It appears to them that in that judsrment the rules of English law and the degree in which in oases of this kind i-egard should be had to the habits and usages of the various people residing in the Colony are correctly stated." These expressions of Sir Benson Maxwell are contained in the report of the case last referred to in 1 Kyshe, 221 : " In this Colony so much of the law of England as was in existence when it was imported here, and is of general [and not merely local] policy, and adapted to the condition and wants of the inhabitants, is the law of the land, and further that law is subject in its application to the various alien races established here, to such modifications as are necessary to prevent it from operating unjustly and oppressively on them." 334 THE SUPREME COURT. Wood & Pbl- LSBJtAU.) 1888. J.J. In re SiNTAK Batook & Anob. That the Charters are now in operation in the Colony, is clear from the re-enacting Clause 83 of Ordinance 3 of 1878, although apparently repealed by Ordinance 6 of 1878 which repeals the existing Supreme Court Ordinances, — the four Ordi- nances 3, 4, 5 and 6 having to be read together and a similar and for all purposes an identical point being decided by the Privj Couucil in the case above reported, pages 346, 347. The following cases were referred to in the arguments — Goods of Abdullah, 2 Kyshe's Rep. Ecc. Ca. 8 ; Regina v. Willans, 3 Kyshe, 16; Ghulas v. Kolson binte Seydoo Malim, Straits L. R. 462 ; Goods of Lao Leang Ann, Wood's Or. Ca. 85 ; Fatimah v. Logan, 1 Kyshe, 255 ; Ong Gheng Neo v. Yea-p Cheah Neo, 1 Kyshe, 326 ; Hawaii v. Daud, Straits L. R. 253 ; Re Willoughby, 30 L. R. Ch. Div. 324 ; Ghoa Ghoon Neoh v. Spottiswoode, 1 Kyshe, 216; Halimah v. Bradford, Straits L. R. 383; Pootoo v. Valee Ula Taven, 1 Kyshe, 622 ; Re Ullee, 53 L. T. [N. S.] 711, s.c. on Appeal 54 L. T. [N. S.] 286 ; Jamaludin v. Hajee Abdullah, 1 Kyshe, 503 ; and Shaik Ahmoodeen Moallem v. Mamat Safoora Biliee, 6 Suth. W. R. Misc. Rulings, 125. In this case, much argument has been raised before us upon which we do not purpose to give any decided opinion. We hold it to be law now established in the Colony that the Charter of 1807 granted to this Settlement English law, subject to the modi- fications, if any, which that Charter contains, and that this Charter [the language of which is for all the purposes of this suit repeated in the Charters of 1826 and 1855] must be taken into consider- ation in applying English law. Whether, if the point were now material to be decided, the Court should consider itself bound by the interpretation of the words in the Charters that the Court shall administer the law of England " as far as circumstances will admit," to be equivalent to " so as to prevent it from acting unjustly and oppressively on the native races " as expressed by Sir Benson Ma.xwell in Ghoa Ghoon Neoh v. Spottiswoode, which language is apparently approved of by the Privy Council in Ong Gheng Neo v. Yeap Gheah Neo, 1 do not consider myself bound to say. It may be that those expressions being obiter dicta extend no further than the particular circumstances of each of those cases and that in their true sense it is a strain upon language to give them this exact meaning. In dealing with the matter of the choice of a guardian, I should hold myself bound by the principles of the law of England which enjoin the Court to consider in such cases the interests of the children, and no doubt in providing for their welfare I should hold myself bound, without deciding in exact accordance with Mahomedan law, to consider Mahomedan law and the customs of Mahomedans as circumstances to be taken into consideration in deciding the questions of guardianship. In my judgment so far as this case is concerned, llie matter is identical whether we administer Knglish law " so far as circumstances will admit" and " so that injustice and oppression " may not ensue or whether we aim'ply apply English law. The spirit of the law in STRAITS SETTLEMENTS. 335 either case seems to me to be precisely the same, which is to provide for the guardianship of the children that their interests may best be secured. In this decision I leave untouched the question of the applica- tion of Acheen law. The domicile of all the parties is no doubt Achinese, but we must assume until the contrary be shewn that the law of Acheen is identical in this matter with that of England. Order accordingly. May 1. In the course of the enquiry as to the facts of the case and the Mahomedan law, it having appeared that the latter law only applied up to the time the infants attained puberty, and the alleged infants both had so done, and in fact the female alleged infant was a married woman, which marriage had been consummated, the Court considered they were not infants requir- ing guardians, and refused to make any order, except for the maternal grand-mother's costs against the applicant. Wood LBBEAU. 1887. In re SlNYAK Batoon (& Anob. LEE KANG WYE v. NG AH MIN. Before there can be a conviction for cheating under Section 417 of the Penal Code, Psnano. there must be conclusive evidence of a dishonest intent at the time of obtaining the money or goods ; where the evidence does not necessarily shew a dishonest intent at Wood, J. the time, but is consistent with such either being or not being the fact, no conviction 1888. can be had. AVhere, therefore the prisoner obtained a sum of money from the prosecutrix, January 13. promising to give her a share in a boat or tongkang belonging to him, and to let her hold the certificate of registration of the boat, — but a few days after excused himself for not giving the certificate on the ground that her share was a small one, and a few days later on declined to admit she had a share at all, and denied receipt of any money, Held, as the evidence was consistent with a dishonest intent at the time of obtain- ing the money, as also with the denials being due to a subsequent change of mind, a conviction for cheating under Section 417 could not be sustained. The appellant had been convicted by C. W. S. Kynnersley, Esquire, First Magistrate, for cheating, under Section 417 of the Penal Code, and sentenced to three months' rigorous imprisonment, and a fine of $100. The evidence shewed that the appellant was a cousin of the prosecutrix ; that he had gone to her one day say- ing he had bought a boat — a tonkang^ — for |400, and he would give her a fourth share in it if she paid him $100 therefor. The prosecutrix agreed to take a share, and paid the appellant at the time .liiSO to account, five days after she paid him $20 more and four days thereafter the balance $50. He told her he would give her a " surat prahu" [literally boat paper] — presumably the certi- ficate of registration — for her to keep. Three or four days after, he told her as her one-fourth share was a small one, she could not have the " surat " [paper] to keep ; but he would go into accounts every four months and see whether there was any profit or loss. After four months he called to see the prosecutrix and she asked him if there were any profits, he replied she had no share in the boat, and went away. She asked for her money, but he denied having received it, — the prosecutrix then reported the circum- 336 THE SUPREME OOUET. Wood, J. stances at a Police Station. It also appeared that at the time the ■ prosecutrix a.g-reecl to take a one-fouith share as aforesaid, she Lee Kanq sent her son to see the boat and it was pointed out to him by Wye appellant. There was no question, he was the owner of the boat N a" M ^"^ pointed out. The appellant denied having given any share to the prosecutrix and also the receipt of any money from her for the purchase thereof. Having been convicted as aforesaid, he now appealed, and the formal record of conviction sent up by tbe Magistrate with the case stated by him herein, was [omitting formal parts] as follows : — " Lee Kang Wye is convicted before the undersigned Magistrate, &c., for that he in the month of April, 1887, did cheat one l^g Ah Min by inducing her to pay him a sum of money, to wit : SlOO, in the belief that he would give her a fourth share in a tongkang which he did not do, and thereby committed an offence punishable under Section 417 of the Penal Code." Van Someren, for appellant contended, that there was no evidence of a dishonest intent at the time he oifered the prosecu- trix the share or received the first payment ; that the whole case, including the denial of the receipt of any money, was consistent with an honest intention at that time, but a subsequent change of mind. That was not sufficient upon which to convict — Queen V. Heeraman Hvloye, 5 W. R. Cr. -5 ; Be Heeraman Haloye, 1 Ind. Jur. 97, and Mayne on. the Penal Code, 339, 340. The case at most was one of breach of contract. The peculiar wording of the con- viction shewed this, and would tend to shew the Magistrate had not considered the real point in the case, namely, whether there was a dishonest intent at the time. D. Logan, [Solicitor-General] contended, that there was suffi- cient evidence to support the conviction, as the appellant promised the prosecutrix the register, and then excused himself for not giving it to her — then denied she had any share^and eventually denied he had received any money. The Magistrate might well from these facts have come to the conclusion that the appellant had a dishonest intent at the time he first received the money, — that he had then in fact no intention to fulfil his promise, but was desirous of obtaining money of the prosecutrix which he could only have done by means of the deception. The Magistrate having found the appellant guilty of "cheating" [Section 417] shewed he must have considered the real question in the case — the dis- honest intent at the time — and having on the evidence come to the conclusion, that the appellant had that dishonest intent and was guilty, the Court would not interfere with his decision. The wording of the formal conviction was due to a clerical error and the words " which he did not do " were intended for " which he did not intend to do; " the Court could amend the formal convic- tion under the Appeals Ordinance 12 of 1879, Section 33, by insert- ing these two words and the conviction would then be perfectly good. Wood, J. said that he could only amend the conviction if the facts warranted it — here the evidence was not such as necessarily proved a dishonest intent ; it was consistent with the appellant's STRAITS SETTLEMENTS. 337 guilt as well as with his innoceuce — with the fact that there might have been a dishonest intent at the time, as with the defendant's denials being due to a subsequent change of mind. The prosecu- trix was bound to shew conclusively there ivas the dishonest intent — they have failed to do so beyond a reasonable doubt — it was at most a case of mere suspicion. There was therefore no evidence before the Magistrate on which he could lawfully convict the appellant. The formal conviction also tended to shew the Magis- trate had not considered the real question of the dishonest intent, and seemed to think a mere non-fulfilling by the appellant of his promise was sufficient to render him guilty. The conviction must be quashed. Conviction quashed. Wood, J. 1888. Lee Kanq Wte V. Nq Ah Min. Wood, J. 1888. SAHAT V. HAJEE BRAHIM. A person who inflicts a wound on another is answerable for the results, if the Pknano. results follow without unreasonable conduct on the part of the man wounded. Where, therefore the prisoner inflicted a wound on the prosecutor, which in itself was not a serious wound, but the prosecutor omitted to obtain proper and imme- diate remedies, by reason whereof the wound got into an unhealthy state and only after it got to that stage the prosecutor was sent to the hospital where he was kept by the February 27. Medical Officer for treatment for twenty-three days during which time he was unable to follow his ordinary pursuits. Held, that the foul state of the wound and the consequent detention in hospital must be considered the result of the prisoner's act, and the case was therefore one of grievous hurt under Section 325 of the Penal Code, and not simple hurt under Section 323, and a Magistrate's conviction for the latter could not be sustained as he had no jurisdiction over a case of grievous hurt. The appellant [Sahat] bad been convicted by J. K. Birch, Esquire, Magistrate, Province Wellesley, for voluntarily causing hurt to the respondent under Section 323 of the Penal Code. The evidence for the prosecution was that the prosecutor [the respondent] went to lift his fish-traps from a field and having done so, was returning home when the prisoner [the applicant] followed him, and having made up to him, struck the prosecutor with a heavy stick on the left upper-side of forehead which caused the prosecutor to fall down senseless. The prisoner tben went away leaving the prosecutor lying in the field in that condition, and so he remained for upwards of an hour, when having recov- ered his senses, he got up and managed to make his way home. The prosecutor was very ill after that for some days and was unable to get up and go out. He requested his wife to inform the Penghulu of it, but she omitted to do it. The prosecutor thereafter was unconscious from fever caused by tlie wound, and six days after a Detective came to his house, and he reported the assault, and was thereupon sent to hospital. From the evidence of the Apothecary it a.ppeared that the prosecutor had been in hospital from 18th November to Uth December, suffering from a scalp-wound which was some days old when he was admitted and was then mattering, and in an unhealthy state. There was no in jury to the- bone, but it was exposed. The Apothecary was of opinion that the wound would have been healed in half the time had it been treated at once. Fever again came on and the man 338 THE SUPREME COURT. Wood, J. 1888. Sahat V. Hajee Bbahim. was in a weak state, but this was attributed to want of proper treat- ment at first. He was naturally of a good constitution and at time of bis discbarge from bospital was nearly well. Tbe Magis- trate dealt witb tbe case summarily as aforesaid and sentenced the prisoner to six months' rigorous imprisonment. The prisoner appealed. Van Someren, for appellant contended, that tbe ofPence disclosed by tbe evidence if to be believed was grievous hurt, as the prosecutor was unable for moi'e than 20 days to attend to bis usual occupation, and was thus an offence which the Magistrate bad no jurisdiction to deal with summarily and tbe conviction should be quashed. He referred to Sections 320, 325 of tbe Penal Code ; Man v. Samsah, 3 Kyshe, 99 ; Ordinance 13 of 1872, Sections, 1, 5; Begina v. Bamtohul Singh, 5 W. R. Cr. 12; Regina V. Pym, 1 Cox. Cr. Ca. 330, and Mayne on tbe Penal Code, 250. D. Lr>gan, [Solicitor- General,'] for the Crown contended, that tbe Magistrate might fairly have considered on tbe evidence that the case was one of simple hurt only, as the prosecutor's detention in bospital was partly caused by bis own act in not obtaining immediate and proper remedies and was not tbe direct act of the prisoner. Wood J. I am of opinion that the Magistrate should, look- ing at the evidence, have come to tbe conclusion that the complainant was, by the act of the defendant, rendered unable to follow bis ordinary pursuits for the period of twenty days. 'I'bat he was so in bare fact is, I think, clear. For six days he was insensible and then went to the bospital ; bis being kept in hos- pital treatment is proof presumptive at least that he was unable witb safety to follow his ordinary pursuits. I think that the defendant's act caused tbe results, in such a case as this, if tbe results follow without unreasonable conduct on the part of tbe complainant. I can see no iinreasonable conduct on the part of the complainant in this case. Tbe conviction must be quashed, and tbe case remitted to tbe Magistrate to be dealt with as one of grievous hurt. Conviction quashed. Case remitted accordingly. SAMMUGUM V. PRASER. SiNGAPOEB. ^^'6 defendant being the lessee of certain brick fields belonging to the Govern- ment, by one of the clauses of the lease agreed if required to make and supply to and GoLDNET J. ^01' ^^^ ^^^ of *he Government, bricks of a given size and quality at a fixed rate per 1888. 10,000. The plaintiff thereafter became a contractor to the Government for the build- ing of a wall for the Public Works Department and was to provide all necessary mate- March 2. '■''lis for the work. The Government arranged with the plaintiff that he should procure his bricks from the defendant, the cost of which should be deducted from the contract price to be paid the plaintiif. The Government thereupon gave the plaintiff orders on the defendant for bricks of the requisite dimensions, which the plaintiff handed to the defendant and obtained from him the right quantity of bricks. The plaintiff after- wards found a large portion of the bricks so supplied by the defendant were of smaller size and brought the fact to the notice of the Government. The Government however on the defendant presenting his bill against them for full size bricks paid him his bill in full and thereafter deducted the amount from the amount they had to pay the plaintiff for the wall. The plaintiff thereupon sued the defendant for his (oss by reason of the defendant's supply of the smaller size bricks. STRAITS SETTLEMENTS. 339 Held, on appeal [reversing the judgment of the Court below, Ooldney, J. dissent- Goldnet, J. ing] that there was no privity of contract between the plaintiff and the defendant nor 1888. any duty which the defendant owed the plaintiff, and the plaintiff could not therefore recover. Sammuqum V. This was an action to recover $295.24, the plaintiff's loss in ^«^^=^- consequence of the defendant supplying him with bricks smaller than those he ought to have delivered. The defendant, by his defence, denied he sold any bricks to the plaintiff or made any arrangement with him for the supply of bricks ; and alleged that his .contract was with the Government on whose account he delivered the plaintiff the bricks and he had been paid by the Government for them. Among other things that were proved in evidence, it was shewn that the defendant had a lease from the Government, dated 4th September, 188-5, of certain brick fields, and by a clause in this lease he agreed, when required, to make and supply to the Government certain quantities of nine-inch bricks per month at $80 per 10,000 bricks ; that the plaintiff had a contract with the Government, dated 6th November, 1885, for the building of a wall at the Lunatic Asylum, Singapore, and as he had to supply all the materials of the work, it was arranged between the plaintiff and the Government that he should procure his bricks from the defendant, and their cost was to be deducted by the Government from the contract price to be paid him for the wall ; that the plaintiff for this purpose, got orders from the Oovernmenton the defendant for nine-inch bricks, which orders he handed the defendant and obtained from him the requisite quan- tities of bricks ; that the plaintiff received the bricks without examining them, but afterwards found out that a large portion of them were S^-inch bricks, instead of nine-inch; he immediately communicated the fact to the Government who however, though they ascertained the complaint to be true, considered the plaintiff was himself to blame for having received the bricks, and on presenta- tion by the defendant of his bills for the quantity of bricks sup- plied, as nine-inch bricks, paid him in full and afterwards deducted the amount from the amount they had to pay the plaintiff for the wall. The plaintiff submitted to this deduction and in addition having had to purchase other bricks by rejtson of the smallness of the defendant's bricks he suffered a loss and now sued the defendant for damages for such loss, which he estimated at the amount for which he brought this action. Plaintiff, in person. Buehely, for defendant. Gut. Adv. Vult. March 12th. Goldeny, J. This was an action for breach of contract. The plaintiff, a contractor under the Public Works Department, was supplied with a large number of bricks by the defendant. He alleges that these bricks by the contract should have been nine-inch bricks, whereas in fact they were only S^-inch bricks. Tt is not disputed that the supply of bricks in size less than the contract size, would entail a loss iipon the plaintiff, but on the part of the defendant two defences were raised, First, 340 THE SUPBEME COURT. GOLDNET, J 1838. Pkaseb. that there was no contract between the plaintiff and the defend- ant ; secondly, that even if there was any contract, that the Sammugum principle of Caveat emptor applies, and that the plaintiff having accepted the bricks cannot recover any loss that he may have sustained . As to the first point, I think the contract was between the plaintiff and the defendant and that the intervention of the Public Works Department was simply in the interest of the defendant to secure the defendant receiving payment for the bricks supplied by him to the plaintiff. There was no obligation on the part of the plaintiff to use the defendant's bricks, all that he had to do under his contract with the Public Works Depart- ment was to use bricks satisfactory to them. For the interest of all concerned he authorised the Public Works Department to retain oiit of the moneys due to him under his contract the price of the bricks supplied to him by the defendant. There was no contract between the Public Works Department and the plaintiff for the supply of bricks. Assuming that the contract for the supply of bricks was made by the Public Works Department with the plaintiff on making that contract they acted as agents for the defendant. As the contract of the agent is in law the contract of the principal, the latter may come forwai-d and sue them although at the time the contract was made the agent acted as, and appeared to be the principal. In my opinion the defendant has failed to make out his first ground of defence. As to the second point raised by the defence with reference to warranties as to quality upon sales of goods, the general rule is that the law does not imply a warranty as to their goodness or quality. The rule is Caveat emptor and in general no liability is incurred by reason of bad quality or defects, unless there be an express warranty or fraud ; but where goods are sold as being of a particular description this will amount to a warranty that they answer such description. The bricks in question were sold by the description of nine-inch bricks, and if they did not answer that description there has been a breach of contract. Where the goods delivered to the buyer are inferior in quality to that which was warranted by the vendor, the buyer has the choice of three remedies. First. He may [except in the case of a specific chattel in which the property has passed to him] refuse to accept the goods and return them. Secondly. He may accept the goods and bring an action for the breach of warranty'. Thirdly. If he has not paid the price, lie may set-off or set-up by way of counter- claim, damages for breach of warranty in the vendor's action for the price. The second proposition that the buyer may after receiving and accepting the goods bring his action for damages in case the quality is inferior to that warranted by the vendor needs no authority. It is taken for granted in all cases, there being nothing to create an exception from the general rule, that an action for damages lies in every ease of a breach of promise made by one man to another for a good and a valuable consideration— Puullon V. Lattimore, 9 B. & C. 257. In my opinion there has STRAITS SETTLEMENTS. 34l been a breach of contract on the part of the defendant which Foed, C. J. entitles the plaintiff to damages ; the only question is the amount ^°°f'l of such damajj;es — as far as I am capable of judging on the LERHAn j-J.J. evidence before me, the plaintiff is entitled to §93.60 damages. &Gold.| Verdict will be for the plaintiff for $93.60 with costs. NET. 1S88 The defendant appealed against this judgment, and such Sammugum Appeal was heard on the 7th and 8th June before the Full Court Fbasek. of Appeal, consisting of Ford, C.J., Wood,Pellereau and Goldney, J.J. Buchley, \_Nnnson with him] for the appellant. Respondent, [plaintiff] in person. CuTi Adv. Vult, June 12th. The Court being divided in opinion, the judgment of the majority of the Court \_Ford, C. J., Wood and PeUareau, J.J. was read by Wood, J. In this case it is with much regret that we are compelled to differ from the judgment in the Court below. We say with regret for according to the facts there found it would appear to be clear that the defendant has been over-paid for the supply to the plaintiff of inferior bricks for which the plaintiff has in account with the Crown been improperly charged. The Court below however, has found that there was a contract between the plaintiff and defendant, and on this point as it appears to us, the judgment below cannot be supported. The facts appear tons to be that Fraser having long ago agreed with the Crown to sup- ply bricks to their order for the Public Works of the Colony, the plaintiff subsequently enters into an agreement with the Crown to do certain woi-k for which bricks are required, which bricks the Crown undertakes to obtain for him through their connection with Fraser, at a certain price, which price is to be deducted from the amount to be paid by the Crown to the plaintiff on the completion of his work. Plaintiff thereupon obtains orders from the Crown on Fraser for the supply to him of bricks of certain dimensions, and for a time Fraser does supply these bricks ; he afterwards supplies and plaintiff takes away bricks of smaller dimensions which are not worth the price due for the larger bricks, and thereupon at once makes known the fact of the inferiority in dimension of the smaller bricks to Mr. Ay re, who acts for the Crown. Of this Mr. Ayre takes no practical notice, and subsequently the Crown pays Fraser in full as for bricks of the larger dimensions deducting the full price on settlement with the plaintiff for the work done on the ground urged by Fraser, that the plaintiff by taking away the bricks of smaller dimensions given to him by the defendant, accepted them as being of full size. Looking at the judgment of the- Court below and the evidence taken before it, we can see nothing by which any contract can be assumed to have existed between plaintiff and defendant. The defendant has throughout held to his contract as being with the Government alone, and the mere delivery of the bricks to the 342 THE SUPREME COURT. Wood, Pel- C.J. J.J. NET. J 1888, Fbaseb. plaintiff cannot constitute any contract of sale as between plaintiff and the defendant, where, as here, delivery is obviously a delivery under another contract, nor under such circumstances does the mere heading of bills sent in by defendant to the Govei-nment in respect of the plaintifE, afford any evidence of such a contract of sale if indeed such bills when carefully looked at do not directly SAMMtronM aid the plaintiff's contention. The defendant as it appears to us, had had no dealings except with the Government with whom he had undertaken to deliver bricks to their order, and the fact that the Government had intervened in the matter and the plaintiff become a receiver of bricks made by Fraser, seems to us to have been caused by the joint action of the plaintiff and the Govern- ment to which the defendant has been no party. We look at Fraser as contracting with the Government alone ; he is ultimate- ly paid by the Government for the bricks supplied to plaintiff, notwithstanding that they know that there had been a complaint made by plaintiff that the bricks were smaller in dimension than they ought to have been, he seems to have demanded payment of the Government and the Government have paid him, with full knowledge through their servant Mr. Ayre, that the bricks were under size on the ground urged by Mr. Fraser as abovestated, and admitted as valid by the Government that the plaintiff by taking away the bricks had accepted them as of full size. That the plaintiff has sustained injury as above expressed we certainly think, and could it have been established upon sound equitable grounds in this action, regard being had to the facts of the ciise, that irrespective of direct contract between plaintiff and defend- ant, a duty could be shewn to exist on the part of defendant to re-pay the plaintiff the sum which he has received for the supply of the inferior article at the price of the superior one, we should have received such a result with satisfaction, a result which after much consideration we are unable to reach. Goldney, J. I regret that I am unable to agree with the decision at which the majority of this Court has arrived. The point upon which 1 differ from the rest of the Court is one rather of fact than of law. To state it shortly, it is the construction to to be put upon the orders under which the bricks were in fact delivered by the defendant to the plaintiff, and for which deliveries in fact, the defendant received in pnyment the plaintiff's money. These orders were handed by the Superintendent of Works, Mr. Ayre, to the plaintiff, who sent them with his carts to the defendant's brickyard and received delivery of the number of bricks specified in the order. On the whole evidence that was before me in the Court below, the inference which I drew [an inference which nothing which has been argued before this Court has altered] was, that these orders were advice notes or delivery orders upon the defendant for the supply of bricks given to the plaintiff by the Superintend- ent of Public Works acling for and on behalf of the defendant and at hiit request. Looked upon in this light, the transaction is a very simple one. The Government having started some brick works for the purpose of being able to obtain a certain quality STtlAlTS SETTLEMENTS. 343 Sammugtim V. Fraseb. and size of bricks for public buildings, find it to their advantage ^OR"- C.J. to lease these works instead of carrying them on themselves. ^°°"'] Not (0 lose the object for which the works were started, a stipu- lebe.vu ' J.J. lation is put in the lease which obliges the lessee if required so &Gold-j todo, to make 311 d supply to, or for the use of Government, ^^J^J bricks of the size, quality and description, &c. ' In the carrying out of this stipulation, the lessee [Frsiser] and the Government seem to me to have come to an under- standing that when public works are being constructed and the Government are not their own contractors, and bricks are required by the contractor for use upon the Government works, that the lessee on receiving notice from the Government would accept the Government contractor instead of the Government — supply him with bricks a,t the Government rate — provided always that the Government would secure the lessee from loss by arranging with the contractor that they [the Government] should stop the price of the bricks supplied to the contractor by the lessee out of the monthly payments due from the Government to the contractor. A passage from Bam on Assets, p. 386, perhaps will illustrate the principle which seems to me to apply to this case : " Between a lessor and his lessee for years there are a privity of contract and a privity of estate. And as to an action of debt for the rent i-eserved in the lease, the privity of contract is personal and holds only between the lessor himself and the lessee himself. If a lessee for years assigns the term, then on the privity of contract between the lessor and lessee, the lessor may, until he has accepted of the assignee as his tenant, bring an action of debt against the lessee for the rent due after the assigment. But this action of debt, the lessor cannot maintain after he has taken rent of the assignee and so accepted him as his tenant, for this acceptance extinguishes the pi-ivity of contract." To apply this illustration, it seems to me that the privity of contract between Eraser and the Government [in reference to the particular quantity of bricks contained in the order] was extin- guished by the acceptance by Fraser of the plaintiff in the place of the Government of which acceptance in my opinion there is ample evidence before the Court. The privity of contract between Fraser and the Government being extinguished, a new privity of contract arose between Fraser and the plaintiff on which the plaintiff can bring his action. The view taken by the majority of the Court is that these orders are actual contracts of bargain and sale between the Government and defendant, contracts in which the Government act as principals and not as agents. If the latter view is correct, it must follow that there was a contract of bargain and sale betwi^en the Government and the plaintiff. That is, that the Government having bought the bricks from the defendant re-sold them to the plaintiff. There was, as far as I can see, no evidence of such a contract ortransaction. The defend- ant's manager seems to me to have stated pretty clearly what the real transaction between the parties was when he said "the Government is responsible; the money comes from the contrator." In other words the Government were acting as sort of del credere agents for the vendor. 344 The supreme coGRt. Four, C. J. Wood, -j Pel- J LEBEAn y J.J, &GOLD-C KEY. ' 1888. Sammugum V. Fkasek. Penang. "Wood, J. 1888. March 7. The evidence before this Court is not I think absolutely inconsistent with either contention ; that is, it is not absolutely inconsistent with the view that the order on which the bricks were delivered to the plaintiff were contracts to which the defend- ant and the Government alone were parties, — and on the other hand, the evidence I think cannot be said to be absolutely incon- sistent with thQ view that in handing these orders to the plaintiff, the Superintendent of Public Works was acting for defendant and on his hehalf, and that the bricks were delivered by the defendant to the plaintiff on that understanding. Before the appellant can succeed, he must establish that the Court below could not by law have drawn from the evidence before it the inference' that the Superintendent of Public "Works on handing the orders for the delivery of bricks to the plaintiff, was acting for the defendant — Great Western Railway Go. v. Bragge, 15 L. R. Q. B. Div. 628. In my opinion, the appellant has failed to do this. A great deal of stress was laid upon the lease of the brickfield by the Govern- ment to the defendant, dated the 4th of September, 1885. The view which I took of this case from the first was that it in no way affected the plaintiff who never was a party to it. On the other points raised by the appellant, the majority of the Court are, I understand, of opinion that if a privity of contract existed between the plaintiff and the defendant, that the plaintiff would have a right to recover damages from the defendant. I think the appeal should be demissed with costs. Judgment reversed. Costs in the Court below and on the appeal to be paid by respondent [plaintiff]. SHAYNA MDSTAN ROWTER v. KANA SHAIK IBRAHIM. Although the Statute of Frauds if iiitouded to he relied on must, hy Section 175 of the Civil Procedure Ordinance, 1878, be specially pleaded, yet there is nothing to prevent the Court iu the exercise of iLs discretion even at the trial of a case, giving leave to the defendant to amend his defence hy pleading the Statute. This was an action on an agreement for a lease for the specific performance of it or damages for its breach. The state- ment of claim set out the agreement which was in writing, and the defendant in his statement of defence specifically admitted having made it. During the coarse of the trial the agreement was produced and it appeared that it had never been signed or executed by. the defendant. Adams, [on behalf of T/iOT/.as] for the defendant immediately thereupon applied to the Court for leave to amend his defence by pleading the Statute of Frauds. G. H. S. Gottlieb, for the plaintiff objected, contending that under Section 175 of the Civil Procedure Ordinance the Statute must be specially pleaded ; he referred to Clarice v. Callow, 46 L. J. Q. B. [N. S.] 53 ; Pnllen v. Suelus, 48 L. J. C. P. [N. S.] 394; Catling v. King, 46 L, J. Ch. [N. S.] 384; and contended that to allow such an amendment at the trial especially, would be prac- tically to defeat the section. He further contended that the defendant having admitted the agreement in his statement of defence should not be permitted now to deny it, Collette v. Goode, STRAINS SETTLEMENTS. 345 "WOOB, J. 188S. Shayna MUSTAN EOWTER. 7 L. E. Ch. Div. 842 ; that the defence was a teclinical one and should not be favoured and let in by an amendment, — i2f>Zi v. Cox, 2 Wils. 253, and Collette v. Goode, supra. Wo.iid, J., said the Statute of Fr-iuds was passed with the express object of putting down fraud and perjury, and it could hardly be called a teclinical defence. Under the provisions of Kana'shaik the Civil Procedure Ordinance, 1878, the Court had large powers Ibrahim. of amendment, powers which were intended should be liberally exercised. Section 175 dealt exclusively with the defence of the Statute being specifically pleaded, but did not expressly or by implication prevent an amendment being allowed to put in such a plea; the Court had power to allow amendments even at a trial and there was no reason why an amendment to let in such a defence should not be made even at that stage ; and if the plain- tiff was taken by surprise by the amendment he would be entitled to have an adjournment. He would therefore, in exercise of his discretion and power, allow the amendment asked for, and if he was wrong in so doing, the plaintiff could set him right through the Court of Appeal. Leave to amend given. SYED MAHOMED ATTAS v. TEK LEE. STED MAHOMED ATTAS v. TAN POK SYE. Section 322 of the Civil Procedure Ordinance, 1878, is merely permissiYe and the Court in the exercise of its discretion may refuse a case to be withdrawn, or postponed, or shifted down the list, notwithstanding both parties consent, and are desirous to do so. These were actions on a building contract. They were con- nected but somehow the first of them was on this day's list for hearing, and the second of them on the next day's list. The parties were desirous the two cases should be tried together and as Thomas, Counsel for the defendants was absent from Penang, but was expected to arrive the next day, the parties and Solicitors on both sides agreed to postpone the cases to a day in the follow- ing week and below the fifth next case on the list. On the first ease being called on for trial in open Court, Van Someren, [for Thomas'] for defendants moved for a post- ponement accordingly, and referred to Section 322 of the Civil Procedure Ordinance 5 of 1878. Adams, for plaintiff signified his consent and stated he did not mind being shifted five cases lower down, but objected to go to the bottom of the general list. Wood, J. [after consulting Pellereau, J.] said his learned brother agreed with him in holding that Section 322 was merely permissive and did not deprive the Court of its control over the Cause list. He strongly objected to postpone a case to another day as it would not be fair to other suitors whose cases had been fixed for definite days to be deprived of their days. The only postponement he could therefore allow was, that when there was a consent on both sides, the case should go to the bottom of the general list. Adams, thereupon consented to go to the bottom. Order accordingly . Penang. W OOD, J. 1888. March 8. §46 TifE Sui*EEME OOtJilT. EEGINA V. OXG KONG POON. Pemano. The prosecutor had rented a strip of laud at the back of a shop in Prangin Lane in which he resided. The appellants [thirteen in number] were carrying granite Wood, J. stones, passing and repassing over the strip, thereby scattering some paddy the jiro- 1888. seoutor had laid out to dry. This led.to words and eventually to blows. The strip lay at the back of the shop by the sea side, and though some distance from.the public March 12. thoroughfare, it was open on all sides and was distinct from the shop land which was fenced all round ; over the strip was a lane or foot-path. Crowds of people were attracted to the spot hj the noise of the fight. Meld, that the strip was not a " public place " within the meaning of Section 159 of the Penal Code, so as to render the appellants guilty of an affray. The appellaats [thirteen in number] had been convicted by R. N. Bland, Esquire, Magfistrate, for an affray " at Prangin Road, in Penang, so as to disturb the public peace" under Section 160 of the Penal Code. One of the appellants was also convicted for voluntarily causing hurt. The evidence shewed that the pro- secutor had rented a strip of land at the back of the shop he occupied, No. 134, Prangin Lane, on which he was drying paddy. The appellants were carrying granite stones and passing back- wards and forwards over the strijj of land and scattering the paddy thereby. This led to an altercation which ended in a general row in which sticks were used and stones thrown about. The prosecutor himself was wounded by the appellant who was convicted of hurt and was eighteen days in hospital. The strip of land lay on the sea side of the shop lands which was fenced all round, and over this strip was a lane or foot-path. The spot was open on all sides, but was some distance from the public thorough- fare, Prangin Road. On the row beginning crowds of people came up from all sides and eventually the Police too, who succeeded in arresting the appellants. The appellants now appealed against the conviction for " affray." Thomas, for them contended, that the place was not a " public place" within Section 159 nor was it a disturbance to the public peace. There was no evidence of eithei-. The crowds were drawn by the disturbance and were not there before. D. Logan, [^Solicitor-GeneraV] contended, there was sufficient evidence that the place was a " public place " as though private land rented by the prosecutor, it was open on all sides like the generality of lands at the back of Beach Street adjoining Weld Quay, and the evidence shewed crowds of people were present. He referred to Mayne on the Penal Code, 241. Wood, J. 1 think the evidence adduced was iVufficieirt to support the fact of the place being a " public plkce " within Section 159 of the Penal Code. The conviction for affray is therefore quashed. Conviction quashed. In re RAJAH SAMSUDIN TUNKU JAKSA. PsNANa. Neither the Magistrate enquiring into an Extradition Case under the Extradition Act of 1870 [33 & 34 Tic. c. 52], nor this Court on proceedings thereunder for an Wood, J Habeas Corpus, can take jiuKcial notice of any Treaty made with iiny Eorei^n Power 1888. "Of °f ^"y Proclamation or Order in Council, by Her Majesty or otherwise [a}\, March 12, [*-J P^^ ""^ Ordinance 1 of 1888, Section 14, as amended by Ordinance 9 of 1888, Section 2. STEAITS SETTLEMENTS. Uf applying such Act to the Treaty, even though such Treaty and Proclamation or Order exist in fact, and are duly published in the Government Gazette in accordance with the Act. There must be evidence before the Magistrate that the Act has been applied to the Ireaty; but the bare production in evidence before him, at the enquiry, of the Govern- ment Gazette containing such Treaty and the Proclamation or Order in Council, is conclusive evidenve of the Act having been applied. _ If this is omitted, this Court has no j urisdiction to supply the defect, by receiv- ing the Government Gazette in evidence, for it has no power to receive any evidence, but IS confined to the evidence and documents which were before the Magistrate. Query. "Whether the Magistrate has power under the aforesaid Act to receive evidence tendered by the accused in reference, not to his identity or the matter being a political ofEence*-but as to His innocence, and in disproof of the case for the prose- cution ? '^ ' This was a Eule Nisi obtained by Van Someren on behalf of the abovenamed accused, calling on W. Egerton, E.squire, Magis- trate, Penang, the Jailor of the Criminal Prison, and the Consnl- General for the Netherlands to shew cause why a writ of Habeas Cor/jM/j should not issue with a view to the discharge of the accused from custody. The accused was charged with having cheated the Gambling Farmer at Sirdang, in Sumatra, and his extradition had been requisitioned for_bx-ilie_Consul-General for the Netherlands, and the Governor of this Colony had issued his Order to'the Magis- trate, under the aforesaid Extradition Act, 1870, signifying the fact of such requisition having been made. The accused was arrested and the enquiry was held by the Magistrate who com- mitted him to prison, under Section 9, to await the Governor's Order for bis rendition to the Netherlands authorities. On the close of the case for the Crown, Counsel for the accused tendered evidence to prove him innocent of the charge. The Magistrate, after referring to Sections 8, 9 and 10 of the Extradition Act, 1870, declined to receive any evidence for the accused, consider- ing he had no power under the Act to take it, unless the prisoner's identity was in question, or the ofEence was a political one-^and suggested that the Supreme Court, on the application for'the Habeas Corpus, was the place and time to tender and receive the evidence here ofiBered. Her Majesty the Queen had entered into a Treaty with His Majesty the King of the Netherlands for the extradition of fugitive criminals found in each other's dominions: the Treaty was dated 19th June, 1871, and by Her Majesty's Order in Council, dated 6th August, 1874, the aforesaid Act was applied to it. The Treaty' and Order in Council, or Proclamation was published in the Straits Government Gazette of 24th October, 1874. There was no evidence however before the Magistrate of the Treaty, or that the ActTiad been applied to it ; the Government Gazette was not produced in evidence, nor was it then in any manner referred to. There were several objections to the proceed- ings and commitment, but the two hereinafter mentioned, were the diily"oires referred to in the arguments, as the decision of the Court rendered it unnecessary to go through them. The Rule Nisi now came on for argument. D. Logan, [Soliciior-Geiieral] shewed cause and contended, that the Magistrate having had the Treaty and Order frequently before him in other cases, was quite aware of their existence and Woot), J. 1888. In re Eajah Samsudin TuNKXJ Jaesa. 348 TliE SUPRI^ME COURT. AVooD, J. 1888. In re Eajah Samsudin TUNKU Jaksa. he was entitled to take judicial notice of them. The Criminai Courts were to presume that all requirements of the law, in order to constitute the offence, had been complied with. Ordinance 6 of 1873, Section 47 ; 33 & 34 Vic. c. 52, Sections 2, 5 ; lleg. v. Wilson, 3 Q. B. Div. L. E. 42. The Treaty was matter of " public history " and books on public history were receivable in evidence. Act II. of 1855, Section 47 ; he now therefore tendered the Government I Gaz-tte of 24th OctoBer7TB74, iii evidence, as proving the Treaty i and Order in Council. At all events, the wrongful rejection of evidence would be no ground for setting aside a conviction or order, unless injustice was done — Ordinance 12 of 1879, Section 33, and a fortiori the mere omission bj^ an oversight, to take .evidence, would not be. The Magistrate was right in refusing to I take the evidence tendered by the prisoner ; he had no .power to ' receive it — Extradition Act, 1870, Sections 9, 10. Van Someren, in support of the rule contended, the application of the Act to the Treaty was _the. essential thing, before the Act could be acted on — 33 & 34 Vic. c. 52, Sections 2, 5 ; the provisions of the Order and Treaty limited or modified the provisions of the Act. Ibid — Beg. v. Wilson, supra; and the Magistrate must there- fore have before him evidence of the Order. Clarke on Extradition, 178 [2nd Ed.] Neither the Magistrate nor this Court conld take judicial notice of the Treatv or Order in Council. 1 Taylor on Evidence, [8th Ed.j Sections" 10, 18, 1305-9; 1527, 28; 1662-64. There being no evidence of the Act having been applied, the pro- ceedings here were defective in the most essential of requirements. This Court could not remedy the defect and supply the evidence |[by receiving the Government Gazette now tendered, as it was bound Ijby the order of commitment and the evidence and documents on I Iwhich it proceeded — that order was final and could not be re- opened or added to. Re Piper [a.] and re Favier [6.] The Act j and Ordinance referred to by the other side, had no application I to an Extradition case. Re Rykschroeff, 2 Kyshe, Hab. Cor. Ca. 10. The Magistrate improperly refused to receive evidence tendered to prove the innocence of the accused : he had power to receive it. Reg. v. Lauvadier, 15 Cox's C. C, Clarke on Extradition, 184-90. pp. [«.] ante p. 221. [i.] i. T. Newspaper [N. S.] No. 2274 of 30th October, 1886, p. 44:4—"Exiradi. Hon. 33 & 34 Vic. o. 52, Sections 9, 10— Jurisdiotionof Magistrate— Decision of Magistrate conclusive— Alibi— New Evidence. We have received the following note of an appli- cation in the vacation : This was an application on a return to a writ of Habeas Corpiit in the case of two Frenchmen, Adrien Favier and Joseph Provin, for whose extra- dition the French Government had applied under the Treaty between France and this country in respect of an alleged crime, and who had been committed by Mr Bridge Police Stipendiary Magistrate at Bow Street, to await the warrant of the Secretary "of State for extradition tor such crime. Sernard 0. Wilson, Solicitor for the prisoners contended, that inasmuch as the Extradition Act, 1870, provided for the rete'ntion of the prisoners in this country for a period of fifteen days after the committal by the Magistrate and previous to their being handed over to the authorities, to enable them to apply for a writ of Habeas Corpus ad stibjieiendum, such provision was so made for the express purpose of o-iyinw the Judge before whom the writ was returnable, jurisdiction tg re-open the case, so as to admit as m this case, any evidence which could be given on behalf of the prisoners but which could not possibly be produced before they were committed. And further that the STRAITS SETTLEMENTS. 349 Wood, J. I am of opinion the Rule must be made absolute. The Extradition Act, 1870, can only be enforced where there has been a Treaty with the Foieign State making the requisition, and the Act has been applied to the Treaty by Order in Council. There was no evidence in this case of the Treaty or Order in Council. Tliey_both^xi^hi_Xa^ and the only question is, whether the TSEagistrate ccvuTd ^taEe judicial notice of them. The authorities cited are clear, that neither he nor this Court can do so. The objection is therefore fatal. This Court has no power to re-open the case and receive evidence, after the Magistrate has committed the accusecf— even though such evidence is the mere production of the Government Gazette, which, at the enquiry, would have been conclusive. I fail to see the application to an Extradition case, of the sections in the Acts and Ordinances referred to by the Solicitor-General. It is unnecessary to say anything as to the power of the Magistrate in such cases, to receive the evidence teqdei^ed by the accused. I should like to have heard it fully argued, and to have considered the point, — but the first objection succeeding, that is suiRcient to dispose of the ease. The Rule will be made absolute for the Habeas Corpus to issue for the prisoner's discharge. Rule absolute. Wood, J. 1888. In re Bajah Samsudin Tpnku Jaesa. SAHID V. FU AH SEH. A The prisoner seeing a hawker go past, called him and asked to see some of the sarongs lie had for sale. The hawker handed him four, and it was eventually agreed he could have them for $3. The hawker then asked for payment, but the prisoner told him to come "another day"; thereupon they had words and the prisoner having struck the hawker, ran away with the sarongs. He could not be found nor the sarongs, till he was arrested on a later day on a warrant. Held, he was properly convicted of " theft " under Section 379 of the Penal Code. A statement made by a person to another at or about the time of the occui'renoe of the fact spoken to, is admissible as corroborative evidence by that other person under Section 3 1 of the Evidence Act II. of 1855. The appellant [SahidJ had been convicted by J. K. Birch, Esquire, Magistrate of Province Wellesley, of theft under Section 379 of the Penal Code. The evidence shewed that on the 4th January, at about mid-day, the prosecutor, who was a hawker of evidence then to be produced, went to prove an alibi ; also that the official documents produced by the authorities demanding the extradition, did not disclose sufficient evidence upon which the Magistrate could have jurisdiction. Danckwerts for the Crown, relied ujion the case of Reg. v. Maiirer, 10 Q. B. Div., contending that the Judge had no jurisdiction to re-open the case, and that the prisoners were in the four corners of the committal. "^ "' IfrantEam^ J. I think that the application must be refused. I am of opinion also that there was sufficient evidence to give the Magistrate jurisdiction, and that, having so committed the prisoners, he had properly acted within his j urisdiction. The con- tention of Mr. Wilson as to my having jurisdiction to re-open this case, falls to the ground in the face of the case of Seg. v. Maurei; cited by the learned Counsel. As to the further contention of Mr. Wilson as to the alibi. I am also of opinion that such evidence on behalf of the prisoners could not affect the Magistrate's decision to commit," lior my^on'il-tliafr ITiavejagt jurisdiction to re-open the case. The production of new 'evTdenceTs not sufficient to give me the jurisdiction contended for on behalf of the prisoners. The application can only succeed when the Magistrate had not sufficient evidence before him upon which to commit. The prisoners must therefore be re-com- Mtted to^rison, to await the Home Secretary's warrant." Pknano. Wood, J. 1888. March 2G. 350 THE SUPREME COURT. ■Wood, J. 1888. Sahid . V. Fv Ah Seh. Pbnano. AVooD, J. 1888. March 26. clotLs went with his basket of cloths to a Kampong at Telok Ayer Tawar for the purpoae of selling his cloths. He was not far from the appellant's house, when the appellant called him and asked to see some of the "sarongs" he had for sale. He had a look at four sarongs which the prosecutor had handed him, and then made the prosecutor an offer and eventually agreed to pay prose- cutor $3 for them. The prosecutor asked for the money, but the appellant said he would pay " another day." Upon this the parties "fell out," and the appellant struck the prosecutor a blow on the eye, and then ran away with the four sarongs into his house. A friend of the prosecutor also a hawker, then came up and the prosecutor related to him what had happened and the two went to the Police Station and reported. The Corporal thereupon went to the house of the appellant, but did not find him or any of the sarongs. He then instructed the prosecutor to apply for a warrant which he did, and the appellant was arrested. The second hawker to whom the prosecutor told the tale was called by the prosecutor as a witness before the Magistrate to corroborate him as to that fact. Gapel, for appellant contended, that the conviction should be quashed [1] as the evidence shewed the prosecutor had willingly parted with the sarongs, and in order to constitute "theft" under the Penal Code, Section 379, there must be a taking of the thing from the possession of the owner without his consent. Although the evidence might have shewn that the prisoner's act was larceny according to English law, yet it was not "theft" under the Code. He referred to Mayne on the Penal Code, 309 ; [2] he contended the evidence of the second hawker was hearsay and inadmissible. D. Logan, [Solicitor-General] contended, the evidence shewed a taking of the sarongs by means of a trick, and the consent of the prosecutor was only that the appellant should examine the sarongs, but not to take them without paying for them. At all events, if it was not "theft," it was "cheating" under Section 415, and the Court could amend the conviction under the Appeals Ordinance, 1879; [2] he contended the evidence of the second hawker was admissible under the Indian Act 2 of 1855, Section 31. Wood, J. I am of opinion that the evidence is sufficient to establish the charge of "theft" under Section 378, Illustration 4, and that the evidence in corroboration was rightly received under the Indian Act 2 of 1855, Section 31. Conviction affirmed, REGINA V. DORASAMY PILLAY. A Magistrate sitting in a case within his SMmmari/ jurisdiction, cannot take the case in his Chambers, but is bound to hear it in open Court [a. j There cannot be convictions under Sections 162 and 163 of the Penal Code under one and the same state of facts. The appellant had been convicted by Walter Egerton, Esquire, Magistra.te, [I] for offering a gratification to, Rosa Catherine [a.] As regards a Justice of the Peace see Hajee Shaik Abdul Coder v. Aisha and Ors. Sf In re Kynnersley, ante p. 151, See also Uet/ina v. Chin Ah Vhi, 20th Mwoh, 1890, infrci. STRAITS SETTLEMENTS. 331 Non'is, the wife of Cliarles Vincent Norris, a public servant, in order that the said Rosa Catherine Norris might by " corrupt means " induce the said Chai-les Vincent Norris to shew in the exercise of his official functions, favour to the appellant in respect to the supply of rations to the General Hospital, under Sections 162 and 16oa. of the Penal Code ; [2] for ofEering a gratification as aforesaid in order that the said liosa Catherine Norris might bj' " the exercise of personal influence " induce the said Charles Vincent Norris to shew favour as aforesaid, under Sections 163 and 165a. of the Penal Code. Rosa Catherine Norris was a witness for the prosecution, and she stated that the appellant in offering her the gratification [$100] said he wanted her "to ask " her husband [who was the Apothecary at the General Hospital] to help him so that he might not lose his contract for the supply of rations to the hospital ; there was no further evidence in respect to the object of the appellant in offering the $100. From the evidence of Charles Vincent Norris [who was not present when the money was offered] it appeai-ed that the appellant was Contractor for the supply of rations to the Geneial Hospital, Penang, but had been supplying rations of an inferior quality, and there was a probability of his contract being cancelled. The appellant appealed against the conviction, and from the case stated by the Magistrate it appeared inter alia that the case was called on for hearing at the Police Court in the usual way, but " on the application of the prosecution who urged that Mrs. Norris was very unwilling to appear in open Court, the Magistrate took the case in his Chambers which opens into the Court by double doors ; that during the case these doors were open as well as the outer-doors and that no person was, to the knowledge of the Magistrate, excluded ; that before taking the case in Chambers, the appellant's Counsel stated he had no objection to its being so heard." There was an afiidavit of the appellant's Solicitor stating that the door said to open into the Court opened into a space which formed the passage for the Magistrate from his Chambers on to the Magisterial Bench ; that this space or passage was railed off from the rest of the Court and in the line of the rails was a door by which the Magistrate's peon generally stood ; that the public were never allowed in this space or passage or within the rails aforesaid. This afiidavit was not contradicted, but npthing turned on it. The appeal now came on for hearing. Van Someren, for the appellant contended [1] that it was irregular for a Magistrate dealing with a case in his summary urisdiction to hear it otherwise than in open Court, that is, sitting in the Police Court, as the essential of " a Court" is, that it should be held in public, Uaubney v. Cooprr, 10 B. & C. 287 ; thiit it was different when he was only holding a preliminary enquiry with a view to committing a prisoner to the Assizes, Cox v. Onleridge, 1 B. & C. 37; Hajee Shai/c Ahdul Cader v. Aisha & Ors, Re Kynnersley, ante p. 151 ; that in a summary case he had no jurisdic- tion to hear and sentence when off the Bench, and his sitting as he did here, in Chambers, was not " a Court." As Magistrate in a summary case, he must sit in the Police Court. HEax. on J Wood, J. 1888. Reoina V. DOBASAMT PiLLAT. 352 THE SUPREME COURT. Wood, J. 1888. Beqina V, DOBASAMY PiLLAT. Mag., 3, 4 ; though as a Justice in a preliminary enquiry he may sit in private — Ibid. 85, 86; the Summary Juridiction Ordinance 13 of 1872 spoke of " a Magistrate," but it must mean a Magis- trate when sitting in the Police Court, Act 13 of 1856, Section 22 ; and Ordinance 13 of 1872, read in conjunction with the Interpre- tation Ordinance 1 of 1868, Sections 7, 10 ; the Magistrate was to sit ill such places as the Governor might appoint as Police Courts— Ordinance 3 of 1878, Section 1, Clause 4, and Section 57 ; but the Magistrate's Chambers had not and was not likely ever to be so appointed. The sittings in Chambers not being "a Court," the Appeals Ordinance 12 of 1879, Section 34, Clause 1, did not apply as it dealt with convictions and orders of a " Court" — nor did Clause 2, as it was limited to irregularities up io or before trial; here the irregularity went on right up to the passing of sentence. The Legislature had for some reason taken the precaution in the last Ordinance passed last year. Ordinance 19 of 1887, Section 1, to define a "Magistrate" as used in that Ordinance to mean " a Magistrate sitting in a Police Court" — but this was only declaratory of what the term always meant elsewhere; the proceedings here not being then before a "Court," the conviction must be quashed. Regina v. Lloyd, 19 L. R. Q. B. Div. 213. Any want of objection or even consent on the part of the appellant the then prisoner could not avail. Flttcher v. Moore, 18 L. J. Ch. [N. S.] 384; Regina v. Be.Hrand, 1 L. R. P. C. 520 ; [2] he contended that the evidence shewed either that Mrs. Norris was to use " corrupt means " as by sharing the |100 with or paying it to her husband to induce him to shew favour, or it was for herself in order that she might use her " personal influ- ence." The two things could not stand together and one or other of the convictions- must be quashed on this ground too. D. Logan, [8oUcito7--Gen6ral] admitted that the two convic- tions were inconsistent, but it was immaterial as regarded the actual result, which of them was quashed. As regarded the hear- ing in Chambers, he contended as the doors of the room were open and one of them opened into the Court itself and no person in fact had been excluded, as had been the case in Cox v. Coleridge, and Daubney v. Cooper, the room was an " open Court," and the proceedings had been had in a " Court." Wood, J. This Court cannot allow such a proceeding as this to pass, or else the public might well think it permits all kinds of irregularities to be committed. The convictions are quashed on the ground of fatal irregularity in not trying the case in open Court. Incidentally, I may state that the two convictions cannpt be upheld, but the Magistrate should have adjudicated as to whether the prisoner ofEered the money in order that the person to whom it was offered should induce the public servant to shew favour by the exercise of " personal influence " or by '• corrupt means." Convictions quashed [a. J [a.] See a second report of this ca«e where the prisoner was suhaequently re- convicted, 20th August, 1888, infra— J. W, N. K. ^ . ■' STRAITS SETTLEMENTS. KHOO HOCK LEONG v. LIM ANG KEE. 353 The effect of Sub-sections 4 and 6 of Section 1 of the Civil Law Ordinance 4 of 187S is, that if in any suit which might have been instituted before that Ordinance was passed, a Court of Equity would have given relief or recognised an equitable claim, whether on the part of a"plaintiff or defendant, this Court, under that Ordinance, is to give the same relief, or recognise the same rights, in all and any suits or proceedings before it, irrespective of the nature of the suit or proceeding, and who is or would formerly have been plaintiff or defendant therein. Where, therefore in an action for the recovery of land, in the nature of an action of ejectment under the Common Law, the Court considered the plaintiff was entitled to recover possession, but was also satisfied that the defendant had, bond fide, in the belief that the land was his, expended money in making improvements to it, which improvements the plaintiff would obtain the benefit of, on getting possession of the land, the Court, in giving judgment for the plaintiff for the recovery of the land, ordered that he pa3' the defendant a sum of money [which the Court then assessed] for the improvements so made. This was an action to recover possession of certain lands at Pyah Trebong District, in Penang, belonging to one Khoo Sam Chye deceased, and comprised in Government Indenture No. 245 of 1853-56 and Deeds Poll No. 101 of 1854-56 and 661 of 1855-56, The plaintiff was the son and administrator of the said Khoo Sam Chye. The second defendant was only a tenant of the first defendant. The first defendant claimed the land under Govern- ment Indenture No. 21 of 1848-49 and Deeds Poll Nos. 329 of 1854, 5,205 of 1878, 5206 of 1878 and 1650 of 1884. The Government plan of the district, shewed the land to be the land comprised in the plaintiff's Indenture No. 245, but did not shew where the land, comprised in defendant's Indenture 21 was — ^and no trace of such laud was able to be discovered. The dpceased Khoo Sam Chye died in 1864, leaving three young children, of whom the plaintiff was the eldest, and the only son — the plaintiff, about seven years after his father's death, left this Settlement for Rangoon, and only returned about a year before this action. , He was not aware, all the time he was away, that his father Khoo Sam Chj'e's land was in the possession of stran- gers, but on bis return found the defendant in possession, and thereupon brought this action to eject him, and recover possession of the land. The Court was satisfied the plaintiff did ngt stand by and wilfully or otherwise mislead the defendant. The land in the defendant's Indenture No. 21 and Deed Poll 329 of 1884, belonged to one Quah Boon Kali, who, on the 28th October, 1854, by the aforesaid Deed Poll No. 5205 of 1 878, mortgaged the land for poo, to one Pierre Edmond Mathieu. The said P. E. Mathieu died a few years after, leaving the mortgage still unpaid, ajid Daniel Logan and Frederick John Caunter Ross were the Trustees of the Estate of the said P. E. Mathieu, and came into possession of the Indenture, Title Deeds, and Mortgage Bond aforesaid. In 1877, the said Quah Boon Kah being then long since dead without any known kin, — the said Daniel Logan and Frederick John Caunter Ross, [the mortgage aforesaid being still unpaid] in exercise of their power of sale, were desirous of putting up the mortgage land for sale. They however had no knowledge of the land itself, and therefore instructed certain persons named Shaik Ismail and Lee Ah Choy, to make enquiries Penanq. Wood, J, 1888. April 3. 354 THE SUPREME COURT. Wood, J. 1888. Khoo Hock TjEONQ V. liTM AHO Kee. and discover the mortgaged land. The said Lee Ah Choy, from information so received, considered he had found the land wanted, in the land the subject-matter of this action. At the time of Lee Ah Choy's supposed discovery, such land was over- grown with jungle, and had been abandoned for some 25 years and more. Lee Ah Choy communicated his supposed discovery to the said Daniel Logan and Frederick John Gaunter Ross, through the said Shaik Ismail, and they proceeded partly to clear the land so discovered, and thereafter put the same up to public auction, on the spot, but could get no bidders at all. They then instructed the said Lee Ah Choy to try and get a purchaser for the land, by private sale, and in 1878, the said Lee Ah Choy introduced to them one Lim Ah Wye as an intending purchaser of the land so discovered, and which was then believed to be the land comprised in the said Indenture No. 21 and the Mortgage Bond aforesaid. The said Daniel Logan and Frederick John Caunter Ross, acting under this belief too, sold the land so discovered to the said Lim Ah Wye for $100, — and by the aforesaid Deed No. 5206 of 1878, conveyed the land comprised in Indenture No. 21, and in the Mortgage Bond No. 5205 of 1878 to him in fee. The said Lim Ah Wye then went into possession of the land so discovei-ed, cleared the same fully, and planted it out with nutmegs and other fruit trees, nnd continued to do so till 1884. On 17th day of November, 1884, the defendant Lim Ang Kee purchased the land, so in possession of the said Lim Ah Wye, in its improved condition, for $170, and Lim Ah Wye thereupon conveyed to him, by the aforesaid Deed No. 1605 of 1884, the land comprised in Indentm-e No 21, the said Lim Ah Wye and said defendant then still believed that the land so agreed to be sold, was the land comprised in the said Indenture and Title Deeds. The defendant Lim Ang Kee thereafter, under the same belief, took possession, by his tenants, of the land and remained undisturbed until 1887, when the plaintifp arrived in the Settlement and claimed possession of the land from him. During his possession, and before the plaintiff made his claim to the land, the defendant further planted out and improved it. The land comprised in the defendant's Indenture No. 21, in ' respect to a peculiar indentation on the Northern boundary, was not unlike the land so occupied by the said Lim Ah Wye, but the measurements and names of adjoining owners, were different, and in particular the fact that according to defendant's Indenture No. 21, a stream formed the Northern boundary of the land comprised therein, while the land in the occupation of the said Lim Ah Wye, had a stream for its Southern boundary. The land, as described in the plaintiff's Indenture No. 245, fitted exactly, in all particulars, with the land in the occupation of the said Lim Ah Wye. The defendant Lim Ang Kee was not how- ever aware of this till the trial of this case, and he purchased, entered into possession, and improved the lands so in the occupa- tion of the said Lim Ah Wye, under the belief that the land was his, and that it was comprised in Indenture No. 21. This Inden- ture was in English, and could not be read or understood by the STRAITS SETTLEMENTS. 355 defendant Lim Aug Kee — he however had no reason to suspect his title was defective. The plaintiff having now proved his title to the land, and neither the defendant, nor Lim Ah Wye, nor the Trustees of the Mortaraffee aforesaid, could shew that (juah Boon Kah had ever heen in possession of the land, and the possession of Lim Ah Wye, falling short of the statutory period of twelve years, the Court considered the plaintiff was entitled to recover possession of the land. The improvements made by the said Lim Ah Wye, and defendant Lim Ang Kee, were estimat- ed by witness to be about |200. The defendant Lim Ang Kee admitted having received $45 for three years rent of the land during the time he was in possession thereof. Counsel for the defendant Lim Ang Kee claimed, that if the plaintiff was to recover possession of the land, he should be ordered to compensate the defendant Lim Ang Kee for the improvements effected by him and Lim Ah Wye. This claim arose incidentally during the progress of the case, and was not made in the pleadings in the action. The question of "Hus^claiin vpas^now argued, and this report is confined to that question only, as nothing else transpired in the case, calling for a report. Sub-sections 4 and 6 of Section 1 of the Civil Law Ordinance 4 of 1878, are as follows : f 4.] "The Court shall recognise and take notice of all equita- ble duties and liabilities, appearing incidentally in the course of any cause or matter, in the same munner in which the Court on its Equity side would have recognised and taken notice of the same, in any suit or proceeding duly instituted therein before the passing of this Ordinance." [6.] " Subject to the aforesaid provisions, for giving effect to equitable rights and other matters of Equity in manner afore- said, the said Court shall recognise and give effect to all legal claims and demands, and all estates, titles, rights, duties, obliga- tionSj and liabilities by the Common Law or by any custom, or created by any Statute, in the same manner as the same would have been recognised and given effect to, if this Ordinance had not been passed." Van Somer.en, for defendant Lim Ang Kee contended, that he was entitled to be compensated for the improvements, as they had been made hondfide under the belief that he had a title to the land, which now appeared to be defective ; that it was not neces- saiy, in order to be entitled to such compensation, for him to shew that the plaintiff had stood by ; it was sufficient, in equity, that he had made improvements bond fide under the belief of title, which improvements the plaintiff would now reap the benefit of, on obtaining possession. The defendant having paid Lim Ah Wye for the land in its improved condition, was entitled to be paid for that and his own improvements. He cited Ordinance 4 of 1878, Section 1; Clause 4, Story's Eq. Jur., Sections 385-88; 799a, 799b, 1234-37 ; Robinson v. Ridley, 6 Mad. 2 ; Attorney- General V. Baliol College, 9 Mad. 411 ; Bright v. Boyd, 1, Story's Rep. [Anier.] 478 ; Lord Gawder v. Lewis, 1 Y. & C. 427 ; 2 Spence's Eq. Juris, pp. 206, 304; James v. Dean, 15 Ves. 236; Walley v. Walley, 1 Vern. 487 ; 2 Kent's Com. 334-6 ; Smith's Wood, J. 1888. Khoo Hock Leonq V. Lm Ang Kke. V 356 THE SUPREME COURT. Wood, J. 1S88. Khoo Hock Leong 1'. LiM Ang Man. of Eq., p. 196-7; Powell v. Thomax, 6 Hare 300; N^esom v. Glarlcson, 4 Hare 97 ; 2 Wh. & T. L. C. in Eq. 518-20; and as to equitable rights being recognised under Sub-section 4, Section 1 of the aforesaid Civil Law Ordinance, even as against a plaintiff in an action of ejectment, he referred to Williams v. Snowden, W. N. [1880] p. 124. Glutlon, forplaintifi: contended, the defendant was not entitled to compensation, [1] The authorities cited were clear that he must claim under a " defective " title, but here he had no title at all ; that he must have made the improvements without notice, but here he had constructive notice, the land was not his : he was guilty of laches in not enquiring ; if he had, he would have found, from the glaring inconsistencies between the boundaries of the land described in his Title Deeds, and the land he occupied, that the latter could not be the former. [2.] Section 799b. of Story, shewed, that compensation would be allowed a defendant, only when the plaintiff himself rvas seeking equity — it was based, and pro- ceeded only on the principle that he who sought equity must do I equity ; but here the Court was not invoked by the plaintiff in support of an equitable claim, — he was suing in ejectment as at Common Law — the authorities did not shew the defendant could have sued in equity for the value of the improvements, and would imply he could not. Poivell v. lliomns, supra ; and the sub-sec- tions of the Civil Law Ordinance did not extend rights bej'ond what they were before, and this was clearly shewn by Sub-section 6 of Section 1. [3.] The claim for improvements was not a claim against the land, — it gave no Hen ; it could only be allowed as against rents and profits, and it was the party's own fault and .loss, if the rents and proiits did not suffice. Story, Section 799a. Wood, 3, Under the circumstances of this case, I think the defendant Lim Ang Kee had reasonable grounds for believing the plaintiff's land, to be lands of Lim Ah Wye, which he had a right to sell. I therefore consider that notice, constructive or otherwise, cannot be imputed to him. With reference to the second ground for resisting the claim for improvements, I am of opinion the equitable rule must now always prevail in the same manner in which the Court, in its Equity side, would have recognised and taken notice of the same in any suit or proceeding duly instituted before the passing of the Civil Law Ordinance. Any suit duly instituted inSub-section 4,Section 1, 1 understand to mean, any suit whatever, and that if in aw/y suit duly instituted, a Court of Equity would have recognised a claim, that claim must be recognised now. It is immaterial what was the nature of the suit or whether the claim is or would have been by a plaintiff, or a defendant only. The Court is no longer bound by these technicalities, and it is sufficient to find that equity would have recognised the claim. One of the principles or maxims of equity is, that when the true owner seeks to enforce his title against a hondjide occupier under a defective title, who had made improvements in the belief that the land was his, he should be re-paid the value of the improvements which the true owner would get the benefit of, and that maxim, and the rights incident to it, are now to be as applicable to a suit-at-law, sl'RAits s£;t1:leMbn1'S. 357 LimAng Kee. as to a suit-in-equity. The result is, the defendant Lim Ang Kee Wood, J. is, ill my opinion, entitled to be compensated for his improve- ^^' ments. The claim, as I understand the authorities, is against the kuoo Hock land, — any rents and profits received fi-om the land, being applied Lisong in reduction of the claim. Here the defendant received |45 for 3 years' rent — the improvements are shewn to be about $200. I consider therefore $150 a fair sum to be paid defendant Lim Ang Kee, by the plaintiff, for the improvements. There will therefore be judgment for plaintiff for the recovery of the land in question, but he must pay the defendant Lim Ang Kee floO, for improve- ments less mesne profits received. The plaintiff will have the general costs of the action, and the defendant Lim Ang Kee the ^ costs of the claim and argument as to conpeusation for the im- provements. Execution for possession of the land will be stayed u ntil plaintiff shall have satisfied defendant Lim Ang Kee's claim. The setting off of costs, against costs and claim, may be effected by the parties, or by the Eegistrar, if they cannot agree. Judgment accordingly. EEGINA V. HOEY HOON & OKS. Semble. There can be no conviction under Section 11 of the Preservation ot the Singapore. Peace Ordinance 6 of IS72, wittiout evidence that warning was given, under Section 9, on l/w occasion of the riotous assembly. Foed, C. J. Although such a conviction cannot be sustained, yet in the case before the Court & there being evidence ot riot and other offences, the Court refused to quash the con- Goldnet, J. viction-, but uuder Section 34, Sub-section 2 of the Ajipeals Ordinance 12 of 1879, 1888. annulled the proceedings and sent back the case to the Magistrate to be tried again on a proper charge. " April 4. Query. Whether a Magistrate who sentences a prisoner to six months' imprison- ment under the Presei'vation of the Peace Ordinance has power to couple with it a sentence of whipping ? The appellants had been convicted along with others by J. 0. Anthonisz, Esquire, Magistrate, under the Preservation of the Peace Ordinance 6 of 1872, Section 11, for being members of an unlawful assembly and refusing to disperse after warning had been given, and were severally sentenced to six months' imprison- ment and thirty strokes with a rattan. It appeared there had been riots in the town of Singapore, and on the 22nd February, 1888, public warning had been given in terms with the Ordinance, and all riotous assemblies were ordered to disperse. On the 23rd there was a further riotous assembly in the town, and a good deal of damage was done by the rioters; the appellants were among the rioters and were arrested by the Police. No warning was however given on the occasion of the latter assembly and riot, and there was therefore no evidence of it nor of the Pro- clamation made under Section 7 of the Ordinance, on December 24th, 1872, {Government Ga.eette, 3rd January, 1873, p. 5.] The appellants appealed against the conviction. The sections of the Ordinance so far as material to this Report, are as follows : — 7. " And whereas the peace of the Settlements has on various occasions been broken by the assembling together of bodies of armed men for unlawful 3te O^ttE StfPREME COUteT. ToRD, C. J. pui-posea, leading in many instances to tlie destruction of property, the <^ plundering and burning of houses and the commission of murder and other GoLDNETj J. crimes, and it is expedient to make better provision for the prevention of 1888. such offences, it is further enacted, Eegina Whenever it shall appear to be necessary for the preservation of the ^ public peace at any of the Settlements, it shall be lawful for the Governor in HoET HooN Council to declare by Prochimation to be published in such manner as may & Oks. seem fit, that the said Settlement or any part thereof shall be subject to the following provisi(ms of this Ordinance and every such Proclamation shall remain in force until cancelled by Government notification published for the pui-pose." 9. '■ Whenever any persons shall be found during the existence of a Proclamation under this Ordinance, unlawfully, riotously, or tumultuously assembled to the disturbance of the peace and to the terror of Her Majesty's subjects, any Justice of the Peace may, in an audible voice, warn such persons that they are acting in contravention to law, and require them to disperse and depart to their habitations or to their lawful business ; and all persons remaining so assembled after such warning may be dispersed and taken into custody by any Peace Officer or Special Constable, or by any other person acting under the orders of a Justice of the Peace, and shall he liable to the punishment prescribed in Section 145 of the Penal Code, and if any person or persons so warned to disperse shall be hurt, maimed, or killed in the dispersing, seizing, or apprehending or endeavouring to disperse, seize, or apprehend the persons hurting, maiming, or killing him or them shall be free, discharged, and indemnified from the consequences, except on evidence of gross carelessness, wantonness, or malice." 11. "All persons remaining unlawfully, riotously, or tumultuously assembled after having been warned by a Justice of the Peace imder Section 9, and all persons found carrying arms contrary to the provisions of Section 10, in either case during the existence of any Proclamation under Section 7, shall be liable to whipping in place of, or in addition to, any other penalty prescribed by this Ordinance." At the suggestion of the Court [Ford, C.J.] the Appeal was heard before himself and Goldncy J., the two Judges present in the Settlement. Groom, for the appellants contended, that the warning must be given on the occasion of the assembly, because it must be made in an audible voice ; although warning had been given on the 22nd, still that did not suffice the requirements of the Ordinance. There was in fact no evidence even of such a warning having been made, nor of any warning on the occasion of the assembly now in question, that there was also nt) evidence of the Procla- mation under Section 7 which was necessary to be shewn — Regina V. Fursey, 6 C. & P. 81. He also contended, that the punishment was in excess of the Magistrate's power, as a sentence of whipping could not be coupled with a sentence of six months' imprisonment. Harwood, [Acting Atlorwy-General] for the Crown admitted warning had not been given as required by Section 9, but he contended that the evidence disclosed graver offences ; that the Magistrate had convicted them of being members of an unlawful assembly when he might have convicted them of rioting and other offences — the Court therefore could deal with the case under Section 25 of the Appeals Ordinnnce 12 of 1879, and remit the case to the Magistrate — in fact three courses were open to the Court under that Ordinance either to alter the adjudication and convict the accused of rioting, ordering the sentence to stand, except as to the whipping — or to annul the proceedings and send STRAITS S:fiTTLEMtlNTS. 369 the case back to the Magistrate to try the accused on a proper ^okd, C. J. charge, or to remit the case for further evidence and amendment qoldnet J. of the conviction: or the case might even be sent back to the I888. ' Magistrate to deal with it as a case for trial at the Assizes. -^— Groom., in reply contended, that tlie case could only be remitted Kegina to the Magistrate or dealt with under the Appeals Ordinance, if hoet Hoon it were necessary for the due determination of the appeal, which, AOrs. he submitted, it would not be in the present case. Ford, C.J. The Court does not i)ropose to express an opinion on the conviction itself, because it is admitted by the Attorney- General that this conviction cannot be sustained ; but as it is of opinion that the evidence does shew that some ofEence was committed, it sends back the case under Section Si, Sub-section 2 of the Appeals Ordinance to the Magistrate, directing the accused to be tried again on a proper charge. We shall not quash the conviction, but in the words of the sub-section we annul the proceedings and direct the case to be sent back to be tried again on a proper charge. Order accordingly. JENAIBOO V. NAEAINEN CIIBTTY & ANOR. A. mortgagee iu exercising his power of sale is not a trustee for the mortgagor ; and however recklessly and imprudently lie may exercise the power short of actual fraud, and however disadvantageous the sale might he, he is not answerable to the mortgagor for it nor will this Court interfere with the sale. Joucs V. Matthie, 11 Jur, [O.S.] 504 and Warner v. Jacob, 20 L. R. Ch. Div. 220, followed. AVhere a purchaser from a mortgagee at an auction held under the power of sale, prevents [without the knowledge of the mortgagee] third parties from purchasing and thereby obtains the property at a great undervalue. Held, he could not be allowed to avail himself of his purchase, but, on payment to him by the mortgagor of his purchase-money and cost of conveyance — he was, in Equity a trustee of the property for the mortgagor. Fuller y. Abrahams, 3 Bro. and Bing. 116, followed. The nature of this suit, the facts giving rise to it and arguments of Counsel fully appear in the judgment of the Court. Van Someren, for defendants cited Dovmes v. Glazebrook, o Meriv. 210 ; Chambers v. Goldwin, 9 Ves. 271 ; Gholmondeley v, Clinton, 2 jiic. and W. 90; Jones v. Matthie, 11 Jur. [0. S.J 504, 761, reversing 2 Coll. Ch. Rep. 465; Cockellv. Bacon, 16 Beav. 159, 60 ; Davey v. Durrant, 1 De Gex and J. 535, S. C. 26 L. J. Ch. [N. S.] 830 ; Robertson v. Norris, 1 Gift'. 421 ; AdaTns v. Scott, 7 W. R. 213; Locking v. Parker, 8 L. R. Ch. Ap. 30 ; Cotterell v. Stratton, Ibid. 295 ; Re Alison, 1 1 L. R. Ch. Div. 284, 293 ; Warner Y. Jacob, 20 L. R. Ch. Div, 220, s.c. 46 L. T. [N.S.] 658 ; Nash v. Eads, 25 Sol. Jour. 95 ; Martinson v. Clowes, 25 L. R. Ch. Oiv. 857, on App. 52 L. T. [N. S.] 706 ; Macleod v. Jonef, 24 L. R. Ch. Div. 289 ; Bettyes v. Mamiard, 49 L. T. [N. S.] 389 reversing 46 L. T. [N. S.] 766, and 31 Vic. c. 4. Adams, for plaintiff cited Cotterell v. Stratton, supra, p. 802, per Selbouene, L.C. Van Someren, replied. Cur. Adv. Vult. Penang. Wood, J. 1888. April G. 360 THE SUPREME COURT. Wood, J. 1888. Jenaiboo I'. Najbainen Chettt & Anor. May 24tli. Wood, J. In this suit, Jeuaiboo, a pauper plaintiff, as the administratrix of Kundoo Mali, sues the defend- ants Narainen Chetty, a mortgagee with a power of sale, and Madar, who is the purchaser of the mortgaged premises, alleging that the land was improperly sold by Narainen Chetty to Madar and asking that the sale be set aside and asting generally for relief. The facts 'as I find them are 250.60^. This account giving no dates and being other- wise informal was objected to by plaintiff when the defendant put in a further account which was only a repetition of the former accounts, but giving dates. The enquiry into the accounts was Pel- LEREAU, J. 188S. Lee Chin Poo V. Lee Chte HooN. 382 THE SUPREME COURT. Pel- LEREAU, J. 1888. IjEK Chin Poo V. Lee Chye HooN. then begun before the Deputy Registrar when the enquiry was adjourned, from time to time, on account of the defendant's absence. Eventually, the plaintiff subpoenaed the said Tek Hooi to produce the account books of Ban Guan and on the date naiVied in the subpoena, the said Tek Hooi attended before the Registrar in company with the defendant Tek Hooi then produced 21 account books which were marked by the Deputy Registrai-, but immediately thereafter, the defendant objected to the books being inspected by the plaintiff or being left in Court. Tek Hooi supported the defendant in this objection, and notwithstanding the Deputy Registrar's order that three books at a time be left in Court for the plaintiff's inspection, the defendant and Tek Hooi objected, and eventually Tek Hooi said he would abide by the order of the Judge. The enquiry had in consequence to be adjourned, and the 21 books were taken away by the defendant and Tek Hooi. The plaintiff then applied on summons to Fellereau,3. for an order on Tek Hooi and the defendant to bring into Couit the said account books, and deposit them in the Registry for the plaintiff's inspection. Tek Hooi and defendant both shewed cause against the application, and on the 2nd of March, 18S7, Pellereau, J. refused to make any order on the ground that there was no privity between the plaintiff a sub-partner and Tek Hooi and other partners in the firm Ban Guan so as to entitle him [the plaintiff] to an inspection of the books ; he thereupon dismissed the summons with costs for Tek Hooi, but witliout costs for the defendant. The plaintiff then attempted to proceed with the enquiry before tlie Registrar, but tlie defendant still absented himself. The Deputy Registrar eventually decided to proceed ex- parte. Service of notice on the defendant was proved, and the plaintiff gave evidence detailing the transactions between defend- ant and himself ; among other things he swore to, was a statement made by the defendant to him that no profits had been made for the first two years, but in the third year the profits were $16,000 and on the fourth year $15,000, but he had not been told what the profits for the fifth and sixth year [the two last years of the partnership] were. On the last day of the enquiry upon a further notice being served on the defendant he at last appeared; he declined to cross-examine the plaintiff, ov to state anything more than that he had only a small share in the firm and could not get the books and was unable to account to the plaintiff. The Deputy Registrar on 18th April, 1888, made his report in which after nai'rating most of the facts aforesaid, stated that he was satisfied the defendant and Tek Hooi were acting in collusion to deprive the plaintiff of }iis capital ;ind profits, and under the whole circumstances of the case he considered the plaintiff was entitled to a return of his capital of |900 besides $5 17.60^ for his eight- tenths shares of profits; that allowing that the firm Ban Guan made no profits the first two years, yet he considered that the profits it made in the subsequent four years was $3,000 at least per year. The defendant excepted to this report, which exceptions now came on to be ai-gued. The Deputy Registrar stated that he had arrived at the result he did by allowing the plaintiff about twentv- HOON. STRAITS SETTLEMENTS. 383 five per cent, for profits, as he could not find out wliat the exact P^^- amount of profits were. ''^ml' Thomas, for the defendant in support of the exceptions con- ""7 tended, there was no evidence to support the Registi-ar's finding ; pg^ that although there was the defendant's statement that the v. profits forthe 3rd and 4th years amounted to $16,000 and $15,000 ^'^^^^J^ respectively, yet the plaintiff admitted he could not tell what was the result of the further two years' business, and for all that appeared, a heavy loss might have been the result of the six years' business, and the profits of the 3rd and 4th years all swept away. Van Someren, for the plaintiff in support of the report con- tended, that from the statement of defence it was clear the term for partnership in Ban Guaii had expired, and the defendant could have sued Tek Hooi and co-partners for accounts ; that he had been ordered by Sheriff, J. to do so, and had not as yet done it ; that fiom his whole conduct before the Registrar, as well before as after, it was clear he was acting in collusion with Tek Hooi to deprive plaintiff of his accounts ; he neither attempted to support the accounts he had filed, or to contradict the plaintiff's evidence, or to explain why he had not sued Tek Hooi ; he hadra. means of getting at the accounts if he chose to sue, but had not troubled himself to get them — there was a presumption therefore against him — Gray v. Haig, 20 Beav. 219; Duke, of Leeds v. Earl of Amherst, Ibid. 239, 240, 247; and as the Registrar was bonnd to find something definite — Chin Guan Talc v. Chin Seah Poiv, 1 Kyshe, 586 — he had done rightly in allowing a percentage for profits. Walmfshy v. Walmesley, 3 Jo. & Lat. 556 ; 2 Lindley on Partnership [4th Ed.] 998. Thomas, in reply contended, no presumption aj'ose against defendant as lie had not the books in his possession, nor until the plaintiff had sought to enforce the order of Sheriff, J. by attaching the defendant for not suing Tek Hooi. The plaintiff had not exhausted all means and remedies in his power to procure the books, and could not insist on any presumption against the defendant. Pellereau, J. In this case, the plaintiff is a sub-partner of the defendant who is a partner in the firm Ban Guan of Penang. The agreement between the plaintiff and defendant provides for accounts to be gone into yearly. Of course, if circumstances prevented the defendant from going into accounts yearly, then he Ciinnot be said to have wilfully been in default. For instance, if the rnannger or pnrtners in the firm had refused to allow defendant inspection of the books, and thus placed him in such a position that he could know nothing of the accounts and was unable to com- municate the account to the plaintiff, he would have been free from blame. Here however, I am satisfied the term of the partnership in the fii-niBan Guan had expired,and the day for accounting among the partners in that firm had come; the defendant, if it be true he had been refused an account by his partners, had then every opportunity and right to sue them. In fact, this Court 384 THE SUPREME COURT. Pel- Lekeau, J. Lee Chin Poo V. Lee Chye HooN. ordered him to do so — he did not do it and has never done it. Whether the plaintiff could have enforced that order against the defendant or not, I think is immaterial. The defendant had a right to sue if he chose; he wilfully ahstains from doing it and from imparting any knowledge he would thereby liave got, to his sub-partner the plaintiff. I think under all the circumstances of this case, the Deputy Registrar had every reason for concluding that the defendant was colluding with Cheali Tek Hooi, the manager of the firm Ban Guan, in fact, that one was helping the other in order that defendant should not render an account to the plaintiff. The plaintiff was entitled to insist, and the Deputy Eegistrar to hold, under the ciroumslances that the defendant could have produced the books if he chose, and as he wilfully with- held the books from .the Court, to presume, from his conduct, everything against him. Then the question arises, was the Registrar right in coming to the conclusion that 5?1,44.7.60.^ are due to plaintiff for capital and profits? In tlie first place the defendant filed accounts shewing $2,616.47 on the credit side — he also shews ^2,867.07^ on the debit side, but he produces no evidence in support of the items on the latter side. The items on the credit side being against the interest of the defendant, the plaintiff under the circumstances was entitled to ask the Regis- trar to adopt those items and to- disallow everything on the debit side. If the Registrar had so done, the plaintiff's eight-tenth shares in thedefendant'sone-twelfthshareinthefirm would have amounted to 5^2,000, and I could not have said he was wrong. The plaintiff however, in addition to this, in his evidence, says : "defendant told me there was no profit on the first two years — the profit on the 8rd year was more than 116,000, on the fourth year §15,000. Fifth year I got no information from him as to the profits, neither did I receive any on the 6th year." This evidence stands uncontradicted by the defendant, and shews the profits for the third and fourth years of the business .imounted to $31,000. The Deputy. Registrar however, has estimated the profits at $3,000 a year, whicli for six years during- which the partnership lasted would be .? 18,000. How far the Deputy Registrar was right in arriving at this smaller figure instead of the larger one of $31,000 I cannot say. I think there was sufficient evidence for the Deputy Registrar to have found the plaintiff' was entitled to a larger sum than he has awarded him; I cannot, therefore say there was no evidence for him to award the smaller sum neither can I say, as the defendant wishes to say, the Registrar was wrong in so awarding. I cannot however increase the sum, and award the plaintiff more than has been given him — the plaintiff has not asked me to do so, and has not excepted to the report. All I am concerned therefore to see is, whether there is evidence to support the Deputy Registrar's finding. As I have already said I think there was. I agree with the Deputy Registrar in presuming against the defendant under the circum- stances of this case, and although I differ from hirn as to liis reasons, and in that way vary the reasons for liis report, yet I arrive at the same conclusion lie has, I think the evidence STRAITS SETTLEMENTS. 385 shews the plaintiff was entitled to move, and I cannot therefore Pel- say there was no evidence for the Deputy Eegistrar to award '^'^Ysss"^' him less. There is evidence to support his finding of $1,447. 60i, .' and the plaintiff is entitled to judgment for that sum with costs. Lue Chin I therefore over-rule the exceptions, confirm the report, and ^°° direct judgment to be entered up for the plaintiff for $1,447. 60^ Le/chte will costs. HooN. Exceptions over-ruled. REGINA V. QUAK AH SAH. The mother of a minor under sixteen yeare of age who has always had charge of Singapore. the minor, cannot be convicted under Section 373 of the I enal Code, although she brings up and employs the minor for the purpose of prostitution [o.] Ford, C.J. The words " or otherwise obtains possession of " in the said Section 373 are ejusdem Wood, ~j ^e«eW.5 with the preceding words " buys " and "hires" and cannot apply to a mother Pkl- I who always has had the custody and possession of her child. lereau f-J. J. & Gold- | Case stated by Goldney, J., as follows: — iggs. " The prisoner was charged under the 373rd Section of the Penal Code 3xme 7. with having obtained possession of a minor girl under the age of sixteen with intent that such minor should be employed or used for the purpose of prosti- tution. The girl in question was the prisoner's own daughter, and had been brought by her mother from Canton [as she admitted] for the purpose of her being placed as a prostitute in one of the brothels in Singapore. The Jury found as a fact that the minor was under the age of sixteen years, and convicted the prisoner of the offence with which she was charged. On this verdict, I sentenced the prisoner to 12 months' rigorous imprisonment. Having considerable doubts whether a mother prostituting her own daughter comes within the meaning of the 373rd Section of the Penal Code, I admitted the prisoner to bail on her own recognizance pending the decision of the Court for Crown Cases reserved. The offence created by this section appears to be the obtaining possession of a minor for a certain purpose, &e. The question is, can a mother obtain possession of her own daughter for the aforesaid purpose ? If the Court finds that the conduct of the mother under the circumstances brings her within Section 373 of the Penal Code the conviction will stand, otherwise the conviction will be quashed." Section 373 of the Penal Code [Ordinance 1 of 1871], is as follows : — " Whoever buys, hires, or otherwise obtains possession of any minor under the age of sixteen years with intent that such minor shall be employed or used for the purpose of prostitution, or for any unlawful and immoral purpose, or knowing it to be likely that such minor will be employed or used for any such purpose shall be punishable, &c." Section 373a. of the Penal Code, Amendment Ordinance 3 of 1882, is as follows : — " Wlioever by any false pretence, false representation, or fraudulent or deceitful means, brings or assists in bringing into the Colony any woman with intent that such woman may be employed or used for the purpose of prostitution ; and whoever brings or assists in bringing into the Colony any [o.] Reifina v. Wehster, 10 L. E. Q. B.Div. 134. 386 THE SUPREME COURT. Ford, C. J. "Wood, ^ Pel- I & (tOLD- j NET. J 1888. Reoina V. QcAK Ah Sah. woman with intent tliat sucli woman may be sold or bouglit for the piirpose of prostitution ; and whoever sells m- buys any woman for the purpose of prostitution shall be punished, &c." The case now came on for heai-ingf before the Full Court of Appeal, consisting- of Ford, C.J., Wood, Pelleremi, and Gohiney, J.J. Harwood, \_Ai:ting Attorney-General] for the Crown. The prisoner was unrepresented. The Court was of opinion that the words " or otherwise obtains possession of " in Section 373 were ejuxdem generis with the preceding words " buj's " and "hires," — and the section supposes the minor to be used as an article of traffic, and points to a person obtaining the woman from some one else. The section did not apply to a mother who having always bad her child in her possession cannot be said to have obtained her possession for the pnrpose of prostitution. But the Court expi-essed the hope that if there was another section or law applicable to her and the facts justified it, a proper charge should be brought. Conviction quashed. EEGINA V. KOOMAT. Penang. The Court having on an appeal remitted [under Ordinance 12 of 1879, Section 25] the ca.se " to the Maf^istrate " for further evidence, " and for such amendment of Hie Wood J. conviction as is consistent with tlie evidence," ]883 Held, tlie order could be carried out only by the convicting Magistrate from whose decision the appeal was made — and the mere fact that he was ahseiit from the Colony June 20. did not authorise another Magistrate to take the further evidence. Query. In remitting a case for further evidence under Section 25 aforesaid, has this Court power to remit it to any Magistrate other than the convicting Magistrate ? [a.] This was an appeal from the decision of Walter Egerton, Esquire, Acting FirstMagistrate, whereby he on 13th January, 1888, convicted the appellant [an additional Constable in the Police Force attached to the Hackney Carriage Department] of receiving a gratification other than legal remuneration for forbearing to shew in the exercise of his official functions, disfavour to one Lee Bot, under Section 161 of the Penal Code. The case was stu.ted by Mr. Egerton, and the appeal was heard on 27th February, 1838, before this Court [Wood, J.] who ordered under Section 25 of the Appeals' Ordinance 12 of 1879 "that the case be remitted to the Magistrate to ascertain by the evidence of the witnesses examined in the Court below, the nature of the official duties of the appellant, ar((i/oi-SMc/j,«mer/dmeK< of the eonvictinnas is consistent with the evidence taken, and to find out specificiilly the motive for which the money was paid to the appellant by Lee Bole, whether by express agreement verbal or otherwise, and if so, what that agree- ment was, or whether the witness Lee Bok gave the money with- out any definite or express motive in whole or in part." The said Walter Egerton left this Settlement for England on leave on 1st [a.] See Meffina v. K/wo Seang Jn, 2nd July, 1888, post p. 392, and as regards re-hearing "as a fresh charge," see Segina v. Goh Choo Lan, 22nd August, 1888, t«/™- STRAITS SETTLEMENTS. 387 March, the Registrar transmitted under Section 26, the Order to the Police Court on the 3rd. On the 27th April, Mr. C. W. S. Kynnersley, the First Magistrate, purporting to act under the aforesaid order, took further evidence on the points mentioned, hut for some reason which did not appear, did not amend the conviction or state whether in his opinion it did or did not require amendment. The further evidence so taken hy him was thereafter transmitted by him to this Court, and the appeal now came on for further hearing. Section 25 of the Ordinance 12 of 1879, is as follows : — "Wood, J. 1888. Regina. V. KOOMAT. " The Court shall give judgment in the said appeal after hearing the parties or their Counsel if in attendance on the day of hearing, and may iiffirm, alter, or reverse the adju.dication of the Magistrate or Court of two Magistrates as justice may seem to require. Provided always, that if it shall appear to hs necessary for the due determination of the appeal, the Court may order the witnesses examined, or offered, or named for examination in the Court below in the cause on either side, to be further examined, and may remit the case to the Magistrate or Court of two Magistrates for amendment and tor further evidence, either for appellant or respondent ; and a/^er such amendment is made, or further evidence supplied, judgment shall be given by the Court." Van 8omere7i, for the appellant contended, the further evidence could not be looked at as the Magistrate who took it had no jurisdiction to do so; that " thft Magistrate" in the Order of 27th February meant the Magistrate from whose decision the appeal was made, and the order in stipulating for any neceessary amend- ment of the conviction consistently with the evidence, shewed he was to form an opinion on the evidence, and could not therefore mean some other Magistrate who knew nothing of the former evidence in the case ; that v/hen any Magistrate was alluded to by the Appeals Ordinance, he was spoken of as " a Magistrate " — Section 18; having alluded to a decision by "a Magistrate," the subsequent sections, including Section 2-5 referred to that Magistrate as " the Magistrate" — meaning the Magistrate who had decided or stated the case. He further contended, that the fact of Mr. Egerton having left the Colony was immaterial and could not alter the legal effect of the order. D. Logan, [Solicitor-General] for the respondent contended, that if this objection prevailed the case would be thrown over indefinitely ; that the Order of 27th February was divisible into two parts, one requiring a merely ministerial act, — the taking of evidence as to the appellant's official duties, and the motive of the payment to him — and the other judicial, the forming of an opinion on the evidence as to whether the conviction needed amendment and what amendment; that there was no reason why the taking of the further evidence, the ministerial act, should not be done by any Magistrate; and altho\igh the judicial part of the order could not be carried out by him, yet as this Court would now have all the evidence before it, it could dispense with the opinion of the Magistrate and form an opinion on the evidence for itnelf and amend the conviction if necessary. He also con- tended, that as the Magistrate who took the further evidence did 388 THE SUPREME COURT. Wood, J. 188S. Eeqina V. KooaiAT. not amend the conviction, it must be presumed he was of opinion that it did not require amendment, and was consistent with the evidence; thab the original conviction being supported by the evidence and good on the face of it, the Court should dispose of tlie appeal at once. Van Someren, replied. Wood, J. said he regretted the delay that would be caused by the case standing over until the return of Mr. Egertoii. but he saw no help for it. He was of opinion that the order onl}' referred to the convicting Mngistrate as the person to take the further evidence and form an opinion on it, and what was done here was not a carrying out of the order of the Court; that order following the language of Section 25 required " tlip. Magistrate" to take the further evidence and make any necessary " amend- ment," the Magistrate referred to in the order was the convicting Magistrate, in fact he had considerable doubt whether the Court could under Section 25 i-emit a case for further evidence to any Magistrate other than the convicting Magistrate. The only order he could therefore make now was that the case should stand over for Mr. Egerton's return for him to carry out the Order of 27th February. Order accordingly. SHELLAPEN v. GORDON. Penanq. Wood, J. 1888. June 25. The prisoner, a tindal on a Sugar Estate in Province Wellesley one night at 9 o'clock in the presence of several persons, received some planks from four coolies of the Estate and proceeded to cut them and nail them down us a flooring for a cow-shed belonging to the Estate which he had the use of for his cows ; the planks belonged to the Estate and the coolies had had no permission to remove them. The ilugistrate convicted the prisoner of receiving stolen property. Held, on appeal that on these facts there was no satisfactory evidence of guilty knowledge on the part of the prisoner and the conviction was quashed. Qneri/. Could the planks under the circumstances be said to be " stolen " pro- perty within the meaning of the Penal Code ? The appellant Shellapen had been convicted by R.N. Bland, Esquire, Magistrate, Nibong Tebal, Province Wellesley, under Section 411 of the Penal Code, of receiving stolen property and sentenced to two months' rigorous imprisonment. The evidence before the Magistrate was to the effect that the appellant was a tindal on Caledonia Estate, Province Wellesley, of which the res- pondent Gordon was the mannger ; that on the night of 9th April last, at about 9 o'clock, four coolies belonging to the Estate took some 31 planks and 7 lantils [total value |1 i] which was on the Estate and brought them to the appellant who received them and proceededto cut them and nail them down as flooring to a cow-shed built on the said Estate, which shed the appellant had the use of for his cows; the flooring was finished next night. The planks were new, but otiierwise had no mai-ks to distinguish them ; they were carried by the four men and received by the appellant'in the presence of many persons, who cut and nailed them down in their presence. The planks and lantils belonged to the Estate, but SJ?kAiTS SETTLEMENTS. 389 there was nothing to shew the appellant knew that fact. The appellant appealed. By Section 411 of the Penal Code, the stolen property must have been "dishonestly" received, "knowing or having reason to believe the same to be stolen." By Section 410, property, the possession whereof has been transferred by "theft" is designated " stolen property." By Section 378, the taking " dishonestly " of any moveable property out of the possession of a person without his consent is said to be " theft." By Section 24, "dishonestly" is defined to be the doing of a thing with the intention of causing " wrongful loss " to one person or " wrongful gain " to another ; and by Section 23 " wrongful gain " is defined to be gain by unlawful means, and " wrongful loss " is defined to be loss by unlawful means. Van Someren, for the appellant contended, [1] there was no evidence that the appellant knew or had reason to believe the pi'operty to be stolen— his receiving them at night and working at tlie floor at night, was to be accounted for by his attendance at the fields all day in the business of the Estate ; he received ttie things and proceeded to work them openly, and it was not shewn he ever knew the Estate owned any planks, &c. ; [2] the planks were not " stolen " property as they were merely removed from one part of the Estate to another, and there cut up and nailed down to a building [the cow-shed] which either belonged to the Estate, or was part of the freehold as being let into the soil — the Estate therefore suffered no " loss " and it could not therefore be " wrongful loss" nor the things "dishonestly" removed. The planks could not also be said to have been taken " out of the pos- session " of the Estate when it formed part of, and was in the Estate land, which land was of course in the possession of the manager and proprietor. D. Lo'jan, [Solicitor-Gennral] submitted the question of guilty knowledge was one of fact, and having been presumably found by the Magistrate, the Court would not interfere. Wood, J. said he was of opinion that there was no satisfactory evidence of the scientar on the facts proved, and without deciding whether property was " stolen property " or not, must quash the conviction. Conviction quashed. Wood, J. 1888. Shellapen V. GoEDON. MAN & ANOR V. LEHAH. A Magistrate, apart from Ordinance 13 of 1872, Section 60, has no power on convicting a person of an offence, to order him to give security to keep the peace ; and that section only enables him to require security in addilioii to some other punish- ment provided for the offence of which the person is convicted. Where, therefore a Magistrate convicted a prisoner of an assault under Section 352 of the Penal Code, but did not inflict a fine or imprisonment, and only ordered him to give security to keep the peace for six months. Held, the order was bad for want of jurisdiction. The appellants had been convicted by J. K. Birch, Esquire, Magistrate, Proviuce Wellesley, under Section 352 of the Penal Code for using criminal force to the respondent, otherwise than Penang. Wood, J. 1888. June 25. 390 THB STJPEBME COURT. Wood, J. on grave and sudden provocation. The evidence for the prosecu- '^^^- tion was somevrhat contradictory ; that of the prosecutrix [the Man"&Anob respondent] and her brother-in-law being, that the appellant Man u. had met her on the public road at Bagan Tuan Kechil and abused Lkhah. jjg,. 3n^^ gave her two slaps on the face wheu he was pulled away by the appellant Mat Hashim who, however, himself gave her a further slap on the face. The evidence of an independent witness, the syce of a hackney carriage that the prosecutrix had hired immediately before the assault, was to the effect that the prose- cutrix abused the appellant Man who thereupon went up and struck her twice with an umbrella he was carrying. The evidence for the defence gave an entirely different account of the disturb- ance. The Magistrate having convicted both the appellants as aforesaid, sentenced the appellant Man to one month's rigorous imprisonment, but the appellant Mat Hashim only to find security to keep the peace for six months. Both prisoners appealed against the convictions. Bj' Section 352 of the Penal Code the punish- ment pi'ovided for an assault or using criminal force is imprison- ment of either description or a fine or both. By Ordinance 18 of 1872, Section 60 it is provided that, " Whenever a person cliarged with rioting, assault, or other breach of the peace, or witli abetting the same, or with assembling armed men, or taking other unlawful measures with the evident intention of committing the same, is convicted of such charge before a Court of Quarter Sessions, or a Magis- trate, and the Court or Magistrate by which or by whom the accused person is convicted, is of opinion that it is just and neoessaxy to require a personal recognizance for keeping the -peace from the person so convicted, the Court or Magisti-ate may in addition to any other judgment passed in the case, direct that the person so convicted be required to execute a formal engage- ment in a sum proportionate to his condition in life and the circumstances of the case, for keeping the peace during such period as it may appear proper to fix in each instance, not exceeding six months if the sentence be passed by a Magistrate, and not exceeding one year if the sentence be passed by Court of Quarter Sessions with a provision that if the same be not given the person required to enter into the engagement shall be kept in simple imprisonment for any time not exceeding six months if the order be passed by a Magistrate, or twelve months if by a Court of Quarter Sessions unless he bind himself with such period. II-— If the accused person be sentenced to imprisonment the period for which he may be required to execute a recognizance and the imprison- ment in default of executing such recognizance shall commence when he is released on the expiration of his sentence. III.— Whenever it appears necessary to require security for keeping the peace, in addition to the personal recognizance of the party so convictect the Court or Magistrate empowered to require a personal recognizance may require security in addition thereto, and may fix the amount of the security bund to be executed by the surety or sureties ; with a provision that if the same be not given the party required to find the security shall be kept in simple imprisonment for any time not exceeding six months if the order be passed by a Magistrate, or one year if the order be passed by a Court of Quarter Sessions." By Section 2 of the Penal Code, persons convicted of oifences thereunder are punishable as therein provided " and not othei'wise" except [Sections] under any "special" or "local law." A "special law" .is defined to be a law applicable to a particular subject [Section 41], and a "local law" a law applicable to a particular place [Section 42.] STRAITS SETTLEMUnTS. 391 Van Somereii, for the appellants, as to the appellant Man Wood, J. contended, that the sentence was in excess of what the justice of ^^■ the case required ; it was a trivial assault consisting, if the pro- Man & ANbR secutrix was to be believed, of two slaps which left no marks of «• any kind, and though the appellant had been guilty of the like I-ehah. assault, consisting of one slap, he was merely directed to find security. The difference between the sentences was very great and under the circumstances, inconsistent, and the Court should reduce the sentence of imprisonment to a fine only as had often been done throughout the Colony, and the Court had power thus to "alter" the adjudication— Section 25, Ordinance 12 of 1879; China Gunny Y. Muniandee, a,nte-p. 16\. He then contended, that the order to find security was bad, as the Magistrate's only power on convicting a prisoner of an offence, to require security for him, was derived from Ordinance 13 of 1872, Section 60, but there, only as an additvmal punishment in the present case, the Magis- trate not having inflicted a fine or imprisonment could not call that section in aid. [Wood, J. suggested that be had power perhaps by Common Law to require security.] Van Someren, submitted he had not as the Common Law did not recognize the Magistrate, and his powers were purely Statu- tory ; but even supposing he at one time had the power at Com- mon Law, he had not it now, as by Section 2 of the Penal Code the prisoner was to be punished thereunder " and not otherwise" unless under a "special" or "local law" [Section 5]. Ordinance 13 of 1872 was such a " special law," but as shewn it was confined to security being required as an additional punishment. He also contended, the order was bad as it made no provision as required by Section 60 aforesaid, in case default was made in furnishing the security ordered. Mootoo v. Ayah Doreh Pillaij, 3 Kyshe, 90, 91. D. Logan, [SoUcitor-GenerrilJ contended, that the sentence of imprisonment on appellant Man should not be reduced ; that the Magistrate had the prisoners and witnesses before him, and he must have had a reasoii for inflicting the imprisonment, and he being the officer entrusted by law with the duty of punishing petty offenders, it would be introducing a bad pi'ecedent to inter- fere with his sentence. As regarded the order on appellant Mat Hashini to furnish security, he admitted he had considerable doubts whether tbe Magistrate had the power to require security as he had done here. Wood, J. said that as regarded the appellant Meat Hashim, he feared the Magistrate had not power to require security to keep the peace, apart from Ordinance 13 of 1872, Section 60, and he was of opinion that that section did not apply to this case, but only to cases of security being required as an additional punishment. As regarded the appellant Man, the desire of the Court was that all sentences by its Judges should be alike ; and those by the Magisti'ate should be proportionately so; this Court would never for a trivial assault as this, especially Avhen it was a first offence, impose rigoroxxs imprisonment. He considered tbei'efore that the 592 THE SUPBEME COURT:. Wood, J. Court should interfere in the present case and alter the sentence 1S88. irom rigorous imprisonment to that of a fine. The sentence on Man&Anob. the appellant Man would therefore he commuted to a fine of $26 «. [a.], and the order requiritig security of the appellant Mat Hashim Lehxh. would be quashed. Order quanhed. REGINA V. KHOO SEANG JU. Penans. ou the trial of a prisoner tor being the occupier of a house kept or used for the purpose of a Commou Gaming House, the evidence whether of the prisoner himself or Wood, J. others given at a previous trial of persons found in the house and convicted of being ]888. present in a Common Gaming House is not admissible. It is unsafe for a Magistrate to convict a person of being the occupier of a Common July 2. Gaming House solely on the statutory presumption of its being a Commou Gaming House because persons are seen or heard to escape from it on the approach of the Policy — ^vliere there is some evidence in disproof of it. (iueri/. Has this Court power to send a case back under Sectiou 34, Clause 4 of the Appeals Ordinance 12 of 187P, to a Mngistrate other than the convicting Magistrate ? [b]. The appellant had been convicted by A. H. Capper, Esquire, Magistrate, of being the occupier of a house No. 30, Bridge Street, Penang, and keeping the house for the purpose of a Common Gaming House, under Ordinance 13 of 1879, Section 2, Clause 1. The evidence before the Magistrate was to the effect that the premises in question had been entered by the Police under a warrant on the night of the 8th September, 1887, and nineteen persons arrested therein while a number of others were seen or heard to escape therefrom. The nineteen men were brought before a Magistrate [Mr. C. W. S. Kynnersley] and fined |25 each, and had appealed against the conviction, wliich however was affirmed by the Court. The present prisoner [appellant] was seen by the Police in the house on the night in question ; and afterwards at the Station, he admitted he was the occupier of the house and head of a Club carried on therein ; that on the trial of the nineteen men, the present prisoner [appellant] gave evidence for the defence, and on oath stated he was Secretary of the Club and occupier of the house. The landlord of the premises was also called on the hearing of that charge as well as the present charge against the prisoner [appellant] and proved the prisoner [appel- lant] was the tenant of the premises and at the time he engaged it, said he was going to open a Club ; that he [the landlord] had occasionally been to the house after 6 p.m., but did not see any- thing particular beyond hearing singing and music. After the [ff.] In the case of Cheah Boon Hean v. The Crown, 22nd August 1888 \iwt reported'], the Pull Court of Appeal [J?'o)-rf, C.J., Wood, Felleremi & Goldnei/, J.J.~\ reduced a fine of $3,000 imposed by a Magistrate on the appellant, for keeping" a Com- mon Gaming House, to a fine of §1,500, on the grounds that that was the maximum fine under the Gaming Ordinance and it being a first offence and there was reason for supposing the Magistrate in imposing the fine was influenced from the fact that the appellant was said to be the keeiier of another gaming house, of which there was no proof in the case. — J. W. N. K. [6.] See Eegina v. A'oomiii!, ante p. 38G, and as regards re-hearing " oii,a fresh charge," see Begina v. Ouh Ohoo Lan, infrct, 22nd August, 1888. ij^RAlTS SEiTLBMENTS. 393 Inspector and landlord had been called to prove the above facts, one Stephen Leicester, Chief Clerk to the Magistrate, was called and stated that on 15th September, 1887, nineteen prisoners were brought before the Senior Magistrate, Mr. Krnnersley, for being present in a Common Gaming House ; he produced the Magistrate's notes of the evidence given on that occasion and swore to the hand- writing of Mr. Kynnersley ; these notes of evidence being put in the evidence given by the present prisoner on the occasion was read by the witness. This concluded the case for the Crown. The prisoner [appellant] called no witness, but in his defence said he rented the house and opened a Club there at the request of a friend ; he sometimes went to the house to amuse himself, but did not know how to gamble; he went to the house on the occasion of the entry by the Police as his friend sent for him. The prisoner ou conviction was fined §i500 and now appealed iigiiinst that conviction. Glutton, for the appellant contended, the evidence of the witness Leicester, and the Magistrate's notes of evidence in the former case were inadmissible [a.] ; that apart thei-efrom there was no evidence of any gambling having taken place in the house, and as the evidence wrongfully received could not but have had weight in the mind of the Magistrate who tried the appelhint, the conviction should be quashed. D. Logan, [SoUcitor-GeneraV] admitted the evidence was inadmissible, but contended that there had been no failure of justice. Appeals Ordinance 12 of 1879, Section 33, Clause 1 ; that there was evidence, apart from the objectionable evidence, that persons were seen and heard to escape fiom the house on the approach of the Police, and thai was sufficient to make the house a Common Gaming House under the Gaming Ordinance 13 of 1879, Section 11, and to convict the appellant, the occupier thereof. If the Court thought the evidence not sufficient it should send the case back for further evidence under Section 25 of the Appeals Ordinance, or for a re-hearing on a fresh charge under Section 34, Clause 4 — but in either case to the .same Magistrate who had convicted the appellant, as he submitted the Court had no power to send the case back to any other Magistrate. Glutton, in reply contended, that if the case was to be sent back for a re-hearing oii a fresh charge there was no reason why it should be sent back to the same Magistrate ; it should be sent back under Section 34, Clause 4, the language of which was "the Court " and not " the Magistrate," as in Section 25 ; " the Court " meant the Court below, but not necessarily the same Magistrate ; the change of language between the two sections was evidence of a change of intention ; it would be useless to send the case to the same Magistrate as he had made up his mind and was sure to convict. Wood, J. I consider that the evidence given by Mr. Leicester, viz., proof of the notes of the prisoner's case, was improperly received and was calculated to prejudice the mind of Wood/J. 1888. Rbgina f. Khoo Seanq .Tu. [a.] Letvhmee and anor. y. Ramasawmy, Vol. 3 of these lleports, 102. 394 THE SUPREME OOUEt. Wood, J. 1888. Kkgina V. Khoo vSeang Ju. the convicting Magistrate as to this particular defendant. I think that independent evidence should be given as against this particular defendant, and I cannot help assuming that the Magis- trate convicted the defendant mainly upon the evidence adduced in the former case in which the assumed gamblers were lined. I look upon it that the only facts proved as against the defendant are that he is the occupier of the house and that persons escaped from it on the arrival of the Police, which is statutory proof under Section 11, Ordinance 13 of 1879, that the house was kept by the occupier as a Common Gaming House. I do not however think it is safe to rely solely on this staluloi-y pi'oof of the keeping of a Common Gaming House by an occupier Avhere as here there is some evidence in disproof of it ; and I think that it is in the interests of the parties that this case should be re-tried upon evidence which is properly admissible, — and that evidence having been improperly admitted which no doubt had a powerful effect on the convicting Magistrate's decision — the case should be re-tried before the same Magistrate on the same charge upon fresh and independent evidence. Looking at Sections 25, and Clause 2 and Sub-section 4 of Section 31. of the Appeals Ordinance 12 of 1879, I entertain some doubt as to whether I can remit the case to a fresh Magistrate, and in deference to the request of the Solicitor-General, I refer it accordingly to the same convicting Magistrate. Case 7'emitted. BLAZE u. MAYNARD & CO. Penano. X label of a particular colour having printed on it the name of a firm or business and tlie pl:i(3e where it is cirried on, followed by a description of the article on which Wood, J. ti,e j^bel is affixed and the use of such article and the mode of using it, is a trade- 18S8. mark, the use of a colourable imitation of which this C(5urt will restrain. "~ A trade-mark does not heuome pnljIU-i Juris from the mere fact that it is also used July 3. by another person without objection for some years, concurrently with the user by the plaintiff of his mark. Suit to restrain the use by the defendants of a trade-mark and $5,001) damages. The plaintiff was a Chemist and Druggist carrying on business in No. 18, Beach Street, as the Peuang Medical Store, and having discovered and compounded a mixture for rheumatism which w;is hirgely purchased of him by Chinese, he in March 1874, and thence continuously, sold the mixture in bottles to which was affixed a red label with the words " Penan"- Medical Store, No. 18, Beach Street," printed in a half-circle thereon in English as a heading, and underneath, followed in Chinese characters, the following " Wonderful medicine for rheumatism. It has the power to dispel the rheumatism, to strengthen the constitution, and strengthen sinews and bones. Take it three times each day and at each time take two spoonfuls. It will surely effect a perfect cure." In May, 1887, the plaintiff found the defendants who were also Chemists and Druwcnsts carrying on business in Beach Street No. 3, under the name of STRAITS SETTLEMENTS. 395 the " Penang Dispensary " were selling bottles somewhat similar to the plaintiff's, containing a mixtnre for rheumatism on which bottles was affixed a label similar in size and colour to the plain- tiff''s, having the heading in English arranged as the plaintiff's, and underneath Chinese characters which were precisely in formation and arrangement like the plaintiff's; the only difference being in the English heading in which the word "Dispensary" was used instead of " Medical Store " and the figure " 3 " instead of " 18." The plaintiff having through his Solicitor written to the defendants objecting to their use of this label, the defendants altered their labels by printing the heading in straight lines and differently arranging the Chinese characters. The plaintiff being still dissatisfied began this suit. At the trial it appeared that another Chemist and Druggist of the name of Hagerty who also carried on business in Beach Street under the name of the "New Medical Hall " from 18th February, 1880, and thence continuously to this date had and was selling a mixture of his own for rheumatism in bottles not unlike the plaintiff's with labels affixed thereto like the plaintiff's in design and arrangement, except that it had a line bordering on the four sides of the printed matter, and the name " New Medical Hall " and No. i in the heading in English and the Chinese characters were somewhat differently arranged. The plaintiff first became aware of Hagerty's use of this label a.bout four or five years ago, he took no steps to prevent Hagerty so using it, though at the time tlie plaintiff' was object- ing to defendant's use of their label, he got liis Solicitor to write a letter to Hagerty objecting to his using of the label. Hagerty took no notice of this letter, but no proceedings up to date had been begun against him. Glutton, for the defendants contended, [1] that the plaintiff's label was not a trade-mark and cited Sebastian on Trade- Marks, 3, 49-59; Singer Manufacturing Co. v. Wilnon, 1^ L. R. Ch. Div. i'S4, 440; Cheavin v. Walker, 5 L. E. Ch. Div. 850, 51 ; Linoleum Manufacturing Co. v. Navin, 7 L. R. C. D. 834, and Leather Clath Co. V. American Leather Cloth Co., 11 H. L 539; [2] that Hagerty's use of a similar label, and lapse of time, had made plaintiff's label become publici juris and cited Ford v. Foster, 7 L. E. C. D. 611; Lee v. Miller, Sebastian's Digest cf Trade-Mark Cases, 513, and Seton on Decrees, 242. Ross, for plaintiff was requested by the Court to confine himself to the question of Hagerty's user. He contended that exclusive user by the plaintiff was not necessary and user by one other person did not make the trade-mark puhlici Juris, By Statute 46 & 47 Vic. c. 57, ss. 74, 76 & 90, the user by less than three persons had not that effect; and though that Act did not apply, the Court might act by analogy. He cited Ford v. Foster, 7 L. R. Ch. Div. 615, 623, 625 & 632; Rodgers v. Rodgers, 31 L. T. [N. S.] 287; Monson y. Boehm, 26 L.R. Ch. Div. 398, and re Heaton, 27 L. R. Ch. Div. 570. Glutton, replied. Wood, J. The first question I have to determine is whether the plaintiff has or has not a trade-mark in this label. 1 am of Wood, J. 18S8. Blaze V. Matnaed & Go. 395 THE SUPREME COUE*. Wood, J. 1888. Blazk t*. Matnabd & Co. Penanq. Wood, J. 1888. July 10. opinion it is a trade-mark ; he has always vendered his article with this particular label affixed on his bottles and his mixture has become known to the public by that label. I consider the defendants' first label is an imitation of the plaintiff's and that defendants intended to pass off their medicine as plaintiff's. I also think though their altered label is not so distinctly like the plaintiff's, yet still it is a colourable imitation thereof. It is -a dangerous thing for a person to come into Court with a label of this kind. I Lave to consider next whether the plaintiff ha.s weakened his ease for damages by standing by when Hagerty began to use his label. The plaintiff did not know it at the timfe and when he did come to know of it he was not aware he had a right to object to it — ignorance of the law however is no excuse. Hagerty's label is not quite such an imitation of plaintiff's as the defendants' nre; however, even if it were, I am of opinion that the plaintiff' has never abandoned his trade-mark, and the mere fact of Hagerty using one like it does not thereby make the plaintiff's mark publici jurin. The damages claimed by the plain- tiff are excessive, and as the defendants will have to pay heavy costs and besides be restrained by injunction from using their labels, I think the damages I ought to award plaintiff is $300. The injunction will be as to the two labels and in the terms of the prayer of the statement of claim. Judgment for plaintiff with coats. RAMSAMY y. LOW. It is not sufficient tor tlie prosecution iu the case of a charge against a prisoner under Section 13 of tlie Crimping Ordinance 3 of 1877 to shew that he seduced or attempted to seduce a labourer under contract of service to leave his employer and seek for employment generally ; before there can be a conviction under that section it must be shewn that the labourer was seduced or attempted to be seduced in order to serve mme particular person. In prosecutions under the said sectioii, the contract for service should itself be Ijroduced ; and it is not sufficient to give extrinsic evidence of its terms. The prisoner Eamsamy [appellant] was convicted by R. N. Bland, Esquire, Magistrate of Nebong Tebal, Province Wellesley, for " attempting to seduce or take from their employment, three labourers who at the time were under contract to labour for a period not less than one month in order to serve some other person without the Colony " under Section 13 of the Crimping Ordinance 3 of 1877. The evidence shewed that the three labourers in ques- tion were employed in Caledonia Estate, Province Wellesley, of which the respondent was general manager ; that they had served for one year and their contracts had not expired. The contracts themselves were not produced nor was the actual term of service shewn. The prisoner and another man had met the labourers on a bridge some four hundred feet from the estate, and after con- versing with them invited them to his house and they went. In the house, they saw five other men up in a loft. At the bridge and again in the house the prisoner asked the labourers if they would like to go to Deli, in Sumatra, as others were going and he bad hired a boat for $80 which would be ready to take them at STRAITS SETTLEMENTS. 397 11 o'clock the next niglit ; that at Deli they could get $8 per month in a pepper plantation and he would send them to Deli, aud his companion would go as tindal. The labourers agreed to go and on promising to be ready to start the next night were paid 3 cents each and allowed to return to the estate. They had been seen by the watchman on the estate [Virapen] conversing with the prisoner and going to his house, and on their return to the estate were taken by him to the manager on suspicion that they were about absconding. They subsequently disclosed the arrange- ment and the charge against the prisoner [appellant] was the result. The prosecution also called the abovementioned five men whose evidence was that they belonged to Gula Estate in Perak, and had run-away and were taken in by prisoner's grass-cutter into the aforesaid house of the prisoner. There was reason to suspect they were the men alluded to by the prisoner as the other men who were going to Deli, and that they were being harboured by him in order to be taken there as labourers in one of the plan- tations. The five men had been found by the Police in the prisoner's house and brought to the Station where they were afterwards identified by the manager of Gula Estate as his run- away coolies. The formal record of conviction omitted to state that the prisoner " knowingly " attempted to seduce the labourers ; it did not state that the Magistrate was a Magistrate "in and for" Nebong Tebal, in Province Wellesley, nor did it disclose the time or place where the offence was committed. Section 13 of the Crimping Ordinance 3 of 1877, is as follows: — " Any person who shall knowihsjly seduce or take, or attempt to seduce or take from his service or employment any laboui-er bound by any contract of service, such contract being for a period of not less than one month, to serve any other person whether within or without the Colony, or who shall knosfingly take any labourer while so bound into his sei-vice or employment, or who shall knowingly harbour or conceal any labourer who shall have absented himself without leave from the service of such other person to whom he is so bound, whether such service is to be pei-formed within or without the Colony, or who shall knowingly retain in his service any labourer bound under any such contract to serve any other person, whether within or without the Colony, after receiving notice in writing, that such labourer is so bound as aforesaid, shall be liable on conviction to a fine not exceeding twenty-five dollars, or to imprisonment which may be of either description, for any period not exceeding three months, or to both, in respect of each or every such labom-er." The prisoner appealed against the conviction. The Magis- trate in stating the case, stated the following " Reasons for the Conviction" : — " 1. — There are slight discrepancies in the statements of the three first witnesses [Sababadi, Shedumbi-um and Sundrum] e.g. with regard to the pay- ment of money to them, but their evidence in the main is strongly corroborated by the fact that five men as mentioned by them were actually fovmd in the defendant's house. 2. — The evidence given by the man Virapen has not been shewn to be imtrustworthy. 3. — The defendant called no evidence to support his statement, that the five coolies were in his house without his knowledge. 4. — That the attempt to seduce the labourers from their employment was in order that they might serve ' some other person ' may be presumed until the conti-ary is shewn, from the fact that they were agricultural laboiirers with no other means of earning a livelihood, and this presumption is borne out by the statements of the labourers themselves." Wood, J. 1888. Ramsamt V. Low. 1*HE StJPREME COtTRl'. FoiiD, C. J. 1889. MiCHELL V. Fbench. was done in his capacity of Judge, and that it was not possible to separate his duties as being ministerial merely as regarded the filing of the power of attorney, and judicial as to hearing the cause. That an action did not lie against a Judge for any act or omission of his done judicially ; nor could an injunction be issued against him. He cited Day v. Brownriag, 10 L. E. Ch. Div. 302; 1 Daniel Ch. Prac. 527;' Floyd v. Barker, 12 Cote 23; Bmhell's Case, 1 Mod. 119; Hammond v. Howell, 2 Mod. 219; Oronveldy v. Bouwell, Salk, 895 ; Mostyn v. Fahrigas, 1 Smith's L. C. 668 ; Pulido v. Musgrave, 5 L. E. App. Ca. 102 ; Garnett v. Farmns, 6 B. &C. 611; Galder v. Halket, 3 Moo. P. C. C. 28; Taafe v. Dowries, ibid [note] ; Houlder v. Smith, 9 L. E. Q. B. 170; Adolphin Y. Ellis, 14 Q. B. 841 ; Toner v. Child, 6 E. & B. 289 ; Ashby V. White, Ld. Eaymond, 988; Eernp v. Neville, \0 G. B. [N. S.] 523 ; Fray v. BlarMurn, 3 B. & S. 576,' Munsler v. Lamb, 10 Q. B. Div. 588 ; Bcott v. Slanfield, 3 L. E. Ex. 220 ; Willis v. McLacMen, 1 L. E. Ex. 376 ; Q.ueen v. Jordan, 36 W. E. 589, affd. ibid. 797. Groom, for the plaintiflE in support of the statement of claim contended, that the filing of the power was merely ministerial; that the defendant was not acting judicially when he refused to file it, or to allow the plaintiff to appear, and turned him out. He referred to Sections 30 and 32 of the Siam Order in Council. 1856 ; Sections 3 and 4 of the Orders in Council, 1886 ; Davidson V. Ord, 1 Kysbe, 205; 6 & 7 Vict. [1843] Section 7 ; 7 Jac. 1. c. 6;21 Jac. I.e. 12;42Geo. Ill, c. 85, Section 6; 11& 12 Vict. c. 44, Section 18; Mostynx. Fahrigas, [Supra] 623, 637-8 ; Galder v. Halket, [Su\)rsi]; Houlder V. Smith, 19 Jj. J. Q. B. 172; Garnett v, Farrans, [ Supia]; Taafe v. Downes, [Supra]; Blarrain v. Scott, 3 Camp. 388 ; Watson'v. Bodell, 14 L. J. Ex. 281; Glarkev. Bradlaugh, 8 L.E.Q.B. Div. 63; Porcheste v. Petrie, 3, Doug. 273; AshhyY. White [supra] Ferguson v. Kinmore, 8 CI. & Fin. 251 ; Miller v. Hope, 2 Shaw's App. Ca. 125; Eules 210 and 211 of the Consular Court at Bang- kok; liridqman v. Holt, Show. P. C. 122; Brazier v. McLean, 6 L. E. P. C. 379 ; Pollard's Case, 2 L. E. P. C. 106. Bonser, replied. Citr, Adv. Vult. January 21. Ford, C.J. This is an action by Mr. Michell an English Barrister in the employ of the King of Siam against the Vice-Consul of Siam for damages for an assault and a nonfeasance of duty under the following circumstances taken from the statement of claim. This statement must be taken as true for the purpose of this part of the case, the objection to plaintiff's claim having been taken by demurrer, upon the ground that the acts or omissions complained of were done or omitted in the defendant's judicial capacity, whether acting as Consul or otberwise. After certain allegations, [which, with the exception of a reference to certain rules referring to practice of Counsel and regulating the right of attorneys and agents to appear for suitors, do not seem to me material for the decision of the question before me] the statement of claim alleges, [read paras. 7, 8, 9, 10, 11, 12, StfRAi^S SETTLEMENTS. 4^9 and 13 and prayei-] these paragraphs certainly seem to me to Foed, C. J. establish an admission of the plaintiff that what acts the defend- ^_^- ant did wrongly and omitted to do, he did or omitted as Judge, Michell or Consul acting at least in a judicial or ministerial capacity, and «• not as a Justice of the Peace, as the plaintiff contended for as a Fbbnch. reasonable inference from his statement. The question therefore becomes reduced to the points raised by the demurrer, whether or not these matters complained of were done or suffered in the defendant's judicial capacity, and whether this, if so, is in law a good defence to an action for damages. The plaintiff has indeed also raised the question whether the defence raised can be taken bj-- demurrer, and contended that it should be specially pleaded, but although the form of a special plea lias been the more usual one, I am clearly of opinion that when the facts in the statement of claim show a state of things upon which the legal questions can be at once raised, this is not only allowable but a better form of proceeding. The two questions then before me, are as follows : — 1. — Were the acts or omissions complained of done or omitted in the defendant's judicial or ministerial- capacity ; if the latter purely, the demurrer would fail. 2. — If done or omitted in the defendant's judicial capacity, is he exempt from liability to an action for damages ? The 1st is a question of fact ; the 2nd a question of law. I am of opinion that having reference to the terms of the rule under which the plaintiff lirst presented his authority for filing, the act of refusal was a judicial act. The language of the rules requires the authority to be distinct and clear so as to satisfy the Court, &c., and this at least necessitates the use by the Court of some mental process of a judicial character, and I do not know what other meaning to give to the word " Court" here, but that of its Judge for the time being. We have then, before a particular case is called on, a Judge doing, as I think, a judicial act in refusing to file that which should have entitled the plaintiff' to appear in the capacity he asked. But were there any doubt about this, it is clear when the legal proceeding was called on, the subsequent act of removing the plaintiff took place during its continuance, and the act of the plaintiff in again tendering his authority after its previous refusal, was an act of interruption, and his removal froni the Court, however unnecessary, insulting and ill-advised, was an act of the Judge in a judicial proceeding, a judicial, if not a judicious act. The 2nd question is whether this having been so, its character affords a sufficient answer to the plaintiff's remedy by action. A proper summary of the law to be taken from the numerous cases cited, seems to me to be this, viz. — That upon grounds of general public convenience a Judge is not liable in the form of an action for damages, for acts done or words spoken in his judicial capacity, unless such acts or words are done or uttered without jurisdiction and with knowledge of such want of jurisdiction. 400 THE SUPitEME COURT. Wood, J. 1S8S. Metappa Chettt V. Ong Hong Pee & Anok. In re Ong AhPoh. was adjourned by Wood, J. to Interpleader. Section 16 of the is as follows : — be heard tosrether with tliis Bills of Sale Ordinance, 1886, [1] Any Judge of the Supreme Court on being satisfied that the omis- sion to register a Bill of Sale oi- a declaration of renewal, or transfer, or assignment thereof within the time prescribed by this Ordinance, or the omission, or mis-statement of the name, residence, or occupation of any person was accidental, or due to inadrertence, or to absence from the Colony, may in his discretion order such omission, or mis-statement to be rectified by the insertion in the register of the true name, residence, or occupation, or by extending the time for such registration on such terms and conditions [if any] as to secux-ity notice by advertisement, or otherwise, or as to any other matter as he thinks fit to direct. [2] Any application for the rectification of the register under this section shall be made in Chambers in a summary way. On the Interpleader coining on for hearing, Van Somnren, for the claimant applied on his summons for an order to rectify the registration by extending the time for the renewal thereof. He contended there was no difference in point of law between an entire omission to re-register and the re-registei'ing on an affidavit which did not give all the particulars required by Section 14, Clause 2. Ex-parte Webster, 22 L. E. Ch. Div. 136 ; that ignor- ance of the law was " inadvertence " within the meaning of Section 16, and the Court had power thereunder to rectify the registration by extending the time even though the right of third parties had intervened. Re Piirkes, 13 L. R. [Ir.] 85 ; and notwithstanding that the third pnrties had insisted on their rights as us^ainst the Bill of Sale, by reason of its non-renewal of registration. Be Dobbins' Settlement, 57 L. T. [N. S.] 277, s. c. 56 L. J. Q. B. 295 ; this last case was precisely in point and though it would pi-obably be soxight to distinguish it on facts, yet in its legal effect it could not be distinguished. Adamn, for tbe plaintiff, execution-creditor contended, that to allow renewal of registration at this stage would be to stultify the Ordinance ; that Re Dobbin was distinguishable as there the Bill of Sale holder had obtained an order to rectify prior to the title of the trustee in bankruptcy arising, but had omitted to carry out the order by filing an affidavit which gave all the particulars required by Section 11 of the English Statute [41 & 42 Vic. c. 31] corresponding to our Bills of Sale Ordinance, 1886, Section 14; that while he could not contend ignorance of law might not be " inadvertence " under Section 16, yet the Court in jthe exercise of its disci-etion would not extend the time under it without saving the vested rights of third parties, in this case the execution-creditor. Re McAlister & Co.. ante p. 279. Wood, J. If this was an application made prior to the execu- tion-creditor coming in, 1 should certainly have extended the time for the renewal of the registration of the Bill of Sale, as I consider ignorance of the law might amount to "inadvertence" within the meaning of Section 16. The application here however, is made after the rights of third parties have accrued and after they have insisted on their rights us against the Bill of Sale. The question is, does the section under these circumstances give STRAITS SETTLEMENTS. 401 this Court the power to extend the time ; and if it does whether Wood, .t. I should do it in the present case. In my opinion the question is ^^^^- concluded by the authority of Re Dobbins' Settlement, which was Metappa not cited when McAUate/n Canp. [a.] was decided in Singapore, Chetty and the omission to register stands under Section 14 on the same Q^jg^fj^ifG footing as a registiation with an imperfect af&davit. Following ■e^\ anor. the precedent in that case, and as there can be no doubt of the in re bond fides of this Bill of Sale and the claimant's inadvertence to OngAhPoh. renew the registration of it, I order that the time be extended to Monday next, 24th instant at 4 p.m., to renew the registration thereof. As the execution-creditor has been put to the expense of interpleading by reason of the claimant's laches to renew his registration, I think, as was done in Dobbins' Case, he should have his costs against the claimant from the date of his issuing his Interpleader Summons to the 13th instant when the claimant took out his summons for the rectification of the registration. From that time I think the execution-creditor was in the wrong as there was precedent, which he might have found had he searched for it, for the application to rectify ; and from that date to this he must pay the claimant his costs. Judgment for claimant with costs, subject to his filing a declaration for renewal of registration by the 24th at 4 p.m. [fc.] REGINA V. ORBEN. In a prosecution for keeping an nnlicensed iile-house, the prosecution must shew Penang. the house Wiis i-ept by tlie prisoner; evidence of her acts whicli are consistent with that fact, or with her being merely a .servant m the place will not suffice. Wood, ,T. Semhle. The omm prohaudi on such charge, is on the prosecution, to shew the 1888. prisoner had not a license. Municipal Commissioner.i v. ChiiriJi Sent/ ,^- orx., 3 Kyslie, 140, considered. July 23. ' The appellant Rosa Green had been convicted by A. T. Bryant, Esquire, Magistrate, for keeping an unlicensed ale-house under Ordinance 13 of 1872, Section 33, and fined $50. The evidence for the presecution was to the effect that the prosecutor who was a Lance Corporal in the Police Force, was at about 12 o'clock on tlie night of 13th March last, walking through Penang Road in company with Corporal Mat Esah and a friend, when coming up to shop No. 535 they found it open. They saw several bottles of beer in the shop, and thereupon entered into the entrance hall thereof, and found it was partly screened off by a curtain on which was reflected the shadow of two persons seated at a table. The prosecutor and his companions pushed the cui-- tain aside and entered; in doing so they saw the appellant pour- ing beer into a glass which was on the table. On seeing them the appellant took the glass up and walked off with it and the bottle [which still had some beer in it] into an inner i-oom. The prosecutor attempted to follow her into this inner room, but she tried to prevent him ; he however forced his way in and on the floor of the room near the door he found a bottle half full of beer [a.] In re McAlister & Co., anti p. 279. [6.] Adams intimated his intention to appeal, but never carried it out. — J.W.N.K. 402 THE SUPREME COURT. Wood, J. 188S. Eegina V. Green. and two empty beer bottles. The glass was not there. The bot- tles were taken by the prosecutor to the Police Station, and next day he took out a summons against her. There was no evidence that the appellant was the owner of the shop or kept it, nor was there any evidence that the shop was unlicensed beyond the state- ment of the prosecutor that it was unlicensed. The appellant produced no license and called no evidence to shew she had one, or that she was not the owner or keeper of the shop. Section 33 of Ordinance 13 of 1872, is as follows :— " Any person keeping or permitting to be kept any hotel, tavern, punch- house, ale-houso, coffee-house, boarding-house, or other place of public resort or entertainment, wherein provisions, liquors, or refreshments are sold or con- sumed, whether the same be kept or retailed therein or procured elsewhere without a license as required by law or oontrai-y to the terms of such license, shall be liable to a penalty not exceeding one hundred dollars. The appellant appealed against the conviction. G. S. H. Qottlieh, for the appellant contended, that assuming the facts to be true there was no evidence to prove she kept the house, but some evidence was necessary to shew she did or else permitted it to be kept — " keeping" meant being the mistress of the place. There was also no evidence that liquors were sold there, non constat the two people were her friends and she was giving them a friendly drink. There was no evidence any liquors were consumed there. There was no evidence the shop was unlicensed. The prosecutor [the Police] ought to have known all about the license, and there was no reason why they should not have proved its absence. The rule was that as here, when the knowledge of the fact of non-license is equally in the hands of both parties, the prosecution was bound to prove it. Municipal Commissioners v. Ghuah Seng, 3 Kyshe, 140; Paley on Convictions, 121-4. Ross, for the respondent centended, that in the absence of evidence from the prisoner proving the contrary, there was sufficient evidence from the facts proved especially her actinu; as mistress of the shop and trying to keep the Police out, to shew she was the mistress of the shop and kept it. The place was a shop and several bottles of beer were there ; she was serving the two persons seated at the table, and the presumption was, she sold the beer she was helping them to. Proof of consumption was not necessary. The onus of proving license was on the prisoner — the affirmative was on her, and she could produce the license if she had one — Khno Aing Hong v. Meyapah Ghetty, 3 Kyshe, 124. At all events there was no reason to quash the conviction; the evidence of keeping and want of a license was procurable, and the case should if necessary be sent back to the Magistrate for further evidence — Appeals Ordinance 12 of 1879, Section 25. Gottlieb replied, contending that the case fell within Section 34, Clause 8 of the Appeals Ordinance aforesaid — at all events as Mr. Bryant was no longer Sitting Magistrate the case should not be remitted to him. Wood, J. I am of opinion that on the facts proved, there is not sufficient evidence of the house being " kept" by the defend- STRAITS SETTLEMENTS. 403 ant as an ale-house, non constat that she was onlj' a servant in the place. I shall therefore remit back the case to the same Magistrate for further evidence, but I would call his attention to the necessity of its being sliewn before him— 1, that the house is kept by the prisoner ; 2, that it is kept by her as an ale-house wherein provisions, liquors, or refreshments are sold or consumed ; 3, that it is so kept without a license. I do not decide the ques- tion on whom is the onus prohandi of proving the non-existence of a license ; I entertain doubts whether it does not lie on the prosecution on the authority of the Municipal Commissioners v. Chuah Seng, but [ am not quite satisfied with that case. Case remitted. Wood, J . 1888. Eeqina. V. GrREEN. SEAH LEE & ANOE. v. KIAM GUAN. A person who having a right to a particular trade-mark does not make use thereof Singapop.k. for several years during which time another person uses the trade-mark and his manufac- tures thereby become known as suoh in the market, cannot afterwards come forward Goldnet, J. and use the mark or confer on a purchaser from him the right of so using it. 1888 The mere statement on the plaintiff's trade-mark that he carries on business in a particular place for the purpose of procuring the particular article — whereas he carries August 13. on the business in another place — is not such a false statement or misi-epresentation as disentitles him to relief in this Court. The nature and facts of this case sufficiently appear in the judgment. Drew, for the plaintiffs. Donaldson, for the defendant. Cur. Adv. VuU. 20th August. Goldney, J. This is an action brought by the plaintiffs for aii injunction restraining the defendant from selling tea bearing a fraudulent and colourable imitation of the plaintiffs' trade-mark. The defendant appears to have commenced selling tea in Singapore bearing the marks complained of only last year. It is not disputed that the tea sold by the defendant with the exception of the word " Lee " being substituted for the word " Choa " on one of the labels and the words " Ye Hong Chin Kee dealer in different superior teas " in English characters on the label of the boxes, was put up and packed in packets and boxes exactly similar to the plaintiffs' packets and boxes and that such packets and boxes bore labels [with the above exception] identi- cal with those which have been exclusively used by the plaintiffs as their trade-mark in the Singapore market for a period of more than eight years. It is clear on the evidence that the plaintiffs' teas have become favourably knowii and sold in the Singapore market by the labels so used by the plaintiffs. By such usage the plaintiffs have in my opinion acquired an exclusive property in the labels used by them as their trade-mark. The principles of Commercial Law upon which the rights of the parties, to this cause depend are fully explained in the cases cited at the Bar, viz., TAe I/eq,ther 404 THE SUPREME COURT. GoLDNET, J. Cloth Co., Limited v. American Leather Cloth Co., Limited, 11 H. 1888. L C. 533 ; Wotherspoon v. Currie, L. E. 5 H. L. 508 ; Johnston Seah Lee & 'PJoii^e Officer and then prosecuted him for cheating under Section 417 ^f the Penal Code. The Magistrate, W. C. S. Kynnfe5«JdsS^*^'5quireL convicted the appellant and sentenced him to oj>^f"^J' "*Tisimp^! imprisonment : he now appealed. Section ^S^^-'^ae pp^'^^?^ '^arXis follows " 416. Whoever, by deceiving any person, ir 9 of 1887, to issue a notice to an owner or occupier of a house to remove obstructions in Oj^en arcades or verandahs; and the mere non-compliance there- fore with such a notice does not hring the owner or occupier within the section. The Municipal Commissioners have no power to enforce public passage over an arcade or verandah by requiring under Section 129, the removal of obstructions thereon, which obstructions have existed anterior to the old Conservancy Act XIV. of 1856. A conviction for "maintaining" such an obstruction by merely not complying with a nolrice iis above, was therefore quashed. The appellants who were respectively Trustees of three Kongsi houses, Nos. 22, 30, and 36, King Street, had been con- victed by G. C. Wray, Esquire, Magistrate, for maintaining after "^tnotifce from the Commissioners to remove the same, a brick wall 'on the five-foot path of the said houses, and so causing an obstruction to the passage of the public thereon, under Section 129 of the Municipal Ordinance 9 of 1887. The evidence shewed that the Municipal Inspector having inspected the premises in question and found a brick wall in each house in the five-foot way which caused an obstruction to passers- by, reported the matter and received instructions to issue a notice to the owners or occupiers to remove the walls within 7 days. This he did and served them on the appellants on 8th August last. On the 15th September on again inspecting the premises, he found the obstructions still existed; and on reporting same, he was directed to prosecute the appellants. In cross-examination the. Inspector admitted he had known these walls to exist /or eleven years in the same condition as they now were and the obstruction bad existed all that time. He stated however, Pbnang. Wood, ,r. 1888. Nov. 12. 432 THE SUPREME COURT. Wood, J. 1888. Chin Benq Lrano & Oks. V. Municipal COMMIS- SIONEBS. the walls could he removed without damaging the buildings. The accused in their defence produced their Title Deeds which shewed their lands extended right up to King Street as their Eastern boundary, so that the soil of the alleged five-foot path was their property. They also called a witness who stated that he had been in Penang for sixty years, and he then knew these premises, and the walls in question ivere there when he iirst came, and were there just as they were on the day he gave his evidence. The appellants on being convicted as above stated, and fined 50 cents and costs, appealed. The appeal now came on for heai'ing. Van Someren, for appellants contended, the conviction could not be supported. The Magistrate's idea was that because the appellants had not pulled down the walls after receiving notice from the Commissioners, they were guilty of "maintaining" the wall and were punishable under Section 129. The walls however, were shewn to have been in existence over sixty years, and the appellants had done nothing to them since the new Ordinance. By Section 269 no person was liable to be punished for any offence under the Ordinance unless complaint was made within three months of its commission. The Magistrate had thought that as the prosecution was begun within three months of the Commis- sioners' notice to pull down that was sufficient. That notice however, was mere waste paper; the Commissioners were not authorised by the Ordinance to issue such a notice. When they were empowered to issue notices, the sections clearly said so, ex. gr. 118, 245, 247, &c. The appellants not complying with the notice did not therefore make them liable. Further, from the evidence it was clear the soil of the alleged foot way was in the appellants, and as these walls had existed over sixty years as an obstruction to passage, it could not be said "to create obstruction or incon- venience to the passage of the public," as the publicfor over sixty years never had it. Whatever might be the rights of the Com- missioners to tlie five-foot paths constructed subsequently to the new Ordinance, or even to the old Conservancy Act XIV. of 1856, as amended by Ordinance 2 of 1879, it was clear they had no right to enforce passage for the public over verandahs or arcades adjoining a public street by requiring the removal of obstructions existing therein long prior to that date. D. Logan, [Solicitor-General] admitted he could not support the conviction. Wood, J., said, as the Commissioners had no authority to issue the notice of 8tli August, that document could not make that punishable which would not otherwise be punishable ; that as these walls had been in existence for a period anterior to the old Municipal Act, and caused the same obstruction as they now did, the Commissioners had no power to enforce public passage by causing their removal, and the case was not within Section "129. The conviction must therefore be quashed. Conviction quashed. STRAITS SETTLEMENTS. 433 CHONG AH NAT v. PUTEH. A plsiiutiff who has recovered judgment in an action for a malicious prosecution Penano. is entitled under the joint operation of Ordinance 22 of 1870, Section 3, Clause 7 and the Civil Procedure Ordinance 5 of 1878, Section 425, if he desire it, without any Wood ) application to the Court, to issue a Ca. Sa. for the arrest and imprisonment of the & Pel- V J.J. defendant for the non-payment of the judgment and costs. lereau.) Abud V. Riches, 2 L. R. Ch. Div. 529, and Ferguson v. Ferguson, 10 L. E. Ch. Div. 662, distinguished. Nov. 12. The plaintiff had in a small cause recovered $100 damages against the defendant for a malicious prosecution besides costs of suit. The defendant not having paid up damages or costs the plaintiff's Solicitor applied to the Eegistrar for a Ca. Sa. under Clause 7, Ordinance 22 of 1870, Section 3. The Registrar con- sidered he could not issue the writ without an order of Court. G. S. H. Gottlieb, for the plaintiff now moved for an expres- sion of opinion by the Court on the point, and that the Registrar be directed to issue the writ without any application to the Court for it. He contended that existing rights for enforcing the judgment of the Court were saved by the Civil Procedure Ordinance 5 of 1878, Section 425; that the Ca. 8a. was a Com- mon Law writ a plaintiff had prior to the abolition of imprison- ment for debt by the Debtors' Ordinance 22 of 1870, Section 1, but that section exempted certain cases from its operation and among these by Clause 7 imprisonment for non-payment of a judgment in an action for a malicious prosecution. He referred to 1 Arch. Q. B. Prac. [I3th Ed.], 602—5. Prior to the Ordinance of 1870, a Ca. Sa. was issued on the mere application of the party like lifi.fa. was and is now issued — the right to have the debtor imprisoned being saved under Clause 7, Section 3, of that Ordinance, the writ of Ca. Sa. and mode of procedure to obtain it remained also. Clause 7 was not to be found in the correspond- ing English Act. [Pellereau, J. referred to the cases of Abud v. Riches, 2 L. R. Ch. Div. 529, per Jkssel, M. R., and Ferguson v. Ferguson, 10 L. R. Ch. Div. 662, per James, L. J.] Gottlieh, submitted those cases were inapplicable as they were cases of attachment and turned on a rule not to be found in our Ordinances. The right to a Ca. Sa. being an existing right in 1878, WAS saved by Section 425, before referred to. Mr. Harwood, the Registrar, was heard and he stated that he had doubts as to issuing the Ca. Sa. as the proviso in Section 3 of the Debtors' Ordinance, 1870, provided that the term for imprisonment in the excepted cases should not exceed one year, and unless there was an application to the Court for the writ aiad the Court stated for what period the defendant was to be imprisoned, how was he to know what period to state in the writ. The proviso implied a discretion as to time and as it gave it to no one in particular it was to be exercised by the Court on motion. Wood, J., said the cases of Abud v. Riches and Ferguson v. Ferguson were valuable as shewing the procedure in England for an attachment under the Debtors' Act of 1869, but besides being for an attachment and not a Ca, Sa. they turned on an express 434 THE SUPREME COURT Wood 1 &Pel- >J.J. LEBG An. ) 1888. Chonq Ah Nai V. PUTBH. rule that no attachment could issue without application to the Court, a rule not to be found in our Ordinances. Those cases must therefore be laid aside in considering the present question. At Common Law a plaintifB was entitled without any application to the Court, in all eases to issue his Ca. 8a. for the arrest and imprisonment of his debtor — that rule had been broken into by the Debtors' Act which abolished imprisonment for debt, but excepted certain cases from its operation. Among those excepted cases was the case of a deht on a judgment recoTered in an action for malicious prosecution. Such a judgment-debt was previously exforced by a Oa. 8a. if the plaintiff desired to have his debtor imprisoned. Imprisonment on such a judgment-debt was except- ed from the general abolition, the Ga. Sa. therefore remained in respect of such a case. By the old rule the Ga. 8a. was issued on the mere application of the party wanting it ; there was nothing in our Ordinances to say he should not have it, or shoiild not have it except in a particular way. His Common Law right to have it on his mere application therefore stood, and was an existing right within Section 425. The plaintiff in this case was therefore entitled to have his Ga. 8a. without any application to the Court. Pellereau, J., said he had some doubts when the matter was first mentioned to him, and he had thought the point of sufficient importance to ask his learned brother to sit with him and decide it. That doubt of his had arisen from the decision of Jessel, E. M. in Abud v. Riches. Having, however conferred with his learned brother and considered the question more closely he had come to the same conclusion as he had though not without some doubt. The policy of the Debtors' Act was the abolishing of imprison- ment for the debt, the cases had decided that the Debtors' Act was as applicable to cases in Chancery as to those at Common Law. The Master of the EoUs in the case of Ahud v. Riches said the application there was for an attachment and turned on a rule which was analogous to the Debtors' Act. That rule we had not got, but the Act we had ; and he felt if Jessel was right in the analogy he drew, then, as an application had under that rule to be made to the Conrt before an attachment could issue, the plaintiff must underour Debtors' Act apply to theCourt beforeaCa. Sa. could issue. But as stated^he thought^on full consideration that that expression of the Master of the Eolls might well be limit^ not to the mode of procedure, but to the cases or circumstances under which imprison- ment was allowed by the Debtor's Act. If this was SQas he thought it was, the case of Ahud v. Riches presented no difficulty in con- sidering the present question. The case of Ferguson v. Ferguson was not a decision, but the mere expression of a doubt on the part of James, L.J., and therefore was still less an authority on the point. The authorities shewed the plaintiff at Common Law was entitled to his Ga. 8a. as a matter of course and of right. Imprisonment had been done away with, hut not in all cases. An action for malicious prosecution was one of these. Imprisonment therefore for non-payment of a judgment in such an action remained. The mode of enforcing that imprisonment used to be by a Ca. 8a., the mode of enforcing it under the Dehtors' Ordi- STRAITS SETTLEMENTS, 435 nance was not mentioned. The old mode however had not been taken away. The old mode, the Ga. 8a., therefore remained and must be issued in the same way as it used to be issued, prior to the Debtors' Ordinance on the simple application of the party wanting it. It was an existing right within Section 425 of the Civil Procedure Ordinance. The point suggested by the Registrar presented no difficulty. In a case he [the learned Judge] found in Fisher'it Digunt [a.] it was stated that the period of imprison- ment need not be stated in the writ, but might in a foot-note be stated not to be extended beyond a year for the information of the debtor. At the end of that time or earlier if he was so advised the debtor could apply, for his discharge from prison ; if he omitted to make his application he might have to be there for life, but it was he who was to move. The point would then come up for the consideration of the Court and the opportunity given for the Court to exercise its discretion under the proviso in Section 3 on his application. Under the circumstances he [the learned Judge] thought the Registrar should have issued the Ga. 8a. when the plaintiff applied for it. [6.] Wood & Pel- LERBA.U, 1888. J.J. Chonq Ah Nai V. Pdteh. CASHIN V. MURRAY. The marginal notes to sections in our local Ordinances, being in this Colony always read with the Bill, are part and parcel of the Ordinance [c] The Municipal Commissioners have no authority by a general direction, to confer on their President the power of exercising the powers and descretions vested in them by Ordinance 9 of 1887, e.g. the directing of prosecutions for offences under the said Ordinance. The appellant Cashiu was owner of property within the township of Singapore; the respondent Murray was a Mtmicipal Inspector in the employ of the Municipal Commissioners of that town. The appeal was against the decision of S. Leslie Thornton, Esquire, Acting First Magistrate. The rest of the facts giving rise to the appeal sufficiently appear in the judgment. W. Nanson, for appellant. Drew, for respondent. Cur. Adv. Vult. December 18th. Ford, G.J. This is an appeal upon various grounds from the decision of the Magistrate, convicting the appel- . lant of having built in the months of July and August last, cer- tain walls and buildings in Cashin Street, not walls strictly built of bricks throughout, well bonded together with freshly made mortar, as required for houses so situate, under the Rules and Pro- visions of Indian Act XIV. of 1856, Ordinance 2 of 1879, Ordi- nance 9 of 1887, and Ordinance 1 of 1888. The first ground of contention that the President of the Municipality had no jui-isdiction to direct a prosecution, except [a.J Endaile v. Visser, 1.3 L. B, Ob. Div, 421 ? [*.] See Hermitage v. Kilpin, 9 L. E. Ex. Div. 207-8, per Cleasby & Pollock, ^ B.B. [c] But seeder Ooldneii, J. in Regina v. Kfioo Kong Peh [17th October, 1889] i«/rd.-J.W.N.K. SiNaAPOBE. Ford, C.J. 1888. Deo. 11. 43e THE SUPREME COURT. FOED, C. J. 1888. Cashin V. MUBBAT. iinder the provisions of Section 265 of Ordinance 1 of 1888, was tlie only one argued before me, it being evident" that if the appel- lant succeeded upon this point there would be no need for going into the other questions. The facts of the case as proved or admitted are, that the President did direct a prosecution in writing, without any direc- tion or approval from the Commissioners either by bye-law or other- wise, unless such direction or approval was rendered unnecessary, or to be implied from Sections 258, 244 of the Ordinances. The various sections are as follows : — 244. Notices. Notices orders and other documents under this Ordinance may be in writing or in print or partly in writing and partly in print and where any notice order or document requires authentication by the Commissioners the signature thereof by the President shall be sufficient authentication. 258. Subject to the provisions of this Ordinance and of any bye-laws t 1 h tvi ™^d6 under this Ordinance for the regulation of the Commissioners"" powers of exercise by the President of the duties of his office the Commissioners may be ox- President may exercise in the name and on behalf of erased by the President. ^^^ Commissioners all or any of the powers and dis- cretions which by this Ordinance are vested in and exeroiseable by the Commis- sioners. 265. The Commissioners may direct any prosecution for any offence „ . . ,. against the provisions of this Ordinance or of anv rules Commissioners maydi- t,i jxi j n lii'' rcct prosecution. Or Dye-laws made thereunder and may order the expenses of such prosecution to be paid out of the Municipal Fund and no such prosecution shall be instituted except by the direction or with the appi'oval of the Commissioners. Like a good many other Acts of Parliament, these clauses are not framed so that " he who runs may read," but so much I think is clear that Section 244 has reference only to acts which have been authorised by the Commissioners, the notice, order or document emanating which would ordinarily require their signa- ture. In this case the President's signature is a sufficient authentification of the document ; it need not be signed by the Commissioners, but that this cannot extend to authorising the acts to which the documents relate, apart from the President's power to do therein, is I thin k clear. The other of the two cited Clauses, 258 is certainly a little ambiguous, but under nny circumstances I should be slow to let an ambiguous clause over-rule a clause so clear and direct as 265. And the more so as, if I constructed its ambiguous terms in favour of the respondent, I should produce the extraordinary result of giving the President really absolute power to do as he pleased, and render Section 244 meaningless whenever he so desired. Such a jwwer to be maintained should be given in express terms if at all. I am further relieved from such a construction by the consideration of the marginal note to Clause 258 which in the Colony, being read with the bill is a part of the Ordinance, although this is a more doubtful point in construing English Acts of Parliament [a]. That note has it :— " Subject to [a.] See Be Venour's Settled Estate, 2 L. B. Ch. Diy. 522, 525, and Stitton v Button, 22 Ii. R. Ch. Piv, 511, STRAITS SETTLEMENTS. 437 the Control of the Commissioners " and therefore it seems to me, that only by a bye-law or some other way can the Commissioners delegate the powers in suitable cases given to them by Section 265 ; but improperly they thought by a general direction to relieve themselves and confer on the President the power of instigating the petty class of prosecutions of which the present is an instance. At the time of this prosecution no such power had been given, and I must therefore set aside this conviction. FORD.C. J. 1888. Cashin V. Mdbkat. GonvicMon quashed. MICHBLL V. FEENCH. Rule 211 of the British Consular Court in Bangkok, requires the Consul to exercise a discretion, as to whether he will file or not a power of attorney given by a suitor in the Court to a Barrister to appear for him as Counsel in a cause — and his exercising that discretion and filing or refusing to file the power is not merely a ministerial act. The law to be deduced from the existing authorities on the subject is, that upon grounds of general public convenience a Judge is not liable iu the form of an action tor damages for acts done or words spoken in his judicial capacity, unless such acts or words are done or uttered without jurisdiction and with knowledge of such want of jurisdiction. The principle also covers things omitted to be done. Although the form of a special plea is the usual one by which a defence that the defendant acted judicially is raised, yet when the facts in the statement of claim shew a state of things upon which the legal question can be at once raised, a demurrer thereto is not only allowable, but the better form of proceeding. An amendment which will amount to a different state of facts from those in the statement of claim and disclosing a new cause of action — and fresh facts being admit- tedly intended to be inserted without reference to the plaintiff who is out of the jurisdiction — will not be allowed. This was an action to recover $50,000 damages for assault and trespass, and for an injunction. The statement of claim alleged that the plaintiff was a Barrister of the Middle Temple, resident in Bangkok, having special leave from the King of Siam, to carry on private practice as a Lawyer ; that the defendant was the British Consular Judge at Bangkok, and an action was pend- ing before the Consular Court in which one Sultan Mydeen was a party ; that the plaintiff appeared as Counsel for the said Sultan Mydeen, and in pursuance of Rule 211 of the Consular Court, applied to the defendant to file a power of attorney from the said Sultan Mydeen empowering him to appea.r as his Counsel in the cause ; that the defendant refused to file the power, and on the plaintiff insisting on being heard, the defendant ordered him to be removed from the Court which was accordingly done. This was the trespass and assault complained of, and in respect of which the damages were claimed, and the injunction was prayed to restrain the defendant from I'epeating the said trespass and assault. The defendant demurred to " so much of plaintiff's claim as has reference to his acts and omission in his capacity of Judge of the Consular Court." The case was heard on the 8th January and on this day. Bonser, [Attorney-General] for the defendant, in support of the demurrer, contended that what was done by the defendant SiNQAPOBE. Ford, C.J. 1889. January 10. U^HE StJPREME COiJRt. Ford, C.J. 1889. MiOHELL V. French. was done in his capacity of Judge, and that it was not possible to separate his duties as being ministerial merely as regarded the filing of the power of attorney, and judicial as to hearing the cause. That an action did not lie against a Judge for any act or omission of his done judicially ; nor could an injunction be issued against him. He oited Day v. Brownriug, 10 L. R. Oh. Div. 302; 1 Daniel Ch. Prac. 527;' Floyd v. Barker, 12 Coke 23; Bushell's Case, 1 Mod. 119; Hammond v. Howell, 2 Mod. 219; Gronveldu v. Bouwell, Salk. 395 ; Mostyn v. Fabrigas, 1 Smith's L. C. 668 ; Pulido v. Musgrave, 5 L. R. App. Ca. 102 ; Garnett v. Farrans, 6 B. & C. 611; Calder v. Halket, 3 Moo. P. C. C. 28; Taafe v. Dowries, ibid [note] ; Houlder v. Smith, 9 L. R. Q. B. 170; Adolphin V. Ellis, 14 Q. B. 841 ; Tozer v. Child, 6 B. & B. 289 ; Ashby V. White, Ld. Raymond, 988; Zemp v. Neville, 10 G. B. [N. 8.] 523 ; Fray v. Blackburn, 3 B. & S. 576 ; Munsier v. Lamb, 10 Q. B. Div. 588; Scott v. Stanfield, 3 L. R. Ex. 220; Willis v. McLarMen, 1 L. R. Ex. 376 ; Queen v. Jordan, 36 W. R. 589, affd. ibid. 797. Groom, for the plaintiff in support of the statement of claim contended, that the filing of the power was merely ministerial; that the defendant was not acting judicially when he refused to file it, or to allow the plaintiff to appear, and turned him out. He referred to Sections 30 and 32 of the Siam Order in Council, 1856 ; Sections 3 and 4 of the Orders in Council, 1886 ; Davidson V. Ord, 1 Kyslie, 205; 6 & 7 Vict. [1843] Section 7; 7 Jac. 1. c. 5; 21 Jac. 1. c. 12; 42 Geo. Ill, c. 85, Section 6; 1 1 & 12 Vict. c. 44, Section 18; Mostynv. Fabrigas, [Supra] 623, 6^7 -H ; Calder v. Halket, [Supra,]; Houlder V. Smith, Id Jj. J. Q. B. 172; Garnett v, Farrans, [ Supra]; Taafe v. Doivnes, [Supra]; Blarrain v. Scott, 3 Camp. 388 ; Watsonv. Bodell, 14 L. J. Ex. 281 ; Clarke v. Bradlaugh, 8 L.R. Q.B. Div. 63; Porcheste v. Petrie, 3, Doug. 273; Ashby v. White [suprS,] Ferguson v. Kinmore, 8 CI. & Tin. 251 ; Miller v. Hope, 2 Shaw's App. Ca. 125; Rules 210 and 211 of the Consular Court at Bang- kok; Bridgman v. Holt, Show. P. C. 122; Brazier v. McLean, 6 L. R. P. C. 379 ; Pollard's Case, 2 L. R. P. C. 106. Bonser, replied. Cur. Adv. Vult. January 21. Ford, C.J. This is an action by Mr. Michell an English Barrister in the employ of the King of Siam against the Vice-Consul of Siain for damages for an assault and a nonfeasance of duty under the following circumstances taken from the statement of claim. This statement must be taken as true for- the purpose of this part of the case, the objection to plaintiff's claim having been taken by demurrer, upon the ground that the acts or omissions complained of were done or omitted in the defendant's judicial capacity, whether acting as Consul or otberwise. After certain allegations, [which, with the exception of a reference to certain rules referring to practice of Counsel and regulating the right of attorneys and agents to appear for suitors, do not seem to me material for the decision of the question before mej the statement of claim alleges, [read paras. 7, 8, 9, 10, 11, 12, French. ST?RAilS SETTLEMENTS. 4^9 and 13 and prayer] these paragraphs certainly seem to me to Fobd, C. J. establish an admission of the plaintifE that what acts the defend- ^^ ant did wrongly and omitted to do, he did or omitted as Judge, Michell or Consul acting at least in a judicial or ministerial capacity, and not as a Justice of the Peace, as the plaintiff contended for as a reasonable inference from his statement. The question therefore becomes reduced to the points raised by the demurrer, whether or not these matters complained of were done or suffered in the defendant's judicial capacity, and whether this, if so, is in law a good defence to an action for damages. The plaintiff has indeed also raised the question whether the defence raised can be taken by demurrer, and contended that it should be specially pleaded, but although the form of a special plea has been the more usual one, I am clearly of opinion that when the facts in the statement of claim show a state of things upon which the legal questions can be at once raised, this is not only allowable but a better form of proceeding. The two questions then before me, are as follows : — 1. — Were the acts or omissions complained of done or omitted in the defendant's judicial or ministeriaL capacity ; if the latter purely, the demurrer would fail. 2. — If done or omitted in the defendant's judicial capacity, is he exempt from liability to an action for damages ? The 1st is a question of fact; the 2nd a question of law. I am of opinion that having reference to the terms of the rule under which the plaintiff iirst presented his aiithority for filing, the act of refusal was a judicial act. The language of the rules requires the authority to be distinct and clear so as to satisfy the Court, &c., and this at least necessitates the use by the Court of some mental process of a judicial character, and I do not know what other meaning to give to the word " Court" here, but that of its Judge for the time being. We have then, before a particular case is called on, a Judge doing, as I think, a judicial act in refusing to file that which should have entitled the plaintiff" to appear in tlie capacity he asked. But were there any doubt about this, it is clear when the legal proceeding was called on, the subsequent act of removing the plaintiff took place during its continuance, and the act of the plaintiff in agiiin tendering his authority after its previous refusal, was an act of interruption, and his removal froni the Court, however unnecessary, insulting and ill-advised, was an act of the Judge in a judicial proceeding, a judicial, if not a judicious act. The 2nd question is whether this having been so, its character affords a sufficient answer to the plaintiff's remedy by action. A proper summary of the law to be taken from the numerous cases cited, seems to me to be this, viz. — That upon grounds of general public convenience a Judge is not liable in the form of an action for damages, for acts done or words spoken in his judicial capacity, unless such acts or words are done or uttered without jurisdiction and with knowledge of such want of jurisdiction. 440 THE SUPREME COURT. FoED, C.J. The cases are not quite uniform on the subject but this is, ]^' I think, the fair conclusion to be drawn from the chain of MicHELL authority laid before me, and the principle covers things omitted "• as well as acts done or words spoken. Now, I do not see in the French, plaintiff's statement of claim any sufficient allegation that the acts or omissions complained of were without such jurisdiction, and so to the defendant's knowledge, or any statement of facts which shews them to have been so. The nearest approach to such an allegation is in para. 13 where they are said to have been done or omitted capriciously and maliciously, and not under the powers of any Statute or Ordinance. This allegation, however, I apprehend, by no means exhausts the possible foundation of a Consul's judicial jurisdiction, and caprice and malice are compa- tible with jurisdiction or a fcontt /i«^e belief in it. The statement of facts in the use made of the rules of the Court and particularly that part of Rule 211 to which I have alluded, is inconsistent with an absence of jurisdiction to refuse an authority to act for another, and there is nothing I think in the fact to establish that when ordering the plaintiff's removal he was doing an act outside his ordinary jurisdiction. The demurrer must therefore be allowed, but as the defendant has chosen this method of raising his defence and thereby admits a state of fact, which if true would, in my judgment shew he had committed an act imnecessa.rily insulting to the plaintiff and lacking prudence and discretion, it will be allowed without costs. A secondary question arises whether this demurrer is good to that part of the plaintiff's claim which alleges that the defendant as Consul is required to perform certain ministerial acts and duties and amongst them to protect and support all British Sub- jects in Bangkok in the enjoyment and exercise of all rights and privileges which are in any way conferred upon them, &c., and to the breach alleged in the act or omission before complained of. I am quite unable to separate the act or omissions complained of from the judicial character in which the defendant did or omitted to do them. Demurrer will therefore be good to the whole statement of claim. Demvrrer allowed. 6th February. Groom, applied for leave to amend the state- ment of claim. Bonser, [Attorney-Generdl] opposed the application. Ford, C.J. I do not think I ought to allow an amendment of the statement of claim in this case because the proposed amendment amounts to a different statement of facts from those in the statement of claim, and the fresh statements are made admittedly without any reference to the plaintiff since the hearing of the demurrer, and some of them, particularly those contained in Section 6 of the proposed amendment, amount to a new cause of action. _ This statement amounts to this, thattlie defendant did not in his judicial capacity do the acts complained of, but that in some other capacity and in pursuance of a previous conspiracy between himself and others he determined that the plaintiff' should STRAITS SETTLEMENTS. 441 not practice in his Court and therefore ejected him. It seems to me that the plaintiff will not be deprived of a remedy for his alleged wrongs by not allowing the amendment in this action, but will have a fresh right of action upon the new facts that he desires to import into this case. For these reasons I must refuse this application and with the usual result as to costs. EE'GINA V. BATTY. Misappropriation itself or mere uses of money or goods is not a crime — to be so it must be done dishonestly. To decide the question whether it was dishonest or not, the Jury should take into consideration whether the accused had the intention of returning the money and the power and the means of doing so, or whether he intended making an unlawful gain of property, or had no grounds for believing that he would be able to return it when required. The prisoner G. T. Batty, was charged before a Special Jury with criminal breach of trust as a public servant under Section 409 of the Penal Code. The evidence shewed that the prisoner while acting as Assistant Postmaster-General of Pfenang, being entrusted with a sum of money in his official capacity to meet the daily disbursements of the Office, appropriated $348.02 thereof to his own use. On a surprise-survey being held over his accounts by the Auditor-General the deficiency was discovered, whereupon the prisoner a,dmitted he had used that sum in paying his pressing liabilities which he had incurred owing to his having had to work three months without salary, but that the money would be replaced. No surprise-survey on such an advance had ever been held before. The morning after the discovery the amount was paid up, but this was probably by the prisoner's sureties. There was no falsifica- tion or concealment of any kind. Sections 24, 25, 405 and 409 of the Penal Code, are as follows : — ■ Whoever does anything with, the intention of causing wrongful gain to one person, or wi'ongful loss to another person, is said to do that thing " dishonestly." 24. ' Dishonestly Criminal breach of trust. Ford, C. J. 1889. MiCHELI. V. French. PENAN&. Pel- LEKEAU, J. 1889. January 15. 25. A person is said to do a thing fraudulently if he does that thing with intent to defraud, but not otherwise. ' Fraudulently." 405. Whoever being in any manner entrusted with property, or with any dominion over property, dishonestly misappro- priates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such tnist is to be discharged, or of any legal contract, 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." 409. Whoever being in any manner entrusted with property, or with any dominion over property, in his capacity of a Criminal breach of trust public servant, or in the way of his business as a bLS!merohS?o'r agent! banker, merchant, factor, broker, attorney, or agent, commits criminal breach of trust in respect of that property, shall be punished with transportation for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. D. Logan, [Solicitor-General] for prosecution. 442 THE SUfR:EME count. Pel- I.EREAU, J. 1889. Regika V, Battt. Adams, for defence contended, there was no evidence that the prisoner acted dishonestly which was the essential portion of the charge. Mayne & Serjeant on P. C. — notes to Section 405 et seq., Begina v. Moah, 25 L. J. M. 0. 66 ; Re.gina v. Cooper, 46 L. J. M. C. 89; Begina v. Newman, 51 L. J. M. C. 87. The prisoner merely borrowed the money and intended to repay it when matters were adjusted at the end of the month. Pellereau, J., in summing up to the Jury said the facts of the deficiency and the amount were not denied, and the real questions for the Jury to decide were the misappropriation, and whether it was made dishonestly. [He then read Sections 24, 25 and 405 as above set out and proceeded to say] that misappropriation by itself was not a crime though it might lead to dismissal from the Service or a civil action. To be criminal under the Code the mis- appropriation must be dishonest. If the Jury thought from all the circumstances of the case that it was not dishonest, or if they had a doubt, a serio^^s doubt whether it was dishonest, they should acquit ; but if they were satisfied from the circumstances that it was dishonest, they should convict. To decide this question they should take into consideration whether the prisoner had the intention of returning the money and the power and the means of doing so: or whether he intended to make an unlawful gain of property, or had no groimds for believing that he would be able to return it at any time when called upon lo do so, — in the former of which cases they might come to the conclusion that he was not guilt^', and in the others that they would be justified in finding him guilty. Take the case of an official using Government money during the day knowing he could at once replace it by sending home for private funds and finding on doing so that thieves had abstracted the whole of those private funds and his means of replacing the money used by him. Could that official be convicted of criminal breach of trust? If that were so, then mere user of the money even for th6 most temporary purpose was criminal. But he understood the law to be different in such cases and it was to the pi-isoner's intention, power and means, that they had to look in considering their verdict. D. Logan, [Solicitor-General] hereupon called the attention of the Court to Section 403, Explanation 1, that " a dishonest mis- appropriation for a time only is a misappropriation within the meaning of this section," and instancing a person finding on the road a cheque bearing a blank endorsement which he knows belonged to Z., but pledges it with a banker intending however at a future time to restore it to Z. Pellereau, J., in reply remarked that that case was clearly distinguishable from the present, as there, there never was at any time rightful or legal possession on the part of the finder, and he had made use of the cheque in a manner which put it beyond his control to return it to Z., except on the banker being paid off, and there was nothing from which the Jury could gather that he believed, and had reasonable grounds for believing, that he had the means of redeeming it. Verdict [unanimously] : Not guilty. SIRAITS StlTTLBMtJNTS. 443 MOSES V. LOW KIM PONG. A defendant who trespasses ou the land of a plaintiff, e.g. by building a house Sjnoapori. thereon, has no right to insist that the plaintiff be merely awarded a sum of money for the value of the laud taken in lieu of a mandatory injunction on him [defendant] tor Goldnet, J. removal of the trespass. 1889. removal of the trespass. KreU V. Burrell, 11 L. R. Ch. Div. 147, followed. The facts giving rise to this case sufficiently appear in the judgment. Drevi, for plaintiff. Donaldson, for defendant. Gur, Adv. Vult. February 20th. Goldney, J. This is an action by the plaintiff, as owner of certain lands, to restrain the defendant from erecting any building on the top of a vrall, her property, and for an order commanding the defendant not to encroach upon the plaintiff's land, and to remove any building so encroaching upon the said land and premises, and damages for the virrong complained of. The defendant, who is the owner of the adjoining premises, did not at the hearing, dispute that in erecting a certain house, he had built the last wall of the house on the top of a wall, the pro- perty of the j>laintiff, but contends that as the actual damage suffered by the plaintiff is so slight, she should be compensated by a pecuniary sum, and that the injunction asked for should not be granted ; and further states that the plaintiff is estopped from asking for an injunction, by reason of her non-interference during the building of the wall in question, although she was aware that a trespass was being committed. The defendant also asks, by way of counterclaim, that he may be permitted to enjoy so much of the plaintiff's wall, as he has built upon, without disturbance by the plaintiff, and that the plaintiff be ordered to execute a proper conveyance thereof to him, and in the alternative, if an injunction is granted, that he, the defendant, may be granted a full compensation by the plaintiff in respect of the expense of pulling down and re-erecting the buildings erected by him on the said wall, and the structural alterations to his house rendered necessary thereby, and the loss arising to him from the delay caused thereby. Dealing first with the counterclaim. In my opinion there is no evidence of acquiescence in the trespass, or negligence in not discovering and immediately stopping the tres- pass, which would deprive the plaintiff of her rights to come to this Court for relief. Acquiescence or negligence such as will debar the plaintiff from recovering must be proximately connected with the result. The principles upon which Courts act in cases where the defence is that the plaintiff has by his conduct disen- titled himself from insisting on his rights, is laid down in the case of the Bank of Ireland v. Trustees of Evans' Charities, 5 H.L.C. 389 — In the case before me, the non-interference by the plaintiff, who was not the occupier of the premises, was not the proximate cause leading the defendant to build his house on the top of another person's wall. There was no mistake ; the reason it was so built was that by utilising the plaintiff's wall and making it part of the February ]2. 444 tSE SUPREME COURT. GOLDNET, J. 18S9. Moses Low KiM PONO. wall of his house a considerable expense was saved. As to the alternative counterclaim that the plaintiff should pay the expenses defendant has incurred in committing a trespass on the plaintiff's land is a proposition which has neither law nor reason to support it. The real contention between the parties - is whether the defendant can insist upon the plaintiff being satisfied with a pecu- niary compensation instead of the relief she asks for, viz., that the trespass which the defendant has committed, and which is a continuing trespass,, shall be put an end to. It was urged by the defendant that the balance of convenience is in favour of the defendant. To pull down the wall and to build another wall would cost the defendant a considerable sum of money, while the value of the plaintiff's property has hardly been affected by the trespass. Assuming that this Court has similar powers to those which the Equity Courts in England have under what is known as Lord Cairns' Act [which I doubt], I cannot find that those Courts have ever exercised this power of awarding damages as a complete com- pensation for the injury complained of in cases of a continuing trespass such as this is. It would be to allow a servitude to be created by an act of trespass. As the jus servitutis necessarily diminishes the interest or estate in the servient tenement, it can be created by those only who have the power of making an alienation of the tenement which certainly a trespasser has not. This is not a case of mere inconvenience and temporary inter- ruption of the plaintiff's right, but in creating what may be called a servitude onus ferendi, which would impose upon the plaintiff, the owner of the servient tenement, the obligation of keeping in repair her own wall which is used for support, and also the obli- gation to do nothing to diminish the use or convenience of the servitude to the defendant, the owner of the dominant tenement. I cannot distinguish this case from the case of Krehl v. Burrell, 11 L. E. Ch. 147, where, in giving judgment, L. J. James, says : " The plaintiff htis a plain legal right, and is entitled to have the order of Court which the Master of the Rolls has made to enforce his right. It was not intended, and never could have been intended by the Legislature, in giving a right to damages under Lord Cairns' Act, to compel a man who is wronged to sell his property to the person who has wronged him. No such right as is claimed by the appellant can exist in this country, unless specially given by Act of Parliament. If it were otherwise, the consequence would be that a person would have a right to do a wrong to his own neighbour at a price to be fixed by the Court." I grant a mandatory injunction in accordance with the terms of the prayer, with nominal damages of $5, and, following the order made in 8milh v. Smith, 20 L. E. Eq. 505, direct that it is not to operate for two months. The defendant to pay the costs of this suit. Singapore. goldnet, j. 1889. April 6. MASIAMAH V. PACHAK. When the Court has granted letters of administration to an estate, to a person no one has a right to detain such letters Irom such person. A party entitled to land is entitled to the Title Deeds thereof ; and the proper person to sue m detmue for their deteutiou is the person entitled to the legal interest in the land. STRAITS SETTLEMENTS.- 445 Detinue for Title Deeds. The facts sufficiently appear in the Goldket, J. judgment. ^^^' Drew, for plaintiff. Masiamah Donaldson, for defendant. Pachak. Cur. Adv. VuU. April 8th. Goldney, J. This is an action in detinue brought by the plaintiff, the administratrix of Lanasah, against the defendant for the recovery of the letters of administration granted to the plaintiff, and also the title deeds of some land which, as the plaintiff alleges, form part of the estate of Lana- sah. The defendant admits he is in possession of the documents in question. As to the letters of administration, there seems to be no defence. The defendant hns no right to detain the letters of administration from the person to whom the Court has granted them. As to the title deeds, the general rule of law is that the party entitled to the land is entitled to the possession of the deeds. And in an action in detinue for the title deeds of an esta.te, the proper party to sue is the person entitled to the legal interest in the estate. Athinson v. Baker, 1 T. R. 229, Plant V. CoUerell, 29 L. J. Ex. 198. After considering the evidence, I have come to the conclusion ihat the legal intei'est in the land is in the plaintiff, the administratrix of Lanasah, to whom the land in question was conveyed. I think the defendant has failed to make out the plea of prescription, even if such a plea under the circumstances of this case is maintainable. Plant v. Gotterell. It may be a question whether the defendant is not entitled to some relief in Equity, so far as the possession of the land is concerned, but a defence or counterclaim of that nature has not been pleaded. I have therefore come to the conclusion, that the defendant has made out no defence to this action. Verdict must be given for the plaintiff with costs, and for a return of the letters of administration and the said title deeds within 21 days, or in default of such return, $300 damages. ETAM V. BABOO. When a case is remitted to a Magistrate under Section 25 of the Appeals Penakq. Ordinance 12 of 1879, it is the duty of the Magistrate to take all the evidence tendered by both sides and to return the further evidence to the Supreme Court for that Court Wood, J. to decide on the evidence. It is no part of the duty of the Magistrate to pronounce 188!l. au opinion on such further evidence nor is he justified in refusing to take further evidence because he is satisfied. April 15. The appellant was on the 6th December, 1888, convicted by Messrs. E. M. Merewether a7id J. W. Norton Kyshe, Magis- trates, for that she " the said Btam on the 29th day of October, " 1888, at Brick Kiln Road, in Penang, did kidnap one Mah a " minor under the age of 16 years from the lavyful guardianship " of one Baboo, and thereby did commit an offence punishable " under Section 363 of the Penal Code." The Appeal came on for argument before Wood, J. on the 15th April, 1889. 446 THE SUPREME COURT. Wood, J. 1889. Etam Baboo. Adams, for Etam, the appellant contended, that there was no reasonable proof of the girl Mah being under the age of sixteen years, or of being under lawful guardianship. Ross, lAding Solieifor-General] submitted that there was prima facie evidence on both points. Baboo called the girl his " adopted child " and said her age was 1 2, but if the Court was not satisfied he asked that the case be remitted to the Magistrates to take evidence on both points. Wood, J. remitted the case to the Magistrates with directions that further and ' more satisfactory evidence be taken [1] as to the age of the girl ; and [2] as to the circumstances under which she was resident with and under the guardianship of the prosecutor ; regard being had to the terms of Section 361 of the Penal Code where it is enacted that, the guardian should be the lawful guardian including a person lawfully entrusted with the guardianship of the minor. The Magistrates accordingly on the 10th of May, 1889, took further evidence and stopped the appellant's Counsel producing his other witnesses as they were of opinion that Baboo had failed to prove his guardianship. This further evidence having been sent to the Supreme Court, the Appeal came on for further argument before Wood, J. on the 15th July, 1889. Adamx, having read the further evidence asked that the conviction might he quashed. lions, on behalf of the Crown offered no objection. Wood, J. In the case heard on the 15th April, 1889, the Magistrates were ordered to take further evidence as to guardian- ship and age. They return the case having taken further evidence as to guardianship, having also decided in their opinion the guardianship was not proved and on that account, not taking other additional evidence offered on the part of the appellant. I think that the evidence supplied is sufELcient to shew that the supposed guardian was not a lawful guardian, but I must observe that the Magistrates have a little exceeded their duty in coming to any conclusion upon the evidence taken before them, having regai'd to Section 25 of the Appeals Ordinance, 1879, which enacts that " after further evidence supplied, judgment shall be given by the Court," that is the Court of Appeal. I must also add that in strictness the Magistrates ought to have complied with the directions of the Court and taken further evidence, if tendered, as to age. Conviction quashed. Peuakq. Wood, J. 1889, April 16. MOOTOO V. MUNICIPAL COMMISSIONERS, A contract formed by the tender by n person for a lease of a Bath House or Market and its acceptance by the party calling for the tender, is a contract which confers an interest in land, which interest cannot be put an end to by re-entry, unless the tender so provides. A contract for " Market Stalls " is a contract for the supplying of the stalls to the market and not merely of the market square, or a •apace in which stalls might be erected. Where tenders were called for three distinct subjects, as a Bath, a Market and a Public Latrine — the terms of holding of which differ according to the particular subject- STRAITS SETTLEMENTS. 447 matter — it is improper to include them all in one subsequent lease ; and the person sending in the tender is not bound to accept such lease. Where it appeared that the tenders provided that the person sending it would enter into a formal lease " with similar conditions to those at present in existence" and it appeared that as regarded the Bath there was a previous lease in existence, but as regarded the Market and Latrine there never had been such lease or conditions, Held, that one lease of the three subjects containing covenants and conditions which were in existence only as to the Bath, was not a lease as regarded the Market and Latrine, which the person making the tender was bound to accept. This was an action to recover damages for breach of contract and money had and received by the defendants to the plaintiff's use. The defendants were the owners of a certain Bath, Market and Public Latrine, in Pitt Street, in Penang. The Bath had been previously let for a year at a time to various persons, and a formal lease on each of these occasions had been made and executed. The Market and Latrine were new buildings and were first notified to let as from 1st January, 1888. With a view to obtain- ing lessees for that year of all the three buildings, the defendants caused to be advertised in the local papers, on 10th December, 1887, the following notice : — Wood, J. 1889. MOOTOO V. Municipal COMMTS- SIONEBS. " The Municipal Commissioners invite separate tenders for the renting of the following : Pitt Street, Bath House. Latrine. Stalls. Full pai-ticulars can be obtained at the Municipal Office, Town Hall. Tenders will be received by the undersigned up to 4 p.m. on Tuesday, the 20th instant. The Commissioners do not bind themselves to accept the highest or any tender. By Order, J. W. HALLIFAX, Municipal Office, Town Hall, Penang, 10th December, Secretary to the Municipal Commissioners.'' 1887. Forms of tenders were provided by the defendants to all persons desirous of sending in tenders, and among these, was the plaintiff who was provided with three separate forms offenders. The plaintiff accordingly sent in his three separate tenders for each of those buildings on the morning of the 20th ; and on the 22nd instant his tenders were accepted by the defendants and duly notified to the plaintiff. The tenders sent in by the plaintiff for the Stalls, was as follows : — " Form of tender for the leasing of the Municipal Bazaar Stalls, in Pitt Street, from the 1st day of January to the 31st day of December, 1888. I hereby undertake to pSiy to the Municipal Commissioners of Prince of Wales' Island the monthly rent of dollars seventy-five only, [$75] subject to the follovping conditions — Bazaar Stalls :• For the urea allowed to be used for Bazaar Stalls, the renter shall not collect a toll of more than one cent, per superficial foot per c|iem. No meat or fish to be sold at these Stalls. The premises to be kept in repair by the Municipal Comipissiouers, 448 THE SUPREME COURT. Wood, J. 1889. MOOTOO 11. Municipal COMMIS- SIONEES. • In tte event of my tender being accepted, I hereby undertake to pay two months' rent into the Municipal Treasury on or before the 31st day of December, 1887, and also before the last day of each subsequent month, to pay a fm-ther sum of one month's rent, the last payment being made on or before the 31st day of October, 1888. To enter into a formal agreement under similar conditions to that nt present in force, and to pay the amount of stamps required for the lease, and expense, if any, of drawing up the same. In proof of my good faith, I hereby enclose Penang Bank Notes to the amount of twenty -five dollars, it being understood that in the event of my tender being accepted they form an instalment of the first payment, and m the event of my tender being refused are to be returned to me without any deduction ; if from any cause I should fail to comply with the terms of this tender, they become absolutely forfeited to the Municipal Pimd. ISigneA] MOOTOO." The tenders for the Bath and Latrine were in the same form with the exception of a few alterations, in details, to suit the particular subject-matter of the tender. On 30th December, 1 887, the plaintiff paid the "defendants a sum of $310 for which the defendants gave him a receipt as " being rent of Stalls, Latrine and Bath, in Pitt Street, for January, 1888." They granted like receipts for February. The plaintiff was let into possession of tlie Bath and Market, which latter however, were provided with no Stalls of any kind. The Latrine was useless as it was unpro- vided with utensils which the defendants had agreed to supply, and which on their way out had been lost by the foundering of the s.s. Sikh off Ceylon. The plaintiff on several occasions after being let into possession, petitioned the defendants pointing out [inter alia] that the Stalls had not been provided, and the Latrine was wholly useless to him. The defendants caused a single lease to be prepared of all the three buildings which they tendered to the plaintiff for execution, but which he declined to execute as he considered he had not got what he bargained for. The lease so tendered to the plaintiff [omitting portions immaterial to this report], was as follows : — " They the lessors [the defendants] do by these pi-esents grant, demise, and lease unto the lessee, his executors, administrators and assigns, All that Municipal building lately erected in the centre of Pitt Street, in George Town, in front of the Pitt Street Station, comprising Bath and Latrine compart- ments, and Of en spaces for Bazaar Stalls together with all the appiu-tenances to the said building hereby demised or intended so to be To Have and To Hold the premises hereinbefore expi-essed to be hereby demised and granted unto the lessee, his executors, administrators and assigns, for the term of twelve months from the First day of January instant, until the Thirty -first day of December next ensuing. Yielding and paying therefor unto the lessors their successor or successors in office and assigns, the svim of 5f930 on the execution of these presents, and thereafter duringths said term, the monthly rent of |310 payable monthly in advance on the first day of each month And also yielding and paying in the event of, and immediat ely upon, the said term being determined by re-entry under the proviso hereinafter contained, a proportionate part of the said rent, which may for the time being be unpaid up to the day of such re-entry ^nd the lessee doth hereby for himself, his heirs, executors, administrators and assigns, covenant with the lessors, their successor or successors in office and assigns, that he the lessee, his executors, administrators or assigns will not assign, transfer, sublet, or set over, or otherwise part with the said premises or any STRAITS SETTLEMENTS. 449 portion thereof, without the previous consent in writing, of the lessors, their successor or succes&ors in office or assigns, but such consent shall not be withheld in favor of a respectable and responsible tenant or respectable and responsible tenants. And further, that the lessee, his executors, administrators and assigns will not levy, charge, or take any tolls, fees, or duties other than, or in excess of those contained in the schedule hereto, or permit any raw meat or fish to be sold in any part of the open spaoes reserved for Bazaar Stalls, or use or permitother persons to use the said building for any purpose other than for bathing, latrines and bazaar stalls Provided always, and these presents are upon the express condition, that whenever any part of the said rent in advance hereby reserved shall be unpaid for ten days, or if and when- ever there shall be a breach of any of the covenants and agreements by the lessee, his heirs, executors, administrators or assigns to be performed as hereinbefore contained, the lessors, their successor or successors in office and assigns, may, at any time thereafter deliver to the lessee, his executors, administi-ators or assigns or leave at his place of business a notice in writing, under the hand of the Secretary for the time being of the lessors, signifying their intention to determine the said term, and immediately upon the delivery or leaving of such notice as aforesaid, the said term shall absolutely cease and determine, but without prejudice to any right or remedy which may previously have accrued." The plaintiff declined to sign the lease. The defendants on nth April sent him a notice informing him that unleos the lease was signed by him within three days, he would have to quit the premises on 30th April. The plaintiff still declined and he was served on 17th April with formal notice to quit on 30th. On 30th April the defendants ejexted the plaintiff, and fooJt possession of the 'premises, whereupon this action was brought. The defendants ill their defence submitted that all they were bound to provide in the Market was spaces in which stalls could be placed; as regarded the Latrine they admitted their breach, but claimed to apply the rent paid on this account towards arrears of rent they claimed for the Bath and Market. They also counterclairaed for further alleged arrears of rent in respect to the Bath and Market. Van Someren, for the plaintiff contended, that as regards the Latrine, the defendants had wholly failed to give the plaintiff what they contracted for when they accepted his tender and received his rent, as the building was wholly useless as a Latrine by reason of the omission or inability of the defendants to provide the utensils ; that as regarded the Market, they had also failed to give the plaintiff' what they had agreed to give him as it was '• the Stalls," and not mere open spaces for stalls which was the subject-matter of that tender and its acceptance. That that being so, the defendants had no right to expect the plaintiff to sign the lease nor to eject him from the premises. He further contended, the plaintiff was not bound to accept one lease for the three things ; that the covenant against assignment and clause for re-entry wei-e not provided for in the tenders, and as for the general clause in the tender for " entering into a formal agreement under similar conditions to that at fresent in force," it was clear the clause was meaningless as it had been shewn, as regarded the Latrine and Market, there never had been a previous lease and there were no conditions in force to which the new lease could be made similar. The plaintiff was justified in refusing to accept tije lea,se tendered, and the defendants had no right to turn him Wood, J . 1889. MOOTOO V. Mdnicipal COMMIS- SIONBKS. 450 THE SUPREME COURT. Wood, J. 1889. MOOTOO V. MtTNrCIPAO Commis- sioners. out, but were themselves guilty of a breach of contract. The claim to arrears of rent made by the counterclaim depended on the stall and lease questions, and if these were decided in favour of the plaintiff, the counterclaim failed. Ross, for defendants contended, that the open spaces for stalls was all that the defendants had contracted to give. The stalls themselves should be erected by the plaintiff or those selling their goods in the market. The omission to supply utensils for the Latrine was a breach of contract on the defendants' part, but the plaintiff suffered no damage thereby ; the rent he had paid would be applied towards the rent of the market which the plain- tiff had omitted to pay as he claimed that st,alls should be provided. He contended further, that the former lease of the Bath had both the covenant against assigning and a proviso for I'e-entry, and there was no reason why in order to save expense to the plaintiff [who had to pay for the preparation of the lease] the three things should not be included in one lease and these then existing conditions inserted in it. He admitted the counter- claim depended on the decision of the previous question. Van Someren, replied. Wood, J. said there had clearly been a breach in respect to the Latrine and the defendants were bound to refund' the plainliff the amounts he had paid for it. He was of opinion that the defendants had also been guilty of a breach of contract in lespect to the Market, as "Market Stalls" were the subject of the contract [constituted by the tender and its acceptance] and not merely open spaces for the erection of stalls. He considered the plaintiff was not bound to accept the lease as it included three distinct subject-matters and contained covenants not provided for by the tender. The lease being an improper one all that remained was the contract formed by the tender and its acceptance and payment of rent ; that contract gave the plaintiff an iw/eresi in land, and under it the defendants had no power of re-entry so as to put an end to that interest. Even if it had been made out, that there was a breach of contract on the plaintiff's part, [which it had not been] the defendants' remedy was by action for damages for such breach and not to eject the plaintiff. On the whole he thought the justice of the case would be met by a verdict for the plaintiff with .|600 damages and costs. Judgment for plaintiff for $500 damages and costs. Pbnano. Wood, J. 1889. May 2. TAN KIM KENG & ANOR. v. MUNICIPAL COMMIS- SIONERS. Riparian rights may be acquired on an artificial water-course by user, where the water-course is made or intended to be made for a permanent purpose. Aliter where the purpose was only a temporari/ one. Where a water-course was made in 1808 off a natural stream and by means of a dam in this stream, carried a large portion of its water down the course, and supplied a large reservoir which supplied a town and its shipping with water, and the plaintiff [and his predecessors] having built in 18iO a flour-mill midway between the artificial course above, and the natural stream below, and by means of a lead or aqueduct diverted STRAITS SETTLEMENTS. 451 a portion of the water in the artificial course on to his mill, which after overshooting the water-wheel by which the mill was worked, passed on to the natural stream ; Meld, that in the absence of evidence that the artificial water-course was originally made for a temporary object, the presumption was that it was made for a permanent purpose and the plaintiff and his predecessors in title had acquired riparian rights on the artificial course which entitled him to recover damages against the defendants who in 1878, diverted the water higher up the natural stream and thereby discontinued the water-course and prevented the mill from being worked. Held fit, iher, the continuing of the diversion from 1878 down to this date was a contimiinff trespass and the plaintiff therefore barred by the three months' Limitation under the Conservancy Act XIV. of 185(3, Section 126. This was an action begun in 1882 to recover damages for obstracting and diverting a water-course and thereby preventing the working of the plaintiffs' mill. In 1808 the "Committee of Assessors of George Town, Penang," caused the waterfall stream to be dammed up some distance from the foot of the falls and cat an artificial water-course which joined the natural stream a little above the dam. The water-course ran along the hill side on the Northern side of the waterfall valley and emerged from the hill side at the junction of Mount Ersklne and Bagan Jermal Roads, ran alongside Burmah Road, a public thoroughfare, and connected itself with a reservoir at Pulo Tikus. The reservoir was fed by this water-course with the water from the waterfall stream, and this reservoir originally by means of open channels, but subsequently by pipes supplied George Town and its shipping with water for domestic and drinking purposes. In 1840, Mr. George Scott, a former predecessor of the plaintiffs, erected a flour-mill on his land situate on the Waterfall Road, the mill standing between the artificial water-course which ran along the hill side and the natural waterfall stream which ran alongside, but below the level of the mill. A mill lead or aqueduct diverted a portion of the water from the artificial water-course above, and brought it on to an overshoot water-wheel which worked the mill, the water on overshooting the water-wheel passed back to the natural stream. This diversion by the lead or aqueduct did not affect the sufficiency of the supply of water to the town and shipping [a]. In 1876, the defendants — who had by virtue of the Conservancy Act XIV. of 1856, succeeded the " Committee of Assessors " and in whom were vested by the Act, all water-courses and things connected with the water-works for the supply of water to the town of George Town, Penang — dammed up the waterfall stream much higher up than the original dam and inserted iron pipes of large dimensions into this dam, which, in 1878 began carrying away the whole available water in the natural stream into town, and thei-eupon they abandoned the artificial water-course and reservior. The water in the artificial water-course being thus cut oft" there was nothing left for the plaintiffs' mill, which, in consequence had to be discontinued. The plaintiffs thereupon sued the defendants on two occasions prior to this action, but was unsuccessful both times [6]. In [a.] The defendants attempted to prove that it did, and that every time it did so, the mill supply was cut off by the letting down of a sluice gate by their servants ; but the Court held on the evidence they had failed to prove this.— J.W.N.K. [4.] See Tan Kim Keng v. Municipal Commissioners, Vol. 1. of these Reports, 470, 478, Wood, J. 1880. Tan Kim Kbno & Anoe. V. Municipal COMMIS- SIONBBS. 452 THE SUPREME COURT. Wood, J. 1889. Tan Kim Kkng & Anor. V. Municipal Commis- sioners. September, 1882, they began the present action to which the defend- ants among other things, pleaded the three months' limitation under Act XIV. of 1856, Section 126. This action— for want of skilled evidence to shew the quantity of water that was being carried away by the large iron pipes and that they were the cause of the water being cut off from the artificial course — had to stand over for many years. The necessary evidence was at last obtained and the case now came on for trial. The case was heard on the 23rd, 24th, 25th April, 1st May, and on this day. Ross, for the defendants contended, [1] that the plaintiffs' action was barred by Act XIV. of 1856, Section 126, and cited Wordsworth v. Barley, 1 B. & Ad. 391 ; [2] he contended that the artificial course was made by the defendants' predecessors, the " Committee of Assessors," 'for their own use and a temporary purpose. The defendants, their successors, had now no further need of it and so had discontinued it — and that no riparian rights could be acquired by user on an artificial course made, not for a permanent but a temporary purpose. He cited Arhwright v. Gell, 5 M. & W. 203; Mayor v. Chadwick, 11 Ad. & E. 511 ; Wood v. Wand, 3 Ex. 748 ; Qreatrex v. Hayward, 8 Ex. 293 ; Beeston v. Weate, 5 E. & Bl. 986; Oaved v. Martyn, 19 C. B. [N. S.] 732; Butelife v. Booth, 32 L. J. Q. B. [N. S.] 136 ; Stoekport Waterworks Go. V. Potter, 3 H. & C. 300; Ibimey v. Stacker, 1 L. E. Ch. Ap. 396 ; Nuttall v. Bracewelt, 2 L. R. Ex. 1 ; Holker v. Paritt, 8 L. R. Ex. 107, on App. 10 ibid, 59; Eensit v. Great Eastern Railway Go. 23 Ch. Div. L. R 566, on App. 27 ibid. 122; and Ghamher Colliery Go. v. Hopwood, 32 Ch. Div. L. R. 540. Van Someren, for the plaintiffs contended, [1] that as this was a diversion which began in 1878 and continued the same in 1882 and down to this date, it was a continuing trespass, and the plaintiffs were not barred by the three months' limitation under Section 126 of the Conservancy Act XIV. of 1856 ; and he relied on WhUehouse v. Fellowes, 30 L. J. C. P. 305 ; Sandilands, Buttery 6 Go. V. Municipal Gommissioners, Str. L. R. 309, and tan Kim Keng v. Municipal Gommissioners, 1 Kysbe, 478 ; [2J he contended that while it was true the question whether theplaintiffshad acquir- ed any riparian rights on the artificial water-course, depended on whether that course when made was intended for a permanent or a temporary purpose, yet in this case there being at this date no evidence to shew why it was made, except its position and con- nections, and use for so many years in supplying the town with water, which was a necessity, the presumption was it was made for a permanent purpose ; he contended that in Arhwright V. Gell, the object was clearly temporary, and referred to Beeston V. Weate, supra; Gaved v. Martyn, supr^ ; Sutclife v. Booth, supra; Nuttall v. Bracewell, supra; and Holker v. Paritt, supra ; and in addition he cited the cases of Powell v. Butler, 5 Ir. R. Com. Law, 309 ; Blackburne v. Somers, 5 L. R. [Ir.] 1; Briscoe V. Drought, 11 Ir. C. L. E. 250; Rameshur Pershad v. KoonJ Behari, 4 L. E. Ap. Ca. 121 ; Roberts v. Richards, 50 L. J. s'tEAiis setI^leMents. 453 Wood, J. 1889. Tan Kim Keno& Anoe. Ch. 297, on App. W. N. [1881] 156;aoulsnn on Waters, 102, 3, 6, 7, 22, 27, 202, 264; Goddard on Easements, 6S, 71, 292, 3, 8; Thompson on Limitation, 62, 65. Wood, J. said that on the point of the plaintiffs being barred by the three months' limitation, the case of Whitehousc v. Fellowes shewed this was a continuing trespass, and the plaintiffs were not Municipal barred. That as regarded the main point, the question whether Commis- the plaintiffs had acquired riparian rights on the artificial water- signers. course, he had at first thought that this was the case merely of the dividing of a natui-al stream into two channels, and came within Holker v. Paritt, but on reflection perhaps that was not so. The numerous cases cited all shewed that the question of riparian rights on such a course depended on whether when the course was made it was intended for a permanent or a temporary nature, and on that point, which was more of fact than law, he had no hesitation in saying he was satisfied it was for n permanent nature and the subsequent improvements in the water-work system of Penang could not and did not alter that intention. The course was made to supply the town and shipping with water, it had been used continuously from 1808 to 1878 for that purpose ; there was no evidence to shew it was made for a temporary purpose, and the fair presumption was that it was not made for such a purpose, but for a permanent purpose. The plaintiffs had therefore by user, by themselves andthrough their predecessors in title from 1840 to 1878 acquired ripariim rights on that artificial course, one of which was, that of diverting its water for working their mill, such water being returned into the natural stream. That right had been interfered with by the defendants by the laying on of their new large iron pipes and they must compensate plaintiffs for the injury they had caused them. He therefore found a verdict for the plaintiffs for $2,500 and costs. Judgment for plaintiffs for ^2,500 and costs. ISMAIL BIN SAVOOSAH & OES. v. HAJEE ISMAIL. The plaintiffs put up several lots of land for sale by public auction, subject to Singapoee. certain conditions of sale which were in English. The seventh condition was as follows : " The purchaser of each shall be satisfied with the e.'iecutiou of a conveyance Goldnet, J. by the vendors having the eifect of conveying the fee simple in possession free from 18S9. incumbrances by buying the residue of a term of years and the reversion expectant on the expiration thereof, and shall not require any title to be shewn of the term of years May 7. other than the production of such of the leases and counterparts as are in the posses- sion of the vendors, nor make any objection with grounds of defect or want of title to the several terms of years. Intending purchasers or their Solicitors may see the deeds of the vendors' title on any daj' before the sale at the office of the vendors' Solicitors, and each pui'chaser shall be deemed to have bought with notice of the state of the title." Twelve of these lots were purchased by defendant who partly in consequence of the discovery that there were outstanding leases over the land, and partly because certain of the lots were adversely claimed by one M. refused to complete the purchase. The plaintiffs tendered the defendant a Conveyance of the twelve lots [which adjoined each other] as one whole piece, and on the defendant refusing to complete the purchase, the plaintiffs sued him for specific performance. JSCeld firstly, the seventh condition did not clearly shew there were outstaudin" leases, and was misleading ; 2udly, that it being in English only, a language the defend- ant did uot understand, he could not be taken to have known it or be bound by it ; 454, TEEE SUPREME COURT. GOLDNBT, J. 1889. Ismail bin Savoosah &Ors. V. Hajee Ismail. thirdly, that the sale though in twelve lots was really of one whole piece and that as certain of the lots were adversely claimed, and the plaintiffs at most could make title of only some of the lots, the defendant wa.s justified in refusing to complete the purchase and this Court would not decree the same to he specifically performed. Held on appeal [reversing the decision of the Court below] that the condition being in the English language merely, was no ground for not holding the defendant bound, as it was his duty to get it explained to him in any other language, if he so wished it ; that the adverse title set up by M. which was not admitted by the plaintiffs, and had not been established at law, was also no ground for excusing the defendant ; that the sale was not of one whole piece, but of twelve lots, and the inability of the plaintiffs to make a title to some lots did not excuse the defendant from accepting the others ; and that a possessory title of over i 2 years was a sufficiently good title and one that this Court would force on a purchaser — per Fellereau and Q-oldney, J. J., the seventh condition did not clearly shew there were outstanding leases and was mislead- ing — per Wood, J„ that it did shew some leases were outstanding and was not misleading. The nature of this suit and the facts ciently appear in the judgment. W. Nanson, for plaintifEs. Napier, for defendant. giving rise to it suffi- Cur. Adv. Vult. Goldney, J. This is au action for the specific performance by the defendant of certain agreements made by him for the purchase of certain lots of land. The land in question was sold at public auction on the 7th June, 1888, under printed conditions of sale. The defendant, who became the purchaser of all the lots and paid the required deposit, refuses to complete the purchase on the ground that the plaintiffs cannot give him !i good title, and further alleges that he is not precluded from objecting that the title is defective by any of the conditions of sale. When a person offers an estate for sale without qualification, he impliedly asserts that it is his to sell and that he has a good title. If, however, the vendor is aware that his title is defective, he can insert conditions of sale restricting the legal rights of the purchase. Such a con- dition should state clearly the nature of the defect, and provide that no objection shall be made on account of it thereafter. The question seems to be, do the seven conditions make it clear that there are outstanding leases, and that the purchaser's possession is liable to be disputed. Lord Justice t^nr, in his book upon Specific Performance, Section 1154, says: — " The Courts have held that it is incumbent on the vendor to express himself with reasonable clearness, and in the case of sales by auction, so to state his plans, particulars, and conditions of sale as to convey clear inform- ation to the class of persons who ordinarily frequent auctions. If the vendor uses terms reasonably capable of misconstruction, or ambiguous words, the purchaser is not bound to take on himself the pei-il of ascertainino' the true meaning of the statement, but may generally construe it in the manner most advantageous to himself, and it may be gathered from the case of Taylor v. Martindale, 1 Y. & C. C. C. 668, that where a condition of sale is so obscurely worded that taken in connection with the particulars, it is likely to mislead an ordinary person as to the nature of tbe.property, the Court will on that ground alone, and even on the argument of a summons to vary the certificate as to title, discharge a purchaser from his bargain." See also Jones v. Bimmer, 14 L. E. Ch. Div. 692. As a matter of fact, an adverse claim had been recently made to two STItAlTS SSITTlBMENTS. 4&h of the lots by a holder of one of the leases, and it was unreasonable to suppose that other such claims may be made by holders of leases. Of this claim, both the auctioneer and the Solicitor for the vendors had notice. At the auction sale no mention was made of this adverse claim. The auctioneer stated that the conditions of sale were read in a general sort of way, and interpreted into Malay. He did not think that they gave much attention to the 7th condition ; it would be impossible to translate it into Malay. A gentleman from the vendor's Solicitor's office also made a general statement about the property, but did not make any mention of there being any adverse claim. There is no doubt to my mind that the defendant purchased the land without having the slightest idea that he was purchasing land about which there were disputed claims, or was at all aware of the existence of outstanding leases. Was the insertion of Clause 7 in the English language in the conditions of sale, sufficient to convey clear imformation to the defendant, who can neither read nor speak English, as to what he was actually buying ? I think not. It was contended that it was the duty of the purchaser, if he did not understand the conditions of sale, to seek professional advice, or in some other way to make himself acquainted with their meaning. I do not agree with this contention. If the particulars of sale are misleading the burden is on the vendor to shew that the purchaser was not actually misled. Farrance V. Bolton, L. R. 8, Oh. App. 123; Arnold v. Arnold, U Ch. D. 270. I do not think that the plaintiffs have discharged them- selves of this burden. In conti'acts for sale of I'eal estate, an agreement to make a good title is always implied, unless the liability is expressly excluded. Sug. V. & P., 14th Ed. p. 16. But it is necessary, in order to bring a case within the exception, that there should be knowledge on the part of the purchaser that he cannot get a good title. Ellis v. Rogers, 29 Ch. D. 671 ; Nottingham Patent Brick and Tile Co. v. Butler, 16. Q. B. D. 789. In my judgment such knowledge on the part of the purchaser has not yet been shewn. In this case I adopt the words of Lord Justice LiNOLET in the case I have just cited : the plaintiffs ought to have used a condition pointing to the blot much more speci- fically than the actual conditions have done, and it would not be right to enforce speciiic performance of the contract without the attention of the purchaser having been much more closely drawn to the blot. Therefore the plaintiffs' claim for specific perform- ance cannot succeed. A point was raised whether the sale should not be considered as a sale of 12 lots, so that if bad in the case of one lot, it might be held good in the case of another lot. Even if I had sufficient evidence before me, which I have not, to shew me, which, if any of the lots are not affected by outstanding leases, I think the objection of the defendant goes to the whole of the lots. The defendant undoubtedly bought the estate as a whole for grazing purposes, and the plain- tiffs have so treated the sale in the conveyance prepared for the defendant's execution. To compel the defendant to take a lot here and there would, in my opinion, be inequitable, and would not GOLDNET, J. 1889. Ismail bin^ Savoosah & Oes. V. Hajee Ismail. 456 THB SUPHEME OOUHT. Wood, Ag. C.J. Pel- T .lereao i , j &G0LT)-| ■ NET. J 1889. Ismail bin Savoosah & Oks. V. Hajee Ismail, be making a bargain for the contracting parties which they never would have made for themselves. I think the plaintiffs have failed to miike out their right to a decree for a specific perform- ance of the said agreements, and that the defendant is entitled to have the said agreements set aside and the deposit money- returned to him. Yerdict for the defendant on his defence and counterclaim with costs. Judgment for defendant. The plaintiffs appealed. On 5th September, the Appeal was heard before Wood, Acting C.J., Pellereau and Goldney, J.J. Bonser, [Attorney-General'] and W. Nansonior appellants. Napier, for respondent. Cur. Adv. Vult. Pellereau, J. The first question which we are called upon to decide on this appeal is whether the respondent was misled by the wording of Section 7 of the conditions of sale. We have taken into consideration the clause itself and the explanations given according to the evidence to intending purchasers before the auction sale, and I liave come to the conclusion that the nature and effect of the clause and of the explanations were mis- leading. The clause itself does not suggest the existence of such a large number of leases as 90, the approximate number stated on both sides of the Bar. The witness Chopard, in his explana- tions, stated that Syed Marican had sold some of the lots and subsequently purchased some of them. To this witness the auctioneer had referred the respondent when the latter asked for information. I think that the respondent was led by the clause and the explanations to believe in the existence of some outstand- ing leases, but could not anticipate therefrom that 90 of them existed. A purchaser may be willing to run the risk of a few of such leases, and may be satisfied with a possessory title which may bo aifected by some of them, but it is not likely that he could conceive from the facts conveyed to his mind the existence of so many, and it is probable that if the number had been stated he would have abstained from buying. I therefore con- sider on this ground that the respondent was in fact misled. But I think that no objection can be taken in this case on the ground that the conditions of sale were in English, and that the parti- culai's in Malay and Tamil contained some, but not all, of the conditions of sale, especially Clause 7. The respondent does not read at all, and therefore the particulars could not have misled him; he had the explanations of Chopard, whose assertions he does not contradict on the subject, and we have already seen the effect of those explanations. Nor do I thint that the conditions of sale should be printed and published in many languages ; it is better that it should be so, but the omission to do so in any other than the English language would certainly not in itself be misleading as any intending purchaser can inform himself before hand. Having thus found that Clause 7 and the explanations given were misleading, and did mislead to the extent stated, I do not think STRAITS SETTLEMENTS. 457 the inference should be that the respondent is entitled to have the contracts rescinded. He must have seen that a possessory title vv^as contemplated, and where the vendors offer by their second point to give a good title, either written or possessory, I think it fair to them to allow them to do so, and if they can prove such a title they will have satisfied their contract. The respond- ent contended that this would be compelling him to buy a law- suit, but the authorities quoted by the Attorney-General leave no doubt that long possession is a mode of acquiring property as good as a written title, and may be relied on and proved, although not specifically adverted to in the contract. I am of opinion that the auction sales of the various plots of land in this matter do not constitute one sale, but; as many as there were auction lots knocked down for a price to the purchaser, that is, twelve. The motive which may have led the purchaser to buy cannot affect the right of the vendor, and it is far from proved that the purchaser intended to deal with the whole as one grazing piece of ground. The claim raised by Mustan was mentioned to us as giving rise to a right on the part of the respondent to repudiate the contract. But this claim has not yet been made out, it is denied by the vendor, and it would be unfair to the latter to set up against his right any pretension which may at any time be brought forward. Before the Registrar the claim of Mustan will be enquired into between the parties to this appeal, and, if substantiated, will then be shewn to be a defect in the vendors' title, but, until then, I cannot construe it into such a defect. I therefore consider that the parties should be referred to the Registrar fi>r enquiry into the appellants' title, the decree to be in the same form as in re Banis- ter. All costs reserved. Goldney, J. I concur. Wood, Acting C.J. In the case as argued before the Court of Appeal, several points were raised. The first and main point was whether the 7th condition of sale sufficiently disclosed to the defendant, the purchaser, the fact of there being certain out- standing leases of portion of the land sold. The condition in question is as follows : — ■ " The pui'chaser of each lot shall be satisfied with the execution of a conveyance by the vendors having the effect of conveying the fee simple in possession fi-ee from incmnbrances, by paying the residue of a term of years and the reversion expectant on the expiration thereof, and shall not require any title to be shewn of the term of years other than the pi-oduction of such of the leases and counterparts as are in the possession of the vendors, nor make any objection with ground of defect or want of title to the several tenns of years. Intending pui-chasers or their Solicitors may see the deeds of the vendors' title on any day before the sale at the office of the vendors' Solicitors, and each piu-chaser shall be deemed to have bought with notice of the state of the title." I am of opinion that this condition does sufiiciently disclose the fact of the existence of some outstanding leases. The use of the words " and shall nob require any tiUf. to be shewn of the term of years other than the production of such of the leases and counterparts as are in the possession of the vendors," moi'e particularly the last Wood, " Aa. C.J. Pel- 1 LEEEAC I ^ » &G0LD- I "'■■'■ NEt. J 1889. Ismail ein >Savoosah . Attoenet- Geneeal. damages which he made up by four distinct items, the loss of rent, the cost of two new sluice-gates and embankment, the cost of blocking up the opening at the Menanding Bridge, and depreciation in property : the value of the rotten gate and damages for the removal of it merely, he nowhere claimed. The Court could not therefore give him damages in respect of a thing he never asked for ; that was not the question between the Crown and the plaintiff. The Crown never denied having removed the gate. JPor the simple trespass the plaintiff could bring another action if he pleased ; but even if he had a verdict it could only be for nominal damages but without costs. Van Someren, [E. W. Presgrave with him] for the plaintiff argued on the evidence that it was not shewn that the gate was utterly useless, the witnesses for the Crown admitted that the question of flooding was dependent entirely on the relative proportion of the size of the aperture through which the water came in and the size of the basin to be filled, the plaintiff's lands formed that basin, its size was unaltered, the size of the aperture however had been altered by the removal of the gate, for however rotten the gate was it must have acted as some kind of a preven- tive to the influx of the water ; in other words the apertures in the rotten gate were not the size of the aperture made by the removal of the entire gate. It was nothing to the purpose to say successive high-tides would in the end through the apertures in the rotten gate have brought about the same result in course of time as tlie larger aperture had done in one night. In such a case the plaintiff would have had time to embank or take other precautions for keeping the high-tide ; — again, there would have been an interval between each high-tide, and the little damage caused by the one would have by the return of the tide or by absorption have been removed before the next high- tide came on ; but by the removal of the entire gate by the widening of the aperture the high-tide came in in a single night and flooded the whole land. They further argued that even if the plaintiff had failed to prove the special damage he alleged, he was still entitled to a vei-dict for nominal damages at least as the removal of his gate by the Crown was a trespass ; however rotten the gate was, the Crown had no right to remove it without the plaintiff's permission. The gist of the action was for a trespass, the flooding of the land was matter of special damage consequent on that trespass, the mere failure to prove the special damage did not preclude the plaintiff having a verdict for nominal damages for the trespass itself. Doss v. Doss, 14 L. T. [N.S.] 645 [Privy Council]. Under the Crown Suits Ordinance 15 of 1876, Section 21, the Court at the trial had the same powers and adopted the same procedure in a Civil suit. Under the Civil Law Ordinance 4 of 1878, Section 1, Clauses 4, 6 and 7, the Court was required to give the plaintiff" the relief which he incidentally appeared to be entitled to, and all multipHcity of suits was to be avoided. Khoo Yah Hong v. Khay Thye, 1 Kyshe, 647. The removal of the gate was admitted by the Crown at the trial ; they did not do so except in an indirect way iu their answer which was a piece of STRAITS SETTLEMENTS. 461 special pleading, they did not however admit their act was a trespass ; on the contrary, they seemed to justify by stating the removal was necessary in order to repair what they were pleased to call " the bridge." It was all very well to say now they nlways admitted they were wrong in removing the gate ; if they did so think they would have paid something into Court by way of amends. The plaintiff had not been negligent ; lie had leased out the lands, and in the management thereof, had acted in the usual way done by all land-owners in Province Wellesley. Cur. Adv. Vult. Wood, J. 18S9. Brown V. Attobney- General. June 11th. Wood, J. In this case in my judgment the Crown cei'tainly committed a trespass by removing the sluice-gate which was the property of the plaintiff, and so far have committed a wrong as against liim, and had this been substantially the matter complained of, the judgment would simply have been for the plaintiff with some small amoiint of damages and probably with costs. This however is clearly not the case ; the fact of the removal of the sluice-gate was never a matter of contention, and was admitted by the Crown in their answer of 5th April, 1886, to the plaintiff's letters of the 22nd January and 24th February of that year, and again in their answer to the petition; and the object of the suit was not to recover the damage to the gate, a matter so trifling as to be practically immaterial, but to recover damages, serious damages, which it is alleged were caused by that trespass, and as the tribunals now deal with the matter of costs in a liberal and not a technical spirit, they follow the justice of the demand or the defence as it is litigated before them. In this case I have to decide whether the damage which occurred to the plaintiff's land by the influx of sea-water was shewn to be caused by the action of the Crown. As I have already said, I think the Crown was wrong in supposing that in replying to Mahomedsah, stating that they should remove the sluice-gate in question, they gave any notice to Mr. Brown. I think they were bound when they removed so important a thing as the sluice-gate, to have inquired more into the matter and become acquainted with its uses and value and as to the persons who were interested in its mainte- nance, and if they relied upon notice at all to such persons, to have given such notice with all the particularity possible. This does not seem to have been done, and so I consider it fairly shewn that Mr. Brown was neither actually nor constructively aware of the destruction of the sluice-gate. Upon the question as to whether the damage from the influx of sea-water was due to the action of the Crown in destroying the sluice-gate, I think that it may fairly be considered that it was not so. The fact which I consider clear beyond all question, that the water at high-tides was on the same level on both sides of the sluice-gate as early as May, 1885, satisfactorily shews that the pressure of water on the catch-water-gate at high-water was the same as if no sluice-gate had existed, and that it may reasonably 462 THE SUPEEMB COURT. Wood, J. 18S9. Bbown V. Attobnet- Genekal. be inferred that the influx of sea-water which was caused by the giving way of the catch-water-gate, would have hn.ppeiied in the same way whetlier or no the sluice-gate had been allowed to i-emain, and I conceive that the catch-water-gate having given way, the salt-water from the river would in a few successive tides have effectually destroyed the crops as it in fact did by the tide of a single night. I take it for granted that there would have been more obstruction to the influx of the tide had tlie old sluice- gate remained, but still that the tide would have penetrated through tlie dilapidated sluice-gate — ^a sluice-gate of the effective- ness of which may be assumed to have diminished up to the time of the disaster ^ — as effectually as it did when it was entirely removed though possibly not so rapidly. I entertain however a strong view that the disaster of the flood was to a great extent due to the want of reasonable precau- tion on the part of those interested in the up-keep of the sluice- gate. As I stated in the course of argument a sluice-gate of this kind in which so many persons are interested should have been guarded with care. It seems to me to be a strong proof of neglect that from August to January no one in the direct interest of the plaintiff seems to have visited the place ; and that from October 11th to January 20tli, a period of over three months, it had escaped the knowledge of the plaintiff's agents that the sluice-gate had ever been removed. It seems to me that no careful proprietor of a sluice-gate, which protected from inundation from salt-water, not only his own lands, but those of others, should, fail to take precautions for its effective up-keep; should fail to know that it kept out water so ineffectually that the levels of the water on each side of the gate were the same, — or to appreciate the risk which would be run where the levels were, as Mr. E. Brown admits they were, about equal on both sides — or be ignorant of its removal for several months. Had the plaintiff by his agent known as I cannot but think he should have known, of its dangerous state up to October 11th when it was removed, or its actual removal, no doubt he would have taken effective steps to have re-built it; and I hold that such a failure in reasonable care is an important factor in the disaster which followed. The exact application however of this principle which is embodied in the known legal maxim vigilantibus mm dormientibus jura sulveniunt, I cannot find to have been held to prevail in a case quite like the present, and I found my judgment as matter of fact on the finding that the destruction of the sluice-gate in question did not cause the influx of sea-water on to the plaintiff's land. As this was in effect the contention in the case, in which the Crown in my opinion have succeeded, I am constrained to give judgment for the Crown with costs. Judgment for defendant with costs. STEAITS SETTLEMENTS. 463 MAHOMED SALLEH & ANOE. v. NACODAE MERTCAN. The defendant, on the marriage of his daughter to the plaintiff promised in writing, inter aliil to " build and give " to the plaintiff " a suitable house." He afterwards built a house and the Court was satisfied on the evidence he did it for the plaintiff and had let plaintiff into possession of it in pursuance of the promise. After residing there some years, the plaintiff fell out with the defendant and quitted the house, and some time after brought a suit for specific performance by the defendant of his promise by " building and giving " him " a suitable house." Held, though the promise was void under the Statute of Frauds for uncertainty as to the house intended, and the Court could not say what was " a suitable house," yet the parties had by their acts pointed out the house intended and the letting plaintiff uito possession thereof, was a part performance which took the case out of the Statute. Held also, the house being ascertained, the promise to build and give a " house," necessarily implied the gift of the land on which it was to be built, with such curtilage as was proper for the due enjoyment of the house. Suit for specific performance. The plaintiff Mahomed Salleh on 16th July, 1874, married the defendant's daughter, the plaintiff Sjed Nachiar. At the time of the marriage the Kali or priest made an entry thereof in his Register. The defendant in consid- eration of the marriage promised the plaintiff certain things which were duly entered in the Kali's Register and signed by plaintiff and defendant. The entry so far as is important to this report, was as follows : — " The S'l/fcttH, that is to say the father-in-law's gift unto his son-in-law, one hundi-ed and one jiagodas [gold coin of Southern India] equal to two hundred and eighty-three rupees, and also the gift of the father unto this daughter of his, is two hundred and one pagodas of jewelry, and he shall also build and give a house which must be a suitable building" The marriage was duly solemnized, and within a year after the defendant built a house on his own property in Love Lane, and on completion let the plaintiff and his wife into possession of the house telling the plaintiff [as the Court on the eTidence held] that it was the house he had agreed on his marriage to build for him. The plaintiff and his wife as well as the defendant and other members of the family lived in the house and continued doing so for some years. Eventually, the plaintiff and defendant fell out and the plaintiff and his wife quitted the house. Some time after the plaintiff and his wife brought this suit against the defendant praying that the defendant might be ordered speci- fically to perform his promise ''by building and giving to the plaintiffs a suitable house." The evidence of the possession and the reason for letting the plaintiff reside in the house in question was very conflicting, and the trial occupied the 11th, 12th, 13th and 14th days of June, 1889. Van Someren, [ Adams with him] for the plaintiffs contended, that the promise was not void for uncertainty ; the parties were before the Court, they could be examined and the Court could from their condition in life, decide what would be "a suitable house " for them. Id cerium est, quod certum. reddi potest. At all events even if void the plaintiff must still succeed as the parties had by their acts and words pointed out the house intended and which they considered was " suitable." Letting PKNANa. Wood, J 1889. June 11. 464 THE SUPREME COURT. Wood, J. 1889. Mahomed Salleh & Anob. 0. NACODAir Mkkican. the plaintifE into possession was a. part performance which took the case out of the Statute of Frauds — 29 Car. II. c. 3, Section 4. Ungley v. Umjley, 4 L. E. Ch. Div. 73, on A pp. 5 L. E. Cli. Div. 887. Rons, [Glutton witli him] for the defendant contended, that a promise of •' a suitable house " was too vague for the Court to enforce. Tlie Court could not saj wbat was or was not "suit- a,ble." Brace v. Wehnert, 25 Benv. 348. A contract " to build a house " was also not an enforceable one. Fry on Specific Per- formance [2nd Ed.] §§. 76, 78, 9; JErrington v. Aynesley, 2 Bro. C. C. 343; Lucas v. Gommaford, 3 Ibid. 106; Gooper v. Hood, 28 L. J. [N.S.] Ch. 212. The promise being vague there was no contract in writing to satisfy the Statute of Frauds — FranJcs v. Martin, 1 Eden, 309 — Marriage was not part performance — Gatnn V. Gaton, 1 L. E; Ch. Ap. 137, Affd. 2 L. E. Eng. & Ir. Ap. 127. Possession was never given to the plaintiff ; he lived in the house along with the defendant and as one of the family. In that respect this case was distinguishable from Zfngley v. Ungley, The plaintiff's remedy, if any, was for damages. Van Som,eren, in reply contended, the cases cited as to the Court not enforcing a building contract were all cases between lessor and lessee or land-holder and a house-builder. In those cases, damages could always be recovered and was an adequate remedy. They had no bearing on the present case. If the Court was against granting specific performance the plaintiff wms will- ing to waive the claim and accept damages instead, which could be done in such a case as this — Mayor and Gorporation of London V. Southgate, 38 L. J. Ch. [N.S.] 141 — whether at law or equity the vagueness [if anj-] of the contract was rendered certain by the acts of the parties. [He was then stopped by the Court.] Wood, J., intimated that he had made up his mind on the evidence that the defendant had put the plaintiff in possession of the house in Love Lane, as the house he had agreed to build for him. The uncertainty in the contract was rendered certain by this act which was also a part performance, which took the case out of the Statute of Frayds, even if there was no writing. Judgment would therefore be for the plaintiff for specific performance with costs — -but as the plaintiff was willing to accept damages instead, the Court would, if the parties wished it, ascertain the value of the house and land and award damao-es instead. Rosfi, then submitted the " house " did not include the land on which it was built, or if it did, then it meant no more than the actual site. Van Someren, contra. Wood, }., considered the promise " to build and give a house " implied the gift of the land as well on which it was built, and such curtilage as was proper for the due enjoyment of the house. [a.] [o.] The parties hereupon suhsequently came to a settlement, aud the decree was not carried into effect. STRAITS SETTLEMENTS. 465 HEIM V. LIM TIANG HEE. June 17. Where there is a breach of contract for the purchase of shares, but the vendor is Singapore. able to go into the market and sell the shares at once, his duty is to do so and sue the vendee at law for the difference in price as damages for the breach, but where there is Goldnet, J. no market for the share, he is entitled to sue the vendee in equity for speciilo perform- 1889. anoe of the contract. The defendant agreed to purchase from the plaintiff certain shares in a Tin Mining Company registered in London, the bought-note was as follows : " Bought from Jos. Heim, Esq., tliree hundred Bentong Straits Tin Company's Shares £1 paid up at S23|-, delivery in about one month on arrival of scrips from London." At the end of the month the plaintiff was unable to deliver the"S3rips," but tendered the defend'int certain documents in reference to the shares known as " certified transfers" which would have enabled the defendant to Have got himself registered in London as the owner of the said shares. fleZd, that the "certified transfers" enabling registration in London, were not equivalent to delivery of the "scrips" at Singapore, and the Court would not force the same on the purchaser. limit v, Ounn, 13 C. B. [N.S.] 226, distinguished. The "certified transfers" were prepared and signed by the Secretary to the Company in London — the name of the transferee w;is left blank and was subsequently filled in by the plaintiff [the vendor] at Singapore. Held, the transfers were void, and the transferee, the defendant, could not be compelled to take them. HihUewlille v. MrMorine, G M. & W. 200 -jOXiA SocieU Ghim-ale de raris \. Walker, 11 L. B, Ap. Ca.s. 20, followed. The nature and facts of this case sufficiently appear in the judgment. The case was heard on the 11th, 12th, 13th June, and on this day. W. Nanaon, for plaintiff, cited Goodtvin v. Rohert.i, 1 L. E,. App. Ca, 476; Hunt v. Gunn, 13 C. B. [N.S.] 226; Fry on Spec. Per. §26 ; Bowen V. Shand, 2 L. R. Ap. Cas. 455-488 ; Field v. Lcdine, 30 L. J. Ex. [N.S.] 168; 8haw v. Port Phillip Mining Go. 13 Q. B. D. 103 ; Colonial Bank v. Winneu, 30 L E. Ch. Div. 261 ; Gunn V. Bolckow, 491; Hare v. Waring, 3 M. & W. 362; Rumhold V. Metropolitan Bank, 2 Q. 15. 194; Shaw v. Fisher, 2 De G. & S. 11 ; Kurling v. Flight, 2 Phil. 116. Bonner, [Attorney-General'] and Drew for defendant cited Fbt on Spec. Per. §20 ; Hunt v. Gunn, Supra ; Steven's Dig. of Evid. 90; Leiois v. Marshall, 7 Man. & Or. 729, 744; Moore v. Campbell, 11 Exch. s.c. 23 L. J. Ex. [N.S.] 310; Kirchner v. Venus, 12 Moo. P. C. 399; Bowes v. Shand, Supra; Companies Act 1862, Section 3 ; Re Bahia & San Francisco Ey. Co., 3 L. R. Q. B. 594 ; BucUnshaw v. Nicholl, 3 App. Ca. L. E. 1004; Bibblewhite v. McMorine, 6 M. & W. 200 ; SociMS Generate de Paris v Walker, 1 1 Ap. Cas. L. E. 20 ; Colonial Bank v. Winney, Supra ; Gibbons v. McMullen, L. E. P. C. 217; Barnett v. South London Tramway Co., 18 Q. B. Div. L. E. 815; Burnett v. Smith, 10 Ch. Div. L. E. 491 ; Larios v. Gubrity, 5 L. E. P. C. 346 ; Dart on V. & P. [4th Ed.] 902; Mendies v. Gurdellns, 2 J. & H. 263; Hare v. Waring, Supra; 1 Taylor on Evid. 61; Bradford Banking Co. v. Briggs, 12 Ap. Cas. L. E. 39. Nan!ance Go. v. Caier, Ibid. 785, v[i.] The attention of the Court was also not drawn to the law as laid down in Fisher on Mortgages, Vol. 1, pp. 34;), 350; and D'Oollyar on Guaranteex, pp. 169,170; as to the surety being liable to be sued without any previous sale of the goods given as security.— J ,W,N.K. 478 THE SUPREME COURT. Pel- be realised from the sale of the principal's property. To render ^"'".ggg' ^- the defendant liable in this case, the Court would be obliged to alter ' his position eiitirel}', and that for the worse; namely, to deprive Ooi KoET him of the benefits which accrue to him as surety and then to CnnAN saddle hiin with the liabilities of a principal. The plaintiff has Low Chin, brought about the loss of the security by taking an improper and void Bill of Side by way of mortgage over the goods, and he has thereby discharged the defendant [a]. As both reason and equity forbid such a course, I must hold the defendant not liable for the money lent. Judgment for di'fendant with costs. PAYNA EMAMSAH v. THE GLENFALLOCH. Singapore. AVhen a vessel runs foul of a stationary object, the presumption is that she is in fault, and the burden is cast on her to repel the presumption. GoLDNET, J. There is no rule or rejfulation in force in this Colony rendering it obligatory on 1889. tongkangs lying alongside vessels for purpose of discharging or relieving cargo to carry lights. August 5. The plaintiff was the registered owner of the tongkang, but at the time of action brought had ceased to be the true owner he having sold the tongkang to one M. who brought the action in the plaintiff's name and at the trial personated the plaintiff and gave evidence under that name. On enquiry into the damages before the Eegistrar these facts came to light, whereupon the defendant moved to stay all further {)roceed- ings in the action and costs to be paid by M. — M. moved that all proceedings migljt be amended by the substitution of his name for the plaintiff. Held, however wrongly M. had acted, yet as to the merits of the case it was absolutely of no consequence who was the real plaintiff, or by what name he called himself, and no possible injury or inconvenience could be caused to the defendant by allowing the amendment — the proceedings therefore should not be stayed, but leave given to amend by substituting the name of M. for the plaintiff, on M. paying the defendant the costs of his application. This was an Admiralty suit. The facts sufficiently appear in the judgment. Khory, for plaintiff. Donaldson, for defendant. Cur. Adv. Vult. August 7th. Goldney, J. The collision, which was the sub- ject of enquiry in this case, occurred in the New Harbour, Singapore, on the evening of the I5th May, 1889, at about 7 to 7.30 p.m., between the s.s. OUnfallocli and a tongkang or lighter which was lying alongside the s.s. Niohe moored at the Tanjong Pagar Wharf. The force of the collision damaged the plaintiff's tongkang, which was inside the tongkang which came in contact with the s.s. Glenfal'oeh. The s.s. Niohe was lying alongside the Tanjong Pagar Wharf taking in cai'go at three hatches from the tongkangs. The Niohe was working witli electric lights over the [a.] Nor was the attention of the Court drawn to the cases of -Sorc^wic;!; v. Wright, 35 Beav. 133; Re Barber & Co., 9 L. E. Eq. 725, 731 ef.seq.,aDdD'Coll!/aron Gva'ran- tee.i,])Tj). 325-6; 34.0,342,3-1.3-4, as to there being no discharge of a surety simply because the security was worthless from the outset," or becaVMJUo subsequently without any actual act or omission on the part of the creditor beyond his takini; such Invalid security— .J.W.N.K, "^ STEAITS SETTLEMENTS. 479 Patna ElTAltlSAH V, The Glen- TALLOOH. hatchways. The plaintiff's tongknng was in the third or fourth Goldnet, J. tier from the Niobe. The Glenfalloch was coming in from sea ' from the Westward through the New Harbour by the North Channel, intending to go alongside the Tanjong P.igar Wharf. The berth to which she was proceeding was immediately astern of the Niobe. The night was dark, but clear, the wind, if any, blowing from the South towards the land, which would be on the starboard quarter of the Glenfalloch. The evidence about the tide was conflicting, the plaintiff stating that it was running to the Eastward, that would be ebb-tide, the defendant that it was about 2/3 flood. In my opinion, at the time of the collision, it was about slack-water. The North Channel at this part is narrow and the berth assigned to the Glenfalloch, being on a curve, is difficult to approach. The Glenfalloch proceeded up the Noi-thern Channel, those on board her, when at a considerable distance off, observed that the Niobe was taking in cargo from tongkangs alongside her. Although they could not at the distance see how many lighters were alongside her, yet they could see and did see that the tongka.njis wei-e not carrying lights. At the time those on board the Glenfalloch observed that the Niobe was taking in cargo from tongkangs, she could without danger to herself or others have stopped and anchored, or proceeded into the Bay. If she had adopted either of these measures she would not have been able to have gone alongside the wharf at that tide. The Glenfalloch proceeded to her berth, passing clear of the Niobe and the tongkangs alongside of her. She was going dead slow with hardly any way on her, heading almost at right angles to the wharf, intending to lie with her stern to the stern of the Niobe. At this time her head was about 12 ft. from the wharf and her stern was being gradually sagged into the wharf either by the little tide that was running, or by the wind which [if any] would be on her starboard quarter. In drifting towards the wharf the stern of the Glenfalloch just failed to clear the tongkangs along- side the Niobe, and in consequence the plaintiff's tongkang got crushed. At the time there were no ropes out from the Glen- falloch ; she had practically no headway on her. To let go her anchor would have been of no use : she could not move her engines either ahead or astern without in the one case running into the wharf, and in the other running down the tongkangs. She had placed herself in a position where, if the slightest accident arose to interrupt or embarrass the manoeuvre which she was engaged in, it was all but impossible to avoid a collision either with the Niohe or the tongkangs, or with the whaif. The law which applies to this state of facts is quite settled. When a vessel runs foul of a stationary object, the presumption is that she is in fault, and the burden is cast on her to repel this presumption. The tongkang was stationary, the Glenfalloch was allowed to get into the position I have described, although at the time she proceeded iip the North Channel those on board of her knew that the Niobe was taking in cargo from tongkangs alongside of her, but did not know how many tongkangs there were or their exact positions. In my opinion, if those in charge of a steamer, under these 480 THE SUPREME COURT. 1889. Patna Emamsah V. The Glen- FALLOCH. 2 W. Eob. ] Moo. P. the Glenfalloch that the toiig- and should have slipped their GrOLDNET, J. circumstances, on a dark night, in a narrow channel, chose to proceed alongside a wharf at all times difficult of access, they do so at their own risk, and must bear the consequences of a contingency to which they have exposed themselves, and must be responsible for the damage they may cause. The Hope, 2 W". Rob. 8; The Lids E.Jalf, Swab. 118; The Batavier, 407; The Annot Lyle, 11 Prob. D, 114; The Eyyptinn, C. 0. 373. It was alleged on the -part of kangs should have had lights up, ropes when the Glenfalloch approached. No rule or regulation was produced which makes either of these things obligatory upon tongkangs lying alongside vessels for the purpose of having their caigo discharged into the larger vessel, nor does in my opinion the principle laid down in The Saxonia, Lush. 410, and cited in The [nclustrie, 3 L. E. Ad. & Ecc. Ca. apply to the circumstances of this case. The absence of lights on the plaintiff's tongkang or on the tongkangs immediately oiitside of him in my judgment did not and could not have contributed to this collision. If the outside tongkangs had had lights, as it was suggested they ought to have had, those on board the Glenfalloch would have had )io more information than the electric lights on board the Niohe already gave them, viz., that the -Knie had tongkangs alongside her and tliat she was taking in cargo from them at three hatch- ways. Nor do I consider that because the Glenfalloch was proceeding to a berth which, considering the place, time, and tide, was difficult to approach, without causing damage to others, she had any right to demand that the Niohe or the tongkangs should take extraordinary precautions to avoid a collision. The Vivid, 1 As]). N. 8. 601. In my opinion the defendants have failed to show that there was sufficient justification for their intentionallj' placing their vessel in a position where, as the facts have proved, on the slightest miscalculation of distance a collision with the Niohe or the tongkangs alongside of her became inevitable. The presumption arising from their running foul of a stationary object has not been repelled by the defendants. I must therefore pronounce the Glenfalloch alone to blame. The question of damage to be referred to the Registrar. On the enquiry being held before the Registrar it appeared from the cross-examination of one Madarsah [who had at the trial said he was the plaintiff, and who at the enquiry also so represented himself], that he was not the plaintiff at all, but that his name was Madarsah and that he was the purchaser of the tongkang in question from Emamsah, but tlie transfer had not been registered. The Registrar reported to the Court accordingly. On November 11th, before Goldney J, Donaldson, for the defendant applied that all proceedings might be stayed and that Madarsah might be ordered to pay the costs of the action, submitting that it was a gross case of personation. STRAITS SETTLEMENTS. 481 Khory, for Madarsah submitted, that his conduct though reprehensible was due to ignorance and not from any intention to defraud. He in fact was the owner of the tongkang though his name was not in the register. Cur. Adv. Vuft. November 25. Goldney, J. The damages in this action were referred to the Registrar. When before the Registrar, the plaintiff in his examination as to the amount of damage sustained by the Manihapore, admitted that he had brought the action in the name of the then registered owner, and not in his own name. At the time of the collision, he was the true owner, though not the registered owner. He also admitted that he gave his evidence in the name of the registered owner, and not in his own name. The defendants, on this admission, have applied to the Court for a stay of proceedings, and the plaintiff has also applied to the Court to amend the proceedings by substituting his name for the name of Payna Emamsah, the registered owner at the time of the collision, and in whose name the writ was issued. At the time of the collision, the plaintiff was the real owner, and had a bill of sale from Emamsah, registered owner. The B/S had not been registered, so that the owner on the register still was Emamsah. The plaintiff appears to have thought, that under these circum- stances, he was bound to bring this action in Emamsah's name, and also to say he was Emamsah. This no doubt was very wrong, and by so doing the plaintiff may have broiight himself, within the range of the criminal law ; but as to the merits of the case, it was absolutely of no consequence who was the real plaintiff, or by what name the plaintiff called himself. An amendment sub- stituting the name of the true owner of the boat for that of the then registered owner cannot, in any possible way that I can conceive, injure or inconvenience the defendants. I therefoi'e accede to the application of the plaintiff, Madarsah, to substitute his name for that of Emamsah in all the proceedings in this case. It would be wrong that the defendants should have to pay the costs of this application, which has been occasioned by the plaintiff's fault. I therefore refuse to stay the proceedings, and order the name of the plaintiff to be substituted for the name in which the action has been brought, subject to his paying the defendants' costs of this application. GOLDNET, J. 1889. Patna EUAUBAH V. The Glen- FALLOCH. BRANDT & Co. v. GOH GUAN LU. A person who agrees to sell to another a certain quantity ol goods which he has Sinbapobb to procure from abroad, is not at the time he tenders the other goods, bound to inform that other that he has imported more of the like goods and placed them in the market. Wood, and he commits no fraud in withholding such information Aa. C.J. Where a contract stated that it was for " 25,000/30,000 cases Kerosine oil," and it l SS9. beino- shewn by evidence that the expression meant from 25,000 to 30,000 cases, "jleld, the fact that the defendant made the proposal to purchase that quantity August 12, was material, and his proposal having been accepted, he was bound to accept the full 30,000 cases if the vendor tendered him that quantity. iln such a contract the option is with the vendor as to whether he would only delvej- the 25,000 cases or the larger number of 30,000. 482 THE SUPREME COURT. Wood, Aq. C. J. 1889. Beandt &Co. V. GOH GUAN Ltr. The nature of this case and Ihe pleadinj^s therein and facts giving rise to it, are fully set out in the judgment. Drew, for plaintiffs. Donaldson, for defendant. Cur, Adv. Vult. August 20. Wood, Acting C.J. This was an action hrought by the plaintiffs against the defendant for the refusal by the defendant to receive 5,000 cases of Kerosine oil. The statement of claim alleges — 1. The defendant on the 13th Februai-y, 1889, made an offer in writing, duly signed, to the plaintiffs, through Mv. J. Lyall their bi-oker, in the follow- ing terms : — Singapore, 13th February, 1889. J. LTALL, Esq., Sir, We make you the following firm offer, subject to reply on the 18th instant, viz., to buy from you 25,000/30,000 cases Kerosine oil, Devoe's High Screw, per steamer from New York vio Canal, Mai-ch/April sailing, to discharge at Singapore, at a price of $2.25 [Two Dollars and Twenty-five cents] per case, payment to be made in Promissoi-y-notes, half at 3 months', and half at 6 months' date. Delivery of the oil to be made on the usvial Singapoi'e conditions. Your obedient Seivant, GOH GUAN LU. Notice to be given to Goh Guan Lu immediately the shipment is an-anged- 2. , On the 18th, the plaintiffs by their agent, Mr. Lyall, duly accepted the offer of the defendant. 3. In pursuance of the said contract, the plaintiffs shipped on board the s.s. Nubia then lying at the harbour of New York, 33,000 cases Kerosine oil, Devoe's High Screw, and the said steamship sailed from New York on 3rd April, 1889, and proceeding via Suez Canal arrived at Singapore, on the 28th May, 1889, and the cases of oil were discharged in due course at Singapore. 4. The plaintiffs gave notice through Mr. Lyall to the defendant of the said shipment on or about the 6th April, 1889. 5. The plaintiffs called upon the defendant to accept delivery of 30,00(i of the said cases, hut the defendant accepted delivery of 2IS,000 }f such cases only, and refused to accept delivery of the remaining 5,000 cases. G. The plaintiffs thereupon claimed damages for such non-acceptance. The defendant in his statement of defence, said as follows : — 1. That as to the 4th paragraph [alleging notice] that the plaintiffs did not give notice to the defendant immediately the shipment was arranged. 2. That on arrival of the s.s. Nuhia, the plaintiffs informed him that the oil had an-ived, but did not inform him, as the fact was, that such oil was part only of a much larger shipment, and the plaintiffs by stich concealment fraudulently induced the defendant to fake delivery of the said oil. The defend- ant aftei'wards discovered that the oil offered him was part only of a larger shipment, and thereupon refused to accept more than the minimum quantity mentioned in his said offer, STRAITS SETTLEMENTS. 483 3. That by the true construction of the contract he was not hoimd to receive more than 25,000 cases. On these allegations issue was joined. Dealing with these defences in the order in which they appear in the statement of defence, I. — I find as matter of fact that the plaintiffs did give notice to the defendant immediately the ship- ment was arranged. II. — As matter of law that the plaintiffs were not guilty of fraud in law, in not informing the defendant of the fact that the oil was part only of a much larger consignment, viz., of 33,000 cases. As to this second point no very strenuous contention was raised, and looking at the facts as disclosed in the statement of claim and defence, I can see no reason why the plaintiffs should have made any such disclosure. This is not the case of the pur- chase of an entire cargo, nor is anything shewn in the contract between the parties, arising as it did, which raises any duty in the plaintiffs to do more than tender to the defendant the number of cases which he had contracted to purchase. The rights and liabili- ties of the parties arose as they are stated in the particulars of claim and no circumstances were discovered in the case to limit the right of the plaintiffs to import a greater number of cases than 30,000. Possibly had it been shewn as a. fact that the 3,000 cases imported in addition to the 30,000 had a material effect on the oil market of Singapore, or that oil in such quantities as to glut or materially affect the market had been imported by the plaintiffs, or that concomitant circumstances existed which bound the plaintiffs to import 30,000 cases and no more, the contention itnight have been founded, but the facts of the case are only the facts as stated in the particulars of demand, and I fail to see any reason for imputing fraud in law to the plaintiffs in importing the extra 30,000 cases. The main contention however arose on the question whether the defendant on the true construction of his contract was hound to receive more than 2o,000 cases. The contract being to deliver 25,000/30,000 cases, I took evidence to explain the meaning of this mode of expression, and I find as a fact, that this is equivalent to the expression from 25,000 to 30,000 cases, a meaning which may easily be inferred and was admitted by both parties to the suit to be correct. In the course of the arguments, I was under some doubt whether the option did not lie with either party, inasmuch as the offer and the acceptance con- stituting a contract, it might be urged that its effect was that the plaintiffs were to deliver from 25,000 to 30,000 cases of oil, and the defendant was to accept from 25,000 to 30,000 cases, and thus there existed in the contract, an uncertainty as to the subject- jnatter beyond the 25,000, and thus the fact of the contract con- sisting of an offer on the one side, and an acceptance on the other, was immaterial, but upon consideration of the cases referred to in argument, especially Cross v. JUglin, 2 B & Ad. 106, Gocherell v. Aucompte,2G.'B. [N.S.] 440, and Bowr-we v. Seymour, 16 C.B.3d7, as well as upon consideration of the genei'al law as affecting contracts, I am sntisfied that the fact of the defendant making the offer or Wood, Ao. C. J. 188.'). Brandt &Co. V. GOH GUAN Lti. 484 THE SUPREME COURT. Wood, Ag. C.J. 1889. Brandt &Co. V. GoH GnAN Lu. proposal is material, and that when a proposal i.s made hy one party and duly accepted by the other, the party proposing is bound by the terms of the proposal. I see no difference in principle between the cases which involve the words " about "or " more or less " or " say about " and the present case. Here the defendant limits his liability as to the number of cases he will take in analog^ous if not in similar terms to those of certain reported cases, instead of using vague terms such as " say 25,000 cases " or " 25,000 cases more or less " upon which a question might, and as in the case of Gross v. Eglin above cited did arise, he uses words equivalent to 25,000 cases or more not exceeding 30,000, and given the meaning of the expression 25,000/30,000, the Court can construe the contract so as to infer the intention of the parties to it. This intention I hold to be that the plnintiffs may at their option tender any amount of cases from 25,000 to 30,000. This construction of the contract I consider to be clear on the principles established bj' reported cases; and that, without the help of any evidence of the custom of the trade, evidence concerning the admissibilit)' -of which some doubts ma}- not unreasonably exist. In the case before us the plaintiffs tendered 29,652 eases of which the defendant accepted only 25,000 cases leaving 4,652 on their hands. These I find wei'e sold by auction and resulted in a loss to the plaintiffs by the refusal of the defendant to accept these 4,652 cases, of $1,580.16 which, as matter of fact, I find to be reasonable, and I accordingly give judgment for the plaintiffs for $1,580.16, with costs. ATTORNEY-GENERAL v. MUNICIPAL COMMISSIONERS. SlNGAPOEE. Wood, An.C.T. 1889. August: 26. The defendants were a Corporation constituted under Ordinance 9 ot 1887, and were in possession [how it did not clearly .appear] of a Town ILiU the lower portion of which for many years had been fitted up as a Theatre It was considered advisable to replace the old scenery with new ones, and with that view the defendants through their Secretary wrote a letter to a gentleman in England ordering such new scenery. To meet the cost of such scenery they had passed a vote of $1,000 from the Municipal Funds ou their Budget for the present year which had been duly sanctioned by the Governor in Council in accordance with the Ordinance — by a subsequent vote they proposed to apply a further ?260 of such funds towards such cost, — this S260 being transferred from another vote for a different matter which had also been sanctioned. The defendants were about paying this 11,260 to meet the said cost when this suit was begun at the relation of a rate-payer seeking to restraint the defendants from applying the said funds towards paying for the cost of such new scenery. Held by the Court of Appeal [reversing the judgment of the Court below] follow- ing J'/ower v. ioM^ Board of Lorn Leyton, 'S L. R. Ch. Div. 347, that Section 259 ot the aforesaid Ordinance incorporating therein Section 44 of the Police Ordinance 1 of 1872, did not apply to such a suit [a.J, and it was not necessary for the plaintiff to allege or prove " malice and want of reasonable and probable cause " on the part of the defendants in pn<^^ing such votes and proceeding to make such payment. Meld further by the Court of Appeal [FeUereav&. Goldney, J.J„ Wood, Acting C.J. dis.senting]— reversing the judgment of the Court below that the purchase of such scenery for the Hall, for the Theatre, for the benefit of the public was not a providino- for the "convenience" of the public within Section 56 of the said Ordinance and that an injunction should be granted restraining the defendants from so applying the afore- said funds towards the purchase of such new scenery. [o,] See also Phelips v, Hcfiham JXxtriet Board, 1 C, & J). 67. STtlAlTS SETTLEMEiSTTS. 4S5 Seld further [by Goldiiey, J.] that the contract for the purchase being over $200 in value, but not being under the seal of the defendaut-Corporatiou, was not a contract of the Corporation, and on that ground alone an injunction sliould have been granted. Semble Iper Pellereau &. Goldney, 3.3.— Wood, Acting O.J. dissenting] that the defendant-Corporation could not undertake to have a theatre [as a condition to their holding possession of the Town Hall] unless such an undertaking was within their powers under the Ordinance which it was nol.. This was a suit praying for an injunction restraining the defendants from expending a sum of |1,260 or any other sum from the Municipal fund in the purchase of scenery for a theatrical stage in the Town Hall. It was instituted by the Attorney-General by the relation of James Guthi'ie Davidson, an owner of property and a rate-payer in the town of Singapore. A vote of §1,000 had been passed by the defendants in November, 1888, and had been placed on the Budget for 1889, which had been sanctioned by the Governor in Council in December, 1888. A Supplemental vote of |260 was subsequently passed by the defendants, and on 15th March, 1889, the Secretary to the defendants wrote to a Mr. Buck- ley in England authorising him to purchase the necessary scenery, who had completed the contract and was about to draw on the defendants for the price. The following are the sections of the Ordinance 9 of 1887, and 1 of 1872, bearing on the case. Wood, Ao. C.J. 1889. Atiobnet- GeNEKAI/ V. Municipal COMMIS- SIONEKB. " 56. [Ordinance 9 of 1887]. The purposes for which the Commissioners are authorised to expend the Municipal Fimd are the following, viz. : — [a.] Lighting public streets places and buildings ; extinguishing and preventing fires ; conti-ol supervision and i-emoval of dangerous places build- ings trades and practices ; regulation of traffic ; and prevention and removal of obstructions in public streets or places. [6.J Construction maintenance supei-vision and control of public markets and slaughter houses latrines privies urinals drains sewers drainage works and other works for the removal and disposal of sewage night soil and town refuse tramways water- works public baths bathing-places wash-houses and washing- places drinking fountains tanks and wells parks and gardens; reclamation of unhealthy localities ; and other sanitary measures of a like nature. [c.j Cleansing and watering of streets and sewers ; scavenging ; remo- val of excessive or obnoxious vegetation ; and genei'ally the abatement of all nuisances. [d.] Construction maintenance and alterations of streets bridges cause- ways culverts and the like ; regulation of buildings ; removal of undue projec- tions naming streets and numbering houses ; and planting trees in public streets and places. [e.] Construction purchase and maintenance of all buildings required in order to give effect to the purposes of this Ordinance. [/.] All matters necessary for or conducive to the public safety health or convenience. [(/.] Acquisition of land necessary for any of the above purposes. [/i.] The exercise of all powers and the perfonnance of all dixties which under or by virtue of this Ordinance or any other enactment are or may be or become vested in or delegated to the Commissioners. 259. All actions and other proceedings which may be lawfully instituted against the Commissioners or the President or any Commissioner or any of the officers of the Commissioners or any person acting imder their or his direction for anything done omitted or intended to be done under the provi- sions of this Ordinance or of any rules or by-laws made thereunder shall be 486 THE strPbEMB COURT. Wood, Ag. C.J.' 18S9. Attoknet- Genekai, V. MUNIOIPAL COMIIIS- mONEKS. commenced within three months after the accrual of the cause of action and not othenvise, and the provisions of Sections forty-three to forty-nine both numbers inchisive of " The Police Force Ordinance, 1872 " shall a.pply to such actions and proceedings. 44. [Ordinance 1 of 1872.] In every action so brought it shall be expressly alleged that the defendant acted maliciously and without reasonable or probable cause, and if at the trial the plaintiff shall fail to prove such allegation, judgment shall be given for the defendant. " Tlie nase was heard on the 22nd and 23rd August, and on this day. W. Nanson, for the plaintiff now moved for an interlocutory injunction — he contended that the expenditure was illegal and the resolution and vote were ultra vires — the question being one of principle. The expenditure was purely for the purposes of amusement and recreation of the public ; it was not one of the duties thrown on the defendants by the Ordinance. They were attempting to apply the funds towards matters beyond their Ordinance and they thereby brought themselves under the juris- diction of the Court, and the Court would restrain them. The defendants were not bound by the simple correspondence from their Secretary to the gentleman in England. Section 56 of their Ordinance defined the purposes for which they might expend Municipal funds — " public safety "— " health " — " streets " — " buildings " — " pui-poses of maintaining buildings required in order to give effect to the purposes of the Ordinance " — and " all matters conducive to the public safety, health, or convenience." It was only under tlie latter word such an expenditure could be based — -but that word did not take in this case. The funds were "trust funds" — Attorney-General v. Asfinall, 2 M. & C. 613 — the wrongful expenditure of it would be restrained by the Court — ' Attorney-General v. Gompton, 1 Y. & C. 417; Attorney-General v. Norwich, 16 Sim. 245 ; Frewwin v. Lewis, 4 M. & G. 249 ; Attorney- General V. West Hartlepool Improvement Commissioners, 10 L R. Eq. 152; Dance v. GoWwjf/iam, 8 L. E. Ch. Ap. 902 ; Lewin on Trusts, 697; Brice on TJltrd Vires, 862-7 5 ; Munt v . /Shrewsbury Railway Co., 13 Beav. 1, and McGregor v. Deal and Dover Ry. Co., 22 L. J. Q. B. 69. Drew, for the defendants contended, that the expenditure wa- for the "convenience" of the public, that word being a very wide one. Webster gave the meaning of the word as " for the promos tion of ease, comfort, enjoyment and accommodation." The defendants had a discretion as to what was, or was not, convenient, and the Court would be very slow to interfere with that discre- tion. The case was the same as that of the Committee of Clubs. Joyce on Injunctions, p. 730; Hopkinson v. Marquis of Exeter, 6 L. R. Eq. 63; Dawkins v. Antrobus, 17 L. R. Ch. Div. 615. It was for the plaintiff to satisfy the Court that it was unreasonable, that it was unlawful. The case of Attorney-General v. West Hartlepool was not applicable — see Attorney-Genernl v. West Hartlepool Improvement Commissioners, 10 Eq. L. R. 152, and Attorney-General v. Eastlake, 11 Hare 205, 223 ; the defendants also could not be sued as more than three months had elapsed from the time the vote was passed, ai^d there was no proof or STkAlTS SETTLEMENTS. 48? allegation of the defendants acting maliciously and without reasonable and probable cause. Section 259 [supra] and Section 44 [supra] — Selmes v. Judge, 6 L. M. Q. B. 724, and Midiand Ry. Co. V. Local Board of Wiltington, 11 L. R. Q. B. 788. Nanson, in reply contended, Sections 259 and 44 had no appli- cation to such a case as this. Floiver v. Local Board of Low Leyton, 21 Q. B. Div. 160; lie was entitled to have his injunction in order to have matters kept in statu quo, 2 Daniel Ch. Prac. 1501. Wood, J. This was a motion for an injunction to festrain the defendants from expending the sum of $1,260 out of the Municipal fund for the purchase of scenery for a theatre until the trial of the action. The relator is a rate-payer, and the affidavits shew that the defendants purposed to pay out of the Municipal fund this sum of f 1,260 for the purchase of scenery for a theatre now existing at the lower hall of the Town Hall, for which provision had been made in the Budget, and a Supplementary vote approved of by the Governor in Council. That the defendants, as Municipal Commissioners, held themselves bound as trustees for the public to maintain the lower hall as a theatre, and that the purchase of scenery was in fact beneficial to the maintenance of the theatre and a source of income to the rate-payers. Under these circumstances, which are stated in full in the affidavits, I am of opinion that the defendants are justified in expending the sum of $1,260 in the purchase of such scenery', and that for the following reasons : — ■ 1. — By Section 56 of the Municipal Ordinance 9 of 1887, Sub- section F., it was declared that one of the purposes for which the Commissioners are authorised to expend the Municipal fund is a matter "conducive to the public convenience." The "public" I take to mean "the public" in its ordinary sense, and not to mean the " rate-paying public," and " convenience to the public" I also take to mean the reasonable wants, requirements, or enjoyments of the public, of which the opportunity of witnessing theatrical performances in a locality where it is admitted the public have no other suitable place for the accommodation of companies of actors, professional or otherwise, may fairly be considered to be one. If the case of Attorney -General v. West Hartlepool, 10 L. E,. Eq. 152, seems to be in any way a case in favor of the plaintiff, I desire only to say that while not taking upon myself to disapprove of the decision of W. M. Jawiks, V. C, in that case, yet, reading the judgment, it is not too much to say that it refers to a special application of Municipal funds, that i-t discloses no tangible ratio decidendi applicable to this case, and should not be extended beyond the exact point there decided. ■ 2. — I am however further of opinion that the spirit of the Ordinance is evidently to give to the Commissioners a discretion which, bridled as it would appear to be to some extent by the approval of the Governor in Council, they may exercise honestly, and which can only be successfully assailed by the imputation and proof of malice or want of reasonable or probable cause. This I take to be established by the incorporation by Section 259 of the Municipal Ordinance of the provisions of that Ordinance with Wood, Ag. C.J. 1889. Attobnet- General V. Municipal COMMIS- BIONEBEi. 486 THE SUPREME COURT. "Wood, Ag. C.J Pel- "I LEBEAU &GoliD- f NKT. J 1889. >J.J. Attorney- General V, Municipal CoMMIS- BIONEKS. Section 44 of the Police Force Ordinance of 1872 by the combined efEect of which it is provided that in actions brought against the Municipal Commissioners for matters done or intended to be done under the provisions of the Municipal Ordinance, it shall be expressly alleged that the defendants acted maliciously and with- out reasonable and probable cause. That the defendants have acted otherwise than in good faith is not alleged, and as a con- sequence the action of the Commissioners cannot on this pi'esent application be impeached. I inclined at first to what may be called the common sense view of the case, that inasmuch as the defendants were in possession of a public room which might on occasions be let for purposes of public entertainment, such public room, if unprovided with scenery, could not be conveniently let for theatrical entertainments, and therefore that the expenditure by the Commissioners of so couiparativelj' small a sum as $1,260, with the reasonable expectation of its being an ultimate benefit to the rate-payers, was a breach of trust so trifling [if breach it were] that an objection on that score would be looked upon as captious iind nominal rather than real, and that for that reason the Supreme Court would not entertain a suit to set right so insignifi- cant a matter, but it is due to Mr. Nanson's argument to say that he has shewn much to convince me that it is in the power of a rate-payer to object to even a trivial breach of trust, and that as matter of principle the Court would enforce the exact perform- ance of their duty on the part of the Commissioners where the trust is clearly defined. r should add that in the hearing of this matter a determina- tion of the exact position of the Commissioners with respect to their performance of any trust towards the public witli respect to the hall has not been arrived at, but the decision is based upon the supposition urged by Mr. Nan son that the public halls are the property of the Commissioners, a question which may rest until the action is ripe for trial if the plaintifiE desires to proceed further in it, the present decision being that the motion for the interlocu- tory injunction is dismissed without, however, any order as to' costs. The plaintiff appealed. September 7th. The Appeal now came on for hearing before the Court of^ Appeal, consisting of Wood, Acting C.J., Pellereau and Goldney, J.J. Nangon, for plaintiff. Drew, for defendant. Goldney, J. said, that he would, upon such an important matter, like to put his judgment in writing, but he thought that the application for an interim injunction should be granted. The first point was that Mr. Presgrave, the Secretary to the defendants had admitted and stated that a contract had been made on behalf of the Corporation, which whs not under the seal of the Corporation. Mr. Nanson said that the rate-payers' money could not be spent under this contract. According to the law, the Corporation, as Commissioners, are formed into a body STUAlTS SETTLEMENTS. corporate, and as a body Corporate, they can only contract under the common seal, except in cases where for convenience, the Legis- lature had provided that the President may contract up to |200. A contract therefore not under seal for over $200 was not the ctmtract of the Corporation, but of the individual Couiuiissiouers, and no money of the rate-pnyerseouldbe applied to such a contract. On that point alone an injunction should be granted. Mr. Drew argued that the word " conveniefnce " Sub-section f. Section 56, would enable the Commissioners to carry on a theatre. His Lordship's opinion was that it referred to those acts the Corpora- tion might do under their Ordinance, and referred to Pickering v. Stephenson, [a] . He did not intend to decide whether or not the Corporation had any power to have a, theatre, because those facts were not before them, but the facts were sufficiently before them, to say " you shall not spend this money until we know you have a right to carry on a theatre on part of your property." Until Mr. Drew could shew that they had such power an injunction should be granted until the trial of the action. Pellereau, J. said, the last point raised by the Municipality touching the good faith of the Municipal Office, was not insisted on and was indeed untenable. The other point was concerning the transfer of the Town Hall to the Municipality, and it was argued by Mr. Drew that they took the place upon certain condi- tions, one of which was that the Municipality should keep certain sceneiy for the benefit of the public. He, thought the Munici- jiality could not undertake certain conditions, unless these were within the limits of its power, and this was I'eally the same as the first point ; it was necessary, in order to decide such a question, to refer back to the law of the Municipality's constitution. On the point itself his Lordship had the greatest doubt. The first four clauses of Section 56 referred to various matters which might be included under the head of safety, health, and convenience. The four last clauses of the same section applied to several things, referred back to the first four, also paragraphs G. and H. referred back to the clause, and he therefore thought that paragraph F. which reads " those matters which ai'e necessary and conducive to public health, safety, or convenience," might be one of those general phrases at the end to make the matter more clear and general, but what was the necessity of repeating them under Section F. '? Was it not more plain and logical that the wording of Section F. was meant to give something which was additional ? The meaning was an important one, because it may have great weight with the Municipality in future in regard to its power. No doubt the word " convenience " might be construed as Mr. Drew meant it, but upon the interlocutory application, his Lordship did not intend a decided opinion on that point. But even assuming that the phrase bore the broad construction upon the word as put upon it by Mr. Drew — there arose the question whether buying scenery was a matter of public convenience, — his Lordship thought not. He abstained from deciding the legal point; it was not necessary that it should be decided, but [o.] 14 L. K. Eq, 322. Wood, Ao. C.J. Pel- ^ LEKEAU I r J & Gold- I ''•'*• NBT. J 1889. Attornet- Genbkal V. JIUNICII-Ali COMMIS- BIONBEK. ■490 THE Supreme cour^Jc. Wood, As. C.J. Pel- 1 lereau 1 t t &GOLD- [•'••' NET. J 18S9. Attobnet- Genekal V. Municipal Commis- sioners. certainly buying scenery for sucli purposes for theatrical performers, was in common parlance, a matter of. common recreation or enjoyment. No doubt convenience included enjoy- ment. A certain amount of enjoyment and pleasure was included iu '' convenience ; " it was less than convenience, and it required somethiny; more in order that enjoyment might amount to con- venience, and he could not think that the buying of scenery was for the public convenience. On this point he thought the Municipality were prima facie in the wrong and that an interim injunction should be issued. Wood, J. said, with regard to the second point, the question of no proof of malice he, since giving judgment in the Court below, had considered whether it was sound, and he was afraid he was bound to pay due consideration to the authority [o.] he had studied during the day and he had foregone that conclusion. With reference to the question of trustees of the Town Hall, this matter was not before them, and they could not at all decide that question. His Lordship assumed that this would be gone into, and they would then have to settle whether or not there could exist on the part of the trustees a condition to keep up their hall on the terms they agreed to do so. If the Municipality was not bound to perform the agreement, they must give up so far. The Court did not know whether the Commissioners were out and out owners, or whether they were persons merely there to perform an agreement, and whether it was a disastrous state of things, injurious to the Commissioners and injurious to the rate-payei's. Then followed the vocation of words in Section 56 and it seemed to him those words must be read according to their meanings and sense, for a sentence was meant to be read in the way that an ordinary person would read it — Max. on Statutes. It was reasonable to suppose, in the construction of the Statute, that after generally dealing with the purposes for which the Act was passed, the general principle died away — the Act should be put in force for all purposes conducive to the public safety, health, or convenience ; dismembered as it was from other sentences, it was a reasonable supposition that some division of the sentence was to be read as possessing power. They could only arrive at the meaning of the English language in part, but they had a right to refer to books, and his Lordship understood the meaning of the word " convenience," the ordinai-y meaning of the word, that which is conducive to public con- venience, or rather convenience to the public — " the reasonable wants, requirements, or enjoyment of the public." Everything of this kind must be construed according to its surroundings. In this town there was no place where the public could enjoy a theatrical performance as in the Town Hall, and where they were in a place where theatrical exhibitions were restricted to one place, — they were entitled to look at the meaning of the word " convenience," in the locality where it was in order to find out what it was. Judgment reversed with costs, [a.] Flower v. Local Board of Low Let/ion, supra. SHAIK PAREBTHO v. B BEAMS AH. 4§i The dei'eiidaul and liis deceased partner prior to the death of the latter staled an Sinuapobe. aooouut between them shewing $1,200 odd were in the firm belonging to the deceased partner. After the death of the deceased partner, the defendant, who was his Executor, Woop, made use of the money in the business of the firm and continued doing so tor several Au. C.J. years. The plaintiff, a next-of-kin of the deceased, sued the defendant for accounts Pel- ~1 aud claimed that the deceased's estate was entitled to share in the profits of the lebeau [-. . business, to date of action. &Gold- | ■'••'• Held, he was entitled to have the accounts of the business taken and a proportion ney. J of the profits credited to the deceased's estate and not merely to interest on the $1,200 1889. as for money lent. . Held further Va.&i'boih. profits and interest could not be charged on the amount August 29. of capital, nor interest on the profits. Suit for partnership accounts. One Maliomed Pitcbay and tilt) defendant carried on business in partnership as Cutlery shopkeepers. In May, 1875, an account was stated between them shewing tliat Maliomed Pitchay's share in the assets of the firm amounted to §1,200 odd. Mahomed Pitchay died in June, 1875, appointing Lis partner the defendant, as liis Executor. The plaintiffs in the case were the next-of-kin of the deceased, and claimed against the defendant that he had been using this $],1;00 odd in his business up to date, and that therefore, tbey were entitled to a share in the profits of the business up to date. The defendant contended, that he had not used the jnoney in the business, and that if anything could be claimed from him beyond the amount of the capital, it would only be the interest thereon, and not a share in the profits. In the Court below, Goldney, J. found as a fact that the defendant had used the money in the business, and did not believe the defendant's story that he had put money away in a small tin box. He decreed that the plaintiffs were entitled to have the accounts of the business taken, and that a proportion of the profits of the business up to date be paid to them. Against this judgment defejidant appealed. W. Nansmi, for appellant. Drew, for respondent. I'ellereau, J. said, the substantial question in the case was whether certain money had been used in the business or not. There was no direct evidence to shew that Mr. Nan son's client hiid put the money into his box, but there was evidence with which the Court could be guided. Mr. Nanson said there was evidence that the defendant put the money into the box and that there was no evidence to contradict that, but did that evidence bear upon it the stamp of truth '? His Lordship thought not. It was a large sum of money for a man in that class of life, and he thought the story was incredible. His decided conviction was that the story was not true. If that was the case, then why did the defendant bring witnesses to swear to the truth of it. He thought it was because the defendant had been gaining profits from the use of this money, and when the action was threatened he made up this story to meet it. If the books were to be consid- ered confirmatory evidence, there was no entry in the business book shewing that this money was put aside and that the business was carried on as before. There was no proof that there had been 492 THfe SDPfeBME COttef. Wood, Ag. C.J. Pel- ^ I LEBEAU J.J. & (cOLD NET. J 18S9. Shaik Pabeetho I'. Ebkamsah. anything put iuto tlie box. His Lordship had therefore come to the conclusion, that the Executor had been using the monej of the deceased in the business. With respect to the second part he held that the deceased's share remained mixed up in the business, and that the story setting it aside was not true, and the plaintiff was entitled to have an account of the business and a share of the profits. Mr. Nansou wished to have the judgment amended. What were the special circumstances referred to by Mr. Nanson ? His fjordship could not see any. A claim made by the manager for his services was only a claim against the whole partnership, and the profits could only be arrived at after the deduction of such claim. If the decree as it stood was not broad enough to cover the claims made by the manager for remuneration for his management, power was given by the terms of the decree to upply : no Judge would refuse to make an order if necessary. The appeal should be dismissed with costs. Wood & Goldney, J.J. concurred. Appeal dismissed, O'Mallbt '^^^ accounts having been taken before the Registrar on the C J. ' footing of the above judgment, he made his report thereon by Pel- "1 which he found sums due by the defendant. The defendant &^(?oLu- ''"'■''■ excepted to this Report and the exceptions were argued before Goldney, J., who on 9th December, 1889, confirmed the Registrar's report with a variation, allowing |I,103.31 for capital, |1.,106.8I for profit, and $2,069.61 for interest on each of the previous sums. The defendant appealed against this judgment. The Appeal was heard on 25th and 26th March, 1890, before O'Malley, C.J., Pelle- reau and Goldney, J.J. Bonser, \_Attorney-General'\ and Nunson for appellant. Napier, for respondent. The Court of Appeal declined to reduce either amounts allowed for capital or profits, but reversed the judgment of the Court below in part, by holding that both profits and interest could not be charged on the capital, nor interest on -the profits, and ordered the item of $2,069.61 to be struck out. They gave the appellant his costs of the appeal, and certified for two Counsel. Judgment varied and affirmed. NET. J 1890. CHIH LIM NEO v. SIT HOON NEOH. Singapore. Wood, Ao. C.J. , Pel- ~1 LEBBATI [f-f & Gold- [•'■"'■ NET. J 1889. Sept. 5. Although appeals iu matters of detail, as accouuts, should not be encouraged, yet where the evidence preponderates ill favour of the appellant, this Court will act "on such evidence and even reverse the judgment of the Court below, or the liegistrar's certificate, on a point of fact. This action which was brought against the defendant as Administrator of one Lee Tek Joo deceased, claiming the balance of an account, was originally brought at Malacca, but as it involved some complicated matters of account it was referred to the Acting Registrar, Mr. C. Logan, " to examine the accounts, with power to order the production of documents, &c." An application STRAITS SETTLEMENTS. 493 Chih IjIM Neo V. Sit Hoon Neok. was made to Goldney, J. to vary the report contained in the Wood, Registrar's eertificato'in August last. The learned Judge eon- p^^^^^^'^' firmed the report. The defendant now appealed. lebrao I -. , E. W. Braddell, [Shearwood with him] for the appellant & Gold- !■ • ' contended, that the terms of the order of reference were generally '"^^ggg' to inquire into the accounts, whereas the Registrar appeared to have misconceived this, as in his certificate he stated that it was ordered that he should inquire whether a certain item of $1,500 was paid or not, and he found that it was, basing his decision upon there being a certain formal receipt in a purchase deed of some shares. He further contended that the report, as confirmed, was against the weight of evidence. The transactions dated from 1879, the plaintiff being the widow and administratrix of one Lee Tek Hong, who died in that year, and the defendant her brother- in-law, who became her attorney and managed her affairs. Lee Tek Hong was possessed of 10 shares in a certain Tapioca planta- tion, on which $G,000 capital remained unpaid, and a call was made shortly after his death. Five of these shares passed to the father of Lee Tek Hong under the Statute of Di.stributions, whose executor and residuary legatee the defendant subsequently became. Two more of these shares the plaintiff sold to the defendant for §1,500, which the plaintiff alleged had never been paid for, and which she claimed together with $1,530 for interest. There were many other transactions between them, but it was this item which was the chief point of contention, and according to the view of the Acting Registrar of Malacca, as expressed by his certificate, the only point at issue. He then proceeded to shew that the balance of account, alleged in his statement of claim to be due, would still be due, whether the offending item was considered satisfied or not. Everard, for the respondent. The Court [Wood, Acting C.J. and PeMereau, J.— Goldney, J. dissenting] considered that appeals on matters of detail, a« accounts, should not be encouraged, but held that the pi-eponder- ating nature of the evidence was such that the Registrar's certificate conld not be supported — they therefore reversed the decision of the Court below and set aside the said certificate. REGINA V. EOK SAH LAL A ftonviction of offences in the altenintiiv is bad, bnt may be amended by the Penano. Court of Appeal. • A person who is shewn to have committed an offence as a principal cannot be GofiDNET, J. convicted as an accessory. So, where a prisoner was shewn to have purchased a girl for the purpose of prosti- tution and kept her in her brothel, but the n^e of the girl not havintj been shewn to satisfy the section [Clause 1, Snb-section 1 of Section 4 of Ordinance 14 of 1888J creating the offence of purchasiufr, the Magistrate convicted the prisoner of receiving [Clause 3] the girl for purpose of prostitution knowing she had been purchased, Held, the conviction could not stand. The purchase and receipt of the girl having taken place prior to that Ordin.ance although the girl still ren\ained with the prisoner while the Ordinance was in force. Held, the " receiving " was an act completed prior to the Ordinance and could not be punishable thereunder. 1S89. Sept. 16. 494 THE SUPREME COURT. th April, 1889, gave notice to the defendant that the shares were being so exchanged, and were not ready to be sent by the mail which had that day arrived. The said share-warrants arrived by M. M. mail steamer Melbourne on the l-Sth May, 1889, the mails carried by which steamer had left London on the 19th April, 1889, and on the same day, the plaintiff through Messrs. Eraser & Co. tendered the same to the defendant, but the defend- ant refused to complete his purchase and to pay the contract price for the shares, whei-eupon this action was brought. STEAITS SETTLEMENTS. 513 Boncddaon, for plaintiff contended, there was nothing fixed as to time ; it was not one of the essentials of the contract. The shares were "expected" to be mailed about end of March. Defendant was informed by letter of 25th April, that warrants were being obtained and he did not reply that he did not want them, or else he might have got scrips. He never told the plaintiff of the mistake, but allowed him to pay money out of his pocket. The former Avere more valuable and saleable in Singapore. Napier, for defendant contended, that the contract was for scrip, and the defendant was not bound to take what he did not want. Warrants were less safe because when lost there was no remedy ; whereas in case of scrip, further transfers could be stopped. As to time, the contract fixed a time — a month was lost by the plaintiff trying to get something for defendant which he did not want, and his market had in meantime fallen. The value of these shares was fluctuating. Singapore was a small market, and the decisions of the Courts were strong in favour of time being essential. He referred to Dolaret v. Rothschild, 1 S. & S. 590, 598. Donaldson, replied. Wood, Acting O.J. As the defendant in this case has contracted for transfer and scrip, he was entitled to what he had bargained for, and cannot be compelled to take a bearer- warrant. Mr. Donaldson argued that by not replying to Messrs. Fraser & Co.'s letter of the 25th April, informing him that the certificates were being exchanged for bearer-warrants, the defend- ant must be taken to have waived this objection. But there is no rule of law like the saying " Silence gives consent" applicable to mercantile contracts, and the omission to reply does not con- stitute a waiver. With regard to the question of time, I hold as a fact that the shares in question, were mining shares of a very fluctuating character, and that a delivery of the documents of title to the shares, on the 15tli of May, when, if they had been mailed on the 29th March, they would have arrived on the 23rd April, is not a delivery within a reasonable time under the terms of the contract, "expected to be mailed about the end of March." In the result, judgment must be given for the defendant with costs. Wood. Ao. C..T. 1889. Fbaseb V. EVSBBTT, EEGINA V. EABIA. A Mahomedan married woman is not exempt from prosecution on a charge o( Penang. bigamy under Section 49i of l\\e Penal Code. Case stated by Pellereati, J. for the consideration of the Court of Appeal, as follows : — " At the May Assizes 1889, Rabia, a Mahomedan mairied woman was put on her trial for committing an offence against Section 494 of the Penal Oode. She pleaded not guilty, but was found guilty by a majority of five to two of the jury with which majority I agi-eed. The jui-y recommended her to mercy on the ground of the possible ignorance under which she might have been of Wood, Aq. C.J. Pel- -j &G0LD-( NKT. ; 1889. J.J. October 17. 514 THE SUPREME CODRT. Wood, this law which seemed never to have been enforced before. Her Counsel' Aq. C.J. Admnn, raised at the ti-ial the point that the Court had no jurisdiction in the Pel- -j matter, as Rabia, her first husband, and the second husband were all Mahome- LEBEATJ f J J (Jans. I reserved the point for the consideration of the Court of Appeal and &GoLD-( • ■ released Rabia on bail." NET, 188!)'. Reqina V. Rabia. The following is the 494fch section of the Penal Code : " 494. Whoever, having a husband or wife living, marries in any case in which such maniage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to tine. Exception: — This section does not extend to any person whose marriage with such husband or wife has been declared void by Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife if such husband or wife at the time of the subsequent marriage shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time, provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contraarticular person either by name or designation — [ per I'eUereaii, & Goldnei/, J.J., Wood, Acting C.J., dissenting.] Ramsamy v. Low, [a.] corrected and approved of. This was an appeal fi-om the decision of A. H. Capper, Esquii-e, Magistrate of Bukit Martajam, dismissing the charge against the prisoner and was reserved by Pellereau, J. for the consideration of tlie Court of Appeal. The charge against the prisoner was for knowingly taking away from their employment two labourers named Narainasami and Suba Naidoo who at the time were under contracts to labour at Prye Estate, in Province Wellesley, for a period of not less than one month in order that they should serve some person unknown within the Colony, to wit : Singapore, and thereby committed an offence under Section 13 of Ordinance 8 of 1877. ' The evidence in the case shewed that the two labourers Avere under contract to serve as such on Prye Estate, Province Wellesley, for a period exceeding one month which contract was still in >.] AiUb p. 396. STRAITS SETTLEMENTS. 525 force; that on 21st August the defendant having met the labonrei's at a theatrical performance on the Estate enticed them to leave the Estate and go with him assuring them that " they could get $12 a month for working on the roads, in Singapore." The Magistrate had dismissed the charge feeling himself bound by the decision of the Supreme Court in the case of Bamsamy v. Low, [a.] as there was no evidence that the labourers were enticed to serve any particular person. The appeal was reserved by Pellereau, J. with the view of obtaining the opinion of this Court on the correctness of the decision in Bamsamy v. Xow. The appeal now came on for hearing before the full Court of Appeal. Presgrave, for appellant contended, that the word " any " shewed that it was immaterial who the person wiis for whom the labourer was enticed. The learned Judge in Bamsamy v. Loiv, used the expression " another person " nob " any other person", the latter expression was more general. It was sufficient if the Magistrate was satisfied that it was for another service ; that is service other than that of the employer. [Pellere'iu, J. suggested that the words "any other pei'son " meant other than the person enticing, and so meant the employer, that is that the words referred to the person with whom the contract for service was made and not the service of any person for whom the labourer was enticed.] If that was the meaning of the section, then the ruling in Bamsamy v. Low, was clearly wrong, but even if the words "any other person " i-eferred to the person for whom the labourer was being enticed, still there was no necessity for the prosecution to shew who that person was. In Section 498 of the Penal Code the same expi-ession occurred " illicit intercourse vnth any ether person," yet it had never been suggested that it was necessary for the pi'osecution to shew who that person was. There vvas no reason why under this section it was necessary to do so. The employer suffered equal loss whoever the per>!on was for whom the labourer was enticed and why was it necessary then to shew who the person was ? The decision in Bamsamy v. Low, simply nullified the section, — it was not possible to obtain a conviction under it. The intent of the enticer could only be inferred and it was a reasonable inference he meant to get the labourers employed elsewhere in order to obtain gain for himself. [a.] A7it^ p. 396. [*.] Ordinance .3 of 1877, Section 13, is as follows : "Any person who shall know- inffly fieduce or take, or attempt to seduce or take from his service or employment any labourer bound by any contract of service, such contract he'mg for a period of not less than one month to serve any other person whether within or without the Colony, or who shall knowingly take aiiy labourer while so bound into his service or employment, or who shall knowingly harbour or conceal any labourer who shall have absented him- self without leave from the service of such other person to whom he is so bound whether such service is to be performed within or without the Colony, or who shall knowingly retain in his service any labourer bound under any such contract to serve any other person whether within or without the Colony after receiving notice in writing, that such labourer is so bound as aforesaid, shall be liable, on conviction, to a fine not exceeding twenty-five dollars, or to imprisonment which may be of either description for any period not exceeding three months, or to both in respect of each and every suclj livbourer," Wood. Aq. C.J. Pel- -j LKBRAU NET. J 1889. M.J. Bbown V. Venqada- SHELLtJM. 526 THE SUPREME COURT. Wood, A&. C.J. Pel- ~1 LEREAU I & Gold- | NKY. J 1889. J.J. Bbown V. Vengada- SHELLOM. Ross, \_Actin(f Solicitor- General] contended, that the reading of the section suggested by Pellereau, J., could not be the i-ight one as if it was the words " any other person " would follow the words "contract of service" and not the enticing; reading the whole section one could not but see the words referred to some one other than the employer, the labourer and the crimp himself. The decision in liamsamy v. Low was correct in holding some evidence was necessary to shew that the labourer was being taken for somebody else, but possibly it had gone too far in ruling that it was necessary to shew "by name or designation" who that person was. If, for instance, it was shewn the labourer was being enticed in order to serve on an Estate in Singapore, and the employer could state that he had no Estate in Singapore, the only conclu- sion the Magisti'ate could come to was that the crimp enticed the labourer in order that he might serve some " other person," and that was all that was necessary under the section. Presgrave, replied . Goldriey, J. Unfortunately the Court is not unanimous. My judgment is very simple. I think the case should be referred back to the Magistrate for re-hearing, and see if in his opinion there is evidence forthcoming shewing that the labourer was enticed for some other service. I entirely agree with the ruling in Ramsamy v. Low that the mere enticing away of a labourer is not an ofEence under the section ; it must be done in order that the labourer should serve " any other person," but I think that to hold that that other person must be shewn " by name or designa- tion " is too restricted. It is not workable as no crimp would give the name of his employer. The only words I disagree with in the judgment in that case are " by name or designation." With those words struck out, I entirely agree with that case. The mischief arrived at by the section is the enticing in order to serve another — some other person. There must therefore be evidence of that other service, but not so as to specify or identify who the person is. If the Magistrate at the re-hearing should think there is evidence of that other service he should convict. As to the suggestion of my brother Pellereau, I must say it is very taking, but I am not satisfied it is the true reading of the section. Pellereau, J. I made the suggestion that I did at the outset of this case, because I thought it was much better that it should be fully known, but on that suggested reading of the section I do not give any opinion, because we are able to come to some decision while leaving it aside for the present. Eeading the section as my learned brother Wood has read it, that is, that the words " any other person" refer to the enticing away, and not to the contract of service referred to immediately before, I agree with him in everything hesaid inRamsamy v. Low, except as to hisconstructicm of the words " any other person." It is sufficient iu my judgment that the labourer is enticed from the person he is under contract with in order to procure service or employment elsewhere in order that the section should be applied. As Mr. Presgrave has remarked it is not to serve " another person," but " any other person." The word^ used are sufficiently broad to mean anybody STRAITS SETTLEMENTS. 527 NET. 18S9. Bkown Vengada- shelltjm. else, and as this construction is more suited to the general polic}- J^°S^'r of the Ordinance, I adopt it. My learned brother said there mnst p^^_ be some evidence shewing who that person is : the words of the lkeeau section are general, but I think he has restricted them. I think &Gold- it is sufficient that the labourer nas been enticed for the purpose of employment elsewhere than with his lawful employer. I think therefore, the Magistrate was wrong in his decision, but he has followed the ruling of a Judge of this Court, as we follow the decision of higher tribunals, but after the decision we now give he will have to accommodate himself to it. His order as it stands cannot be sustained, and the case must be referred back to him for re-hearing. Wood, Acting C.J. I unfortunately differ from my learned brothers. 1 hold to the opinion I expressed in 1888 in my judg- ment in Rammmy v. Low. I think the general intention of the Ordinance can be called in aid to explain the meaning of an ambiguous section ; but where the language of the section is explicit the policy of the Ordinance has no beai-ing on its con- struction. The words here are explicit — " any other person." I understand by them that a -person must be pointed out. If it intended other " service " or other " place " it would have been so stated. The words are " any other person " and they mnst have their meaning. There is only one mode of arriving at the meaning of the Legislature by adopting the language it has used. " Any other person " can only mean " any other person," and that person must be shewn by evidence before a conviction under this section can be had. I therefore adhere to my former opinion. Order of dismissal quashed. Case remitted to Magistrate for rehearing [a.] J.J. WEE SWEE HIN v. OPIUM FARMER. Section .5 of the Excise Ordinanne 4 of 1870, gives no discretion to tlie 0])iiim Sinsapoee. Farniei- as to wliether he will sii;n an export permit brought to him for signature, or not. He is hound b3' the section to sign it, and his refusal to do so is ground for air Wood, action in damages as at Common Law, and it is not necessary to allege or pi-ove malice Ao. C. J. on liis part under Section 88. 1889. This was an action to recover damages for breach of duty. The statement of claim alleged that the Governor in Council in pursuance of the power given by Sectitm 12 of the Excise Ordi- nance, had prohibited the export of opium to Bengkalis and some other places in Netherlands India, bnt the plaintiff, an Opium Farmer, in Bengkalis, had obtained a concession in his favour to export a certain quantity on certain conditions. The Ordinance, [«.] The following was dictated by Fel/fivr/u, J. to the E«gistrar as the minute to be made in the Appeal Minute Book :— " The ma.iority of the Court do not agree with the ruling of Mr. Justice Wood in the case of Bamsamy v. Thompson Loiv, and they think it not necessary that " any other per.son " should be proved by name or by sucli description as is referred to in that ruling. They consider that tlie words " any other person " are a general expression that no individual need be pointed out, and that it is quite sufficient that the evidence should .satisfy the Magistrate that tha labourer is seduced or taken away to be employed some where else. The Magistrate's order is therefore reversed, and the case remitted to hijii that lie should proceed in accordance witU the present ruling," October 29. 528 THE SUPREME COURT. Wood, An. C..T. 1889. Wke Swek HiN V. Opidm Farmer. Sections, provided that the Opium Farmer, when the permit-form to allow the export of opium was presented to him, should sign it. This the Opium Farmer had declined to do, and damage was sustained by his refusal. The defendant demurred. Everard, for the defendant in support of the demurrer con- tended, the statement of claim disclosed no cause of action ; that by Section 88 of the Excise Ordinance no action could be brought against the Opium Farmer for anything done under it, unless it was alleged and proved that he acted maliciously. T. de M. Braddell for the plaintiff contended, that the Ordi- nance was a disabling law restricting the right of the subject to sue, and as such, should be consti'ued strictly ; that the defendant's refusal was not for " anything done " within Section 88, which did not include an omission of duty or refusal to do what the Ordinance prescribed ; that Section 5 gave the Farmer no discre- tion as to signing or not signing the permit, but was imperative. Wood, Acting C.J., held that if there was a discretion to be exercised by the Farmer, the exercise of it would render an allega- tion of malice necessary ; but Section 5 gave him no discretion, and the action was maintainable as an action of tort at Common Law. Demurrer over-ruled. SYED HASSAN BIN OMAR AL HA DEED Singapore. Wood, Ag. CI. 1889. KHOO SOON TJIO & OES. The law of (general averajjo contribution, which is derived from the Civil Law and has become part of the Common L.iw, imposses on the master of the ship the duty of havins^ the contribution settled, and of collecting the amounts. This duty i.s thrown upon him as agent for the owner, and the owner is liable to a shipper ot floods if the. master neglects his duty. It is not necessary in au action to enforce such duty to shew the nationality of the October 31. ship. The facts of the case sufficiently appear in the judgment. Donaldson, for plaintifE. Bonser, [Attorney-General] and Drew for defendant. Cur. Adv. Vult. November 5th. Wood, Acting C.J. In this case the plaintiff in his statement of claim alleged as follows : — 1. "The plaintiff is a trader carrying on business at Singapore. The defendants were at the date of the occurrences hereinafter mentioned, the registered owners of the steam-sliip Banjermassin. 2. On or about the 30th day of April, 1889, one Shaik Ronbaya bin Moobarah shipped in good order and condition on board the defendant's vessel the Banjermassin, one box of silk cloths [of the kind known as Kain Bate¥\ and which were of the value of §2,131.97 for transport to Singapca-e and consigned to the plaintiff, and the said Shaik Ronbaya then paid a sum pf 10 inapees for sucli transport, STRAITS SETTLEMENTS. 529 3. At the time of paying the freight a bill of lading in respect of the said goods was made out by the defendants or their agent and handed to the said Shaik Ronbaya and which is now in the hands of the plaintifE. By the terms of the said bill of lading the said goods were to be delivered to the plaintiff or his order on the arrival of the ship in Singapore. 4. On the an-ival of the said ship at Singapore the said goods wei'e not delivered to the plaintifE or his order. _ 5. The defendants informed the plaintiff that the said goods had been jettisoned. 6. The defendants obtained from each of the persons liable to contribute to the loss by reason of general average [other than those whose goods were jettisoned] a bond or agreement for the payment of what should be found from such person for his proportion of the loss. 7. It was refeiTed by the parties liable to contribute [other than those whose goods were jettisoned] to Mr. Wm. MacBean of Singapore to adjust the average as between the said ship and the pei-sons liable to contribute. 8. The said Wm. MacBean has made his award or average statement in wi-iting, on or about the 15th day of August, 1889, by which he finds that the plaintiff is entitled to receive the sum of $1,959.20 being $2,131.97 the value of his said goods less S172.77 his share of the loss by jettison. 9. The defendants have taken no steps to collect their average contribu- tions from the persons liable therefor and still refuse to do so. The plaintiff claims [1] $1,959.20, [2] such other relief as the nature of the case may require." To this, the defendants demurred on the ground that there is no obligation in law iipon a ship-owner to collect and sue for the average contributions from the pei-sons liable to pay the same. Two points wei'e raised, [1.] That the statement of claim did not state the nationality of the ship. [2.] The point above adverted to. As to the first I hold, that it is immaterial to state the nationality of the ship, and that it may be assumed, until the contrary is shewn, that the law of England is the law of every other country, and the stateinent of claim may as it stands be held to contain the allegation that so far as relates to the matter before us the law of all countries is the same. The law affecting this case is the law of merchants as affects shipping presumably common to all civilized nations, and it has not been suggested or shewn that the law would be different as regards any other than a British bottom. On the 2nd point referring to the case of Crooks v. Allan, 5 Q; B. Div. 42, I find it laid down by Lush, J., delivering the judgment of the Court, as follows : — " The right to detain for average contributions is derived from the Civil Law which also imposes on the master of the ship the duty of having the contribution settled and of collecting the amounts and this usage has always been substantially in accordance with this law and has become part of the Common Law of the land." If this be a true statement of the law, as I cannot but think that it is, the only question that remains is, whether the duty thus apparently thrown on the master, is thrown upon him as a personal responsibility qua individual or qua servant and agent of the owner ? Upon this point, I entertain no doubt that it is as agent for the owner that the master acts in settling and collec- ting average contribution. In no authority that I can find, is the Wood, Aa.C.J. 1889. Sted Hassan bin Omab al Hadeed r. Khoo Sooi* Tjio & Ors. 530 THE SUPREME COURT. "Wood, Ag.C.J. 1889. Sted Hassan bin Omar al Hadeed V. Khoo Soon Tjio & Obs. matter looked upon in any other light than as the servant of the owner. It may in many cases be clothed with certain powers and be subject to certain liabilities, but he is not the less an agent. See on this point Story on Agency, s. s. 36, •216-223-and when he acts " within the ordinary scope of his powers and duties, he is, in general, personally responsible, as well as the owner, upon all contracts made by him, for such matters as the employment and repairs and supplies of the ship," Ch. X. Section 294. See also s. s. 294 to 300 and 496. In the case of settling and collecting average contributions, it cannot be said that he acts for himself in any way as an indivi- dual, but in the service and for the benefit of the owner whose interest it is that questions of average should be promptly settled, and if we take the judgment cited as a true exposition of the law he acts strictly within the line of his duties, and if tliat be so, it seems to follow that for negligence in the discharge of those duties, his employer, the owner, is liable on the general principle, so long established, that the master is liable for the negfigenceof his servant, when properly employed in the usual course of the master's business, [Blackstone's Com. 429] and for his benefit. Underhill v. Stamp, 1 Ld. Eay. 254 & 3 Ld. Ray. 375. Demurrer over-ruled with costs. Leave to defendant to file statement of defence and to plaintifB to amend his statement of claim by inserting the nation- ality of the ship Bayijermassin. SABAPATHY CHETTY v. SITEA MOOTAE. Tn re SAMEH MOORDEB. Penano. The fact that an Execution-creditor had notice of a Hill of Sale given hy his debtor to a third party for value and to which he [the Execution-creditor] has actually Pel- subscribed as an attesting witness does not prevent him afterwards seizing the leeeau, J. property comprised in such Bill of Sale and insisting that the Bill of Sale is void for 1889. non-registration or defect of registration or otherwise under the Bills of Sale Ordi- nance 12 of 1886. Nov. 6. Edwards v. Edwards, 2 L. R. Ch, Div. 291, followed. A document acknowledging that the debtor had received a sum of money from the claimant for personal property [describing them seriatim] that day sold by him to the claimant, is a "Bill of Sale" within Section 5 of the Bills of Sale Ordinance 12 of 1886. The claimant having SoH<«_/irfe' purchased certain carts and bullocks of the debtor [some two years prior to the execution put in by the plaintiff] immediately on the execution of the Bill of Sale [to which the plaintiff was an attesting witness] took possession of the carts and bullocks, but left them in the same shed adjoining the debtor's house as they had previously been, and took in the debtor as a servant at fixed monthly wages who drove the said carts, conveyed and sold red earth and sand therein as he had previously done, but now for the benefit of the claimant on whose account he paid all the earnings to a Chetty, in liquidation of the claimant's debt to the Chetty on the mortgage of the said carts and bullocks — but the claimant personallj', monthly paid the rent for the said shed to the landlord and took his receipts therefor in his own name. Held, the carts and bullocks were in the " apparent possession " of the debtor and the Bill of Sale not having been registered under the abovementioned Ordinance, the same was void against the plaintiff, the Execution-creditor, notwithstanding he was aware of the purchase by the claimant of the said carts and bullocks. STRAITS SETTLEMENTS. 531 In an Interpleader case when the Court has a doubt as to the bonri fides of the sale by the debtor to the claimant, which sale is alleged by the Execution-creditor to be fraudulent, the Court is bound to decide in favour of the claimant, as the person alleging fraud is bound to prove it. This was an Interpleader. The facts giving rise to it were as follows : the defendant Sitra Mootar was in 1887 indebted to the plaintiff on the mortgage of certain carts and bullocks which the plaintiff was about to seize and sell under his mortgage. To prevent such seizure and sale, the defendant sold the said carts and bullocks to the claimant Sameh Moordee by private contract, and the money obtained by such sale was paid in satisfaction of the plaintiff's said mortgage. At the time the claimant paid his purchase-money for the carts and bullocks the defendant granted him a document, which was as follows : — PENAifG, 4ih August, 1887. Received from Sameli Moordee, the sum of iS300 for three white bullocks, one brown cow, one white cow, one black calf, two red calves, two bullock carts, two copper- chatties, and one wooden box, sold by me to him this day. Witness .- SABAPATHY OHETTY. SITRA MOOTAR. The plaintiff attested the execution of this document, was present at the whole transaction and well knew thereof. This document was never registered under the Bills of Sale Ordinance 12 of 1886. "Immediately after his purchase the claimant took possession of the property; but he left them in the same shed [adjoining the house of the said debtor] as they were when they were the property of the said debtor. The claimant also took the debtor in as his servant at wages of $6 per month, and then got the debtor to tend the carts and bullocks, to drive them, to procure and carry red. earth and sand, and to sell the same and collect the proceeds thereof, and to pay the same towards liquidating the claimant's debt to one Narainan Ohetty to whom the carts and bullocks had been mortgaged by the claimant ; the defendant accordingly so acted and in fact, did exactly as he had done prior to the sale to the claimant. The claimant however, paid the monthly rent for the said shed to the landlord and regularly obtained receipts therefor in his own name. ^'^Phe defendant was indebted to the plaintiff in another sum of money as surety for one Supaya and the plaintiff having in September, 1889, got judgment therefor against both Supaya and the defendant, a day or two after issued a _/i. /a thereon and seized the aforesaid carts and bullocks which were still then in the same shed and in the possession of the defendant. The claimant put in a claim to them under the afore- said document of 4th August, 1887, and the present Interpleader was the i-esult. The plaintiff alleged the whole transaction between the defendant and claimant was merely colourable and there was no hand fide sale by the former to the latter. Certain facts were elicited in cross-examination by the plaintiff which threw suspicion on the bond fides of the alleged sale. Pel- LEKEAtr, J. 1889. Sabapatht Chettt V. Sitka MOOTAB. In re Sambh MOOBDSE. 532 THE SUPREME COURT. Pel- LEBEAU, J. 1889. Sabapatht Chetty V. Sia?BA MOOTAB. In re Saueh MOOBDGB. ^ Van Someren, for the Execution-creditor [plaintiff] con- tended, that there was no bond fide sale by the defendant to the claimant, but even if there was, the claimant must fail. The document of 4th August was a " Bill of Sale " within the meaning of Section 5 [a.] of the Bills of Sale Ordinance 12 of 188t!. North Central Wagon Co. v. Manchester, Sheffield and Lincolnshire Railway Co., 35 L. R. Ch. Div. 191 ; Haydon v. Brown, 69 L. T. [N. S.] 330, 810, s. c. W. N. 1888, 49. It was also clearly an " assignment " or " transfer " within Section 5. There was no evidence that there had been a sale apart from the document. Its execution and the payment of the purchase-money took place at one time, and delivery of possession followed immediately after. Being a " Bill of Sale", it was void for want of registration under Section 6 [fo.] of the Ordinance. The property according to the facts disclosed in evidence was in the " apparent possession " of the defendant within Sections [c] — Pickardv. Marriage, 1 L. R. Ex. Div. 364; Gibbons V. Hickson, 55 L. J. Q. B. [N. S.] 119 — possession having continued to appear to the world the same as before. The fact that the Execution-creditor had notice of the Bill of Sale and could not be injured b}' its non-registration did not prevent his relying on the Bills of Sale Ordinance, to invalidate the Bill of Sale on the ground of non-registration. Edwards v. Edwards, 2L. R. Ch. Div. 291. [Pellereau, J. I was inclined to think the fact that the Exe- cution-creditor had notice of the Bill of Sale prevented his insisting on its non-registration as an objection, but the case of Edwards v. Edwards, is certainly conclusive the other way.] Adams, for the claimant contended, the sale was bond fide and the property was not in the " apparent possession " of the grantor the defendant ; the Execution-creditor knew his possession was that of the claimant — the landlord also new it. The claimant paid the defendant his wages monthly and the landlord his rent, and took receipts therefor in his own name. These facts did not appear in Picka,rd v. Marriage or Gibbons v. Hickson, supra. Pellereau, J. I have great doubts as to the boiid fides of the purchase by the claimant, and what gives rise to that doubt is the [«.J " Bill of Sale " includes Bills of Sale, assignments, transfers, declarations of trust without transfer, inventories of goods with receipt thereto attached, or receipt tor purchase-money of goods and other assurances of personal chattels " [S] " Every Bill of Sale shall be duly attested and shall be registered under this Ordinance within three clear days after the execution thereof otherwise the following consequences shall ensue [that is to say] : — In the case of any other Bill of Sale it shall as against all Sheriff's officers and other persons seizing any chattels comprised in such Bill of Sale in the execution of any process of any Court authorising the seizure of the chattels of the person by whom or of whose chattels such bill has been made, and also as against every person on whose behalf such process shall hav« been issued be deemed fraudulent and void so far as regards the property in or right to the possession of any chattels comprised in such Bill of Sale which at or after the time of executing such process and after the expiration of such three days are in the possession or apparent possession of the person making such Bill of Sale " [r.] " Personal chattels shall be deemed to be in the " apparent possession " of the person making or giving a Bill of Sale so long as they remain, or are in, or upon any house, warehouse, shop, building, vessel, works, yard, land, or other premises occupied by him or are used and enjoyed by him in any place whatsoever notwithstanding that formal possession thereof may have been taken or given by or to any other person," STRAITS SETTLEMENTS. 533 after conduct of the parties in dealing with the property, and the payments to Narainan Chetty, the present mortgagee, always by the defendant, and an account being kept in reference to this property in the name of the claimant separate from the general account the Chetty had with the claimant. The Execution- creditor however, is the person who alleges fraud in the purchase, and he has to prove it. Having only a doubt as to the bond fides of the sale and purchase, I must decide on that point against the Execution-creditor and in favour of the claimant. I have no doubt however, that the document of 4th August, 1887, is a " Bill of Sale " within the meaning of the Bills of Sale Ordinance, and I am equally clear that on the evidence and law the pi-operty was in the " apparent possession " of the grantor, the defendant. The mere fact of the claimant having paid the rent for the shed to the landlord and taken the receipts therefor in his name is not sufficient to prevent the property being in the " apparent posses- sion " of the grantor. What is necessary is, that to the public, the world at large, it should appear that there had been a change of possession. Under the circumstances, the Bill of Sale not having been, registered, is void against the Execution-creditor. Judgment will therefore be entered for him with costs. Judgment for Execution-creditor, with costs. SHERIFA SHAIKA v. HAUGHTON. The defendant, as Collector of Land E«venue, under Ordinance 4 of 1886, caused certain lands and house of the plaintiff to be attached for arrears of rent. Sometime before the attachment, he had made search in the Land Office to find out who was the owner of the lands and house, but he made no further search immediately before proceeding to a sale. In the interval, the plaintiff, the owner, had registered her title, but she was not aware the defendant intended selling the property. The owner not having been found, the defendant sold the property. Held, [reversing the judgment of the Court below] that he was not guilty of negligence. Seld also, that as the owner could not be found, the defendant was not guilty of negligence for not addressing the notice to her, but to the " present occupier " of the house. Seld also, that as the owner could not be discovered, it was not possible to discover her " last residence,'' and therefore, there was no negligence on the part of the defendant in not putting up the notice [under Section 5 of the above Ordinance and Kule III. made in pursuance of the Ordinance] on such residence, but Meld further [reversing the judgment of the Court below] that " his house" mentioned in Rule III. was not the last residence of the owner, but the house with reference to which the claim for arrears is made, and a notice placarded on that house was a notice " published in the prescribed manner " within Section 5. It is not sufficient in a memorandum of appeal simply to state that the appeal is for " wrong determination in point of law," but the grounds of the appeal should be set forth. The nature of this case, the facts giving rise to it, and argu- ments of Counsel, fully appear in the judgment of the Ceiirt. The case was heard on the 6th and 7th of November, and on this day. Donaldson, [Bailey with him] for plaintiff. Bonser, [Attorney-General], W. Nanson with him, for defendant. Cur. Adv. VuU. Pel- LEBEAT7, J. 1889. S.VBAPATHr Chettt L\ SiTBA. MoOTAE. Ill re Sameh . ,MoOED»E. Singapore. Wood, As. C.J. 1889. Nov. 8. S34 THE SUPHEMB OOUHT. Wood, Ag. C.J. ]8S9. Shebifa Shaika V. Haughton. 18tl) November. Wood, Acting C.J. In this case Sherifa Sliaika sues the defendant, the Collector of Land Revenue for the Settlement of Singapore, for the improper sale by him of a certain house and lot belonging to her on account of arrears of rent and some expenses incident thereto amounting to $3. This sale the defendant denies was improperly made. The facts of the case, as found by me, or admitted by the parties, are as follows: — The plaintiff, Sherifa Shaika, a resident in Palembang, in Java, the vfife of one Syed Abdullah Al Jaffree, the latter a person well-known in Singapore, became the purchaser on 22nd July, 1885, for the sum of ^2,025, of a piece of land with a house thereon No. 10, Upper Macao Street, Singapore, which land was held under a lease from the East India Company from January 1st, 1843, for 99 years, at a yearly rent of •! 1.50, the original lessee being one Syed Maistry. This lease was not registered in the Land Office until December 16th, 1887. In June, 1886, "The Land Revenue Collection Ordinance 4 of 1886" was passed. By this Ordinance, Section 4, it is enacted that — " Every sum now due or payalDle, or wliioli shall hereafter become due and payable to the Crown on account of rent of, or assessment on land may be recovered in the manner hereinafter provided." By Section 6. " When any such sum has fallen due and a written notice of demand for it has been served on ami one of the persovs liable for it or published in the prescribed manner, and fifteen days, or such further time as naay have been allowed by the Collector of Land Revenue of the Settlement or district in which the land in respect of which the sum is due is situated [who is herein- aiter called " the Collector of Land Revenue "] have elapsed from such service or publication without such sum having been paid or satisfied such sum shall he deemed to be an arrear and every person liable for it ahall be deemed to be a defaulter." By Section 6. [1.] " With a view to the recovery of an arrear the Collector of Land Revenue may issue an attachment and may seize by vu-tue thereof any personal property of the defaulter and may also seize any effects or any crops to whomsoever belonging which may be found on the land in respect of which the arrear is due and may after the prescribed notice sell the same by public auction in the prescribed manner. [2.] The attachment may be made by an officer deputed by the Collector of Land Revenue for the purpose who shall publicly notify the attachment in the prescribed manner and shall take an inventory of the propei-ty attached. Such officer shall be deemed to be a public servant within the meaning of the Penal Code." By Section 7. " If the arrear cannot be recovered in the manner aforesaid the Collector of Land Revenue may proceed against the land in respect of which the arrear has accrued as next hereinafter provided." By Section 8. [l.J '• The Collector of Land Revenue may by notice of sale [to be served or published m the prescribed manner] declare his intention of selling at the STRAITS SETTLEMENTS. 535 expiration of three months from the date of such notice of sale the land in respect of which the arrear has accrued, and if at the expiration of such period such arrear has not been paid or satisfied the Collector of Land Revenue may sell by public auction the whole of such land or such portion thereot, or such interest therein, as he may deem sufficient, P-J . The proceeds of such sale shall be applied in the first place in satisfaction of the arrear together with interest thereon at the rate of eight per cent, per annum and costs, and in the event of there being any surplus remaining the Collector of Land Revenue shall if he is satisfied as to the right of any person claiming such surplus pay the amount thereof to such person, and if he is not so satisfied shall hold the amount in trust for the person who may ultimately succeed in due course of law in estabUshine his title thereto." ^ By Section 11. '• If any person having any interest in any property liable to be sold under the provisions of this Ordinance at any time previous to such sale tenders to the Collector of Land Revenue the arrear with interest and costs the Collector of Land Revenue shall thereupon desist from all further proceedings in respect thereof." By Section 14. " The Governor in Council may, from time to time make, and when made, vary and revoke rules for all or any of the purposes following, viz. : — [a.J To determine the costs and fees payable in respect of proceedings under this Ordinance ; [6.] To prescribe the mode of sei-vice or publication of notices issued under this Ordinance ; [c] Generally to carry out the provisions of this Ordinance in relation to any matters whether similar or not to those abovementioned as to which it may be expedient to make rules." Acting under tlie powers conferred by Section 14 of the Ordinance abovementioned, Rules were made by the Governor in Council on June 30, 1886, of which the following are those material to the consideration of this case : — Wood, Ag. C.J. 1889. Shebifa Shaika V. H.4.DGHT0N. 1. The Collector of Land Revenue shall prepare or cause to be prepared for every division or sub-division of his district or Settlement, a separate Rent-roll containing the following details : — [a.J The number of allotment, or of the document creating title, of every holding liable, to rent or assessment. [6.J The name of the person liable for the payment of such rent or assessment. [c] The sum payable. 2. He shall cause to be prepared annually from such Rent-rolls general notices, sub- division by sub-division, in the form pi-escribed in Schedule A. specifying the name of each person from whom revenue is due and the amount due by him. The notice shall be affixed to the house of the headman, or to a mosque, or other conspicuous building in the village. 3. If a person liable to pay any sums due under the said Ordinance cannot be found, the notice required by Section 6 of the Ordinance shall be published by affixing a copy in the form prescribed in Schedule B. to his house, or to a mosque, or other conspicuous building in the town or village in which such person last resided. 6. Under Section 6 of the Ordinance the Collector of Land Revenue may at his own instance, or on the oral application of a notice server, head- man, or other officer of his department, issue an attachment in hefoi'm prescribed in Schedule D, 5^6 I'HE Supreme couM. Wood, Ag. C.J. 1889. Sherifa Shaika V. Haughton. 7. The baUiff or other officer to whom the attachment is addressed shall notify the same by affixing a copy thereof to a conspicuous part of the premises in which the seizm-e is effected. 8. The attachment of moveable property shall be executed by actual seizure, and an inventory shall forthwith be taken of such property by the attaching officer, who shall keep the property in his own custody, or in the custody of one of his subordinates and shall be responsible for the safety thereof. 9. He shall not enter any dwelling-house after sunset or before sunrise, nor shall break open the outer door of a dwelling-house. But when he has duly gained access to any dwelling-house he may unfasten or break open the door of any i-oom in which he has reij,son to believe there is any property liable to attachment. 12. On the expiration of ten days, if no good cause to the contrary has been shewn and the arrear and costs are still unpaid, the property may be sold. 18. The notice under Section 8 of the Ordinance shall be in the form in Schedule F. and shall be seiTed personally on the person named therein or, if that be impracticable, shall be published, by beat of gong or other customary manner, at some place on or adjacent to the land to be sold. A copy of the notice shall also be posted up on the land itself, and at a mosque, or other public place in the vicinity. 23. The Collector of Land Revenue may, if he think it desirable, adver- tise in such manner as he shall think fit, any sale held under these Rules, and any expenses incurred in so doing shall be costs of the sale. 25. On payment of the pnrohase-money, the purchaser shall receive from the Collector of Land Revenue a conveyance of the land or interest in land, as the case may be, sold to him, and he shall forthwith be put in possession of the purchased property, the aid of the Police being afforded if needful." In 1886 a Rent-roll was made of rents due in 1885, in which, the following entry appears : — No. in general register. Lessee. Annual rent. Amount received. 958 M. K. Raman Chetty ... ^1.50 $1.50 The rent for this year thus appears to have been paid, and was in fact paid by one Sultan, who then occupied the premises, or by some one else. Notice of demand of rent had been made, and as to this it is remarkable that the notice of demand served on the occupier of the premises and the counterfoil contains in the space left for the name of the owner or occupier, the name of Mana Kana Raman Chetty struck out, and the words added " sold to Syed Abdullah Al JafBree." The Rent-roll for rents due in 1886 was duly made in 1887, and in this, the following entry appears : — No. in general registry. Lessee. Annual rent. Amoimt received in 1886. Remarks. 958 M. K. Raman Chetty [struck out]. S1.60 51.60 Sultan. ST&AiTS SETTLEMENTS. §3? The rent for this year thus appears to have been paid, and was in fact paid by Sultan, the occupier of the premises. Notice of demand of rent was made, and on the face of the notice and on the counterfoil on the space for owner or present occupier appears the word " Sultan," who was in fact the occupier. After this no rent was paid and there beinjr then no occupier of the house and land notice of demand was posted on the house for the rent due in 1887, and an attachment issued on which no effectn were seized. As to this latter part it may be taken as a fuct that although an entry was made into the premises no effects were then found of any applicable value. In subsequent Rent-rolls the name of Sultan is retained as the person liable either as owner or occupier. By notifications in the Government Gazette in December, 1886, January, 1887, December, 1887, and January, 1888, under the hand of the defendant as Collector of Land Revenue, all lease-holders of Crown Lands were reminded that for default of payment of rents due proceedings would be taken under Ordinance 4 of 1886, for the recoverj' of quit-rents in ari-ear, which notifications were posted up in conspicuous places and after advertisement of the intention of the defendant or Collector of Land Revenue, dated 24th .January, 1888, to sell among others the land and lot in question on the 7th of May, 1889, at the Land Office, the land and house were eventually sold by Mr. Dunlop, after some bidding, for |840. In this advertisement in the Government Gazette of the intended sale, the land is described as — Wood, Aa. C.J. 1889. Sheeifa Shaika V. Hauqhton. Name of Lessee. Lease No. Situation. Siilta,Ti. 958, 16th June, 1846. Upper Macao Street. As to this it is to be remarked that the name of Sultan is incorrectly entered as the lessee. The lease is described as of the date of 16th June, 1846, instead of 1st January, 1843, and no number is given to the house. Before the sale, copies of the advertisement in the Gazette were distributed by the auctioneer among many persons whom he knew to be purchasers of land at land sales, and advertisements were put into the local papers of the intended sales, but no hand-bills in native languages were generally distributed, as was shewn to be usual in ordinary land sales by auction. Tor the plaintiff it was urged that the defendant as Collector of Land Revenue had taken, sold, and handed over to the pur- chaser the land of the plaintiff when the land was not liable to sale, and was, when sold, sold without the proper and usual advertisement. The land it was contended could not be sold at all unless under certain specific circumstances, which circum- stances had not occurred, and that the defendant had neglected 538 THE SITPEEME COURT. Wood, Aa. C J. 1889. Sheetfa Shaika V. Hacghton. reasonable opportunities of knowing who the persons were who were owners, or liable for the payment of rent. The law affecting the matter is contained in the Ordinance 4 of 1886, and in the Rules made by its authority and without the sanction of their combined provisions no sale of the plaintiff's lot could legally be made. Bj' the Ordinance the defendant as Collector of Land Revenue is the person charged with the duty of carrying out the provisions of the Ordinance and Rnles. And in doing so, he has seriously overlooked the rights of the plaintiff. By the Ordinance, Section 5 : " Wlien any suiii has fallen due and a written notice of demand for it has been made, on any one of the persons liable or published in the prescribed manner and 15 days or more have elapsed from such service or publication without such sum having been paid or satisfied sacli sum shall be deemed to be mi arrear and every person liable for it shall be deemed to be a defaulter.." Then follow provisions for proceeding against the defaulter for the recovery of the arrear, but it is obvious that it is only in the case of an "arrear" thus technically defined that such pro- ceeding can be had. Here there was no arrear, the persons liable for the rent are only the original lessee, and the assignee of the lessee, and no notice of demand was ever served upon any one of these. Nor was any such notice of demand "published in the prescribed manner." The prescribed manner is given in Rule III., as follows : — " If a person liable to pay any sums due under the said Ordinance [3J of 1886 cannot be fmncl the notice required by Section 5 of the Ordinance shall be published by affixing a copy in the form prescribed in Schedule B. to his house or to a mosque or other conspicuous building in the town or village in which such person last resided." Here "found" means "discovered," and not merely found within the Colony, and "his house" in the singular number and coupled with the words of residence which follow must mean his " dwelling-house " and not any house which happens to be his property, as the house in question. As a fact, the person liable was never looked for, and defendant seems to have been satisfied without any inquiry that Sultan was the owner. Abundant means existed to enable the defendant to discover the person liable. In 1886 he seems to have had notice from some quarter or another that the land had been sold to Syed Abdullah the husband of the plaintiff and although this was not so, yet had Syed Abdullah, a well-known person in Singapore, been communicated with, the true owner, his wife, could have been ascertained. Then although the land was not registered until December, 1887, yet had the defendant made enquiries at the Land OiHce any time between the time of registration by plaintiff in December, 1887, and the time of the sale he could have found who was the' person liable for the rent, a precaution which no person with suoli a power of sale as possessed by the defendant should reasonably have abstained from making before proceeding to the extreme resource of selling STRAITS SETTLEMENTS. 53& land for uupayment of quit-rent of so small an amount as $3, and again by making enquiries of the Municipal authorities it could have been ascertained who as owner hud paid assessments. Thus no reasonable effort was made to discover the person liable for piyment of lent. But had reasonable efPorfc been mnde and the real owner or person liable not have been " found out," or not " found within the Colony," no notice of demand had ever been seived in the prescribed manner by affixing it to the door of his or her house or to any conspicuous place in the place where he or she last resided. It is obvious that the rules did not meet such a case as this. But that is no fault of the plaintiff, and it is enough to say that the rent is not an " arrear " unless the prescribed rules are followed. But even supposing that the property was liable to sale, defendant has been negligent in not propeily advertising the property. The spirit of the Ordinance and its Rules is that the owner should be ascertained, in order that he may come forward even at the last moment and by paying the amount of rent under Section 11 of the Ordinance stops the sale. In the defendant's advertisement in the Government Gazette, [an advertisement adopted by the auctioneer,] the premises are misdescribed, or imperfectly described. The No. of the House is not given as it should have been, and the name of the lessee is incorrectly stated to be "Sultan" and the date of the lease is also incorrectly stated as of the 1 6tli of June, 1846, instead of 1st of June, 1843, an error which is calculateil to mislead an agent or friend of the plaintiff who might read such advertisement of sale; then again, the property was not fairly and reasonably advertised by issuing as is usual in order to attract purchasers — -advertisement in the native languages and it is unreasonable to suppose that the defendant as Land Collector is justified in selling except as others would sell and that as measure of damages the value as put upon the premises by Mr. Crane $1,500 may fairly be taken to be its true value at the time of the sale. A further objection is that the defendant most unnecessarily put up the whole lot for sale instead of such an interest in the land lis would have realised the small sum of igS with it may be some small additional sum for the expenses of the sale. By Section 8, Sub-section 1 of the Ordinance, " The Collector of Land may sell by public auction the whole of such land or such portion thereof, or such interest therein, as he may deem sufficient." In this case it is obvious that although it may be hardly reason- able to sell a portion of a house, yet a minutely small interest in the house say a right to occupy for a month or two might easily have been disposed of without resorting to the extreme measure of a sale of the entire lot. At the close of the case for the plaintiff it was urged for the defendant that there was no case, inasmuch as a mere sale without delivery of possession of another person's property was not a wrong, but as I was of opinion that the pleading evidently meant to imply what was not in fact denied, that the defendant was charged with the delivery as well as the sale and in fact Wood, Ag. C.J. 18S9. Sherifa Shaika V. Hacghton. 540 THE SUPREME OOUM. Wood, Aa. C.J. 18S9. Shehifa Shaika. V. Hauqhton. delivered to the purchaser and as in case it were not so, I would allow an amendment of the pleading to meet this difficulty, this objection was withdrawn. For the defendant in answer to the case it was contended, that the plaintiff was herself guilty of negligence. Being resident abroad her agept was negligent in not properly looking after the property and in not paying rent. That the defendant had not neglected his duty in serving the proper notices. That the plaintiff should have properly and duly registered herself before the new Registration Ordinance which rendered registration in a manner compulsory, and that defendant by his officer had made an inquiry at the Land Office in October, 1887. That the defendant had by himself or his agents made reasonable inquiries as to the owner or person liable. That such person could not be found, and was in fact, resident out of the jurisdiction, and, that nothing found, the defendant was at liberty to sell. As to the provision for sales "found" means "found within the Colony." And thenotices having been affixed to her house, i.e., the house in question, were properly served and the rent became an arrear. That there was in fact no negligence in the performance of anything necessary to be done before the sale. In the sale itself no negligence was apparent. The defendant did advertise in a proper manner so as to attract purchasers, that by Rule 23, he has authority to advertise in such manner as he shall think fit, and the publishing of notices in the native languages is not, in the case of a Government sale, of practical consequence, due publicity having been given to the sale. Extreme rigour of judgment in the matter of such a sale is not exacted as in cases of a mortgagee with a power of sale a case which is analogous to the present, and the errors in descrip-- tion of the premises are immaterial. It may be reasonably held that the land and house were sold for their true value, and the plaintiff has no reason for complaint. It was further argued that the defendant is not himself answerable for the errors of his subordinates. He being a public officer is acting in the discharge of a public duty, and who in the discharge of such duties must necessarily employ subordinate officers. In this case, DeSouza, the bailiff, states that it was his duty to make enquiries and may have failed to do so, and he, if anyone, is the person liable, not the defendant. This principle is established by many cases referred to in the text of Story on Agency, 9th Ed. [1888,] pages 390-2, para. 319, 319a. in which the cases of postmasters and others are specifically dealt with. In this case I have little hesitation in finding for the plaintiff. Dealing with the last point first, I think the defendant is personally and primarily liable for any negligence in proceeding to the sale and to some extent in the mode of selling. Looking at the Ordinance and the Rules, it is obvious that the defendant, as Collector of Land Revenue, is the person upon whom devolves the duty of selling land for rent in arrear and upon him rests the responsibility of satisfying himself that all these things have happened which enable him so to act. It may be true that had a bailiff disobeyed his order in not affixing or serving a notice STEAITS SETTLEMENTS. 541 ■which he was ordered or which it was his duty to serve, such person might have been the person liable and not defendant, but that is not the case in the present ease. The defendant was not called to give evidence in his own behalf, and DeSouza, his bailiff, although he says it was his duty to make inquiries generally, and ,did make inquiries in October, 1887, at the Land Office as to who was the owner, and generally in the neighbourhood, and did not att wisely in not making inquiries of the Municipal Commissioners although the idea crossed his mind, yet there is no evidence to shew that he was ever specifically ordered so to do. What he did do was no doubt in the interests of the Office of the Land Collec- tor, but was no part of his regular assigned duty. Nor do I think it could be assumed to be so, nor that the defendant as Land Collector, could reasonably so order him. When a public duty is clearly thrown upon any one public officer it is obvious that he cannot evade the due performance of that duty by forcing upon another the performance of a duty which personally devolves on himself. The text of Story, in p. 391, para. 319, is, that "public officers are not respon- sible for the negligence of their sub-agents properly employed by and under them in the discharge of their official duties," and again in page 392, para. 319a. that "public officers may be responsible for the negligence of their sub-agents in not exercising a responsible supervision over their acts and doings." As before stated the duty of proceeding to a sale is a duty cast upon the defendant as Land Collector, and even supposing that he was justified in delegating the duty of making proper inquiries as to the person liable for rent to his bailiff, he was at least bound to see that his bailiff had effectively performed his duties. But as a fact, I find that he did not delegate to such bailiff or to any one else the duty of making all necessary inquiries. That the rent was not in " arrear " I think is clear, and that unless it was in "arrear" no sale could be legally had. I think it clear that the real owner or person liable might have been easily and reasonably discovered before the sale, and that the reasonable duty was cast upon the defendant to ascertain from the Land Registry Office and the Municipal Books who was the person liable, no less than by following up the clue given by the knowledge to be obtained from the notice of demand of rent counterfoil, in which it is stated that the land had been sold to Syed Abdullah Al Jaffree, the husband of the plaintiff. I think this ought to have been done, in particular the inquiry, and repeated at the Land Office on the eve of the sale, and that the inquiry in October, 1887, of the Land Registry Office was not sufficient; this also I find as matter of fact. As matter of law, I hold that in the proper construction of Rule 3 the "person liable" means the "lessee or his assignee," and not the mere occupier; that "found" means "discovered " or "found out Wood, Ao. C.J. 1889 ShI'BIFA Shaika Haughton. found " means and not "found in the Colony;" that "his singular and followed as it is by words referring house " in the to residence must mean "dwelling-house," and not any house that may happen to be his, or " the house intended to be sold;" that 542 THE SUPREME COURT. Wood, Ag. C.J. 1889. Sheeifa Shaika the notice having to be affixed in the way prescribed, if that pre- scription fails in meeting the case of the plaintiff in this action there is no proper affixing of tlie notice, and that thus the rent is not in "arrear." On the question of the negligence of the plaintiff, seeing the HAnsHTosr. origin of the loss to her, I must say that the Ordinance was passed to meet the case of tenants who either wilfully or negligently suffer their rent to fall into arrear, and the power of sale given to theCi)llector necessarily presupposes sach wilfulness or negligence. As to the manner of conducting the sale, I think also, as matter of fact, that there was negligence in not properly describing the property to be sold in the Government Gazette and subsequent advertisements. The Ordinance very obviously and very justlj' aims at preserving the rights of owners who may even at the last moment come in, and by paying the rent stop the sale. An advertisement of the sale of land for rent due to Government should be such as, if seen by persons interested or their friends might inform them of the intended sale, a.nd it is quite probable that had the No. of the house been stated and the name of the lessee and the date of the lease been truly stated, they would have had this result. Again, I think that the effect of Rule 23 is not to give to the Land Collector the right to advertise as little as he pleases, but only to enable him to retain the expenses of advertise- ment, and I think that it was not reasonable to sell, as this lot was sold without advertisement in the native languages, a pro- ceeding which is shewn to be usual in ordinary sales. As to the responsibility of the defendant however for this latter act of omission on the part of the auctioneer, I doubt if the defendant is liable. With regard to the argument of the plaintiff that the defendant might have sold an interest in the land and not the entire lot, I am of opinion that the defendant might well have done so, and as a discretion seems to be thrown upon him to sell Only such an interest "as he may deem sufficient," he has not reasonably exercised such discretion in so doing. Such a sale of a small intei'est in the land might have been troublesome in its details, and involved some small expense, but would have been in my judgment feasible. Although giving judgment against the defendant, I do not by any means wish to impute to him any grave blame. The exercise of the powers conferred upon him by the Ordinance and the Rules above referred to require at his hand much of the knowledge and skill of a practised Lawyer in acting on the provisions of a new and somewhat involved branch of the law, and that of an experienced Solicitor in duly carrying out a power of sale. Still it must not be lost sight of that the spirit of the Ordinance and the Rules is obviously to enable the Grown to realise its rents with the least possible amount of loss to the tenant, and that it is the duty of the officer exercising the power of sale to do so with much circumspection and care not only in the interests of the owner, but also in that of the Grown, whose credit would suffer if it were supposed to be indifferent to the interests of its STRAITS SETTLEMENTS. 543 tenants. Holding, however, that the defendant is liable, I have to consider the question of damages, and looking to the evidence of Mr. Crane and Mr. Dunlop, the price given for the land in 1885, the number of years which the lease has to run, the bad state of repair of the house, with the difficulty of finding a tenant and the value of the land without the house, I estimate the loss to the plaintiff at the sum of $1,250. Judgment for plaintiff f 07- the amount, with costs. 'J'he defendant appealed, and the Appeal was heai'd on the 20th and 21st March, 1890. Bonser, [Attorney-General] and Nanson for appellant. Bailey, for the respondent. O'Malley, C.J. said they had made up their minds upon the case and he was of opinion that the judgment should be reversed as no cause of action has been established. In his opinion the defendant complied substantially with the requirements of the Ordinance. It was contended for the plaintifp that he [the Collec- tor] failed in his duty in several respects, and thereby deprived the plaintiff of the opportunity of preserving her property. The first complaint was that no due and proper search was made for the plaintiff. He would say, that the proper search in the first instance would be at the Deed office, where search was made, and there was nothing there to indicate the residence of the plaintiff or any relation of hers, and there was nothing to shew that reasonable means were not taken to ascertain the plaintiff or her agent, and he thought it must be taken that reasonable means were taken to search for the plaintiff. — It was then alleged that having failed to find the plaintiff, the Collector ought to have served or published a notice under Section 5 and Rule 3. The Collector did publish a notice, but it was alleged that the notice was bad because it was not addressed to the plaintiff, but to the present occupier ; but if the plaintiff conld not be found, and it could not be found who was the assignee, then he did not think that it could be called negligence. The next best thing was to serve a notice on the only person who allowed himself to be recognised as a lessee or present occupier. — Then it was urged, . that the notice was not put up in the right place, and he would be inclined to say, that there was a great deal in Mr. Bailey's contention as regards the words "person's List residence," Rule 3. The last residence of the lessee could not be found ; of course, it would have been impossible therefore to have complied with a provision of that kind, but he did not think that if they took Section 5 and Rule 3, that it was intended that you >nust serve this notice or publish this notice, at the place or residence of the owner, but at the house with reference to which the claim was made, and it was so published in this instance. These were the grounds upon which it was contended that the Land Officer had exceeded his duties, but he did not think that there had been any negligence on the part of the Land Officer. There was nothing to shew that be could have done anything more substantially for the purpose, O'Mallbt C.J. Pel- j LEEEAU I & Gold- I NET. ' 1890. J.J. SUERIFA Shaika V. Haughton. 544 THE SUPREME COURT. O'Mallet, It was said he might have searched the register at the last moment, p ^•''^ but he did not see that this was the duty of the public officer LEREAu 1 T under these circumstances ; there was reason.able diligence, — if &Goi.D-[ ■■ " you have nothing to define reasonable diligence, you must judge '"'is'tn what is reasonable diligence. As regarded making the auctioneer " liable, the auctioneer was appointed by the Government. The Sheripa judgment of the Court below would be reversed, with costs. Shaika Pellereau and Goldney, J.J., concurred. Hauohton. Judgment reversed. SIMONS V. TEO GUAN TYE. Singapore ^^ * person having actual knowledge — not mere suspicion — thiit a Company has ' suspended payment, sell shares therein to another knowing that other was ignorant Goldney J "^ ^^^^ ^"''^^ *'''^ ^^^ disclosing it to him, but representing that the financial position of ^ggy ' ' the Company was sound and that large profits would accrue from a purchase of ]_' such shares, the sale will be set aside by the Conrt as obtained by fraud and November 13, misrepresentation. Suit for specific performance of a contract for the purchase of certain shares in the late Rawang Tin Mining Co., Limited, or damages for breach of contract. In his statement of claim the plaintiff alleged that on the 26th Atigust, 1889, the plaintiff, through his broker, Charles Schomburgh, sold to the defendant 50 shares in the Rawang Tin Mining Company, Limited, at $7 per share, delivery to be made on the 28th August, 1889. The contract for the said sale was in writing, and signed by the defendant. On the 28th August, 1 889, the plaintiff tendered to the defendant a share certificate and a duly executed transfer of 50 of the said shares, but the defendant refused to complete the said contract, and still refused to do so. The plaintiff claims [1] Specific performance of the said contract ; [2] Damages for breach of the said contract, in addition to, or in substitution for, such specific performance and costs. The statement of defence, was as follows : — The defendant was induced to make the alleged contract by the fraud of the plaintiff or his broker, and within a reasonable time after he had notice of the said fraud, and before the share certificate and transfer were tendered to him, he repudiated and abandoned the said contract. Particulars of the fraud are as follows : The plaintiff's broker, at the time of tbe sale of the shares to the defendant, represented to the defendant, for the purpose of inducing him to purchase the Said shares, that the Rawang Tin Mining Company, Limited, was a strong company, meaning thereby that its financial position was sound ; that if defendant bought the shares, they would be sure to go up in value ; and that in three days defendant would be able to sell the said shai-es at a profit, whereas the said Company was then insolvent and about to stop payment as the said broker then well knew. The further facts material to this report sufficiently appear in the judgment. The case was heard on the 13th, 14th and 19th days of November. Drew, for plaintiff referred to Rudge v. Bowman, 3 L. R. Q. B. 689 ; Kerr on. Fraud, 39 ; Benjamin on Sales, 387 ; Dimmock v. ffalleU, 2 L. R. Ch. Ap. 27 ; Evans y. Wood, 5 L. R. Eq. 9; Paine STRAITS SETTLEMENTS. 545 Simons V. Teo Guan Tyb. V. Hutchinson, 3 L. E. Eq. 257, on Appl 3 L. E. Ch Ap. 388; Chap- ^°^JZf'' "^ man v. Shepherd, 2 L, R. C. P. 228; Goles v. Bristow, 6 L. E. Eq. _ 149 ; Hodgkinson v. Kelly, 6 L. R. Eq. 496 ; Lindley on Partnership, 713; Fry on Specific Performance, §§ 370,1468-9,1490,1600-1; Hawkins v. Maltby, 4 L. E. Eq. 572. W. Nanson, for defendant referred to Barwich v. English Joint Stock Bank, 2 L. R. Ex. 259 ; Maekay v. Commercial Bank of New Brunswick, 5 L. R. P. C. 394 ; Hawkins v. Maltby, supra ; Re London, Hamburg, &c. Bank, 2 L. E. Eq. 231 ; Cadman v. Horner, 18 Vesey, 10 ; Wall v, Stubbs, 1 Madd. 80 ; Waddell v. Blockey, 4 L. E. Q. B. Div. 678 ; Redgrave v. Hurd, 20 L. E. Ch. Div. 1 ; Fry on Specific Performance, §§ 817, 368, 625, 1,490, Cur, Adv. Vult, November 25tli. Goldney, J. This was an action for the specific performance of a contract for the sale of certain shares, and, in the alternative, for damage for the breach of the said contract. On the 26th of August the plaintiff, through his broker, sold 50 shares in the Eawang Tin Mining Company to the defendant, at $7 a share, delivery to be on the 28th August. The defendant has refused to take the shares or to pay for them. The defendant admits making the contract, but alleges that he was justified in refusing to take delivery of, or to pay for, these shares, on the ground that he was induced to make the contract by fraud. At the time that the contract was made [and there is no dispute as to the time], the Eawang Tin Mining Company had suspended payment. The defendant alleges that the plaintiff's broker being well aware of this fact, and that he [defendant] was ignorant of it, represented to him in effect that the Company was a strong Company, and that its financial position was sound, and that the low price of the shares was the conse- quence of a combination of persons who wished to bear down the shares for their own advantage. If the evidence on the part of the defendant convinced me that the broker had actual knowledge, not a mere suspicion, of the Company having suspended payment previous to his selling these shares to the defendant, and was also aware that the defendant was ignorant of this, and that, having this knowledge, he did not disclose the fact, or rather concealed it from the defendant, and that he did make the alleged represent- ations, I should have no hesitation in finding a verdict for the defendant. In my opinion, in all mercantile contracts, if, at the time of negotiating the contract, one party to the contract suppresses or neglects to communicate a material fact within his knowledge which the other party has not the means of knowing, or is not presumed to know, that is a fact which, if communicated, would induce the other party either to refrain altogether from the contract or not to enter into it on the same terms, the doing so is a concealment amounting to fraud, and such concealment will avoid the contract. I am not, however, prepared to say that there was such a concealment or misrepresentation in this case. That the broker and those who instructed him were anxious to get rid 546 THE SUPREME COURT. GOLDNET, J. 1889. Simons 0. Teo Gtjan Tte. of these shares, because they knew that the Company was in a bad way, there can be no doubt. But this unsatisfactory condi- tion of the Company was, at the time of making the contract, common knowledge to the general public ; I am not satisfied on the evidence that the broker knew that the Company had actually stopped payment, or that he made the representations which the defendant alleges induced him to buy these shares. I think, therefore, that the defendant has failed to make out his defence, and that the plaintiff is entitled to succeed. Since the contract was made, there has been a call of $-5 per share, which the plaintiff has had to pay. The Company now being in liquidation, to grant specific performance of the contract would be of no use, damages therefore must be substituted for specific performance. Damages for the breach of a contract for the sale of shares in ordinary cases is the difference between the contract price and that at which the plaintiff was able to re-sell them. The plaintiff did not, on the refusal of the defendant to take the shares, re-sell them. I am not satisfied on the evidence that there was any market in which he could have re-sold the shares; if there was, I think it was for the defendant to shew this, and he has failed to do so. I think, therefore, that under the circumstances, the plaintiff is entitled to recover the contract price of the shares, viz., |3oO, and $250 the call which the plaintiff has had to pay subsequent to the sale. Verdict for the plaintiff ^600, with costs. SPIEIT FARMER v. TOK KIM TONG. SiNGAPOEB. The Spirit Farmer has authority under Section 25 of the Excise Ordinance 4 of 1870, to limit by the permit he issues for the removal of spirits, the hours within which Wood, the removal shall be made, and any removal outside of those hours is a removal without Aa. C.J. a permit, and an offence under the section. 1 889. The Court of Appeal has power to amend a charge by charging a person as a principal who was formerly only charged as an accessory ; and also by substituting December 3. a proper charge under Section 34, Clause 6, even when the appeal is from an order of a Magistrate discharging the accused. This was an appeal by the Spirit Farmer from an order of S. Leslie Thornton, Esquire, acting First Magistrate, dismissing a summons against the abovenamed Tok Kim Tong, who was chaiged with abetting one Low Pole Keam, a coolie, in removing from the accused's shop on 7th October last, a bottle of brandy, in contravention of the terms of a permit granted by the Spirit Farmer, and thereby committing a breach of Section 25 of the- Excise Ordinance 4 of 1870. That section, is as follows : — 25. " Every person desirous of removing Spirituous Liquors from one place to another, or from the possession of one person to that of another person, shall apply to the Spirit Farmer of the Settleuient in writing, in form of Schedule [G.] ; stating the quantity and description of Spiritvious Liquors, the places to and from which they are to be removed and the person from and the person to whose possession they are to be removed, and the time of x-emoval, and except as is next hereinafter provided, and except when the STRAITS SETTLEMENTS. 547 duty leviable under this Ordinance shall have been already paid thereon, shall pay, or cause to be paid such duty to the Spirit Farmer, whereupon the said Spirit Farmer shall deliver to such person a written permit to remove the same in foi-m of Schedule [H]. Every person offending against any of the provisions of this section shall be liable on conviction to a penalty not exceeding two hundred dollars, and the Spirituours Liquors shall be seized and forfeited." Schedule G. referred to in the Section, is as follows : — Wood, Ag. C.J. 1889. Spihit Fabmeb v. ToK Kim T0N(J. EXCISE SPIRITS. Notice to remove under Section So. To The Spirit Farmer, at Take Notice, that I desire to remove under Section 25 of the Eicise Ordinance of 1870, gallons bottles of contained in distilled at or imported by on the day of 187 , ex-ship , and now stored in at [and I hereby tender to you payment of being amount of duty chargeable on the same] and requii-e from you a Permit for the removal of the same from [ ] to the godown, shop or house of situated at [or if duty already paid] the duty on the said having been already paid by the Importer [giving the name]. Yours, &c.. Date- Importer. Schedule H. referred to in the Section, is as follows : — EXCISE SPIRITS. Permit to remove under Section 35. [is] authorised to remove under Section 25 of the Excise Ordinance of 1870 from [ ] to [ ^ ] gallons bottles of imported by day of on the and now stored in duty having already been paid on the same.] Date- contained in package [ 187 at , ex-ship [the Spirit Farmer. The Magistrate, in the case he stated on the appeal, gave the following reasons for his dismissing the summons, fi'om which also the facts of the case will appear. ' A coolie went to the shop of a retail spirit shop-keeper about 9 a.m. on the 7th day of October, I8h9, and orders a bottle of brandy. He is then told that a permit will have to be procured, and after the defendant's clerk has taken the name and address of the person to whom the spirit is to be removed he is told to come back later in the day for the brandy. In order to ensure that the brandy shall be given out to the same person who ordered it, the coolie ia given by the defendant's clerk a slip of paper acknowledging the receipt of the price of the brandy. The defendant's clerk then made out the applica- cation [the form of which is provided by the Farmer] took it to the oflSce of the Farmei', and, after some delay, obtained the permit from the clerk who issues permits at the Farm. Some time after 3 p.m. on the same day the 548 THE SUPREME COURT. Wood, Aq. C.J. 1889. Spirit Farmek V. ToK Kim TONQ. coolie returned for the brandy and took it, witli tlie permit, away with him ; about 4.30 p.m. he was arrested at no great distance from the defendant's shop by a Revenue Officer, for a breach of the provisions of Section 25 of the Excise Ordinance, 1870. On the following day he was brought before Mr. Hudson, the Third Magistrate, was bound over to come up for judgment when called upon, and these proceedings taken, the defendant being the principal offender. The Revenue Officer did not state for what special breach of this section he arrested the coolie. It may have been because the coolie, on being asked his name, gave a name which did not con-espond with that in the permit, or it may have been that the time at which he was found removing the spirits, i.e., 4.30 p.m. was contrary to the time mentioned in the permit, i.e., 11 a.m. to 1 p.m. ; but Mr. Drew, for the Farmer, admits that the only breach the prosecution relies on is, that the spirits were in course of removal at 4.30 p.m. when the time named in the permit expired at 1 p.m. It is to be noted that in the application made by the defendant's clerk for the permit, the time of removal is given as from 11 a.m. to 1 p.m., but the defendant's clerk alleged and in this he is confirmed by the manager of the Spirit Farm, that the Farmer refuses to issue permits allowing a longer period for removal than 2 or 3 hours, It is also to be noted that the Farmer carries on the trade of selling spirits, and from the manager's evidence it appears that no restrictions as to the time of removal, or even as to the place to which the spirits are to be removed, are imposed on purchasers of spirits from the Farm, though in the case of purchasers from other spirit ti-aders such restrictions are strictly enforced. The reason given for this difference of treatment's that the duty on spirits pm'chased direct from the Farm cannot fail to be paid before the spirits are allowed to leave the Farm, whereas there is no such check on purchasers from other traders unless these additional precautions are taken. I may here add, that it is the practice of many retail Spirit Traders with the approval of the Farmer to have a store or bonded warehouse in which their stock of spirits is stored, and a separate shop for the retail of such spirits, no duty is paid while the spirit remains so to speak in bond, but on removal from the store to the shop a permit is required and the duty is then paid. Conse- quently in these cases [and in the present instance] all the duty to which the Farmer is entitled has been paid on all spirits in the retail shop, unless in breach of the provisions of the Ordinance any spirits have been received therein without the Farmer's permit, and for the detection and punishment of such an offence, various, distinct, and stringent pro- visions are given by the Ordinance. Section 2.5 under which this prose- cution has been instituted seems to me to have been made to protect the rights of the Spirit Farmer. Now, the rights of the Spirit Farmer differ materially from those of the Opium Farmer. The latter has a monopoly of the trade given him, the former has nothing more than an exclusive right to levy a duty on all spirits used or consumed in the Colony at a fixed rate. The whole of the privileges conferred by the Ordinance on the Farmer being in restraint of trade and the provisions of the Ordinance protecting those privileges being of a highly penal character, it seems to me that their exercise cannot be too jealously watched and that any extension or abuse of such privileges should in the interests of the public be prevented. For the removal of spirits from one place to another or from one person to another person by this section a permit is i-equired and an application must be made in the form G., so that it would seem if two or three persons proposed to picnic at Bukit Timah and one of them were for that purpose to take a bottle of whisky to that place without a permit from the Farmer he would apparently render himself liable to the penalties imposed by the section. Further than this when the duty has not already been paid he would render himself liable to the penalties imposed by this section. Further than this when the duty has not already been paid it must be paid before the permit can be granted ; as, however, as has been stated, all duty on the stock in the retail shop is usually ah-eady paid, in the majority of cases, as in this instance, there is no question of defrauding the Farmer of the duty to which he is entitled. Having regard to these circumstances, the question in this case is whether either by the terms or the spirit of the Excise Ordinance the Spirit Parmer can restrict the removal of spirits from other Spirits Trader's shops than his own by his permit to a limited portion of the day, or whethei- StEAiTS SETTLEMENTS. 549 the permit must not allow the removal at any time during the course of the day on which it is issued. The inconvenience of having to obtain a permit at all is great, but in a large town like Singapore where many of the retail shops are at a distance from the Farm and the purchasers may be equally distant the inconvenience is considerable. The foims of application and permit are supplied by the Spirit Farmer and the latter is filled up by the Farmer's clerk. Both forms as at present used have little or no resemblance to the forms G. and H. in the Schedule to the Ordinance the use of which is by Section 25 made compulsory. Without discussing the validity or invalidity of the form of application [which issu^ed as it was by the Farmer and accepted by him as a good application, I think he cannot now question] I had to determine whether there has been any substantial infringement of the terms of the permit as required by the Ordinance. I do not suppose a literal compliance with the statutory form is necessary, but there must be a substantial follow- ing of its terms. The only difference so far as this case is concerned between the permit issued hj the Fai-m and that prescribed by the Ordinance is that the time of removal in the former is restricted to two hours, and in the latter it seems to be extended to the whole day, and it is for not having complied with this condition of the permit that the defendant is charged with having aided or abetted a breach of the provisions of Section 25. The whole argument of the prosecution is based on the assumption that the terms of the permit must be explicitly complied with, but, except by inference, there is no express direction in the section to that effect ; all that the person desii-ous of removing spirits is required by the section to do, is to send in an application in the form G., and assuming that application to be in accordance with the provisions of the Ordinance, there his duties would seem to end ; and it then becomes the duty of the Farmer enforceable by fine under Section 28, to grant a permit for such removal. On a strict con- struction of the section there is nothing whatever to show that the person desii'ous of removing the spirits must remove them according to the terms of the permit. But even assuming that this may fairly be inferred, it seemed clear to me that this section, when read with form H . in the Schedule, does not empower the Farmer so to limit the tinre of removal, and any attempt to do so, I held to be an unwarrantable extension of the Farmer's powers under the Ordinance, and bearing in mind that the object of these provisions is not to foster the Spirit Farmer's btisiness as a Spirit Trader at the expense of other Spirit Traders, or to enable him by imposing hampering restiictions on their trading to attract business to himself, I thought the restriction was so to speak ultra vires and that the non-compliance with such condition did not constitute an offence under this section. I therefore dismissed the siim- WOOD, Ao.C.J. 1889. Spibit Fabmek 11. ToK Kim TONG. The present appeal was brought by the Spirit Fanner to test the correctness of this judgment. Bonser, [^AUornen-GeneraV] — Breiv with him, for the appellant contended, that the Farmer had power under Section 25 to restrict the hours of removal. That the defendant had not complied with the spirit of the Ordinance, as at one o'clock his application to remove the liquor had determined, and by removing it after one o'clock he had conceived a new desire which he did not com- municate to the Spirit Farmer as bound to do by the Ordinance. No fresh application had been made. The permit and the appli- cation ought to be read together. If the permit could be used after one o'clock it could be used next day — next week — next month or year. The charge on which the defendant was tried should be amended, and should read as follows : " That being desirous of removing spirituous liquors at three o'clock in the afternoon from one place to another, he did not apply to the S50 THE SUi*REME COURt. TVooD, Aq. C.J. iS89. Spirit Farmer V. ToK Kim TONQ. Spirit Farmer iu writing:, stating the time that it was to be removed in accordance with Section 25." Sisson, for respondent contended, that the charge could nut at this stage be amended ; fii-stly, because it was sought to make the accessory into a principal ; and secondly, because Section 34, Clause 6 of the Appeals Ordinance 12 of 1879, which authorised the substitution of a new charge, only applied in cases where the accused had been convicted, and not where he was acquitted as in this case : and if a new charge was to be made against the respond- ent, a new summons should be issued against him at the Police Court. Wood, Acting C.J. said he was of opinion that the section applied to all cases, and he would allow the amendment. Sisson then contended, that the Spirit Farmer had no power to limit the dui-ation of the passes, because the word " time," in Section 25, could be shewn by reference to other sections of the Ordinance to refer to the day, and not the hour. The pass must be in form " H. " appended to the Ordinance, which contains no limit as to time, and the Ordinance, as it crea ted artificial oif ences, should be strictly construed against the prosecution. If the Farmer can fix a limit of two hours, he can equally fix one hour, or five minutes for removal, and crush the trade. Fraud could not possibly be practised by vising a pass twice, as suggested by the prosecution, because under Section 36 the Farmer has power to search any spirit store five times a month and check the quantity with the passes issued, and if any deficiency is found [which would be the case if one pass were used twice], a penalty of $300 is enforceable. The Legislature never meant to specify the exact time of the delivery of spirits or else as in the Opium farm regu- lations, words to that effect would have been used — there could not be any offence recognised by law in the alleged charge against his client. The Spirit Farmer was a large dealer himself, and it appeared by the evidence that these restrictions were not enforced against persons who bought the spirits from him. He therefore wished to throw every impediment in the way of the other dealers, so as to get the whole trade into his own hands. The defendant had previously applied for passes available for the whole day and had been refused, so he was not bound by the limit of two hours mentioned in his application. Wood, Acting C.J. said that although Section 25 was not expressly so worded, still he had no doubt that the spirit of the Ordinance was that the Farmer should have power to limit the hours of removal. The respondent had technically committed an offence under the section, but as this was the first case of the kind he would fine him one cent as a warning. The appellant did not ask for costs, so the Magistrate's order would be reversed without costs. Order of discharge reversed. STRAITS SETTLEMENTS. 551 HUTTENBA.CH v. MUNICIPAL COMMISSIONERS. The elected Municipal Commissiouers uuder Sectiou 32 of the Municipal Ordi- nance 9 of 1887 have power to resign and to acci-pt (heir own resignation. This was a suit asking for an injunction restraining the defendants and their Secretary, Mr. J. W. Hallifax, from proceed- ing with certain elections which had been advertised to take place this day. The following were the affidavits filed by the plaintiff in support of his application. " I, August Huttenbach, of Penang, Merchant, make oath and say : 1. I am a rate-payer of the Municipality of George Town, Penang. 2. Hearing that three of the elected Municipal Commissioners, Messrs. B. A. P. Hogan, 0. "W . Barnett, and P. M. McLai-ty, had resigned their offices on the Board on the 15th day of November last, and having read the account of the proceedings in the Piiiang Gazette and having seen advertise- ments for the election of new Commissioners in the same paper, I this morn- ing went to the Office of the Municipality and requested the Secretary to allow me as a rate-payer to inspect the minutes of the proceedings. 3. I thereupon found a minute at the end of the speeches made by the Commissioners as to the resignations of the three gentlemen beforenamed stating that the Commissioners accepted their resignation. I also found that the only other Commissioners present were the President and Mr. David Comrie. 4. I questioned the Secretary as to this minute and he said that nothing actually took place beyond the speeches by the different Commissioners and the retirement of the three gentlemen from the Board-room, but that he entered this minute under the impression that the action of the Board was an acceptance of the i-esignation, and that it never struck him that there was no quorum present for the purpose. The Secretary also stated that there had not been any other acceptance of their resignation or permission to resign. 5. The next minute after the one above quoted is one to the effect that -Captain Cameron [another Commissionei-] arrived, and the ordinary business of the day was proceeded with. 6. I am advised that under Section 32 of the Municipal Ordinance, 1887, it is necessary for the Commissioners, as a body, for sufficient cause shewn, to permit an elected Commissioner to resign and that the proceedings above stated do not amount to any permission to resign or acceptance of their resignation, inasmuch as there was no quorum present to deal with the matter, and that therefore Messrs. R. A. P. Hogan, C. W. Bamett, and F. M. McLarty are still Commissioners, and that consequently there are no vacancies to be filled vip by the elections now advertised. 7. The number of Commissioners named by the Governor in Council for Penang under Section 6 of the Municipal Ordinance is six, and this appears in the Government Gazette of the 21st October, 1887. 8. The advertisements for the elections of three Commissioners appear in the Pinang Gazette now produced by me and marked B ; one of the elec- tions by such advertisements appears to be fixed for the 4th instant, and the other two for the 16th and 17th. 9. I am informed that the President has appointed the defendant J. W. Hallifax to preside at the elections under Section 37, Clause [4]. 10. I am also advised that it is in the public interest that these elections should not proceed at present. There is, I believe, a large body of voters of whom I am one who disapprove of the action of the thr-ee Commissioners who purported to resign, and if we had had any idea that they would stand again we should have been ready with eligible candidates to oppose them. The three gentlemen liave however now on the eve of the first election, announced their intention of standing and we have no time to get candidates and we fear that the election to-morrow of one of the three wiU prejudice the chance of any successful opposition for the following elections. We are all the more unready from the fact that one of the three gentlemen distinctly told me he would not stand." Penang. Pel- LEREAU, J. 1889. December 4, SIONEKS. 552 THE SUPREME COURT. Pel- " I, Bernard Christopher Doral, Reporter to the Pinang Gazette, make LEREAUj J. oath and say : 1889. 1. I was present at the meeting of the Municipal Commissioners of ' George Town, Penang, on the 15th day of November last, when Messrs. R. A. Hbttenbaoh p Hogan, C. W. Barnett, and P. M, McLarty purported to resign their „ "• offices as Municipal Commissioners and took notes of their proceedings for Municipal ti^^ pinang Gazette. I.OMM1S- 2. The report contained in the Pinang Gazette of the 19th day of November last, a copy of which is now produced and shewn to me marked A. is a full and complete report of all that occun-ed with reference to the said resignation. 3. No vote was taken thereon either before or after the three resigning Commissioners retired from the Board-room and nothing whatever more than is mentioned in my report took place with reference to such resignation." A Eule nisi was, the previous daj, on these affidavits granted calling on the defendants to shew cause why the injunction applied for should not be granted. The following are the sections of the Municipal Ordinance 9 of 1887, bearing on the case : " 3 ' The Commissioners' means a body corporate described in Section 6. 6. [1]. — The Municipal affairs of every Municipality shall be adminis- tered by such number of Commissioners as shall in each case be determined by the Governor in Council. j|2]. — Such Commissioners shall be elected and nominated in manner hereinafter provided, and shall be styled the Municipal Commissioners of the Town of Singapore, or of George Town, or of the Town and Fort of Malacca, or other their Municipality as the case may be, and shall by such name be a body corporate and shall have perpetual succession and a common seal and power subject to the provisions of this Ordinance to acquire, hold, and sell pi'operty, and by such name sue and be sued 32. It shall be lawful for the Govenaor in the case of a Commissioner nominated by him, and for the Commissioners in the case of an elected Commissioner at any time for sufficient cause shewn to permit a Commissioner to resign the office. 70. A Commissioner shall not vote ur take part in the discussion of any matter before the Commissioners or a Committee in which he has directly or indirectly by himself or by his partner any pecuniary interest. 72. [1].—A minute of proceedings at a meeting of the Commissioners or of a Committee signed at the same or the next ensuing meeting by the President or by a Commissioner describing himself as or appearing to be Chairman of the meeting at which the minute is signed shall be received in evidence without further proof '' Ross, for the defendants shewed cause ; he contended that the plaintiff had misunderstood the Secretary in certain particulars which he pointed out, and that para. 10 clearly shewed that this application was a mere electioneering dodge or an act of political manoeuvering. The minutes of the meeting of the 15th November last under Section 72, Sub-section I of the Municipal Ordinance [which he put in and read] conclusively proved that the resignation had been accepted by the Commis- sioners. Those minutes had been confirmed and signed by the President. He further contended that the retiring Commissioners were entitled to consider the question of their own retirement as until their resignations were accepted they were still Commis- sioners. This view was supported by Section 32 and 70. The plaintiff, if he denied this contention, would be in a dilemma for STRAITS SETTLEMENTS. Ssd he could only contend that they were unable to act by admitting that they had ceased to be Commissioners ; and if he said so, he could not argue now that they were still Commissioners. Glutton, for the plaintiff in support of the Rule contended, that the Commissioners could not accept their own resignation. The Commissioners by Section 32 were only to do so for sufficient cause shewn. He denied that he was in any dilemma by this line of argument as he contended that they could not act, not because they had ceased to be Commissioners, but because they could not be judges in their own cause. Were it otherwise, they could have swamped the meeting and accepted their own resignation in the teeth of the wishes of the President and the other Commissioner, Mr. Comrie. Section 70 by which a Commissioner shall not vote or take part in a discussion of any matter where he is pecuniarily interested was not against him. On the question of fact he submitted, there was no acceptance and referred to the speeches published in the Finang Gazette more particularly to that of Mr. Comrie who so far from accepting the resignations asked the three retiring Commissioners to re-consider the matter. Pellereau, J,, after reading the minutes of the Commis- sioners and Section 72 Sub-section 1, said he held as a matter of fact, that there had been an acceptance of the resignations by the Commissioners. It was so minuted in those records which had been signed by the President and he was bound to consider that such minute ti-uly stated what took place at the meeting of the Commissioners held on the 15th November last. Against that, there was only the statement of what Mr. Huttenbach had heard from Mr. Hallifax, the Secretary, but the Secretary was not on oath when he made it, and the statement therefore resolved itself into hearsay. In coming to this decision he had not considered the explanation made by Mr. Ross as to any misunderstanding of what Mr. Hallifax had stated, and he, Mr. Hallifax, had not been put into the box. By Section 32 it was " the Commissioners " [not some of the Commissioners] who were to permit a Commissioner [not any other Commis- sioner] to resign. By Section 3 " the Commissioners" was defined to be the body corporate described in Section 6. He could not hold that the expression " the ' Commissioners " in Section 32 meant anything different from '• the Commissioners " in other sections of the Ordina.nce. Until the resignations were accepted the three Commissioners who had tendered their resignations were still Commissioners. They could have voted and taken part in any discussion on any other matter which had been brought before .the Board. Section 70 was in favour of this contention, and as a matter of law, he must hold that the then retiring Com- missioners had a right to act in accepting their own resignations. On the question of fact he had already held that there was an acceptance, and the Rule nisi granted by him yesterday must therefore be discharged with costs. Rule discharged with costs. Pel- LEBEAU, J. 1889. Huttenbach V. Municipal Commis- sioners;. 554 THE SUPREME COURT. LEE QUEH SENG v. MUNICIPAL COMMISSIONERS. SiNGAPOBE. A person is liable to be convicted under Section 124 of the Municipal Ordinance 9 of 1SH7, although the Commissioners have not done their duty iu providing under Wood, Section 126, convenient places for the deposit of (ilth, &c. Ag. C.J. The language of Section 124 is clear, and there is nothing iu the other sections of 3889. the Ordinance to neutralise it. December 4. The appellant was convicted by S. Leslie Thornton, Esquire, Acting First Magistrate, for allowing ou 6th September, 1889, a quantity of offensive liquid matter, viz., night-soil, to flow into a surface drain in Circular Road, under Section 124 of the Muni- cipal Ordinance 9 of 1887. The evidence before the Magistrate proved that the house occupied by the appellant had been drained in the manner now complained of for upwards of forty-two years, and that when the Commissioners two years ago made the present cemented drain in front of the house, they connected with it the house drain which was then used for carrying off the night-soil. The Commissioners had proceeded under the above section against every occupier in Boat Quay and Circular Road. The Commis- sioners had not provided [under Section 126] places for tlie deposit of night-soil. The following were the sections bearing on the case. 56. " The purposes for which the Commissioners are authorised to expend the Municipal Ftmd, are the following, viz. : — [b.J Construction maintenance supervision andoontrolof public markets and slaughter-houses latrines privies urinals drains sewers drainage works and other works for the removal and disposal of sewage night-soil and town refuse reclamation of unhealthy localities and other sanitary measures of a like nature. 124. Whoever causes or allows the water of any sink or sewer or any other offensive liquid matter belonging to him or being on his premises to run drain or be thrown or put upon any street or causes or allows any offensive matter I'rom any sewer or privy to run drain or be thrown into a sm-faoe drain, shall be liable for each offence to a fine not exceeding five dollars. 126. The Commissioners shall from time to time provide places con- venient for the deposit of night-soil dung and other filth and the dust dirt ashes and rubbish and filth collected and removed under the authority of this Ordinance; provided that no such dust dirt ashes rubbish night-soil dung and other filth collected and removed under the authority of this Ordinance shall be deposited in any place so as to become a public nuisance. 157. [1.]— The Commissioners shall maintain and from time to time repair and as they see fit enlarge alter arch over or otherwise improve all or any of the sewers and drains culvei-ts gutters and water-courses made by and vested in them and may discontinue close up or destroy such of them as they may deem useless or unnecessary. [2.]— Provided always that the discontinuance closing up or destruction of any of them shall be so done as not to create a nuisance ; and if by reason thereof or of any such alteration as hereinbefore mentioned any person is deprived of the lawful use of any sewer drain culvei-t gutter or water-course the Commissioners shall with due diligence provide some other as effectual as the one of which he is so deprived. 161. If any house or building be at any time not drained to the satis- faction of the Commissioners by a sufficient drain or pipe communicatino' with some sewer or drain or with the sea or some other place at which the Commissioners are empowered to empty the sewers and if there be such means of drainage within one hundred feet of any part of such house or STUAlTS SETTLEMENTS. 555 building the Commissioners may after f oui-teen clays' ncitice in wi-iting con- Wood, stract or lay from such liouso or building or drain or pipe of such materials Ag. C.J. of such size at such level and with such fall as they think necessary for the 1889. draining of such house or building ; and the expenses incurred by the Com- — "" missioners in respect thereof to an amount not exceeding three months' rent ^^^ Queh of the house or building if not forthwith paid by the owner shall be recover- °^^'^ able as hereinafter provided. „ "■ 169. [1]— AU drains privies and cess-pools shall be altered repaired Combhs*^ and kept in proper order at the cost and charges of the owners of the land signers' and buildings to which the same belong or for the use of which they are maintained. [2] — If the owner of any land or building to which any such drain privy or cess-pool belongs neglects during eight days after notice in writing for that purpose to alter repair and put the same in good order in the manner requii'ed by the Commissioners the Commissioners may cause such drain or privy or cess-pool to be altered repaired and put in good order in the manner required and the expense incurred by the Commissioners in respect thereof shall be paid by the owner and shall be recoverable as here- inafter provided. [3] — If any such drain or privy or cess-pool be constructed after the commencement of this Ordinance contrary to the provisions of this Ordinance or of any rules or by-laws made hereunder or if any person without the consent of the Commissioners construct any new drain or privy or cess- pool or construct re-build or unstop any drain or privy or cess-pool which has been ordered by the Commissioners to be demolished or stopped up or not to be made every person so doing shall be liable to a fine not exceeding fifty dollars and the Commissioners may cause such amendment or alteration to be made in any such drain or privy or cess-pool as they think fit and the expenses thereof shall be paid by the person by whom such drain or privy or cess-pool was improperly constructed re-built or unstopped and shall be recoverable as hereinafter provided." Bailey, for the appellant contended, that the facts proved at the hearing did not constitute an offence punishable under Section 124, and that section did not apply to a mode of drainage or disposal of excreta in use before the passing of the Ordinance. The section was meant to apply to some overt act of a temporary nature, and was not intended to enable the Commissioners to alter the system of disposal of night-soil wliich had been in use for a long period. This was what the Commissioners were seeking to do, as they were proceeding under the section against every occupier in Boat Quay and Circular Road. The proper course they should have taken was under Section 169. One of the objects for which the Commissioners were incorporated was to provide a proper system of drainage under Sub-section [b] of Section 56. The drain, the use of which was complained of in this case, was not a " surface " drain within the meaning of the Ordinance, but it was made for the purpose of the disposal of night-soil and other sewage. Under Section 157, the Commissioners might close it up, but not until they had provided another as effectual, and within one hundred feet of the house under Section 161. The Commissioners had not fulfilled the duties imposed upon them by this section, nor by Section 126 ; and until they had done so, the penal sections of the Ordinance such as Section 124, were not enforceable. The occupiers were told they must have their night-soil removed by coolies, but it was difficult to get coolies, and the Commissioners had not provided a convenient place for its deposit under Section 126, The conviction was therefore wrong and ought to be quashed. Drew, for the respondents was not called on. 556 THE SUPREME COUST. Wood, Ao.C.J. 1889. Wood, Acting C.J. The language of Section 124, is too clear to bo misunderstood and tliere is nothing in the other sections which had been referred to sufficiently strong to neutralise it. If the Couimissioners have not fulfilled their duties, the appellant has his remedy against them. The conviction must be affirmed, Municipal ^M' Ordinance 5 of ISSn was to fix a trust for equal distribution on all assets of the Company, as from the date of the winding-up proceedings, and that the Bank having had notice of the proceed- ings, and uovV seeking to prove thereunder, was bound to refund the whole amount received to the Official Liquidator. STRAITS SETTLEMENTS. 571 Held also, [by O'Mallei/ C.J.] that the Selangor Court was a Competent Court and one whose decisions this Court would recognise, and its judgment would have been an answer to the claim of the Official Liquidator, had the Bank not had notice of the winding-up order. On appeal, affirnaing the judgment of the Court below, [by Wood, J.] that it was doubtful whether the Selangor Coiirt was a Court properly conatitvited and one whose proceedings this Court would recognise ; but that the so-called order by arrangement, of the parties before it, for their own purposes, in absence of other parties interested, was not an order establishing any valid claim of any of such parties, and was no protection to the Bank against the claim of the Official Liquidator. Held, [by Pellereau, J.] that the document put in as the order of the Selangor Court disclosed an order miide by a Court having jurisdiction in Selangor; but the so- called order merely gave effect to a private arrangement between the jiarties before it, and was not such an order to which the trust created by the Companies' Ordinance, 1889, could be made subject, and was no protection to the Bank against the claim of the Official Liquidator for a refund. HeldfiiHker, by both Courts, that the trust crej.led by the Companies' Ordinauce, 1889, affected the property at Selangor, a Foreign State, as being assets of the Company. The Oriental Inland Steam yavigation Co, v. The Sviude Railway/ Co., 9 L. K. Ch. App. 557, followed. This was an application by tbe Official Liquidator of the abovenamed Mining Company, to have the certificate of the Registrar as to the debts due and owing by the Company, recti- fied by expunging the amount certified by the Registrar to be due to the abovenamed Bank from the list of debtors. The following facts need alone be mentioned in addition to the facts set out in the various judgments. The debts paid by the Bank in supposed pursuance of the order of the Selangor Court, were a large sum alleged to be due to the coolies on the Mines as to whose claims, as preference claims, there was serious doubt — but in addition thereto, were certain debts due at Selangor paid to the Straits Trading Co., Messrs. Riley, Hargreaves & Co., and one Lini Kim Lee, as to whose claims, as not being preference claims, there was no doubt. The supposed order of the Supreme Court of Selangor was as follows : — In the Supreme Ooukt, Selangor. Before W. E. Maxwell, Esq., c.m.g., British Resident, and H. Conway Belfield, Chief Magistrate. In the matter of the Rawang Tin Mining Co., Limited, on a petition in bankruptcy against the abovenamed Company pre- sented by Messrs. Riley, Hargreaves and Co. Mr. L. Sanderson appears on behalf of the petitioning firm, and applies to withdraw the petition in favour of an arrangement which will be stated in Court. Gr. Bruce Webster : I am Agent of the Chartered Bank of India, Australia and China, and appear on its behalf. The Bank holds a judgment of this Court against the Rawang Co., dated September 3rd, 1889, for a sum of ¥i26,261.67, and the whole of that sum is stiU due and unpaid. I am prepared to pay everything which may be sanctioned by this Court as payable to the coolies on the Rawang Mine, in full, without any deduction whatsoever, being approxi- mately a sum of 5514,000, and also to pay off the following creditors : Straits Trading Co. $1,654.83, Messrs. Riley, Hargreaves §680.68, Lim Kim Lee 81.211.32. on condition that this Court will allow the Bank the first claim of all the assets of the Company within its jurisdiction to the full amount of the judgment-debt. The abovementioned creditors by their representations in Coui-t express tbeir willingness to agree to the above an-angement, The petition in bank- ruptcy is withdrawn. [Then followed a list of otlier small claims which Mr. Webster, on behalf of the Bank also agreed to pay.'] It is thereupon ordered by the Court that upon payment of the abovementioned amounts, including such sums as may be found to be for coolies' wages, &c., the Chartered Bank may O'Mallbt, C.J. 1890. In re TheEawano Tin MiNiNQ Co., Ltd. & The Char- tered Bank op India, Australia & China. 572 The supreme cotjRt. O'Malley, C.J. 1890 Ifi re The Eawang Tin Mining Co., Ltd. & The Chau- TBBBD Bank OF India, Australia AND China. proceed to levy execution in respect to the said judgment-debt and costs, upon the property of the Rawang Co. within the jurisdiction of the Court, and it is also further ordered that the said Bank shall have a prior claim as prefer- ence creditors upon the said property, both in respect to the said judgment- debt and costs, and in respect to such further payments as may be made by the said Bank in pursuance of the arrangements above set forth. Certified and signed by H. Conway Belfield, Chief Magistrate, Selangor. Another document was also put in, which was as follows : — Sundry charges and wages paid by the Chartered Bank of India, Australia and China in account with the Rawang Tin Mining Co., Ltd. — Ghan-y and Police escort hire to Rawang with money ... $ 25.00 Court fees... ... ... ... ... 0.50 Telegrams, Stamps, &c. ... ... ... 0.99 Interest ... ... ... ... ' ... 99.12 As per statement attached ... ... ... 15,029.00 Do. do. ... .. ... ... 996.49 Kuala Lumpor, 7th December, 1889. For the Chartered Bank of I. A. & C. G. Bruce Webster, 1,151.10 Manager. Bonser, [Attorney-General] Napier with him, for the Official Liquidator, in support of the application. W. Nanson, for the Bank, contra. Cur. Adv. Vult. March 10th. O'Malley, C.J, This is a motion on behalf of the Official Liquidator to vary the report of the Registrar, adju- dicating upon debts and claims against the Rawang Tin Mining Co. Ltd., a Company which is being wound-up by this Court under the provisions of the Companies' Ordinance 5 of 1889. The Registrar by his report allows a claim by the Chartered Bank of India, Australia and China against the Company for 126,790.09, and finds that after allowing for $17,758.71 received by the Bank in Selangor in respect of that claim, there is still payable to the Bank a balance of $9,031.38. The motion is in form limited to the varying of the report by the striking out of this item, but it was explained by the Attorney-General upon the hearing that its object is in the alternative to refer the report back to the Registrar in order that further evidence may be taken as to the facts upon which the validity of this claim turns. The Rawang Tin Mining Co. was a Company registered, and having its principal Office in this Colony, but having the greater part of its property and carrying on its operations in the Native State of Selangor; and the Chartered Bank of India, Australia and China is an English Banking Corporation, having its head Office in London, with branches, among other places, in Singapore and Selangor. In August, 1889, the Company was in difficulties. On the '26th of the month the Bank commenced a summary action against it in this Court to recover a sum of some $26,000 due on certain Bills of Exchange, and on the 3rd September entered judgment by default. On the 2nd September, the Chartered & China. STRAITS SETTLEMENTS. 573 Mercantile Bank of India, London and Cbiiia, another creditor O'Mallet, of the Company, presented a petition to this Court for the winding- ^ggg up of the Company under the Companies' Ordinance 5 of 1889, the provisions of which, with regard to the winding-up, corres- ^» '•e pond to those of the English Companies Act of 1862. T^n Mwi^g'' On the 5th September, the Chartered Bank of India, Austra- Co.. Ltd. lia and China was restrained, by injunction of this Court, from ^ levying execution under its judgment. On the 23rd September, teeedBank a winding-up order was made by this Court upon the petition of of India, the 2nd, and the Official Liquidator was appointed to cany it Austbaha out. Meanwhile, legal proceedings were taking place in Selangor, On the 3rd September, the Chartered Bank of India, Australia and China obtained a judgment against the Companv for its debt of $26,000. A day or two later, a petition in bankruptcy against the Company was presented by Messrs. Eiley & Hargreaves, Selangor, creditors of the Company, and the Bank was thereby prevented from levying execution under its judgment. The Bank proceeded to negotiate for a withdrawal of the bankruptcy petition, and in the result, on the 10th September, application was made in the Court by the petitioning-creditor for leave to withdraw the peti- tion in favour of an arrangement which had been come to between the Bank and the petitioning-creditors, and agreed to by certain Selangor creditors, and on the same day the Court granted the application and sanctioned the arrangement and embodied it in an order of the Court. The material parts of the proceedings in the Court, were as follows : — The Agent of the Bank says : — " I am prepared to pay every- thing which may be sanctioned by this Court as payable to the coolies on the Rawang Mine, in full, without any deduction whatsoever, being approximately a sum of $14,000, and also to pay off the following creditors, viz. : The Straits Trading Co | 1,654.83 Messrs. Biley, Hargreaves & Co „ 680.68 Messrs. Lim Kim Lee & Co 1,211.32 on the condition that this Court will allow the Bank a first claim on all the assets of the Company within its jurisdiction to the full amount of the judgment-debt and cost, plus such additional payments as I now offer to make." And the Court orders " that upon payment of the abovementioned amounts, including such sums as may be found to be due for coolies' wages, etc., the Chartered Bank may proceed to levy execution in respect of the said judgment-debt and costs upon the property of the Rawang Co., within the jurisdiction of the Court. And it is further ordered, that the said Bank shall have a prior claim as preference creditors upon the said property, both in respect of the said judgment-debt and costs, and in respect of all such further pay- ments as may be made by the said Bank in pursuance of the arrangement above set forth." 574 THE SUPREME COURT. O'Mallet, C.J. 1890. In re TheRawano Tin Minino Co., Ltd. & The Char- TEKED Bank OP Indi.4, AuSTEAIilA & China. Looking to the facts above stated and to the evidence before the Registrar, I am of opinion that there is nothing from which it can be reasonably inferred that the Court of Selangor, when it made this order of the 10th of September, had any notice of the winding-up proceedings in Singapore, which had been commenced on the 2nd. It is another question whether the Bank, which had itself been restrained by injunction of this Court on the 5th September from realising its judgment here of the 3rd of September, on the ground that a winding-up petition had been presented on the 2nd September, must not be taken to have been affected with notice in Selangor of that petition before the order of the 10th September, and if it were necessary to decide the point I should hold that it was. But be that as it may, there can be no doubt that before the Bank was in a position to claim the money under the order in Selangor, before execution was levied under the order, and before the money realised out of the assets was paid over to the Bank under the order, the Bank had notice not only of the winding-up petition, but of the winding-up order of the 23rd September. Taking the figures as they have been given, the Bank judg- ment in Selangor on 3rd September was for $26,790.09. The payments made by the Bank to coolies and other creditors coming within the order of the 10th September amounted to |18,570. 18, and the proceeds of the property of the Company obtained by the Bank under the execution, and under the orders of the Court of the 10th September, amounted to $36,268.89, so that the Bank, after satisfying its judgment, and reimbursing itself as far as possible for what it had paid to coolies and creditors, had a claim for |9,031.38, the amount for which it claims in the liquidation. The Official Liquidator objects to the allowance of the claim. His contention is that the Bank having received the Selangor .|36,000 out of the a,ssets of the Company there, is bound to bring that sum into the common fond here, and that until he does that, he is a debtor to the estate rather than a creditor. The Bank argues that these moneys were received by legal process in Selangor and were paid to it under a valid judgment or order of the Court of Selangor, and are thus removed from the jurisdiction of the Court, and the Attorney-General replies — 1st. That the Bank did not make out its position by pi-oper evidence before the Registvai-, and that some evidence" was improperly received. 2nd. That the Court of Selangor, whose orders are relied on, is not a Court of competent authority and jurisdiction, and that its decrees are not entitled to the recognition given to the decrees of the Courts of civilised States ; at all events without some further evidence of its status and character than was given before the Registrar. I deal first with the question as to the sufficiency of the evidence before the Registrar. It was objected that the proceed- ings in the Court of Selangor were not duly proved before the Registrar according to the requirements of Section 7 of the Indian Evidence Act 15 of 1852 which rules here, inasmuch as the certified copy of the record of those proceedings which was put STRAITS SETTLEMENTS. 575 in, purporting to be sealed with the seal of one of the Judges of O'Mallet, 1890. the Court, and not with the seal of the Court itself did not con- *-''''^- tarn a written statement by the Judge that the Court had no seal. This was a strictly technical objection having nothing to do ^»™ with the veal merits of the case, and 1 think it is sufficiently met t^n KhN^a now by the reply that the objection was not taken on the pro- co., Ltd. ceedings before the Registrar, and it is best to go into it now. & Then it was said that the Registrar ought to have had evidence ^^"^ ^bank before himself, that the claims of coolies and other creditors, for qj, india, which the order of the Selangor Court made arrangements, and Australia which were said to have been paid by the Bank, were real debts & China. properly due by the Company. But as to this, I think that if the Selangor Court is to be recognised as a Court of competent authority, this Court cannot in the present proceeding go behind the order that it made, or discuss the sufficiency of the grounds for making it. Again, it was said that the payments made by the Bank were not shewn to be the payments provided for by the arrangement. I do not see how this contention is material to the real issue here, but if it were, I think that the certificate of the Chief Magistrate which is annexed to, and refers to the proceed- ings in, the Selangor Court, furnishes sufficient evidence on that point. I come then to the main contention of the Bank, viz., that it is not liable to refund or to bring into account the proceeds of the Selangor propertj'^, inasmuch as it obtained them by legal process and under the jurisdiction and oi'der of the Selangor Court. The object of the Ordinance under the operation of which it is said that these assets are recoverable is to make an equitable provision in the nature of a bankruptcy for the distribution of the efPects of the Companj' amongst the persons entitled ; to secure that, all the assets of the Company shall be collected and made available for equal distribution among the creditors. Its pro- visions are framed to carry out this object, and the effect of those provisions is to make the property of a Company vvhich is being wound-up, trust property, affected with an obligation to be dealt with in a particular way, and to fix all the assets with a trust for equal distribution among the creditors. Then, at what stage of the winding-up must we take it that the trust is so created ? We must look at the purpose of such a trust, and at what is needed to make it effectual, and also at Sections 195 and 212. Those sections provide that all dispositions of property of the Company made between the commencement of the winding-up and the order of winding-up shall be void unless sanctioned by the Court, and that all attachments and executions put in force after the commence- ment of the winding-up, without leave of the Court, shall be void. I think, these sliew that the control of the Court is absolute as from the commencement of the winding-up, that is to say, by Section 135, from the filing of the petition, and that the trust should be regarded as being created as from that date, and that would be in the present case, 2nd of September. Then comes the question ; When did the Selangor charge on the assets, in the 576 THE SUPREME COURT. 0' Mallet, CI. 1890. In re ThkEa.wang Tin Mining Co., Ltd. & The Chab- TEBED Bank OF India, ArSTBALIA & China. Bank's favour, and on which the Bank relies, attach in Selangor? Was it at the date of the original judgment, or at the date of the order of the 10th September, or when ? As to this, I think that there was no such charge until the Bank had put itself in a position to claim the money under the terms of the order, which would not be until it had paid the coolies and others, that is till November or December ; so that thei-e was a clear priority for the Singapore trust. Even if the charge were held to attach from the date of the order in Selangor, viz., the 10th September, there would still be a priority of a week for such trust, but I think the former is the true date. Then, as I have already stated, I think that the Bank had notice of the proceedings in liquidation before these dates. This being so, the case of The Oriental Inland Steam Nav. Co. V. The Scinde Railway, Co., reported in 9 L. E. Ch. App. 567, seems to be an authority to shew that when the Bank appears, as it does, in the liquidation, and puts in its claim as a creditor, the assets received by it in Selangor are not protected, and must be paid into the Court here. In that case the Companies were both English Companies, having their chief offices in England, but carrying on business in India. On the 23rd of May, 1867, the Scinde Company obtained in India judgment against the Oriental Company for Rs. 40,122. On the 8th November, 1867, an order to wind-up the Oriental Company was made in England, and on the 12th March, 1868, the Scinde Company came in under the winding-up, and proved their debt. On the 28th of January, 1869, the Scinde Companj-, proceeding under their judgment, attached certain property in India belonging to the Oriental Company. By an order made on the 4th March, 1869, in the winding-up, the Scinde Company was ordered to withdraw the attachment, without prejudice to any question ; and upon the Scinde Company undertaking to abide by any order of the Court, the Official Liquidator was ordered, out of the proceeds of the sale of property in India belonging to the Oriental Company, to pay the Scinde Company the amount of principal, interest, and costs then due to them. The attachments were accordingly with- drawn, and Rs. 19,813 were paid by the Official Liquidator to the Scinde Company in satisfaction of their claim, the remainder of their claim having been satisfied by sales under attachments before the winding-up. The Official Liquidator applied by summons that the Scinde Company should re-pay this sum of Rs. 19,813, and Vice-Chancellor Malins, on the 18th April, 1874, made an order accordingly. The Scinde Company appealed, and the order was upheld, Jamen, L.J., says : — " These were assets fixed by tlie Act of Parliament with a trust for equal distribution amongst the creditors. What is the case P One creditor has, by means of an execution abroad, been able to obtain possession of part of those assets. The Vice-Ohancellor was of opinion that this was the same as that of one cestui que trust getting possession of the trust propei-ty after the property had been affected with notice of the trust. If so, that cestui que trust must bring it in for distribution among the other cestuis que tnist. So I too am of opinion that these creditors cannot get any priority over their fellow creditors by reason of their having got possession of the assets in this way. The assets must be distributed in England upon the footing of equality," STRAITS SETTLEMENTS, 577 And Lord Justice Mellish, says : — " It is said that the assets are subject to the law of the place where they are. I quite agree that if the law of the place where they are had given a charge of that nature on the assets prior to the time when the petition for winding-up was presented, or possibly prior to the time when the winding-up order was made, and a judgment, for instance, had been put on the register, that might, by the Law of Bombay, have constituted a charge on the property of the Company, and then the trust for the benefit of the creditors would have been subject to that charge. But here there is no allegation that the judgment in Bombay, any more than a judgment here, simply quel judgment, operates as any charge at all. It is quite clear that it does not, and that until the execu- tion and attachment have been issued and executed, there is no actual charge on the property. That charge is subsequent to the creation of the tmst, and is made by the particular appellants here with full notice of the trust. The consequence necessarily follows that in this Court these creditors cannot be allowed by such means to obtain priority ; and that they must give up, for the benefit of the creditors, what they have so obtained." This appears to me to be in point, and sufficient for the decision of the present case. There remain's the question raised by the Attorney-General as to the status and authority of the Court in Selangor, and as to the amount of recognition to which its decrees are entitled in this Court. The Attorney-General contends that the Protected State of Selangor is not a civilised State, and that the comity under which, according to our law, the judgments of the Courts of civilised powers are treated with respect and held valid as legal proceedings, does not apply in relation to Courts of such States as Selangor. The contention is to the point in the present case and in this way. That if the order of the Court of Selangor were not to be regarded as of legal validity, then the Bank would be in the position of a creditor who had collected the assets abroad without any legal process or authority, and there would then be no doubt as to its liability to pay these assets into the liquidation. As I understand the contention, it was urged, first, that in this particular case the proceedings of the Court were so contrary to natural justice as to disentitle its judgment to respect. But there is nothing relating to the subject-matter of that judgment, or to the parties which throws any doubt upon the jurisdiction of the Court, nor is there anything that I can see in the facts before us to warrant the conclusion that it exercised the jurisdiction in a manner inconsistent with the rules of natural justice. If the Court in Selangor had had notice of the liquidation, there would be more to be said for this contention. In that case, if it had decided to act upon the principles of well-regulated justice, as English Courts regard them, there is no doubt that it would have confined itself to getting control of the Selangor assets until proceedings here had made them available to Selangor creditors pari passu with creditors here, but there is no evidence that it had such notice. It may reasonably have anticipated winding-up proceedings here, but that is another matter, and in the absence of that evidence, I repeat that its action does not appear to be necessarily unreasonable or contrary to natural justice. Then there is the more general suggestion that the Courts of these Protected States are semi-barbarous, and as such prima facie O'Mallet, C.J. 1800. I'll re The Eawano Tin Mining Co., Ltd. & The Chab- TBEED Bank OP India, ArSTEAMA & China. 578 THE SUPREME COURT. Wood ) & Pel- V LEBGAU.) 1890. J.J In re The Bawano Tin Mining Co., Ltd. & The Chae- TEBED Bank OF India, Australia & China. disentitled to recognition as Courts. That raises a question of some importance as affecting the rights and security of traders embarking capital and carrying on business in the Protected States, and also I think, as affecting the good understanding which one would wish, that the law should, as far as possible, assist tojnaintain between the British power and these States. But the objection upon which we are asked to act, comes before this Court only as a suggestion thrown out, but not supported by any argu- ment from evidence or from facts within the judicial notice of this Court, and there is nothing to sustain it. The authority of these Courts may be examinable, but I think that prima facie and upon general principles it is to be accepted, and that it is for those who object to shew good reason for their objection, and such reason has not been shewn here. That disposes of the legal questions, but with reference to this last point, I think it may be as well to observe that the conclusion so far, negative though it be, is in accordance with public convenience. The status of these particular States is matter of general knowledge, and what we know of them would lead us to wish that the title of their Courts to respect should be liberally construed. Those Courts I believe administer English Law through the medium of English Judges. They are an evidence of a wish oa the part of the Protected States to take a wise advantage of one of the best features of our system of oi'der. It would be obviously a matter of regret if on legal grounds this Court were forced to the conclusion that such Courts ought not to be considered competent to administer justice. The effect of this decision is that the Bank must bring in the $36,000 of assets that it received in Selangor for distribution here, and it may then claim in respect of its judgment-debt, and also in respect of any debts of the Company that it can shew that it paid in Selangor. The Bank appealed, and the appeal was, under Ordinance 19 of 1889, Section 6, heard by Wood and Pdlereau, J.J. only, [Goldney, J. being absent from the Colony] on the 9th, 10th and 1 1th days of June, 1890. Nanson,tor the appellants, Bonser, [Attorney -General'] with him. Napier, for the respondent. Cur. Adv. VuU. June ItJth. The following judgments were delivered on Appeal. Wood, J. In this case I am of opinion that the judgment of His Honor the Chief Justice should be upheld, subject to the modification agreed upon by the parties in the suit. Although agreeing with the result at which the Chief Justice has arrived, I do so upon grounds not precisely identical, which grounds I now proceed to state. In The Oriental Inland Steam Co., ex-parte Scinde Railway Co., 9 L. E. Ch. App. 559, occurs the following passage : — " There may no doubt be some diflaculty in the way of dealing with assets and creditors abroad. The Court abroad may sometimes be not disposed to _ assist this Court, or to take the same view of the law as the Courts of this country have taken, as to the proper mode of dealing with such companies, and also with such assets. If so, we must submit to these difficulties when they occur." STRAITS SETTLEMENTS. 579 This view, which is adopted by Mellish, L.J., is, as I take ^"^ 7jj, it, law, and the authority of the ease is, as I understand it, to the lbbeau.) effect that the assets in Selangor are, by reason of the notice 1890. which the appellants had of the proceedings here, subject to a ~ ~ trust in favour of the general body of creditors, unless there be xhe Rawano a judicial decision dealing with those assets in another and a Tin Mining different manner. Here it is, as I understand, asserted by the Co.,Jjtd. appellants that the foreign Court of Selangor has dealt with TheChae- respect to these assets and the rights of the a.ppellants in a terkd Bank definite way, and that the assets were by force of that decision austeaha subject to the rights conferred by it in favour of the appellants. & China. Also, that its effect was to decide not only the amount alleged to be due to the coolies, but the validity of their claim and its priority over that of other creditors, or again, should it be clear that the Court of Selangor rightly or wrongly decided that the appellants should not be allowed to touch the assets, except after payment of a certain sum, even arbitrarily imposed, the Courts here being satisfied that the appellant had really paid the sum would allow them to deduct that sum from the assets in Selangor which they bring into Court here to be duly administered by the Official Liquidator in this Colony. This dealing with the assets and the right of the appellant is evidenced by a record of the proceedings in the Supreme Court at Selangor. T have consid- ered that, in this appeal, the judgment of the Court below as to the force and effect of this so-called order of the Court at Selangor is open to question, as being, although in some sense a matter of fact, still matter of law, as being the judgment of the Court below as to the construction and force of a document. I confess that from the first I had much difficulty in regarding in a serious light this so-called order. Judging not only from the form in which the proceedings come to us, but also from the nature of the order made, one might well doubt whether there exists in the State of Selangor any Supreme Court at all, in the sense in which it is understood to exist by the comity of civilized nations, a Court formally constituted and presided over by Judges, with no political bias, — but leaving these considerations out of the question, and looking at the proceedings as the proceedings of a foreign Court of competent jurisdiction, we have, as I take it, to see whether this order of the Court is in reality an order, or whether it is not a mere contract entered into between the parties, to which the Court has assented as a matter of convenience and expediency to the parties concerned. When a Court simply exemplifies the result of its judgment, it may be taken that the matter decided is final, and we should give effect to its judgment without regard to the reasoning whereon that judgment is founded. But where, as here, the proceedings are a part of the record of such judgment, it seems to me that the law has a right to consider these proceedings, with a view to seeing what matter was in dispute and what findings of law or facts are apparent on its face. It appears to me on perusal of these proceedings that no matter of fact or law is raised or decided, but that it is merely a contract entered into 580 THE SUPREME COURT. Wood . & Pel- LEBKAU 1890. '] i .-.!"■ t In re Thb Rawano Tin Mining Co., Ltd. & The Char. Australia & China. in a place which was a Court of Justice, and to which the Court has given the countenance of its approval under the form of an order. This contract I consider to have been made under cii-cum- stances which give it no validity as evidencing the status of any person or any thing. The proceedings in the Court of Selangor are proceedings in bankruptcy, and we may assume that the assets of the party bankrupt are to be distributed according to the law of Selangor. Thereupon the appellants, creditors of the bank- TEBED Bank rupts, were at liberty to proceed in bankruptcy before the Court OP India, of Selangor, or to try to arrange matters in a different way, and they accordingly did try to arrange matters in a different way — the way of a contract between the parties there in Court. That the Court did insist on the condition of the coolies being paid, as having prior claims, is not, so far as I can see, apparent on the proceedings, nor reasonably to be inferred therefrom. I assume that when a matter is in dispute before a Court and all parties are before it, the Court may make an order by consent, which does fix the status of persons and things, and all parties will be bound by such decision ; but in this case the circumstances are different. The agreement is not made in the presence of all parties, and it deals adversely with the interest of absent parties, creditors in Selangor. It is in fact a meeting of certain persons wherein a contract is made, whereby certain advantages are intended to be secured to the Chartered Bank, in payment of certain sums which it is ascertained are due, and which the Court afterwards finds are due in respect of the wages of certaia coolies. The advantage to be gained by the Bank is the priority of their debt, and although that priority is not now insisted on, except as regards the coolies' wages, yet we have to look now not on the claim of the Court as modified by circumstances, but on the character of the transaction as it existed at the time of its taking place. This priority although not now insisted on, was, as I take it, a legal fraud on the rights of other parties, other creditors who existed at the time of such contract, whose consent was never got, and whose rights were invaded by it. Upon this ground I think that the case of The Oriental Inland Steam Navigation Go. v. The Scinde Railway Go. applies, and that the appellants cannot now, after notice, set up the so-called order of the Court of Selangor, which I hold to be a mere agreement not establishing in their favour any valid rights. Pellereau, J. The appellants realised out of the Company's assets in Selangor a sum of $36,268.89 out of which they applied $18,510.18 to the reimbursement of certain sums which they allege to have paid to certain creditors in Selangor having a priority by virtue of an order of the Selangor Supreme Court of the 10th September, 1889, and $17,758.71 to part payment of a sum of $26,790.9 for whichthey obtained judgment both in Singa- pore and Selangor. They raise no contention with regard to the $17j758.71 for which they are ready to account and to rank pari passu with other creditors in this Court, but with regard to the sum of $18,510.18 they claim to retain $18,057.25 of it by virtue of the priority which they allege was given to them by the Selangor Straits settlements. 58i Judicial order of the lOth September, 1889. On the 2nd ^"o**'),. September, 1889, a petition was filed in this Court for the wind- ^^^^j ing-up by the Court of the Rawang Co., and a winding-up order 1890. was made on the 23rd September, 1889, when the respondent was ' — appointed OfB.cial Liquidatof. By Sections 95 and 212 of the the Rawano Companies' Ordinance, 1889, all dispositions of property of the Tin Minino Company made between the 2nd and 23rd September, 1889, are Co.,^td. void, and it is argued for the respondent that the appellants could The Chae- not obtain by virtue of the Selangor order of the 10th September, tebbd Bank 1889, any right of priority, and that the whole of the sum of AusTBAwi- $18,510.18 must be accounted for to the respondent. There is &China. no doubt that by the effect of the abovementioned sections, a trust is created for the benefit of the creditors of the Company generally, and there is no doubt in my mind that the trust extends to all the assets of the Company in the foreign State of Selangor, subject to the laws and judgments in the State con- cerning property existing within its territorial limits. This I hold to be clear from the decision in the case of The Oriental Inland Steam Co., L. R., 9 Ch. App. 557. It is found as a fact by the judgment appealed from, that the appellants had notice of the winding-up petition and order before they were in a posi- tion to realise the assets of the Company in Selangor, and this fact cannot be gainsaid by the appellants, who have not obtained leave to appeal on questions of fact. The disposition of those assets in their own favour was therefore void, and they should- account for the $18,510.18 unless it be shewn that by the law or the Judicial order in Selangor, they or the persons whom they have paid, have a right to priority over those assets to that amount. I may here assert that at the Bar the Counsel for the respondent has consented to the Bank being in this Court placed in the position of those persons, if it can shew in this Court that they had claims and rights to preference and that the Bank has paid them. It was contended for the respondent that the Selangor order of the 10th September did not emanate from a Court of law ; that it does not bear the seal of the Court ; that the document produced is not a Judicial order or Judgment ; and that although the judgment appealed from has found as a fact that it is a judgment, the respondent is entitled to urge that this finding, which is based upon the construction of a writing, is erroneous. The respondents' right to raise this contention is clear on the ground stated, but when I consider the document itself, and the fact that under an order of that Court the property of the Company was seized and put up for sale, I agree with the Court below that the document discloses an order made by a Court having jurisdiction in Selangor. The existence of a seal is not necessary to constitute a Court. But now arises the ques- tion — ^What does that order purport to do ? It was not given iipon any contention of pai-ties ; it does not express the law of Selangor ; it does not state that under it a right of priority exists in Selangor on behalf of labourers, managers, or others, over the property of their employers or debtors ; it does not acknowledge a right existing by law in favour of the appellants, and aa the 582 THi! SUt*RtiMte COtJRt. Wood ikPBL- liEBEAU 1890 1j.j In re The Ea-wano Tin M1N1N& Co., Ltd. & The Chab- teked Bank OF India, austbalia & China. petition in bankruptcy was withdrawn and the Court was ignorant of tbe winding-up order or petition for it in Singapore, it cannot be argued that its order was an implied recognition of a right to priority on behalf of any one under the law of Selangor. It simply states and gives effect to a private arrangement between the appellants and certain alleged creditors of the Eawang Co. concerning the disposition of the assets of that Company in Selangor, an arrangement which gave the appellants the liberty of appropriating to themselves the proceeds of those assets for the reimbursement of certain sums which they offered to pay, and for payment by preference of the sum of $26,790.09 due to them. Such a judicial order is not the statement of a law, or custom, or the recognition of a right to which the trust created by the Companies' Ordinance, 1889, can be made subject. It is in reality an arrangement made for the convenience of the parties thereto, and has no greater force than the private arrangement between them, which cannot under the circumstances validate the disposition of the Company's assets. Had it been shewn to my satisfaction that the judicial order declared the law of Selangor, or even that the assets of this Company could not have been placed within the control of this Court without the $18,510.18 having been paid in Selangor, it might have been unfair to ask the Bank to account for the assets here without being reimbursed the outlay which it had been put to ; we might then have been in the predicament pointed out by Sir W. M. James, L.J., in the case of The Oriental Inland Steam Navigation Co., when he says : — ■' There may no doubt be some difficulty in tlie way of dealing witli assets and creditors abroad. The Court abroad may sometimes be not disposed to assist tluB Court or take the same view of the law as the Courts of this country have taken, as to the proper mode of dealing with svicli companies, and also with such assets. If so, we must submit to these difficulties when they ocoui'." It may be that a necessity existed for the payments alleged to have been made by the Bank, such necessity may be suspected, but its existence has remained in the dark and 1 do not see sufficient evidence from which I cau infer it as a fact ; under these circumstances, the Bank, which had notice of the trust, cannot reap the benefit of a disposition of assets which is void by our law, when it is not shewn that the law of Selangor, where the assets were, can be held to be different from it. The Bank having chosen to pay its money to parties in Selangor under a judgment or order by consent of "this nature must take the risk and cannot complain that it should account for the assets appropriated by it to their refund; and I consider that it should account for the $18,510.18 as well as for the $17,758.71. The judgment appealed from should therefore be upheld, with a slight variation which is consented to, that the words at the end, to2 : " Under 'the Companies' Ordinance, 1889," be struck out. Judgment affirmed with cods, Court certifying for two Counsel. STfeAItS SETtLEMBNTS. 583 AHAMED MEAH & ANOE. v. NACODAH MERICAN. The entry of a marriage in a Kali's book, in consideration of which marriage, a promise is made, which promise appears in the entry and is 8igned,and thereafter sought to be enforced, is a "marriage settlement" within the Stamp Ordinance, 1885, and must be stamped before it can be admitted in evidence.- A contract to build a " suitable house " is too vague and uncertain, and cannot be specifically enforced by this Court nor can damages be awarded. Suit for specific performance of an agreement made in consid- eration of marriage or damages for breach of agreement — and, by amendment, damages for falsely representing that in consideration of the plaintiff marrying his [the defendant's] daughter, he the defendant would build and give the plaintiff a "suitable house," which marriage the plaintiff contracted in faith of such represen- t^ation. The plaintiff alleged certain acts of part performance Which the defendant denied. The defendant pleaded the Statute of Frauds. The agreement relied on was entered in the book of the Kali or Mahomedan priest who solemnized the marriage between the plaintiff and the defendant's daughter. That entry was as follows : — " Eve of Friday, the 16th day of Shaabaii 1292 [con-esponding to the 17th day of September, 1875.] Ahamed Meah bin Akri Mia, of Porto Novo, married to Ahamed Kulsom, Beebee, fondly called Che Som bin Nacodah Merican. The bride has attained the age of puberty. The dowry of five hundred and one dollars to be paid at some future time by the bridegroom. No expenses. And Kykuli, that is to say, father-in-law's gift u.nto his son-in-law Ahamed Meah one hundred and one diraham [gold coin of Southera India] which make two hundi-ed and eighty-three rupees. And also the gift of the father unto his daughter is two hundred and one diraham and gold jewelry, and he shall also build and give her a house which must be a suitable building. The Kykuli mentioned, nas been received by Ahamed Meah himself in the presence of the assembly at the marriage ceremony. And the father's gift unto his child has also been received by his child. The father was the wali [the guardian who gives in marriage] and the father authorised the celebration of the marriage of his said daughter with the abovenamed party. Witnesses of the marriage are those who set their hands below this. Finis. Signature of Ahamed Meah, in Tamil. Do. Nacodah Merican, do. Do. Dalbadasah, do. Do. Hajee Mahomed Amin, in Malay. Do. Mahomed Ismail, do. Do. Grolam Mahomed, in Tamil." Boss, [ Gatvthorne with him] for the defendant contended, that the entry was an agreement or marriage settlement and required to be stamped under the Stamp Ordinance, 1885 — they also contended the ambiguity in the agreement was a patent one, and the agreement to build a " suitable house " was too vague and uncertain to be enforced. Franks v. Martin, 1 Eden 309 ; Brace V. Wehnert, 25 Beav. 348 ; Taylor v. Partington, 7 De G. M. & G. 328; Agnew on the iStatute of Frauds, 122, 232-34, 269; Cooper v. Hood, 26 Beav. 293 ; Pearce v. Watts, 20 L. E. Eq. 492 ; and' Maddison v. Alderson, 8 L. R. App. Cas. 484 ; and no damages could be awarded where the contract was one that could not be enforced — Crompton v. Vane By, Co., 7 L. R. Ch. Div. 567 ; Foster PENANa. Pel- lEBEATI, J. 1890. March 5. 684 THE SUPEBME OOUET. Pel- LEBBAU, J. 1890. Ahambd Me AH & Anok. t). Nacodah JIebican. SlNaAPOBE. GOLDNET, J, 1890. March 6. V. Wheeler, 36 I,. E. Ch. Div. 697-8, on Appeal 38 L. E.- Ch. Div. 133; Elmore Y. Perree, 57 L. T. [N.S.] 333; Lavery v. Pursell, 39 L. E. Ch. Div. 508 — In Mahomed Salleh & Anor. v. Nacodah Merican [ante p. 463] , there was part performance, and the parties by their acts had rendered certain that which was uncertain. Adams, for plaintiffs, said>if the entry required to be stamped he was prepared to pay it — that the contract was no more uncertain than one to pay a "fair rent" or "at the best rent" — Gregory v. Mighell, 18 Ves. 328 ; Ghattoch v. Mullar, 8 L. E. Ch. Div. 177; Soanes v. Edge, Johns. 69, and Mayor of Cork v. Southgate, 38 L. J. Ch. Div. [N.S.] 141 — by a reference to the Eegistrar, it could be ascertained from the position of the parties, their habits, and customs, what would be suitable to the plaintiffs, as in Gregory v. Mighell, supra. Pellereau, J. [Having- disposed of the facts, and decided that there was no satisfactory proof of part pei'formance, proceeded — ] The entry in the Kali's book is clearly a marriage settlement, and as such, is liable to Stamp duty. The question of law which I have to decide in this case, hardly arises under the Statute of Frauds as there is a writing of some kind here — the question really is whether apart from the Statute, there is such a contract liere, certain in its terms, which the Court can enforce ? There must be certainty as to the subject of the contract. If it is uncertain as to the nature of the house to be built, if uncertain as to value, it would be difficult for the Court to enforce it. The house is said to be a " suitable house." Suitable to whom ? To the bridegroom or the father of the bride P The Court is left in doubt as to what way it is to be suitable. It is left in doubt as to the kind of house and as to its value. It is difficult to ascertain the minds of the parties. It is impossible to hold, on this contract, there was an agreement or concensus as to the subject-matter of the contract. I therefore hold the promise is void for uncertainty, and cannot be deemed to be specifically performed. I can also give no damages for the same i-eason. [He then dealt with the evidence, and held there was no fraudulent representation and proceeded — ] I must therefore find for the defendant on all the issues raised — but as the defendant made the promise seriously and solemnly, and now takes advantage of the law, I think the justice of the case will be met by my giving him only the costs incidental to the issue of part performance, and as to the other issues each party should bear his own costs. Judgment for defendant with { costs, [a.] TAN CHIN HOON v. TAN BOON TAY & OES. Bequests of leasehold property "to T. C. H. and to his male child or children," and in case of his dying without issue, gift over to his brother. At the date of the Will T. C. H. had uo child. Meld [by GoUiien, .T. and hy Court of Appeal] that the rule in Wild's Case, 6 Coke's Eep. 17 was not applicable, and T. C. 11. took only a life estate with remainder to his sous born [at date of action] or to be born, as joint tenants, and living at time of his death. [3.] The plaintiffs appealed, but subsequeutly dropped the appeal.— J.W.N.K. STRAITS SETTLEMENTS. SSS The weight of authority preponderates iu favour of the proposition that, the rule in Wild's Case is not applicable to personal property. The nature of this suit, facts giving rise thereto and arguments, sufficiently appear in the judgments. Bonxer, [Attorney-Gejieral] Davidson with him, for plaintiff. Napier, [Sisson with him] for defendants. Cur. Adv. Vult. GOLDNBT, J. 1890. Tan Chin HOON V. Tan Boon Tat & Ors. March 10th. Goldneu, J. In this action the Court is asked for a declaration as to the true construction of so much of the Will of Tan Koon Swee, deceased, as relates to four leasehold lands in Singapore bequeathed in the said Will to the testator's son, " Tan Chin Hoon, and to his male child or children." It has been con- tended on the part of the plaintiff that I am bound by the rule in Wild's Case, 6 Coke, 17, to hold that the plaintiff Tan Chin Hoon took an estate tail, the rule being that where there is a gift to one and his children, and there are as in this case no children at the date of the Will, it vests an estate tail in the parent. On the part of the defendants it was contended that the rule in Wild's Cane is not applicable to personalty, and that even if this rule did apply that there is enough on the face of the Will to shew that the intention of the testator was that the son. Tan Chin Hoon, should be tenant for life with remainder to his children. I do not consider that the construction of the bequest in this Will is governed by the rule in Wild's Case ; as far as I can judge, it has always been held by the Courts that this rule is not directly applicable to the construction of testamentary disposition of personal estate. There were no children in existence at the time of the bequest; the question is whether the words "to his male child or children," which I think are properly words of '"purchase," should, for the purpose of furthering the intention of the testator, be considered as words of " limitation." The general rule of construction is that you must give to words their ordinary mean- ing, unless that meaning leads to absurdity or repugnancy, or contradicts the rest of the instrument. I have arrived at the conclusion that the giving to the words " male child or children " their primary signification does not contradict the rest of the instrument, and is not repugnant to the intention of the testator as indicated by the other parts of his Will. The conclusion at which I have arrived is in consonance with the judgment of this Court in the case of Taii Tek Soon and others v. Tan Chin Seng and others, No. 179/85. [a.] That was a case arising out of the same Will as in this case, but upon a bequest to another son. The terms of the two bequests although not quite identical, are so similar in their wording that I should almost feel bound by that decision, even if I did not agree with it. I however, do agree with it, and think that to apply any other construction would be to defeat the testator's wishes. I therefore declare that according to the true construction of the trusts of the Will of Tan Koon Swee, BO far as the same relates to the premises mentioned in the [o.J Not reported. 586 a?itE stiPREitE cotrM. O'Mallet, C.J. Wood ") k Pel- ^J.J LEBEAU.J 1890. Tan Chin HOON V. Tan Boon Tat & Oes. pleadings, the plaintiff, Tan Chin Hoon, took an estate for life in the said premises with remainder to his male children, born or to be born, as joint tenants. Costs out of the estate. June 17th. The plaintiff appealed, and the Appeal was now heard before O'Malley, C.J., Wood and Ptllereau, J.J. Bonser, \_Attorney-General] and Bailey, for appellants. Napier, \_Sisson with him] for respondents. O'Malley, C. J. In this case 1 am of opinion that the words " I give, devise, and bequeath unto my son. Tan Chin Hoon, and to his male child or children the property specified " are to be construed in this Will as giving a life intei'est to Tan Chin Hoon with remainder to such male child or children as he might have living at the time of his death. The general rule of construction of these words would appear from the authorities to be that in themselves prima facie they would give an interest to Tan Chin Hoon and any male children whom he might have at the time of testator's death as a class jointly. That rule is laid down and followed in DeWitt v. DeWitt, 11 Simons, 41 ; Be Grocheit, 2 Ph. 553 : Newill v. Newill, 7 L. E. Ch. Ap. 253, and Fisher v. Webster, 14 L. E. Eq. 283. But it appears to be part of the rules that the prima, facie construction may be regarded as subject to modifications, on other provisions in the Will indicating intention inconsistent with that construction. Now, here there are provisions which seem to me sufiB.cient in this case to negative its prmrt/ucie construction. 1st: The gift over to the brother is to be in the event of Tan Chin Hoon's dying without issue. How could that have any meaning if in the event of Tan Chin Hoon having no children at the time of testator's death, he took an absolute interest, as he must do, under the abovementioned construction ? It is evident, I think, that any children alive at Tan Chin Hoon's death are suflicient to prevent the gift over ; therefore any male children alive at Tan Chin Hoon's death are sufficient to keep the property from passing on from Tan Chin Hoon. And his male children "are in fact to have an interest in the property, but clearly such children might be all children born after the testator's death ; it must be intended there- fore that such children shall have an intei-est under the Will, and the only way of affecting that is to give the construction on which I rely here. With reference to the contention of the Attorney- General I may say that I do not think that the case of Fisher v. Webster decides that the words " without issue " in the gift over, do not prevent the legacy being joint. The Vice-Chan eellor does not refer to this as it was not material to the purpose of his judgment, the only question there being, whether the gift over, after the death of the legatee without issue, failed as being too remote. Wood & Pellereau, J.3., concurred. Appeal dismissed with costs. STbAlTS StJTtLEMteN'TS. 58? CEANE V. YEOH HONG GHEE. The period of limitation for an action for rent founded on a covenant in a lease is SinoaporE. twelve years under Act 14 of 1859, Section 1, Clause 11, and not three years under Clause 8. Goldnet, J. Clause 8 of Section 1 applies only to actions for rent where there is no lease under 1890. seal. The nature of this case, and the question that arose in it, sufficiently appear in the judgment. W. Nanson, for plaintiff. Donaldson, for defendant. Goldney, J. This was an action to recover 12 years' arrears of rent amounting to $150. The only point in dispute is whether the plaintiff's right to recover arrears of rent is, or is not, limited to a period of 3 years by Indian Act 14 of 1859, an Act to provide for the Limitation of Suits. This action is brought upon the covenants of leases, and is founded on a specialty within the meaning of the 11th Sub-section of Section 1 of the Act. By this sub-section the period of limitation is 12 years. On the part of the defendant it is contended, that the case in governed by Sub- section 8 of Section 1, which " to all suits for the rents of any buildings or lands" gives 3 years as the period of limitation. At the time of the passing of the Indian Act 14 of 1859, the English Acts on this subject were 3 & 4 Wm. IV. c. 27 and 3 & 4 Wm. IV. c. 42. By the 42nd section of the 1st Act an action to recover " arrears of rent" was limited to 6 years, and by the 3rd section of the last Act " all actions of debt for rent upon an indenture of demise" wei-e limited to 20 years. Under the English Acts it has always been held that 3 & 4 Wm. IV. c. 42, Section 3, applies to actions upon bonds or covenants for the payment of rent or interest in respect of money charged upon land, and that such actions may be brought, notwithstanding the 42nd section of 3 & 4 Wm. IV. c. 27, which applies to remedies against land only. After some consideration, I have come to the conclusion, that the principle of the English Act applies to the Indian Act, and tbat Sub-section 11 is not limited by Sub-section 8, and that an action upon a covenant for the payment of rent comes within Sub-section 1 1, and not within Sub-section 8. I find therefore for the plaintiff a verdict for the $150. March 10. SHEDUMBRUM CHETTY v. KENG CHEOW & CO. It is no defence in law to an action on a Promissory-note, that when the amount Sinoapoke. became due the defendant paid a part thereof to account, and the plaintiff agreed to accept a new note for the balance, which note the defendant Wiis always ready and Goldnet, J. offered to give. 1890. Action on a Promissory-note to recover $2,000 and interest. March 19. Defence that the note sued on was originally a note for $3,000 ; that when the note became due it was agreed between the defend- ants and the plaintiff" that the defendants should pay $1,000 to account of the said note, and that one of them should make and give to the plaintiff within a fortnight thereafter a new Promissory- note for the balance of $2,000 payable within four months, and the plaintiff agreed to take the said new note in satisfaction of SS8 THE SUP&EME COURT. GoLBNET, J. the note now sued on ; that the defendants in pursuance of this ^^— arrangement had paid the plaintiff the |1,000, and the one Shedum- defendant has always been ready and willing to make and give, BRDM and now offered to make and give, to the plaintiff, the new Pro- Chettt niissory-note for $2,000, but the plaintiff after receiving the Keng Cheow § 1 ,000 aforesaid, had refused to accept the new note and had & Co. Ijrought this action on the original note within the said fortnight. The plaintiff demurred to this defence. She.arwood, for the demurrer contended, that an accord and satisfaction to be a defence must be executed and satisfied. The plea did not shew that such had been done here — the mere being ready and willing to do it, was not sufficient. Hardman v. Bellhouse, 9 M. & W. 596 ; Gabriel v. Dresser, 15 C. B. 622 ; Allies v. Prohyn, 2 C. M. & R. 408. Payment of a smaller sum was no satisfaction of a larger — Cumber v. Wane, 1 Sm. L. C. 288. In Sibree v. Tripp, 15 M. & W. 83, it was held the giving of a negotiable instrument was a satisfaction of an equal or larger sum due, but that was because the instrument was negotiable and something different from the original debt, which was not negotiable. — In the present case the note sued on was negotiable. In Foakes v. Beer, 9 L. R. App. Ca. 605, the House of Lords reviewed in detail the whole law bearing on this subject, and decided that there must be some new consideration for the new agreement, some independent benefit to the plaintiff, actual or contingent. There was no new consi- deration for the arrangement here set up — the $1,000 paid was a payment for a liability already incurred, a part of the debt due, and was no independent consideration. The defence in effect, said the plaintiff, although he held a note on which he could recover the $2,000 agreed to take a new note, and to bar his remedy for four months — the giving up of a Promissory-note in which three persons were liable, for one on which one person was to be liable — Finnel's Case, 5 Rep. 117, did not apply, though it was there said the giving of a stick of sealing-wax would be a good considera- tion — the Court, it was true, would not enquire into the value of the consideration as there could be no saying what value the plaintiff had set on it — but the thing offered in place of the old must'be new and different in character, and must moreover have been accepted by the plaintiff, and not merely tendered by the defendants. Napier, for the defence contended, the giving of a negotiable security for an old debt was a sufficient consideration. Sibree v. Tripp [supra] ; Sard v. Rhodes, 1 M. & W, 153 ; Goddard v. O'Brien, 9 L. R. Q. B. Div. 37 ; and Bidder v. Brydges, 37 L. R. Ch. Div. 406. There had been a "novation " — the substituting of one debt and liability for another. Scarf v. Jardine, 7 L. R. App. Ca. 345, 351 ; the acceptance of a single liability in substitution of several joint ones was sufficient— Goode v. Cheeseman, 2 B. & Ad. 328, and Lyth v. Ault, 7 Exch. 669. An accord with mutual promises to perform at a future time was binding. 1 Sm. L. C. 298 ; at least as an equitable defence — fonassohn v. Ransome, 3 C. B. [N. S.] 779. Cur. Adv. Vult, STRAITS SETTLEMENTS. 589 March 29th. Goldney, J. The question before the Court is whether the statement of defence is in law any defence to the action. On an action on a Proraissoiy-note the defendant has pleaded part payment and an agreement that he should within two weeks of such payment give to the plaintiff a new Promissory- note for the balance. The note for the balance has not been given, and the action was commenced befoi-e the expiration of the alleged period of two weeks. It seems to me to be a settled principle that a mere agreement to substitute another thing in lieu of the original obligation is void, unless carried into execu- tion and accepted as satisfaction. No action can be maintained on the new agreement, nor can the agreement be pleaded in bar to the original demands. Lyne v. Bruce, 2 H. Bl. 327; James v. David, 5 T. R. 141. A mere readiness and willingness to give the Promissory-note for the balance cannot be said to be a carrying into execution of the agreement which is to extinguish the original debt. The effect of " novation " is, that the original debt is extinguished in the same manner as by actual payment. A new obligation however by which the creditor extends the time of payment, is not, in the Civil Law considered a " novation." In actions of debt a plea of tender must-, not only allege that the defendant has always been and is still ready and willing to pay the debt and that he tendered the requisite money, but must also be accompanied by a "profert in curiam" of the money tendered. In this case the defendants' pleading is not accompanied by a " profert in curiam " of the alleged note for the balance. I do not consider that the statement of defence is, in law, an answer to the action. Demurrer allowed with co»ts. Goldney, J. 1890. Shedxtm- BEDM Chettt V. Keng Cheow &Co. REGINA V. CHIN AH CHI. O'Mallet, C.J. Pel- LEBEAU ( J T &GOLD- NET. 1890. :.}" March 20. A prisoner was charged before a Magistrate with iisins threats in order to induce Sinqapobe per9on.s to become members of a Secret Society. The Magistrate ordered the Court to be cleared and proceeded with the case in private. Seld, the proceedings were irregular and the conviction bad ; and under Section 33 of the Appeals Ordinance 12 of 1879, the proper form of procedure in this Court was to quash it. The prisoner was tried before E. W. Birch, Esquire, Magis- trate, at Malacca, with having used threats to certain persons in oi'der to induce them to become members of a Secret Society. The Magistrate, at the request of the Police who represented that " as a matter of public policy " it was advisable to have the proceedings taken in private, ordered the Court to be cleared, and after this was done, proceeded with the trial and convicted the prisoner. The prisoner appealed and the appeal was heard before Wood, J. on the 28th September, 1889, who considered that what took place had occasioned a failureof justice, within Section 33 abovementioned, and quashed the conviction ; but at the request of the Crown reserved under Section 38 of the Appeals Ordinance 12 of 1879 the appeal for the consideration of the Court of Appeal. 590 THE SUPREME COURT. O'Mallkt, honser \_Attorney -General] for the appellant contended, that Pel ^\ *^® exclusion of the public on the ground of public policy did lEBEAu I "ot vitiate the proceedino;s. The exclusion was necessary to the AGotD- 1 ■ ■■ ■ ends of justice. 1890 Groom, for the respondent. O'Malley, C.J. The conviction must be quashed. The Eeqina ^.^^jg jjj public Courts is publicity, and if the proceedings were ChinAhChi. conducted in private, good grounds must be shewn for the exclu- sion of the public. There might have been good grounds, but what was before the Court did not constitute such. The proceed- ings were tlierefore irregular and the conviction bad. The proper form of procedure under Section 33 was to quash it. Pellereau, and Goldney , J.J., concurred. Conviction quashed, [a. J YEO KIAN GUAN v. SEAH LIANG SEAH. SiNGApoRR. Where a charge of fraud was alleged agaiii.st a deceased per.ion, forty-five years after the transaction sought to be impeached, though the plaintiff was then unborn GoLDNET .1. *nd the deceased person stood in a semi-fiduciary position to him, Iggo, ' Seld, there must be evidence of the fraud before the transaction could be set aside, and suspicion merely was not sufficient. April IG. f'l® mere fact of a person being named in a Will as an Executor, does not prevent him purchasing the testator's property, if he has never taken upon himself the duties of Executor or Trustee, unless he makes use of his position in order to commit a fraud. The facts and questions in this case, sufficiently appear from the judgment. The case was heard on the 9th and lOth April, and on this day. Bnnser, {^Attorney-General] Everard with him, for plaintiff, cited Fox V. Makereth, 1 W. & T. L. C. in Eq. [4th Ed.] 150, 162 ; Wederhun v. Wederbun, 4 Mj'. & Cr. 41 ; 1 Wm. on Exors. 381 ; 2 Wm. on Exors. 1891 ; Worly v. Worly, 18 Beav. 58 ; Podlethwaite V. Rickman, 36 W. E, 808 ; Birch v. Allen, 8 L. R. Ch. Div. 314, and Lewin on Trusts [6th Ed.] 428. Davidson, [W. Nanson with him] for defendant cited Lotven v. Fulton, 19 Sim. 104,115; Stacey v. Elph, 1 My. & K. 195; On v. Newton, 2 Cox, 274 ; Clarke v. Clarke, 9 L. R. App. Cases 733, 737, 743; Lewin on Trusts, 432; Godefroi on Trusts, 816; Gregory v. Gregory, Coop. 201, and Baker v. Read, 18 Beav. 398. C'Ur, Adv. Vult, 21st April. Goldney, J. This is an action brought by the plaintiff as administrator of Yeo Kian Guan against the defendant as executor of Seah Eu Chin to recover from the defendant a large quantity of property which he alleges Seah Eu Chin held as trustee for Yeo Kian Guan and not as owner. The plaintiff's case is based upon the fact that Yeo Kim Swee, the father of Yeo Kian Guan by his Will appointed Seah Eu Chin, Executor and Trustee for his son. [a.] See Regiiia v. Dorasamy Villay, antfe p. 350, and also Sajee Shaih Abdul Coder y. Ais/ia If Ors, In re Kynnersley, antfe p. 151, STRAITS SETTLEMENTS. 591 The property which the plaintiff claims, consists of: 1. — Property bought by Eu Chin from Kim Swee before his death. — 2. — A plantation and houses. 3. — A house and gi'ound in Old Bridge Road. 4. — Houses and land in North Boat Quay, South Bridge Road, Upper Circular Road, and Carpenter Street. Items 2, 3 and 4 are alleged to have been the testator's property at the time of his death and to have been subsequently acquired by Eu Chin. The difficulty I have to contend with in this case is that the transactions which I am asked to set aside took place some 45 years ago before the plaintiff and defendant were born, or if they were born, they could not have been more than 2 or 3 years old. I can only act on evidence, I cannot decide this case upon what may be called suspicion. The plaintiff or his authors have allowed 45 years to go by, without a suggestion that the defendant's father had acted in any way prejudicial to plaintiff's interests, and if there is now a difficulty iu proving his case it is his own fault. The defendant's father died in September, 1883, at which time the plaintiff must have been 26 years of age at least. No satisfactory reason was given on behalf of the plaintiff why this action was not commenced before Kim Swee's death. The plaintiff himself was not examined as witness. To deal first with the land purchased by Eu Chin from Kim Swee before his death, thei'o is no evidence that this transaction was tainted with fraud, or as far as I can see, that there was any fiduciary relation between the parties at that time. On the other hand the defendant has been able to produce from his father's papers a bill of costs from his Lawyer which shews that at that time Kim Swee and Eu Chin were mutually engaged in large land transactions, and that Kim Swee and Eu Chin were acting under legal advice when Kim Swee's interest in certain properties was assigned to Eu Chin. I have come to the conclusion, that the purchase of the property by Eu Chin from Kim Swee before his death was a bond fide transaction and cannot now be disturbed. The 2nd item, a plantation and 2 houses, the defendant stated that he could find no trace among his father's papers of this item having even been in his father's possession ; on the part of the plaintiff it was admitted that they could not establish their case as to the plantation. The same may be said of lease No. 759 of the remainder of the property, all with the exception of lot 67, 1 house and ground in Old Bridge Road, was held by Eu Chin under Government grants. Lot 67 was eonveyed to him by Yap Soo Leng the testator's executor. What the circumstances were under which Eu Chin received these grants from Government there is no evidence to shew, but it does appear these lots had been the property of Kim Swee and that the new grants to Eu Chin were not made until after Kim Swee's death. As to lot 67 the house and ground where Eu Chin lived and carried on his business was purchased by him from the testator's executor Tap Soo Leng. With regard to these two items the only Question for me to decide is one of fact, viz., whether or not Eu GOLDNKT, J. 1890. Teo Kian GUAN V. Seah Liano Seah. 592' THE SUPREME COURT. SeahLiano SbTah. GoLBKET, J. Chill took upon himself the duties of executor or trustee, if he did ^^' I think the hxw is quite clear that he could not buy the house Yeo Kian from himself or from bis co-executor and as to the other property liuAN granted to him after the testator's death he would have to give an account as to how it ceased to be part of the testator's estates and became his property. I have however come to the conclusion, that there is not evidence before me which would justify me in finding that Eu Chin ever acted as executor or took upon himself the duties of- a trustee. Probate was granted to the other executor with liberty to Eu Chin to come in and prove. The inference I am inclined to draw taking the documents as a whole, especially when I observe that the petition for probate was prepared by the same Lawyer who was acting a few weeks for Eu Chin in the settlement of mattei's between him and Kim Swee, is that Eu Chin abstained from proving the Will, or acting as trustee under legal advice, which considering the business relations in which he stood with Kim Swee was the ordinary and prudent advice which, under the circumstances, a Lawyer would give to his client, especially also as he apparently wished to buy the house where he lived and carried on his business. All the evidence of Eu Chin having acted as execuior or trustee I can call nothing more than gossip. To my mind the plaintiff's case as it stood on the Will alone was rather weakened than strengthened by the evidence. The mere fact of his being named in the Will as an executor would not prevent him purchasing the testator's land if he never took upon himself the duties of executor or trustee. I do not think it necessary to deal with detail points which arose during the trial. I think the plaintiff has failed to make out his ease. The verdict must be for the defendant. VA.NJOOE V. KALIAPAH CHETTY. Penanq. Where two Magistrates, sitting as a Court ot two Magistrates under Ordinance 13 ot 1872, Section 1, as amended by Ordinance 17 of 1876, Section 3, disagree, they have Pbl- no right to discharge the accused : their proper course is to refrain from giving their LEBKATT, J. verdict and to let the case go before other two Magistrates for trial de novo. 1890. April 29. The abovenamed Vanjoor charged-the abovenamed Kaliapah Chetty with cheating, under Section 420 of the Penal Code. The case originally was down in the list of J. W. Norton Kyshe, Esquire, Acting Second Magistrate, butby him was ordered to be tried before a Court of two Magistrates. The case was thereafter accordingly heard by W. Egerton, Esquire, and E. C. Jacobson, Esquire, silting as a Court of two Magistrates under Ordinance 13 of 1872, Section 1 et. seq. as amended by Ordinance 17 of 1876, Section 3. It was [inter alia] contended before them by Counsel for the accused that the case was one for a civil tribunal. On the conclusion of the evidence, the two Magistrates intimated that they were agreed that the evidence if believed disclosed an offence, and the case was not merely a civil one ; but on the point whether the evidence should be believed they disagreed. Mr, EgertOn STRAITS SETTLEMENTS. 593 being of opinion that the evidence should be believed and the accused convicted, and Mr. Jacobson being of opinion that the contradictions in the evidence rendered it unworthy of belief, and the charge should be dismissed. Having so intimated their i-espective views, a discussion arose as to what should under the cir- cumstances be the result. Counsel for the prosecution contending, that the accused should be committed for trial at the Assizes or the case be referred to two other Magistrates to hear and deter- mine. Counsel for the defence contending, that as the Court was divided as to the guilt of the accused, he was entitled to the benefit of the doubt and should be discharged. The two Magis- trates considered that according to the ruling of this Court at the Assizes in Reginaw. Lee Kan & Ors. [ante p. 560], they, as a Court of two Magistrates, had no power to commit the accused to the Assizes ; they also declined to allow the case to go before two other Magistrates on the ground that the case was determined a,nd could not be carried away further; they therefore ordered the accused to be discharged. They also intimated that for the same reasons, no fresh summons would be granted against him. The prosecutor appealed, and the appeal now came on for hearing. G. S. H. Gottlieb, for the appellant contended, that the Magis- trates had not determined the charge, and were wrong in thinking the case was determined and so could not be re-heard before two other Magistrates. They were also wrong in declining to permit a fresh summons to be issued. D. Logan, [^Solicitor-General] for the Magistrates, admitted he could not support their order. Pellereau J. said he was of opinion that the Magistrates were wrong to have discharged the accused. His learned brother Goldney and himself in a recent case [a.] had come to the conclusion that when two Magistrates sitting as a Court of two Magistrates differed in opinion they had no power to commib the accused to the Assizes. The reasoning of Goldney, J. was, that the Criminal Procedure Ordinance 6 of 1873, Section 2, contemplated only a committal by a single Magistrate or Justice of the Peace, and that two Magistrates sitting under Ordinance 13 of 1872 as amended by Ordinance 17 of 1876, had no such power given to them, and however absurd it might be that what could be done by one Magistrate could not be done by two, that, in his opinion, was the effect of the legislation on the subject. The reasoning that had led himself [Pellereau, J.] to the same conclusion was, that the accused when before a Court of two Magistrates was on his trial — he was put on his defence, and after he had so done, by cross- examining the prosecutor and his witnesses, and mating his statement and calling his own witnesses — all without having had an option or even a caution — to treat the trial as a preliminary enquiry and commit him to the Assizes, would not be fair to him and might possibly subject him to disadvantages which should not be the case. He still continued of that opinion and thought the Magistrates were right in the present case in refusing to commit Pel- lereau, J. 1890: Vanjoob V. Kaliapah Chettt. [o.j Rer/ina v. Lee Kan ^ Ors., ant6 p. 560. 594 THE SUPEEMB COURT. Pel- LBBEAtr, J. 1890. Vanjooe V. Kaliapah Chetty. the accused to the Assizes. What then were they to do when they differed ? Clearly to refrain from giving their verdict, and to discharge themselves from so doing [as this Court does with a Jury that cannot agree, for the two Magistrates are both Judge and Jury in the case before them] and allow the case to go before some other two Magistrates to be heard de novo and determined. The charge in this case was clearly not decided, the case was not determined and the order of the Magistrates must be set aside and the accused tried by a Court of other two Magistrates. Order accordingly. Penano. Pel- lekeati, J. 1890. May 5. In the goods of DUMSHBAH. The Court has power notwithstanding Section 493 of the Civil Procedure Ordi- nance 1878, to dispense with security for the due administration of an estate ; and in a case of special circumstances will exercise the power, and exempt the administrator from furnishing security. The petitioner Basawah was the father of the abovenamed deceased. In 1874 the petitioner in consideration of natural love and affection, conveyed certain lands in Penang Road [which he was possessed of in fee] to himself for life, and after his death to his wife Letchmee for life with remainder to his sons Bapoo and the abovenamed Dumsheah, in fee. The said Letchmee, Bapoo, and Dumsheah thereafter died intestate leaving the petitioner their only next-of-kin. Bapoo predeceased the said Dumsheah, and Dumsheah the said Letchmee. Both Bapoo and Dumsheah died infants of the age of thirteen years and twelve years respec- tively ; unmarried. The petitioner by these events was entitled to the said land for life under the aforesaid conveyance, and absolutely as sole next-of-kin of Dumsheah, the survivor of the joint tenants in remainder, in fee, as aforesaid. He bad lately contracted with a third party for the sale of the land to him, but Counsel had advised that he could not make a good title without taking out letters of administration to the estate of the said Dumsheah. The petitioner accordingly applied for letters and the same were granted him by Pellereau, J. on 28th April, 1890. Ross, [Scott with him] for the petitioner now moved that such letters might be issued to the petitioner without his being required to give the usual or any security. He read an affidavit by the petitioner setting forth the above facts, and further stating that the deceased left no debts, and his funeral expenses had long since been paid bj him, and he alone was now absolutely entitled to the estate of the deceased. He referred to Section 493 of the Civil Procedure Ordinance, 1878, and to The goods of Sandilands, deceased [September, 1889, unreported] where Wood, J. had dispensed with security as the administrator was only the attorney of the next-of-kin and had merely to remit the money to Scotland. Pellereau, J. doubted whether the Court had power to dis- pense with the security, and whether Section 493 was not STRAITS SETTLEMENTS. 595 imperative. He however directed the Registrar to search for and produce the papers and Registrar's minutes in the case cited, as well as any other precedent on the point. He said in the interval he would consult Woodj J. on the subject. 3rd June, 1890. TJoss, now renewed his application and the Registrar produced the Cause papers and Registrar's minutes in The Goods of Sandilands, from which it appeared that security had in that case been dispensed with. Pellereau, J. [after further consulting Wood, J.] said that both his learned brother and himself had come to the conclusion that the Court had the power to dispense with security in special cases. That Section 493 obviously required security where the admin- isti'ator had to account to othei-s, other than himself, either as being creditors or next-of-kin. In the present case the property had originally been purchased by the petitioner himself and by him had been conveyed to his wife and children who had all died, and he was now according to law absolutely entitled to the whole estate. There were also no creditors and nobody to whom he was to account. There was no necessity for security for an accounting to himself. Under the special circumstances of the case, Basawah would therefore be exempted from furnishing security. Order accordingly. Pel- lereau, .T. 1890. Inthegoodiof DUMSHEAH. NAGORE V. NAGORE GUNNY. In re SAVAVATHY CHBTTY. A cargo boat or tongkang is a " vessel " within Section 5 of the Bills of Sale Ordinance 12 of 3886, and therefore a Bill of Sale by way of mortgage thereof, is not within its provisions. Gapp V. Sond, 19 L. R. Q. B. 200, followed. The plaintiff having recovered judgment against the defend- ant, seized two tongkangs or cargo boats belonging to the defendant, and which were registered in his name under the Harbour Ordinance 8 of 1872. The claimant, Savavathy Chetty, held a Bill of Sale by way of mortgage over these tongkangs, such bill of sale being made in 1888, and in the form of bills of sale under the Bills of Sale Ordinance 12 of 1886. This bill of sale was registered in 1888, under the Bills of Sale Ordinance 12 of 1886, but was not re-registered — the consideration for it also was for a pre-existing debt. The claimant having put in a claim to the boats seized, the Sheriff took out an Interpleader Summons which now came on for hearing. G. S. H. Gottlieb, for the Execution-creditor [plaintiff] con- tended, that the bill of sale was void [inter alia] because it was made for a pre-existing debt, Section 8, Ordinance 12 of 1886; and also because it had not been re-registered. Section 14. Van Someren, for the claimant contended, that the bill of sale was not within the Bills of Sale Ordinance 12 of 1886, as the subject-matter thereof, these tongkangs or cargo boats, were not *' personal chattels " within the meaning of the Ordinance, but PENANa. Pel- LBEEAU, J. 1890. May 20, 596 THE SUPREME COURT. Pel- LEBEAC, J. 1890. Nagoee V, Nagoee GUNNT, 111 re Savavathy Chettt. were "ships or vessels" expressly exempted by Section 5. He referred to Meyappah Clietty v. Hassan Eussain [May, 1874, Ford, J. not reported]. The Union Bank y. Lenanton, 3 L. E. C. P. Div. 243 and Gapp v. Bond, 19 L. R. Q. B. Div. 200. Gotllieh, in reply [had time granted him to consider this point, and on the next day the case came on] contended, that Gapp V. Bond had no application to this Colony, as by the General Clauses Ordinance 1 of 1888, Section 3, Clause 27, a " ship " was defined — and the definition excluded the idea of a tongkang though it was not always exclusively propelled by oars. A " ship" was there defined as being connected with "navigation " — and "navigation" is defined in Webster's Dictionary as "the art of conducting a ship at sea by geometrical science or astrono- mical observations." A tongkang or cargo boat was not so navigated. Gapp v. Bond only decided that a " dumb barge " was a "vessel" — it also decided that a "Thames Wherry" was not a " vessel." It was no authority that a " tongkang " was one, Pdlereau, J. said that whether or not a tongkang was a "ship" within Section 5 of the Bills of Sale Ordinance 12 of 1886, was immaterial, as it was clearly a "vessel" within that section. Gapp v. Bond shewed there was a difference between the two words, and to his mind was decisive of the point that a tongkang was not within the provisions of the Bills of Sale Ordinance. The bill of sale was therefore good, and judgment must be entered up for the claimant with costs. Judgment for claimant, with costs. Singapore. O'Mallet, C.J. 1890. June 3. MEYER V. COLDENBURG & ANOR. A clause in an agreement requiring that disputes thereunder should be referred to arbitration, does not prevent any of the parties thereto suing in this Court thereon. In order to ou,st the jurisdiction of this Court there must be words expressly excludinp such 3urisdiction. Section 11 of the Common Law Procedure Act, 1854, was adopted in this Colony by Section 3 of the Civil Procedure Ordinance 4 of 18Y8, and is still in force here— but the provisions of that section must be complied with before a defendant can claim a right to go to arbitration under an agreement as aforesaid. Suit for partnership accounts of a business carried on by the parties under the n.ame of the Johore Distillery Company, for dissolution of the partnership and a receiver. Defence that by the parnership agreement all disputes thereunder were to be referred to arbitration, and that therefore this Court could not entertain this suit. _ Khory, for defendants contended, that the clause ousted the .lurisdietion of this Court, and the action should be dismissed. He referred to Law v. Garrell, 8 Ch. Div. L. R. 26; Gillett x. Thornton, ^9 L. R. Bq. 599; Plews v. Baker, 16 L. R. Eq. 564; milegordv. Watson, 14 L. R. Eq. 579; Randeqger v. Holmes, 1 O. r. ii. K. fa/9, and The Common Law Procedure Act, 1854, Section 11. STRAITS SETTLEMENTS. 59? Napier, for the plaintiff contended, that no such agreement would oust the jurisdiction, unless there were express words to that effect. By Section 1 1 of the Common Law Procedure Act, 1854, the right to go to arbitration could be claimed if its provi- sions were complied with, but that section had been repealed in England, and did not apply to this Colony. O'MaUey, C.J. The general principle of law being as stated by Mr. Napier, it is for the defendant to shew that there is some special provision to take the case out of the general rule. The provisions of Section 11 of the Common Law Procedure Act were adopted by Section 3 of the Civil Procedure Ordinance and remain in force here until repealed. The repeal in England does not affect us. That being so, the section lays down that the applica- tion shall be made in a particular manner within a particular time, viz., after appearance, but before plea and answer, and only in this manner can the parties avail themselves of it. The defendants did so apply the provision, but the order made on that application was subsequently set aside at the defendants' request on the ground that there was a misunderstanding as to its terms. The defendants renewed their application, but have not succeeded in gettingthe order, and it appears to me that the provisions of the section will not avail them further, and the action must proceed. O'Mallbt, C,J. 1890. Meter V. COLDENBUBQ & A NOB. Defence over-ruled. REGINA V. CHONG AH PYE & ANOR. ' lottery" within the meaning of the Common (laming Sinoapobb. A " Weisaiirj lottery" is a ' House Ordinance 5 of 1888. The evidence of the Informer is admissible in a charge under the above Ordinance, and he is not an " accomplice" within the meaning of the rule of law that requires the evidence of an accomplice to be corroborated. Evidence that the prisoners sold lottery tickets is not evidence of their " assisting in the management of a public lottery," and in a charge for so assisting, evidence of such sale merely ought to be rejected. The mere fact that quantities of lottery tickets are found in the prisoners' house or in their possession, is not sufficient evidence that the}' Avere " assisting or managing a public lottery." The presumption raised by Section 14 from the mere fact of finding of the tickets in the prisoners' possession, or house occupied by them, only applies to a charge under Section 5, Clause [a] This presumption however, is an arbitrary presumption, and the smallest particle of evidence is sufficient to put the prosecution to prove their case. On the conviction being quashed, the Crown was ordered to pay the appellants' costs of the appeal. The effect of Clauses 2 and 8 of Seotiou 34 of the Appeals Ordinance, 1879, is to make it the duty of this Court, on quashing a conviction, to consider whether on the facts, there is not a proper charge on which the accused might not be charged, and if there is, to direct that he be tried on such proper charge. The appellants had been convicted by H. H. Hudson, Esquire, Acting Magistrate, for "being found assisting in the manage- ment of a public lottery called a " Weisang lottery," under the Common Gaming House Ordinance 5 of 1888, Section 5, Clause [c] and fined ^250 each. A " Weisang lotteiy" was a lottery in which the players stake upon candidates in a public competitive examination held in China. The result was determined by the O'MalleT;, C.J. 1890. June 4. S98 1?HE StrPUBMS; 00tJfi,T. O'Mallet, competitive examination, but the prizes in the lottery depend. ?aqn upon the number of subscribers who select one or more names of ' the candidates. The defence called evidence to shew that the Eeqina house in question was a lodging-house, and the room in which the "• , tickets were found had been occupied by lodgers. Pyb Tanob. '^^6 following are the sections bearing on the case : — 3 " Lottery" includes any game method or devise whereby money or money's worth is distributed or allotted in any manner depending upon or to be determined by chance or lot whether the same be held drawn exercised or managed within or without the Colony. 5. Whoever — [a] being the owner or occupier or having the use temporarily or otherwise thereof keeps or uses a place as a common gaming house, or [c] has the care or management of or in any manner assists in the management of a place kept or used as a common gaming house or assists in carrying on a public lottery shall be punishable with a fine not exceeding three thousand dollars or with imprisonment of either description for a period not exceeding twelve months. 8. [1] — Whoever, either personally or by an agent pays or deposits any money or money's worth to or with any person concerned in the business of a common gaming house as a stake or for in respect of any event or contin- gency connected with a public lottery or buys a lottery ticket shall be punishable with a fine not exceeding twenty-five dollars. [2] — A person in whose possession a lottery ticket is found shall be presumed until the contrary be proved to have bought the same 14. If any instruments or appliances of gaming are found in any place entered under this Ordinance it shall be presumed until the contrary be proved that the place is a common gaming house and that the same is so kept or used by the occupier thereof. Nanson, for appellants. Bomber, [Attorney-Oeneral'] for respondent; Cur. Adv. Vult. June 5th. O'Mallei/, C.J. The question at issue was whether a Weisang lottery is a game of chance, and precisely bearing upon this point is the case of Tollett v. Thomas, 6 L. R. Q. B. 521. Lord Chief Justice Cockbuen in that case said, wagering in horse- racing alone was not chance, but judgment ; but if other elements of pure chance were brought in, it became punishable. In that case alone arose the question whether a " candidate race" is a game of chance, but the learned Judge there gave no decision on it. Whether a " candidate race " is an event which may be regarded as chance or not I do not decide. In this case, the choice of the name of a candidate was not chance, but it was beyond the control of the purchaser whether his nominee passed the examina- tion on which the stake was laid — but there was here an additional fact, and that was that there was uncertainty as to the amount of the prizes which depended upon the number of subscribers who select one or more names that made • the distribution of prizes a matter of chance, strictly within the definition of "chance " as it was laid down and adopted in the case cited. This lottery is clearly a " device by which money was distributable in a manner STRAITS SETTLEMENTS. 599 depending on chance," and I think that a " Weisang lottery," as O'Mallet, C.J. 1890. it is proved to have been carried on in this case, is a Tottery within the Common Gaming House Ordinance, 1888. The next point is as to the sufficiency of evidence, and I „. understand that the contention of the appellant is two-fold. JFirst, Chong Ah that the evidence was legally insufficient, that is to say, it is -^"^^ * Anob. evidence on which if there were no more, the case ought to have been withdrawn from the Jury so to speak, and he contends fur- ther, that under this Appeal Oi'dinance it is open to him to say, that upon a full review of the evidence, justice will not be done in this case unless the conviction is quashed. That I understand to be the second contention. Well, as to the legal point, it is con- tented, first, that the evidence of the informer [which is essential for the proof of a case with this charge] that the evidence of the informer ought to be rejected by reason of that informer's character ; that he is an accomplice, and that the evidence is to be objected to as a matter of law. It appears to me that in the first place, that he is not an accomplice for the purpose of any such rule ; his position is that he is competent to prove the offence ; he is not taking part in the same offence, though he is undoubtedly in one sense an accomplice. But I do not think that he is an " accomplice" within the rule. And his evidence is no more to be rejected than that of a grantee — Finch v. Finch, 23 Ch. Div. L. R. 271. I think there is no doubt that the Court is here sitting as it were upon the appeal, and to do justice in the case from the evidence before it, sitting here as Jury, — and therefore it might be held that as a matter of law, the Magistrate is not absolutely bound to withdraw such evidence from the Jury unless it is corrobo- rated. Yet it is a case in which the Court will act in itself for the purpose as if it was sitting as a Jury. Well, then it is said, that even if you admit the evidence of the informer, you should reject it on the ground that it is xmcorroborated ; that is — the evidence with regard to the purchase of the ticket by the informer, and the sale of the ticket to the informer, — ought to be rejected as irre- levant to the charge on which the defendant has been tried. Now, one has f o look and see what that charge was. It is carelessly and irregularly framed, and as I think with reference to a Statute of this sort, it certainly ought not to be. The charge is, that the prisoner was found assisting in the management of a Weisang lotteiy. "He was found assisting in the management of a Weisang lottery " peculiar words I think, and the important words are the word found and the word management. Now, that is not a charge strictly speaking in the terms of the Ordinance. The Ordinance provides two charges under the section under which this charge purports to be laid, that is Section 5, para. c. He might have been charged with assisting in the management of a place, kept or used for the pur- pose of a public lottery ; or he might have been charged with a different offence, as with assisting in the carrying of a public lottery. He is not charged with either of these, he is charged with something or other, not either precisely one or the other, and we have to determine under which of these charges we have to decide. You have the word found and the word management. GOO THE SUPREME COURT. O'Mallet, C.J. 1890. Regina V. Chong Ah Pte & Anok. I think found involves the idea of a place and the word manage- ment is suitable for the first of these charges and not for the second, and that the charge supposed to be believed in, is assist- ing in the management of a place kept for the purpose of a public lottery. If that is so, it appears to me that the evidence is not relevant to this charge. There is nothing in the evidence to shew that the sale of that lottery ticket took place on the premises which are in question now, nor is there anything to shew that the tickets that were sold, were tickets belonging to this lottery, with reference to the keeping of which the nian was charged, and to which, the papers that were found in the rooms upstairs and downstairs, related. Trom the evidence of the informer there is no place to indicate where the Weisang lottery is held. It is very likely that all these lotteries are the same ; and that being so, it appears to me that it is not relevant to this charge. It might be sufficient to support a charge of selling lottery tickets, but that is quite distinct from assisting in the management of a place kept or used for the purpose of a public lottery. The one is punishable with a fine of $25, whereas this charge is punishable with a fine of §3,000 or twelve months' imprisonment. I think that selling tickets might have been material to establish another charge, I do not think it is material to establish this charge. I do not think it affords reasonable presumption that the man was manag- ing a house used for the purpose of a lottery, and I do not think it is relevant; therefore I think it should be rejected. Therefore if you reject this, it remains that in this man's premises there were found these two or three packets of lottery papers, books, and tickets. Well, the prosecution must have some evidence to support the inference that you are asked to draw from that; you have merely these papers found upon the premises. Now, can you upon that evidence get over the gap? Can you go from mere fact that these papers are found in quantities on the premi- ses and in hi-s possession, — that is presumption of fact — can you get from that, the inference, or the conclusion, that he is engaged in the managing of a house for the purpose of carrying on a public lottery, Now, it seems to me you ought to have further evidence behind that. Therefore, as far as that charge is being tried, it seems to me there is no evidence to support tlie charge, and the conviction should be quashed. Then, I understand the argument for the prosecution is, that under Sub-section 6 of Section 34 of the Appeals Ordinance 12 of 1S79, if the Court should be satisfied that the prisoner ought to have been convicted upon the evidence on some other charge, the duty of the Court would be to find to that effect. Reference was niade to Section 14 of the Gaming Ordinance, and it was said, that Section 14 will carry you over the difficulty. The Ordinance is one which has provided for a good many presumptions in certain cases, and it is said, here is presumption which will do what all these presumptions appear intended to do. That is to say, if you have not got the proof, you have at least the presumption to fall back upon. You have instruments of lottery found on these premises STRAITS SETTLEMEISTTS. 60l occupied by the defendant, and then under Section 14 it is to be O'Mallet, presumed, until the conti-ary is proved, that these premises are jg^Q kept by the occupier for the purpose of a public lottery, aiid therefore although he may not be convicted under Section 5, Clause -Kegina [c] he may be under Clause [_a] You cannot prove your case on the ^jj^^g j^^ one charge, because you have no evidence; but you may prove it pyj, &,Anoe. under another, if you have reasonable presumption. Well, I am prepared to say, that if the defendant had not been called to give evidence, the result might have been different. The Ordinance provides that the defendant may be allowed to be called and give evidence, and in this case he has been called, his evidence has been supported by a number of people. Well, how are you to deal with the evidence provided by the defendant under these circumstances ? What sort of evidence must be held sufficient to rebut the purely arbitrary presumption of the law ; it is not a presumption of fact, it is absolutely arbitrary presumption. Well, what amount of evidence is sufficient to rebut the different charges? The smallest particle is enough to put the prosecution to prove their case. I think there was ample evidence here, that this presumption was exhausted. I think the evidence of the defendant and his witness is entitled, and ought to receive, full credit, and on that ground, the conviction of the Court below must be quashed — but I shall reserve the question of the effect of Section 34 of the Appeals Ordinance. Nanson, asked for costs of the appeal, Bonser, [Attorney-General] said it never had been done in this Court. He did not know why, but such costs were never given. O'Malliiy, C.J. said, he saw no reason why costs should be refused. The appellants therefore would get all their costs of the appeal. Conviction quashed with costs, June 20th. O'Malley, C.J. I have carefully considered the evidence in this case, and as to the result, I think there is not evidence to support the conviction as it stands and that it must be annulled. But under Section 34 of the Appeals Ordinance I think I am bound thereupon to consider a further question. Under Sub-section 8 if I considered that the facts of the case were such that no valid charge could be preferred against the person accused in respect of the facts proved, my duty would be to' order the accused to be discharged. But under Sub-section 2 if I am of opinion that there is a proper charge which could he pi-eferred on the facts proved, I am to direct the accused to be tried again on such charge. I think the effect of these two sub- sections is to invest the Court with a discretion analogous to that given to a Magistrate, who, after hearing evidence for the prosecu- tion and defence, has to consider whether there is sufficient ground for committing an accused person to take his trial before the Supreme Court, and if so, on what charge? Without in any way pre-judging the result, which will depend upon the evidence to be given on the trial, I am bound to say, that I think that there are grounds for preferring a charge of offering tickets for sale, and to direct that the defendant be tried on that charge. 602 THE SUPREME COURT. SlNOAPOBE. O'Mallet, C.J. 1890. June 9. SCULLY V. SCULLY. Thi.s Court possesses no divorce jurisdiction, uotwitbstanding Sections 10 and 13 of the Courts Ordinance 3 of 1H78. [a.] This was a petition foj; divorce by a husband against a wife. The plaintiff now moved that citation upon a co-respondent might be dispensed with, and this raised the question of the jurisdiction of this Court in divorce matters. Sections 10 and 13 of the Courts Ordinance, 1878, are as follows : — 10. " The Supreme Court shall have such iurisdiction and authority as Her Majesty's High Coui-t of Justice in England, and the several Judges thereof, respectively have and may lawfully exercise in England, in all Civil and Criminal actions and suits other than Admiralty actions and suits ; and the said Court shall also have and exercise jurisdiction in all matters concerning the revenue and in the control of all inferior Courts and jurisdictions, subject in all the above cases to the laws of the Colony. 13. The Supreme Court shall have and exercise the jurisdiction vested under the Royal Letters Patent of the 10th of August, 1855, in the Court of Judicature of Prince of Wales' Island, Singapore and Malacca, in Matrimonial cases, so far as the several religions, manners, and customs of the inhabitants of the Colony will admit." Sheanvood, for the plaintiff moved in accordance with the Rules of ] 886 of the Divorce Division of the High Court of Justice in England, and contended that by Section 10 of the Courts Ordinance 3 of 1878, this Court had jurisdiction in divorce cases. By that section this Court was to exercise jm-isdiction in all civil suits as the Courts at home with the one exception of Admiralty suits. The Courts Ordinance was subsequent to the Judicature Acts 1873 and 1875 in England. By Section 16 of the former Act the High Court at home had divorce jurisdiction, and tbis Court therefore had the like jurisdiction under Section 10. Section 13 of the Courts Ordi- nance was no obstacle. The jurisdiction by that section was the matrimonial jurisdiction under the Charter of 1855 — that Charter was before the Divorce and Probate Acts of 1857, so the jurisdiction given by the Charter was the old jurisdiction of the Spiritual Courts whicb had however been abolished so far back as 1857. It could not be intended to introduce this obsolete jurisdic- tion here. If there was any contradiction between the two sections, then Section 10 which was a remedial section, should be construed liberally — Harcloastle on Statutes, ll-lj. It could never have been intended that people resident here should not be able to get a divorce, and must seek elsewhere fur it. Cur. Adv. Vult. June 20th. O'Malley, C.J. Upon careful consideration of the law governing in this Colony, and of the Statutory and Charter provisions defining the jurisdiction of the Court, I have [a.] Vide Judgment of Pellereau, J. delivered in April, 1887, in Tan Sena Qui V. Palmer, aath p. 257.— J.W.N.K. ^ * STRAITS SETTLEMENTS. 603 come to the conclusion, that this Court has no jurisdiction to make any order in proceedings for divorce. The jurisdiction of this Court is defined by Section 10 of the Courts Ordinance 3 of 1878. "The Supreme Court shall have such juiisdictiou and authority as Her Majesty's High Court of Justice in England and the several Judges thereof, respectively have and may lawfully exercise in England, in all Civil and Criminal actions and suits other than Admiralty actions and suits ; and the said Court shall also have and exercise jurisdiction in all matters concerning the revenue and in the control of all inferior Coui-ts and jurisdictions subject in all the above cases to the laws of the Colony." Now, what is the meaning of these words "subject in all the above cases to the laws of the Colony"? What were 1 he laws of the Colony in 1878? To ascertain this, I rely on the elaborate judgment of Sir Benson Maxwell in the case of Regina V. Willans, 3 Kyshe, 16, The law of England as it stood at the date of the Charter of 1826 was introduced by ihat Charter — See 3 Kyshe, p. 37. Then came the Charter of 1865. Whether that re-introduced English law up to that date, and made the Common and Statute law of England as at that date, the law of this Colony, was a point on which Sir B. Maxwell came to no conclusion, and it is one which it is not necessary to decide now. But the effect was that in 1878 the law of this Colony was the law of England as it had been in 1826, or the law of England as it had been in 1855 modified in either case by local legislation, and other special legislation for the Colony, subsequent in one case to 1826, and the other to 1855. The effect of Section 10 of Ordinance 3 of 1878 is that the Court here has such jurisdiction as the High Court of Justice in England has, and may lawfully exercise in actions and suits, subject to the law of England in 1826 or in 1855 as modified by local and other special legislation, applicable to the Colony subsequent to one or the other of these dates. The jurisdiction of the High Court of Jiistice in England, did, in 1878, include the jurisdiction of the Divorce Court, and therefore Section 10 of Ordinance 3 of 1878 gave to this Court such jurisdic- tion and authority as the Divorce Court in England had, and might lawfully exercise in 1878, but, subject to the laAvs of this Colony, i.e., subject to what having been the law of England in 1826 or 1855 had been modified by local and other special legislation in or for this Colony between one or other of those dates and 1878. Bat neither in 1826 nor in 1855 was a right of divorce known to the English law, nor between either of those dates and 1878 was it introduced into the Colony by local or special legislation, so that in 1878 it formed no part of the laws of the Colony. If then the Court exercised divorce jurisdiction as in England, it would be administering rights and remedies not recognised by the laws of the Colony, and would not be exercising the jurisdiction con- ferred upon it " subject to the laws of the Colony ; " such is my view of the construction of Section 10 without reference to Sec- tion 13. But I think that view is confirmed by the terms of Section 13. Section 13 expressly provides that the Court shall have the jurisdiction in matrimonial cases which was given by the O'Mallet, C.J. 1890 Scully V. Scully. SCDLLT. 604 The supreme court. O'Mallbt, Chartei- of 1855, and turning to that Charter we find that that ^■^' is the jurisdiction of the Ecclesiastical Court in England in 1855 ' subject to certain limitation with reference to local religions Scully and customs. It explicitly makes that provision, for the matri- monial jurisdiction of the Court, which upon my construction, is impliedly contained in the language of Section 10. With regard to Probate Jurisdiction a different course is followed and for an obvious reason. The Probate Act, unlike the Divorce Act, created no new law, it merely transferred the administration of existing law from one tribunal to another. The law it adminis- tered was the law of England in 1826 and 1855, and the law also of this Colony in 1878. The Probate Jurisdiction of the High Court is comprised in what is given in general terms by Section 10 of Ordinance 3 of ] 878 to this Court, and is given in explicit terms by Section 1-1. Motion refused. FOX V. TAN HENG WEE. SljraAPOBE. An immigraut whose passage-money has been paid to the shipowner by another person, is not an immigrant " whose passage-mouey has not been paid " within Section O'Malley, 14 of tlie Chinese Immigration Ordinance 4 of 1880, and a person cannot under such C.J. cii'cumstancea, be convicted under that section for inducing such an immigrant to go Wood ~) elsewliere than the depot in which the Protector has placed him. & Pel- U.J. ^^"isqo '^^^ prisoner. Tan Heng Wee, was prosecuted by the Protector ' of Chinese for an offence against Section 14. of the Chinese June 11. Immigration Ordinance 4 of 1880, for inducing eighteen Chinese immigrants whose passage-money had not been paid, to go to a place other than a depot established under the Ordinance. The case was first heard before H. Hudson, Esquire, Acting Magistrate, when the defence set up was, that the passage-money though not paid to the shipowner by the immigrants themselves had never- theless been paid for them by the prisoner to the shipowner, and so the case did not fall within the section. The Magistrate took this view, but at the request of the Protectorate Officer, found the prisoner guilty, and stated a case for the opinion of the Supreme Court on the point. The appeal, or stated case, subsequently came on for hearing before Wood, Acting C.J. who was of opinion that the case was not within the section, but at the request of the Attorney-General, reserved the point for the Court of Appeal. The point now came on for argument before this Court. Sections 11 and 14 of the Ordinance are as follows : — 11. "Every immigrant whose passage-money shall not have been paid before or on his disembarkation shall, after su.oh examination as aforesaid be detained under the care of the Protector of Chinese in one of the dep6ts authorised vmder the Ordinance, until arrangements have been made for the payment of his passage-money 14. Any person or persons who shall induce or attempt to induce any immigrant whose passage-money shall not have been paid to go to any place other than a depot established under this Ordinance ; or who shall entice or STRAITS SETTLEMENTS. 605 attempt to entice away from any depot any immigrant sent there by an Officer of tlie Protectorate sliall be liable to a penalty not exceeding |20 for eacli immigrant." Bonser, \_At,torney~General'] for the Crown, and Protectorate, (ionteoded that the object of the Ordinance was to pi-event tampering with the coolies or immigrants on arrival, and before the Protectorate had taken thein over. The question at issue was whether by Sections 10 to 14 both inclusive, an immigrant had to pay his own passage-money before he might go free, or anybody could pay it for him, and so have a hold on him. The object of the Ordinance was not to protect shipowners from losing their money, but to prevent coolies from getting into difficulties and being trapped. Section 14 must be construed according to this evident intention of the Ordinance, and must be read as if the words " by himself " were iu it, between the words " paid " and " to go," so that payment of the passage-money by any other person should not release the immigrant and prevent the Protec- torate protecting him. If this were not done the spirit of the law to prevent trapping and enslaving of these coolies would be lost. This Ordinance was for their protection and was meant to prevent anybody, the shipowner or anybody else having a claim on them. In all these cases the coolies were brought down from China by brokers who always paid the shipowner the passage for the men — so that if the decision of the Magistrate was correct, it would be impossible to carry out the Ordinance. Nupier, for the prisoner contended, that the sections should be construed strictly. Proctor v. Mainwaring, 3 B. & Aid. 145 ; Maxwell on Statutes [2nd Ed. J p. 320-21. There was no offence proved, and the conviction should be quashed. The Court [O'MaUey, C.J., Wood and Pellereau, J. J.] unani- mously held that the section was in restraint of the liberty of the subject — though for the protection of Chinese immigrants — and ought to be construed strictly. The language of the section " whose passage-money shall not have been paid " was in no way ambiguous and effect must be given to it. The evidence in this ease shewed the passage-money had been paid, and no offence under the section was therefore disclosed. J.J. O'Mallet, C, J. Wood & Pkl- LEEEAU.J 1S90. Fox Tan Henq Web. Conviction quashed. REGINA V. PANTALANI. The Attorney-General of this Colony like the Attorney-General of England, has the right of reply, even when no witnesses are called for the defence. Qiier^. Whether the right can be claimed by the Solicitor-General or private Counsel prosecuting for the Crown. SiNGAPOKE. O'Mallet, C.J. Wood i &Pel- >J.J. The prisoner was charged with culpable homicide not amounting to murder, and for a rash act, and was tried at the ^^"^spq' November Assizes before Wood, Acting C.J. On the close of the — 1-' case for the prosecution. Counsel for defence addressed the Jury Juiie 18, and closed bis case calling no witoesse The Attorney-General 606 THE SUPREME COURT. O'Mallet, C.J. Wood ■) & Pel- VJ..T, LEREAU.) 1800. Reoina Pantalani. who was prosecuting inpei'son, rose to reply for the Crown when Counsel for the defence objected to his so doing on the ground that he had called no evidence, and the Attorney-General of England alone was entitled to reply under such circumstances. The learned Judge reserved the point. The Attorney-General replied, and the Jury found the prisoner guilty on the second charge. The point reserved now came on for argument. Napier, for the pi-isoner contended, that the right of reply under the circumstances belonged to the Attorney-General of England alone. The Attorney-General of the County Palatine of Lancaster had no such right — Begina v. Christie, 1 Eos. & Fin. 75 — and the Attorney-General of this Colony was in no better position than he. The point was one of practice merely, but there were dicta of Judges at home to the efiBect that the Attorney- General of England had to appear in person to enjoy the right. Regina v. Beckwith, 7 Cox C. C. 505, per Byles, J., Begina v. Christie, supra, per Martin, B ; Begina v. Taylor, 1 Eos. & Fin. 535, per Byles, J ; Begina v. Burns, 16 Cox C. C. 195 per Day & Wills, J.J,— See also 1 Taylor on Evid. § 890, p. 664 [8th Ed.]. BonS'ir, \ Attorney -General] contended, that it was the prero- gative of his ofiice to possess the right of reply. The Court [O'Malley, C.J., Wood and Pellereau, J.J.] held, the right of reply was a prerogative of the Crown from of old and was exerciseable by the Attorney-General — whether it could be claimed by the Solicitor- General or by private Counsel prosecuting for the Crown they did not at present intend to decide. THUM CHEB v. HO AH FAH. Penang. On a rule lieing made absolute under Section 20 of the Appeals Ordinance 12 of 1879, for a Magistrate to state a case, the Court awarded costs againut the Magis- "WooD, J. i(ra J.J LEBEAU.J 1890. " At the Assizes held at Penang on the 1st of April, 1890, one Sahid, a Police Constable, was tried before me upon the charge ' that he Sahid being a public sei'vant, to wit : a Constable in the Police of tbe Colony of the Straits Settlements, and being as such public servant bound to keep in con- finement one Tan Ah Bow, charged with over-loading his boat, did volun- tarily allow the said Tan Ah Bow to escape from such confinement and that he the said Sahid thereby committed an offence punishable under Section 221 of the Penal Code.' The facts were as follows : One Kulop, a boat tindal at Pangkore, saw Tan Ah Bow carrying an over-load of passengers on his passenger boat and thus transgressing the provisions of Rule 36 of rules for passenger boats [published on page 203 of Government Gazette for 1879] made under the authority of Section 53 of the Ordinance 8 of 1872, and thereupon aiTested him and gave him into the custody of the Police at the neighbouring Police Station, and told them to enter a charge against him for tbat offence. The prisoner was one of the Police in whose custody Tan Ah Bow was so placed and he voluntai-ily allowed %im to escape. Upon this state of facts my doubt is, whether I ought not to have directed the Jury to acquit on the ground that the custody in which Tan Ah Bow was, was not lawful custody, the only penalty for transgression of the rule against over-crowding being that provided by Section 54 of the above- nrentioned Ordinance, viz., a penalty not exceeding $26." The question reserved now came on for argument before the Court of Appeal, consisting of O'Malley, C.J., Wood and Pellereau, J.J. D. Logan, [Solicitor-General] for the Crown said he could not contend that the boatman Tan Ah Bow was lawfully in custody — but in addition to this as his offence was only punish- able with a fine, Section 221 under which the prisoner here was convicted, did not apply. The prisoner was not represented, nor did he appear. O'Malley, C.J. The conviction must be quashed. We think it right to add that the Police should be informed as to their rights of arrest, and that they are not entitled to arrest people for trivial bi'eaches of such bye-laws. Conviction quashed. July 9. Penano. O'Mallet, C.J. Wood ') &Pel. [j.j. LEREAU. J 1890. July 9. 616 THE SUPEBME COtTRT. O'Mallet, C.J. Wood ") &Pel- ^J.J. LEKEAtl.J 1890. Beoina tl. Bin & Ors. The mere fact that the prisoners found gaming were Malays, and one of them is a young unmarried girl, and the manners, habits, and customs of Malays is not to allow such a girl to be associated with the public, does not of itself rebut the i^resumption. Query, What is meant by a " class of the public " in Section 3 of the Ordinance ? The prisoners, six in number, all Malays, had been convicted by J. W. Norton Kyshe, Esquire, for being found playing in a common gaming house at Tanjong Tokong, in Penang, contrary to Section?, Clause 1 of the Common Gaming House Ordinance, 1888, and severally fined |1 each. The evidence was that a Corporal and some Constables having entered a private house No. 238, by the roadside at Tanjong Tokong, about 11.30 at night, under a virarrant issued under the aforesaid Gaming Ordinance, found the six prisoners and twelve or thirteen others playing on a mat in the verandah upstairs with English cards for money. On the mat were found a couple of lamps, 59^ cents, and some tamarind seeds said to be used for counters, and on the persons of the prisoners, 40 cents in all. On the approach of the Police the players dispersed — the prisoners were the only ones arrested ; the others made their escape. None of the prisoners tendered them- selves as witnesses, nor did they seek to explain how they and the others were there, or how they came to be playing. They denied the story told by the prosecution and called evidence to shew they were in different houses* and had there been arrested, that they were all relatives of each other, and one of them was a virgin, a daughter of one of them. The appellants appealed against the conviction, and the appeal come on for hearing on 10th February last, before Pellereau, J. when the same was reserved for considera- tion of the Court of Appeal. It now came on for argument before the Court of Appeal, consisting of O'Malleif, C.J., Wood and Pel- lereau, J.J. G. S. H. Gottlieb, for appellants contended, that there was no evidence this was a common gaming house. By Section 3, Clause 1, gaming house was defined as a place to which " the public or a class of the public " had access for the purpose of gaming. The house here was a private house and the prisoners relatives. [Pellereau, J. It was a private house, but that night it might have been opened to the public ?] There was no evidence the people there were the "public " or a " class of the public." Then they must be there for the pur- pose of "gaming." Games are lawful and unlawful — unless the games were unlawful games, there Brandt on Gaming, 111, 112. [Pellereau, J. At common law as appears from Burn's Justice of the Peace, all common gaming houses were a nuisance and indictable by that law. Games lawful and unlawful were made so by Statutes not applicable here.] [Wood, J. Does not "gaming" mean merely gaming for money ?] It is submitted it is not— the game must be unlawful— but if indictable at common law, still under this Ordinance a common [a.J See Reffiiia v. Chan, Ah Tye Sf Ors., ante p. 518, was no " gaming — 1890. Beqina V. STRAITS SETTLEMENTS. 61? gaming house has a peculiar meanuig of its own, a place to O'Mallby, which the " public or a class " thereof has access. Wood S [O'Malhy, G.J. The Ordinance says the expression "com- APjcl- W.J. mon gaming house " shall " include," not " is."] lereau, ) But the effect is the same. [Wood, J. You had an opportunity of calling those who escaped to explain Low they came there and to shew they were Din & Obs. not the public] We deny any others were there, how could we call them ? We deny we were playing, how could we explain how we came to play? The presumption under Section 7 of those running away having played is a presumption against them not against us. Then their alleged escape raises no presumption against us under Section 14, as the house was not entered by a Justice of the Peace. The people if playing were merely having a quiet evening together, and less than a dollar on the whole is the amount found on them and on the mat. It was not a common gaming house within the Ordinance. Ross, for Crown submitted, gaming meant gaming for money. Dyson r. Mason, 22 L. R. Q. B. Div. 351. The Statutes making games lawful and unlawful did not extend to this Colony. Regina v. Tayi, Sin Hap & Anor., 8, Kyshe, 94. Although Ordinance 9 of 1876 spoke of " unlawful" gaming, Ordinance 13 of 1879 spoke of " public " gaming, and this present Ordinance 5 of 1888 defines a common gaming house in three different ways in Section 3, Clause 1 — but that definition did not exclude but includes the common law definition of such a house and what that is, is shewn in Jenlcs v. Turpin, 13 L. R. Q. B. Div. 605. There was evidence that there were 18 or 19 persons in all playing — six were arrested the others escaped. The prisoners don't explain how those others came to the house — by invite or otherwise — but it is for them to do so as the fact of the invitation, if any, was one peculiarly within their knowledge. The prosecution could not prove they were not. Had they done so, the case would have been within Regina v. Glian Ah Tye & Ors. [ante p. 618]. These six prisoners and others were found playing and they ran at approach of Police, and in absence of proof they were invited, the inference is they were a class of the public and had access to the house for gaming. Then Section 14 is a slip as regards the escape of persons and the entry by a Justice of the Peace. The woi'd "if" has been misplaced. [O'Malley, C.J. The language of the section makes sense, and we must construe it as we find it.] Then gaming appliances were found, the mat, cards, counters and money — and under Section 14 they raise the presumption the house is a common gaming house. [O'Malley, J. The Ordinance is full of alarming and extraordinary presumptions. Because appliances of this kind are found therefore it is to be presumed to be a common gaming house — therefore that the public have access to it, and therefore within the definition of Section 3. A strange and most arbitrary presumption.] 618 THE SUPREME OOUHT. O'Mallet, C.J. Wood ") &Pel- [J.J. LEEEAU-J 1890. Kegina ■II. Din & Ors. It is presumption the law declares shall be made, but nothing was easier than for the prisoners to have rebutted it — they could have tendered themselves to give evidence under Section 18, Clause 3, it' the others were not the public, but they don't attempt to do so. [O'Malley, C.J. What is meant by " a class of the public" ?] A section — any portion of — the public. \_Wood, J. It is for you to prove the charge. When a fact is consistent with guilt or innocence, a Magistrate can't convict — those others might or might not have been the " public" or a class of it] Whether they were or not was best known to the prisoners, it is within their peculiar knowledge, and they alone could prove or disprove it. Unless it was for them to do so, no conviction coidd be had under this Ordinance. Gottlieb, in reply. The presumption raised by the facts or by Section 14 can be rebutted. Whether it is a common gaming house or not depends on whether the public or a class thereof lias access to it. Very little is required to rebut it. Here the people were all Malays — their habits and customs are well-known — they don't allow their unmarripd daughters to appear in or mix with the public. One of the persons said to be gambling here, one of the prisoners, was a virgin — fri)m the customs and habits therefore, this fact alone repels the idea the " public" had admittance into that house that night. The prisoners are shewn to be all rela- tives and friends — the others could not be called as we don't know who they are and deny they were there. At most the evidence shews the familj' were having a quiet game as a mere pastime, and to call this a common gaming house is to misapply the term. Cur. Adv. Vult. July 11. O'Malleij, C.J. In this case the appellants were convicted of being found playing in a common gaming house contrary to Section 7, Clause 1 of the Ordinance 5 of 1S88. The appeal is on the ground that there was no sufficient evidence to support the conviction, and that the conviction was against the weight of evidence. I am of opinion that the con- viction must be affirmed. The appellants were found gaming for money in a house which was entered into by the Police under the Ordinance and certain gaming appliances were found. Under Section 14, it is enacted that "if any instruments or appliances of gaming are found in any place entered under this Ordinance it shall be presumed until the contrary be proved that the place is a common gaming house and that the same is so kept or used by the occupier thereof." By that section therefore such a house under the circumstances must be presumed to be a common gaming house until the contrary is shewn. I cannot find from the evidence in this case that the contrary was proved. I cannot therefore say the Magistrate was wrong. I may say for STRAITS SETTLEMENTS. 6l9 the habits and customs of these people — which is the only fact by &pel- [jJ. be rebutted — as sufficient, lebeau.) 1890. myself that a very small amount of evidence to the contrary would O'Mallbt, satisfy me — but I cannot accept the mere fact about the girl and wnnn ^ sse J which the presumption is here sought to be : Wood, J. I am of the same opinion, and on the following grounds. It is conceded by the appellants that the house was Kemna properly entered by the police under this Ordinance. Having din & Oks. entered, they found gaming appliances from which alone under Section 14, it must be presumed until the contrary is shewn that the house is a common gaming house, that is a common gaming house within Section 3 of the Ordinance. We are not called upon to decide what is meant by a " class of the public." Then is the contrary shewn ? I do not think that the mere fact of the girl being among the people, and the well-known habits and customs of the people, is sufficient to shew the contrairy. Evidence might have been given by the prisoners or other persons there explaining how they came to be playing — but no such evidence is adduced. The Magistrate under the circum- stances was entitled to presume the house to be a common gaming house and to convict ; and we caunot sny he was wrong. Pellereau, 3 . I concur. I wish to state specifically what my finding and ruling are- — Firstly, " gaming " I hold to be gaming for gain or lucre, and this I found on Dyson v. Mason [supra], and also on the old common law definition of what is a common gaming house, which is still law in this Colony. Secondly, I find from evidence it was not shewn that this house was not a common gaming house — ^that it was not open to a class of the public. People were found in the house to the number of about nineteen — it was doubtful whether they were or were not a class of the public. The appellants could have explained the matter and so removed the doubt ; they could have shewn these people were not there as a class of the public, and so rebutted the presumption under Section 14. They did not do so. The facts of the case leave this point doubt;ful, but the facts proved raise the presump- tion under Section 14 — this presumption was therefore not rebutted. I cannot go so far as the learned Chief Justice as to say that a little evidence would be sufficient to rebut the presumption. I would require clear and full evidence to satisfy my mind by contrary evidence that the house was not open to the public — but what would be sufficient for that purpose would depend upon the circumstances of each case. The presumption is one the law declares, shall be made under certain circum- stances, but it allows that presumption to be rebutted by evidence aliunde. We theref oi-e must so presume and see if the presumption is rebutted. In this case I however agree with my learned brothers that the presumption has not been rebutted and therefore the conviction must stand. Conviction affirmed. 620 THE SUPREME COUfeT. ANAMALAI CHETTY v. KADEE TAMBY. PEKANa. O'Mallet, C.J. Wood J & Pel- >J.J. LEREAU.) 1890. July 9. y A Bill of Sale of personal property to secure the re-payment ot a loan with interest " miihiii three months from the (late thereof," is not contrary to the form in the Schedule to the Bills of Sale Ordinance 12 of 1886 ; and is payable within a " stipulated time" within the meaning of the italicized words in that form. Such a Bill of Sale need not contain an exj)ress power of sale — such a power being implied from Section 10, Sub-sections 1 and 2 of the Ordinance. JSx-parle Official Beceiver Re Morritt, 18 L. It. Q, B. Div. 222 \_per Lord JSsher, M.B., and Lopes, L.J.], followed. 16. Case stated under the Appeals Ordinance 12 of 1879, Section by J. K. Birch and R. C. Jacobson, Esquires, two Magistrates of Police, Penang, for opinion of the Supreme Court, as follows : " The said Kader Tamby was charged before vis on the 11th April, 1890, ar, the Police Court, in Penang, that within the last six months he did fraudu- lently remove a cart and a pair of bullocks when the same were under mortgage to one Anamalai Chetty, and thus committed an offence punishable under Section 424 of the Penal Code. It has been proved in evidence that the defendant had fraudulently dis- posed of the cart and bullocks in order to avoid seizure by the mortgagee and recovery of the money. Mr. F. Baynes for the defendant argued against the validity of the bill of sale on the following grounds. [1] — That the clause referring to the time of re-payment did not mention any stipulated time of re-payment, and was therefore not according to the Schedule of the Bills of Sale Ordinance. [2] — That this clause being to the effect that the money should be re-paid within, a certain time had the result of making the bill of sale one on demand, and therefore according to the decision of the .English Courts, illegal. We convicted the defendant of fraudulent removal of property and fined him«150. On these facts the opinion of the Supreme Court is requested as to the point of law in regard to the validity of the bill of sale." The question was argued on 3rd June, 1890, before Pellereau, J. by Baynes, for the appellant. Rons, for the respondent. Pellereau, J. My impression is against you Mr. Baynes, but if you wish the question reserved for the consideration of the Court of Appeal, I shall do so, and so give you the benefit of the opinion of my brother Judges. Baynes, asted that it might be reserved. Order accordingly. The question came on for argument and decision on the 9th and 10th July, in the Court of Appeal, which consisted of O'Malley, C.J., Wood and Pellereau, J.J., leave being given to the appellant to ui-ge the frrtherj ooint here taken. Baynes, for appellant." This" bill of sale is payable " within three months from the date thereof." The form given in the Schedule to the Bills of Sale Ordinance 12 of 1879,' states that the money is to be payable on the day of "or whatever may be the stipulated times or time for payment." I contend makino- the money payable at any time " within " three months is not a payment within a " stipulated " time— Section 8, Clause 2, STRAITS SETTLEMENTS. 621 J.J. Anamalai Chettt r. Kadek Tambt. requires the bill of sale to be in the form given in the Schedule 0'Ma.i.let, or otherwise it is void. The question here is whether the clause yvood for re-payment in this case is a compliance with the form in the & Pel- Schedule. Of course, the form need not be literally followed and meeau it is sufficient if it substantially does so. Davis v. Burton, 11 L. ^ R. Q. B. Div. 537, laid down certain principles for construction of the Ordinance, and it was there held that a bill of sale in which the interest had been capitalised and was payable by instalments Avas void as it provided that in default of payment of any one instalment the whole amount remaining unpaid was to become due. Fry, L.J. in that case said the Act requires the bill of sale to be certain in its terms, and that the maxim id cerium, est certum reddi potest was not applicable. I contend that to make the bill of sale payable in the way it is in this case is to render its terms uncertain — it enables the grantor to pay up at any time or any day within the term. It is very different from making it payable " three months after date." Another uncer- tainty is that it is not stated to be lunar or calendar months. [Wood, J. "Month" means calendar month. in all commer- cial and business documents and transactions.] In Parsons v. Bland, 88 W. R. 388, it was held that a bill of sale was void because the address and description of the attesting witness was not given in the bill of sale itself. The form says in the attestation clause, in italics, "add wit- nesses name, address, and description" — and as the bill of sale in that case had omitted to do so, it was held not in accord- ance with the form and so void. That omission could not possi- bly affect the legal effect of the bill of sale. If the bill of sale in this case had been in accordance with the form, the money would have been payable on the day of , or at some stipu- lated times or time ; but here the words in italics in the form even have not been followed — Cotton, L.J. in the case last cited says, the words in italics are part of the form. The meaning of these words " stipulated times or time" was explained in Melville V. Stringer, 13 L. B. Q. B. Div. 392, and a bill of sale "on demand" was there held not to be payable in a "stipulated time," as it was not a payment within a, fixed time, so that other parties dealing with the grantor might know when the money is payable to the grantee. In this bill of sale there is nothing to shew third parties when the grantor will repay the loan — he might do so next day, or the day last but one of the three months. The principle is that third parties must be able to know for certain so as to be able to deal with the grantor. Then in Hetherington v. Groom, ihid. 789, it was again held that a bill of sale payable "on demand" was not one payable within a stipulated time as it was payable at the " mere choice and volition of the grantee." flere I say, it is payable at the "mere choice and volition" of the i/rantor, and so is equally bad. The only meaning that can be given to the words " stipulated time" in the form is a fixed date. Then in Selhy v. Higgs, 1.5 L. R. Q. B. Div. 689, it was held that a bill of sale payable " within seven days after demand in writing" was also bad; it was not payable in a stipulated time and was the 622 THE SUPREME COURT. O'Mallet, C..T. Wood ") &.PEL- yX.T. LEBEAU. 3 1890. Anamalai Chetty V: Kader Tamby. same as "on demand." In Ex-parte Clever, Re Rawlins, 18 L. R. Q. B. Div. 489, it was held that that part of the form which spoke of eqnal payments did not render a bill of sale void which made the document payable in unequal payments, and the reason for this was tliat the words in italics " or whatever else may be the stipulated times or time" shewed an alternative mode of payment was allowed, provided it was a " stipulated" time. In that case the unequal payments were to be on fixed dates — the equality or unequality of the payments on those dates would not be substantially unlike that provided by the form. The result of these decisions is that the powers of the mortgagee were intended to be considerably restricted — the form was to be substantially followed — inserting an uncertain time for payment was not to be permitted. It may be said that these words " within three months " do not affect the legal effect or make the legal effect of the bill of sale different from that of the form — but no more was that the case of the omission of the wit- ness' address in Pat sons v. Bland. In Thomas v. Kelly, 13 App. Ca. L. R. 506, the definition laid down by Bowen, L.J. in Ex-parte Stamford, 17 L. R. Q. B. Div. 259, to the effect that a bill of sale was not according to the form, only if its legal effect was different from that form, was qualified ; and it was held a bill of sale might be void as not being in accordance with the form though not differing in its legal effect, but in matter of pure form. It is a characteristic of this bill of sale that the money is payable at an uncertain time, but it is purely a matter of form. [Pellereau, J. What would be the effect if the bill of sale was to be payable at the " end of three months " ? According to your argument that would be bad.] Yes, the words in italics shew that some latitude is allowed for the time of payment, but it must be a fixed time — the word "stipulated" is the governing word in the whole clause and shews certainty is what is required. C£he next point is that this bill of sale is also bad as it contains no express power of sale. In the form — further words in italics — liberty is given to insert what covenants the parties like for the defeasance or mainte- nance of the security. A power of sale ought under those words to be expressly given. In Ex-parte Stamford [supra] it was decided that a bill of sale as "beneficial owner" was bad, as those words imported into the bill of sale the provisions of the Conveyancing Act, 1881. That Conveyancing Act is similar to our Ordinance 6 of 1886 by Section 3 of which, " property " is declared to be " moveable " or " immoveable " — and " mortgage " is declared as a mortgage " of either moveables or immoveables " — a power of sale is given by Section 22. So that the bill of sale here, giving no power of sale, the grantee must fall back on his power of sale under that Ordinance. If he does, he comes within i the ea,se of Ex-parte Stamford and the bill of sale is void if he does not, he has no power to seize and take possession at all. [Pellereau, J. Look at Section 4 of the Bills of Sale Ordinance. If this bill of sale has no power of sale, it is not within the Ordinaiice— and if it is not within tjie Or4inance, your first point STRAITS SETTLEMENTS. 623 O'Mallbt, C.J. Wood & Pel- f- J..I. 1890. Anamalai C HETTY V. Kaddr Tambt. must fall to the ground as the bill of sale need not then be apcording to the form in the Schedule.] It is immaterial on which point I succeed. Then Section 10 pf the Bills of Sale Ordinance assumes some power of sale and ^"^^"^j^gl regulates it. [Pellereau, J. What do you say to Section 10, Clauses 2 & 4 ?] Clause 4 gives no power to seize, and there can be no sale till seizure. In Ex-parte Official Eeceiver Re Morritt, 18 L. R. Q. B. Div. 222, the Court was divided on this question of power of sale, the majority holding that the power of sale confei'red by the Conveyancing Act, 1881, was not incorporated into the bill of sale, nor into the Bills of Sale Ordinance. In Watkins v. Evanx, ibid. 386, it was held the power of sale wait so incorporated and there- fore the bill of sale in that case which contained no power of sale was good — the power of sale being held to be that conferred by the Conveyancing Act, 1881, subject to the restrictions of Section 20 in that Act, and Section 13 of the Bills of Sale Ordinance. In Calvert v. Thomas, 19 L. R. Q. B. Div. 201, the Judges said that the Judges who decided WafMns v. Evans, had misapprehended thp decision of the mti jority in Official Receiver Re Morritt and that they had held exactly the opposite to that which they were supposed to have held. I contend therefore, if the Judges in }Vatkins V. Evans had not been under this misapprehension they would not have held the bill of sale in that case, which contained no power of sale, good, they would have considered it was bad. A bill of sale to be good must be one that operates under the Bill of Sale Act. Ross, for the respondent. The first point taken here is that the bill of sale is uncertain in its terms as to payment. The Schedule sets out the form and in the form are several words in italics — all these italicised words in the body of the form, are directory — those in the attestation clause are obligatory. First, we have the italics in the form as to the consideration — "whatever else the consideration may be," shewing that it need not necessarily be a money consideration, and though the form speaks of " Dollars," not italicised, yet this may be varied. Then the words " stipulated times or time " shew there is an option left to the parties, and a bill of sale will be good though there is only one payment — Watkins v. Evans, [suprtl] — but if good, then the words "equal payments" in form, though not italicised were not obligatory, — that part of the form might or might not be followed. The meaning of the words " within three months from the date hereof," mean payable three months after date so far as t;he grantee is concerned, and it is immaterial whether it is lunar or calendar months. I submit however, it means calendar, as all legal documents are so construed. The words give the grantor a right for the whole three months with the option of paying earlier — but the grantee is bound to wait the full three months. Even if a date had been fixed there is nothing to prevent a mortgagor paying up before his time though he may have to pay interest for the full term. The stipulation here is in fayour of the grantor, The key-note of all the 4ecision8 on this 624 THE SUPREME COURT. O'Mallet, C.J. Wood ") &Pel- [J.J. LEBBAD.J 1890. Anamalai Chettt V. Kadee Tambt. question of form is that the bill of sale must not be prejudicial to the grantor; it must not give powers to the grantee in excess of those conferred by the form. The grantor is the person intended to be protected — and also third parties. As to third parties, they would know from the language of this bill of sale that the grantee would have to wait for three months. That the grantor was intended to be protected is shewn by the fact that the rate of interest must clearly be stated so that he need not be under the necessity to calculate to find out what it is — also from the fact that the bill of sale has to be explained to him. [O'Malley, G.J. The English section says 'in accordance with form " — our section says " in the form."] It is so, but that makes no difference in the meaning to be given to the expressions. Webb v. Fairmauer, 3 M. & W. 473, is an authority for saying that " in three months " is binding on the creditor for the full three months — and there is no difference between "within" and "in." [0' Mallei/, C.J. You say "within three months" is a fixed time as far as one limit is concerned, but it is open to one of the parties to vary the time within that limit ?] Yes, but that party is only the grantor. In Be Williams, Ex- parte Pearree, 25 L. R. Ch. Div. 656, it was held that a bill of sale was void as it was payable "forthwith" and the grantee might step in at once or at any time — this same reason led to the bills of sale in Melville v. Stringer [supra] and Hetherington v. Groom, [supra] being held bad — they were enforceable at the "mere choice and volition of the grantee." If a bill of sale was made payable say " seven days at^er Christmas " that would be good. The time here as far as the grantee is concerned is a fixed time — three months. In Ex-parte Stamford [supra] it is said the Court has nothing to do with the reasonableness or unreasonable- ness of the bill of sale — it is sufiicient if it gives intimation of its terms to an ordinary mind — the Act does not say the bill of sale shall not be more nor less than the form. An outsider reading this bill of sale would not get a bit less information than if it had said the day of [Pellereau, J. It is not a prejudice to third parties for the grantor to pay up before the time, but the contrary.] Just so. In Ex-jjarte Stamford, Bowen, L.J. defines the limits within which a bill of sale may differ from the form — it is good if it gives the same legal effect. It is true this definition was somewhat qualified in Thomas v. Kelly by Lord Fitzger.aIjD, but the other Lords say nothing on it. In Blaieberg v. Beckett, 18 L. R. Q. B. Div. 96, a bill of sale was held bad as its legal effect was prejudicial to the grantor, but from the language of the Judges it is clear the grantor is one of the persons protected and favoured by the Ordinance. In Ex-parte Clever, Re Rawlins [supra] it was held these italicised words " stipulated times or time " were directory, but not obligatory, and so subject to varia- tion. In Selhyy. Higgs, [supra] although it was "within seven days " it was only so " after demand " and that demand depended on the " mere choice and volition of the grantee " as in Betherinq- STRAITS SETTLEMENTS. 625 ton V. Groom, — Parsons \. Bland. words which were obhgatorj L. R. Q. B. Div. 543. [snpra] turned on italicised so in Blenltertim v. liohertson, 24j O'Mallbt, C.J. Wood & Pel- ^ J.J. of the form is different '^'^'^j^^q [Pellereau, J. The italics in the body joxi say, as at the end it speaks of insei'ting things "not contained in body hereof," and so implies it is not complete ? It may be added to, though within certain limits ?] Yes— In Cockerane v. Erdwistle, W. IST. 1890, p. 103, a bill of sale was held bad as it included rights over chattels real, while the form in the schedule only operates over personalty. This case only follows the former ones, viz., that the legal effect of the document had been altered. The second point divides itself into two points. If it contains no power of sale it might be defective, but it is not void. [O'Malley, C.J. If defective, is not that sufiicient, as what then would be the rights of the holder against these goods so as to say that those rights have been interfered with by their fraudulent removal ?] No — there is a difference between a mortgage of lands and of personalty. In the former the mortgage would have to proceed by action for foreclosure. In the latter, the property passes to the grantee, and on default he can take possession and sell by force of his right of property. This right he has at common law — Ex-parte Official Receiver Re Morritt — White v. Morris, 21, L. J. C. P. [N. S.] 185, also shews such right. But in truth this bill of sale contains a power of sale, for such power is implied under Section 10, Sub-sections 1 and 2. In Hetherington v. Groom, Fry, L.J. assumes the section gives power of seizure and sale. In The Caledonian Credit and Mortgage Corporation, Ld. v. Gorney, 16 L. R. Q. B. Div. 24, it was held if express power of sale is given in the bill of sale, it does not make the bill of sale void as it does not alter the legal effect; that the jointeffectof the Actandform was that the bill of sale thereunder hadth&t power. In the new edition [1 3th] of Prideaux on Conveyancing, p. 728, express power of sale is left out though in the earlier editions it is to be found. In Ex-parte Official I Receiver Re Morritt, the majority of the Judges held that the mortgagee had a power of sale at common law, but Lord Eshee I - and Lopes L.J. while they agreed in this, also held that Section \ 10 of the Bill of Sale Ordinance impliedly gives power of seizure and sale. Cotton L.J. alludes to the point, but says he expresses I no opinion on it — but neither he nor the other Judges dissent from that view. Baynes, in reply. The words payable " within three months" are not the same as " three months after date" — the former gives a legal consequence different from the latter. The object of the Legislation was that all the terms should be precisely stated — no doubt was to exist — yesterday I saw a bill of sale payable " within three years." The Ordinance surely never intended such a long period, but the principle applicable to that bill of sale is the same one to be applied here. All cases relied on by the other side are cases in which the legal effect was altered and being in favor of grantee was bad. Here the objection is not one of legal effect, but of n.) Anamalai Chettt V. Kaokk Tambt. 626 THE SUPREME COURT. O'Mallf.t, C.J. Wood ") & Pel- S J.J, LKREAU.J 1890. Anamalai Chettt 1). Kader Tambt. mere form. There is a difBerence between " in " two months and " within" two months, and the case of Webb v. Fairmauer is not applicable. In Watkins v. Evans, the bill of sale was payable one month after date, but the exact date was inserted, and so it was a compliance with the form. As to the second point — Section 4 of the Bills of Sale Ordinance shews the Ordinance applies only to all cases in which a power of seizure and sale is given. If a bill of sale has no such power it is not within the Ordinance and is therefore void. If Section 10 intended to give a power it would have followed the words of Section 22 of the Conveyancing Act 1881 — they don't do so, and reading Section 4 and 10 together it is clear Section 10 only refers to documents having a power of seizure and sale within Section 4. It assumes that the document has such a power in it. Iiord Esher and Lopes, L. J. no doubt say Section 10 implies the power, but the majority of the Judges don't say so ; the inference is they doubted it. — In Sweet's Precedents of Conveyancing [4th Ed. 1888] p. 692, a power of sale is expressly given. In Ex-parte Official Eeceiver Re Morritt the bill of sale gives an express power to seize, and the majority of the Judges say, having power to seize, the grantee had power of selling. Here there is no power to seize or sell. In Watkins v. Evans, the bill of sale without a power of seizure and sale was held good only because the Court was under a misapprehension as to the decision in Ex-parte Official Eeceiver Re Morritt — otherwise they would have held the bill of sale void. In Melville v. Stringer, and Hetherington v. Groom, it is laid down that the bill of sale must be clear, so that any one not a Lawyer reading it might understand what it means — so I contend here a man who is not a Lawyer on reading this bill of sale would not think there was a power of sale — he would be misled by it. [Pellereau, J. How do you explain that the form in the Bills of Sale Ordinance does not contain a power of sale, when power of seizure and sale is the thing that affect third parties ?] The italics at the end shew power may be added for the maintenance of the security — that includes a power of sale. If these parties intended a power of sale, yet it does not appear, and so the true nature of the contract between them is not shewn in this bill of sale and it is void under Section 11, Clause 3. Cur. Adv. Viilt, July 1 1th. O'Malley, C.J. The appellant has been convicted of fraudulent removal of property under Section 424 of the Penal Code, and the question is, whether the bill of sale put in by the prosecutor to shew his rights to the property is not void for not complying with the Bills of Sale Ordinance. Two objections have been taken to the bill of sale— First, that the clause for re-pay- ment was not in accordance with the form in the Schedule to the Ordinance as it was not payable within a " stipulated " time. The clause was that the money was payable " within three months from the date hereof." As to this ground, I think the bill of sale is sufficiently and substantially according to the form, and this on the criteria laid down in Ex-parte Stamford Be Barker. I STRAITS SETTLEMENTS. 627 think so notwithstanding the difference in this case, as to fixing of time by a fixed date, and the difference in that the money might be paid by the grantor within the limit. The second point was that the bill of sale is void as there was no power given in it to seize and sell. I think on the authority of the reasoning of Lord EsHER and Lopes, L.J. in Ex-parte Official Eeceiver Be Morritt, that no such power is needed. Such power is implied 1 from the wording of Section 10 of the Bills of Sale Ordinance itself. The bill of sale is therefore good and the conviction must stand. Wood, J. I am of the same opinion. On the first point, I think this bill of sale is substantially according to the form, on the authority of Ex-parte Stamford, and the clause for re-payment sufficiently definite. On the second point, I consider power of seizure and sale is implied under Section 10, Claiise 2 of the Bills of Sale Ordinance, on the authority of Ex-parle Official Receiver Be Morritt, and Watkins v. Evans. PeUereau, J. I concur. Conviction affirmed. O'Mallbt, C.J. Wood & Pel LEEEAU, 1890. . [j.j. J.) Anamalai Chettt V. Kadee Tambt. TNG AH MENG v. OPIUM FARMER. The " Chinohew '' or Nakodah of a ship on hoard which some illicit chandu is found Pknano. in a box which is in no way shewn to be his, is not to be " deemed to have imported " the chandu within Section 7, Clause 2, simply because he is the responsible person on Wood, J. board, and the ownership of the box cannot be traced to any other person. 1890. The appellant, Ing Ah Meng, had been convicted by J. K- Birch, Esquire, First Magistrate, Penang, with importing illicit chandu, and fined $200, under Section 7, Clause 1 of the Excise Ordinance 4 of 1870, as amended by Ordinance 4 of 1884. The evidence was to the effect that the appellant was the Chinchew or Nakodah of the steamer " Swee Leok " of 47 tons burden ; that the Police and certain Revenue Officers had gone on board, and on searching found four tins of illicit chandu in a box which was locked. Not finding any one on board who owned the box — passengers having all disembarked — they took the clerk of the steamer into custody. While in custody this clerk laid an infor- mation that the Chinchew was the " responsible officer " on board, and he believed the box was either used by him or the cook. On this information a warrant was issued and the Chinchew, the present appellant, arrested. At the hearing before the Magistrate these facts were proved, the clerk however, stating he did not know to whom the box belonged. The Chinchew in his defence called witnesses who swore the box belonged to the cook, a Hylam man, who had since left the ship. The Magistrate disbelieved these witnesses, and thinking the Chinchew was the responsible man on board, held he must be " deemed to have imported " the chandu under Section 7, Clause 2 aforesaid. That section is as follows : — 7. " Tlie importation of chandoo or opium dross into any Settlement is prohibited, and any person who shall import or attempt to import chaudoo or opium dross into any Settlement shall be liable on conviction to a fine not exceeding and the chandoo or opium dross shall be forfeited. July 14. 628 THE SUPEEME COURT. Wood, J. 1890. Ing Ah Mens V. Opium Faemeb. Any person having on board any ship on its anival 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-stores shall be deemed to have imported the same." The appellant appealed against this conviction. Anthony, for the appellant contended, there was no evidence to trace the chandu to his possession, and he could not therefore, be said to have had it. It was found on board, but he was no more to be deemed to have imported it from this mere fact than anybody else on board. D. Logan, [Solicitor-General] admitted he could not support, the conviction. Wood, J. The conviction must be quashed. It is a case in which costs should be given. Conviction quashed, viith costs. Sjngapobb. O'Mallet, C.J. 1890. August 12. DONOHUE V. JOAQUIM. Where the process of this Court is abused, as for instance, by a plaintiff issuing a summons for a gross and scandalous claim, the Court will summarilj' without notice to the plaintiff, order it to be taken off the file and the service set aside. This was an application by the defendant to be allowed to give short notice of motion to the plaintiff to shew cause why the writ of summons herein should not be struck out and service set aside ; or if the Court considered that the summons should not remain on the file, that it might be struck not without notice to the plaintiff on the grounds that it was a gross abuse of the process of the Court and scandalous. The defendant was a Barrister and an Advocate of this Court. In 1885, the plaintiff, who was a Barrack Sergeant, consulted the defendant, and the result was an action [No. 55 of 1885] against the then Senior Commissariat Officer, Colonel Wild, for damages for assault and false imprisonment. Colonel Wild pleaded to that action that plaintiff was subject to military law and as such imprisoned for an offence and that this Court had no jurisdiction. The case was argued for two days before Sir Thomas Sidgeeaves, the then Chief Justice, the defendant arguing the case as Counsel for the plaintiff. The Court, on the authority of Dawkins v. Paulet, 5 L. R. Q. B, 94, held that it had no jurisdiction [a,] and gave judgment for the defendant without going into the merits of the ease. On 18th April last, the plaintiff was sued in the Court of Requests for $2 balance of his hoy's or servant's wages ; he issued subpoenas to the present defendant and to the Attorney-General, the Registrar of this Court and others. The defendant attended on the subpoena [para. 10 of claim hereinafter mentioned], but the plaintiff did not do so and judgment was given against him for the amount claimed. Yesterday, 11th August, the plaintiff began this action against the defendant and caused the writ of [a.] See Kamoo v. Sassett, Vol, J of these Eeports, p. 1. s^eaIt^s seto^lemeMts. 629 summons to be served on the defendant on the same day. This writ of summons stated the title of the action as "John Donohue, in behalf of himself and three children, of Singapore, Inhabitants — plaintiffs — and J. P. Joaquim, Barrister or Advocate — ^Defendant." The endorsement of claim which was headed " Special Indorse- ment," was as follows : — " The plaintiff's claim is $15,000, on account of the case |i Donohue v. Wild, the defendant being the plaintiff's Advocate in that case, where law admits no excuse whatever for the admitted offences, not only against the plaintiffs, but also against the Crown. For culpable neglect, refusal of duty and cheating his cUents in serving the other or defendant-side against his own clients. 1. By not making the charges so strong nor claiming the amount for damage and loss shewn by the plaintiffs' instmctions, verbal and wiitten. This would be acquiesced in if he, the defendant, had done his duty other- wise — it now forms part of the whole fraud. 2. By deceiving his client by promises that slight inaccuracies in the pleading, prepared by the defendant, were immaterial, and that his client could make a full statement when the time came for trial [which time never has come through the defendant's neglect and refusal of duty] by a promise that he, the defendant, would have that defendant, in case H, examined on oath on his utterly false pleading. 3. Allowing that defendant to prevent a settlement on trial, by an utterly false pleading, that the wrongs or grievances are not cognisable by Civil law, &c. Refusing to have that defendant sworn, or to examine him, and shutting out the witnesses produced to prove what the plaintiff alleges. 4. Cheating his clients out of $300 by taking $100 as a fee to obtain redress for his clients, in a case where law admits no excuse for the defendant, by refusing an offer, an airangement by the defendant's-side, without the knowledge or consent of his clients ; and in face of this offer of arrangement, and in face of that defendant confessing offences for which the law admits no excuse, he [the present defendant] allows that defendant afterwards to make use of an utterly false pleading, that the offences for which he had previously offered to make an arrangement, are not cognisable by Civil law ; and to cheat and mock his clients under pretence that they could get benefit of military law, in consequence of which forgery and falsifying by that defend- ant, and culpable neglect and refusal of duty by the present defendant, about $'i00 — more has been taken by force and in defiance of law from the plaintiff, to punish and intimidate him from seeking protection of law — or as it may be put, for being law abiding — in submitting to a series of grievous wrongs, and for seeking settlement at law, instead of killing the offenders on the spot. 5 Culpable neglect and refusal of duty, causing loss of about $500 more, by serving the other side, and enabling the defendant to conceal all previous wrong-doing, and causing further endless loss by allowing the defendant to make use of another false and fraudulent document, as pretence of acquittal of offences — which no power on earth can acquit them of — and in face of the defendant being allowed to prevent trial or settlement, and in face of there being no notes of investigation, or record of evidence, to shew even a colour of trial or legality. 6. That the value of the several sums- of money maliciously wasted or ai'bitrarily taken, in defiance of law, by way of private pimishments, to intimidate the plaintiff from seeking settlement at law, is immeasurably beyond the proper value of that money, in_ consequence of wrong being heaped on wi-ong, and in consequence of a persistent disobedience to the Will of God, expressed in law, — more grievous, in some respects, than that rebellion or- disobedience on account of which hell has been made, and all mankind condemned. 7. Culpable neglect in allowing the defendant, on the other side, to be screened, when law admits no excuse ; and in allowing his own cUents to be so outrageously punished, for being law abiding and seeking redress at law, instead of taking law into his own bauds. O'Mamst, C. J. 1890. DONOHCE V. Joaquim. 6^0 1*HE SUPREME dOU&t. O'Mallet, C.J. 18'.)0. DONOHUE V. JOAQCIM. 8. Culpable neglect is not appealing against such perversion and reversal of justice. 9. Culpable neglect, in allowing the defendant to put the responsibility of his own disobedience to the laws of the Crown, on the Crown. 10. Maliciously resisting the plaintifB's rights in law, and disobeying the commands of the Crown, by refusing to attend Court to give evidence on 18th April, 1890, when duly subpoenaed. 11. Necessitating a Petition of Right, and a claim of $40,500 against the Crown, by culpable neglect, in allowing his clients to be deprived of Civil rights and liberty, and benefit of law — to be so often and outrageously punished for being law abiding and seeking settlement at law. Allowing the actual offenders to escape, by putting the blame on the Crown, and making common cause with others, in resisting the law, and blocking every other means of settlemeut ? Consequently, unless the full amount of the claim is imposed, the Attorney-Genei-al, in his answer, may try to put the "whole blame of this defendant; so that when a man is so outraged that he puts the name of God on the last wrong, be it ever so little in itself, great injustice would be done, if this defendant is let off lightly now ; and Her Majesty's Attorney- General coming forward a short time after, trying to excuse the Government by sa3dng all the blame rests on this defendant, after being let off lightly. It being self-evident, that if no excuse can be found for the first defendant, none can be found for this defendant, allowing the first to be screened, and his own client not only to be deprived of benefit of law, but so outrageously punished for being law ^.biding, and all the sub. sequent consequences as well, 12. Although he neglected to prevent, he could not force the Chief Justice and others to disobey directions of law, therefore each is responsible for their own separate offences, and the Crown for all." Address for service. " Guardian's Quarters — Government House." Joaquim, the defendant, in person now ex-parte called the attention of the Court to the writ of summons and made the application as above stated. He submitted that the Court had full power to set aside writs, &c., when they were an abuse of the process of this Court [a.] and scandalous. Section 184 of the Civil Procedure Ordinance, 1 878, bore somewhat on the point. O'Malleif, C.J., without giving notice to the plaintiff, said the writ of summons was most scandalous, and he would not allow it to remain a moment longer on the file; and ordered it to be forthwith taken ofE and set the service aside. Summons taken off file. Se7-vice si't aside. REGINA V. YEOH BOON LENG. PSnanb. Q'leri/. Can a Chinaman be couvioled of bigami/ m this Colony > [4.] 1 ' AVhere a Chinaman was prosecuted for bigamy under Section 494 of the Penal • Wood, J. ^'''''®' ^""^ ^^® prosecution were unable to prove that by Chinese law, custom, or 189o' ' religion, the second marriage was void by reason of its taking place in the lifetime of .' the first wife, A u^ustlS Held, he was entitled to be acquitted. ° ■ The onus, under the .said Section 494 of proving that the second marriage is void as aforesaid, is on the prosecution, and not on the prisoner, to prove that the marriage is valid. Books purporting to contain the Code or laws of a Foreign Country, before they can be admitted as evidence under Section 12 of the Indian Evidence Act II. of 1855, of such laws, must be shewn to bo books not only compiled or written by permission of 'the [a] See Siein v, Valkenhuyscn, 27 ly. J. Q, B. [N. S.J 2;{7, 23S, per Cromplun, J. [A.] See /« the goods of Ing Ah Mit, auto p. 380. STRAITS SETTLEMENTS. 631 Government of that couutry, but in its compiled form as tendered, to have been Wood, J. printed or published under the authority of that Government so as to appear to have 1890. in that condition and language the sanction of that Government and so to be accepted as reliable. Kbqina Books on foreign law, to be admissible under the other part of the said Section v. 12, must be shewn to be books " commonly admitled " in the Courts of that Foreign Yeoh Boon Country, "as eit'deafe of the law of such country." Leno. "Where therefore it was proved by a witness [not an expert] that he was in the habit of attending the Courts of the Foreign Country, but was seldom present at the hearing of cases, and that certain books [produced] were used as reference of the laws by the Judges of that country who tried Civil and Criminal Cases — and that he had seen such books in the Courts of Justice there, and had seen them turned over and looked at by the Judges, but he had no knowledge whether they were admitted as evidence of the law in those Courts, Held, the books were not admissible under Section 12 aforesaid. No other books or writings on foreign laws, customs, or manners, other than those ii falling within Section 12 aforesaid, are admissible in evidence or can be read to a Jury, t In a case of importance, and where no harm will be done to a prisoner, the Court will adjourn a part heard criminal trial for a longer or shorter period to enable the prosecution to procure evidence to prove the charge laid against the accused. The prisoner, who was a Chinese merchant, residing iu Beach Street, Penang, and a British subject, was charged at the Criminal Assizes before Wood, J., and a Common Jury " for that he the said Yeoh Boon Leng did on or about the 29th day of May, 1890, at Penang, having a wife, to wit: Kam Saw Keat, still living, marry one Seh Ann, such last mentioned marriage being void by reason of its taking place during the lifetime of such wife, to wit : the said Kam Saw Keat, and that he had thereby committed an offence punishable under Section 494 of the Penal Code." The case was heard on the 30th and 31st July, and on this day, Adams, for the prosecution, in opening the case, told the Jury that though . it was an accepted thing that a Chinaman could take unto himself more than one wife, as a matter of fact by the Chinese law, he could marry but one as his only and lawful wife. He was about to read from a boob called " The Middle Kingdom," by Williams, Van Someren, [Gurney with him] for the prisoner, objected to the book being read. Wood, J. upheld the objection. Adams continuing his opening, then said he undertook to prove that the marriage of the prisoner to Seh Ann with the same ceremonies as for a marriage with a first or lawful wife, during the lifetime of Kam Saw Keat the first and lawful wife, and without having previously procured a divorce from her, was void according to Chinese law, and the prisoner was therefore punish- able under Section 494 of the Penal Code. He then pi'oceeded to call Kam Saw Keat the first wife. Van Someren objected, as she being a wife of the prisoner could not give any evidence against him in a criminal trial of this kind. Wood, J. without expressing any opinion on the objection requested Adams to address himself first to proving that the mar- riage to Seh Aiin was void by Chinese law. 632 THE SUPREME COURT. Wood, J. 1890. Begina V. Yeoh Boon Leng. Adams, hereupon produced several volumes of Chinese books and said he would call a witness, a person who had resided in China for many years and was well acquainted with the laws and customs of that country, who would be able to prove that these books [certain passages of which he had caused to be translated] contained the laws of China. Wood, J. intimated that our law required that such evidence should be given by an expert, but he would befoi-e deciding, hear the witness Adams had. Adams, hereupon called Mr. Lim Kok Cheng, one of the Chinese Interpreters of ttie Court, who after being duly sworn, stated that — " He had resided in China for eighteen years. He was first employed in the Custom House at Foochow in the Hokien Province, b\it afterwards promoted to the Office of the Board of Trade. He was in the habit of attending the Coiti'ts there as often as twice a month, but was seldom present at the hearing of cases. The books produced contained the laws of the present [Tai Cheng] dynasty which extended all over China. He had similar books with him before. They were used as reference of the laws by Mandarins who tried both Civil and Criminal cases. He had seen those books in the Courts of Justice there [Yamen] and seen the books turned over and looked at by the Mandarins. They contained the Civil as well as the Criminal laws and were accepted as authority on Chinese laws in the Chinese Corirts, but he had no knowledge whether they were admitted as evidence. The Chinese Consul in Singapore was a Mandarin and an Expert." Wood, J. was of opinion that this evidence would not do, and that an expert was necessary to pi'ove what was the law of China, and that the evidence was also not sufficient to bring the books within that portion of Section 12 of the Indian Evidence Act II. of 18&0, which provided that "books proved to be com- monly admitted in such [foreign] Courts as evidence of the law of such country, should be admissible " in this Court " as evidence of the law of such foreign country." He however suggested that if the books shewed that they had been published by the authority of the Chinese Government, they would be some evidence under the other part of the same section which provided that "books printed or published under the authority of the Government of a foreign country, and purporting to contain the Statutes, Code, or other Avi-itten law of such country shall be admissible as evidence of the law of such foreign country." Mr. Lim Kok Cheng then examined the books with this view, but could find nothing in them on the point. I Wood, J. however thereupon permitted the witness to be examined as to his knowledge of the custom of C'liinese marriao'es, whei-eupon Mr. Lim Kok Cheng stated — " He had never known a Chinaman marrying two wives in China. A person could marry one wife-and take other women as concubines ; but many Chinese Babas here, who were already married, had j^'one to China and got married there again to other women as no one tried to prevent thein from doing so." STRAITS SETTLEMENTS. 633 On being cross-examined, Mr. Lini Kok Cheng stated — Wood, J. 1890. "He had never studied the Chinese law, and all he could speak t6 Reoina was from what he had heard as well as from his personal observations both „ in China and here; that there were several Chinese here who, having a wife Yeoh Booit here went to China and married again, and vice versa. He knew two cases of | Lrng. Chinese resident here who had two wives married here ; the name of one of ! them he mentioned, the other name he could not recollect. Several names of respectable Chinese were then mentioned to the witness, and he was asked whether he did not know from common report that they had more than one wife here. Some of these he said he did not know, some he knew had mistresses, and one of them [an uncle of his] had not. He was asked if he liad never in the course of his official duties known that a Chinaman— a comparatively poor man — had two wives in Penang. He replied he had." Whereupon Counsel produced the papers In the goods of Ing Ah Mit, deceased [a], and asked the witness if that was the case, to which he replied it was. The petition for administration by the .second wife, and two affidavits bj her in which she described herself and spoke of the first wife too, were then shewn the witness, and he was asked if they bore his signature as having been explained by him to the petitioner and deponent, and on his replying in the affirmative, he was asked how he explained in Chinese to the petitioner and the deponent the words "two widows," " second wife " and " other wife," upon which the witness stated he had spoken of them all as "Boh" [wife]. He was then asked whether he himself had not been married in China and had a wife there, and whether he had not since been married in Penang and had a wife here too. He admitted that it was so, and that both were his wives.Jl3 Adams, then called a further witness — Mr. Ernest Karl, a French gentleman, and late Assistant Protector of Chinese in Penang, who stated he had resided over nine years in China and had studied the Chinese law. Van Someren objected to the witness being examined as an expert, merely because he had studied the Chinese law, and referred to BristowY. Segueville, 19 L. J. C. P. [N. S.] 289, in which Alderson, B., had said it was " not competent for a Frenchman who had studied the books relating to Chinese law, to prove what the law of China is." Wood, J., said on the English authorities he could only admit a person as an expert on foi'eign law who had not only studied that law, but bad also practiced or administered it. Adams then examined Mr. Karl with a view to shewing that the Chinese books already referred to were printed or published by the authority of the Chinese Government and so admissible. Mr. Karl hereupon stated that — "The books were volumes of the Penal Code of China passed by the Tai Cheng dynasty. He knew they were used in Chinese Courts of Justice as guides for the administration of law thei'c and were also leai-ned by students. He did not know if they were used " as evidence " in those Courts. There was nothing to shew that the books were published by authority of the Govern, ment of China, but they contained the whole Code. They purported to be [o.l See In the goods of Ing Ah Mit, anti p. 380. 634 THE SUPREME OOUET. Wood, J. 1890. Eegina. V. Yeoh Boon Lenq. a reprint of the Code, printed at tlie " Goh Soo Tong Press or Chop." He knew they were published by the Academy of Mandarins, but there was nothing in the books to shew the fact. The preface stated that " the former pubUoation of the Code had deteriorated and were few, and it was advisable to reprint it for the better knowledge by the people of the laws of the country, so the compiler had undertaken the work, &c." Adams contended, that the Chinese books were admissible on this evidence under Section 12 of the Indian Evidence Act before- mentioned. Wood, J., held the evidence -was not sufficient to bring them within the section — it did not shew they were printed or published by the "Government" of China, nor that they were "commonly admitted as evidence" in China. Van Someren objected to Mr. Karl producing a French translation of the Chinese law and it was withdrawn. Adams, then submitted that these books being excluded, he should be allowed time to procure the evidence of an expert, in view of the great importance of the case. The Chinese Consul in Singapore was a Mandarin and an expert, and if an adjourn- ment was allowed the prosecution would endeavour to procure his attendance. Van Someren, objected to an adjournment after the case had been given in charge of the Jury. The prosecution had had ample time to prepare their case, and if the Magistrate had acted as he should have done, he should not have committed the prisoner to the Assizes without one tittle of evidence before him that the second marriage was void. The prosecution proved nothing then — they wished to try and prove something now, but had not been able to do so, and they wished for further time to get up a ease. It was most dangerous to the prisoner to allow the prosecution to do this. Although the Court had the power, presumably under the Criminal Procedure Ordinance 6 of 1873, to adjourn a part heard case over a longer or shorter period, yet it would not readily exercise that power, especially as the prose- cution did not shew that they had any reasonable prospect of procuring the evidence, or obtaining the attendance of the desired witnesses. The prisoner was in the hands of the Jury and he claimed a verdict. Wood, J. said he thought that the case was of considerable importance — it would not be a case for punishing the prisoner if he should be convicted, except nominally for declaring what the law was, and so no great harm would be done to him. He thought that in the interests of justice and to ascertain what the law was as affecting Chinese second marriages, he ought to grant an adjournment to enable the prosecution if they could, to prove their case. The case would be adjourned to Monday, the 18th August, 18th August. Adams, for the prosecution stated that the Chinese Consul, in Singapore, had not been able to come up and he was doubtful how he could have compelled his attendance by process of this Court. The Consul, however, had sent up certain Chinese law books [other than those already tendered and Sl-'RAlTS SETTLBMBNTS. 635 rejected] and these he would now tender in evidence as having Wood, J. been printed or published by the authority of the Government of _^ China. He then called Mr. Lam Su the other Chinese Interpre- Keqina ter of this Court, who had had an opportunity of examining the "• books and making translations therefrom. This witness first ^^le^""" read the imprint on these books, and stated that it was to the effect that — " Those books had been reprinted by the Coiu-t of Trials of the Oh Pah Province in the Winter of the 11th year of the reign of the Emperor Tong Tee " [1872]— He did not know what was meant by the " Court of Trials." He then read portions of the preface, which did not shew anything. In the body of the book were several memorials to various Emperors at various times, and among these was a memorial for permission to print these boohs, with two replies from the Viceroy granting such permission. These memorial and replies, being translated were as follows : — Memorial. "Lew, Judge, and Chang, Local Treasurer, of the Oh Pah Province, jointly submit this despatch requesting an order to act accordingly. We presume that the trial of criminals is the most irtiportant part of administration, and laws regulate the ti-ials of ci-iminals. Any official who governs people ought to study them with his best attention. Now, on account of the daily increase of criminal offences, and civil litigations of the Oh Pah Pi'ovince, we the said officials are very desirous to over-haul all matters concerning the trials of cases. We had submitted a despatch as to getting funds for establishing the principal department for trials, and framing regulations for teaching and punishing the people. Hitherto, we have the delegates to try cases. Besides the two prefects at " Boo " foo and " Han " foo — [a " foo " is sub-divided into districts] — another prefect is to be additionally appointed to sit in the depai-tment to preside over trials, and other officers are after careful selection to be deputed to that department to render assistance. Those officers in that department must study, leam by-heai-t, understand and reason on the law books — so much so as to gather their full meaning and understand them thoroughly. In that case, all decisions are sound, and quotations are right and all punishments are adequate. But the law books sent out from the Board of Punishments are not many, and those reprinted by the printer's shops are not tnistworthy for there are mistakes in tTie characters and strokes of the characters in them. Besides these law books referred to, there are books of bye-laws, and books of precedents of cases in Courts now in use, &c., all these are import- ant instrimients in the administration of puiiishments. There being so many classes, the fear is that if they are not completely brought out, references cannot be obtained completely. We, the said officials intend to carefully correct and compare the books called " The Laws of Tai Cheng Dynasty collectively compiled," and add thereto the bye-laws of decisions, cases of the Assizes held in Autumns, and tables of distances of the Wee Keim banishment and San Lew ti-anspoi-ta- tion. Cases decided in Courts more or less by reference to laws for years, and decisions passed by the Board, from time to time, for general use, will also be compiled. They shall be carefully examined and minutely assorted after the fashion of "the Collective compilation"^ — [the book abovemejt. tioned] i. e., every thing belongs to a certain class, and shall be added thereto accordingly. They shall be assorted and compiled into volumes and printer's shall be hired to i-eprint them. As to the correction, comparation, and com- pilation, we shall select those officer's learned in law and cases, and they together with the legal advisers of the Court of Trials — the " Yuen " Depart- ment and the "' See " Department — shall attend to that work propei-ly, and get it done to full satisfaction. When they are printed into Volumes, they shall be at once distributed to all " foos " [sub-diviBions of a Province] — 636 TTHE SUfREME OOUfet. Wood, J. 1890. Keoina 0. Teoh Boon Leng. " chows " [sub-division of a " foo " ], and districts. They shall be depended on and referred to. As to the expenses required, the said Treasurer shall see how to pay them out of the funds for salaries of the officials in all " foos," " chows," and districts. This is an easier way to get the expenses, and the benefit obtained will be great. We, the said officials do this for the sake of improving administration, and whether it is right or not, we ought jointly to submit this to your Excelleiisy and apply for your reply consenting to its being done." Reply. " Minute received from the Viceroy Lee on the day of month of the 10th year in the reign of the Emperor ToNG Tee [1871] : I find that laws are important instruments to Mandarins , and Rulers of people. As the original Standard Laws are very exact and their meaning is acute and deep, one must study and re-study them before one can gather their meaning, understand them thoroughly, and form one's decisions thereby. Therefore in the " Mandarin Act " it is set down in a clause that they must read and study the laws which have been examined and corrected by their higher officials for teaching and punishing the people. If a Mandarin does not always study and re-study to understand the meaning of the laws, he will surely make mistakes in his quotation and decision when he tries a case, and therefore the punishment cannot be expected to be adequate. Now, the said officials intend to correct, compare, and reprint the " Law Books collectively compiled" and add thereto the bye-laws of decisions, table of distances of Wu Keun punishment and San Lew transportation, and "cases decided in Courts more or less by reference to laws for yeai'S, and distribute them to all ''foos," "chows" and districts, and to deduct the necessary expenses from the funds for salaries of the officials of "foos," " chows " and districts proportionately. As what is submitted to me, is for the sake of improving the admin- istration, be it done accordingly. I desire that you will at once personally order the delegates to minutely correct and compare them so as to ensure that there shall be no mistakes in the characters and strokes of the characters that strangely exist in the laws and cases — so iheii can be reliable and depended on and can be referred to. But the having of a good system of administration is better when accom- panied with the possession of men who can administrate. The kindness of our dynasty extends over the whole empire, and the people are taught to be good by virtvies. If the Rulers of people of all places can administrate in the best way and make the people know to Keep themselves within the limits of the law, then it can be expected to arrive at the prosperity of ceasing to use punishments as in ancient times, and then the happiness of oiu- peace will be enjoyed for ever. I an-ive at this conclusion. I and the said officials ought to exert our- selves to the utmost." FuETHER Reply. " Another minute received from the Yice- Viceroy Kwoh : The enactment of laws is to do what civilisation fails to effect ; and to suppress fierce-heartedness, rebellion, unprincipled intrigues and wickedness that are committed. Bye-laws may be increased or diminished as time demands it; and trials vary according to the circumstances of the cases, but the only thing wanted is, that the Standard Laws must not be departed from. Bye-laws are near to Standard Laws, and are therefore placed after the latter; but they are purposely not printed in the Standard Laws. Cases are in accord- ance with the Bye-laws and are therefore put together with the latter: then they are conveniently arranged. This is the reason why the Board of Punishments recently established the Law Office. The said officials want to collect the laws, and select officers to correct and compile them. When they are published in future for use, then those who are to administer accordmg to law, shall haye them for guidance and need not leave their power to the clerks and inferior officers, because they being STRAITS SETTLEMENTS. 637 officials, cannot ti-ust their own decision. Moreover, the ignorant subjects after their attention is drawn to the fact that they cannot escape through the meshes of the law, will try to reform themselves at an early date. Now, I see the administration and the virtue of the people will improve daily. I desire that you u'ill at once act as prayed for, siibject to the minute of tlie Viceroy." Adams contended, that this was ample evidence that these books were " printed or published under the authority of the Government " of China, within the meaning of Section 12. Wood, J. held the books were not admissible. The evidence was amply sufficient to shew that permission had been given by the Chinese Government to compile and republish their laws, but failed to shew that these particv.lar books were compiled under that permission ; or if so compiled, that the Government had accepted them as correct. " Printed or published by the authority of Government," in Secti, that the appellant should be in Court or O'Mallet, within the jurisdiction. *^-J- It is no objection to a oonviction for an offence against the Arms and Ammuni- tion Exportation Ordinance 18 of 1887, that an order of forfeiture of the arms, &o., August 28. is not at the same time made. The exportation of arms, &o , n liich is prohibited by the Arms Exportation Ordinance abovementioned, is an exportation direct to some prohibited place, and not an exportation from this Colony to some unprohibited place, although accompanied with an intention afterwards to export such arms, &c., from such latter place to the prohibited port. The language of any Proclamation issued under the Ordinance must be controlled by the provisions of the 'Ordinance. The appellants were convicted by Messrs. E. W. Birch and S. Leslie Thornton, two Magistrates, at Malacca, for that they on , or about the 28th February, 1890, did export arms and ammuni- tion to Netherland India, contrary to Proclamation, and punishable STRAITS SETTLEMENTS. 639 under Sections 4 and 7 of Ordinance 18 of 1887, and were sentenced, the Cliinaman, to pay a fine of $1,600 or six months imprisonment, and the Malay and Achinese prisoners $500 each or three months imprisonment. The evidence shewed that a steamer named the Gecil Smith had been despatched by the Chinese prisoner, laden with a large quantity of arms and ammunition. The other prisoners were his friends and accomplices. She left Singapore ostensibly for Lingi, in the Native State of Sungei Djong, via Malacca, but there was reason. for believing that the arms and ammunition were eventually intended to be taken from Lingi by some other vessel and smuggled into Netherlands India. The Police at Malacca having received information of the fact, the vessel on arrival at Malacca, was boarded by them and the prisoners taken into custody and the arms and ammunition detained. The prisoners were then charged and subsequently convicted as above stated. They appealed against this conviction — the appeal was partly heard in Malacca, and was subsequently adjourned to Singapore and came on for further argument on 27th August, and on this day. Bonser, '\_Attorney-OeneraT\ Bailey with him, for the Crown, took a preliminary objection that the appeal could not be heard as the appellants were not in person in Court, but were out of the jurisdiction. They contended that no sentence of corporal punishment could be passed on a person in his absence. This Court might if it thought the punishment insufficient, increase it — Section 25, Ordinance 12 of 1879. Section 34 necessai-ily implied that the person who came to this Court appealing from a Magistrate's decision subjects himself to the jurisdiction of the Court, and even if he had paid his fine and discharged the obliga- tion tlie law imposed on him, the Court could increase the penalty in such a case, as the man must be prepared to submit to what- ever punishment the Court thought right to impose. Even if he was sentenced to imprisonment and had served his teiun, and then appealed, and the Court held that a greater offence had been committed than that which he had undergone imprisonment for, the Court was justified in sentencing him to a further term of imprisonment. ■^They then contended that the word " export" in Ordinance 14 of 1887, meant the mere taking out of this Colony — and referred to Webster's Dictionary. The exporter's duty finished as soon as the goods left the country — the etymo- logical meaning of the word was, "carry out of the country." The usage of language would be considered in law, and if the ultimate destination of the goods is a foreign country, then according to usage the goods would be said to be " exported " to that country. The Court must look at the ultimate destination, and that destination here was Acheen. It was not necessary to prove the arrival of the goods at Acheen. The Ordinance spoke of exportation " to " a place — " to " meant the ultimate destina- tion in the intention of the party — so that the goods would get to the prohibited place by some means or other. International comity must also be considered, and it was a serious offence to O'Mallbt, C.J. 1890. Beoina u, Mabot & Oks. 640 THE SUPREME COURT. O'Mallet, interfere wifli that comity. If the appellants could not be said 9oqQ to have exported they certainly wei'e guilty of attempting to ' export, and the conviction could be amended. Their further Kesina arguments suflBciently appear in the judgment. -. "• . f Everarcl, [Joaquim with him] for the appellants, contended Oes. that it was not necessary to have the presence of the appellants. I Section 14 of the Appeals Ordinance was pretty clear on the point and shewed that the contemplation of the law was, the appellant need not appear as a matter of necessity, in any case. In this 1 case, the appellants had paid into Court their fines and given security for the costs of the appeal ; and there was not an in- ] stance on record in which this Court had increased a penalty — there were instances of lessening a penalt}', but none the other way. Then the conviction was bad, as no order for forfeiture of the arms, &c., was made as required by Section 8 of the Arms Exportation Ordinance, 1887. Then as to the word "export," they contended that it meant the ari-ival of the vessel at the place to which the goods were being sent. The vessel hei'e was bound for Lingi — her manifest so declared, and there was nothing to shew that the goods were destined for Netherlands India. Then as to the " attempt." As regarded the Ordinance, exporta- tion was an innocent act; it is only an offence if done in con- travention of a Proclamation. The destination of these goods from Singapore was Lingi, and the Court had nothing to do with the final destination of these goods from Lingi — the Ordinance spoke of exportation from a place to a place, and before there could be a conviction for an " attempt " there must be an overt act done in carrying out the in- tention. Anything done with the goods at or beyond Lingi was a distinct and separate act — the export from Singapore being over on arrival at Malacca or Lingi. No person could on law be convicted on a mere presumption of intention. Their intention might have been the worst before their arrival at Lingi, but on arrival at Lingi their intention might have materially altered. All attempts at exporting beyond Lingi would be acts done beyond the jurisdiction of the Court. Their further arguments appear in the judgment. Bonser, replied. Cur. Adv. VuU. September 1st. 0' Mallei/, C. J. In this case the appellants were convicted by a Court of two Magistrates at Malacca of the offence of exporting arms to Netherlands India, contrary to the provisions of a Proclamation made by the Governor in Council under the authority of Ordinance 18 of 1887, an offence punishable under Sections 4, 6 and 7 of that Ordinance. It appears from the. case that the charge as proved, and upon which the defendants were actually tried, was so insufficiently stated as to disclose no legal offence upon the face of it. The charge as it appears in the proceedings is as follows : — "That you the said Mabot, Mahmin, Chan Ong Bi, and Tengku Gampong on or about the 28th February, 1890, did export arms and ammunitions to wit : 7 barrels gunpowder, 2 cases rifles, 1 case percussion caps, and one case STRAITS SETTLEMENTS. 641 ammunitions and thereby committed an offence punishable under Sections 4 and 7 of Ordinance 18 of 1887." The only fact that this alleges against the defendants is that they diii export arms and ammunition, which in itself is not an offence. No objection was taken upon this ground, and I am satisfied that in the course of the hearing, defendants were informed as to the nature of the offence for which they were being tried, therefore, I do not feel bound to take further notice of this defect beyond saying that it shews at least that the proceedings in this case were taken without proper care to see that they were regular. The conviction is for an offence committed on or about the 28th of February, when the defendants were proved to have been at Singapore, so that it is for an offence committed at Singapore, a circumstance which might suggest some questions as to the jurisdiction of the Malacca Magistrates to convict. The appellants were fined, some of them |600, and one of them $1,500, and the arms and ammunitions were declared to be forfeited. The defendants had the benefit of legal advice upon the trial, but they did not apply to the Magis- trates to reserve any point of law for this Court in the manner provided by Section 16 of Ordinance 12 of 1879, and they paid their fines. Subsequently, they applied to the Magistrates under Section 18 of the same Ordinance to state a case on appeal which was accordingly done, and that case having been brought on before the Court at Malacca was adjourned here. It appears from the evidence, that on the 28th of February, the Cecil Smith, a British steamer trading between- the port of Singapore and the port of Lingi in the adjoining Native State of Sungei Ujong, was lying in the harbour of Singapore. The vessel had cleared and was about to commence her voyage to Lingi to touch at Malacca on the way, when the defendants brought on board a quantity of arms and ammunitions which were placed partly in the hold and partly on deck, and which were entered upon the ship's manifest as sundi-y goods for Malacca. The steamer started soon after, and reached Malacca on the 1st of March. Meanwhile, the Police at Malacca had received information of what was going on, and as soon as the steamer came into the neighbourhood of that port, boarded her, searched her, seized the arms and ammunition that they found on board, and arrested the defendants and conveyed them before the Magistrate at Malacca, where the case was heard and determined. The appellants contend, that they were illegally convicted, and a variety of objections have been urged both on the law and on the evidence, and as regards the informality of the proceedings in the Magistrates' Court, ^^efore dealing with these, [ must notice a preliminary objection to the proceed- ings on appeal, which was raised by the Attorney-General, who appeared on behalf of the Crown, to support the convic- tion. The Attorney-General contended, that this Court could not deal with the present appeal, unless it was first made to appear that the appellants were within its jurisdiction, and he urged that as the Court has power not only to quash convictions, but also to confirm, alter, increase, or award sentences, which may be C.J. 1890. Eeoina Mabot & Ors. 642 THE SUPREME COURT. O'Mallet, ioiprisonment, it cannot exercise its jurisdiction on appeal, in ^■gp- j any way, unless the defendants are present. I do not find that it ■ has ever been the practice to insist upon the personal presence of Eeoina \ the appellants, nor do I see either in the terms in which the juris- MABOT& ' 'li<^''io" of tlii^ Court to hear these appeals is conferred, or in the cTbs^ I terms in which the right of appeal to the parties aggrieved is granted, or in the terms in which the procedure of the Court, and the conditions to be observed, are prescribed, any such i condition laid down. The rights of parties to appeal, and the duty of the Court to hear the "appeal, are stated in explicit terms in Sections 18 and 24 of Ordinance 12 of 1879, and the procedure and conditions to be observed foi' the due exercise of that right are fully laid down in Sections 18 to 22 without reference to any such condition. 1 think that it is a rule, that where jurisdiction i , is once given to a Supreme Court by plain words it can only afterwards be limited by express provision or by clear implication, and that it is also a rule that where a right, such as this right of appeal, is granted, it should not be otherwise than liberally construed in favour of tbe party to be benefited. It would be \ contrary to both these rules to hold, upon the ground urged by the Attorney-General, that the presence of the defendants is essential to their right to have their appeal heard, and to the jurisdiction of this Court to hear it. >But, further, as was pointed '' out for the appellants, this Appeal Ordinance 12 of 1879 contains language which seems to imply positively, that the presence of the defendants is not necessary. Section 14 which, though it relates to appeals from the Supreme Court, bears directly upon the question, says : " The Court of Appeal, after reading the case and hearing the Law Officer of the Crown or Counsel for the prosecution, and the perp.on accused or convicted, or Ms Counsel, if all or any of them appear, shall have authority to direct the Court below as to any question or questions raised by the proceedings, and may reverse, alter, amend, or affirm the judgment ; and if the judgment, is reversed, may direct that the person convicted be tried again before the Supreme or any other Court having jurisdiction on the same charge, or any other charge for wliich he is liable to be tried, if the Coiu't of Appeal think that the person ought by law to be tried again. The Court of Appeal shall certify its decision to the Court below, which Court shall make such orders as are conformable to the decision of the Court of Appeal." And again, Section 25 which relates to Magistrate's Court, says : — "The Court shall give judgment in the said appeal after hearing the parties or their Counsel if in attendance on the day of hearing, and may affirm, alter, or reverse the adjudication of the Magistrate or Court of two Magis- trates as justice may seem to require. Provided always, that if it shall appear to be necessary for the due determination of the appeal, the Court may order the witnesses examined, or offered, or named for examination in the Court below in the cause on either side, to be further examined, and may remit the case to the Magistrate or Court of two Magistrates for amendment and for further evidence, either for appellant or respondent ; and after such amend- ment is made or further evidence supplied, jiidgment shall be given by the Court." Both passages clearly shew in my opinion that the presence of the defendants was not intended to be a condition of hearing STRAITS SETTLEMENTS, 643 their appeal. A reference to the provisions of the Indian Pro- cedure Code, on the same subject, points to the same conclusion. I hold therefore that the objection to the appellants' claim to have their appeal heard has not been sustained. /Coming now to the appeal, and to the contentions raised on the part of the appel- lants, .[ have to notice first an objection that was taken to the conviction, on the ground that it is too vague in its terms, inas- much, as it does not state what the Proclamation is which the defendants are said to have contravened. The conviction says simply that the defendants about the 28th February, 1890, did in contravention of a Proclamation, export arms and ammunitions, to wit: 7 barrels of gunpowder, &c., and thereby committed an offence punishable under Sections 4 and 7 of Ordinance 18 of 1887. This is an objection which might have been urged with more or less effect in England, or where criminal procedure is regulated by English law, but having regard to the terms of Section 33 of Ordinance 12 of 1879, and being satisfied that the irregularity, such as it is, does not occasion a failure of justice, T now hold that it does not invalidate the conviction. It was also objected, that the declaration of the forfeiture of arms, should have foruied part of the conviction, but nothing substantial in support of that objection was urged, and I think that the objec- tion itself was frivolous. It was then contended, that the evidence did not support the conviction, and it was urged on that point that assuming that it is an offence simply to put arms on board a vessel with the intention that these arms should ultimately find their way to a prohibited place, there was no evidence sufficient to establish that intention in this case. Upon this point, I do not think it is necessary to give any absolute decision, bat if it were, I think, I should be reluctant to act upon the circumstantial facts here present. They create suspicion of an intention, but that is not the same thing as the clear and cogent proof of an offence that warrants a conviction, and where one is dealing with intentions there is need to be particularly cautious, lest suspicious circumstances should be mistaken for proof of guilt. But my decision here is irrespective of any absolute conclusion on the point; I come now to the main question, namely : What is an exportation of arms to Nether- lands India contrary to the provisions of the Proclamation and Ordinance? And for the purpose of dealing with this question, I will assume the fact to be that these defendants, when they put these arms on board the Cecil Smith to send them to Lingi, intended, in so doing, to have them landed or transhipped at the Port of Lingi, and thence transmitted in another vessel to Netherlands India as their ultimate destination. I assume also as a fact, what is admitted upon the case, that the Cecil Smith was bound for Malacca and Lingi and no fur- ther, and that any goods on board destined for any other place would have had to be landed or transhipped at one or other of these ports and placed in another vessel for export thence. Now, it is contended for the respondents, that any send- ing or carrying awiiy to sea, which is accompanied by an intention O'Mallkt, C.J. 1890. Eeqina V. Mabot & Oks. THE SUPREME COURT. O'Mallet, C.J. 1890. Eegina V. Mabot & Oiis. in the mind of the sender that goods so carried away shall find their way ultimately to Netherlands India, is an exportation to Nether- lands India within the meaning of the Ordinance. And on the part of the appellants it is argued, that exportation to Nethei-lands India means exportation in a ship bound to Netherlands India ; export- ation with at least some overt act, at the time of exportation, fixing the destination of the goods, at the time of exportation to Netherlands India, and that exportation to any other place not prohibited, though it may be with the intention of having the goods transmitted from that place to Netherlands India, is not b}^ reason of the mere intention an ofPence against the Ordinance. The Attorney-General contended first, that you must interpret the words " Export to" a place, used in the Ordinance, in their most popular sense, becanse that is the sense more agreeable to the general intention of the Ordinance and to the purpose to which it is directed, and that if you interpret them in that sense, then any sending away of arms from Singapore with the intention of their getting ultimately to Netherlands India, will be an exporting of the arms to Netherlands India within the meaning of the Ordinance quite irrespective of whether the ship that takes the goods from Singapore is bound to Netherlands India, or to London or to San Francisco, or any where else. We mast look therefore to see what is the intention of the Ordinance, what purpose it had in view. The Ordinance itself is a re-enactment, with certain amendments of Ordinance 13 of 1867. It has no preamble, but presumably its object is the same as that of Ordinance 13 of 1867, which has a preamble, reciting that " it is expedient to provide powers for the prevention of the export from the Colony of arms, under certain circumstances." That, I take to be the intention of this Ordinance, "to provide the power for the prevention of the export from the Colony of arms, under certain circumstances." The Ordinance then enacts that the Governor in Council may by Proclamation prohibit the exportation of arms from the Colony either generally, or to any country, or place to be stated in the Proclamation. But the Proclamation which is issued under the Ordinance seems to have in view a purpose rather larger in its scope, because it recites in efEect the expediency not of preventing the export of arms from this Colony to Nether- lands India, but of preventing the import of arms into Netherlands India, and thus seems to contemplate the doing of something rather beyond what the Ordinance provides for, a,nd beyond what its own enacting words, which are limited in their scope, by the intention of the Ordinance, provide, and also beyond what any law of this Colony is competent to do. That being so, I think we must be careful to construe the enacting words in strict accordance with the limited intention of the Legislature, and not to extend them to support the larger purpose which the Proclamation appears to have had in view. We have to interpret the words not accord- ing to the object of the Executive which framed the Proclamation, but according to the expressed intention of the Legislature which framed the Ordinance. The Attorney-General urged that the Court should take into account the purpose of international comity for STUAlTS SETTLEMENTS. 645 wMch the Ordinance must be supposed to make provision and, within limits, that is a fair subject for argument. No doubt, as a matter of international obligation, we are bound to see that our ports are not used as places for the doing of acts regarded by in- ternational law, as unfriendly acts and to see that such unfriendly acts are not done in our ports or within our jurisdiction — and the exporting of arms direct to a place where war is being waged, is probably an act of that character. But it is another question, whether the exporting of arms to neutral places is under any circumstance, an unfriendly act in contemplation of international comity. The obligation to prevent unfriendly acts within our juris- diction may be clear, but the obligation to interfere with acts in- nocent in themselves, done within our jurisdiction, merely because there is an intention afterwards to turn them to unfriendly uses outside our jurisdiction is not so clear. Whei-e the words usedleave the matter open to doubt, the intention I should attribute to the Legislature would be, to deal only with such acts as are clearly unfriendly acts in contemplation of international law, and I think in that case I should hold what is prohibited here is export direct and not otherwise. An Ordinance might indeed be framed with the wider intention which the Attorney-General asks the Court to attribute to this Ordinance and where it said, "you shall not export to Netherlands India," it might declare that it meant "you shall not export anywhere with the intention that the export shall ultimately result in an import to Netherlands India," but if it did that, it would do it in view of some special relation- ship or friendship with the particular power, not from the general and ordinary considerations of international comity. I do not think I can go further than this, with the argument with reference to international comity ; nor can I presume to speculate as to what may have been the detailed policy of this Ordinance. I observe merely, that in its form, it is nothing but an abbreviated edition of provisions which have been enacted with varieties of detail, but on the same general lines in all parts of the Empire, and that there is nothing in it to shew that it is intended to meet any special diificulty, or any special local circumstances. So far I can only conclude that it has in view merely the ordinary purpose of such Acts and Ordinances and is to be interpreted accordingly. I can well understand that there may be reasons for very special legislation in the peculiar circumstances of this Colony, and for giving the Executive very large powers, not only for preventing the doing of unfriendly acts by persons in the Colony, but for preventing, as it were by anticipation, acts which may result directly in the commission of unfriendly acts in the Native States under our protection, for whose international behaviour the Imperial Government may have a certain responsi- bility towards other Powers, and that to do that it may be very necessary and proper to punish intentions here, which are to become acts there. But then for that purpose, special and care- fully worded enactments are needed, not mere transcripts of a common form of words used for simple exigencies. Looking therefore to the circumstance, to the objects in view and to the O'Mallet, C.J. 1890. Eeqina V. Mabot & Ors. 646 THE SUPfeEME COtJill'. O' Mallet, C.J. 1890. Eegina V. Mabot & Oes. obligations that have to be fulfilled — and bringing them to bear on the words used in the Ordinance, I think it must be taken, that when the Ordinance says " you shall not export arms to Netherlands India," it intends to say, "you shall not do tili act unfriendly according to international standards while you are in our jurisdiction : you shall not send arms from our ports direct to a. place where war is being waged." In short, in this case "you shall not export arms in ships bound to Netherlands India." There is another point of view from which the construction of this provision of the Ordinance may be regarded. As a broad matter of principle, it ought not to be held that an Ordinance in creating and defining an offence, intends to make an act, innocent in itself, punishable merely because of the intention in the mind of the person who does it, unless it says so in plain and unmis- takable words. To construe doubtful expressions in that sense would go counter to the rule that in doubtful matters and where an expression is in general terms, the words are to receive such a construction as may be agreeable to the rules of the common law in cases of that nature ; because I think it is a rule of the common law that intentions shall not be punishable as crimes. Black- stone, says: — " To make a complete crime cognisable by human laws, there must be both a will and an act. For though in foro conscientios a fixed design or will to do an unla-^vful act is almost as heinous as the commission of it, yet in general, and except in the rare case in which the party confesses such a design, no temporal tribiinal has any means of discovering its existence, where it has not been carried out into an external action. It is besides impossible in any case to ascertain that conscience might not possibly have recovered its power in time to prevent the actual perpetration of the offence ; for which reasons, in all temporal jurisdiction, an overt act or some open evidence of an intended crime is necessary in order to demonstrate the depravity of the will before the man is liable to punishment." " A vicious will, without a vicious act is no civil crime," and therefore if an Ordinance intends to make an otherwise innocent act punishable, because of the intention only with which it is done, it must say so in plain terms, and unless it does, it must not be so construed. Undoubtedly an Ordinance may treat as an offence an otherwise perfectly innocent act, because merely of the intent with which it is done ; and in dealing with certain classes of matters it is absolutely necessary to do so. It is done in excise and customs acts ; it is done in bribery acts ; it is done in the foreign enlistment act; and in a variety of other acts; but then where it is done it is always done by plain words and there is no instance that I know of, of intention being made punishable, without plain words indicating that the intent is to make the offence. On this ground I think that as the Ordinance makes it an offence " to export to Netherlands India," its terms are not to be construed as making it an offence " to export to any place with intent that the things exported shall afterwards be imported into Netherlands India " but merely as making it an offence to export in fact, in act and deed, to Netherlands India : that is to export with a destination STRAITS SETTLEMENTS. 64?, to Netherlands India fixed in and by the act of exportation, which O'Mallet. is the same thing as to export in a ship bound to Netherlands jggp India. I thing I should notice also certain subsidiary provisions in the Ordinance, which seem to support the view of the construction Eegina that Ihave adopted. Sub-sections 1 and 2 of Section 5 give a power mabot & to search vessels for arms in course of exportation to prohibited Oes. places. If the respondent's contention as to what such exportation compi'ites were correct, then we would expect to find the power given tc search all vessels suspected of having arms on board, irrespeciive of their destination ; whereas if the appellants' conten- tion is right we would expect to see the power confined to cases of ships bound for prohibited places ? As a fact the power is so limited.! Again, Sub-section 3 makes arms in course of exportation to prohibited places liable to seizure. Why is the power of seizure limited to the case of arms found on board ships to prohibited places, unless it be that the Legislature intended that only arms so placed should be regarded as in course of exportation to prohibited places. The respondent based an argument as to the meaning of the word "export" upon the use of the corresponding term" import" in the Customs Consolidation Act [39 & 40 Vic. Chap. 36], and he said that because in Section 41, it says : " No goods shall be deemed to be imported from any particular place, unless they be imported direci from such place, and shall have been there laden on board the importing ship either as the first shipment of such goods or after the same shall have been actually loaded at such place," therefore it is to be held that in the absence of such a definition " importing " would include importing otherwise than direct ; and that by parity of reasoning " export " includes export otherwise than direct. What it seems to me rather to shew is that it may be doubtful whether the word includes both meanings, in the con- nection in which it is used in that Statute, and in that way, it tells against the respondent, because if a Statute creates and defines an offence with words that are doubtful, they should be construed in their more limited sense; and "export" used as it is in this Ordinance could be interpreted only as export direct. I have, I think, now dealt with most of the arguments that were brought before the Court, and on the grounds I have stated I must hold that the facts proved against the defendants do not constitute an offence against the Ordinance; and on the like grounds, that no attempt to commit an offence against the Ordinance has been established, and the order will be accordingly that the conviction be quashed, that the fines be remitted, and that the forfeiture be set aside. I think, I should notice here that the boarding of the steamer, and the search and the seizure of the arms at Malacca were acts done apparently under some misconception of the mean- ing of the Ordinance which authorises such proceedings only in the case of a vessel bound for Netherlands India, which this vessel was not. So far for the main point to be decided upon the appeal. But now it has been urged that although the conviction may be quashed, yet if upon the facts before me, I consider that there is any other charge upon which the defendants can properly be tried, I am bound, by Sub-section 2 of Section 34 of Ordi- (548 T?HE SUPREME OOUM. O'Malley, 0,J. 1890. Eegina V. Ma EOT & Ors. nance 12 of 1879, to send them back to be tried on that charge; and in the alternative that if I consider that the facts of the case shew that the defendants ought to have been /con- victed of an ofEence other than that of which they were convicted, I must by Sub-section 6 of the same section direct sentence to be entered up for the offence upon which/ they ought to have been convicted, or send back the proceedings to the Magistrate's Court with directions to that effect. JJnier the latter provision, I do not feel bound to act in this case. It applies only where the charge is inconveniently framed, and I do not think that that was the case in this instance; and it is tlerefore only with reference to the former provision that I have to deter- mine what course to take. It is said, that I might consider that a proper charge could be prepared upon the facts proved, for a breach of the Gunpowder Ordinance 8 of 1868, and of the Eegnla- tions made thereunder. 1 think it is possible that some of the defendants may have committed a breach of Lhe Ordinancs in Singapore, but I do not think that the Summary Court at Malicca has any jurisdiction to try such an offence, and therefore I cainot send back the case to it with a direction that there is a pibper charge for it to try ; and I do not think that I have any clear jurisdiction to send the defendants to any other Court. Nir do I consider that the facts would warrant me in putting the defend- ants upon their trial in respect of anything that is provdd to have taken place at Malacca. Then, it was said a charge might be preferred for an offence against the Peace Preservation Ordi- nance 6 of 1872, and of the Proclamation made thereunder. But as to this, the same objections apply as in the last case ; thefe is no jurisdiction in the Malacca Court to try an offence committed in Singapore, and I do not see that the facts prove any offence, or any part of an offence, to have been committed in Malacca. In the present case I do not see my way to make any order directing the defendants to be tried again. Conviction quashed. ATTOENEY-GENERAL v. CHEW SIN YONG & ANOR. Penang. a defence that a Crown Contract ijurportinj,' to be under the Excise Ordinance 4 . ot 1870, Section H, is not in the form iirescribed ))y that section and tliat therefore "Wood, J. the defendants liad not become entitled under that section to the exclusive rights of a 1890. I'armer under that Ordinance, is a "substantial ijrouud of defence" and " on the merits" within the meaning of the Crown Suits Ordinance 15 of 1 876, Section 2, Clause 7. Sept. 4. Queiy. Is the form of contract prescribed by Section 3 of the Excise Ordinance 4 of 1870, [as amended by Ordinance 15 of 1871,] oblif.-atorv on the Crown, and what is the effect of a departure from such a form y This was an action commenced by the Attorney-General on behalf of the Crown to recover |95,050 being rent of the Opium, Spirit, and Toddy Farms of Penang and the Territory of the Bindings for August last past. The action being for an "ascertained" amount, it was begun on 1st September, by Certificate, Information, and Summons in the manner prescribed STRAITS SETTLEMENTS. 649 by Section 2, Clauses 1 & 3, of the Crown Suits Ordinance 15 of 1876. The defendants were the Opium, Spirit, and Toddy Farmers of Penang and the Bindings, and held under two contracts dated 22nd December, 1888, made between Her Majesty the Queen of the one part, and the defendants of the other part, by which " the exclusive right of making or preparing chandoo or opium dross, and of selling and of retailing chandoo or opium dross, and of selling opium in smaller quantities than one chest, and the exclusive right of selling by retail spirituous liquors and of distilling spirituous liquors ; and the exclusive right of making or preparing and selling Toddy at the Settlement of Penang and the Territory of the Dindings " were declared to be vested in the defendants as such Opium, Spirit, and Toddy Farmers. The one contract was in reference to the Penang Farms, the other with reference to the Dindings Farms — but each contract was of all the three farms in these respective places. The contracts were not in the form prescribed by the Excise Ordinance 4 of 1870, Section 3, as amended by Ordinance 15 of 1871, in various respects — both as regards pure matter of form as well as to its legal effect — and were each signed by the Resident Councillor of Penang on behalf of Her Majesty. By Clause IV. of the before- mentioned Section 2 of the Crown Suits Ordinance 15 of 1876, " The defendant on being seiTed with such Writ of Summons shall no'' be at liberty to defend the suit unless he shall obtain leave from the Cour to do so." The further clauses of the section bearing on this report, are as follows : — • V. A defendant desiring to defend such suit shall, within such four days, file a Statement, verified on oath, in the form in the Schedule D., of the facts on which he bases his defence, and shall servo a copy of the same, on the Attorney-General ; and if the Court, on reading the same, is satisfied that the defendant has a substantial ground of defence on the merits, an Order may be indorsed therein granting leave to the defendant to defend, within such time as the Court may direct; when the suit shall proceed, down to, and inclusive of, the hearing or trial, subject to the provisions of this Ordinance, in the same manner as is pi'aotised in suits for a similar purpose between subject and subject, VL Any such order may be set aside by the Coui-t, on its being satisfied that the same was irregularly or improperly issued. VII. Leave to defend such suit shall not be granted unless on the merits, shewing a substantial ground of defence, to be made out by the defendant on his application for leave to defend. VIII. No defect of form or procedure shall be deemed a sufficient ground for defence, biit such defect may be amended, by, or by leave of, the Court, whenever brought to notice, on such terms, as to costs and othervrise, as to the Court may seem right. Wood, J. 1890. Attobnbt- Genkbal v. Chew Sin YONQ & Anok. Van Someren, on behalf of the defendants moved ex-parte, on an affidavit stating [inter alia] the rent sued for was secured to the Crown by the aforesaid two contracts, but that neither of them were in the form prescribed by the Excise Ordinance. He contended that by Section 3 of the Excise Ordinance 4 of 1870, no person in whom the exclusive rights aforesaid vested, was to 650 THE SUPREME COURT. Wood, J. 1890. Attobney- Genekal u. Chew Sin YONQ & Anor. use such rights until after he shall have entered into a contract in writing in the form set forth in the Act — that form was sub- stituted bj Ordinance 1-5 of 1871. The present contracts were not in that form, and so the defendants had never become in law " entitled to use " the exclusive rights — the Crown in fact had not given the defendants that which they tendered for and which the Crown purported to give — there was, in law, a. failure of consideration for the defendants' promise in these contracts. By the proviso in Section 3 of the Excise Ordinance, 1870, terms could be added to the contract form — but in the present contracts there were both additions and variations — objections both of pure form — and of the legal effect of the contracts being different from the form — and he instanced two or three of such differences. The defendants had had the use of the Farms and could be sued for " use and occupation," but the sum was not necessarily the amount sued for; it would have to be assessed by the Court, and being " unascertained " no leave to appear and defend need be applied for — Section 3, Clauses 1, 2 and 3 of the Crown Suits Ordinance 15 of 1876, — and the defendants would not be held bound to keep the Farms any longer. He intimated he had other objections as to form and substance of these contracts, but moving now only for leave to defend be submitted he had shewn enough grounds to obtain such leave. D. Logan, ^Solicitor-General] on whom a copy of the affidavit had been served, and who was watching the application on behalf of the Crown, asked permission of the Court to point out that by Clause 7, Section 2, of the Crown Suits Ordinance 15 of 1876, leave to defend should not be granted except " on the merits, shewing a substantial ground of defence." The objection taken by the defendants was merely technical, and not on the "merits." Wood, J. said, that he was of opinion that the defence was substantial and on the merits [a.] and the only question was whe- ther any terms should be imposed in granting leave to defend. D. Logan, [Solicitor- General] then asked, that if leave was granted, it should only be on the defendants paying the |95,050 into Court. Van Someren objected to this, contending he was asking no favour so as to justify the imposition of such a condition. Wood, J. refused to impose such a term — but thinking the case of considerable importance, and should be hurried on to a hearing as soon as possible, he was of opinion that if the Court required the defendants to file their defence within a couple of days and take short notice of trial that would meet the justice of the case. Leave was accordingly granted on these terms. Leave to defend on terms, [b.] [a.] Section 2. Chilli/ Arch : Q. B. Practice [13tli Ed.] p. 800; also IVharlon'n Lam iwicoB-Title, " Merits." [&.] The Attorney-Q-eneral gave notice of appeal against this order, but subse- quently dropped the appeal and discontinued the action. STUAlTS SETTLEMENT'S. €61 REGINA V. SYED MAHOMED ALSAGOFF. The mode of raising a plea of autrefois acr/iiit or mifrefois conoict, under Section 69 of the Criminal Procedure Ordinance 6 of 1873, is by formal jjlea iu bar, and if the Crown does not admit the facts staled in the plea, it must put in a formal reply and a Jury will be impanelled to try the issue of fact raised by the plea and reply. On the trial of such an issue, neither the Depositions taken before the Magistrate on the former or the subsequent charge are admissible in evidence as of the facts in question in each trial. If the Jury by their verdict, find tlie plea is not proved, the Court will not there- upon convict the prisoner of the offence charged and pass judgment on him, — but will give judgment respondeat ouster, and the prisoner will be tried for the offence charged, in the usual way. \_a.~\ The prisoner was charged in five counts — Istly. — With insti- gating on 11th May, 1890, one Marie Gorski, a woman with child, to cause her to miscarry, under Sections 511 and 312 of the Penal Code. Sndly. — With instigating on 24th May, 1890, the said Marie Gorski to cause herself to miscarry, under the same sections. Srdiy. — With attempting on 11th May, 1890, to cause her to miscarry by giving her a noxious drug, under the same sections. 4thly. — With instigating on 27th May, 1890, the said Marie Gorski to cause her to miscarry, under the same sections, and othly. — With attempting on 27th May, 1890, to cause her to miscarry by giving her a noxious drug under the same sections. The trial took place on this day, and on the lOtli and 11th of September. On being arraigned and called on to plead to these charges, Davidson, \_Nanson with him] for the prisoner stated there was a preliminary point. The prisoner alleged that he was tried for the same offence and on the same facts at the last Assizes held in Singapore, and that the trial ought not now to proceed on these charges on this Indictment. He submitted that as there was no provision made in the Criminal Procedure Ordinance 6 of 1873, for disposing of this objection, he took the objection at this stage in accordance with what appeared to be the practice in India — Queen v. Dwarlcanath Butt, 7 W. E. Cr. It. 15, the Procedure Code of which country was not unlike ours and also silent on this point. The basis of this objection was Section 69 of the Criminal Procedure Ordinance 6 of 1873, which is as follows: — " 69. I. — A person who has once been tried for an ofEence and convicted or acquitted of such ofi'ence, shall, while siioli conviction or acquittal remains in force, not be liable to be tried again on the same facts for the same ofEence, nor for any other oft'ence for which a different charge from the one made against Mm might have been made under Section 61 or for which he might have been convicted under Section 62. II. — A person convicted or acquitted of any offence may be afterwards tried for any offence for which a separate charge might have been made against him on the former trial under Section 60, paragraph 1. III. — A person acquitted or convicted of any oft'ence in respect of any act causing consequences which, together with such act, constituted a different offence from that for which such person was acquitted or convicted, may be afterwards tried for such lastmentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was acquitted or convicted. Singapore. 0' Mallet, C.J. 1890. Sept. 9. [a.J See Mui/tie on the Penal Code, p. 438-9. 652 THE SUPEEMB COURT. O'Malletj C.J. 1890. Resina. V. Sted Mahomed Alsagoff. IV. — A person acquitted or convicted of any ofEence in respect of any facts may, notwithstanding such acquittal or conviction be subsequently, charged with and tried for any other offence which he may have committed in respect of the same facts if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged." This did not however touch the question of procedure on such an objection. The question was whether a formal plea should be jjut in and go before a Jury — he submitted there was no necessity for such a plea. Bonser, [Attoriiey-General] for the Crown contended, that the objection must bernised by a formal plea, and if the facts therein were admitted, the validity of the objection could be raised by a demurrer to the plea — but if the facts were disputed, a formal reply should be filed and the issue tried by a Jury. Rexy. Turner, R. & M. C. C. R. 239, had so laid down the principle and there was nothing in our Procedure Code providing otherwise. There must be materials on the record to shew why the prisoner should not be tried. In The Queen v. Panna and others, 7, N. W. P. H. C. Rep. 202, what was necessary to the validity of such a plea is laid down. He also referred to Section 42 of Ordinance 5 of 1870. Davidson, in reply submitted. Section 42 of Ordinance 5 of 1870, did not say how this objection was to be disposed of. In The Queen v. Panna & Ors., [supra] it was evident there had been no plea at all, or it would not have been necessary to set out all that would be required in a plea of this kind. He contended the Court would take the plea as raised, on the objection being taken, and dispose of it without a Jury. O'Malley, C.J., said he did not think any cases were obtain- able on this point, and the English cases he considered were inapplicable as in them a distinction is taken between felonies and misdemeanours. Our law made no such distinction and it would be quite contrary to the spirit in which our procedure was framed. He thought there ought to be materials on the record to shew what had happened, and he was of opinion that the best course was to have a formal plea. Davidson, then put in a formal plea which, was as follows : — " And the said Syed Mahomed Alsagoff conieth into Conrth ere and hav- ing heard the said Instrument of Charge read, saith that Our said Lady the Queen ought not further to prosecute the said Instrument of Charge against him the said Syed Mahomed Alsagoff he having been heretofore in due manner of law acquitted of the premises in and by the said Instrument of Charge above specified and charged upon him ; and for plea to the said Instrument of Charge he says that heretofore to wit : at the Assizes holden at Singapore on the I5th day of July, 1890, he the said Syed Mahomed Alsagoff was duly aiTaigned upon a certain Instrument of Charge which charged [First.'] That the said Syed Mahomed Alsagoff on or about the Ilth day of May, 1890, at Singapore, voluntarily attempted to cause Marie Gorski, a woman with child to miscarry, and in such attempt did an act towards the commission of such offence, to wit ; gave a drug to the said Marie Gorski, such attempt not being caused in good faith for the purpose of saving the life of the said Marie Gorski and thereby committed an offence punishable under Sections 511 and 31l! of the Penal Code. [Second.] That the said Syed Mahomed Alsagoff on or about the 27th day of May, 1890, at Singapore aforesaid, voluntarily attempted to cause STRAITS SETTLEMENTS. 653 Maria Gorski, a woman -witli cliild to miscarry and in such attempt did an act towards the cominission of such offence by giving a drng to the said Marie Gorski such attempt not being caused in good faith for the purpose of saving the life of the said Marie Gorski and thereby committed an offence punishable under Sections 511 and 312 of the Penal Code. {Third.] That the Syed Mahomed Alsagoff on or about the 11th day of May, 1890, at Singapore aforesaid instigated the said Marie Gorski a woman with child to commit an offence punishable with imprisonment to wit : to cause to miscaiTy, and thereby committed an offence punishable under Sections 116 and 312 of the Penal Code. [Fourth.'] That the said Syed Mahomed Alsagoff' on or about the 27th day of May, 1890, at Singapore aforesaid, instigated the said Marie Gorski a woman with child to commit an offence punishaljle with imprisonment to wit : to cause herself to miscarry and thereby committed an offence punishable under Sections 116 and 312 of the Penal Code. [Fifth.] That the said Syed Mahomed Alsagoff on or about the 11th day of May, 1890, at Singapore aforesaid attempted to cause to be taken by the said Marie Gorski an unwholesome drug to wit: Oantharides, knowing it to be likely that he would thereby cause hurt to the said Marie Gorski and in such attemxjj did an act towards the commission of the said offence to wit: gave the said drug to the sa.id Marie Gorski and thereby committed an offence punishable under Sections 511 and 328 of the Penal Code. [Sixth.] That the said Syed Mahomed Alsagoff on or about the 27th day of May, 1890, at Singapore aforesaid attempted to cause to be taken by the said Marie Gorski an unwholesome drug to wit : Ergot of eye, knowing it to be likely that he would thereby catise hurt to the said Marie Gorski and in such attempt did an act towards the commission of the said offence to wit : gave the said drug to the said Marie Gorski and thereby committed an offence punishable under Sections 511 and 328 of the Penal Code. To which Charges in the said last mentioned Instrument of Charge he did then and there plead not guilty, and the Attorney- General who then prosecuted for Our said Lady the Queen said that he would not fm-ther prosecute the said Syed Mahomed Alsagoff for the offences by the first, second, third and fourth Counts in the said last mentioned Instrument of Charge supposed and laid to his charge, and thereupon a Jury then and there duly summoned, impanelled and sworn to try the said issue so joined between Our Sovereign Lady the Queen and the said Syed Mahomed Alsagoff upon their oaths did say that the said Syed Mahomed Alsagoff was not guilty of the offences by the fifth and sixth Counts of the said last mentioned Instrument of Charge supposed and laid to his charge, whereupon it was then and there considered by the said Court that the said Syed Mahomed Alsagoff should go thereof acquitted without day as appears by the record of the said proceedings now here remaining in Court, and the said Syed Mahomed Alsagoff avers that the said Syed Mahomed Alsagoff who is charged by the present Instrument of Charge are one and the same person and not divers and different persons ; and that the said Marie Gorski mentioned in the first Instrument of Charge and the said Marie Gorski in this present Instrument of Charge mentioned are one and the same person and not divers or different persons, and the said Syed Mahomed Alsagoff further avers that the charges and offences in the said former Instrument of Charge mentioned and the charges and offences in the present Instrument of Charge mentioned are the same charges and offences and not divers and different charges and offences, and the said Syed Maho- med Alsagoff also avers that if the present Instriiment of Charge contains charges or offences divers or different from the charges or offences in the former Instrument of Charge such divers or different charges and offences [if any] relate to the same single act or set of acts and to the same facts, as the charges and offences mentioned in the former Instrument of Charge and not to any divers or different act or set of acts or to any divers or different facts and that for such divers or different charges and offences [if any] he might have been tried and convicted at the trial of the former Instmment of Charge under Sections 61 and 62 of the Ol'iminal Procedure Ordinance, 1873, and this he is ready to vei'ify. O'Mallet, C..T. 1890. Eboina V. Sted Mahomed Alsaqofp. 654 THE SUPREME OOURT. CMallet, C.J. 1890 Eegina V. Sted Mahomed Alsaqoit. Wherefor the said Syed Maliomed Alsagoffl prays tlie judgment of the said Court here if he ought to be put further to answer the present Instru- ment of Charge and whether Our said Lady the Queen will or ought further to prosecute or impeach him the said Syed Mahomed Alsagoffi on account of the premises in this present Instrument of Charge contained and that he may be dismissed the Court and go without day. And as to the charges and offences of which the said Syed Mahomed AlsagofI; now stands charged he saith that he is not guilty thereof, and of this the said Syed Mahomed Alsagoff puts himself upon the Country." Bonser, \jAUorney-General] stated lie could not admit all the facts stated in this plea and could not therefore demur — but it was difficult for a Jury to decide on this plea and on a somewhat obscure section such as Section 69 of the Criminal Procedure Ordinance. O'Malley, C.J. You must either reply or demur. If you cannot demur then you must plead in reply in due form and a Jury will be impanelled to try the issue. Bonser, [Attorney-Gene?-al'] then put in a formal reply as follows :^- " And hereupon John Winfield Bonser, Esquire, Her Majesty's Attoi'ney- General, who prosecutes for Our said Lady the Queen in this behalf says, that by reason of anything in the said plea of the said Syed Mahomed Alsagoff, above pleaded in bar alleged Our said Lady the Queen ought not to be pre- cluded from prosecuting the said charge against the said Syed Mahomed Alsagoff', because he says that the said Syed Mahomed Alsagoff was unlaw- fully acquitted of the said offences charged in the present Instrument of Charge in manner aforesaid as the said Syed Mahomed Alsagoff hath above in his said plea alleged, and he further says that the charges and offences in the said former Instrument of Chai'ge mentioned are not the same charges and offences, but diverse and different charges and offences, and that such chai-ges and offences do not relate to the same single act or set of acts as the same facts as the charges and offences mentioned in the former Instrument of Charge, and he desired that the said Syed Mahomed Alsagoff might have been tried or convicted at the trial of the former Instrument of Charge under Sections 61 and 62 of the Criminal Procedure Ordinance, 1873, or either of them, and that the said John Winfleld Bonser prays this may be enquired of by the Country." A Jury was then impanelled to decide on the issue raised by these pleading's. Davidson, then opened the case to the Jury, pointing out that the chai-ges now made were generally iustigating Marie Gorski, a woman with child, to miscarry — and the offences were laid down as on 11th, 24th and 2Hh May — the charge of 24th May was new, but it charged the same offence — one of the charges on the previous trial was that the prisoner instigated Marie Gorski, a woman with child, to miscarry " on or about the 27th " — the prosecution might at the trial have amended that charge — or the accused might on that charge have been found guilty of the offence on the 24th. It was all one transaction, though it may have extended over several days. He asked the Jury to compare the former with the present indictment, and contended that all the charges in them were the same ; and a person who had been tried and convicted or acquitted— or might have been at that trial convicted or acquitted, covild not be tried again on the same STRAITS SETTLEMENTS. 655 charge — Ordinance 6 of 1873, Section 69. The charges here were O'Mallet, of the same kind — Section 61 ; and under that Ordinance might be ti'ied all together — or on trial of one, the accused might have been convicted of the other — Section 62. He then called Mr. C. E. Velge, the Registrar of the Court, who swore to the identity of the prisoner and the prosecutrix, and produced and read the Indictment and Record of the proceedings at the first trial, July 15th — and also the Indictment at the present. He was nlso asked to produce the depositions taken before the Magistrate for the first trial, as well as those on the present charges. Poniter, [Attorney-General] objected, and referred to Section 62, and Rex v. Parry, 7 C. & P. 839. Davidson, contended the Jury and Court could only decide under Section 69 whether the facts of the first and the present trial were the same, by these depositions, and that the charges formerly made were based upon a single act or set of acts within Section 61. O'Malley, C.J. held that neither set of depositions were admissible. Davidson, then called Mr. W. Nanson, who stated he had acted as Junior Counsel at the former trial and he produced his notes of the evidence then given. This closed the evidence in support of the plea. Bonser,[ Attorney-General] then addressed the Jury, he contended the facts in the two cases were not the same. The former whs for administering a noxious drug to wit : Cantharides, knowing it to be likely to cause hurt — -Section 328. In the present case, the prisoner was charged with instigating Marie Grorski to cause her to miscarry — Section 312. A great many of the facts were the same, but the offences were not — they were of a different nature. In the present charge there was also the additional fact that Marie Gorski was a woman with child. Unless the prisoner was in jeopardy before, he could not be free from liability on the second Indictment. Brunsden v. Humphrey, 14 Q. B. Div. L. R. 141 — Section 69 was to be read, as qualified by Clause 4 thereof. A set of facts form one transaction, and they may all appear in evidence, but they are not the same facts to prove the charge. There i.s a selection of facts on each charge — He called no evidence. Nanson, replied. The charges were differently worded, but the dates, the woman, the prisoner, the materials, being exactly the same, the Jury were to say whether the offences charged were not in reality precisely the same. The charge for the' 24th was an ingenious attempt to prove a fresh offence on a date between the two previous dates. A mistake in date could not have enabled the prisoner to escape at the last trial. It was monstrous if a man could be charged with a series of facts which disclose an offence from the first to the last day of a month, and afterwards tried for acts committed, in that series, on an intermediate day. O'Malley, C. J. [summing up, said] Grentlemen of the Jury : — It is now my duty to sum up this case to you, and in doing so to explain to you what the issue ia C.J. 1890. Eeqina - 'I/'. Sted Mahomed Alsagoff. 656 THE SUPREME COURT. O'Mallet, C.J. 1890. Begina u. Sted Mahomed Al&aoopp. that you have to ti-y, and what are the points in the ease to which you ought to direct your attention with a view of arriving at a verdict on this plea. It is an unfortunate tiling, perhaps, that a discussion which is mainly legal, or largely legal, is to be carried on and disposed of in the course of a trial of tliis kind; it would he a convenient thing if it were possible to separate discussion of legal question of this difficult character from the dealing in a case with a question of fact by a Jury. But it is not possible to be done, and therefore, in this way, I must deal with such legal points that arise while I am addressing you upon the case. The plea upon which you have to find your verdict here is called autrefois acquit. I think it was a little unfortunately referred to by tbe Attorney-General as a device for the protection of prisoners; I think it would be perhaps more properly described as a method by which a free people have determined to assert their right of immunity from persecution in a Court of law ; their right not to be more than once prosecuted or punished for one offence. That really is what a plea of autrefois acquit is ; it is a means by which a man who considers that he is being brought before a Court a second time substantially for an offence for which he was in pei'il on the previous occasion may call attention to the fact, to prove it, and demand his discharge. The very terms and the curious Norman French in which the word autrefois acquit is expressed reminds one of its character. The question you have to determine here is whether the defendant has been so exposed upon the charges, upon the facts, which are brought against him in this proceeding, whether he has been so imperilled upon the former proceeding, as to make it appear he ought not to be put upon his trial a second time. The questions raised by the plea, which we have to consider here together [because it is partly a matter for you and partly a matter for me, and partly a matter of fact, and partly a matter of law] the material questions to consider are two. You may take it that the evidence is established, and you may dismiss that from your mind at once ; certain forms or matters are sufficiently established for you to dismiss them from your mind ; as for instance whether the Court in which the prisoner was previously tried was a Court of Jurisdiction capable of dealing with the matter. Technically it would be necessary you should be satisfied that the defendant is the same man as in the former proceeding. About that there is no question. The two questions we have to deal with are these. The plea says in effect [so far as it is material], the facts upon which you are proceeding against him in the present case are the same facts as those upon which be was tried on the former occasion. That is one question of fact. The question for you is whether upon evidence that statement is made out. What it means and what you must be satisfied about is not that every particular act and every incident, and every little circumstance connected with the facts in this case are the same as those in the other case, but that substan- tially the facts upon which the prosecution are going on in this case are substantially the same facts which took place at the trial before. Then you must consider what you are to look to j STRAITS SETTLEMENTS. 657 and you form your judgment upon this matter ; it is a question of evidence, and you must take such as has been put before you in support of it. To some extent the matter is simple, because the evidence was not in any way impeached; it was not cross- examined to, and no evidence was called to rebut any statements that were made on behalf of the plea; therefore you must fairly take it that every statement you have in evidence is absolutely correct, and upon which you may act with perfect confidence. You lia,ve put in before you a record of the former trial ; it was read by the Registrar of the Court who was called as a witness, and that shews you what were the charges preferred against the defendant on the former trial. The charges that were preferred against him on the former trial were in the first instance four counts. He was brought into the Court with these four counts, and he was called upon to plead, and he did plead to them, I will beg you to keep your attention strictly to these four counts for the pi'esent, and to take no notice of what happened in the Court on the last trial ; consider for a moment the four counts upon which the prisoner was charged on the former trial. You must undei'stand what are those counts charged in this count, because when you understand that, you will see how important they areas evidence, and what were the facts upon which the prosecution were going in the former case. When a person is accused of a crime as you know, he is brought up on some charge or other [no great precision is observed in formulating a charge in the first instance]; he is brought before a Magistrate who hears the evidence, sometimes hears evidence for the prosecution only, and if the defendant desires it, he hears the evidence for the defence also. The Magistrate hears all the evidence, all the facts bearing upon the matter that may be brought before him, and it is his duty to hear all the facts material to the matter. He hears them, takes them down, records them in the depositions, and then if he thinks there is a case, not a mere case of suspicion, but one that demands enquiry in shape of a trial in this Court, then he commits the prisoner for trial in the Supreme Court. Along with the commitment of the prisoner go depositions taken at the trial, and so far as the Magistrate is concerned, that is an end. Then there comes another officer, who acting in a quasi judicial manner discharges a quasi judicial duty, that officer takes the depositions, and takes the facts as stated before tlie Magistrate, and he con- siders what are the charges which these facts will warrant the prosecution in bringing forward against the prisoner. He formu- lates these charges in proper terms, and these are the charges upon which the prisoner is brought here for trial. That official's duty is most certainly to reject no material facts; if there are facts pointing to the ofEence, it is his duty to frame a charge for that offence; and equally clearly he has no right to frame a charge for any offence, unless he considers he has facts before him that will warrant him doing so. Therefore, you have the judicial opinion of a public officer whose duty it is to deal with the matter; and you could hardly have better evidence of what the facts were in substance, than the charges preferred here and which are made O'Mallet, C.J. 18P0. Eeqina V. Syed Mahomed Alsaqoff. 658 THE SUPREME COURT. O'Malley, C.J. 1890. Begina V. Sted Mahomed Alsagopp. by the judicial officer. That is a process that shews you, I hope, the value and importance of what were the facts in the former case, the value of the evidence given here and the charges originally preferred against the prisoner when he was brought on trial. There is another thing. The charges are intended, it is so declared by the law, and it is reasonable to give notice to the person accused of the matter with which he is charged; it is not necessary for the official to go into details and into the small particulars, but it is essential that the charge preferred against the prisoner shall be in such a form as to give him notice, substantial notice, upon which he can act in preparing and conducting his defence. Therefore you see that the charge is the indication of what the prosecution lias to give by way of notice to the defendant of the substance of the matter upon which he is to be charged. If that is so, I may point out that these charges are the best evidence of what the matter, of what the substantial facts were, upon which these charges, whatever they were, were preferred. The same thing is equally true with regard to the charges which are preferred in this case ; they are evidence for you of what the facts are upon which it is intended to try this man. I do not know that you have much else upon which to go in coming to a conclusion as to whether or no the facts and subject-matter of the charges in the former case are the same in substance as the charges in this case — that is, the charge upon which the prisoner was originally brought to trial, 1 have nothing to do with the charge subsequently preferred against the prisoner, it has nothing to do whatever with the question of the charges originally preferred, and upon which the defendant was brought before the Court on the last occasion. It is for you to say whether the subject-matter of the chartjes in this case, is the same as in the former case ; whether the facts upon which the prisoner is to be brought to trial in this case, are substantially the same in the particular meaning as those brought in the former trial. There you have the point to dii-ect your attention. The charges in this case, what are they? Leaving out so much of the jargon as might tend to mystify, I only give in substance what the charges are. They are, first, that the defendant instigated one Marie Gorski to cause miscarriage to herself. In dealing with this matter it is convenient that you consider only charges rela- ting to the 11th May. Secondly, that of an attempt to cause Marie Gorski to miscarry by giving her a drug. There are two statements of the charges that are made against him in this case, that on the llth May he instigated Marie Gorski to cause herself to miscarry, and that on the llth May, he attempted to cause Marie Gorski to miscarry by giving her a druo-. Bonser, [Attorney- General]. I think Your Lordship has omitted an essential part of the charge, viz., that the woman was with child. His Lordship continuing said : The charge in the present case is, that he instigated Marie Gorski to cause miscarriage to herself ; as to a woman being with child, it remains to be seen how a woman without child can cause herself to miscarry. STRAITS SETTLEMENTS. 659 Remember, that these charges are intended to give the prisoner notice of the matter with which he is charged. What does that double statement mean? It was alleged that he gave Marie Gorski a dragon the 11th May, and by giving that drug, or as part of the transaction of which the drug was a part [his part] of the transaction, as a transaction itself, he instigated her to cause herself to miscarry. That is what two charges appearing together in this way mean : they mean that he is charged with giving a drug ; that he is charged with having done an act of giving a drug, and they mean on the strength of giving a drug; and possibly upon the strength of words or deeds to form part of that transaction, the prisoner is chai'ged either with giving the drug in the attempt himself to cause Marie Gorski to miscarry, or giving a drug to Marie Gorski, or by acts and deeds forming part of that same transaction, instigating Marie Gorski to cause her- self to miscarry. I put that to you as a reasonable and proper construction to put upon the appearance of these two charges together in the present case. To put it very shortly, and in .a convenient form for consideration, the charge is put to you as a fact, as the notice given to the defendant of the matter with which he is to be charged in this case, it is simply : "We charge you here with giving to Marie Gorski an unwholesome drug, and persuading her to take it with a view to her miscarriage" or rather "We charge you with giving a drug to Marie Gorski, in May and with trying to persuade her to take it with a view of causing her miscarriage." I hope that is simple, and I think it is substantially correct. If that is the case, the charge means — what? Informer trial it was precisely and in every respect the same, the charges preferred against him in the former case were the same as the two charges against him here now, the charges concerning the 11th, 27th May ; ib is for you to decide whether there is indication that the subject-matter was different to the matter of the charge on which he is to be tried in this case, or whether it was the same, whether the j udicial officer who prepared the charges in this case, and who prepared them in the other had the same facts before him or different ones ; if you think that he had the same facts, then, as regards the first issue, and these counts which apply to the Uth May you will take that conclusion with you and render your verdict accoi-dingly. Now, you have the charges, and it might be said that they are in too general terms, that we cannot say from these whether the charges are the same ; in answer to this it should be understood that it is intended to disclose to the prisoner how the law regards the matter with which he is to be charged, and if the law considers that the charges are sufficient for that purpose, then they are also sufficient, for you as Jurymen, to reveal to you what the matter is with which the prisoner is charged. These charges shew you that the date is the same, the description the same, the prisoner alleged to have given the drug the same, the one act alleged, the giving of the drug, is the same and the intention in both cases is alleged to be the same. Now, that is the evidence for you, drawn from the consideration of the two charges and of the manner and process by which and for which O'Mallet, C.J. 1890. Beqina V, Sted Mahomed ALsAGorr, 660 THE SUPREME COURT. O' Mallet, C.J. 1890. Eeqina V. Sted Mahoued Alsaqoff. the charges are preferred now. It is for you to say whether upon consideration of these two sets of charges, identical in every respect as to the facts are substantially the same as the facts with which he was previously presented. That is with regard to counts 1 and 3, these are the counts which charge the crime committed on the 11th May, I think that precisely the same considerations apply to the count alleged to be committed on the 27th May, and it is not necessary in dealing with counts 4 and 5 to go over the same ground again : the same considerations apply, you have the same means of judging, and the same process of reasoning can apply to the consideration of the 27th as of the 11th. Now, to assume for a moment that you are satisfied that tbe facts in the former case are substantially the same as in this case, then there comes the further question, is it true that the offences which are now charged are offences for which the defendant might have been charged under the particular section, or might have been convicted under a particular other section of the Criminal Procedure Ordinance. Now, that is a question more for me than for you, but it is right that I should explain to you the conclusions on which I go, as the decision in form becomes yours. Now, Section 61 of the Criminal Procedure Code makes a provision which is unlike any general provision in English Criminal Procedure, but which has been in reference to a certain limited class of cases adopt- ed in English procedure. It is mainly peculiar to the Indian Proce- dure Code and our Code which is taken from it. Now, the Penal Code defines offences, it defines larceny for instance, and then as another offence defines larceny by a servant which is a graver offence than the other and becomes graver by reason of the per- son who commits it. Then again it defines larceny in a dwelling house, again a still more serious offence. Now, it often happens that with the fine definitions of that kind you are unable to make up your mind as to what would be the proper charge to prefer ; you may say " this looks very much like larceny by a servant, but it is not clear, the evidence on the points is not overwhelming, it may be that he may not be a servant after all ; therefore lest he should escape, [having committed the larceny] because he is not a servant, I will indict him at the same time with simple larceny, so that if it turn out that he has committed larceny, I shall get a conviction, and he will not get off." That is a reasonable pre- caution for criminal procedure and where the definitions are so fine it is absolutely necessary : therefore Section 6) provides that when preferring the charges you may put in any number which are merely, as it were, different descriptions of the same facts. You may charge " larceny as a servant" or " larceny in a dwelling" and so on, and at the end of the trial the prisoner may be con- victed of any one oi those charges which is substantiated. Now, what is said here is this ; the offences being charged now are the giving of a drug to one Marie Gorski and persuading her to take it [that IS the way the charge is stated] with intent that she should miscarry. The charge in the former case was giving a drug, an unwholesome drug, to one Marie Gorski, with intent to hurt her. STRAITS SETTLfeMtJNTS. 661 Now, I tell you that upon such facts as were before the prosecution in that case, as evidence of the charges already preferred and withdrawn, they would have been justified in join- ing along with the charges of administration and intent, the charges oiv which he is charged here to-day. They could have alleged first, as they did, that he administered the drug intend- ing to do her hurt; secondly, that he administered the drug to Marie Gorski in an attempt to make her miscarry ; and thirdly, that he administered the drug to Marie Gorski by way of instigat- ing her to cause herself to miscarry. They would have been authorised to continue the trial on those charges. These are different ways of stating what might turn out to be a fact. They really substantiate the same transaction and they are charges on which the prosecution had every opportunity of proceeding on the former trial ; they might have preferred them and they might have given evidence upon them. The prisoner alleges that they, might have done so, and I tell you that that is my opinion, these are just charges which might have been added by Section 61 of the Penal Code. Therefore if you are satisfied that these charges are founded substantially upon the same facts as the prosecution in the former case, then I tell you that you may come to the con- clusion that the plea is made out. If you are satisfied upon the facts brought before you that the facts in the former case were the same as the facts on which this charge is based, then you may find as your verdict that the plea is made out as far as it concerns the 11th and 27th May. Now, we have to deal with a different charge, a charge that appears for the first time in the present trial ; the defendant here is charged in the second count with instigating Marie Gorski to cause herself to miscarry on the 24th May. The charge was not founded on any matter before the previous Court and forming part of the former material. You have undoubtedly some evidence as read to you by Mr. Nanson that there were certain facts which took place on the 24th May, and you are to consider for yourselves upon this issue. In regard to the 24th May there remains the fact that in giving notice to the defendant of what matter would be preferred now, in the former proceedings there was no charge of any offence committed on the 24th May, the charges on the former trial were no acts done by the defendant on the 11th and 27th May. There was not a word in these charges of any acts alleged on the 24th May, so that this is at first sight apparently related to some new matter, and on following the same line of reason as that called out in considering the 11th and 29th May, it would be seen that no notice was given of any matter concerning the 24th May ; in this trial notice has been given. In reference to the 24th May it is for you to decide whether the facts upon which the prisoner is being proceeded against have previously been preferred against him. The prosecution could have applied to amend their charge, and quite possibly the prisoner might have been convicted, but no such application was made. It seems therefore as if this charge must relate to some other matter than that upon which the charges in reference to the 11th and 27th were made. It is O'Mallbt, C.J. isno. Ebgina V. Sted Mahomed ALSAQorr. 662 THE SUPREME COURT. O'Malley, your duty to consider that matter for yourselves, but I thought it 1890 right to separate the consideration of this charge. Tt would be ■ right to come to your verdict separately for each date or for the Eeqina 1 1th and 27th, and separately for the 24th. Sted Mahomed ALSAQorr. His Lordship proceeded to enumerate at considerable length the possible reasons for believing that the new charge under date May 24th was founded on facts sufficiently distinct to permit it to be treated apart fi-om the charges on the other dates. There had been nothing in the previous trial in reference to any insti- gation on the 24th May, and he saw no good and sufficient reason to connect it would the formei* charges. He pointed out that the Jury had the right of discrimination and could allow the plea for one or any of the dates concerned. The Jux-y after deliberation said they found the plea had been made out on all counts, except the second one in reference to the 24th May. Bonser, \ Attorney-General] contended upon that verdict the Court could give a respondeat ouster or a verdict for the Crown or conviction. The practice seemed to be that when the plea was not made out judgment must be given for the Crown in all cases except felony. Rex v. Taylor, 3. B. & C. 502. In this Colony there is no distinction between felonies and misdemeanours. In Begina v. Dayal Jairaj & Ors., 3 Bom. H. C. Rep., Crown Cases, 58, there was a trial whether an offence was a misdemeanour or a felony. The Court would have to consider, which this offence was. Felony originally was attended with forfeiture, and Section 61 of the Penal Code provides for forfeiture in cases of offences punishable with death. In cases of penal servitude or imprison- ment for seven years or upwards, the Court had a discretion to order forfeiture or not. Applying the old test to this offence, there could have been no forfeiture, and it was therefore a mis- demeanour. It was a modern offence and had never been made a felony or tried as such. Destruction of a child at birth was not murder and therefore only a misdemeanour — Roscoe's Grim. Law, p. 267 ; — the mere attempt to destroy an unborn child could be no greater offence, it was only a misdemeanour. O'Malley, C.J. The Court is asked by Uie Crown to convict the prisoner and pass judgment on this charge without a trial. In the case of The Queen v. Panna and Om., already quoted, the plea seems to have been raised and disposed of, and the prisoner tried thereafter. My judgment is respondeat ouster. The prisoner was hereupon tried in the usual way on the second count, and on the conclusion of the case, the Jury unani- mously found him Not Gvilty. STRAITS SETTLEMENTS. 663 SHENAYAH CHETtT & ANOR. v. VEYNA SULTAN MAHOMED. Sub-section 2 of Section 24 of the Conveyancing and Law of Property Ordinance, Penang. 1886, has not materially altered the law as declared m Jenaihoo \. NaraineiiOhetty and Anor., \_cmi^ p. 359J as to the right of amortgagor to sue a mortgagee who exer- Wood, J. cises his power of sale under the mortgage in a careless and negligent manner. 1890. Scmble. The right given to a mortgagor by that sub-section against a mortgagee for an " unauthorised, improper, or irregular sale," is a right which exists only where Sept. 10. the mortgage is a Statutory Mortgage, and the mortgagee cannot shew he has a right of sale under Sections 22 and 23 of the Ordinance, and the " notice " referred to in that sub-section, is notice " requiring payment " under Section 23, and not notice advertising the property for sale. The mortgagor must also shew he is damnified by the sale before he has a right of action under that sub-section. This was an action to recover $6,378.65 balance of principal and interest due on a deed of Statutory Mortgage, dated 28tli February, 1888. The defendant having made default in payment of the mortgage, and the plaintiff's right of sale under Sections 22 and 23 of the Conveyancing and Law of Property Ordinance 6 of 1886, having arisen, the plaintiff, the mortgagee, sold the properties mortgaged to him under the mortgage. He first issued and placarded notices [in four languages] of sale of the properties [two in number] for 30th November, 1889, and caused a copy of the notice to be served on the mortgagor as well as his Solicitor. The plaintiff, however, did not proceed with the intended sale for some reason of his own ; but on the 30th November, 1889, sent round a bellman with a Circular in the English language only, stating "the sale of Veyna Sultan Mahomed's land intended to be held to-day, is postponed to ll^th December, at 2 o'clock on the spot." The Circular was taken by the bellman to persons he considered were likely to be purchasers, and was also carried in his hands in the streets and shewn to any person desirous to see it, or who the bellman thought might be likely to purchase. The notice was not shewn to the mortgagor nor his Solicitor and neither of them knew the fact of the postponement. On 14th December, the mortgagee sold one of the properties [in Bridge Street] unknown to the mortgagor, the defendant, and to his Solicitor. It was too late that day to sell the other property [in Beach Street] and the mortgagee and auctioneer merely proceeded to the spot, rang the bell and called out "the sale is postponed." No particular day was mentioned. No further notice of sale was issued for the Beach Street property, but on the 16th December, the bellman, by the mortgagee's instructions, went round the Streets, verbally notifying the sale of " "Veyna Sultan Mahomed's land in Beach Street, on Tuesday, the 17th instant." He did the same on the 17th and at 3 p.m. that day, the mortgagee, without further notice, put up the Beach Street property for sale and sold it. After giving credit for the nett proceeds of the two properties, there was a balance still due on the mortgage for which this action was brought, as above stated. The defendant in his defence alleged that the sale was colourable, and the alleged purchasers mere nominees of the plaintiff. He further alleged the sales were " irregular," bat 664 THE SUPREME COURT. Wood, J. 1890. Shenatah Chettt & Anok. V. Vetna Sultan Mahomed. did not counterclaim for damages on "account thereof. At the trial the purchasers were shewn to be bond fide, and the conveyances to the purchasers were made " in professed exercise of the power of sale conferred by the Ordinance" aforesaid. The above facts, as the notices of sale and subsequent proceedings by the mortgagee were also clearly proved. The evidence tended to shew that a fair value had been obtained by the mortgagee at both these sales. The case was heard on the 10th and 1 1th September. Van Someren, for the defendant contended, that this being a Statutory Mortgage under Ordinance 6 of 1886, the case of Jenaiboo v. Narainen Chetly & Anor., \_ante p. 359] no longer applied, by reason of Sub-section 2, Section 24 of the Ordinance, which gave a right of action to a mortgagor against the mort- gagee for an "irregular sale" — the mortgage in Jenaiboo y. Narai- nen GheUy too was not a Statutory Mortgage ; that the auction sale for November 30tb, had been improperly postponed without any sufficient cause, and the auction of December 14th was irre- gular, and the sale of the Beach Street property on 17th was without any sufficient notice to the public ; that even if the words " due notice" in Sub-section 2 meant notice " requiring payment" and not notice of sale, still the subsequent words giving the right of action by the mortgagor in dama.ges against the mortgagee, was not so limited — the words " irregular exercise of the powers of sale" therein, included the not issuing of sufficient notices of sale. The mortgagee was liable in damages therefore to the mortgagor in this case — Hole v. Smith, 17 h. B.. Ch. Div. 444; Selwyn v. Garfit, 38 L. E. Ch. Div. 273— and although the defend- ant had not counterclaimed, still this Court was bound to recog- nise his rights arising " incidentally" under Section 1, Clause 4 of the Civil Law Ordinance 4 of 1878, and his rights would be enforced even in the absence of a counterclaim. Williams v. Snowden, W. K 1880, p. 124. Adams, for the plaintiffs contended, that " notice" in Sub- section 2 of Section 24 did not mean notice of sale but of " requiring payment" under Section 23 ; that Sub-section 2 only gave a mortgagor a right of action when the mortgage was a Statutory Mortgage, and the mortgagee's power of sale had not arisen under Sections 22 and 23 ; when that power existed, the exercise of that power was in his absolute discretion, as shewn by the concluding portion of Section 22. The issuing of notice of sale and mode of doing it was one of the things so in his discre- tion. Sub-section 2 in fact therefore had no application to this case ; it did not alter the law as laid down in Jenaiboo v. Narainen Gheity & Anor., [ante p. 359], and this case was governed by that. He also referred to Warner v. Jacob, 20 L. R. Ch. Div. 220, and Bettyes v. Maynnrd, 49, L. T. [N. S.] 389, on App. 46 L. T. [N, S.] 776, which were cases subsequent to the English Conveyancing Act 1881 [44 & 45 Vict. c. 41] from which our Ordinance 1886 was taten. Wood, J. I am of opinion that Sub-section 2 of Section 24 of the Conveyancing and Law of Property Ordinance, 1886, has not STRAITS SETTLEMENTS. 665 materially altered the law as laid down in the English cases and followed by me in Jenaiboo v. Narainen Ghetty & Anor., [ante p. 359.] If an alteration of the law was intended, words more apt and specific than those found in this sub-section must be used. That sub-section is as follows : — "24. [1] [2] Where a conveyancing is made in professed exercise of the power of sale conferred by this Ordinance the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorise the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised : but any person damnified by an unauthorised or improper or irregular exercise of the power shall have his remedy in damages against the person exercising the power." I consider a fair and reasonable meaning can be given this sub-section by construing it in the way contended for by Counsel for the plaintiffs, and without materially altering the old law on this subject. The mortgagor too, to avail himself of sub-section 2, must shew he is " damnified " by the sale. I find as a fact he has failed in shewing this. I am of opinion on the evidence that although there may have been some slip or want of due precau- tion on the part of the mortgagee as to the issuing of notices of sale, yet the fair market value for the property on the date of sale, was obtained at the sales. The defendant therefore is entitled to claim nothing, and judgment must be for the plaintiffs for the amount claimed and costs. Judgment for plaintiffs, with costs. Wood, J. 1890. Shenatah Chettt & Anob. V. Vetna Sultan Mahomed. RBGINA V. MAT AKIB & ANOR. On a charge of keeping an unlicensed brothel under Section 10 of Ordinance 14 of 1888, it is for the accused to prove he has a license and not for the prosecution to shew he has not. Although the fact of having such a lioouse is not peculiarly withiu the knowledge of the accused, yet, as it is so conveuieutly within his knowledge and so easily produced by him, it is for him to produce it. The accused were a Lance-Curporal in the Police Force and his wife. They were charged that they being the occupiers of a house or place in Magazine Road, in Penang, did keep it as a brothel without being duly licensed, contrary to Section 10 of Ordinance 14 of 188B. The case was heard by J. K. Birch, Esq., First Magistrate, when the evidence clearly pi-oved the charge, and the accused were severally sentenced to pay a fine of $50. The prosecution did not however shew by evidence that the brothel was not licensed— the accused on the other hand did not produce any license nor allege that they had one. On conviction they appealed. The. case was first heard before Pellereau, J. on 2Ist July, 1890, when the learned Judge remitted the case to the Magistrate to take some further evidence which Counsel for the appellants had pointed out was wanting, but wJiich was easily obtainable. Further evidence having been taken, the appeal was remitted to this Court, and now came on for final disposal. Penang. •Wood, J. 1890. Sept. 15. 666 THE SUPREME COURT. Wood, J. 1890. Eegina ^. Mat Akib & Anok. Gr. S. H. Gottlieb, for the appellants contended, there was no evidence to shew the brothel was not a licensed one. Brothels were licensed by the Police he believed, and so the fact of having such a license was not peculiarly within the knowledge of the appellants. It was as much in the knowledge of the prosecution as of the defence. Municipal Commissioners v. Chuah Seng & Ors., 3 Kyshe, 140. In Regina v. Greeyi [ante p. 401] the Court had followed this decision, and it was in accordance with the English decisions referred to in Paley on Convictions, p.p. 123, et seq. Ross, for the Crown contended, that the onus of proving he had a license was on the accused ; the affirmative was on him and no one could know better than he did whether he had a license or not ; he conld so very easily have produced it if he had one — and in the absence of his so doing, it was but fair to conclude he had none. Regina v. Turner, 5 M. & S. 206, was somewhat modi- fied by Regina v. Hanson, cited in Paley on Convictions, p.p. 123-4 ; and the doctrine that the accused was to prove he had a license, only in cases in which the fact was peculiarly within his knowledge, was not adopted in the latter case. He also referred to Khoo Aing Hong v. Meyapah Chetly, 3 Kyshe, 124. Gottlieb, replied. Wood, J. On the facts I think it was clearly proved that the house was used as a " brothel " within the meaning of Section 10 of the Ordinance 14 of 1888. The question on whom is the onus of proving the possession or want of a license is perhaps not so easy to determine. The weight of the English authorities is in favour of laying the onus probandi on the prisoner, and the decisions of this Court also tend in the same direction. On the whole, I think although the fact of the license in not peculiarly within the knowledge of the accused in this case, yet it is so conveniently in their knowledge, and so easily produced by them if they had one, that I must hold that they should have produced it. The conviction will be affirmed. Conviction affirmed. Penano. Wood, J. 1890. October 6. PENDEK V. BBOADRICK. The words " or any other disease " in the Order iu Couucil of 7th August, 1889, IGovemmeiil Gazette, 1889, p. 14S0] made in pursuance of the Quarantine and Pre- vention ot Disea.se Ordinance ]9 of 1886, Sections 4 and 5, must be read as limited to " disease " as defined by Section 3 of the Ordinance ; and before there can be a con- viction for a breach of the Order in Council, the prosecution must shew the disease to be of an " infectious or contagious nature." At the time of the trial, the Veterinary Surgeon who had examined certain cattle of the defendant was dead. The prosecution however, proved that the Surgeon after s\ich examination pronounced in the presence of the defendant and the prosecutor that the disease was " cattle plague." This expression of opinion was in English and though made in the defendant's presence was not understood by him. Seld, the evidence was inadmissible both on this ground as well as on the ground that it was merely hearsay, and the Surgeon who had expressed the opinion being dead could not be cross-examined. ' This was a conviction by J. B. Elcum, Esquire, Magistrate, Bukit Martajam, convicting the appellant Pendek of a breach of the Order in Couucil of 7th August, 1889, made in pursuance of SI'RAll^S SETTLEMENTS. 667 the Quarantine and Prevention of Disease Ordinance 19 of 1886, by neglecting to report at once to the nearest Police Station the outbreak of disease amongst his cattle at Trans-Kria,n, on or about 18th July, 1890, and was fined $50 under Section 7 of the Ordinance. The Order in Council in question, is as follows : — "It shall be the duty of the owner or person in charge of any cattle suffering from cattle plague or any other disease foi-thwith to report the fact at the nearest Police Station." By Section 4 of the Ordinance, the Governor in Council is authorised to "make rules and regulations as may seem necessary or expedient fur the purpose of preventing the intro- duction into the Colony of any disease, and also of preventing the spread of any disease," — and by the proviso to Section 5, the rules and regulations so made may provide [amongst other things] for whatever the Governor in Council may think " expedient for the better carrying into effect the objects of the Ordinance." By Section 3 of the Ordinance, " In the Ordinance and any rule made thereunder, unless the context otherwise requires " Disease " means any disease of an infectious or contagious nature dangerous to mankind or animals and includes " leprosy " and " rabies," but does not include any venereal disease." By Section 6, any person omitting to do anything required to be done by him by the Ordinance, or any rules or regulations made thereunder, is guilty of an offence against the Ordinance — and under Section 7, any person guilty of an offence against the Ordi- nance for which offence no penalty is prescribed by any rule or regulation made thereunder, shall be liable on conviction before a Magistrate to a fine not exceeding fifty dollars. By Section 10, "where the person in charge of a diseased animal is charged with an offence against the Ordinance relative to such disease, he shall be presiimed to know of the existence of such disease in such animal until he proves he had not the knowledge and could not with reasonable diligence have obtained such knowledge." The prosecutor was the District Officer of Nibong Tebal — the defendant was the person in charge of cattle belonging to Koh Bu An on the Trans-Krian Sugar Estate. The Government Gazette was produced in evidence in the case, and the further evidence adduced was to the effect that the prosecutor could not of his own knowledge say whether the cattle were ill, but he had procured the attendance of Mr. Burghope, the Government Veterinary Surgeon to examine the cattle, and that he in the presence of the defendant and the prosecutor, had pronounced in English, the disease to be " cattle plague." The defendant did not understand English, and Mr. Burghope had died since the examination and before the trial. The Police Officer on visiting the estate on July 24th found seven cattle ill, and also the places where several others had been buried. The cow-herd of the estate was also called and proved that a month before, two cattle were first taken ill, and the matter reported to the defendant — on the next day, more were taken ill and ten of them died — two or three days after six more, Wood, J. 1890. Pendek t. Broadrick. Wood, J. 1890. Pendek V. Broadkick. 66§ THE SUPllEME COURT. this was some seven or eight days before the Police visited the estate. The symptoms of disease were, the inability of the cattle to eat or dung — but after giving them castor oil, they were moved though with evident great pain and blood was passed in large quantities thereafter. There was no further evidence to shew what the disease was. The defendant, on conviction, appealed. Adams, for appellant. The conviction is bad as the evidence does not shew a guilty knowledge in the accused, nor that the disease was infectious or contagious. The Order iu Council must be controlled by the Ordinance, and by Section 3 " disease " is something infectious or contagious. The evidence of the pro- secutor of the opinion expressed by the Veteriaary Surgeon is not evidence— firstly, as defendant did not understand what was said ; and secondly, it was mere hearsay, and Mr. Burghope being dead, could not be cross-examined. Boss, for the Crown. A guilty knowledge need not be proved-^Section 10. The evidence shewed the disease was one that attacked several of the cattle and was spreading among them — the symptoms were the same, and the only conclusion to be drawn was, that the disease was of an infectious or contagious nature. Wood, J. It is clear the language of the Order must be con- trolled by the provisions of the Ordinance, unless there is some- thing in the context shewing a different intention. There is nothing in the context of the present Order in Council to shew a different intention, the words "any other disease" in it must therefore be read as "infectious or contagious disease" as defined in Section 3 of the Ordinance. The evidence of what Mr. Burghope said was also clearly not admissible on both the grounds mentioned by Counsel for the appellant. This evidence being excluded, nothing remains but the facts relied on by the Crown to shew the disease the cattle were suffering from was infectious or contagious. The prosecution must clearly prove the disease to be of that nature — from these facts one is left to mere surmise and guesses — non constat that each bullock died of a different disease. It may be a case of suspicion, but in my opinion the proof fails, and the conviction must be quashed. Conviction quashed. EBGINA V. TAN YOK LAN & ORS. Penang. Wood, J. I 1890. October 6. The mere finding o£ instruments or appliances for gaming in a house, does not justify a Magistrate in convicting all the persons living iu the house as assisting in the gaming— but the case of each person must be considered sejiarately, according as the evidence connects him or not with the gaming or lottery. A married woman supported by her husband ;ind living in a house rented by him i s not " the occupier " of the house within the Gaming House Ordinance 5 of 1888, although the husband may bo absent from the Settlement. The husband is the occupier. The warrant [omitting the name of the Informer, it any] under authority of which the Police enter a house under the Gaming Ordinance, ought to be produced in evidence before the Magistrate,— and on appeal, sent up with the stated case,— s.o STRAITS SETTLEMENTS. 669 that the Magistrate or Court of Appeal can judge whether it he issued under the Wood, J. Ordinance or not so as to give rise to the presumption in Section 14 thereof. ]890. . . Eegina The appellants, three in number, were each convicted by ^. J. K. Birch, Esquire, First Magistrate, with assisting in carrying on Tan YokLan a public lottery to wit : a Wha Whey, under Section 5 Clause (c) of ^ ^'*^- the Gaming House Ordinance 5 of 1888. There were nine prisoners before the Magistrate — the appellants standing as Nos. 4, 5 and 9. The evidence given before the Magistrate was to the effect that on the morning of the 4th September, the Police made a raid on two houses Nos. 62e. & 64, Church Street, under what the Inspector spoke of as a •' gambling warrant." The warrant was not put in evidence nor sent up with the appeal case. House 62e. had three gold-smith's desks in front, belonging to Nos. 1, 4 & 5. House No. 64 was seemingly being prepared for occupa- tion. There was no evidence to shew that the Police were authorised to enter this house. In this house, a box was found, belonging to No. 1, containing a Wha Whey lottery book, collector's tickets, and other appliances connected with gaming. On his person also, were found, several collector's tickets, and a book of accounts. He was in the act of leaving the house with No. 2 when the Police entered. No. 2 was said to be the attendant at the door. No. 3 was merely a lodger in the house. No. 4 was found in house No. 64, but was a gold-smith having his desk in No. 62e., in which no appliances for gaming were found. No. 5 was a gold-smith working at the time at his desk in 62e. — in his desk a Wha Whey collector's ticket was found, and on the window-sill, close by this desk, also some other Wha Whey lottery appliances. No. 6 who was the husband of No. 9 and was a tin miner in Larut, came over to Penang from time to time, and on such occasions resided in No. 62e. No. 7 was a visitor at this house. No. 8 was a son of Nos. 6 & 9, and had come over with his father — No. 9 was the wife of No. 6 and had resided in the house for several years, the rent of which was paid by No. 6 who also supported her. On this evidence the Magistrate fined Nos. 1, 4, 5find9,$500, each— and Nos. 2 and 3, |50, each— Nos. 6, 7 and 8, were discharged. Van Someren, for the appellants. There is some evidence against No. 5, but the question is, was it sufficient to support the charge of assisting in carrying on a public lottery. As against Nos. 4 and 9, there is no evidence at all to support the charge. The mere living in a house in which gaming instruments are found does not render every person living there being convicted under the Ordinance — if so, no gentleman would be safe whose servants had a Wha Whey ticket in his box. The Magistrate evidently thought he must so convict, and on this footing alone, can the convictions of Nos. 3, 4, and 9, be understood. It is not shewn No. 9 had any control over the gold-smith's desks. None of the last mentioned persons were "the occupier" of the house. No presumption arises under Section 14, as it is not shewn the houses were lawfully entered under the Ordinance — but even if they were, the presumption is only against " the occupier." No. 9 670 THE SUPREME COURT. Wood, J. being a married woman under the care and control of her hus- ^^^' band [No. 6,] she cannot be "the occupier" — her husband was, Eegina but he was discharged by the Magistrate. V. Ross, for the Crown. House No. 64, was the gaming-house, '^^^J^°^-^^^ and there was evident communication between the inmates of it and of No. 62e. No. 5 was evidently a collector, and the convic- tion against him ought to be affirmed. As to Nos. 1 and 2, there can be no doubt their conviction was right — Nos. 3, 4 and 9 being inmates of the houses, must have known all that was going on ; they aided and abetted the others. A presumption arises under Section 14, as gaming instruments were found. No. 9 was "the occupier" of the house and the presumption attached against her. The case can, if needed, be remitted to the Magistrate for evidence that the houses were entered by a warrant under the Ordinance. Wood, J. The mere being inmates of a house does not justify a conviction of them for assisting in gaming, if gaming instru- ments happen to be found in the house. Each person must be dealt with according as the evidence connects him or not with the gaming or lottery. There is no evidence against Nos. 4 and 9, except that they lived in the house. No presumption also arises under Section 14, against No. 9, as she was not "the occupier" of the house within the meaning of the Ordinance — her husband was, although he might be absent at times therefrom. Under the circumstances no good will come out of a reference again to the Magistrate even if it can be shewn that the Police entered under the Ordinance. I ought to add however, that in all these cases the warrant, omitting the Informer's name, should be produced as part of the evidence before the Magistrate — and it, or a copy, sent up with the case stated on appeal. The convictions against Nos. 4 and 9 will be quashed. That against No. 5 will be affirmed. Convictions of Nos. 4 and 9 quashed. Conviction of No. 5 affirmed. SiNQAPOUE. O'Malley, C.J. 1890. October 7. In re FEBDERICK POOLES. The latter part of Siib-seotion 2 of Section 28 of the Bankruptcy Ordinance 2 of 1888, is limited to the case where the bankrupt has been reported as having committed some one or more of the offences previously mentioned, or has omitted to keep proper accounts or traded with knowledge of his being insolvent or done some one of the other facts set out in Sub-section 3 — and the payment of 50 per cent, is not therefore a sine qua non to an application for a discharge in every bankruptcy. This was an application by the abovenamed bankrupt who had traded under the firm or style of Frederick Pooles & Co., of Singapore, for his discharge under Section 28 of the Bankruptcy Ordinance 2 of 1888. The Official Assignee had filed his Report which stated that up to the present date the sum of $23,032.91 had been realised from the assets of the firm, and it was expected that the unrealised portion would amount to $5,000 which would therefore pay on the proofs of debt lodged by the creditors in this Settlement, a dividend of about $75 per centum ; but if the liabi- lities of the firm in London were to be included, the dividend would not exceed $45 per centum. The bankrupt commenced business in 1886, in Singapore and London, in conjunction with STRAITS SETTLEMENTS. 671 William Downie, Tan Guan Eeafc, Tan Keng Wab, and Hong Kun Shew, under the style of Pooles Downie & Co., as general retail store-keepers. The last named partner went out in August, 1887, receiving $10,000. In November, 1888, a disagreement arose between the applicant and William Downie which terminated in arbitration ; the partnership with Downie was dissolved as regards the London branch as from November, 1888. The applicant and the other partners purchased Wm. Downie's interest in the Sin- gapore business in April, 1889, and the firm was continued until January, 1890, when it stopped payment on account of information received from the London branch, that the liabilities there exceeded by $18,000, the amount appearing in the firm's books in Singapore. The Official Assignee had lately received notification from a London creditor to the effect that the Manager of the firm in London had absconded, and that a warrant for his arrest had been issued on a charge of misappropriation of the moneys of the bankrupt firm in London. It was therefore probable that the above bankruptcy had been caused by the conduct of this person. The Official Assignee further stated in his report that the books of the lirm were kept in such a manner as to make it appear that none of the partners had a thorough knowledge of book-keeping ; and it was impossible to ascertain with any accuracy the firm's business-transactions and financial position. With this exception, the Official Assignee, was not aware of there being any evidence tending to prove any transgression by the bankrupt of the provi- sions of the Ordinance or the Penal Code. Section 28 of the Ordinance, is as follows : — O'Mallet, C.J. 18!I0. In re Fkkd. Pooles. 28. " [1] — A bankrvipt may at any time after being adjudged banki-upt apply to the Coui-t for an order of discharge, and the Court shall appoint a day for hearing the application, btit the application shall not be heard until the public examination of the bankrupt is concluded. The application shall be made and heard in open Court. [2] — On the hearing of the application the Court shall take into consi- deration a report of the Official Assignee as to the bankrupt's conduct and affairs and may either grant or refuse an absolute order of discharge or sus- pend the operation of the order for a specified time, or grant an order of discharge subject to any conditions with respect to any eai-nings or income which may afterwards become due to the bankrupt or with respect to his after-acquired property : Provided that the Court shall refuse the discharge in all cases where it is proved to the satisfaction of the Court that the bank- rupt has committed any offence under this Ordinance or under sections four hundred and twenty-one, four hundred and twenty-two, foui- hundi-ed and twenty-three, or four hundi-ed and twenty-four of the Penal Code or under any amendment of such enactments, and shall on proof of any of the facts hereinafter in the next following sub-section mentioned, either refuse the order or suspend the operation of the order for a specified time or grant an order of discharge subject to such conditions as aforesaid, hut so that in no such case shall the bankrupt obtain his discharge until he has paid a dividend of fifty dollars per centum on his debts. [3] — The facts hereinbefore referred to are — [a] That the bankrupt has omitted to keep such books of account as sufficiently disclose his business-transactions and financial position within the three years immediately preceding his bankruptcy, or within such shorter period immediately pre- ceding that event as the Court deems reasonable i^ th§ circumstances. 672 THE SUPREME CODET. O'Mallet, C.J. 1S90. In re Prkd. POOLES. [6] That tlie bankrupt has continued to trade after knowing or having reason to believe himself to be insolvent. [c] That the bankrupt has contracted any debt provable in the bankiTiptoy without having at the time of contracting it any reasonable ground of expectation [proof whereof shall lie on him] of being able to pay it. [d'] That the bankrupt has brought on or contributed to his bank- ruptcy by rash speculations or extravagance in living or by recklessness or want of reasonable care and attention to his business and affairs. [e] That the bankrupt has delayed or put any of his creditors to unnecessary expense by a frivolous or vexatious defence to any action or other legal proceeding properly brought or in- stituted against him. [/] That the bankrupt has within three months preceding the date of the receiving order when unable to pay his debts as they become due given an undue preference to any of his creditors. [grj That the bankrupt has in the Colony or elsewhere on any previous occasion been adjudged bankrupt or made a com- position or arrangement with his creditors. [K] That the bankrupt has been guilty of any fraud or fraudulent breach of trust. [i] That the bankrupt has within three months immediately pre- ceding the date of the receiving order sent goods out of the Colony under circumstances which afford reasonable grounds for believing that the transaction was not a honn fide commer- cial transaction. [4] — For the purposes of this section the report of the Official Assignee shall he prima facie evidence of the statements therein contained. [5] — Notice of the appointment by the Court of the day for hearing the application for discharge shall be published in the prescribed manner and sent fourteen days at least before the day so appointed to each creditor who has proved, and the Court shall hear the Official Assignee and may also hear any creditor. At the hearing the Court may put such questions to tlve debtor and receive such evidence as it thinks fit. [6] — The Court may as one of the conditions referred to in this section require the bankrupt to consent to judgment being entered against him by the Official Assignee for any balance or part of the balance of the debts provable under the bankruptcy'which is not satisfied at the date of his discharge ; but in such case execution shall not be issued on the judgment without leave of the Court, which leave may be given on proof that the bank- rupt has since his discharge acquired property or income available for payment of his debts. [7] — A discharged bankrupt shall notwithstanding his discharge give such assistance as the Official Assignee may require in the realisation and distribution of such of his property as is vested in the Official Assignee, and if he fails to do so he shall be guilty of a contempt of Court ; and the Court may also if it thinks fit revoke his discharge, but without prejudice to the validity of any sale, disposition, or payment duly made or thing duly done subsequent to the discharge, but before its revocation. [SI— For the purposes of this section the following presumptions shall he made [that is to say] : — [a] If at any time after the expiration of six months from the date of the adjudication, the Official Assignee reports to the Court that the value of the assets which have been realised together with the estimated value of the assets which are realisable is sufficient to pay a dividend of fifty dollars per centum on the debts 'proved in the bankruptcy it shall be presumed [until the contrary be proved] that the bankrupt has continued to trade after knowing or having reason to believe himself to he insolvent. STRAITS SETTLEMENTS, 673 [6] In determining whether a bankrupt was, or knew, or had reason to believe himself to be insolvent at any particular date, every debt owing to him by any person resident out of the jurisdic- tion which debt had been at such date due for more than twelve months shall be excluded from the computation of the value of the assets and for the ptirpose of such computation shall be deemed not to be an asset. [c] A bankrupt shall be deemed to have continued to trade after knowing or having reason to believe himaelf to be insolvent if having continued to trade after he was in fact insolvent he [i] is unable to satisfy the Court that he had reasonable ground for believing himself to be solvent ; or [ii] fails without reasonable excuse [proof whei-eof shall lie on him] to produce a proper balance-sheet for each of the three years immediately preceding the bankruptcy, every such balance- sheet being made within a reasonable time after the expiration of the year to which it relates and shewing the true state of his affairs at the end of such year. [d] Any preference given by the bankrupt to any creditor within the three months immediately preceding the date of the receiving order shall [until the contrary be proved] be deemed to be undue." The application was heard on the 6th October, and on this day. The bankrupt appeared in person . The Official Assignee, said a proper balance could not be obtained from the books because they had been kept in such an unbusiness-like manner. The books ought to have been so kept as to shew at once to a skilled accountant, the state of the busi- ness. Re Reed and Bnwen, 17 Q. B. Div. L. R. 244. Since the new firm Frederick Pooles & Co., had been started, the books had been kept in a reasonable manner; and just prior to that tjme, the De])uty-Eegistrar, acting in his capacity of arbitrator between the parties had drawn up a balance. These further facts he had added by way of supplement to his report. Buckley, for the New Oriental Bank and the Chartered Bank of India, Australia and China, creditors of the bankrupt, opposed the discharge. He contended the Couit had no power to grant the discharge until the bankrupt had paid fifty per cent. By the English Bankruptcy Act of 1849, the Court had an absolute dis- cretion to grant a discharge or not. By the Act of 1869, that dis- cretion had been taken away, and it was left with the creditors to say whether the bankrupt should be discharged. By the recent Act of 1883, the discretion was again left to the Court. In our Bankruptcy Ordinance 2 of 1888, Section 28, it is enacted that no bankrupt should be discharged until he had paid fifty per cent. Were it not for the word " such " in the section, there could be no question as to its meaning. He submitted, the clause as to the fifty per cent, went to the whole section, and not the concluding portion only. It was not to be found in the English Act of 1883, but tacked on by our local legislature. The pay- ment of fifty per cent, was here a sine qua non to every discharge — this he understood had been held in Penang [a.] There was [a.] There have been obiter dicta in Penang to this effect, hut no actual decision. — J.W.N.K. O'M ALLEY, C.J. 1890. In re Feed. FOOLSS. 674 THE SUPREME COURT. O'Mallet, C.J. 1890. In re Fked. POOLBS. also a provision in ouv Ordinance, which required the Court to presume the bankrupt had traded knowing that he was insolvent, until that presumption was rebutted. This was not in the English Acts, and the presumption had not been rebutted in this case. He referred to Re Mew & Thotne, 31 L. J. Bank. 89. Cur. Adv. VuU. 9th October. O'Malley, C.J. In this matter, Frederick Pooles applies for his discharge as a bankrupt, having passed his public examination and the report of the Official Assignee having been read. The application is under Section 28 of the Bank- ruptcy Ordinance and is opposed on behalf of the Chartered Bank of India, Australia and China and the New Oriental Banking Corporation by Mr. Buckley. The simple ground of opposition is that the bankrupt's estate is reported as insufficient to pay 50 per cent, on his debts, and that that, of itself, apart from other circumstances, is enough to bar the Court from granting the discharge. The contention is founded upon the wording of the latter part of Sub-section 2 of Section 28 of the Ordinance, that the words "in no such case" govern the whole section. I have carefully considered and weighed this, and I do not think it sup- ports any such conclusion. The words "in no such case" in my opinion being limited to the case where the bankrupt has been reported as having, or proved to have committed, certain offences, or under the following sub-section has omitted to keep proper accounts, or has continued to trade knowing or having reason to believe himself to be insolvent, etc. In this case the question arises whether any of the facts in that sub-section have been established against the bankrupt. I was certainly inclined to think from the original report of the Official Assignee that there was a case against the bankrupt under Clause [a] for omitting to keep books sufficient to disclose his business-transactions and financial position for three years before bankruptcy, but it appears that the partnership was wound up in 1889, and a new firm started. The accounts of the new and old firms were gone into, and completely settled up by an arbitra- tor,— the Deputy-Eegistrar of the Court. The Official Assignee reports that since then sufficient books have been kept. I think under the circumstances that this is " a reasonable time " and that the bankrupt has therefore sufficiently satisfied the require- ments of Clause [a], and is not prevented from getting his dis- charge on account of not having kept sufficient books. Sub-sec- tion 3 [6] gives the ground that the bankrupt has continued to trade after knowing himself to be insolvent; and instead of saying, which I think would be much clearer, that it would bar his dis-" charge unless he can prove the contrary, it provides by Sub-sec- tion 8 [a] : . "J^ ^* ^y ^}Pi^ ^^*«'" *^® expiration of six months from the date of the aajudicajtion the Official Assignee reports to the Court that the value of the aglets which have been realised together with the estimated value of the assets which are reahsable is insufficient to pay a dividend of fifty doUai-s per STRAITS SETTLEMENTS. 675 centum on the debts proved in the bankruptcy it shall be presumed [until the contrary be proved] that the bankrupt has continued to trade after knowing or having reason to believe himself to be insolvent." Then the question comes as to whether there is any presumption to the contrary, and whether the facts in the report of the Official Assignee shew that the presumption is rebutted in this case. The Official Assignee reports that in effect that the London firm were found to be very much more largely indebted than appeared from the information supplied in their letters — and, in fact, that it was more than probable that the deficiency was owing to the defalcations of the London manager, and that the large deficiency in the bankrupt's estate has arisen from the London manager making off with, as I understand, some $18,000 or |20,000; if the estate had not been weighted with this loss, it would have paid 75 per cent. In addition to this, I am influenced by the Official Assignee's statement that the bankrupt has done everything in his power to completely disclose his affairs, and rendered zealous assistance to him in realising the estate. Under these circum- stances, the Court, having as I conceive, the discretion, thinks it is a proper case in which to grant a discharge. O'Mallet, c. .T. 1890. In re Feed. POOLES. LETCHMAN CHETTY v. HASSAN KUDUS & ORS, In re KHOO THEAN POH k ANOE, A brick house huilt on Wakoff land with granite foundations buried under ground, is a " personal chattel" within the meaning of the Bills of Sale Ordinance 22 of 1870, [now repealed] and 12 of 1886. [a.] Interpleader, The subject-matter being two brick and two plank houses built on Wakoff or Charity land of Captain Kling, which were seized by the Sheriff on a ji. fa. at the suit of the Chetty. The brick houses where of solid granite foundations built some three feet into the ground. The houses belonged to Hassan Kudus and Chew Hock Seng the judgment-debtors, but had been mortgaged by them to one Khoo Thean Tek since deceased, of whom the claimants were the executors. The mortgage was the usual form of a bill of sale, of personal property in use frior to the new Bills of Sale Ordinance 12 of 1886, and was dated the 5th day of October, 1886, and was duly registered under the then Bills of Sale Ordinance 22 of 1870, Section IS, but the registration had never been renewed as required by the Bills of Sale Ordinance 12 of 1886, Section 14. At the time of the execution of the bill of sale, Hassan Kudus and Chew Hock Seng handed to the said Khoo Thean Tek the various bills of absolute sale of the houses from one person to another and ending with a bill of absolute sale of the same to themselves. Among these papers was a document signed by the trustees of the Wakoff by which they granted to the original builder of these houses, his executors, administrators, and assigns, "leave and license to Penang. Wood, J. 1890. October 7. [a. J See Mooiyah Chetty v, Yacoh, In re Nyah Hamzah, antl p. 568, 676 THE SUPREME COURT. Wood, J. enter upon a portion of the Wakoff land [described by metes ^^^ - and bounds] and thereupon to build any house or houses as LuTCHMAN they chose," on payment of a ground rent of six dollars per Chettt year. By this agreement it was provided that if the trustees jj^^'- at any time required the owner of the houses or his ex~ KuDns ecutors, administrators, or assigns to remove the houses, they & Obs. should pay the owner of the houses, his executors, administrators, g. ■^"'■^ ^ or assigns a sum of money to be fixed by two arbitrators as a Poh&jTitoe^ <^o'i^P^°s^*'ion for all their losses. The evidence shewed that the custom as to houses built on WakofB land was that they were always dealt with as separate from the land and could be sold, mortgaged, pulled down and removed by the builder or owner without the consent of the trustees or managers of the "Wakoff; and if required by the trustees or managers to be removed, they were bound to make compensation therefor to the owner.. Wreford, for the claimants contended, that by Section 14 of the Bills of Sale Ordinance 12 of 1886, the former registration was rendered void for non-renewal, but as the bill of sale was under the old Ordinance 22 of 1870, that Ordinance though now repealed, was to govern the case — Hiekson v. Darlow, 28 L R. Ch. Div. 690 ; and by Section 1 8 thereof, the effect of non- registration was to make the bill of sale void as regarded the " personal chattels" comprised therein — but " personal chattels" by Section 25 of that Ordinance was defined — it included " fixtures," but only such as were capable of complete transfer by delivery. [Wood, J. The evidence clearly shews a custom applicable to buildings on Wakoff land. Were not these houses as capable of complete transfer by delivery as any large iron safe which could only be removed on rollers or something of the kind ?] The latter was clearly a " personal chattel," however heavy and bulky it might be. The definition of " personal chattels" in the old Ordinance is not so wide as in the new. This was not a fixture — Sheffield Benefit Building Society v. Harrison, 15 L. R. Q. B. Div. 358. Then again, the document granted by the trustees was a lease and gave the builder of the houses and his assigns an interest in the land— delivery of it to Khoo Theau Tek at time of the loan created an equitable mortgage over the debtors' interests in the land, and our title is good against the execution-creditor. Van Someren, for execution-creditor was not called upon, but he mentioned the cases of Walce v. Hill, 7 L. R. Q. B. Div. 296, Affd. 8. App. Ca. 195, and Ward v. Budley, 57 L. T. [N. S.] 20, as shewing these houses must be treated as '' personalty." Wood, J, The argument for the claimants is ingenious, but cannot be sustained. The document relied on as a lease created no interest in the land. The custom as to these houses on Wakoff land is well-known, and clearly proved in this case they ai-e mere " personal chattels" within the Bills of Sale Ordinance, whichever be the one governing this case. The bill of sale not having been re-registered is void against the execution-creditor. Judgment for Execution-creditor, wUh costs. STRAITS SETTL-BMBNTS. 677 BAN CHIN HONG & CO. v. THE INDO-CHINA STEAM NAVIGATION COMPANY. Ambiguous language iii exceptions in a Bill of Lading exempting the shipowner froin liability for neglect of their servants or agents, must be construed most strongly against the shipowner and in favour of the shippers of cargo. An exception in a Bill of Lading exempted the shipowner from liabihty for •' any act, neglect, or default whatsoever of Pilots, Master, or Crew in tte maiiagement or navigation of the ship." It was proved that the plaintiffs' cargo shipped on board under a Bill of Lading with such an exception, was damaged by sea-wnter leaking through a cargo-port of the ship which w;is insecurely clo.sed while the ship was still taking in cargo at Calcutta. Held, the word '■ management " must be limited to management of the ship only while she was actually on her voyage, and that the exception did not therefore cover the neglect or default of the shipowner's servants Avhile in port, and he was therefore liable to make good to the shipper the loss he had suffered. Evidence taken on Commission, when returned, becomes part of the proceedings in the casff, and may be used by either party i\hether the Commission was his or not — but under Section 229 of the Civil Procedure Ordinance, 1878, an Order of Court must be obtained giving him leave to use it. This was an action to recover $700 damages for loss sustained by the plaintiffs through the negligence of the defendants' servants. The plaintiffs had caused to be shipped for them at Calcutta on board the s.s. Tai Sang, certain chests of opium to be delivered to them in Penang. The goods were shipped on board, and while the steamer was still at her moorings and taking in further cargo, it was found necessary to close the cargo-port which was being gradually submerged. This port was closed and secured by the Chief Officer and servants of the defendant- Company who owned the steamer. The plaintiffs' goods were shipped on board under a Bill of Lading which inter alia contained an exception, exempting the shipowner from liability, which was as follows, " any act, riec/Zeci, or default whatsoever oi Pilots, Master, or ci'ew in the management or navigation of the ship." After the ship had been a day at sea, about two feet of water was found in her hold, and on examination it was found the sea-water had leaked in through the port. The cargo, including that of the plaintiffs, was shifted aud the port properly secured. On discharge of the chests of opium at Penang,- several of them were found damaged by sea-water. On arrival of the steamer at Hongkong, and after discharge of all her cargo, on survey and examination of the port, it Avas found the port had been insecurely closed at the first, and the sea-water had washed away the " putty " filhngs, which had not been properly put in. At the trial these facts were practically admitted by the master and crew of the steamship, who had been examined and cross-examined on Commission issued on behalf of the defendants. Adams, [Wreford, with him] for the plaintiffs, before closing their case asked to read the evidence taken on the Commission on behalf of the defendants. They submitted this evidence had become theirs by their cross-examining the witnesses and provini; certain facts material to their case; and also, as the evidence being returned and filed with the CommissioD, had become part of the record in the case. Penang. Wood, J. 1S90. October 9. 678 THE SUPREME COURT. ■Wood, J. 1890. Ban Chin HONQ & Co. V. The Indo- china Steam Nati- GATION Co, ( ■ ■- 1^ Presgrave, for the defendants objected and contended, the Commission was his; the plaintiffs had cross-examined his witnesses, but had not joined in the Commission. The witnesses and evidence were his, and he had the right to produce or withhold it as he thought best. Adams, in reply referred to Section 229 of the Civil Procedure Ordinance, 1878. Wood, J. said, the Commission and evidence returned with it, were part of the proceedings — 1 Arch. Q. B. Prac. [13th Ed.] p. 315 ; they were part of the record now, and could be used by either party. By Sections 229 of the Civil Procedure Ordinance however, it was necessary for a party to have an order giving him leave to use it. He would make the order and give the plaintiffs leave to use the evidence obtained on the Commission. The evidence was then read for the plaintiffs. On the con- clusion of the evidence, Presgrave, for the defendants contended, that if there had been any negligence on the part of the defendants' servants, it was covered by the exception set out above, as the exception was intended to provide against neglect of the master and crew, and the word "management" was wide enough to include the closing of the port which was done to secure the ship, and so a part of the "management " of her. Theexception was "management or navigation," evidently implying the two things were different. He relied on Carver on Carriage by Sea, Section 101, and The ' Smero, 38 L. J. Adm. 69. Adams, [Wreford, with him] contended, that negligence had been pi-oved ; but all kinds of negligence on the part of the master and crew were not intended to be provided for by the exception, but only that done in the " management or navigation of the ship". The closing of the port while the vessel was at her moorings taking in cargo was not a " management " within the meaning of the exception. They also contended the ship was not "seaworthy," and referred to Steel v. The State Line Steamship Co., 4 Ap'p. Ca. L. E. 72, and The Glenfruin, 10 Pro. Div. L. E. 103. Van Someren, as amicus curiae, after the judgment in this case had been delivered, called the attention of the Coui't to Leggatt on Bills of Lading, p. 241, and Hayn v. Gulliford, 47 L. J. Q. B. 7o5, where the language of the exception was identical with that in the present case. Wood, J. I consider the evidence clearly proves negligence on the part of the defendants' servants in securing the port ; and that the plaintiffs' goods were damaged by sea-water leaking through the port, in consequence. The defendants therefore are liable to make good the plaintiffs' loss, unless the neglect in ques- tion is covered by the exception referred to. The word " manage- ment" is of doubtful import, and should, by itself, be construed most strongly against these fanciful exceptions to the shipowners' liability — but followed as it is here by the word " navigation," I think the latter word throws light on the " management'''intended STRAITS SETTLEMENTS. 679 I hold that it means a " management" of is in motion, actually on her voyHge. The Wood, 3. 1890. to be referred to ; and the ship while she collocation of words I think is important, although they are in the disjunctive. I am of opinion thei'efore, the closing of this port ■while the vessel was at her moorings was not a " manage- ment" of the ship witliin the meaning of the exception, and the negligence of the defendants' servants in so closing the port is Stbam Navi- not covered by the exception, and the defendants are liable to gatjonOo. make good to the plaintiffs the loss sustained by them. Judgment for plaintiffs, with costs. Ban Chin Hojfo & Co. V. The Indo- Chika THE THBEMOPYLCE. SOLOMON & A NOR. v. GUTHRIE & CO. A Captain of a ship has no authority to pledge his owner's credit at a port where SinQapobe, the ship is lying, and where the ship has an Agent authorised and ready to supply the ship's requirements. Gunn V. Roberts, 9 L. E. C. P. 331 , followed. It makes no difference that the Master was not aware at the time he purported to pledge his owner's credit that the ship had such an Agent at the port. 0' Mallet, O.J. 1890. Action to recover $2,040.0-5 for necessaries alleged to have been supplied to the abovenamed British ship, the Thermopylce. The ship was owned by a Canadian Milling Company, and had arrived at Singapore on 8th September last, on a voyage from Cardiff. Messrs. Guthrie and Co. were duly authorised by the owners to act as Agents at Singapore for the ship and to pay for all necessa- ries required by her. They had given a letter to a certain Dubash to hand to the Captain, informing him that he was the man to whoTn all orders for the ship were to be given, but before this Dubash arrived on board, the plaintiffs, a firm of Owfeas/ie*, had boarded her, and on producing good references, they v?ere engaged by the Captain to supply the ship with all requirements. After he had thus engaged the plaintiffs, the other Dubash arrived, but the Captain decided to keep to the plaintiffs as he had already engaged them, and thereafter continued to receive from the plaintiffs the various things ordered of them. The plaintiffs thereafter sent in a bill for the goods so supplied amounting to the above sum. The Captain had no funds to meet the claim, and Messrs. Guthrie and Co. refused to pay it, pai-tly as every item in the bill was charged at a most exorbitant rate, and partly on the grounds that some of the goods were not " necessaries." They also considered, as they wei'e Agents for the ship, the Captain had no power to employ the plaintiffs without their consent. Some bills for work and labour done and materials supplied to the ship in making port- holes and other work which had been ordered by the Captain of the "Victoria Works Company," without coiisulting the Agents, wore paid for by them on presenta.tion. Ou refusal to pay the plaintiffs' bill, they commenced this action against the ship. The Captain gave evidence for the plaintiffs. Davidson, for defendants contended, that as they were Agents of the ship at Singapore and were ready to supply all neoessariesj October 15. 6S0 THE SUPREME COURT. The Theemo- PTLOB. Solomon & Anob. V. GOTHRIE & Co. the Master had no authority to pledge the credit of the owners— Gunn V. Roberts, 9 L. R. C. P. 331. He submitted it was imma- terial whether the existence of the Agents was known to the Master and plaintiffs or not. Khory, for the plaintiffs contended, that the Master's acts had been ratified by the Agents paying the Victoria Works' bills. They thereby re"cognised his authority to pledge the owner's credit by an independent transaction without consulting them. O'Malley, C.J. said, it was quite clear on the authority of the case of Gtmn v. Roberts, that the Master had no authority to pledge the credit of the owners when there were properly autho- rised Agents in the port ready to supply all necessaries. The Agents had consented to pay certain bills to the Victoria Works though not bound to do so, but this did not amount to a ratification of the act of the Master in employing the plaintiffs — they were still at liberty to refuse to pay these bills. A large number of the items in the account too, could not be claimed as " necessaries." The action .failed and there must be judgment for the defendants with costs, [a.] ATTORNEY-GENERAL v. CHEW SIN YONG & ANOR. [6.] Penang. a claim for loss sustained by the Crown, by reason of the breach by the defendant of his contract — although such loss may be calculated and found by the Officers of the Wood, J. Crown to be a particular sum — is not a claim for an "ascertained " sum, within Section 1890. 2 of the Crown Suits Ordinance 15 of 1876 ; but a claim for "damages or account," within Section 3. October 27. ' Where an Information and Writ of Summons, for such a claim, was filed and issued under Section 2, ; Held, the defendant was quite right to apply, by Summons in Chambers, and j before applying for leave to defend, for an order to set aside SLich proceedings as being irregular : and the same were set aside with costs. The Writ of Summons, in Form C 1. of the said Ordinance, is intended to be used in cases falling within both Sections 2 and 3 ; but at time of issue, ought to bp so adapted as to meet the provisions of the particular section -under which it is issued, by striking out the alternative sentences which apply to the other section. This was a Crown Suit [No. 2] under the Crown Suits Ordinance 15 of 1876, and was brought "fur the recovery of $389,402. 03 being for loss sustained by Her Majesty upon the re- letting of the Opium, Spirit, and Toddy Farms of Penang, and of the Territory and Islands of the Diudings." The claim was based on a certificate signed by the Assistant Colonia.1 Treasurer, which was as follows : — " TKBASITEBfi'S CeBTIPIOATE. I hereby certify that by two several contracts entered into by Chew Sin Tong and Oban Lye Kum under " The Excise Ordinance, 1870" the said Chew Sm Yong and Chan Lye Lnm became bound to Her Majesty the Queen, Her Heirs and Successors to pay to the Assistant Colonial Treasurer the [a.] The Agents upon this intimated they would pay the plaintiffs what was fair ; in resisting the whole clauii they only wished to put a stop to vexatious seizures of ships. It was then arranged between the parties to refer the accounts to the Beeia- trar to decide what was a fair sum. — J.W.N.K, [i]. See this case reported on another point) ant& p. 64S. STEAITS SETTLEMENTS. 681 several sums of !?92,700.00 and |2,3S0.00 monthly from the 1st day of January, 1889, to the 1st day of December, 1891, [inclusive], rent of the Opium, Spirit and Toddy Farms of Penang, and of the Opium, Spirit and Toddy Farms of the Territory and Island of the Bindings respectively, and also to pay to Her Majesty the Queen, Her Heirs and SuocesBors, in case of any breach of their said contracts, any loss which might arise upon the I'e-letting of the said Farms — And that the said Chew Sin Yong and Oban Lye Kum did thereafter make breach in the performance of their said several contracts, in consequence of which breaches, the said Famis were jointly disposed of to other persons, as and from the 1st day of October instant, for the remaining 15 months of the terms comprised in the said two several contracts, at the monthly rental of $ )7,000.00, by reason of which, the svim of ?389,402.63 is now due to Her Majesty the Queen, as follows : — To Loss for 15 months or re-letting both Fai-ms — $420,750.00 By balance of Deposit -notes after deduction of August and September rents, and interest as shewn by H. E. the Governor's endorsements on conti-acts $ 31,347.37 Dated at Penang, this 24th day of October, 1890. $389,402.63 [Signed] R. B. LEICESTER, Assistant Treasurer." This certificate was filed by the Attorney-General under Section 2, Clause 1 of the said Crown Suits Ordinance, and an Information filed, in Form of Bl. of the Schedule of Forms given in the Ordinance, which stated that the above sum was for " loss sustained by Her Majesty upon the re-letting of the Opium, Spirit and Toddy farms of Penang, and of the Territory and Island of the Bindings in consequence of the breach by the defendants of their covenants contained in two several contracts under the Excise Ordinayice, 1870, under wbich the said Farms were held respectively, by the defendants, and which loss the defendants by their contracts became bound to pay to Her Majesty, as witness the certificate of the Assistant Colonial Treasurer." The writ of summons was in Form CI. of the said Schedule of Forms. It was headed "writ of summons [Sections 2 and 3, Ordinance 15 of 1876]" and called on the defendants to enter an appearance "within four days," and "shew cause why judgmeint should not be entered up and execution issued thereon [or to ansiver Us concerning certain articles then and there on Owr behalf to be objected against yoii] " The indorsement on this writ, after stating the claim as herein first set out, proceeded to state " and if an appearance is not entered by you within four days from service hereof, judgment will be entered up against you for the above amount with costs, and execution issued without further notice, or [if under Section 3^ judgment will be entered up against yov, lolthnut further notice, and damages will be assessed against you on further notice of four daya, which notice may be issued on the expiration of eight days from thr Service of this Summons." Sections 2, 3, and 54 of the said Crown Suits Ordinance, are as follows : — Wood, J. 1890. Attobney- General V, Chew Sin Yong & Anoe. " 2. I. — If the amount so in default is ascertained, the Attorney-General, on filing in the Supreme Court a Certificate, in the Form in the. Schedule A., by the Colonial Treasurer, or Officer of any Court or Department of Govern- 682 THE SUPREME COURT. Wood, J. 1890. Attoknet- Oeneeal (J. Chew Sin YONQ & Anok. ment in which the amount is leviable, that the same is due and unpaid, in whole or in part, may tile in the said Court an Information in the Form of Schedule Bl. II. — Certificates issued under Sections 2 and 4 shall be held to be within the provisions of Seditions 197 and 198 of the Penal Code. III. — On the filing of such Infoi-mation, the Registrar of the Court shall forthwith issue a Writ of Summons in the Form of Schedule CI, to be served on the defendant, calling vipon the defendant to shew cause, within four days, why judgment should not be entered up, and execution issued. IV. — The defendants, on being served with such Writ of Summons, shall not be at liberty to defend the Suit, unless he shall obtain leave from the Court to do so. V. — A defendant desiring to defend such Suit shall, within sach four days, file a Statement, verified on oath, in the Form in the Schedule D. of the facts on which he bases his defence, and shall serve a copy of the same, on the Attorney-Genei-al ; and if the Court, on reading the same, is satisfied that the defendant has a substantial ground of defence on the merits, an Order may be indorsed thereon granting leave to the defendant to defend, within such time as the Court may direct ; when the Suit shall proceed, down to, and inclusive of, the hearing or trial, subject to the provisions of this Ordinance, in the same tnanner as is practised in- Siiits for a similar purpose between subject and subject. VI. — Any such order may be set aside by the Court, on its being satisfied that the same was in-egrdarly or improperly issued. VII. — Leave to defend such Suit shall not be granted unless on the merits, shewing a substantial ground of defence, to be made oat by the defendant on his application for leave to defend. VIII. No defect of form or procedure shall be deemed a sufficient ground for defence, but such defect may be amended, by, or by leave of, the Court, whenever brought to notice, on siich terms, as to costs and otherwise, as to the Court may seem right. IX. — If the defendant does not apply for leave to defend a Suit, or if the Coui't declines, on the defendant's application, to gi-ant such leave, the Attorney -General may. on the expiration of four days from service of the Writ of Summons, whether the defendant has appeared or not, and on proof of service of the Summons if he has not appeared, enter up final judgment for the Crown, whereon execution shall at once issue. X. — It shall be lawful for the Court, if, after decree, it shall be made to appear to the Court to be reasonable and just so to do, and on foui- days' notice to the Attorney- General, to set aside any judgment entered up ex-parte under this section, and to allow the defendant to appear and defend the Suit. Fo^- Sums not Ascertained. 3. I. — If the amotmt claimed on behalf of the Crown lies in damages or account, or is otherwise not ascertained, the Attorney- General may, in the first instance, file an Information, as in Schedule B. II, setting out shortly the nature of the claims of the Crown, and requiring the defendant to answer the same ; and, on the filing of the luformacion, a Writ of Summons shall be issued as in Schedule C 1, in the usual course of the Court. II.— The defendant, on being sei-ved with the Writ of Summons, shall enter an appearance within eight days. III.— On such appearance, the Attorney- General shall cause to be served on the defendant a notice to answer within eight days ; and, in default, that judgment will be entered up for the Crown, and damages assessed on fiirther notice of four days. i^—If ihe defendant appears and answers, the proceeding shall be continued, down to, and inclusive of, the hearing or trial, subject to the provisions of this Ordinance, as in ordinary Suits for ,, similar purpose between subject and subject. v.— If the defendant does not appear, or does not appear an.i answer, as required, interlocutory judgment may be entered up for the Crown ; and, on the amount ofclavm being proved, by the 'usual practice of the Court for assess, ment of damages, on a four days' notice, execution shall follow at once. STRAITS SETTLEMENTS. 683 54. SulDJect to the several provisions of this Ordinance, the law of Prac- tice and Procedure in force in the Supreme Court, for the time being in pro- ceedings between subject and subject, shall be applicable to all proceedings of a similar kind under this Ordinance." The action was begun on 24tli iastant and Copy, Writ, and Information served on defendants the same day : on 2oth they took out a Summons in Chambers, in Form 20 of the (Jivil Procedure Ordinance 5 of 1878, "for an order setting aside the Certificate of the Assistant Colonial Treasurer, the Information and Writ of Summons issued in this suit on the grounds of irregularity ; and for payment by the Crown, to the defendants, of their costs of the application : or for such further or other order as to the Court shall seem right." The Summons now, for sake of convenience, come on before the Court for argument. V go before the Court a?id before he can defend the actinn he must get leave to defend. That seems tome unreasonable; if a man has a right to appear why should he where there has been no adjudication, be called upon in this case more thiin an ordinary suit to shew his defence ? Yet that is the construction for which the opponents contend. If considering the '-reason" of the words, the more reasonable construction of this " make himself defendant" is enter an appearance, and not file his defence. I tliink that the real construction of that section is, that any person interested in opposing a Crown claim in a case where there has been no adjudication, must come forward within eight days, and obtain leave from the Court upon motion ex-farte shewing that he has some interest in the claim. I think Clause 7, Section 4 though it relates to another matter, confirmatory of that view, because the language used in the fifth line of the clause shews that the Legislature looked upon the appearing of a defendant as the same, and then it goes on to Chiuse 8. I think that the somewhat obscure expression " make himself defendant " really means " appear." That being so it seems to me that the appear- ance in this claim, was irregular. Is it an irregularity requiring to be set aside, or is it a nullity, to be treated as suchP I have looked as carefully into all I can find, as to a distinction between what is a nullity and what is irregular, and there does not seem to be any principle by which you can distinguish one case from the other. I think the right distinction and one applicable in this particular case is, if the)e has been a mere directory clause or provision treated as directoi'y, which has been ignored, yon might treat this as a mere irregularity which could be set aside, but, where the step to be observed is a condition, there it seems that a step taken without that is a nullity. The construction of that section, although not drafted in the approved way for a directory provision seems to be so, and I think what it means is, that any person interested cannot appear without leave and therefore it is a nullity in this case and in spite of that appear- ance the judgment must stand. At the same time, as was pointed out, that judgment was obtained, upon an application which was irregular in form, through the Registrar. In this case that direction to the Registrar should be withdrawn and a proper application, following the procedure which is adopted in every case for entering judgment for the plaintiff, should be followed here. I do not think that that direction should be allowed to remain on the file. That being so the opponents are not entitled to have the judgment set aside. Then as to the question whether they may not be strictly entitled in law and whether there are grounds t)94 THE SUPUBME COURT, STRAlTS SETTLEMENTS. O'Mallet, C.J. 1890. Attornet- G-ENERAL V. Seven upon wliiob, (HI terms, they should be practically admitted to dis- pute the viilklity of the claim. I certainly do not think, so far, that they have shewn any claim whatever; they have not placed before the Court any facts shewing- that they ai-e even interested, much less that they have anything in the shape of a bonitfidn defence. Nothing short of satisfying the Oouit on both of these points would entitle Bakrels OF them toany consideriition under these circumstances. They have GuNTOWDERj jjjj^^ opportunities ; it was not an unreasonably short time — eight days, within which all that was required of them was to shew interest, and th;it they did not do. I think the leiist that they would be required to do would be to shew intei'est and the ground of a substantiiil defence on the merits. If they are in a position to do that, justice does not require that tbey should gain anything on this inotiiin, bi'ciuse the proviso in Chiuse 5, Section 4 seems pre- cisely to meet the case. It provides, if at any time within six months any person appears as owner, and on four days notice to the Attorney-General shews cause why the property should not be forfeited, &c., the Court might make an order, &c. It seems to me - that the opponents are in a position to do that . The law has provided a remedy which would substantially meet any real merits. It is not necessary to justice, in this case, to give them any other opportunity. If they could not within eight days shew reasonable cause why the judgment of forfeiture should not be recorded, I do not think they should be at liberty to ask any more. The decision of the Court is that the judgment should stand as entered. There will be no order as to costs. End op Vol. IV. INDEX, ABETMENT— see Conviction. 4. 493 ■ Principal. 1. 118 Spibits 546 ABUSE OF PROCESS— Where the pro- cetss of this Court is abused, as for instance, by a plaintiff issuing a summons for a gross and scandalous claim, the Court will sum- niarily without notice to the plaintiff, order it to be taken off the file and the service set aside. Donohub v. Joaquim 628 ACCESS— Eight of, 10 see Sea Shore. ACCESSORY — A person who is shewn to have committed an offence as a principal cannot be convicted as an accessory 493 see Conviction. 4. 2. Com-t of Appeal — amendment of charge — person formerly charged as an — may be charged as a principal 546 see Spirits. ACCOMPLICE— Informer— Evidence 597 see LoTTt5RY. 2. ACCOUNTS— Although appeals in matters of detail, as accounts, should not be en- couraged, yet where the evidence pi-epon- derates in favour of the appellant, this Court will act on such evidence and even revei-se the judgment of the Court below, or the Registrar's certificate, on a point of fact. Chih Lim Nbo v. Sit Hoon Neoh . 492 see aZso Crown Contract. 2. 680 Partnership. 1. 380 ACKNOWLEDGMENT— A document acknowledging that the debtor had received a sum of money from the claimant for per- sonal property [describing them seriatim] that day sold by him to the claimant, is a Bill of Sale within Section 5 of the Bills of Salp Ordinance 12 of 1886 - 530 see Bill op Salk. 7. ACKNOWLEDGMENT OF D RED— see Mahomedan Married Woman. 3. 225 see Reply - . 416 ACQUITTAL— A prisoner charged with assault was discharged by a Magistrate on the prosecutor infonning the Coui-t that he did not wish to prosecute as the prisoner had settled the matter to his satisfaction. The Police disapproving of this step, sum- moned the prisoner for the same assault before another Magistrate who considered ACQUITTAL— comimwecJ. that the discharge imder the circumstance was equivalent to an acquittal, and refused to entertain the charge, and dismissed the summons. The Police appealed. Held, the proceedings i" the first instance implied an acquittal, and the prisoner could not be tried a second time. Regina V. MONTEIRO - 556 ACTION— Payment by defendant of amount claimed and costs before execu- tion - 614 see Sheriff. ACTION FOR DAMAGES— Judge 437 see Consular Court. 2. also Crown Contract. 2. 680 Damages. Land. 13. 533 Police. 1. 2. 214, 240 ACTION FOR RENT— Limitation— Cove- nant — lease - 587 see Rent. 5. ACTION ON PROMISSORY NOTE— Defence — Part payment — agreement 587 see Promissory Note. 3. ACTS: 20 of 1837- 119 see Heir. see Limitation. 1. - 311 see Testator. 3. 608 16 of 1839 s. 11 cl. 2 178 see Declaration of Trust. 13 of 1850, s. 11 . - 323 see Breach of Trust. 1. 15 of 1852, s. 7 670 see Foreign Court. 31 of 1854 225 see Mahomedan Married Woman. 3. 2ofl855, s. 12 630 see Bigamy. 2. — — — s. 31 • 349 see Theft. 2. 14 of 1856 431 see Verandah, s. 126 - 450 see Riparian Rights. 25 of 1856, s. 4 - . 103 see Assessment. 27 of 1856, s. 21 103 see Assessment. 696 INDEX. ACTS — continued. 8 of 1859, s.R. ;!-J. :jH5. .jiio cl. 4 - 311 see Limitation. 1. 14 of 1859 225 see Mahomedan Makried Woman. 3. s. 1 cl. 12 311 see Limitation. 1. s. 1 cl. S & 11 - 587 see Rent. 5. ■ s 4- 136 see Agbeement. 1. ACTUAL KNOWLEDGE— seK Con- tkact. 12. - - - 544 ADJOURNMENT— Part heard Criminal trial — Court will adjourn where no harm done to a prisoner to enaLlc proBeeiition to procure further evidence 630 see Bigamy. 2. ADJOURNMENTS— Magistrates- 287 see Habeas Corpus. ADMINISTRATION— The Court will not revoke Letters of Administration durante absentia granted to a person imder a power of attorney from a next-of-kin, or declare it to have ceased or expired, merely on the grovmd that since such grant of adminis- tration suoU next-of-kin had cancelled and revoked the power of attorney. Mahomed Mydin v. Pana Sitteb Ma-HOMEd. In the goods of Mahomed Hussein 191 2. Oliinese Widows — Intestacy 380 see Widows. 3. When the Coui't has granted Letters of Administration to an estate, to a person, no one has a right to detain such letters from such person. A party entitled to land is entitled to the Title Deeds thereof ; and the proper person Ui sue in detinue for their detention is the pm-dou entitled to the legal interest in the land. Masiamah v. Pachak - 444 4. Under special circumstances, Court may dispense with security for due administration of Estate - 594 see Sbcukjty. ;>. also Commission. 1. -J.jS Declaration of Trust 178 Executor. 1. 8 Limitation. 1. 311 . Mahomkdan Mab- KiAGii Ordi- nance. 1. - ii8 ADMINISTRATION BOND— The Pro- bate Act of 1857 [20 i 21 Vic. c. 77] docs not extend to this Colony and this Court therefore has no power to order an Ad- ministration Bond to be assigned in order to be put into suit. Query. ^ How are Ad- ministration Bonds made in former yeai-s in favour of the Secretary of State for India to be put into suit H In the yoods of Ismail 187 ADMINISTRATOR— see Administra- tion. ADMIRALTY PROCEEDINGS—^ see Collision - 478 Derelict Vessel 638 Piracy Jure Gentium 169 Salvage 200 Shipping - 679 ADOPTED CHILDREN— .'see Chil- dren. 1. - - 1"8 AD V^ANCE OP INTEREST- see Ceedj- TOE. 2. - - - - S59 ADVERSE POSSESSION— see M4.home- dan Married Woman. 3. 225 TITLE— see Land. 12. - 453 ADVOCATES AND SOLICITORS— Right to appear before Justices of the Peace - 151 see Justice of the Peace. also Counsel. 1. 2 317, 569 AFFIDAVIT— Occupation of attesting Witness — Execution-Creditor- 120 see Bill of Sale. 1. 2. Defective under Bill of Sale — void as against Sheriff when seizing under pro- cess - 183 see Bill op Sale. 2. AFFRAY — The prosecutor had rented a strip of land at the back of a shop in Pran- gin Lane in which he resided. The appel- lants [thirteen in number] were carrying granite stones, passing and i-e-passing over the strip, thereby scattering some paddy the iwosecutor had laid out to dry. This led to words and eventually to blows. The strip lay at the back of the shop by the sea side, and thougli some distance from the public thoroughfare, it was open on all sides and was distinct from the shop land which was fenced all roimd ; over the strip was a lane or foot-path. Crowds of people wei-c attracted to the spot by the noise of the fight. Held, that the strip was not a '■ public place" within the meaning of Sec- lion 159 of the Penal Code, so as to render the appellants guilty of an aifray. Regina V. Ong Kong Poon 346 AGENT — An agent under a power of at- tiu'ney whose piower givt's him U' i authority to use his principal's name and credit in financial transactions has iio authority to bind liis principal though he assumes to act under the XJOwer and puts his principal's clicji on the Note, Bill, or Document he gives. Query. What if it is shewn that the money was borrowed and used for the purpose of the principal's business, or for his benefit ? There can be no ratification by a principal of the act of liis agent, who in doing the act exceeds his authority, uutil it can be shewn that the principal in doing the act which is relied on as the ratification, acted with full knowledge of the nature of the act committed by hiS INDEX. 6d7 A GENT — cont iuued. agent aud with, an intention to adopt that act at all events. Freeman v. Bosher, 13 Q, B. 780, followed. A " material fact" is one which if communicated to the other of the parties would induce him either to refrain altogether from the contract, or not to enter into it on the same tei-ms : this defini- tion applies equally to the doctrine of sub- sequent ratification as it does to the Law of Insurance. Quaik Siew Soon v. Wee Kim Guan - 319 2. Captain of Ship— authority to pledge owner's credit 679 see Shipping. see also Bill of Lading 677 Contribution 528 AGREEMENT— Disturbances existing in the Native State of Larut between two opposing factions or JCongsis of Chinese relative to th(! possession of certain tin mines there, a niiml^er of mines belonging to the faction or Kongsi of which the de- fendant was a headman, were taken from them by their opponents. The Muntri as the chief authority of the connti-y sided with the defendant's faction or Kongsi and with his knowledge and consent, the de- fendant and others, lieadmen of that fac- tion or Kongsi applied to the plaintiff's firm for help in money and pi-ovisions, in arms, ammunition and food for their " armed men" to an " unlimited credit." In consideration of the plaiutifE's firm agree- ing to render this help, the defendant by an agj'eement made in Penang, agreed that after the conclusion of peace between the two factions ur Kongsis, ever to pay to the plaintiff's firm seven-tenths of the per- centage which their faction or Kongsi received from the miners on all tin obtained by them at their mines, but should the defendant change his mind and not pay such seven-tench s he was to pay to the plaintiff's firm .S10,OOU per month in lieu tliereof. The agreement then provided in a separate clause that should the mines fall in other hands than those of the de- fendant's faction or Kongsi, or should the mines be wrrnrhed from the hMuds of the defendant's faction or Kongsi, so that they became unable to draw their aforesaid per- centage, then the plaintiff's fii'm could not claim payment of the seven-tenths. The plaintiff's firm provided the necessary moneys and goods up to the extent of §60,000 ; with the help so rendered the de- fendant's faction or Kongsi were able to recover most of the mines they had lost, and on the British Government shortly thereafter interfering and bringing about peace and establishing a Residency in Larut, the defendant and his co-headmen and the miners of their mines met, and AGREEMENT— continued. with the knowledge and consent of the British Resident made a further agreement which — after reciting the previous agree- nient and the fact that the supplies had been rendered and thereby most of the mines had been recovered, and that peace had been restored — provided and declared that the defendant and his co-headmen and their miners were to follow and abide by such previous agreement. The defendant's faction or Kongsi thereafter drew and re- ceived their aforesaid percentage fi-om their miners and thereout paid seven-tenths thereof to the plaintiff's firm for about two years whereby the debt to the plain- tiff's firm was reduced by Sil6,500. "While the plaintiff's firm were thus collecting their seven-tenths, the British Government with the consent of the Perak authorities took possession of and re-allotted the mines among the Chinese mine-owners, and there- after issued a proclamation prohibiting the further levying of the aforesaid percentage and proceeded to levy a duty on tin for themselves for the upkeep of the Govern- ment of the country, whereby the plaintiff's firm were deprived and hindered from ob- taining their seven-tenths. The plaintiff's firm then sued the defendant for the ba- lance of their advances. Held [by Wood, J. and affirmed by the Court of Appeal! that the plaintiff' could not recover — [11 as the expression " other hands'' in the first agreement was not limited to the faction or Kongsi opposing or fighting the defendant's faction or Kongsi, but included the British Government; and the construction appa- rently put on these words by the parties themselves by the second agreement was im- material, and the acts and proclamation afore- said, were acts within the provisions of the aforesaid clause, and the agreements were rendered impossible of performance as the subject-matter of them, the percentage, had been put an end to ; [2] that the alternative provision to pay .910,000 a month did not arise as it applied to a free and voluntary change of mind on the part of the defend- ant and not by constraint, and the defend- ant under the aforesaid circumstances could not be said to have " changed" his mind. If a plaintiff' beresident or his firm be established in this Colony, and the pay. inent of a debt has to be made to the plain- tiff' or his firm, the cause of action is one that "arises in this Colony" within Section 29, Ordinance 5 of 1868, and Sections 18 and 19 of Ordinance 3 of 1878, so that this Court has jurisdiction to entertain the suit if the defendant be absent from the Colony —per Wood, J. Semble. If a contract is made in the Colony, though confirmed 'by a subsequent contract made out of the INDEX. AGREEMENT— cojiii'riiiec?. Colony, and tlie breach be committed abroad — the case is one which " on general principles of international law and comity, is to be determined by the law of the Co- lony" within the aforesaid sections — per Wood, J. The English rule that once the Statute of Limitation begins to run nothing can prevent its operation, although the de- fendant be in hiding or out of the jurisdic- tion is merely a rule of construction on the language of the English Limitation Acts 21, James 1, c. 16, and 4 Anne, c. 16, Section 19, and is not a hard and fast rule of law, and is inapplicable to the Indian Limitation Act XIV. of 1859, in face of Section 13 thereof. Gregonj v. Hurrill, B. & C. 341, Gati Kim Swee v. Lee Ah Kee [infra, note p. 138,] not followed — per Wood, J, Semhle. The word " present" in Section 29 of Ordinance 5 of 1868, and Section 19 of Ordinance 3 of 1878 means 6o?i(i fide and actual presence in an open and undisguised mannei' and not in hiding and concealment — per Wood, J. Semhle. It does not mean presence at the time of action brought, but at the time of breach or thereafter — per Wood, 3. The earlier English Statutes of Limitation of James and of Anne as above, are law here, except as modified by subsequent Acts and Ordinances of the Indian and Straits' Settlements Legislature, but Lord Tenderden's Act 9, Geo. . IV. c. 14, is not in force here^per Wood, J. Section 4 of the Limitation Act XIV. of 1859, only deals with acknowledg- ments in cases of a " legacy or debt" and does not like Lord Tenterden's Act extend to " actions on the case grounded on any simple contract," so that a letter written by directions of a defendant, tlioiigh not signed by him, but from which a pri)misc to pay may reasonably be inferred is a sufficient acknowledgment under the old law, prior to Lord Tenterden's Act, to revive his liability — per Wood, J. A pro- mise to pay " when of ability" will revive the debt if it can be shewn by evidence that between the date of the pi-omise and the commencement of the action for re- covery of the debt, the defendant has had the ability — per Wood, J. In an action for breach of an agi'e&ment. the plaintiff in answer to a defence of the Statute of Limi- tations put in evidence the three following letters written within six years of the com- mencement of the action by the defendant's directions and with his name, but not signed by him. 1. " It is true that the "kindness bestowed by you is to no " small extent. Although others may be un- " grateful, I cannot be so bad as that " it is really on account of my being hard "up that I cajmot further my wish AGREEMENT— cortfiiMief^. "although I wish to put the matter to "right, it is not within my powers to do "it should in future I receive the sum "from the Government I will not be un- "grateful to you." 2. "With regard to the "matters mentioned in your letter, you " say you wish me to manage to pay one- " half of the amount, but should 1 have " any means in my power, I have nothing " to complain of even if I had to pay the "whole." 3. "Day or night I cannot for- " get your kindness, should I have little ■' better prospects in the future, I would " never forget you. I must then first of all "repay you your kindness." Held, that the letters were conditional promises to pay on being of ability to do so, and there being proof of such ability, they were acknowledgments which took the case out of the Statute of Limitations — ^er Wood, J- Tanner v. Smart, 6 B. & 0. 603, and Ham- mond V. Smith, 33 Beav. 452, followed. KoH Sbang Thye v. Chung Ah Quee 136 2. Division of work — restraint 168 see Contract. 3. 3. A document which is encumbered with conditions or pxits a person on enquiry to ascertain whether any uncertain event has happened, is not a Promissory-note. Where therefore A. gave a paper promising and agreeing to pay a sum of money by instalments to B. or his order in considera- tiou of B. discontinuing cei'tain actions which he then had against A. Held, as it was necessary to shew that the actions had been discontinued, the document obliged any intending holder of it to enquire whether that event had occurred; it was therefore encumbered with a condition, and was not a Promissory-note but an agree- ment only. Carlos v. Fancourt, 5 T. R. 482, followed. Costs and expenses incurred by a plaintiff before action in order to perfect his title to commence the action should not be allowed on taxation between party and party. Hajee Shaik Abdul Caber V. Mahomed Cadee Hussain 181 ^- Clause in, that disputes be refer- red to arbitration— Jurisdiction of Court not ousted.without express words 596 see Arbitration, 3. also Breach oe Contact. Contract. Crown Con- tract. . 1. 2 648, 680 ■ Sea Shore lo ALIENATION-Power * of-Testator- Lands .> . . (508 see Testator. 3. -■ — — Rektraint— Bequest — W a - KOFF - . . IQl see Land. 2. INDEX. 699 ALTERNATIVE SENTENCE— Convic- tion bad — Court oi Appeal may amend 188 see OlTENCKS. 2. Bad — Power of Court to amend 493 x-e Conviction. 4. AMENDED CHARGE— see Magistrate. 1 - 79 AMENDMENT OF CHARGE— Trial- Jury , 258 scu Jury see also Magistkate. 12 405 ■ Spirits - 546 OF CLAIM— Different state of facts — new cause of action 437 see Consular Court. 2. ■ OF DEFENCE— sec Statute of Frauds. 1 - 344 APPEAL— The Cro-wn though not a paj-ty to an — from the decision of a Magistrate nevertheless has a right to be heard on the appeal 238 see Crown. 1. 2. It is not sufficient in a memoran- dum of appeal simply to state that the appeal is for " wi-ong determination in point of Law," but the grounds of ajjpeal should be set forth - 533 see Land. 13. 3. Magisti'ate's decision — conviction quashed — Crown ordered to pay appellant's costs of appeal - 597 see LoTXERY. 2. 4. The only parties to an appeal are the appellant and respondent, the cc^mmit- ting Magistrate has no locus standi 606 see Magistrate. 18. 5. — The warrant under which Police enter a house under Gaming Ordinance, on appeal should be sent up with the stated case 668 see Lottery. 3. APPEARANCE— see Crown Suits 688 APPELLANT — It is not necessary on the hearing of an appeal from the decision of a Magistrate, under the Appeal's Ordinance 12 of 1879, that the appellant should be in Court or within the jurisdiction 638 see Arms and Ammunition. 2. see also Court of Appeal. Magistrates. APPLIANCES OF GAMING— see Police. 2. 240 also Gaming. 5. 615 Lottery. 3 668 APPURTENANCES— .s-ee Sea Shore 10 ARBITRATION— A suit in which the ma,in point was whether the plaintiffs were or were not members of a certain Society of the " Yeoli", tribe or clan, and the object of which suit «as to have a declaration that the plaintiffs were such menibers and for administration of the Society's affairs under the directions of the Court, so that the plaintiffs might enjoy the benefits of the Society, was at the trial by consent of both ARBITRATION— consi'"as to the sixth seventli, eighth, and ninth points, the same was affirmed by the Court of Appeal. Tan- JONG Pagae Dock Co. v. Municipal COMMISSIONEES - 103 ASSIGNMENT— Adm inistration Bond- Probate Act see Administration Bond also Wakopp. 2 ASSIZES— see Attokney-Genl. Jury Magistrates. Witnesses. 1 ATTEMPT— Conviction altered of see Mischief. ATTORNEY-GENERAL— The Attorney- General of this Colony like the Attorney- General of England, has the right of reply, even when no witnesses are called for the defence. Query. Whether the right can be claimed by the Solicitor-General or private Counsel prosecuting foi- the Crown. Regina v. Pantalani • • 6(ir, to 187 568 605 258 560 317 one 250 ATTORNEY-GENERAL— cmiWrnMed. 2. 'The Attorney-General has no power to " direct " the Registrar of this Court to enter up judgment for the Crown in any case whatsoever, and a paper so directing the Registrar to do, was ordered to be taken off the file 688 see Crown Suits. also Charity, 2. .500 ATTORNEY— POWER OF— see Consu- lar Court. 2. - - 437 AUCTION— Purchase of land— conditions of sale — Statute of Frauds 82 see Land 1. also Mortgagee. 2. 359 Land. 12. 453 ATJTHENTIFICATION OF DOCU- MENT— Seal - 150 see Extradition. 1. AUTREFOIS ACQUIT— Plea 472 see Proper Charge. 2. aha Plea in Bar 651 CONVICT- Plea - 651 see Plea in Bar. AVERAGE CONTRIBUTION— see CoN- 528 of 204 TRIBUTION AWARD — Irregularity — misconduct Arbitrators see Arbitration. 1. BADGE — see Hackney Carriage 234 -Arrest on mesne process - secu- BAIL- rity . 1 see Security. 1. 2. Magistrate's Court — a d j o u r n- ments — Supreme Court jurisdiction to order - 287 see Habeas Corpus. 1. also Bond. - 71 BALANCE— seePROMissoRYNoTE. 3. 587 BANGKOK— Defendant resident in— con- tract with plaintiff resident in Singapore — performance . 511 see Contract. 10. CONSULAR COURT— see Con- sular Court. 1. 2. 274, 437 BANK— see Foreign Court ' 570 BANKRUPTCY-The C. M. Bank had branch houses in both Calcutta and Singa- pore. A. purchased a draft in Calcutta of the Bank and endorsed it to the Banurupts in payment of his debt to them. The Bankrupts received the draft before their Bankruptcy, but never presented it for pay. ment : they were at the time of Bankruptcy the holders of the draft. On the adjudica- tion of Bankruptcy, the Bank claimed to set-off the amount of the draft in reduction of their claimagainst the Bankrupts. Held, [reversing the judgment of the Court below] that the above facts constituted a " mutual dealing " between the Bankrupts and the Bank, within Section 41 of the Bankruptcy Ordinance, 1870, and the Bank was entitled to make the set-off, In re Lim Tiang Was 702 INDEX. BANKKUPTGY—continued. ^-En-parte Ohaetebed Mercantile Bank, &c. 281 2. A person examined under Section 26 of the Bankruptcy Ordinance 2 of 1888 as to a debt alleged to be due by hiin to the Bankrupt, is not entitled to the assistance of Counsel ; but the Official Assignee in person, or Counsel in his liehalf, is not by the section, excluded from carrying on such examination. In re Choa Hong - 569 3. The latter part of Sub-section 2 of Section 28 of the Bankruptcy Ordinance 2 of 1888, is limited to the case where the Banki'upt has been reported as having com- mitted some one or more of the oifences previously mentioned, or has omitted to keep proper accounts or traded with know- ledge of his being insolvent or done some one of the other facts set out in Sub-section 3 — and the payment of .50 per cent, is not therefore a sine qua -non to an application for a discharge in every Bankruptoy. la re Frederick Pooles 670 BARRISTER— see Consular Court. 2. - - - 437 BELIEF-— Reasonable and honest 210 scfl Police. 2. BEQUEST— Rule in Wild's Case—liio estate - 584 see Leasehold Property. also Devise 212 • Mahomedan Marriage Ordinance. 2. 265 BIGAMY — A Mahomedan man-ied woman is not exempt from prosecution on a charge of bigamy under Section 494 of the Penal Code. Regina v. Rabia .513 2. Q.uery. Can a Chinamk his receipts therefor in his own name. Held, the carts and bullocks were in the " apparent possession" of the debtor and the Bill of Sale not having been registered under the abovementioned Ordinance, the same was void against the plaintiff, the Execution-creditor, notwith- standing he was aware of the purchase by the claimant of the said cai-ts and bullocks. In an Interpleader case when the Court has a doubt as to the bona fidfs of the sale by the debtor to the claimant, which sale is alleged by the Execution-creditor to be fraudulent, the Cjurt is bound to decide in favour of the claimant, as the person alleg- ing fraud is bound to prove it. Sabapathy Ohbtty v. Sitra Mootar III re Sambh MOORDBB 530 8. A cargo boat or tongkang is a '• vessel" within Sections of the Bills of Sale Ordinance 12 of 1886, and therefore a Bill of Sale by way of mortgage thereof, is not within its provisions. Gapp v. Bond, 19 L. R. Q. B. 200, followed. Nagorb v. Nagobe Gunny. In re Savavathy Ohbtty - 595 9 A Bill of Sale of personal property to secure the re-payment of a loan with interest " within three months from the date thereof," is not contrary to the form in the Schedule to the Bills of Sale Ordinance 12 of 1886 ; and is payable within a " stipulated time" within the meaning of the italicized words in that form. Such a Bill of Sale need not contain an express power of sale — such a power being implied frimi Section 10, Sub-sections 1 and 2 of the Ordinance. Ex-parte, Official Receiver Re Morritt. 18 L. R Q. B. Div. 222 [per Lord Esher, M.R., and Lopes, L. J.], followed. Anamalai Ohbtty v. Kadee Tamby 620 see nlxo Mortgagee. Wakoff, 2. ?,. 568. 675 -Tongkang — " vessel' BOAT— Cargo Mortgage 595 see Bill of Sale. 8. also Collision - - 478 BONA FIDE PURCHASER-VaUiablo consideration — notice - 193 see Company. 1. BOND — A "Writ on mesne process before judgment, was directed to issue under Section 422 B. of the Civil Procedure Ordi- nance, 1878, for the arrest of a defendant and his imprisonment for six weeks, " unless he give security that he wouhl not leave the iuriadiction without the leave of the Court." BOND — continued. The form of such a Writ is No. 63 in the appendix to the amending Ordinance 8 of 1830. The plaintiff thereupon took out a writ in accordance with the repeale 1 form No. 40 in the appendix to the Civil Proce- dure Ordinance 5 of 1878, directing the arrest of the defendant and his imprison- ment for six months, unless he gave security in the sum of $1,200 for his " appearance at any time when called upon, while the suit was pending or until execution fir satisfac- tion of any judgment that might be passed therein against him, and in default of such appearance, for the payment of any sum of money that nmy be adjudged against him in the -said suit with costs, or until he shall otherwise be lawfully delivered from cus- tody." The defendant having been arrested and kept in custody, a few days after was released on bail. The bond which he and his sureties were rec[uired by the Sheriff's bailiff to execute, before releasing the defendant, was in ,?2,000, and after reciting the aforesaid suit and writ, was conditioned to be void, if the defendant, would " not go or attempt to go into parts beyond the jurisdiction of the Court without first sat- isfying the amount of judgment and costs recovei'ed against him in the suit." Tlie defendant and sureties were aware of the terms of the bond and executed the same willingly, they did not then know howevei', that the writ was v^iid or that the security they were required to give, was beyond what the law required under an arrest on mesne process. The plaintiff having there- after obtained judgment with costs, the defendant immediately abscrmded, without paying up any part thereof. The plaintiff' then sued the sureties to recover the S2,000 on the aforesaid bond. Held [1] the writ which had been issued against the defend- ant was void fib initio, as being in contra- vention of the order of Court and not au- thorised by law; [2] that the sureties in the bond were laot estopped by their bond and the recital of the writ of arrest therein, from questioning the validity of such writ, and [3] that the bond was void. — as having been obtained by duress, as the security required of the sureties in order to procure the re- lease of the defendant was more than was required by law, and as the detention of the defendant under the aforesaid writ was illegal and could not be enforced against the sureties by the plaintiff. Chbah Poh Nhoo r. Ong LoonTek & ORs. 71 ■see also Security. 1. 1 BOOK — Entry in Kali's — marriage — con- sideration - . 583 ■■•■ee Marriage Settlement. BOOKS — Evidence — Foreign Law. 630 see Bigamy, 2. INDEX. 705 BREACH or AGREEMENT— Letters- Conditional promises 136 see Agbbbment. 1. ■ CONTRACT— Contract made in Colony — breach committed abroad — determination — law of tlie Colony 136 see Agreement. 1. 2. The plaintift's bad contracted to build certain bouses for the defendant and tbe contract provided inter alvl [Clauses 2 and 3] that the houses should be completed by a given date, and that if they were not so completed then for each day's delay, they would pay the defendant §3 for each house as liquidated damages. By a further Clause [8] it was provided that if the plaintiffs did not continue to execute and advance the works to the satisfaction of the architect, or should delay the same from any other cause than tbe default of the defendant and should continue such default six days or more after notice in writing thereof given to them under the hand of the architect, then in any of those cases the defendant might if he thought fit deter- mine the contract, and in that case all money then due to the jjiaintiils and all penalties for non-fulfilment of contract and all materials, &c., should be forfeited to the defendant. By a subsequent Clause [9] it was provided that in case of any breach of the contract on the part of the plaintiffs, it should be lawful for the defend- ant by writing xxnder his hand to deter- mine the contract without any previous notice to the plaintiffs. The plaintiffs did not complete the houses by the date named, but the defendant consented to allow them twenty days further time by reason of there having been an error in the plans and delay in pointing out the sites of the in- tended houses. On the evidence the Court held the plaintiffs were entitled to further time for certain alterations in the plans and otherwise. After the date named in the contract for the completion of the houses, but before the expiration of the twenty days given by the defendant, and the further time allowed by the Com-t, the architect gave the plaintiffs notice in writ- ing, notifying to them that they were not executing and advancing the works to his satisfaction, and for six days thereafter the plaintiffs still continuing to progress slowly and not to the satisfaction of the architect, the defendant on the date of the expiration of the twenty days' extension given by him, by notice in writing determined the con- tract and stated that he required the plain- tiffs to have forty men a day at work on the buildings. The defendant then pro- ceeded to complete the buildings which cost him more than he would have had to pay the plaintiffs under the contract. The BREACH OP AGREEMENT— codW. plaintiffs thereupon sued the defendant for wrongfully determining the contract, but the Court found on the evidence it would not have been possible for the plaintiffs, progressing as they had done, to have com- pleted tbe buildings even within the further time allowed them by the Court. Under the circumstances — Held, Istly, Clause 9 did not apply to the case of delay in ad- vancing the works which was specially pro- vided for by Clause 8 ; but even if it did it could only do so afjfcer there was a " breach" of the contract, but there could be no " breach" on the score of delay until the requirements of Section 8 had been com- plied with. Held, 2ndly, that if the first part of Clause 8 had stood alone it would have been sutficient for the Court to have before it the certificate of the architect expressing dissatisfaction with the unad- vancement of the works, but as it also pro- vided for delay caused otherwise than by the fault of the defendant, wluch was a provision unclogged with the expression of satisfaction or dissatisfaction by the architect, — and the six days' default after notice applied to both parts — it was neces- sary that there should be a notice from the architect expressing dissatisfaction, but it was the duty of the Court to determine whether the delay had not been caused by the defendant and whether the notice fi'om the architect was under all the circum- stances of the case a reasonable one. Held, 3rdly, that the Coui-t being satisfied there was no delay on the part of the defendant and the architect's notice was a reasonable one, that the defendant had a right by reason of such extension of time to deter- mine under Clause 8 the contract after the date named in the contract and within the extended time ; and the requiring of 40 men to be at work was no waiver of the determination. Wallcer v. L. & N. W. Railway Co., 1 L. R. C. P. Div. 518, dis- tinguished. Held, 4thly, that under the peculiar woi'ding of the whole contract. Clause 8, which provided for the forfeiture of " penalties" on the contract being deter- mined, could only have reference, by the use of the word " penalties" to Clause 3, which was the only clause in the whole contract which provided for a penalty, and as that penalty could only accrue after the date named in the contract for completion, Clause 8 itself implied that it could be enforced after that date, even independ- ently of the extension of time. Held, .5thly, that the defendant having deter- mined the contract prior to the expiration of the extended time, he could not at the same time claim the penalty of $3 per house per day, under Clause 3, which only 706 INDEX. BEEACH OF AGREEMENT— co«<(J. applied to default to complete beyond the given and the extended date ; but be was entitled to damages against the plaintiffs for all moneys spent by bim in completing the houses according to the contract beyond the amount to be paid to the plaintiffs under the contract. On appeal this judg- ment was affirmed. Ung Ah Moi & ORS. V. Hampshiee - 296 3. Where thei-e is a breach of con- tract for the piirchase of shares, Ijut the vendor is able to go into the market and sell the shares at once, his duty is to do so and sue the vendee at law for the difference in price as damages for the breach, but where there is no market for the share, he is entitled to sue the vendee in equity for specific performance of the contract. The defendant agreed to purchase from the plaintiff certain shares in a Tin Mining Company registered in London, the bonght- note was as follows : " Bought from Jos. Heim, Esq., three hundred Bentong Straits Tin Company's Shares £1 paid up at $23|, delivery in about one month on arrival of scrips from London." At the end of the month the plaintiff was unable to deliver the " scrips," but tendered the defendant certain documents in reference to the shares known as " certified transfers" which would have enabled the defendant to have got himself registered in London as the owner of the said shares. Held, that the " certified transfers" enabling registration in London, were not equivalent to delivery of the " scrips" at Singapore, and the Court would not force the same on the purchaser. Hunt V. Gum, 13 C. B. [N.S.] 226, distin- guished. The "certified transfers" were prepared and signed by the Secretary to the Company in London — the name of the transferee was left blank and was subse- quently filled in by the plaintiff [the vend- or] at Singapore. Held, the transfers were void, and the transferee, the defendant, could not be compelled to take them. HihhlewhUe v. McMorine, 6 M. & W. 200 ; and Societe Generale de Paris v. Walker, 11 L. R. Ap. Cas. 20, followed. Heim v. LiM TiANG Hbb - . 465 see also Ageebmbnt. Company. oonteact. Crown Conteaot. 1. 2 . 648, 680 BREACH or THE PEACE— Sem&Ze. There can be no conviction under Section 11 of the Preservation of the Peace Ordi- nance 6 of 1872, without evidence that warning was given, under Section 9, on the occasion of the riotous assembly. A'lthough such a conviction cannot be sustained, yet in the case before the Ooui-t there being BREACH OF THE FmAGE— continued. evidence of riot and other offences, the Court refused to quash the conviction, but under Section 34, Sub-section 2 of the Ap- peals Ordinance 12 of 1879, annulled the proceedings and sent back the case to the Magistrate to be tried again on a proper charge. Query. Whether a Magistrate who sentences a prisoner to six months' impri- sonment under the Preservation of the Peace Ordinance has power to couple with it a sentence of whipping? Regina v. HOBY HOON & OES. 357 see also Recognizance to keep THE Peace. 1. - 276 BREACH OF TRUST— The Indian Act XIII. of 1850 is still law in this Colony and is a " Special Law" within the meaning of Sections 5 & 41 of the Penal Code. Regina v. Overree & anor., 2 Kyshe [Cr. Rulings] 88, followed. Semble. The Cri- minal Procedure Ordinance 6 of 1873 is however applicable to a prosecution under that Act, and the cljarge must, under Sec- tion 59 of the Ordinance, be limited to three charges and not " any number" as provided by Section 11 of the Act. Regina V. RODEIGITBZ - - 323 2. Illegal or fraudulent contract — ■ trust funds - , 409 see ExECtJTOE. 2. BRITISH CONSULAR COURT— see CoNsiJLAE CouET. 1. 2 - 274, 437 RESIDENT OF PERAK— see Extradition. 1. 4. 150, 368 BROKER — Principals— shares — refusal to accept - 561 see Conteact. 13. BROTHEL— A common brothel is not a "public place" within the meaning of Sec- tion 159 of the Penal Code. A person, not an inmate of the place, who is found armed in a brothel is not found " abroad" within the meaning of Section 32, Clause 5 of Ordinance 13 of 1872. Regina v. Cheah Tee & ANOE. - 84 see also Peostitution. 1 385 Conviction. 4. 493 Habeas Corpus. 2. 685 License. 2. 665 BUILDING— see Trespass. 1 443 BUILDINGS-Piinciples of assessment 103 see Assessment. BURIAL GROUND— Charity 100 see Trustee I. — Land. 2 101 BYE -LAW — Police cannot legally arrest a person for a mere bi-sach of— such as over- loading a passenger boat under Harbour Ordinance 8 of 1872 615 see Police. 4. CAPITAL— Interest . 491 see Paetneeship. 2 CARGO — see Bill of Lading - 677 INDEX. 707 CARGO BOAT— Vessel— mortgage 595 see Bill of Sale. 8. Collision 478 CARRIAGE — see Hackney Caeei- ' AGE - - 234 CASE — Supreme Court — withdrawal — post- ponement, &c. - 345 see Oedek of Hearing. also Crown Suits 688 CASE STATED— Parties to the Appeal 606 see Magistrate. 18. 2. Magistrate ordered lo pay costs on rule being made absolute - 606 see Magistrate. 18. 3. In Gaming Oases, warrant on which Police act should be sent up with appeal - 668 see Lottery. 3. CASES — Abdulrahimv, Drahmanll Kyshe, 171]. followed - - 225 see Mahomedan Married Wo- man. 3. ; Abud V. Biches [2 L. R. Ch. Div. 529], distinguished - 433 see Malicious Prosecution. Armstrong v. Lewis [2 Or. & M. 27], distinguished - - 186 see New Trial. 1. Barren, Ex-parte [10 L. R. Oh. Ap. 512], distinguished - 251 see Contract. 4. — — Blake v. White [1 Y. & 0. Ex. Eq. 421], distinguished - - 559 see Creditor. 2. Bryson v. Russell [14 L. R. Q. B. 720], distinguished 240 see Police. 2. Calvert v. Sehhon [4 Beav. 222], follow- ed - ... 88 see Legacy. — Carlos V. Fancourt [5 T. R. 482], follow- ed 181 see Agreement. 3. Cartan v. Meenachee [3 Kyshe, 151], over-ruled - - 188 see Offences. Cattliny. Brown [11 Hare, 372], follow- ed - 212 see Devise. Chawana Mahomed HussHn v. Maho- med Mustan [infra — p. 1], followed- 240 see Police. 2. Choa Choon Neoh v. Spottiswoode [1 Kyshe, 216], discussed 329 see Guardianship. Chooashary v. Cassim [3 Kyshe, 98], followed 230 see Labour. 1. Compton V. Bloxham [2 Coll. Ch. Rep. 201], distinguished - - - 88 see Legacy. Coohe V. Eshelby, 12 L. R. Ap. Ca. 271, considered - 561 see Contract. 13, CASES — continued. DobUns' Settlement, Be [57 L. T. [N. S.] 277, s. c. 56 L J. Q. B. 295], followed 399 see Bill of Sale. 4. — — Doe d Cross y. Cross [8 L. R. Q. B. 714], distinguished ----- 178 see Declaration of Trust. : Eaton V. Storer [22 L. R. Ch. Div. 91], followed - - 416 see Reply. Edlin V. Battaby [2 Lev. 152], follow- ed .''-.. 416 see Reply. Edwards v. Edwards [2 L. R. Ch. Div. 291], followed - - - 530 see Bill of Sale. 7. ■ Ferguson v. Ferguson [10 L. R. Ch. Div. 662], distinguished - - - 433 see Malicious Prosecu- tion. Finch, Be [23 L. R. Ch. Div. 267], observed on .... 311 see Limitation. 1. Flower v. Local Board of Low Leyton [5 L. R. Ch. Div. 347], followed 484 SC6 Contract 9. Freemany.Bosher[}3'L. R. Q. B 780], followed - 319 see Agent. 1. Fuller v. Abrahams [3 Bro. & Bing.116], followed - ... 359 see Mortgagee. 2. Gan Kim, Swee v. Lee Ah Kee [infra— ' p. 138], not followed - 136 see Agreement. 1. Gregory v. Hurrill [5 B. & C. 341], not foUowed - - - 136 see Agreement. 1. Gunn V. Boberts [9 L. R. C. P. 331], followed - ... 679 see Shipping. Hammond v. Smith [33 Beav. 452] followed - - . 136 see Agreement. 1. Sibblewhite v. McMorine [6 M. R. Q. B. 788], distin- giiished - - 214 see Police. 1. Morritt, Be [18 L. R. Q. B. Div. 222], followed 620 see Bill of Sale. 9. ' Municipal Commissioners v. Chuah Seng & ors. [3 Kyshe, 140], considered 401 see License. 1. Official Receiver, Ex-parte [18 L. R. Q. B. Div. 222], followed - - 620 see Bill of Sale. 9. Olley V. Fisher [34 L R. Oli. Div. 367], considered - 251 see Contract. 4. Ong How v. Abdulrahman [Str. L. R. 354], followed 230 see Labour. 1 . — — Opiiim Farmer v. Koh Boo Ann [Str. L. R. 278], over-rnled - 188 see Offences. Oriental Inland Steam Navigation Co. v. Scinde Railway Co. [9 L. R. Ch. Ap. 557], followed - 570 see Foreign Court. Palaniapah Chetty v. Lim Poh [1 Kyshe, 548], distinguished 6 see Promissory Note. 1. Palmer v. Temple [9 Ad. & E. 508], followed - ... 251 see Contract. 4. Pearks v. Moseley [5 L. R. Ap. Ca. 714], followed - 212 see Devise. Pwnghulu Allang v. Him [3 Kyshe, 144], dissented from 238 see Crown. 1. Quarrier v. Colston [1 Phil. 147], applied - - - 126 «ee Lottery. 1. ' Regina v. Ahass [3 Kyshe, 184], dis- tinguished - - - 237 see Gaming. 1, CASESi— continued. Begitia v. Britileton [12 L, R, Q. B. Div 266, s.c. 50 L. T. [N.S.] 276], follow- ed - - - - - 122 see Mahomedan Married Woman. 1. V. Dunn [12 Ad. & B. 617, 619], followed - 276 see Recognizance to keep the ■ V. Kadir [2 Kyshe [Cr. Rul- ings] 105], over-ruled - 162 see Married Woman. 2. V. Ooi Km [3 Kyshe, 119], over-ruled - 188 see Offences. V. Overree & a/nor. [2 Kyshe [Cr. Rulirigs] 88], followed - 323 see Breach of Trust. 1. — V. Shaik Ishmael Lebby [3 Kyshe, 199] dissented from 238 see Crown. 1. V. Thompson [1 L. R. C. C. R. 377], followed - 122 see Mahomedan Married Woman. 1. V. Weil [9 L. R. Q. B. Div. 701], followed- .- - 368 see Extradition. 4. Roe d Dodson v. Orew, 2 Wils. 322, followed 608 see Testator. 3. JBoss' Trusts, Re [13 L. R. Eq. 290], followed - - 325 see Intestate. Sayers v. Collyer [28 L. R, Ch. Div. 103], considered - - 251 see Contract. 4. Seaton v. Seaton [36 W. R. 865], followed - ... 416 see Reply. Selmes v. Judge [6 L. R. Q. B. 724], distinguished - - 214 see Police. 1. Societe Generale de Paris v. Walker [11 L. R. Ap. Ca. 20], followed 465 see Breach of Contract. 3. Tanner v. Sinart [6 B. & C. 603], followed - 136 see Agrhement. 1. Taylor v. Caldwell [32 L. J. Q. B. [N.S.] 164], distinguished - 158 see Contract. 3. Thomas v. Brown [1 L. R. Q. B. 714], distinguished - . 251 see Contract. 4. Walker v. London & K W. Rail- way Co. [1 L. R. 0. P. Div. 518], distin- guished . . 296 see Breach of Con- tract. 2. Warner v. Jacob [20 L. R. Ch. Div 220], followed - - 359 see Mortgagee, 2, INDEX. 709 CASES — continued. Wild's Case [6 Coke's Rep. 17], ob- served on - - 584 see Leasehold Propekty. Yeap Cheah Neoh v. Ong Cheng Neoh [6 L. R. F. 0. 381, s.c. 1 Kyshe, 326], discussed 329 see GiTAEDiAisrsHlP. Yorkshire Engine Co. v. Wright [21 W. R. 16 — dictum, of Bi'amwell B.], ap- proved of, and followed - 1 see Sbcubity. 1. CATTLE DISEASE— The words " or any other disease" in the Order in Coimcil of 7th August, 1889, [Govermment Gazette, 1889, p. 1480] made in pursuance of the Quarantine and Prevention of Disease Ordinance 19 of 1886, Sections 4 and 5, must be read as limited to " disease" as defined by Section 3 of the Ordinance ; and before there can be a conviction for a breach of the Order in Council, the prosecution must shew the disease to be of an " infec- tious or contagious nature." At the time of the ti'ial, the Veterinary Surgeon who had examined certain cattle of the defend- ant was dead. The prosecution however, pi'oved that the Surgeon after such examina- tion pronoxTnced in the presence of the defendant and the prosecutor that the •disease was " cattle plague." This expres- sion of opinion was in English and though made in the defendant's presence was not understood by him. HeW, the evidence was inadmissible both on this gi-ouud as well as on the ground that it was merely hearsay, and the Surgeon who had expi-essed the opinion being dead, could not be cross- examined, Pendek '0. Broadbick 666 CAUSE OF ACTION— PlaintifE— resi- dence — debt — jurisdiction - 136 see Agebembnt. 1. CERTIFICATE OF JUDGMENT— Proof —seal 570 see Foreign Court. CERTIFIED TRANSFER— S crips— shares — Company - 465 see Breach of Contract. 3. CESTUIS QUE TRUST— see Company. 1. - - - 193 see Trustee. 1. - - 100 CHAMBERS- Magistrate sitting in, — when in summary jurisdiction bound to hear case in open Court - 350 see Magistrate. 8. - also Justice OP the Peace - 151 — Magistrate 16. 589 CHANCERY DIVISION— see Contract. 4. . . . - 251 CHANDU— Section 5 of the Excise Ordi- nance 4 of 1870, gives no .discretion^ to the Opiiim Farmer as to whether he will sig-n an export permit brought to him for signa- CHANDU — continued. ture, or not. He is bound by the section to sign it, and his refusal to do so is ground for an action in damages as at Common Law, and it is not necessary to allege or prove malice on his part under Section 88. Wee Swee Hin v. Opium Farmer 527 2. "Opium Pills" are "Chandu" within the Excise Ordinance 4 of 1870. A " recognised druggist " under Section 13, is a person " recognised " as such by some authority. Opium Farmer v. Lee Ho Nam - - - 557 3. The " Chinchew " or Nakodah of a ship on board which some illicit chandu is found in a box which is in no way shewn to be his, is not to be "deemed to have imported " the chandu within Section 7, Clause 2, simply because he is the responsi- ble person on board, and the ownership of the box cannot be traced to any other person Ing Ah Meng v. Opium Farmer 627 see also Ceovtn Contract. 1, 2. 648, 680 Excise 321 CHARGES — Limited to thi-ee committed within one year of each other - 188 »ee Offences. CHARGE WITHDRAWN— Discharge of prisoner — ^not triable a second time 556 see Acquittal. CHARACTER— Security to be of good behaviour without evidence as to — 375 gee Magistrate. 9- CHARITY— Bui-ial ground 100 see Trustee. 1 2. The "Seh" or tribal Kongsis in these Settlements are public charities and the Attorney- General is the only person who can sue in any suit relating to them. The objection that the Attorney- General ought to be such a party is fatal, although the suit may have proceeded through vai-ious stages and even to final judgment and appeal. Such an objection cannot be waived by the parties to the suit. Query. If a Judge after reserving judgment in a civil suit, reads papers touching on the mattei-s in question in the suit, which are found among the cause papers, but were not put in evidence at the trial, what would be the effect of such an act on the verdict ? Would it make any difference if there is sufficient evidence to support the verdict, independently of the matters mentioned in such papers F The Court of Appeal how- ever refused to draw the inference that a Judge had so read such papers, merely because certain dates and one or two im- material expressions were found in hia judgment, which dates and matters to which such expressions referred, could not be found in the evidence laid before him at the trial. The Registers kept by the Pro- 710 INDEX. CB-ABITY— continued. tector of Chinese as Registering Officer under the late Dangerous Societies Ordi- nance 19 of 1869 are not admissible in evidence on their mere production by that Officer when he is unable to speak to the matters contained in them. Yeoh Him & okS. w. Teoh Cheng Kang & obs. 500 see also Devise 212 Land. 2. 101 ■ ■ Wakoff. CHARTER or 1855— Native laws and customs 329 see GrUABDIANSHIP. CHATTELS REAL— see Heir 119 see Limitation. 1. 311 Mahomedan M a b r I b d Woman. 3. 225 CHEATING— Before there can be a con- viction for cheating under Section 417 of the Penal Code, there must be conclusive evidence of a dishonest intent at the time of obtaining the money or goods ; where the evidence does not necessarily shew a dishonest intent at the time, but is con- sistent with such either being or not being the fact, no conviction can be had. Where therefore the prisoner obtained a sum of money from the prosecutrix, promising to give her a shai-e in a boat or tongkang belonging to him, and to let her hold the certificate of registration of the boat — but a few days after excused himself for not giving the certificate on the ground that her share was a small one, and a few days later on declined to admit she had a share at all, and denied receipt of any money. Held, as the evidence was consistent with a dishonest intent at the time of obtaining the money, as also with the denials being due to a subsequent change of mind, a con- viction for cheating under Section 417 could not be sustained. Lee Kang Wye V. Ng Ah Min - 335 2. To bring a person within Section 415 [cheating] of the Penal Code, it is necessary to shew that he intended to cause damage or loss to the person he was deceiv- ing. Where, therefore the prisoner, belong- ing to a Foundry Company was desirous of procuring certain firebars from the prose- cutor's firm, a rival Foundry Company, but knowing the prosecutor's firm would not supply them to his [prisoner's] firm, he went to the prosecutor and ordered the firebai's, telling the prosecutor they were wanted by one A. H. [which was false] — but on the firebars being subsequently manu- factured, the prisoner asked for them and offered to pay pro^eeutor their costs, but the prosecutor then for the first time sus- pecting they were not wanted by A. H. did not deliver them or take payment, and having afterwards found from A, H. that CHEATING— comfi'rtMec?.. the prisoner's statement was false, prose- cuted him for cheating, and the Magistrate convicted the prisoner under Section 417 of the Penal Code. Held, on appeal, the con- viction could not be sustained, and it was accordinglyquashed. Johnson'u. MoLaety & OBS. . . - - - 430 CHIEF POLICE OFFICER— see Police. 2. - 240 CHILD— Custody of— - - 385 see Pbostittjtion. 1. CHILDREN- The word " children " in a Will, means children born in wedlock ; but if from the context or in the surrounding circumstances, the word is shewn to have been iised by the testator in a broader sense, such wider meaning will be given to it so as, if necessary, to include illegitimate or even adopted children. A subsequent ambiguous clause in a Will, which is somewhat incon- sistent with a previous unambiguous clause, does not necessarily revoke or modify the previous clause, but the Court will, if possi- ble, place such a construction on the ambi- guous clause so that the two may stand together. A testator, a Chinese domiciled in Singopore, made a Will by which, after directing all his just debts, funeral and testamentary expenses to be paid by his Executrix as soon as conveniently may be after his decease, gave, devised, and bequea- thed all his household furniture, wearing apparel, chattels and other effects, and also all and every sum or suras of money which might be found in his house or be about his person, or due to him at the time of his death, and also all his stock, fund, rent and securities for money due on bonds, bills or notes or other securities, and aU and every other his estate and effects whatsover and wheresover, whether in possession or rever- sion, remainder, or expectancy, unto his ''wives or widows and children both in Singa- pore and in China." The testator then nominated, constituted and appointed his widow [in Singapore] to be the Executrix of his Will " and to make also a remittance of money to his wife or widow and son in China, one-fourth [J] part of the residue of his estate." The testator at the date of his Will and time of his death had two wives [one in Singapore and one in China]— a daughter of his own in Singapore [who had since died leaving a husband but no issue] — an adopted son in Singapore [since de- ceased] — and two adopted sons m China. He had no sons of his own, either in Singapore or China. From the evidence it appeared that the position of adopted children was the same in all Chinese fami- lies and in ordinary language they would be included in the word " children," and it was not usual to make a distinction between INDEX. 711 CRILDR^N—eonthmed. those born in wedlock and those adopted. Held [by Fard, Acting C.J. and affirmed by the Court of Appeal], that the word " children " in the Will included the adopted sons both in Singapore and in China ; and that the clear language of the first part of the Will, giving the " children" all like shares was not cut down by the latter ambi- guous words as to " one-fourth part of the residue" — which latter clause indicated the class to be benefited, but applied — only to a " remittance" to be made [in part execu- tion of the genei-al bequest] to support the China wife and adopted sons, pending the winding-up of the Estate. Quaik Kee Hock v. Wee Gbok Neo - 128 2 Descendants — Statute of Distribu- tions 325 see Intestate. also Land. 2. 101 CHINESE LAW AND CUSTOM— see Bigamy. 2. 630 Charity. 2. 500 Children. 1. 128 Conviction. 4. 493 ■ DistreSiS - ■ 97 Habeas Corpus. 2. 685 Intestate. 325 Trustee. 1. 100 ^ — Widows - 380 CHINESE PKOTBCTOR— see Charity. 2. 500 Habeas Corpus. 2. 685 ■ also Immigration 604 - IMMIGRATION -see Immigration ORDL NANCE — see Immigration 604 CLAIM — Amendment of statement of — different state of facts — new cause of ac- tion - ■ 437 see Consular Court 2. CLAIMANTS— see Bill op Sale, 7. 530 CLASS OF THE PUBLIC— see Gaming. 4. 6. 518, 615 CLUB — Feast — guests — ^public or class of the public — Private house-518, 615 see Gaming. 4. 5. QO-DEFENDANT— Non-service of pro- cess — progress of suit 409 see Executor. 2. * COLLECTOR OF LAND REVENUE ^ see Land. 9. 13. 413, 533 COLLISION— When a vessel runs foul of a stationary object, the presumption is that she is in fault, and the burden is cast on her to repel the presumption. There is no rule or regulation in force in this Colony ren- dering it obligatory on tongUangs lying alongside vessels for purpose of discharg- ing or relieving cargo to carry lights. The plaintiff was the registered owner of the tongkang, but at the time of action brought, had ceased to be the true owner COL'LISIO'R— continued. he having sold the tongkang to one M. who brought the action in the plaintiff's name, and at the trial personated the plaintiff and gave evidence under that name. On en- quiry into the damages 'before the Registrar these facts came to light, whereupon the defendant moved to stay all further pro- ceedings in the action and costs to be paid by M. — M. moved that all proceedings might be amended by the substitution of his name for the jjlaintifE. Held, however wrongly M. had acted, yet as to the merits of the case it was absolutely of no conse- quence who was the real plaintiff, or by what name he called himself, and no possi- ble injury or inconvenience co\ild be caused to the defendant by allowing the amend- ment — the proceedings therefore shoidd not be stayed, but leave given to amend by substituting the name of M. for the plaintiff, on M. paying tbe defendant the costs of his application. Payna Emamsah •y. The Glenpalloch 478 COMMERCIAL LAW— see Trade-Mark. 1. 2. 3. - - 269, 394, 403 COMMISSION— Executors in this Colone have a right of retainer, out of the estaty of their testator, for disbursements made by them and for commission due to them for administering the estate in preference to creditors of the estate. Wee Nga Neo V. TbO KiAN GUAN & ANOR. 558 2. — ' — Evidence — proceedings - 677 see Bill op Lading. also Legacy. - - 88 COMMITMENT— Warrant of— Certificate — Judicial document - 150 see Extradition. 1. COMMON GAMING HOUSE— see Gaming. -^^^ Lottery. 2.3. 597,668 LAW — Equity — Probate Division of the High Court of Justice in England — Common law — Equity — Jurisdiction 251 see Contract. 4. COMPANIES' ORDINANCE 1889— see Foreign Court - 570 COMPANY- It is not sufficient that Pro- moters and Directors of a Company, or partnership, or person, standing in a fidu- ciary relationship, to have pui-chased for themselves property of the Company, or partnership, or of which they are the Trustees at its actual mai-ket value ; it is also necessary that they should have done so with the full knowledge and consent of the shareholders, partners, or cestuis que trust, and have first placed themselves ab- solutely at arm's length from the vendors : otherwise, the shareholders, partners, or cestuis que trust [the vendors] are entitled to follow their property and recover it back for themselves. Such Promoters, Directors 712 INDEX: COMPANY— continued. or Trustees are bound to disclose all infor- mation tliey may acquire as to the property, to the shareholders, partners, or cestiiis que tmst ; and to give them the fullest explana- tion relating to it. If such Promoters, Directors or Trustees purchase such pro- perty without acting as abovestated and afterwards sell the property to third parties who had notice of their position and cii'- cumstances— but aftei'wards re-purchase it from them for themselves [the Promoters, &c.,] at a, higher figure — they will not be allowed to deduct as against the share- holdei's, partners, or cestuis que trust, the amount they so paid in excess of the s\im they had sold it to such third parties for. Had the third parties sold to bo7idfide pur- chasers for valuable consideration without notice, it would have been different. Query. Whether the third parties with notice, are liable to refund the excess to the Pro- moters, Directors or Trustees arising from a failure C'f consideration by reason of the shareholders, partners, or cestuis que trtist recovering back such property f Where therefore the defendants as Promoters and Directors of a land speculating Company or partnership acquired for themselves a valuable portion of the land at its actual market value, but unknown to the share- holders or partners, — and afterwards sold a portion of such land to third pai-ties who were aware of their position and the cir- cumstances of the whole transaction — but subsequently re-purchased the portion from such third parties for a sum in excess of the amount they had sold it to them. Held, the shareholders or partners the plaintifEs, were entitled to follow and reco- ver back the land in the hands of the defendants, and were not bound to refund to the defendants the sum so paid in excess by them to such third parties. Habib Abdul Rahman k anor. v. Abdul Cadbe & ANOE. - - 193 2. ■ Pui-chase of shares — duty of vendor — vendee — specific performance 465 see Beeach op Contract. 3. 3. Payment suspended — sale of shares — fraud 644 _ see CoNTEACT. 12. 4. Faihire — Broker — principals — shares — refusal to accept 561 see CONTEACT. 13, 6. Effect of Companies Ordinance 5 of 1889 — Trust — equal distribution — as- sets - - 570 see FoEEiGN Coukt. .966 a?so Ageeement 1. 1.36 Beeach op Con- TEACT. 3. - 465 — Contract. 3. 11. 12, 13. . 158, 612, 5H 561 COMPENSATION— Improvements 409 866 Executoe. 2. also Reply 416 COMPETENT COURT— Selangor— deci- sions recognized 570 see FoEEiGN Couet. CONDITIONAL PROMISE— Ability to pay^breach of agreement - 136 see Agreement. 1. CONDITIONS guage OF SALE- see Land. 12. also Land. 13. -English lan- 453 633 CONSTBUCTIYE NOTICE— 8 6e Re- ply 416 CONSULAR COURT— Though the Su- preme Court is a Superior Court to the Consular Court at Bangkok, in the sense that it is a Court of Appeal under the Order in Council of 1866, yet it does not possess in relation to that Court all the powers of the Court of Queen's Bench in England. It has therefoi-e no jiu-isdiction to issue a Writ of Mandamus to that Court. Mabeable v. Satow - 274 2. Rule 211 of the Bz-itish Consular Court in Bangkok, requires the Consul to exercise a discretion, as to whether he will file or not a power of attorney given by a suitor in the Court to a Barrister to appear for him as Counsel in a cause — and his exercising that discretion and filing or re- fusing to file the power is not merely a ministerial act. The law to be deduced from the existing authorities on the sub- ject is, that upon grounds of general pub- lic convenience a Judge is not liable in the form of an action for damages for acts done or words spoken in his judicial capa- city, unless such acts or words are done or uttered without jurisdiction and with knowledge of such want of jurisdiction. The principle also covers things omitted to be done. Although the form of a special plea is the usual one by wliich a defence that the defendant acted judicially is raised yet when the facts in the statement of claim shew a state of things upon which the legal question can be at once raised, a demurrer thereto is not only allowable, but the better form of proceeding. An amend- ment which will amount to a different state of facts from those in the statement of claim a,nd disclosing a new cause of action —and fresh facts being admittedly intended to be inserted without ref e]-ence to the plain- tiff who is out of the jurisdiction- will not be allowed. Michell v. French - 437 CONTAGIOUS DlSEASE—sc. Cattle Disease gge CONTRACT— Saleof land— plaintiff— Sta- tute of Frauds ... yo see Land. 1, INDEX. 713 CONTRACT— coH^iintcd. 2. Made in Colony — breacli commit- ted abroad — law of Colony — determina- nation lo6 see Agreement 1. 3. A contract by whicli two firms agree to divide a work between tKem, so that the one should not interfere or compete with the other, is not void as being in res- traint of trade. A contract between A. & B. by which A agrees to indemnify B. for all losses occasioned to him by the interference of a third party over whom he [A.] has no control — is not void, as being impossible of performance by A. by reason of such third party persisting in interfering with B. • Taylor v. Caldwell, 32 L. J. Q. B. [N.8.] 164, distinguished. OaiiBESAH & Co. v. Mahomed Eusoep Sc Co. 158 4. If a contract for purchase contain no clause providing for the forfeiture of the deposit on breach by the purchaser, but provides agenei'al penalty for breach of the contract, such latter provision excludes the idea that the parties intended the deposit to be forfeited and no forfeiture will be allowed. Thomas v. Brown, 1 L. R. Q. B. Div. 714. and ex-jmrte Barrell, 10 L. R. Ch. App. 512, distinguished. Palmer y. Temple, 9 Ad. & E. 508, followed. Semble. Al- though there might be good reason for considering that Sections 13 and 14 of the Courts Ordinance 3 of 1878 do not confer on this Court all the jurisdiction and powers of the Probate Division of the High Court of Justice in England, yet there is no reason for restricting Section 10 of that Ordinance in respect to powers and jurisdiction vested in such High Court of Justice in matters of Common Law and 'Equity — and this Court therefore might award damages in lieu of decreeing specific perfoi'mance, as might be awarded by the Chancery Division of the High Court of Justice under Lord Cairns' Act [21 & 22 Vic. c. 27] and the Judicature Acts. Semble. If in a suit for specific performance, the Statute of Frauds would be no bar by reason of part per- formance — the Statute would be for the same reason no bar to this Court awarding damages under the aforesaid Section 10 in lieu of such specific performance. Bayers V. Collyer, 28 L. R. Ch. Div. 103 ; L>'wers v. Earl of Shaftesbury, 2 L. R. Eq. 207. and Olley V. Fisher, 31 L. B. Ch. Div. 367, considered. Tan Seng Qui v. Palmer 251 5. Principal — Agent 319 see Agent. 1. 6. Illegal or fraudulent — trust funds 409 .s<'« Executor. 2. 7. A contract formed by the tender by a person for a lease of a Bath House or Market and its acceptance by the party C ONT'RA.CT— continued. calling for the tender, is a contract which confers an interest in land, which interest cannot be put an end to by re-entry, unless the tender so provides. A contract for " Market Stalls " is a contract for the supplying of the stalls to the market and not merely of the market square, or a space in which stalls might be erected. Where tenders were called for three distinct sub- jects as a Bath, a Market and a Public La- trine — the tei-ms of holding of which differ according to the particular subject-matter — it is improper to include them all in one subsequent lease ; and the person sending in the tender is not bound to accept such lease Where it cipjjeared that the tenders provided that the person sending it would enter into a formal lease " with similar conditions to those at present in existence " and it appeared that as regarded the Bath there was a previous lease in existence, but as regarded the Market and Latrine there never had been such lea.se or condition. Held, that one lease of the three subjects containing covenants and conditions which were in existence only as to the Bath, was not a lease as regarded the Market and Latrine, which the person making the tend- er was bound to accept. Mootoo v. Muni- cipal Commissioners 446 8. A person who agrees to sell to another a certain quantity of goods which he has to procure from abroad, is not at the time he tenders the other goods, bound to inform that other that he has imported more of like goods and jDlaced them in the market, and he commits no fraud in with- holding such information. Where a con- tract stated that it was for " 25,000/30,000 cases Kerosine oil," and it being shewn by evidence that the expression meant from 25,000 to 30,000 cases. ILAd, the fact that the d"f ndant made the proposal to purchase that quantity was material, and his proposal having been accepted, he was bound to accept th.efu'1 30,000 cases if the vendor tendered him that quantity. In such a confauct the option is with the vendor as to whether he would only deliver the 25,000 cases or the larger number of 30,000. Brandt & Co. v. Goh Guan Lu - 481 9. The defendants were a Corpora- tion constittited under Ordinance 9 of 1887, and were in possession [how it did not clearly appear] of a Town Hall the lower portion of which for many years had been fitted up as a theatre. It was considered advisable to replace the old scenery with new ones, and with that view the defend- ants through their Secretary wrote a letter to a gentleman in England ordering such new scenery. To meet the cost of such scenery they had passed a vote of |1,000 714 INDEX. CONTRACT— coiiiiimecJ. from the Municipal Funds on their Budget for the present year which had been duly sanctioned by the Governor in Council in accordance with the Ordinance — by a sub- sequent vote they proposed to apply a further §260 of such funds towards such cost, — this S260 being transferred from another vote for a different matter which had also been sanctioned. The defendants were about paying this !ijl,260 to meet the said cost when the suit was begun at the relation of a rate-payer seeking to restrain the defendants from applying the said funds towards paying for the cost of such new scenery. Held by the Court of Appeal [reversing the judgment of the Court below] following Flower v. Local Board of Low Leyton, S L. R. Ch. Div. 347, that Section 259 of the aforesaid Ordinance incorporat- ing therein Section 44 of the Police Ordinance 1 of 1872, did not apply to such a suit, and it was not necessary for the plaintiff to allege or prove "malice and want of reasona,ble and probable cause " on the pai-t of the defendants in passing such votes and proceeding to make such payment. Held further by the Court of Appeal [Pellereau & Goldney, J J., Wood, Acting C.J. dissent- ing] — reversing the judgment of the Court below that the purchase of such scenery for the hall, for the theatre, for the benefit of the public was not a j)roviding for the "convenience" of the public within Section 56 of the said Ordinance and that an injunc- tion should be granted restraining the defendants from so applying the aforesaid funds towards the purchase of such new scenery. Reld further [by Goldney, J.] that the contract for the pmxhase being over §200 in value, but not being under the seal of the defendant-Corporation, was not a contract of the Corporation, and on that gi'ound alone an injunction should have been granted. Semble [per Pellereau & Ooldney, J.J. — Wood, Acting O.J. dissenting] that the defendant-Corporation could not under- take to have a theatre [as a condition to their holding possession of the Town Hall] unless such an undertaking was within their powers under the Ordinance which it was not. Attoenby-Genekal v. Municipal COMMISSIONEBS - - 484 10. The defendant, a resident of Bangkok, made a contract in Singaporp with plaintiff, a resident of Singapore, for the sxipply at Bangkok of certain number of cattle and that payment should be made there. The plaintiff began a,n action on the contract in Singapore, and on affidavit that the contract was made in Singapore obtained an order under Section 6t> of the Civil Procedure Ordinance, 1878, to serve the writ of summons at Bangkok, Service was CONTRACT— cowiintted. thereupon effected at Bangkok, whereupon the defendant moved to set aside the order. Held, the contract was one to be performed- in Bangkok, and as the witnesses would necessarily be there, leave to serve the writ of summons should not have been granted and the order was accordingly discharged-. MANANONDU & Co. V. POONASAMY NaIKIT & Co. - - 511 11. A person who conti-acts for the purchase of "transfer and scrip," cannot be compelled to take a " bearer- warrant." There is no rule of law like the sajdng "Silence gives consent" applicable to mercantile contracts ; and an omission to reply [in connection with such a contract} does not constitute a waiver. Under a contract for scrips for Mining shares " ex- pected to be mailed about the end of March," and which if mailed would have arrived on 23rd April, it is not a delivery within a reasonable time, to have the scrips mailed early in April, and to offer them on 15th May. Peasek v. Everett - 512 12. If a person having actual know- ledge — not mere suspicion — that a Company has suspended payment, sell shares therein to another knowing that other was ignorant of that fact and not disclosing it to him, but representing that the financial position of the Company was sound and that large profits would accrue from a purchase of such shares, the sale will be set aside by the Court as obtained by fraud and mis- representation. Simons v. Tbo G u a n Tye . 544 13. A broker being instructed by three distinct principals to sell three dis- tinct sets of shares in a Company, sold the shares in a lump to the defendant ; and he and the defendant signed one contract for the sale and purchase of the whole number of shares. This contract the broker signed as " broker" — the defendant knew this, but never enquired who the principals were or how the total number of shares was made up. On the whole number of shares being tendered, the defendant declined to accept them as the Company had failed. The one principal then sued the defendant on the contract for the number of shares he had ordered the broker to sell and recovered judgment. Another principal then sued the defendant on the contract for the num- ber of shares he had ordered the broker to sell, and the third principal also sued the defendant on the contract for the number of shares he had ordered the broker to sell. Held [by Wood, J.] that there were three distinct contracts on the one paper, and each principal as he came to light was en- titled to sue on the contract in respect to the number of shares in which he was Index. 715 CONTRACT— conimueii. interested. Held on appeal [the Conit being equally divided] — per Pellereaii, J. — That thefe were three distinct contracts ; that the broker having signed as such, the defendant knew he was acting for one or moi-e principals — that not havmg enquired, he was fixed with knowledge of the true relationship of the respective principals and the broker — that the rule in Cooke v. Eshelby, 12 L. R. App. Cas. 271, applied to the case of several principals as also to one principal, and also to the interests of each respective principal — ^that each principal was entitled to sue alone in respect of his number of shares — that the judgment for the one principal was liOt res judicata as to the others, and that he was entitled in so suing in respect of his number of shares, to ' rely on the contract made by the broker, and there was no variance between the conti-aot he so sued for and the contract made by the broker which he adduced as evidence of contract. Per O'Malley, O.J. — That there were no grounds for objecting to want of parties in such an action, nor was the judgment in the suit by the one principal res judicata, in respect to this action by the other principal^jut this action being in respect to certain only of the shares was not maintainable by proof of the contract for the whole number of shares, as the contract made by the broker was for a larger number of shares and such a contract was not the contract the plain- tifE-principal had authorised him to make ; that the contract that the plaintiff-principal had authorised him to make was only a contract for a less number of shares, but that was not the contract the defendant had bound himself by as he had contracted for a larger number of shares — That there was therefore a variance, and the action must fail, and that Coohe v. Eshelby [supra] did not apply to such a case. The Court being equally divided, the judgment in the Court below stood affirmed with costs. Caee v. Teo Guan Tye - - 561 14. A contract to build a " suitable house" is too vague and uncertain and cannot be specifically enforced by this Court nor can damages be awarded - 583 see Marriage Settlement. see also Agreement. Breach of Contract. ■ -Company. Creditor. 2. 559 Crown Contract. 1. 2. - 648, 680 Laboitr. Lottery. 1. - 126 CONTRACT OF SERVICE— see Labour. PRIVITY OF— see Privity OF Contract - 338 (:!ONTRADICTORY STATEMENTS— Crown ■ - 260 see False Evidence. — — also Limitation. 1. 311 Reply 416 CONTRIBUTION— The law of general average contribution, which is derived from the Civil Law and has become part of the Common Law, imposes on the Master of the ship the dvity of having the contribution settled, and of collecting the amounts. This duty is thrown upon him as agent for the owner, and the owner is liable to a shipper of goods if the Master neglects his duty. It is not necessai-y in an action to enforce such duty to shew the nationality of the ship. Sted Hassan Bin Omar Al Hadebd v. Khoo Soo Tjio & ORS. 628 CONTRIVANCES— see Police. 2. 240 OONVKNIBNCB— see Contract. 9 484 CONVEYANCE— Costs - 359 see Mortgagee. 2. also Declaration of Trust . . 178 BEFORE ADMINISTRA- TION — see Mahomedan Married Woman. 3. - - - - 225 DEED OF — Acknowledg- ment by Married Woman — Construc- tive Notice - . - 416 see Reply. CONVEYANCER— The terms " Convey- ance" and Conveyancer" in Section 26 of the Civil Procedure Ordinance 5 of 1878 has a larger meaning than its more strictly pi'of es- sional sense. Where therefore the defendant in expectation of a fee or reward drew a Will relating to real or personal estate for another. Held, he was liable to a penalty under Section 26. Vaughan v. D' Silva 286 CONVEYANCING AND LAW OPPRO- PERTY ORDINANCE— see Mortgagee. 2. 8. 359, 663 CONVICTING MAGISTRATE— Appeal Court — power to send case back to other than - - . 392 see Gaming. 3. CONVICTION— Alternative— one sen- tence for two offences — Ooui't may alter — evidence - . 188 see OffenceS- 2. One and same state of facts — of- fering gratification . . 350 see Magistrate. 8. 3. • Maintaining obstruction . 431 see Verandah. 4. A conviction of bffences in the alternative is bad. jut may be amended by the Court of Appeal. A person who is shewn to have committed an offence as a principal cannot be convicted as an acces- sory. So, where a prisoner was shewn to have ^purchased a girl for the purpose of prostitution and kept her in her brothel, 716 INDEX. COJi^YlGTlON—contimted. but the age of the girl not having been shewn to satisfy the section [Clause 1, Sub- section 1 of Section 4 of Ordinance 14 of 1888] creating the offence of purchasing, the Magistrate convicted the prisoner of n'cevvin(j [Clause 3] the girl for purpose of prostitution knowing she had been pur- chased. Held, the conviction could not stand. The purchase and receipt of the girl having taken place jpWor to that Ordi- nance although the girl still remained with the prisoner while the Ordinance was in force. Held, the " receiving" was an act completed prior to the Ordinance and could aiot be punishable thereunder. Held how- ever, the keeping of the girl was a distinct act from the purchase or receiving — it was a continuous act from day to day, and hav- ing continued while the Ordinance was in force, was a " harbouring" of the gill and was punishable under Clause 3 aforesaid. Regina v. Kok Sah Lai 493 5. On quashing a conviction, it is the duty of the Court to consider whether on the facts there is not a proper charge on which the accused might not be charged and if there is, to direct that he be tried on such pi'oper charge - 697 see Lottery. 2 see also Appeal. Mag-istbate. ' Recognizance to keep THE Peace. CORPORATION— see Contract. 9. 484 CORROBORATIVE EVIDENCE — Statement 349 see Theft. 2. COSTS — Magistrate's Appeal — conviction quashed — Crown ordered to pay appellant's costs of appeal - - 597 see Lottery. 2. 2. Case stated — Magistrate — Rule absolute — i 'osts follow the event 606 see Magistrate. 18. also Crown Contract. 2. 680 _ Derelict Vessel 638 COSTS BEFORE ACTION— see Agree- ment. 3. - 181 see also Land. 1. - 82 — Mortgagee. 1. 199 Reply - - 416 Sheeipp 614 COUNSBL-Defence-Crown Witnesses 317 see Witnesses. 1. 2. Examination of a person as to a debt due a Bankrupt — person examined not entitled to aid of 569 see Bankruptcy. 2. also Advocates and Solici- tors - - 15] ■ ATTORNEY-OiSNERAL. 1 . 605 (JoNSULAR Court. 2. 437 Magistkate. 1. . 79 COURT — In the exercise of its discretion. Supreme Court may refuse case to be with- drawn, postponed or otherwise 345 see Order op Hearing. 2. ■ Abuse of process — summons taken off file and service set aside. - 628 see Abuse op Process. also Arms and Ammunition. Bigamy. 2. 630 Court op Appeal. Crown Suits Justice op the Peace. Lottery. 2. 3. • Magistrate 8.16. Magistrates 1. 2. 688 151 597, 668 350.' 589 560, 592 COURT OF APPEAL— The Court has power under Section 25 of the Appeals Ordinance 12 of 1879, to reduce a sentence passed by a Magistrate. China Gunny v. MUNIANDEE - 161 2. Power and authority of — on grant- ing leave to appeal to Privy Council, to impose as a term that appellant lodge his appeal with the Registrar of the Privy Council within a given time- 204 see Arbitration. 1. 3. Power to refer case back for fur- ther evidence to other than convicting Magistrate - 386 see Magistrate. 10. 4. The Court of Appeal has power to amend a charge by cliarging a. person as a principal who was formerly only charged as an accessory ; and also , by substituting a proper charge under Section 34, Clause 6, even when the appeal is from an order of a Magistrate discharging the accused 546 sse Spirits. 5. Duty of Court on quashing a conviction to consider whethei' on the facts there is not a proper charge on which the accused might not be charg-ed, and if there is, to direct that he be tried on such proper charge 597 see Lottery. 2. also Appeal. Charity. 2. 500 Consular Court, 1. 274 ■ ■ Gaming. 3. 392 Lottery. 3. 668 Magistrate. Mischief - 250 Proper Charge. 2. 472 COURT OF EQUITY— see Relief 353 TWO MAGISTRATES— see Magis- trates. 1. 2. - 560, 592 COVENANT— Lphro— action for rent- imitation - 587 see Rent. 5. also Contract, 7. - 446 INDEX. 717 COYENANT— con/mMed. rOR RENEWAL— see Sea Shoee - - - 10 COVERTURE— Husband and Wife- Desertion - 376 see Wife. CREDIT— Master of Ship— Agent 679 see Shipping. CREDITOR— A creditor wlio takes a void Bill of Sale of goods as security for hi.s debt, discbarges a surety who under the belief of such security being valid, becomes surety . 475 see Bill of Sale. 6. 2. . Although a creditor who takes interest in advance for several months, cannot sue for his claim till those months have elapsed, yet if the note or contract entered into provides that in default of payment in a particular manner within that time the whole amount remaining unpaid should become immediately due and pay- able, he is entitled to sae although tliose months have not elapsed. Blade v. White, 1 Y. & 0. Ex. Eq. 421, distinguished. Such a clause does not act as a forfeiture, and no rebate of interest can be claimed. Palaniapah Chetty v. Hashim Nina MeEICAN & ANOE. - 559 CREDITORS— Right of Executors to retainer in preference to creditors — see Commission. 1. - - - 558 CRIMINAL MISAPPROPRIATION— see MiSAPPEOPEiATiON - 441 ; TRIAL— Where part heard, Court will adjourn to enable prosecution to obtain further evidence where no harm done to prisoner 630 see Bigamy. 2. P ROCEDURE ORDL NANCE— Ordinance 5 of 1870— As to its applicability to the Police Coui-ts 230 see Labour. 1. CRIMPING— see Labour 1. 2. 3. 230, 396, 524 CROWN—Stmhle. The Crown, though not a party to an appeal from the decision of a Magistrate, nevertheless has a right to be heard on the appeal. Punghulu Allang v. Him, 3 Kyshe, 144, and Begina v. Shaih Ishmael Lebhy, Ibid. 99 [on this point] dissented from. The simple fact that one of two Magistrates who have decided a case under the Dangerous Societies Ordinance 19 of 1869 i-i a Member of the Executive Council and as such, had under Section 3 seen and considered the evidence afterwards adduced by the 'prosecution in the case is no ground for quashing the decision, al- though the Court, fully recognises the impropriety of his having sat to adjudicate on the case. Where persons" had been convicted of being managers of a Dangerous Society under Ordinance 19 of 1869, but the CROWN — eontinued. evidence did not shew the Society consisted of ten or more members under Section 1, the Coui't refused to quash the conviction, but remitted the case under Section 25 'of the Appeals Ordinance, for further evidence on the point. Rbgina v. Wee Sim Tian & OEs. - 238 2. Evidence — Contradictory State- ments - - 260 see False Evidence. 3. Private Counsel prosecuting for — witnesses for defence — right of reply 605 see Attoeney-Geneeal. 1. 4. Locus Standi of Magisti-ate to appear and support his conviction - 606 see Magisteate. 18. see also Ceovstn Oonteact 1. 2. 648, 680 Deeelict Vessel 638 ■ LOXTEET. 2. 597 Plea in Bae 651 Sea Shoee ■ - 10 CROWN CONTRACT— A defence that a Crown Contract purporting to be under the Excise Ordinance 4 of 1870, Section 3, is not in the form prescribed by that section and that therefore the defendants had not become entitled under that section to the exclusive rights of a Farmer under that Ordinance, is a "substantial ground of de- fence" and "on the merits" within the meaning of the Crown Suits Ordinance 15 of 1876, Section 2, Clause 7. — Query. Is the form of contract prescribed by Section 3 of the Excise Ordinance 4 of 1870, [as amended by Ordinance 15 of 1871,] obliga- tory on the Crown, and what is the effect of a departure from such a formp Attoe- ney-Geneeal V. OHEV\r Sin Yong & ANOE. . . . 648 2. A claim for. loss sustained by the Crown, by reason of the breach by the defendant of his contract — although such loss may be calculated and found by the Officers of the Crown to be a particular sum — is not a claim for an "ascertained" sum, within Section 2 of the Crown Suits Or- dinance 15 of 1876; but a claim for "dama- ges or account," within Section 8. Where an Information and Writ of Summons, for such a claim, was filed and issued under Section 2, Held, the defendant was quite right to apply, by Summons in Chambers, and before applying for leave to defend, for an order to set aside such proceedings as being irregular: and the same were set aside with costs. The Writ of Summons, in Form C 1. of the said Ordinance, is in- tended to be used in cases falling within both Sections 2 and 3; but at time of issue, ought to be so adapted as to meet the pro- visions of the particular section under which it is issued, by striking out the alternative 718 INDEX, CROWN CONTRACT— cowimMe^. sentences which apply to the other section. Attoeney-Genebal v. Chew Sin Yong & ANOR. 680 CROWN LANDS ORDINANCE— see PoBEST Ranger • - 76 CROWN SUITS— The Attorney. General has no power to "direct" the Registrar of this Court to enter \ip judgment for the Crown in any case whatsoever, and a paper so directing the Registrar to do, was ordered to be taken ofE the file. The words "make himself a defendant" in Section 4, Clause 8 of the Crown Suits Ordinance 15 of 1876 mean "appear" — so that where a person claiming to he interested in opposing the claim of the Crown to an order for f ox-feiture of any property in proceedings in rem un- der Section 4, enters an appearance without obtaining leave from the Court under Clause 8 thereof, such appearance is a nullity, and the Attorney-General is entitled to treat it as such and to sign final judgment as in default of appearance under Clause 5. Attorney-General v. Seven Barrels OP Gtjnpowdke, &c. 688 see also Crown Contract. 1. 2. - - - - 648, 680 CROWN WITNESSES-see Witnesses 317 CUSTOMART LANDHOLDER— see Land. 6. 9. - 249,413 CY-PBE8 DOCTRINE— see Devise 212 DAM — Watercourse — User 450 see Riparian Rights. DAMAGES— In lieu of specific perfor- mance - , 251 see Contbact 4. 2. Flooding of lands 459 see Trespass. 2. 3. Non-payment of — arrest and im- prisonment of defendant - 433 see Malicious Prosecution. see also Cheating. 2. 430 Collision - 478 Consular Court. 2. 437 Cbown Contract. 2. 680 Libel - 364 ■ — — Police. 1. 2. 214, 240 Riparian Proprietor 4 DANGEROUS SOCIETIES ORDI- NANOE— see Charity. 2. 500 Crown. 1. 238 DEBTOR— see Bill of Sale. 7. 530 DECEASED P E R S O N— Charge of fraud - 590 see Ebaud. 3. DECLARATION OF TRUST— The de- ceased and his wife together, by an infor- mal Malay document executed a paper appointing another their " Wakil Mutha- lak" [attorney] over all their property from the date of the paper, to take charge of the same and act in every way for them and on their behalf, and in case of liis [the DECLARATION OE TRUST— cow/oJ. deceased's] death, the " Wakil " should pay all debts due by the deceased and demand and collect all debts due to him, and on re- fusal by the debtors to pay any of such latter debts to take legal propeedings for the recovery of the same and after payment of all his debts, the " Wakil " should divide the remainder of the property among his [the deceased's] children and his wife, share and share alike. Held, the paper Was a declaration of trust merely and not testamentary in its natui'e, and Probate was refused to it as a Will. Doe d Cross v. Cross, 8 Q. B. 714, distinguished. As a Malay document cannot under Act 16 of 1839, Section 11. Clause 2, be registered — in ordei' to enable the "Wakil " [the trustee] to convey the lands of the deceased to purchasers by Deeds or Conveyances that would be recognised and registered by the Registi-ar of Deeds, the Court granted ad- ministration to the " Wakil " [the trustee] as the nominee of the wife and next-of-kin of the deceased, but required that the deal- ing with the estate should be as prescribed by the Malay document or declaration of trust. In the goods nf Hajeb Maho- med Thaib. - - - 178 D E C R EE— Specific Perfonnance— Chan- cery Division of the High Court of Justice in England - - 251 see Contract. 4. FOR PARTITION— se^ Parti- tion - 74 DEED — see Declaration op Tausr 178 Trustee. 1. - 100 ACKNOWLEDGMENT OF- see Mahomedan Married Woman. 3. 225 see Reply - - 416 DEFAULT— see Bill of Lading 677 OF APPEARANCE— see Crown Suits - - - 688 OF PAYMENT— see Con- tract. 4. 13. - - . 251, 561 see also Malicious Pbosecu- tion 433 DEFENCE— Costs - 199 see Mortgagee. 1. 2. Crown Witnesses 317 see Witnesses. 1. 3. Amendment of 344 see Statute op Frauds. 1. 4. Default in delivering reply to statement of — pleadings — extension of time ■- . . 4.I6 see Reply. 5- Special plea— Judge — action in damages - ... 437 see Consular Court. 2. 6. Action on Promissory Note^part payment- . . 537 see Promissory Note. 3. INDEX. 719 DEFENCE— conHnwed. 7. Right of reply - - - 605 see Attornby-Genebal. 1. aho Laboue. 1. 230 Land. 1. - 82 DEPENDANT — Arrest on mesne process — security — liberty to leave jui-isdiction witliont leave of Court after judgment 1 see Security. 1. 2. Absconding after giving security not to leave jurisdiction — Bond beld void 71 see Bond. 3. Progress of suit — non-service of process - - 409 see Executor. 2. 4. ■ -Non-payment of damages in ac- tion for malicious prosecution — arrest and impi-isonment - - - 433 see Malicious Prosecution. 6. ■ Amount claimed in an action — Costs — Execution — payment 614 see Sheriff. DELEGATION OF POWERS— Adminis- trator witli Will annexed 8 see Executor. 1. DELIVERY— Reasonable time 512 see Contract. 11. DE NOrO—Tnal see Magistrate. 1. aho Magistrates. 2. DEPOSIT— Forfeiture-breacli by chaser see Contract. 4. OF FILTH— Convenient places - - 554 see Municipality. 4. DEPOSITIONS— see Extradition. 1. 2. - - - -150,221 ■ also Plea in Bar 651 DEPOT — see Immigration 604 DERELICT VESSEL— There being no claimants to a sum of money found on board a derelict vessel at sea, the same was de- clared to belong to the Crown ; but the costs of the application to have it so de- clared were ordered to be paid out of the fund. The Assoline 638 DESCENDANTS— Children-Statute of Distributions 325 see Intestate. DESERTION— Husband and Wife— pro- perty - 376 see Wife. DETENTION OP PRISONERS— see Ha- beas Corpus. 1. - - - - 287 . OF PROPERTY— see Po- lice. 1. - - 214 DEVISE- A devise by a testator of land as " a Wakoff for his children and their descendants" is void as tending to a perpe- tuity and cannot be construed by applica- tion of the cypres doctrine as a devise to the children in fee. The doctrine of cypres can only be applied when the intention of 79 592 pur- 251 DE VIS ^-^continued. the testator can be ascertained. CattKn y. Brown, 11 Hare 372, &nA Pearls y. Moseley, 5 L. R. App. Cases, 714, 19, per Lord Sel- BOURNE, followed. A loequest of ^$400 for " maintenance" of his wife, and to be spent in " Kunduris for the testator," without shewing how much of it was for " mainte- nance" and how much for " Kunduris," is void for uncertainty and as tending to a perpetuity! Ashabee & ORS. v. Mahomed Ha SHIM & ANOR. 212 see also Land. 2. ■ 101 Mahomedan Marriage Ordinance. 2. 265 Testator. DEVOLUTION— Death of sole trustee- trust estate 497 see Trust. 2. DIFFERENT OPPE NCE S— fice Of- fences - - 188 DIRECTOR— see Company. 1. 193 DISBURSEMENTS— see Commission. 1. 658 also Derelict Vessel 638 DISCHARGE— see Bankruptcy. 3. 670 OF PRISONER — Withdrawal of charge equivalent to ac- quittal - 556 see Acquittal. OP SURETY— see Bill OF Sale. 6. - 475 DISCOVERY— see Land. 12. - 453 OF DOCUMENTS— The general provisions up to trial of the Civil Procedure Ordinance 5 of 1878, are not applicable to Small Causes under Section 31 of the Ordinance as amended by Ordi- nance 8 of 1880, except those specially applied by Clause 4 of the section. A party to a Small Cause cannot therefore obtain under Section 289 of the former Ordinance, discovery from his opponent of documents in his possession. Brown ■w. Taynappa Chetiy - 268 DISEASE — Prevention op — see Cattle Disease - - - 666 DISHONEST INTENT— see Cheating. 1. 2. 335, 430 Misappropriation 441 DISMISSAL— Servantr-mercantile firm 91 see Wrongful Dismissal. DISTRESS— Any question as to the right of pi'operty or possession to any goods taken under a Distress Warrant under Ordinance 14 of 1876, and claimed by a third party may be raised and decided as an Interpleader under Section 379 of the Civil Procedure Ordinance, 1878. Chinese theatrical costumes which are let to hire by their owner to another for purposes of enabling each other person to cany on a wayang or theatre are not exempt from dis- 720 INDEX. T>1ST'R'ES&— continued. tress for rent put in by a landlord against sucli other person. Raman Ohetty v. GoLAM Mtdin. In re (Jhew Hock Seng 97 see also Rent. DISTRIBUTIONS— STATUTE OF— see Intestate - -325 see Mahombdan Marriage OllDINANCB. 2. 265 DIVERSION— .see RiPAEiAN Rights 460 DIVISION OF WORK— Agreement- competition 1.58 see Contract. 3. DIVORCE — Joint earnings of husband and wife — separate estate - 124 . and 13 of the Courts Ordinance 3 of 1878. Scully v. Scully 602 DOCUMENT— Testamentary— Probate re- fused as a Will 178 see Declaration of Trust. 2. Conditions — not a promissory- note 181 gee Agreement. 3. , DRUGGIST— Opium Pills 557 see Chandu. 2. DYING DECLARATION— D e f e n o e— admissibility of statement of a deceased person 176 see Evidence. 2. EASEMENT— .lee Sea -Shore 10 EJECTMENT— see Limitation. 1. 311 Relief - 353 EMBANKMENT— see Riparian Pro- prietor 4 see also Sea Shore 10 EMIGRATION— s ee Conviction. 4. 493 see also Habeas Corpus. 2. 685 Immigration 604 Labour. EMPLOYER^— Assault on servant— Magis- trate no power to order contract of service to be cancelled - - 606 see Magistrate. 18. also Labour. ENGLISH — Sale of Land — conditions in — langitage - -453, 633 see Land. 12. 13. see aZso Cattle Disease. 685 ENQUIRY— Preliminary 151 see Justice of the Peace. also Magistrates. 1. 560 ENTICING MARRIED WOMAN— see Married Woman. 2. 162 EQUAL DISTRIBUTION— Companies' Ordinance — -Assets 670 see Foreign Court. EQUITY — Common law — jurisdiction and powers of the High Court of Justice in EQUITY— conimueo!. England — decree for specific perform- ance - 251 see Contract. 4. COURT OF— see Relief 353 ESCAPE OF PRISONER— A conviction for the offence of allowing a person in law- ful custody to escape under Section 221 of the Penal Code cannot be sustained, when that person is not legally in custody, or is punishable with a mere fine 615 see Police. 4. ESTATE— Interest— Chattels real 119 see Heir. ■ also Labour. 1. 2. 230, 396 Receiving Stolen Property. 2. 388 ESTATE IN FEE— .see Land. 2. 101 TAIL — Personalty 608 see Testator. 3. EVIDENCE— Husband and wife— Crimi- nal matters - 122 see Mahomedan Marriage Ordinance. 2. 2. Although a prisoner might have successfully objected to the admissibility of a statement of a deceased person, either as a dying declaration, or a deposition under Ordinance 20 of 1870, Section 26, yet he is entitled, in his defence, if he so chooses, to put in the statement as some- thing which was said by the deceased, which goes to help his defence thereby waiving the objection which was based on the omission of a foi-mality required for his protection. Regina ■«. Chbe Tang& ANOR. - ... 176 3. Improper admission of — irregu- larity—Magistrate - - 230 see Labour. 1. 4. Adjournment of oases — detention of prisoners in Magistrates' Courts — jui-is- diotion oi Supreme Court - 287 see Habeas Corpus. 1. 5. Corroborative — statement see Theft. 2. 6. Case remitted to Magistrate furthei- — convicting Magistrate see Magistrate. 10. 7. Uncontradicted — ^estate of ceased person see Reply. 8. Furthei- — Case remitted f or- of Magistrate see Magistrate, 14. 9. ■ Perusal by Judge on reserving judgment — of papers touching on matters in question in suit before him, but which were not put in — effect on verdict — produc- tion of Registers - 500 see Charity. 2. 10. The evidence given by a prisoner under Section 10 of the Arms Exportation Ordinance 18 of 1887, is admissible against 349 for 386 de- 416 -duty 445 INDEX. 721 EVIDENCE— confMiMeri!. a fellow prisoner tried at the same time with him. Semble. A prisoner who has exercised his option by refusing to tender himself as a witness under the above sec- tion may be allowed on his subsequently changing his mind to tender himself as such [per Wood, J.] — Regina i;. Khoo Kong Peh - - 515 11. Proof of marriage — books — foreign law — Court will adjourn for further evidence where no great harm done to pri- soner ... 630 see Bigamy. 2. 12. Deceased person — charge of fraud 590 see Featjd. 3. 13. Rule of law — Informer — accom- plice — corroboration - 597 see LoTTEEY. 2. 14.' Proceedings — Commission - 677 see Bill of Lading. also Cattle Disease 666 Ceown. 1 - 238 exteadition. 2. 3 - 221, 346 False Evidence 260 ■ Gaming. 3. 6. 392, 615 Habeas Coepus. 2 - - - 685 Laboue. 2. 3. 396, 524 LOTTKEY. 3. 668 Magisteate. 1. 9 - 79,375 NewTeial. 1- 186 Oefences - 188 Plka in Bae - 651 Recognizance to keep THE Peace. 1 276 EXCEPTION— see Bill or Lading 677 EXCESSIVE SENTENCE— The Court being satisfied that an — imposed by a Ma- gistrate had caused a failure of justice, reduced the sentence though it was not larger than legally awardable to the of- fence 606 see Magisteate. 18. EXCISE— There is no power to order the forfeiture of any illicit exciseable article under Section 48 of the Excise Ordinance 4 of 1870, unless there has been a conviction of a person for breach of that section in. respect to such illicit article. Bawasah Meeicanv. KooTYAN Chettt - 321 see also Chandu. Ceown Conteact 1. 2. - 648, 680 Spieits - 546 EXECUTION— Payment by defendant of amount claimed and costs before - 614 gee Sheriff. CREDITOR— Interpleader 399 see Bill of Sale, 4, 2. EXECUTION CREDITOR— As- signment — Registration - - 568 see "Wakopf. 2. also Bill op Sale. 1. 7 . 120,530 EXECUTIVE COUNCIL— see Ceown. 1. ... 238 EXECUTOR— An Executor of an adminis- trator with the Will annexed of a third person deceased, does not represent the Estate of such third deceased; and this, notwithstanding the Administrator pur- ports in his Will, to delegate his powers as Administrator to his Executor. The Ex- ecutor, after entering into possession of the Estate of such third deceased, under the idea that he represented the said deceased's Estate, cannot on discovering his error and continuing his possession, set up his posses- sion under the Statute of Limitations, against such Estate. Tan Chye Hoon v. Lim SbOW ChONG & ANOE. - - . 8 2. A person who is an Executor of a Will and also a Trustee thereunder to can-y out certain trusts thereby created, at a certain period of his administration may dismiss the character of Executor and assume that of Tmstee. Whether he has done so or not, and the time when he did it is a question of fact dependent on the cir- cumstances of each case. A party to an illegal or fraudulent contract can derive no benefit from it, and all persons who obtain possession of trust funds, with a know- ledge that their title is derived from a breach of trust, will be compelled to restore such trust funds. A purchaser of land with notice that his title was defective, erected buildings on the land and generally improved the land. Another person, who also had notice that the title was defective, subsequently purchased from him, but by reason of the building and improvements, gave more for the land than he othei-wise would have. Held, though he did not erect the buildings or make the improvments himself still he was entitled in equity — notwithstanding the notice he had of tlie defect in title — to be compensated for the buildings and improvements. The non- service of process on a, co-defendant is no ground of objection on the part of a defend- ant to the progress of a suit. Stubbs v. LoH HoH Seng & oes. - . 409 3. Firm — accounts - - 491 see Paetneeship. 2. 4. Right of commission — disburse- ments 658 see Commission. 1. 6. The mere fact of a person being named in a Will as an Executor does not prevent him purchasing the testator's pro- perty if he has never taken upon himself the duties of Executor or tmstee unless he 722 INDEX. EXECUTOR— CMiWwwed. makes use of his position in order to commit a fraud - .... 590 see Tbaitd. 3. also Commission. 1. 558 Legac"? - - 88 EXPORTATION— Ai-ms and ammunition — protibited place — - - - 638 see Abms and Ammunition. 2. also Evidence. 10. 515 EXTORTION— A Magistrate who dismis- ses a charge of extortion has no power to order the return of the property or re-pay- ment of the money alleged to be extorted. Aemotha Pttllat v. Mabimootoo 85 EXTRADITION— A "Warrant of Commit- ment mei-ely reciting the fact of a convic- tion is not a " certificate" or a " judicial document" within the meaning of the Orders in Council of 26th June, 1879, and 31st December, 1883, relating to Extradi- tion. The " British Resident" of Perak, is not a " Minister of State" within the aforesaid orders, and his official seal is no authentication of a document intended to be used under these orders. Regina v. Wong Ah Ktjm - - 150 2. The order of a Magistrate, com- mitting a prisoner to prison under the Ex- tradition Act, 1870 [33 & 34 Tic. c. 52J is final ; and all this Ooui't has to decide is, whether such order is legal or not; if therefore the evidence before the Magis- trate, is deficient in any respect, or the formalities required by the Act have not been complied with, this Court has no power [in an Extradition Case] to remit the case to the Magistrate to supplement the evidence. Query. Whether the Su- preme Court has power, in any case com- mitted to the Criminal Assizes, to remit the case to the Magistrate to supplement the evidence against the accused ? Query. Whether a proceeding by a Rule Nisi for a Habeas Corpus is the proper proceeding within Section 11 of the Extradition Act, 1870 P Neither the " Resident" of the East Coast of Sumatra, nor the " Consul-Gene- ral" for the Netherlands in Penang, are " Ministers of State" within Section 15 of the Extradition Act, 1870, and their seals are therefore no " authentication" of the "Foreign Wan-ant" or "Depositions" within the meaning of that Act If the " Foreign Wan-ant" is not " duly authen- ticated" according to Sections 9 and 15, the proceedings in Exti-adition fail, and the order of commitment by the Magistrate is illegal, and this Court will order the pri- soner to be discharged. Where a Ru.le Nisi was made absolute for a Habeas Cor- pus to issue for a prisoner's discharge under the Extradition Act aforesaid, the Court, in order to be regular in its proceed- EXTRADITION— eoniinMetZ. ings, declined to discharge the prisoner then and there, but required the Habeas Corpus to issue and be returnable " forth- with" and upon return made, discharged the prisoner. In re Pipbb - 221 3. Neither the Magistrate enquiring into an Extradition Case under the Extra- dition Act of 1870 [33 & 34 Vic. c. 52], nor this Court on proceedings thereunder for an Habeas Corpus can take judicial notice of any Treaty made with any Foreign Power, nor of any Proclamation or Order in Council — by Her Majesty or otherwise — appljdng such Act to the Treaty, even though such Treaty and Proclamation or Order exist in fact, and are duly published in the Government Gazette in accordance with the Act. There must be evidence before the Magistrate that the Act has been applied to the Treaty ; but the bare prodiiction in evidence before him, at the enquiry, of the Government Gazette con- taining such Treaty and the Proclamation or Order in Council, is conclusive evidence of the Act having been applied. If this is omitted, this Court has no jui-isdiction to supply the defect, by receiving the Gov- ernment Gazette in evidence, for it has no power to receive any evidence, but is con- fined to the evidence and documents which were before the Magistrate. Query. Whe- ther the Magistrate has power under the aforesaid Act to receive evidence tendered by the accused in reference, not to his identity or the matter being a political offence — but as to his innocence, and in disproof of the case for the prosecu- tion? J?i re Rajah Samstjdin TirNKtr Jaksa 346 4. It is no objection in Extradition proceedings that the accused having been arrested on a warrant is temporarily set at hberty and re-an-ested on a further warrant. Although the definition of offences under our present Criminal Law may not in all respects be identical with offences under the English Criminal Law, yet being in most offences the same though called under a different name, the Court is satisfied that the facts of the particular case in hand would amount to an offence within both definitions, will not discharge a prisoner simply because the names of the offences are different. Where therefore the Orders in Coimcil of 26th June, 1879, and 31st December, 1883, in the schedules thereto, of extraditable offences, enumerated the offences by names known to the law of England, among others " larceny"— and the accused in the case before the Court was charged with " theft," JEfeZd, although there may bo differences between the defini- tion of "larceny" under the former law, INDEX. 723 EXTRADITION— cowimitei. and " theft " under our Penal Code, yet as the facts of the case then before the Court were sufficient to bring it within both definitions, and the offences enumerated in the schedule were, by the note at the begin- ning thereof to be construed according to the law of this Colony, the accused was not entitled to be discharged on the gi'ound that " theft " was not among the offences mentioned in the schedule, and was more comprehensive than "lai-ceny." TheMagis- trate is not required under the aforesaid Orders in Council to make an enquiry into the ti-uth of a charge against an alleged fugitive criminal prior to issuing a warrant for his apprehension. It is sufficient under Clause 4 of the former Order in Council that evidence is adduced before him which would be sufficient to justify the issue of a warrant if applied for the apprehension of a person charged with an offence committed within his jurisdiction — and a sworn in- formation by a person in his presence, ex- parte, which discloses facts sufficient to justify such latter apprehension, is sufficient to justify the issue of a waiTant under Clause 4, aforesaid. Begina v. Weil, 9 L. B. Q. B. Div. 701, followed. In re No Hock Seng - . 368 PAILUEB OF COMPANY— Shares— re- fusal to accept — broker — principals - 561 see Contract. 13. OP ISSUE— see Tbhtatoe. 3. 608 OP JUSTICE— Excessive sen- tence — sentence reduced - - 606 see Magisteate. 18. FALSE EVIDENCE— The Crown is not bound in a charge of giving false evidence on two contradictory statements under Section 63 of the Criminal Procedure Ordi- nance 6 of 1873 to prove that both or either of such statements are or is false. The proviso at the end of that section requiring that boih statements must be within Section 191 of the Penal Code does not refer to the falsity of the statements, but only to their being on oath. Regina v. Mahomed 260 FALSE REPRESENTATION- see Mak- BiED Woman. 1. - 85 STAT EMENT— s ee T k A d e- Mark. 3. - - - - 403 FARMER— see Chandu. 1, 2, 3. . - 527,557,627 see also Excise - 321 Spirits . - - 546 FEE — see Convetanceb - - 286 FEMALES — Chinese law and custom — Statute of Distributions - 325 see Intestate. FINAL JUDGMENT— see Crown Suits ... 688 Secubitt. I. - - 1 PINE— A conviction for tlie offence of allowing a person in lawful custody to escape, under Section 221 of the Penal Code, cannot be sustained when that person is not legally in custody or is punishable with a mere fine - 615 see Police. 4. FIRM— Accounts— Executor - , 491 see Partnership. 2. also Trade- mark. 1,2,3. 269,394,403 FIXTURE— see Wakoff. 2. - 568 FLOOD— Removal of sluice-gate— action in damages - 4:59 see Trespass. 2. FOREIGN COURT— Although by Act 15 of 1852, Section 7, the certificate of a judg- ment of a Foreign Court can only be proved if certified under the seal of that Court, or accompanied by a statement that the Court has no seal, yet if such certificate is admitted without objection, this Court will not, on review, reject such certificate. The Bank having obtained a judg- ment against the Company in Selan- gor — after notice of a winding-up order made by this Court in Singapore, of the Company — levied execution at Selangor under order of that Court made on an arrangement between pai-ties, and i-eceived a large sum of money thereon ; but out of this sum had to make certain payments, ordered by the Court in Selangor to certain Selangor creditors, which left a svim stiU due to the Bank for balance of their judg- ment. The Bank sought to prove for this balance in Singapore under the liquidation. Held, [by O'Malley, C.J.] that the effect of the Companies' Ordinance 5 of 1889 was to fix a trust for equal distribution on all assets of the Company, as from the date of the winding-up proceedings, and that the Bank having had notice of the pro- ceedings, and now seeking to prove there- under, was bound to \*efund the whole amount received to the Official Liquidator. BeU also, [by O'Malley, C.J.] that the Selangor Court was a Competent Court and one whose decisions this Court would re- cognise, and its judgment would have been an answer to the claim of the Official Liquidator, had the Bank not had notice of the winding-up order. On appeal, affirm- ing the judgment of the Court below, [by Wood, J.] that it was doubtful whether the Selangor Court was a Court properly con- stituted and one whose proceedings this Court would recognise ; but that the so- called order by arrangement of the parties before it, for their own purposes, in absence of other parties interested, was not an order establishing any valid claim of any of such parties, and was no protection to the Bank against the claim of the Official 724 INDEX. FOREIGN COVRT!— continued. Liquidator. Held, [by Pellereau, J.] that the document put in as the order of the Selangor Court disclosed an order made hy a Court having jurisdiction in Selangor ; but the so-called order merely gave effect to a private arrangement between the parties before it, and was not such an order to which the trust created by the Companies' Ordinance, 1889, could be made subject, and was no protection to the Bank against the claim of the Official Liquidator for a refund. Held further, by both Courts, that the trust created by the Companies' Or- dinance, 1889, affected the property at Selangor, a Foreign State, as being assets of the Company. The Oriental Inland Steam Navigation Co. v. The Scinde Railway Co., 9 L. E. Ch. App. 557, followed. In re The Rawang Tin Mining Co., Ltd. & The Chartered Bank of India, Austra- lia AND China - - - 670 LAW— Books— Evidence 630 see Bigamy. 2. POWER— Treaty— judicial no- tice - .... 346 see Extradition. 3. STATE— see Foreign Court 570 see also Lotteet. 1. - 126 WARRANT— see Extradition. 2. 3. 221,346 FOREST RANGER— A Forest Ranger has no power to arrest without a warant, except in the cases specified in Section 11 of the Crown Lands Ordinance 10 of 1883, and if he do so, his act is not an " official act" but a trespass, and any person offer- ing him money to procure the release of the person or thing detained, cannot be convicted of offering a gratification, under Section 165 A. of the Penal Code. Regina V. Lov?^ Lan Sew .... 76 FORFEITURE OF DEPOSIT— Breach by pui'chaser 251 see Contract. 4 ; OF EXCISEABLE ARTICLE— Magistrate no power to order without con- viction 321 see Excise. see also Arms and Ammu- nition. 2. - 638 Creditor. 2. - 559 Crown Suits - 688 FORM— Excise .... 648 see Crown Contract. 1. FORMAL REPLT—see Plea IN Bar 661 FRAUD — Import of goods — tender — ven- dor 481 see Contract. 8. 2. Misrepresentation — Company — sale of shares .... - 544 see Contract. 12. 3. Where a charge of fraud was alleg- ed against a deceased person, forty-five FRAUD — continued. years after the transaction sought to be im- peached, though the plaintiff was then un- born and the deceased person stood in a semi- fiduciary position to him, Held, there must be evidence of the fraud before the trans- action could be set aside, and suspicion merely was not sufficient. The mere fact of a person being named in a Will as an Executor, does not prevent him purchasing the testator's property, if he has never taken upon himself the duties of Executor or Trustee, unless he makes use of his position in order to commit a fraud. Yeoh Kian GuAN V. Seah Liang Seah - 590 FRAUDS— STATUTE OF— see I N T E s t- ATE 325 see Land. 1. - - ■ 82 ■ Magistrate, 1. - 79 Statute of Frauds. 1. 344 FRAUDULENT CONTRACT— see— E x - ECUTOR. 2. 409 FRESH CHARGE— A case which is re- mitted under Section 34, Clause 4 for hear, ing " on a fresh charge " need not neces- sarily be sent to, or be heard by, the same Magistrate who heard the original charge. The words " the Court below " in that clause, according to the context and circum- stances of the case, may or may not mean the same Magistrate. Regina v. Goh Choo Lan 407 2. Power of Court to direct a re-hearing on — discretionary - . . . 472 see Proper Charge. 2. also Magistrate. 1. - 79 PROSECUTION— see Magistrate. 12. 405 FUGITIVE CRIMINAL— see— Extradi- tion. 4. 368 FURTHER EVIDENCE— Appeal Court — power to refer case back to other than convicting Magistrate - - - 386 see Magistrate. 10. also Gaming. 3. . 392 M agistrate. 10. 14, - 386, 445 GAMING — An ordinary dwelling house in no way fitted tip or shewn to be previously used as a Common Gaming House was entered early one morning by the Police under a warrant. The appellant and three other persons were found in the house who attempted to rush out as the Police entered, but where arrested. No gaming of any kind was going on at the time, but on searching the room the Police found on the floor a solitary small bundle of papers which on examination proved to be Wha Whey or lottei-y collecting tickets on some of which names and stakes were written. There was no evidence to shew what a Wha WheyyniB, The appellant was the occupier of the house. The Magistrate convicted him of INDEX. 725 GAMING — coniinued. assisting in a place whicli was kept ov used by the occupiei- thereof for the purpose of gaming. Held, on these facts that Section 11 of the Gaming Ordinance 15 of 1879 ap- plied, and the house must be presumed to be a Common Gaming House, and to be kept by the occupier for the purposes of gaming until the contrary was shewn by him, and that as the contrary had not been shewn as occupier of a place so kept, the appellant must be taken to have assisted in it and the conviction was therefore I'ight and should be affirmed. Begina v. Abass, 3 Kyshe, 184, distinguished. Regina •». Yeap Hock Tin 237 2. Search for appliances of — Contri- vances — Arrest — Action in damages 240 see Police. 2. 3. On the trial of a prisoner for be- ing the occupier of a house kept or used for the pui'pose of a Common Gaming House, the evidence whether of the prisoner himseK or others given at a previous trial of persons fovind in the house and convicted of being present in a Common Gamiug House is not admissible. It is unsafe for a Magistrate to convict a person of being the occupier of a Common Gaming House solely on the statu- tory presumption of its being a Common Gaming House because persons are seen or heard to escape from it on the approach of the Police — where there is some evidence in dispi'oof of it. Query. Has this Court power to send a-case back under Section 34, OIause4of the Appeals Ordinance 12 of 1879, to a Magistrate other than the convicting Magisti'ate ? Regina v. Khoo Sbang Ju - - - - - 392 4. A Club at which there is a feast given and those present are all guests, is not for the time being, a Common Gaming House within Section 3 of the Gaming Ordinance 5 of 1888, though gaming goes on there among them— the guests not beins; " the public or a class of the public," — and others not being guests having then no " access " to the Club. Senible. A Club to which all its members have access is within the Ordinance. The difference be- tween a Club and a private house pointed out. Regina i;. Chan Ah Tye &OES. 518 5. "When appliances of gaming are found in a house, though a private house lawfully entered under the Gaming Ordi- nance 5 of 1888, the Magistrate and this Court must pi-esume under Section 14, iintil the contrary is shewn, that the house is a Common Gaming House — Per O'Malley, C.J. — Very little evidence is sufficient to rebut this presumption. Per Pellereav, J. — As it is the law that that presumption shall be made, clear and full evidence is required to I'ebut the presumption — but what is such GAMING — continued. evidence depends on the circumstances of each case. The mere fact that the prisoners found gaming were Malays, and one of them is a young unmarried girl, and the manners, habits, and customs of Malays is not to allow such a girl to be associated with the public, does not of itself rebut the presump- tion. Query. What is meant by a " class of the public " in Section 3 of the Ordinance? Regina v. Din & oes. - - 615 6. In gaming cases, warrant on which Police act, should accompany appeal 668 see Lottery. 3. also LOTTEET. 1. 2. 126, 597 GENERAL AVERAGE CONTRIBU- TION — see Contribution - 528 GIFT— Wakoff— Bequest - - 101 see Land. 2. also Testatob. 3. - 608 GOOD BEHAVIOUR— Recognizance- Evidence as to character - - 375 see Magistrate 9. FAITH— see Police. 2. 240 GOODS — Importation of — t e n d e r — fraud 481 see Contract. 8. also Trade-Mark. RECOVERY OF— see New Trial. 1. 186 GOVERNMENT GAZETTE— Treaty- Proclamation — Order - . - 346 see Extradition. 3. GRATIFICATION— O F F E R I N G— see Forest Ranger .... 76 see Magistrate. 8. . 350 GRIEVOUS HURT— A person who infficts a wound on another is answerable for the results, if the i-esults foJlow without un- reasonable conduct on the part of the man wounded. Where, therefore the prisoner inflicted a wound on the prosecutor, which in itself was not a serious wound, iDut the prosecutor omitted to obtain proper and immediate remedies, by reason whereof the wound got into an unhealthy state and only after it got to that stage the prosecutor was sent to the hospital where he was kept by the Medical Officer for treatment for twenty- three days during which time he was unable to follow his ordinary pursuits, Seld, that the foul state of the wound and the conse- quent detention in hospital must be con- sidered the result of the prisoner's act, and the case was therefore one of grievous hurt under Section 825 of the Penal Code, and not simple hurt under Section 323, and a Magistrate's^ conviction for the latter could not bo sustained as he had no jurisdiction over a case of grievous hurt. Sahat v. Hajee Beahim - - . 337 GROUNDS OF APPEAL— see Land 13 533 726 INDEX. GUARDIANSHIP— Tlie Ooui-t in decidiag wh.0 is a fit and proper person to "be appointed guardian of a native infant is not bound by any bard and fast rule of t h e law of England on tbe subject, but will under the words " so far as circumstances will admit" in the Charter of 1855, take into consideration the law, religion, practice, or custom, of the nationality or class to which such infant belongs, on the subject of guardianship. Choa Choon Neoh v. Spottiswoode, 1 Kyshe, 211, and Yeap Cheah Neo .v. Ong Cheng Neo, 6 L. R. P. 0. 381, s. c. 1 Kyshe, 326, discussed. The Charter of 1855 by the combined operation of Ordinance 6 of 1878 and Ordinance 3 of 1878, Section 83, is still in force in this Colony so far as it is not inconsistent with the latter Ordinance and the Ordinances 4 and 5 of 1878, Yeap Cheah Neo V. Ong Cheng Neo, [supra] as to this point, followed. In re Sintak Rayoon & ANOR. .... - 329 GUILTY KNOWLEDGE— see Receiv- ing Stolen Peopeett. . 2. - 388 HABEAS CORPUS— This Court has juris- diction to issue a Writ of Habeas Corpus and discharge a prisoner thereon either ab- solutely or on bail as the facts might war- rant, where the charge pending against him befoi-e a Magistrate, is adjourned from time to time over such a period of time, combined with the absence of evidence, as would make it a sei-ious wrong to him to be longer detained, but the exercise of this jurisdiction is entirely in the discretion of the Court and will not be exercised except in cases of an unusual nature. Where jirisoners were arrested and charged before a Magistrate with conspiracy, and Vv'ith the exception of formal evidence are remanded into custody from time to time for a period of three weeks without any fui-ther evidence being adduced against them — but it was shewn that the case was of a peculiar natiu-e, and evidence was being collected, oven from a Foreign country, and that such evidence, if obtained, would certainly implicate the prisoners, but their discharge might possibly hinder the obtaining of such evidence and frustrate the ends of justice, Held, though the period of detention without proof being adduced was unusually long, yet it was not a case in which this Court would exercise its jurisdiction and discharge the prisoners whether on bail or otherwise. In re KoH Ah Pow & OES. - - - 287 see also Exteadition. 2. A warrant issued by the Protector of Chinese under the Women and Girls Protection Ordinance 14 of 1888 is not con- clusive evidence, under Section 15, of the facts stated therein, and this Court is not deprived thereby of its jurisdiction to con- trol the actions of the Protector and of HABEAS COB.TTJB-^continued. going behind his warrant to ascertain his proceedings and the grounds of his order. The Protector, in making the "due enquiry" under Section 6 of the Ordinance, can only do so after notice to all parties interested, taking the evidence given at such enquiry on oath and permitting the vritnesses to be cross-examined. In re Lam Tai Ting 685 HACKNEY CARRIAGE-A conviction for letting a hackney carriage to hire the license of which has been cancelled, can only be sus- tained where the license has not only been cancelled, but notice [in writing] thereof given under Section 11 of the Hackney Car- riage Ordinance 5 of 1879 to the owner. The driver of a first class hackney carriage is boTind as much as the drivers of a carriage of any other class to take out a license as such driver : and the word " himself " at the end of the proviso to Section 21 of the aforesaid Ordinance is confined to the owner who acts himself as driver and does not include another person who might act as driver for him — and the driver cannot be said to be " using " the carriage within the meaning of the proviso when he is driving for the owner. The fact that for ten or twelve years first class carriage drivers have not been required to take out a license cannot alter the case. The only exception in favour of a first class carriage driver is that he is not required to carry any badge. A carriage which is engaged by a person for a month or any fixed period exclusively for his own use is by that very fact taken out of the category of ' ' hackney carriages " and does not nor does its driver re- quire to be licensed. Regina v. Ismail & ANOE. - - - 234 HARBOURING— see Laboue. HEARING OP APPEAL- Not necessary for an appellant from the decision of a Magistrate to be present at — 638 see Aems and Ammunition. 2. ORDER OP— see Oedee OP Heaeing 345 HEIR — Where an interest or estate vests in a person, as the "heir "of a deceased, prior to Act 20 of 1837, the fact,— that such " heir " did not insist on his rights, and was dead, [at the time the question arose between his descendants and others ] so that he could not personally be deprived of such estate — does not prevent the case falling within the second proviso of the Act, and the property [lands and shops, which were still in the same condition as they wore at the time the deceased died] cannot, even at this date, be treated as chattels real. Query. Is Act 20 of 1837, retrospective P In the goods of Muckdoom Nina Mekioan - - • - 119 INDEX. 727 HINDU CUSTOM— see Libel - 364 HUSBAND AND "WIFE— The terms on which a Hindu husband and wife should separate might be the subject of reference to arbitration ; and this Court has jurisdiction to order an award — which directs the wife to return to her husband, or in default, that she or her parents and relatives who joined in the reference should restore to the husband certain jewelry which were given by the husband to the wife at the time of marriage to be filed in Court with a view to execution in so far as it orders the restoration of the jewelry. In re Aemoogum & OES. - 327 HONEST BELIEF— see Police. 2. 240 HOUSE — Promise to build on marri- age .... 4(33 see Peomise. 1. also LoTTEET. 3. - 668 HURT— see G-eievotts Httet 337 HUSBAND AND WIFE— Desertion— px'operty - - - 376 see WlEB. also Hindu Husband and Wife - - 327 LOTTEET. 3. 668 Mahomedan Maeeiage Oedinancb. 1. 98 M AEEiBD Woman. 1. 2. 3. 122, 124, 225 M AEEIBD Woman. L2. - 85,162 Promissoey Note. 1. 6 IGNORANCE— see New Teial. 1. 186 OF LAW — Negligence — Inadver- tence 279 see Bill or Sale. 3. 2. Inadvertence — Registration 399 see Bill of Sale. 4. ILLEGAL CONTRACT— see Bxecutoe. 2. - - 409 PEE — see Convbyancee - 286 ILLICIT ARTICLE— Forfeiture - 321 see Excise. also Aems and Ammuni- tion. 2. - 638 Chandu. Spieits - - 546 INTERCOURSE— see Maeeied Wo- man. 2. .... 162 IMMIGRANT — see Immigration 604 see Laboue. Magisteatb. 18. 606 Receiving Stolen Pro- perty. 2. . - 388 IMMIGRATION— An immigrant whose passage-money has been paid to the ship- owner by another person, is not an immi- grant "whoso passage-money has not been paid" within Section 14 of the Chinese Im- migration Ordinance 4 of 1880, and a person cannot under such circumstances, be convicted under that section for inducing IMMIGRATION— conimweti. such an immigrant to go elsewhere than the depot in which the^ Protector has placed him. Fox V. Tan Hbng Web 604 IMPORT OF GOOD S— Tender- Fraud 481 see Contract. 8. IMPROYEMENTS— Action for recovery of Land — Ejectment - . - 353 see Relief. 2. Compensation for - - 409 see Executor. 2. also Reply - - 416 INADVERTENCE— Ignoi-ance of law- Negligence 279 see Bill of Sale. 3. 2. ^Ignorance of law — R egistra- tion 399 see Bill of Sale. 4. INCREASED RENT— Failure to quit- notice - - - - 78 see Rent. 1. INDEMNITY— Loss— agreement 158 see Contract. 3. INDIAN ACT— see Acts. INFANT — Native laws and customs — Charter of 1855 - - - - 329 see GCAEDIANSHIP. INFECTIOUS DISEASE- see Cattle Disease 666 INFORMATION— Writ of Summons- Crown Suits Ordinance - - 680 see Ceown Contract. 2. INFORMER— Evidence— accomplice 597 see Lottery. 2. also Lottery, 3. - 668 INJUNCTION— see Contract. 9. 434 see Trade-Mark. Trespass. 1. - - 443 INJURY — see Ripaeian Peopeietor 4 INSOLVENCY— see Bankruptcy, INTEREST— Estate— Chattels real - 119 see Heir. 2. Capital - - . 491 tee Partnership. 2. 3. Personal Property — Loan — Security . . . 620 see Bill of Sale. 9. also Bill of Sale. 5. 471 New Trial 186 IN ADVANCE— see Creditor. 2. - - - 559 IN LAND— Tender— 1 e a s e— r e - entry - - ... 443 see Contract. 7. aZsoWAKOFF. 2. . 568 INTERPLEADER— Distress warrant- claim to goods ... 97 see Distress. 2. Execution-creditor - 399 see Bill of Sale. 4. also Bin Off Sam. 7, 530 n% INDEX. INTERROGATING PRISONER— Ma- gistrate no power — such power conferred on Supreme Court only - - 472 see Pbopbr Ohabge. 2. INTESTACY— see Testator. 3. 608 INTESTATE— "Where there are descend- ants, hut no childi-en living of an Intestate, on the proper constru.ction of the Statute of Distrihutions [29 Car. II. c. 3, Section 7] the estate is to be divided into as many shares as there were children who had left living descendants and not according to the number of the descendants themselves. The descendants of each such child take as together representing such child and the share only of such child. Re Ross' Trusts, 13 L. R. Eq. 290, followed. The contrary opinions expressed in Text Books of au- thority must be considered incorrect and this Court is bound by the above decision. In distributing the estate of a person dying intestate domiciled here and leaving pro- perty here, the Statute of Distributions is the only mle, and the exclusion of females in sharing in such estate according to Chinese Law and Custom will not be recognised. Lee Joo Neo v. Lee Eng SwBB - - 325 see also Widows - 380 IRREGULARITY— Admission of evid- ence — Magistrate - 230 see Labour. 1. 2. Magistrate's C o u r t — C a s e beard in private— conviction quashed 350 see Magistrate. 8. also Crowst Contract. 2. - 680 JOINT ADMINISTRATION— Chinese widows — ^intestacy - - - 380 see Widows. EARNINGS— Husband and wife — separate estate - . 124- see Mahombdan Married Wo- man. 2. TENANCY— see Partition 74 TENANTS— see Leasehold Pro- perty ----- 684 JUDGE— A Judge is not liable in the form of an action for damages for acts done or words spoken in bis judicial capacity vinless such acts or words are done or uttered with- out jurisdiction and with knowledge of such want of jurisdiction. The principle also covers things omitted to be done — special plea — defence - - - 437 see Consular Court. 2. also Charity. 2. - 500 JUDGMENT— Arrest before — security— mesne process - - - 1 see Sbourity. 1. 2. Recovery of — plaintiff — action for malicious prosecution — non-payment of damages by defendant - - 433 see Malicious Prosecution, power damns 4. JUDGMENT— con^mitef?. 3. Certiiicate of — proof — seal 570 see Foreign Court. 4. Respondeat Ouster - 651 see Plea in Bar. see also Crown Suits 688 JUDICATFRE ACTS— see Contract 4 ... - 251 JUDICIAL NOTICE — Treaty — foreign power - - - 346 see Extradition. 3. JURISDICTION — Defendant — arrest — • secui'ity - - - 1 see Security. 1. 2. Probate Division of the High Court of Justice in England— Common law- Equity . . _ - - 251 see Contract. 4. 3. Consular Court at Bangkok— of Supreme Court — wi-it of man- ..... 274 see Consular Court. 1. —Supreme Court — detention of pri- soners — Magistrates' Courts 287 see Habeas Corpus. 1. 5. Separation of husband and wife — ai'bitration .... 327 see Hindu Husband and Wieb. 6. Husband and Wife — desertion 376 see Wife. 7. Magistrate — Recognizance to keep the Peace - - - - 389 see Recognizance to keep the Peace. 2. 8. Suit for recovery of land — custom- ary land-holder - . - 413 see Land. 9. 9. Agreement that disputes there- under be referred to arbitration — jurisdic- tion of Coui't not ousted without express words - 596 see Arbitration. 3. also Arms and Ammuni- tion. 2. - 638 Consular Court. 2. 437 Divorce. 2. 602 Foreign Court. 570 Habeas Corpus. 2. 685 Recognizance to keep the Peace. 1. - 276 JURY — A Judge has power under Section 55 of the Criminal Procedure Ordinance 6 of 1873 on amending a charge, to order the Jury to be discharged, and a new trial had. The words " new trial " in the section mean a new trial in its ordinary legal accepta- tion ; and is not bound to be had before the same Jm'y. Regina v. Suprayen - 258 see also Misappropriation 441 P ibacy Jure Gen- tium 169 Plea in Bar - 651 JUSTICE OP THE PEACE— A Justice of the Peace sitting in a preliminary enquiry INDEX. 729 JUSTICE OP THE VE AGE— continued. has [notwithstanding Ordinance 3 of 1878, Section 1, which, makes his sitting a " Coui-f ] a discretion, whether such enquiry should be had in private or public : such a discretion however should be exercised only with a view to the interests of the public and not in reference to the religious scruples of any class of the Community. Query. Have Advocates and Solicitors under the combined operation of Sections 1, 51, and 55, of the- Courts' Ordinance 3 of 1878, a right to appear before Justices ? Hajee Shaik Abdul Cadek v. Aisha & oes. In re Kynnebslet - 151 see also Police. 2. - 240 KALI — Entry in marriage book — promise in consideration of marriage 583 see Makeiage Settlement. KNOWLEDGE— see Contract. 12, ]3 . - - 514,561 KONGSI— see CHAEiir. 2. 500 KUNDURI— see Devise - - 212 LABEL — see Tkade-Maek. LABOUR — The requirement towards the end of Section 13 of Ordinance 3 of 1887, of a notice in writing, applies only to the last of the alternative offences mentioned in that section, viz., the retaining of the men in service. A Magistrate might after the case for the prosecution has closed and the prisoner has addressed the Court in his defence, allow a further witness to be called by the prosecution, provided he gives the prisoner an opportunity to explain away or rebut by evidence or othervise, such further evidence. Ong How v. Abdulrahman, Straits L. R. 354, and Chooashary v. Cassim, 3 Kyshe, 98, followed. But even if it were irregular and improper for the Magistrate to have done so, still it is no ground for quashing a conviction, unless there is not suificient other evidence to support it, or injustice has thereby been done. Whether there is that sufficient other evidence or not, and whether injustice has been done or not, is for this Ooui-t on appeal to deter- mine, under Section 33 of the Appeals Ordinance 12 of 1879, and not for the Ma- gistrate. Query. Whether Ordinance 5 of 1870 applies to the Police Courts? The words "knowingly" and "so bound" in Section 13 of Ordinance 3 of 1877, apply only to the contract of service, and not to the period of the contract — so held by the Court of Appeal. Teo Ang Boi v. Hia Ma Lai 230 2. It is not sufficient for the prosecu- tion in the case of a charge against a prisoner under Section 13 of the Crimping Ordinance 3 of 1877 to shew that he seduced or attempted to seduce a labourer under contract of service to leave his employer and seek for employment generally ; before LAB OUR — continued. there can be a conviction under that section it must be shewn that the labourer was srtdnced or attempted to be seduced in order to sei-ve some particular person. In pro- secutions under the said section, the contract for service should itself be produced ; and it is not sufficient to give extrinsic evidence of its terms. Ramsamt v. Low - 396 3. The mere enticing of a labourer from the service of his employer is no offence under Section 13 of Ordinance 3 of 1877, and it is necessary for the prosecution to shew by evidence that the labourer was being enticed in order to enter into service elsewhere. It is not however necessary to shew that it was to enter the service of any particular person either by name or designa- tion — [per Feller eau & Goldney, J. J., Wood, Acting C. J., dissenting.] Bamsam,y v. Low, coiTeoted and approved of. Beown v. Yengadashellum - 524 4. A Magistrate has no power on con- viction of an employer for an assault on his servant to order the contract for service to be cancelled. - ... 606 see Magisteate. 18. also Immigeation 604 Receiving Stolen Pko- PBETT. 2. - 388 LAND — A memorandum of purchase of lands, at public auction, which does not on its face shew what the conditions of sale are, — or at least something connecting it with conditions of sale on a separate paper — is not a sufficient contract within Section 4 of the Statute of Frauds, 29 Car. II. c. 3. It is the duty of a plaintiff, before he sues upon a contract for the sale of land, to satisfy himself that there is a sufficient contract under the Statute of Frauds — and although the defendant may not plead the Statute as required by Section 175 of the Civil Procedure Ordinance, but at the trial is allowed with the plaintiff's consent to amend his defence, by doing so — he [plain- tiff] will be ordered to pay the costs of the action, even if the case goes off solely on account of the Statute. Nana Ebeamsah V. KaT BaWA & ANOE. - . 82 2. A testator, being possessed of a large piece of land which as a fact wei-e five lots comprised in five grants, but believing the whole piece was comprised in four grants, by his Will declared, that " of the four grants of lands situate in Toh Kramat, I have converted one grant into a Wakoff to bury my children and grand children and relations, and the three grants a.i-e the portions of my ten childi-en [whom he designated] — they will take the produce thereof, and divide and take in equal shares, but they shall not sell nor mortgage the land." Eeld, the gift of the lands to 730 INDEX. LAND — continued. the children, was not void on the ground of uncertainty — that the testator did not die intestate as to the lot compi-ised in fhefifth grant, bnt such lot passed with the "portion" for the children. That the whole clause was not void as tending to a perpetuity, but the restraint on alienation alone was void — and the ten children [to the exclusion of all his other children] took as estate in fee, as tenants in common, in the lands ref eiTed to as their ' ' portion " inclusive of the lot in the fifth grant. Mahomed Ghotjse v. Hajee Mahomed SAIBOO & ANOB.. - . . . 101 3. Principles of assessment — machi- nery — enhanced value — buildings. - 103 see Assessment. 4. Malay document — registration — deed. - - 178 see Declaration of Trust- 5. In a suit relating to title to land where the equities are otherwise equal, the Ooui't considers the party who has posses- sion of the Title Deeds as having the better equity. Lloyds Banking Go. v. Jones, 29 L. R. Oh. Div. 221, followed. Langan & ORS. V. Lee Ohbng Kbat & ors. - 154 6. The custom in Malacca for a cultivator of land to pay a tenth of the produce to the proprietor of the land in lieu of rent — and as long as the cultivator does so he cannot be ejected — is a good and reasonable custom, and one this Court will recognise and uphold. Abduliatip v. Mahomed Meeea Lbbb - - 249 7. Action for recovery of — Eject- ment- - - - 353 see Belief. 8. Purchase of — notice — title defec- tive — compensation — improvements 409 see ESBCTTTOR. 2. 9. The Malacca Land Ordinance 9 of 1886, does not make registration under Sec- tion 6 thereof, conclusive proof that the person whose name is so registered, is the owner of the land therein referred to. To oust therefore, the jurisdiction of the Supreme Oourt by Section 9 of the Ordi- nance from entertaining a suit for the recovery of the land, it must be shewn that the party objecting to the jurisdiction is a " customary land-holder " in respect of the land, and that the Collector of Land Revenue had, on his application, and afte)- due publication of notice and due enquiry, made an order declaring that the applicant was so entitled, and such order had been registered under Section 6 by his directions, and a, copy thereof furnished to the appli- cant. The mere production of th e Register, shewing that the party objecting to the juriK'liution is therein registered as the owner of the land— such registration being L AND — continued. undated and unsigned — is not sufficient. Jayah bin Kachi & ANOR. V. Saheia & ORS. - - - - 413 10. A person who is turned out of possession of lands on which he under the belief the lands were his, has made improve- ments, is entitled to sue a,splaintiff in equity for compensation on account of such im- provements - 416 see Reply. 11. A party entitled to land is entitled to the Title Deeds thereof, and the pi-oper person to sue in detinue for their detention is the person entitled to the legal interest in the land - - 444 see Administration. 3, 12. The plaintiffs put up several lots of land for sale by public auction, subject to certain conditions of sale which were in English. The seventh condition was as follows: "The purchaser of each shall be satisfied with the execution of a convey- ance by the vendors having the effect of conveying the fee simple in posses- sion free from incumbrances by buying the residue of a term of years and the reversion expectant on the expiration thereof, and shall not require any title to be shewn of the teiTU of years other than the production of such of the leases and counterparts as are in the possession of the vendors, nor make any objection with grounds of defect or want of title to the sevei-al terms of years. Intending piwchasers or their Soli- citors may sec the deeds of the vendors' title on any day before the sale at the office of the vendors' Solicitors, and each pui-- chaser shall be deemed to have bought with notice of the state of the title." Twelve of these lots were purchased by defendant who partly in consequence of the discovery that there were outstanding leases over the land, and partly because certain of the lots were adversely claimed by one M. refused to complete the purchase. The plaintiffs tendei-ed the defendant a Conveyance of the twelve lots [which adjoined each other] as one whole piece, and on the defendant refusing to complete the purchase, the plaintiffs sued him for specific performance. Held firstly, the seventh condition did not clearly shew there were outstanding leases, and was misleading; 2ndly, that it being in English only, a language the defendant did not understand, he could not be taken to have known it or be bound by it ; thirdly, that the sale though in twelve lots was really of one whole piece and that as certain of the lots were advei-sely claimed, and the plaintiffs at most could make title of only some of the lots, the defendant was justified ill refusing to complete the purchase and this Oourt would not decree the samg to be INDEX. 731 LAND — continued. specifically perfoi-med. Held on appeal [re- versing the decision of the Court below] that the condition being in the English language merely, was no ground for not holding the defendant bound, as it was his duty to get it explained to him in any other langiiage, if he so wished it ; that the ad- verse title set up by M. which vras not admitted by the plaintiffs, and had not been established at law, was also no ground for excusing the defendant ; that the sale was not of one whole piece, but of twelve lots, and the inability of the plaintiffs to make a title to some lots did not excuse the de- fendant from accepting the others ; and that a possessory title oi over 12 years was a sufficiently good title and one that this Court would force on a purchaser — per Pellereau & Goldney, J.J., the seventh condition did not clearly shew there were outstanding leases and was misleading — per Wood, J., that it did shew some leases were outstanding and was not misleading. Ismail bin Satoosah & oes. v. Hajeb Ismail - - - 453 13. The defendant, as Collector of Land Revenue, under Ordinance 4 of 1886, caused certain lands and house of the plaintiff to be attached for ax-rears of rent. Sometime before the attachment, he had made search in the Land Office to find out who was the owner of the lands and house, but he made no further search immediately before proceeding to a sale. In the inter- val, the plaintiff, the owner, had registered her title, but she was not aware the defend- ant intended selling the property. The owner not having been found, the defend- ant sold the property. Held, [reversing the judgment of the Court below] that he was not guilty of negligence. Seld also, that as the owner could not be found, the defendant was not guilty of negligence for not addressing the notice to her, but to the "present occupier" of the house. Held also, that as the owner could not be dis- covered, it was not possible to discover her " last residence," and therefore, there was no negligence on the part of the defendant in not putting up the notice [under Section 5 of the above Ordinance and Rule III. made in pursuance of the Ordinance] on such residence, but. Held further [reversing the judgment of the Court below] that " his house," mentioned in Rule III. was not the last residence of the owner, but the house with reference to which the claim for arrears is made, and a notice placarded on that house wa.s a notice " published in the prescribed manner" within Section 5. It is not sufficient in a memorandum of appeal simply to state that the appeal is for "wrong determination in point of LAND — continued. law," but the grounds of the appeal should be set forth. Sheeifa Shaika v. Hatjghton . - - - 533 see also Forest Rangbe 76 Limitation. 1. - 311 Mahomedan Maeeibd Woman. 3. - 225 Maeeied Wo- M A N . 1 . - 85 Pkomise. 1. - 463 RiPAEiAN Peo- PEIBTOE - 4 Sea Shoee 10 Testatoe. 3. - 608 Trespass. 1. 2. 443, 459 Wakoff. 2. 3. 568, 675 -INTEREST IN— see CONTEACT. 7. "Wakoff. 2. - SPECULATION LAND- 446 568 Co mpany — 193 Directors — Purchase see Company. 1. LANDLORD — No power by mere notice to raise rent on failure of quitting pre- mises — distress - 78 see Rent. 1. LANGUAGE— Bale of lands— Conditions in English 453 see Land. 12. also Cattle Disease - 666 Land. 13. - 533 LARCENY— see Extradition. 4. 368 LAW— RULE OF— Mercantile C o n- tracts 512 see Conteact. 11. LEASE — see Conteact. 7. - 446 also Peivitt of Con- teact - - . 338 2. Covenant — seal — limitation 587 see Rent. 5. LEASEHOLD PROPERTY — Bequests of leasehold property " to T. C. H. and to his male child or children," and in case of his dying without issue, gift over to his brother. At the date of the Will T. C. H. had no child. Held [by Goldney, J. and by Court of Appeal] that the rule in Wild's Case, 6 Coke's Rep. 17 was not applicable, and T. 0. H. took only a life estate with remainder to his sons bom [at date of action] or to be born, as joint tenants, and living at time of his death. The weight of autho- rity preponderates in favour of the proposi- tion that the rule in Wild's Case is not applicable to personal property. Tan Chin Hoon v. Tan Boon Tay & oes. 684 LEAVE TO AMEND— see Statute of Frauds - . 344 TO APPEAR— see Crown Suits 688 TO DEFEND— Summons in Chambers — Crown Suits . . . 680 see Ckown Conteact. 2. 732 INDEX. LEGACY — A legatee does not lose bis riglit to a legacy, by voluntarily intimating without any valuable consideration tliat he never intends to take it, and even dies with- out changing his mind on the point, but without having actually executed a release thereof — and his executor or administrator is entitled after his death to claim payment of the legacy. It makes no difference that such legatee is the executor of the testator, and he always refused to credit himself with the legacy. A testator bequeathed " to my brother Vapoo Merican Noordin whom I appoint the executor and trustee of this my Will " a legacy of §4,000 " for his own use absolutely." Held, the legacy was annexed to the office of executor, and the executor was not entitled to charge the usual execu- tor's commission in addition to the legacy. Calvert v. Sebhon, 4 Beav. 222, followed. Compton V. Bloxham, 2 Coll. Ch. Rep. 201, distinguished. Noob Mahomed Meeican & ANOK. V. NaCODAH MeKICAN & ANOE. 88 see also Administration. Commission. 1. 558 ExECtlTOE. LEGAL CUSTODY— Escape of prisoner when not in — conviction under Section 221 of the Penal Code cannot be sustained 615 see Police. 4 LEGATEE— see Legacy 88 LESSEE— see Sea Shobe - 10 LETTERS OP ADMINISTRATION— Revocation — ^power of attorney 191 see Administeation. 1. 2. Detention of 444 see Administeation. 3. LIBEL — The defendants, certain Hindu headmen or Panchayet, to whom a charge against the plaintiff, one of their caste, had been submitted for enquiry and decision, found the charge proved and decided that unless the pla^ntifl' underwent purification he was to be excommunicated from their temple and caste: the plaintiff failed to purify himself and was thereupon formally excommunicated. Thereafter the defend- ants as such headmen, procured a torn torn to be beaten in public, and the other. mem- bers of the temple or caste publicly informed of the decision and excommunication, and warned from associating with, or selling to, or buying from, the plaintiff. The plaintiff sued the defendants for libel and slander. Held, the publication of the decision and excommunication was privileged by the occasion, and in the absence of express malice, the action was not maintainable. Held further, that the plaintiff also had no cause of action as regarded the alleged slander by publicly announcing the decision and excommunication, as in so far as it was made to members of tlie temple or caste, it was privileged, and in so far as it was made LIBEL — continued. to outsiders [who neither wei-e pi'evented nor had in fact refused to associate with, or buy from, or sell to, the plaintiff] he had sus- tained no special damage. C o o P a N G Chetty v. Veeea Padiacheb & oes. 364 LICENSE— In a prosecution for keeping an unlicensed ale-house, the prosecution must shew the house was kept by the pri- soner ; evidence of her acts which are con- sistent with that fact, or with her being merely a servant in the place will not suffice. Semble. The onusprobandi on such charge, is on the prosecution, to shew the prisoner hadnotalicense. Municipal Commiesioners v. Chuah Seng & org., 3 Kyshe, 140, con- sidered. Regina v. Gbebn - 401 2. On a charge of keeping an un- licensed brothel under Section 10 of Ordi- nance 14 of 1888, it is for the accused to prove he has a license and not for the prosecution to shew he has not. Although the fact of having such a license is not peculiarly within the knowledge of tlie accused, yet, as it is so conveniently within his knowledge and so easily produced by him, it is for him to produce it. Regina V. Mat Akib & anoe. - - ei65 see also Hackney Caeeiage 234 Spirits - . 546 LIFE ESTAT E— R e m a in d e r— Wi 1 d' s Case ... . 584 see Leasehold Propertt. INTEREST— Lands— alienation- issue .... 608 see Testator. 3. LIMITATION— The words " cause of action arose " in the Limitation Act 14 of 1859 im- ply that there mvist be a person in esse capa- ble of suing before the Act can begin to run. Where therefore a person takes possession of land after the death of the rightful owner and holds the same for over twelve years he acquires no title under Sec - tionl. Clause 12 of the Act if administration has not been taken out, and the Act only begins to run in such a case from the date of the grant of such administration. The rule is the same in this respect as to pure personalty and chattels real; but such land even in the hands of the person so in possession is of the nature of chattels real under Act XX. of 1837, and the adminis- tration of the rightful owner may maintain ejectment for it at any time within twelve years of the grant of administration. The Statute 3 & 4 Wm. IV. c. 27, Section 6, has no application to such a case as it is covered by the language of Section 1, Clause 12 of the aforesaid Act 14 of 1859 Jemalah v. Mahomed Ali & ors., 1 Kyshe 386, over-ruled. The passage and Indian r^^^^'.S'^^ '='*'^'^ ^^ Thompson on Limitation [3nd Ed.] 150, to the effect that the plain- INDEX. 733 LIMITATION— con/inwed. tifE m\ist shew actual possession within twelve years have no authority here inas- much as they rest on the provisions of the Procedure Act 8 of 1859, Sections 32, 525, Clause 4, and such Act [Section 385], is expressly confined to Bombay, Bengal and Madras, and is not in force in this Colony. Those decisions are also no authorities here on the words " cause of action rose," in the Limitation Act 14 of 1859, but the English authorities on Statute 21, Jas. I. c. 16, and the old law of Limitation prior to 3 & 4 Wm. IV. c. 27. are. Query. [Per Wood, J.] Whether the rule in England in respect to the Court not acting on the uncorroboi'ated but uncontradicted statement of a living claimant against the estate of a deceased person is so general, fixed, and inflexible as declared by Jessel, M.R. and Baggallay, L.J. in re Finch, 23 L. E. Oh. Div. 267 P Ismail bin Savoosah v. Madinasah MeeICAN & ANOR. - - 311 2. Action for rent — covenan t — lease - .... 587 see Rent. 5. see also Acts. Ageebment. 1. 136 • Mahomedan Maeeibd Woman. 3. 225 RiPAEiAN Rights 450 Statutes. LIMIT OF CHARGES— see Offences 188 LIQUIDATION— see Foeeign Oouet 570 LIST OF CASES— Supreme Court— Order of trial .... 345 see Oedee of Heaeing. LOAN — Personal property — Interest — se- curity 475,620 see Bill of Sale. 6. 9. also New Trial. 1.- 186 LOCUS STANDI— see Crov^n. 1. 238 Magistrate. 18. - 606 LORD CAIRNS' A.CT— see Contract. 4. 251 ■ TENDERDEN'S ACT— 9 Geo. IV. c. 14, is not in force in this Colony - 136 see Agreement. 1. • also Statutes. LOSS— see Bill of Lading - - 677 Cheating. 2. - 430 ■ Ceown Contract. 1.2.- - 648, 680 LOTTERY— A sale of Manila Lottery tickets does not constitute the "keeping, using, pei-mitting to be used, caring, manag- ing or assisting in the business of a lot- tery" within the Gambling Ordinance 13 of 1879. A contract made in this Colony between residents here, for the sale of tickets in a lottery in a Foreign _ State where the lottery is lawful, is not an illegal contract as contravening public policy, and will be enforced by the Courts of this Co- LOTTBRY— cowimwed. lony — Aliter — where the lottery is illegal in the Foreign State. There is no difference in principle between such a contract and the case of money lent for the purpose of gambling in the Foreign State where gamb- ling is legal. Quarrier v. Colston, 1 Phil. 147, and King v. Kemp, 8'L. T. 255, applied. D'Almbidai;. D'Menzies - - 126 2. A " TFeisamg' lottery'' is a " lottery" within the meaning of the Common Gaming House Ordinance 5 of 1888. The evidence of the Informer is admissible in a charge under the above Ordinance, and he is not an " accomplice" within the meaning of the rule of law that requires the evidence of an accomplice to be corroborated. Evi- dence that the prisoners sold lottery tickets is not evidence of their " assisting in the management of a public lottery," and in a charge for so assisting, evidence of such sale merely ought to be rejected. The mere fact that quantities of lottery tickets are found in the prisoners' house or in their possession, is not sufficient evidence that they were " assisting or managing a public lottery." The presumption raised by Sec- tion 14 from the mere fact of finding of the tickets in the prisoners' possession, or house occupied by them, only applies to a charge under Section 5, Clause [a]. This presumption however, is an arbitrary pre- sumption, and the smallest particle of evi- dence is sufficient to put the prosecution to prove their case. On the conviction being quashed, the Crown was ordered to pay the appellants' costs of the appeal. The effect of Clauses 2 and 8 of Section 34 of the Appeals Ordinance, 1879, is to make it the duty of this Court, on quashing a convic- tion, to consider whether on the facts, there is not a proper charge on which the accused might not be charged, and if there is, to direct that he be tried on such proper charge. Regina v. Chong Ah Pye & ANOE. - - - 697 3. The mere finding of instruments or appliances for gaming in a house, does not justify a Magistrate in convicting all the persons living in the house as assisting in the gaming— but the case of each person must be considered separately, according as the evidence connects him or not with the gaming or lottery. A mari-ied woman supported by her husband and living in a house rented by him is not " the occupier" of the house within the Gaming House Ordinance 5 of 1888, although the husband may be absent from the Settlement. The husband is the occupier. The warrant [omitting the name of the Informer, if any] under authority of which the Police enter a house under the Gaming Ordinance, ought to be produced in evidence before the Ma- 734 INDEX. LOTTERY— coniimiei. gistrate, — and on appeal, sent up with the stated case, — so that the Magistrate or Court of Appeal can judge whether it be issued under the Ordinance or not so as to give rise to the presumption in Section 14 thereof. Regina v. Tan Yok Law & ORS. - . - - 668 see also Gaming. MAGISTRATE— It is irregular for a Mag- istrate on investigating into a charge against a prisoner for an offence, dui-ing the course of the investigation to place a witness who has given evidence before him, in the dock, and to enter a charge against him for the offence, and to proceed therewith and con- vict him thereon. Such a conviction will be quashed. An order to try a prisoner on a charge de novo, does not prevent a fresh and different charge — ^but of the same class — being entered against him and enquired into. An amended charge must be read or explained to a prisoner under Section 53 of the Criminal Procedure Ordinance 6 of 1873, whether the prisoner be defended by Coun- sel or not; an omission to do so renders a conviction on the amended charge, liable to be quashed. Though it may not be actually illegal for a Magistrate who has once tried a case and convicted a prisoner to try the pri- soner de novo, on an order by the Supreme Court directing a ti-ial de novo, still it is highly objectionable that he should do so. He should allow the trial de novo to be had before another Magistrate. LiM Ttjan Hong i;. Hermann Jebsbn & Co. - 79 2. A Magistrate who dismisses a charge of extortion has no power to order the return of the property or re-payment of the money alleged to be extorted - 85 see Extortion. 3. The Court of Appeal has power under Section 25 of the Appeals Ordinance 12 of 1879, to reduce a sentence passed by a Magistrate - - - 161 see Court of Appeal. 4. A Magistrate might after the case for the prosecution has closed and the pri- soner has addressed the Court in his defence, allow a f ux-ther witness to be called by the prosecution provided he gives the prisoner an opportunity to explain away or rebut by evidence or otherwise such further e v i- dence - - - - 230 see Labour. 1. 5. ^The Crown though not a party to an appeal from the decision of a — neverthe- less has a right to be heard on the Ap- peal - ... 238 see Crown. 1. 6. The simple fact that one of two Magistrates who have decided a case under the Dangerous Societies Ordinance 19 of 1869 is a member of the Executive Council MAGISTRATE— com — s. 41 2. 546 321 230 176 281 675 433 120, 183 323 1. see Breach of Trust. s. 159 see Affray. Brothel. — ss. 162, 163 see Magistrate. 8. 8. 165 A. see Forest Ranger. 174 see Subpcena. 198 see Married Woman. s. 221 see Police. 4. .323 see Grievous Hurt. s. 325 see Grievous Hurt. s. 352 see Recognizance to Peace. 2. s. 373 see Prostitution. 1. 379 - see Theft. 2. ,409 «ee Misappropriation. 8.411 323 84, 346 350 76 156 162 615 337 337 389 sp the 385 349 441 see Receiving TY. 2. s. 415 Stolen Propee- see Cheating. s. 417 see Cheating. B. 426 2. 1, 2. see Mischief. s. 494 ■ see Bigamy. 1. s. 511 2. see Mischief. 15 of 1871 see Crown Contract. 1 of 1872, ss. 42—48 see Police. 1, 430 335, 430 250 513, 630 250 648 - 214 INDEX. HI Oni>mAm}^S— continued. lofl872,s. 42,cl.l,2. see Police. 2. ss. 43, 44 see Police. 2. 44 9. see CONTKACT. 6 of 1872, s. 9 see Bkbach of the Peace. s. 15 see Police. 3. 7 of 1872 see New Tbial. 1. 8 of 1872, s. 53 see Police. 4. 13 of 1872, B. 1 see Magistrates. s. 82, cl. 5 see Bbothel. — — ■ s. 60 240 240 484 357 291 186 615 1. 2. 560, 592 84 389 see Becognizance to keep the Peace. 2. s. 61, cl. 6 276 see Becognizance to keep the Peace. 1. B. 62 see Magistrate. 6 of 1873, B. 53 see Magistrate. — s. 55 see Jury S.59 9. 1. 12. 375 79, 405 258 see Offences. also Breach 1. - ■ ss. 60, 61 see Offences. s. 63 see False Evidence. s. 64 see Principal. 1. ■ s. see Plea in Bab. s. 71 see Proper Charge. 14 of 1876 see Distress. 15 of 1876 see Trespass. 2. • 8. 2, cl. 7 see Obown Contract. s. 3— Form C l. 188 Trust. 323 188 260 118 651 472 97 459 1. see Crown Contract. s. 4, cl. 5 & 8 see Crown Suits. 17 of 1876, s. 3 see Magistrates. 1. 19 of 1876, 88. 3, 4, 5 see Cattle Disease. 3 of 1877, 8. 13 see Labour. 1. 2. 3. 5 of 1877 see Police. 3. 648, 680 680 688 560 666 230, 396, 524 291 ORDINANCES— contiimed. 3 of 1878, ss. 10, 13, 14 see Contract. 4. Divorce. 2. ss. 18, 19 see Agreement. 1. ss. 1, 51, 55 251 602 136 151 see Justice of the Peace. • s. 83 - 329 see Guardianship. 4 of 1878 see Guardianship. s. 1, sub-ss.4&6 ■ see Belief. ■8.3 see Aebitbation. 3. B. 6 see Teade-Mabk. 1. 5 of 1878 886 Guardianship. 8. 26 see Conveyancer. s. 31 329 353 596 269 329 286 268 see Discovery of Documents. s. 66 • 511 see Contract. 10. 8. 163 - 416 see Beply. s. 175 see Land. 1. 82 Statute of Frauds. 1. 344 — 8. 207 - 416 see Beply. s. 229 see Bill of Lading. s. 289 677 268 see Discovery of Documents. B. 322 - - 345 see Order of Hearing. s. 422 B. 1 see Security. 1. also Bond s. 425 - 71 433 see Malicious Prosecu- tion. 8. 454 - - 204 see Arbitration. 1. ^— s. 493 - - 594 see Security. 3. 6 of 1878 329 see Guardianship. 3 of 1879, 8. 2 . 103 see Assessment. 5 of 1879, ss. 11, 21 . 234 see Hackney Carriage. 12 of 1879 638 seeAEMS AND Ammunition. 2 88.18,20 - . 606 see Magistrate. 18. s. 25 . 161 see Court of Appeal. 1. Crown. 1. . 238 Magistrate. 10. 14. -386,445 Offences. - - 188 742 INiDBX. ORDINANCES— co)iy Execu- tor — trustee 590 see Fraud. 3. 3. A testator who died in 1863 having given aliife interest in certain lands to his widow, declared that after her death the said land should " go " to his daughter M. to be by her possessed, occupied, and en- joyed, -without however any power of aliena- ting the same, " and after her death to go to her issue, who should occupy, possess, and enjoy the same " without however any power of alienation, and in case if she or her issue should die without leaving issue, then the land was to go over to the plain- tiffs. M. survived the testator, but died intestate without issue. Her administrator thereafter sold the land in fee to the defend- ant. The plaintiffs thereafter lirought this suit to have it declared that M. had only a life interest under the aforesaid Will and her administrator could convey notliing thereof to the defendant — to have the con- veyance cancelled — and the la,nds declared to belong to the plaintiffs under the clause of the gift-over on failure of issu(>. Held, that on the trr.e construction of the whole clause, M. took an estate tail eo instant i the testator died ; that undcn- Act XX. of 1837 the lands and estate tail devolved on M. as personalty and as there could be no estate tail in personalty. M. took an absolute interest and the conveyance of the fee to the defendant by the administratrix of M. ■was good. Held further, that it was im- material that M. died without issue, and without having barred the entail, and the T:ESTAT0'R— continued. gift-over was inoperative. Eoe d Dodson V. Grew, 2 Wils. 322, followed. Kitchee Pakirmah v. Syed AMI [Penang Case — unreported] explained and adhered to. Mahomed Mb era Nachiak & anor v. Inche Khatijah 608 see also Devise . 212 . = Mahombdan Marriage Ordinance. 2. 265 TEXT BOOKS OF AUTHORITY— Pas- sages followed or otherwise : Stephens' Digest of the Criminal Law, p. 64 — defini- tion of piracy iitre gentium approved of - 169 see V'iRACY Jure Gentium. Story's Equity Jurisprudence — §§ 799b [n.J and 1238, iiot followed - 416 see Reply. Thompson on Limitation [2nd. Ed.] 150 — passage and decisions cited in — that plain- tiff must shew actual possession within twelve years, are no authorities in this Colony 311 see Limitation. 1. Wheaton's International Law, p. 122a. — definition of piracy jure nen tium, disappi'oved of - 169 see Piracy Jure Gentium. Williams on Executors, 2 [8th Ed.] 1503, and the authorities there cited, disapproved of - 325 see Intestate. also Oases. THEATRE— see Contract. 9. 484 THEFT— Mahomedan Husband and Wife - - 122 see Mahomedan Married Woman. 1. 2. The prisoner seeing a hawker go past, called him and asked to see some of the sarongs he had for sale. The hawker handed him four, and it was eventually agreed he could have them for S3. The hawker then asked for payment, but the prisoner told him to come "another day"; thereupon they had words and the prisoner having struck the hawker, ran away with the sarongs. He could not be found nor the sarongs, till he was arrested on a later day on a warrant. Held, he was properly convicted of " theft " under Section 379 of the Penal Code. A statement made by a. person to another at or about the time of the occm-rence of the fact spoken to, is ad- missible as corroborative evidence by that other person under Section 31 of the Evid-" ence Act II. of 1855. Sahid -u. Fu Ah Seii - - - 349 see Extradition. 4. 368 THIRD PARTIES— Land speculation- Company — Directors - - - 193 see Company. 1, INDEX. 755 THOMPSON ON LIMITATION— Indian decisions cited in — actual possession witliiu twelve years — no authorities here 311 see Limitation. 2. THREATS— Secret Society— Case heard in private — Conviction held bad 589 see Magisteatb. KJ. ■ also Recoonizancb to keep THE Peace. 1. 2. 276, -lyj TITLE DEEDS— Possession— Equity 154 see Land. 5. 2. Detention of — party entitled to sue in detinue 441 see Administration. 3. ■ also Land. 5. 12. 154, 453 . — • Limitation 1. 311 Teustee. 1. 100 TODDY FARM— see Cbown Contract. 1. 2. - 648,680 see also Spirits 546 TONGKANG— There is no rule or i'e-,'u- lation in foi'ce in this Colony rendering it obligatoi'y on tongkangs lying alongside vessels for pui-pose of discharging or reliev- ing cargo to caiTy lights 478 see Collision. ai'sq Bill OF Sale. 8.- 595 TOWN HALL— see Contract. !i. 484 TRADE-MARK- The Court will not grant an interim injunction to restrain a person from using a trade-marl::, unless tlie plain- tifE by affidavit,, establishes an exclusive right to the mark, as well-known to the public — pel- Ford, C.J. The Trade-Marks Act, 1883 [46 & 47 Yic. Cap. 57 ] is not in force in this Colony by virtue of Section 6 pf'Oi'dinance 4 of 1878 ; and no authority exists here from whom an exclusive right to a particular trade-mark can be obtained, — but such right is wholly dependant on the general principles of Commercial Law — per Goldney, J. By the principles of that law as soon as a trade-mark has been em- ployed in the market so as to indicate to purchasers that the goods to which it is attached, is the manufacture of a particular firm, it becomes to that extent the exclusive propei'ty of that firm, and no one else has a right to copy it, if by so doing unwary pur- chasers may be induced to believe that they are getting the goods of the particular firm — per Goldney, J. The question how far the plaintiffs' exclusive right has been in- fi'inged depends upon how far the defend- ant's ti-ade-mark bears such a resemblance to that of the plaintiffs, as to be calculated to deceive incautious purchasers : the in- troducing of one or two colourable vari- ations will not make the copy the less an infringement— 73e/' Goldney, J. In such a state of facts, it is not necessary to the plaintiffs' success that the defendant should TRADE-MARK— coiifiitKed. have intended to mislead — per Goldney, J. Eraser i Co. u. Nethersole 269 2. A label of a partioiilar colour having printed on it the name of a fix'm or business and the place where it is carried on, followed by a description of the article on which the label is affixed and the use of such article and the mode of using it, is a trade-mark, the use of a colourable imita- tion of which this Court will restrain. A trade-mai'k does not become publici juris from the mere fact that it is also used by another person without objection for some years, concurrently with the user by the plaintiff of his mark. Blaze t'. Maynard & Co. 394 3. A person who having right to a pa.rticular trade-mark does not make use thereof for several years during which time another person uses the trade-mark and his manufactures thereby become known as such in the market, cannot afterwards come forward and use the mark or confer on a purchaser from him the right of so using it. The mere statement on the plaintiff's trade- mai'k that he carries on business in a par- ticular place for the purpose of procuring the particular article — whci'cas he carries on the business in another place — is not such a false statement or misrepresentation as disentitles him to relief in this (.'ourt. Seah Lee & anor. v. Kian Guan 403 TRADE— RESTRAINT OF— see Con- tract. 3. - 158 see also Tbade-Maek. TRANSFER AND SCRIP- Bearer War- rant 512 see Contract. 11. OF SHARES— Company— Specific performance ■ - 465 see Breach op Contract. 3. TREATY— Foreign Power— J u d i c i a 1 Notice - .346 see Extradition. 3. also Riparian Rights 450 TRESPASS — A. defendant who trespasses on the land of a plaintiff, e.g. by building a house thereon, has no right to insist that the plaintiff' be merely awarded a sum of money for the value of the land taken in lieu of a mandatory injunction on him [defendant] for removal of the trespass. Krehly. Bnrrell, 11 L. R. Ch. Div. 147, followed. Moses v. Low Kim Pong 443 2 Plaintiff proceeded by Petition of Right under the Crown Suits Ordinance 15 of 1876 to recover damages for flooding his lands with sea- water, by the removal of a sluice-gate — the damages were made up of four distinct items of which the value of the sluice-gate itself or damages for its 756 INDEX. TRESPASS— co?i7.5 sec also Chaeity. Devise 212 WANT OF PARTIES— see Contkact. 13. - 561 WARKANT— Distress— right of property — Intei-pleader 97 see DiSTEESS. 2. WarrHnt on which Police act in Gaming Cases should be sent up with appeal - 608 see LOTTEEY. 3. OF COMMITMENT- Certificate — Judicial document - 150 see EXTEADITION, 1. WATERCOUESE— see R i p a e i a n Rights - 450 WAYANG — Chinese theatrical costxiuies not exempted from distress for rent 97 see DiSTEESS. WEISANG LOTTERY— see Lotteey. 2. - 597 WHA WHEY— Lottery tickets 237 see Gaming. 1. AVHARVES— Warehouses— Coal-s h e d s— assessment 103 see Assessment. WHEATON'S INTERNATIONAL LAW — Definition of piracy jure (jeiitiiim, dis- approved of 169 see PiEACY Juke Gentium. WHIPPING— As to power of Magistrate to inflict sentence of — when prisoner sentenced to imprison uient undcT Preserva- tion of the Peace Ordinance 357 see Beeach op the Peace. WIDOW — Misrepresentation - 85 see Maeeied Woman. 1. WIDOWS — A Chinaman having died in- testate, leaving two widows, the Court WIDOWS— con^iinteci. granted joint administration to both. In the goods of Ing Ah Mit 380 WIFE — ^ Where a wife has been deserted by her husband who leaves her quite unpro: vided for, this Coui-t has jurisdiction to declare her equity to a settlement attaches to property acquired by her before as well as during coverture, and to direct a settle- ment of such property on her for her separate use. Such an order may be obtained on the ex-parte petition of the wife, where it is shewn the husband's whereabouts cannot be ascertained ; it is unknown whether he be alive or dead Jm re Kyle -376 seeaZsoHiNDuHuSBAND&WlFE327 Lotteey. 3. 668 — Mahomedan Maeeiage Ordinance. 1. 98 Mahomedan Maeeied Woman. I.2.3.' 122, 124, 225 Maeeied Woman. 1. 85 Peomissoey Note. 1. 6 WILD'S CASE- The weight of authority preponderates in favour of the proposition that the rule in — is not applicable to per- sonal property . 584 see Leasehold Peopeety. WILL — Administrator with Will annexed of a third person deceased — delegation of powers 8 see ExEcuTOE. 1. 2. • Testamentary document — declara- tion of trust — Probate refused as a 178 see Declaeation or Teust. 3. Drawing, in expectation of fee or reward— unlicensed Conveyancer 286 see CONVEYANCEE. 4. Executor of a — Trustee - 409 see ExECUTOE. 2. 5. The mere fact of a person being named in a Will as an Executor does not prevent him purchasing the Testator's pro- perty if he has never taken upon himself the duties of an Executor or Ti'ustee unless he makes use of his position in order to commit a fraud - . . 590 see Peaud. ahu Children. 1. 128 Mahomedan Marriage Ordinance. 2. 265 Testator. 3. 608 WITHDRAWAL OF CASE— Supreme Court — postponenient - . 345 see Oeder of Hearing. SUMMONS-Discbarge of prisoner— not liable to be re-tried 556 see Acquittal. WITNESS— Arms and Aumiunition— Ex- portation . 515 see Evidence. IO. 758 INDEX. WITNESS— continued. •2. • -Occupation — description in affi- davit - - 120 see Bill of Salk. 1 also Bankbtjptcy. 2. 569 Laboub. 1. 230 Magistkate. 1. 79 Ntw Trial. 1. 186 WITNESSES— All witnesses called before the Magistrate on behalf of the prosecution should, as a general rule, be called for the ja'osecxition in the trial at the Assizes, but the prosecuting Counsel has a discretion in the matter, and the Court will not interfere with such discretion. In future however, in all cases in which the prosecuting Counsel in exercise of his discretion omits to call such a witness, the witness should be produced in Court and the Counsel for the defence might, if he think proper, call him as his own witness. If he so call the ivitness, such witness will be subject to eross-exainination by 'the Covmsel for the prosecution in the same way as any other witness called for the defence. Rbginau. Teo Ah Hoo .... 317 2. Defence —Right of reply see ATTOBNtir-GKNEKAL. 1. also Habeas Corptjb. 2. WOMAN— .s-ee Bigamy. 1. ■ Ohildiikn, 1. 605 685 513 128 Gaming. .">. 615 Hindu- Husband and Wife 327 Lottery. 3 668 Mahomedan Marriage Ordinance. Mahomedan Married Woman. Married Woman. Promissory Note. 1. 6 • Prostitution. 1. - 385 Reply 416 Widows 380 Wipe - 376 WOMEN AND GIRLS PROTECTION ORDINANCE— see Conviction. 4. 493 see also Habeas Corpus. 2. 685 WO«DS— " Accomplice " - 597 see Lottery. 2. " Any person " - 162 see Married Womin. 2. "Anything done in the exe- cution of his duty as such Police Offi- cer" - : 240 see Police. 2. " Buildings " 103 see Assessment. " Cause of action arose " . 311 see Limitation. 1. WOUDS— continued. ' ' Either or otherwise " 1 see Security. 1. " His house " - - . 533 see Land. 13. "Houses'" . 103 see Assessment. " Inadvertence " - 279 see Bill of Sale. 3. "Knowingly" . . 230 see Labour. 1. " Make himself a defendant " 688 sec Crovfn SiriTs. " Material fact " - 319 see Agent. -" Mutual dealing " - . 281 see Bankruptcy. 1. " New Trial " . . 258 see Jury. "Or any othej- disease " 666 see Cattle Disease. ' " Or otherwise " - 240 see Police. 2. of — " Or otherwise, obtains possession - - - 385 .see Prostitution. 1. " Other hands " . 136 see Agreement. 1. ■' Present " 136 see Agreement. 1. "Prosecution" - 1 see Security. 1. "Public or a class of the pub- lic" - . 518 see Gaming. 4. "Public Place" 346 see Affray. " So bound " . . 230 see Labour. 1. " Siiitable House " - . 463 see Promise. 1. " The Court below " - 407 see Fresh Charge. 1. WRIT OP MANDAMUS— see Consular Court. 1. 274 WRIT OP SUMMONS-Service out of jtirisdiction - . 52J see Contract. 10. 2. - — -Payment by defendant on service to Sheriff— misappropriation— liability of defendant . . . gj^ see Sheriff, also Crown Contract. 2. 680 Summons. WRIT ON MESNE PROOESS-Arrest of defendant — imprisonment — security — writ declared void . - 71 see Bond. WRONG OHARGE-see Proper Chae- "^^•2 472 INDEX. 759 WEONGFUL DISMISSAL— In order to justify the dismissal of a servant, it is not necessary that there should be any moral tui-pitude in any act done by him; it is a suffi- cient cause to dismiss him if he represent an untrue condition of things to his employer, though he thereby cairses his employer no actual loss. Where therefore the Manager of a Mercantile firm had overdrawn his account and was requested by the fii-m to liquidate his debt as soon as possible and at the end of the half-year not having done so, but — in order to indxice the firm to be- lieve he had to a certain extent done it — in making up the balance sheet he entered a balanceonly as due by him,and the difference between his actual debt and the balance he ' WRONGFUL DISMISSAL— co»!