B Cornell University 9 Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924103378927 CORNELL UNIVERSITY UBH ARY 3 1924 103 378 927^ STRAITS LAW REPOETS BEING A REPORT OF CASSS DECIDED IN THE SUPREME COURT OF THE STRAITS SETTLEMENTS, PENANG, SINGAPORE AND MALACCA ALSO A FEW JUDGMENTS OF THE I.NDIAN AND ENGLISH UASES. WITH AN ANALYTICAL INDEX BY STEPHEN LEICESTEH, Chief Clerk to the Magistrates of Police, Pcnang. Printed at the Commercial Press, ey Heap Lee & Co. BEACH (STKEBT, PENANG. 1877. IS PEEFACE In sending forth this work before the public, the publisher d-eems it necessary to say a few words in regard to it. It is an attempt in collecting, he thinks, for the first time on a large scale for public circulation the various judgments and decisions of the Supreme Court on questions of law affect- ing the mercantile community and others, as well as the native inhabitants of these Settlements. The judgments in Reg. vs. Willans, Choa Cheow Neoh tts Spottiswoode, Ong Cheng Neo vs. Yeap Cheah Neo, The Mu- nicipal Commissioners vs. Tolson, Fatimah vs. Logan and the Appeal Cases, deserve notice. In the Appeal Case of Yeap Cheah Neo vs. Ong Cheng Neo to the Privy Council, their Lordships referred to, and made a brief remark concerning the judgment of Choa Cheow Neoh vs. Spottiswoode, in affirming the decision of the presiding judge. In 1807, Sir Edmund Stanley was appointed to establish the Recorder's Court in Penang, he arrived in the following year with the first Charter, and the Court was then established. In 1826, a second Charter was granted, by which Singapore and Malacca were annexed to Penang. Between 1850 and 1855, the trade and population of these Settlements had considerably in- creased and the business of the Courts could hardly be accom- plished by one Recorder, the residents of Singapore petitioned the Home Grovernment for a resident professional judge and their petition was favourably received. In January 1856, a third Charter was granted, Sir Richard McCausland was sent out to be Recorder of Singapore, and Sir Benson Maxwell of Penang. 111. The Transfer of these Settlements to the Colonial Office took ]plaCe on the 1st April 1867, the title of the respective Recorders was then changed, the one of Singapore styled Chief Justice of the Straits Settlements, and the one of Penang, Judge of Penang. Since the promotion of the last Judge of Penang to another Colony, that title has ceased. His successor is styled Judge. A high Government Officer, a memher of the Bar, has had the kindness to furnish the publisher with certain infbrmation regarding an Imperial Act and Ordinances, which are super- seded or repealed by Ordinances subsequently passed ; with this information and the list of unrepealed Ordinances prepared by him and of certain Indian Acts added thereto, will, he hopes in case of reference being required, prove useful. He is also greatly indebted to an Advocate of the Supreme Court for big manuscript cfOpies of the unreported judgments. He trusts the public will excuse any imperfections, but he feels assured from the support hitherto shown him in his pre* vious work, they will overlook them. S. L. Penang, ) 1st December, 1877, | IV. ERRATA. ^ 'age 51 line 32 for '• oldt" r 3ad "old" „ 63 „ 16 „ " condouct " "conduct" 66 „ 23 „ "The" "This" 109 „ 30 "nott" " not " 114 „ 18 „ "i" , "is" 150 „ 26 between words "any our" . "of" >i 458 „ 10 for "di pertuan " "de pertuan" 461 „ 19 „ "then" , "than" 461 „ 28 ,, " condsider ' ) "consider" 463 „ 4 ,, " domicils " , " domiciles" 471 „ 5 ,, " apointment" , , " appointment ' 481 „ 10 „ "his" , " her " 3rd word. , 606 „ 12 „ "XVII of 1868' , " XVII of 1863 " ABBREVIATIONS SELECTED. anr. for ajiother. c i Cap. or ch • I. chapter. cl. ,, clause. Or. L. Criminal Letters. Cr.R. ,, , , Rulings. Gov. Gaz. ,, Government Gazette. Ind. ^, India or Indian. In re, ,, In the matter of. Law J. Eep. Law Journal Reports. Mag. ,, Magistrate. Max. ,, Maxwell. Ord. Ordinance. ors. others. P- page. par. paragraph. P. 0. Penal Code or Privy Council Prac. Practice. Pro. S Mat. Probate & Matrimonial. Q. Queen. Beg. Regina. s., ss. or sees. Section or Sections. V. or vs. Versus. Vk. or Vict. Victoria. IW.B. 1st Vol., Weekly Reporter. Srd Ed. Srd Edition, ANNO VICESIMO NONO & TRICESIMO VICTORIA REGINiE. CAP. CXV. An Act to provide for the Government of the "Straits Settlements." [ \Qth August, 1866. J Whekeas the Islands and Territories, known as the " Straits Settlements," namely, Prince of Wales' Island, the Island of Sin- gapore, and the To-w^n and Fort of Malacca, and their Dependencies, were heretofore Part of the Territories in the Possession and un- der the Government of the JEast India Company, and became vested in Her Majesty as a Part of India by virtue and subject to the Provisions of the Act of the Twenty-first and Twenty-second Year of Her Majesty, Chapter One hundred and six, intituled An Act for the better Government of India : And whereas it is expedient that the said Settlements and their Dependencies should cease to form Part of India, and should be placed under the Government of Her Majesty as Part of the Colonial Possessions of the Crown : And whereas it may be hereafter expedient to include the Colony of Lahuan within the Government of the said Settle- ments : Be it enactedj by the Queen's Most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual aud Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, as follows : — % VI. ■hall c of luilia. 1 . It shall be lawful for^Her Majesty, by Order to be by Her made with the Advice of Her Privy Council, to "TeaL^f'briar? doclare that this Act shall come into operation at a Time to be specified in such Order iii Council, and at such Time the said .Settlements shall cease to be Part of India for the Purposes and within the Meaning of the aforesaid Act, and it shall be further lawful for Her Majesty by any such Order to make Provision respecting the Enforcement by or against the Government of the said Settlements of all or any of such Debts, Claims^ and Obligations as might if this Act had not passed, have been enforced by or against the Government of India in connexion with the Administration of the said Settlements, 2. From and after the coming into operation of this Act, it shall be lawful for Her Majesty, by Order or jest*y°Tn coSfoii'^fo" Orders to be by Her from Time to Time made, STurts^T' "°""'"' with the Advice of Her said Privy Council, to establish all such Laws, Institutions, and Ordin- ances, and to constitute such Courts and Officers, and to make such Provisions and Regulations for the Proceedings in such Courts, and for the Administration of Justice, and for the raising and Expenditure of the Public Revenue, as may be deemed ad' visable for the Peace, Order, and good Government of Her Ma- jesty's Subjects and others within the said Settlements, or within any Territory which may at any Time be Part of or dependent upon the same, any Law, Statute, or Usage to the contrary in anywise notwithstanding, 3. It shall be lawful for Her Majesty, from Time to Time, by any Letters Patent under the Great Seal of jesTt" delegate He" ^"^^ United Kingdom, or by any Instructions frTo r^slderM-- under Her Majesty's Signet and Sign Manual •="»■ accompanying and referred to in any such Let- ters Patent, to delegate to any Three or more Persons within the said Settlements, or within any Part or De- pendency thereof, the Powers and Authorities so vested in Her Majesty in Council as aforesaid, either in whole or in part, and upon, under, and subject to all such Conditions, Provisoes, and Limitations as by any such Letters Patent or Instructions as 'aforesaid Her Majesty shall see fit to prescribe, and subject as aforesaid, to empower such Three or more Persons to exercise in respect to the Island of Labuan and its Dependencies all or any of the Powers and Authorities herein-before vested in Her vu. MajeBty in respect to the said Settlements : Provided always, that, notwithstanding any such Delegation or Grant of Autho- rity as aforesaid, it shall still be competent to Her Majesty in Council in manner aforesaid to exercise all the Powers and Authorities, either by virtue of this Act or otherwise, vested in Her Majesty in Council. 4. Until otherwise provided by Her Majesty in Council, or by such Three or more Persons as aforesaid, Existing Laws and gll Lsws Of Regulations (except the aforesaid Officers preserved. at»t \iiti Act of Parliament) which, when this Act shall come into operation, shall be in force in the said Settlements and their Dependencies, and all Proceedings of any Court of Justice had or to be had therein, shall be and continue to be of the same Force and Effect, and all Judicial and other Officers who, when this Act shall come into operation, shall be lawfully exer- cising their Offices in the said Settlements and their Depen- dencies, shall continue to have and exercise the same Functions and Authorities therein, as if this Act had not been passed. Till. Government Gazette, 22nd March, 1867. NOTIPIOATION. Coneequent upon the following Order of the Queen in Council published for general information, His Excellency Colonel Harry St. George Ord, C. B., having been appointed Governor, will assume the Administration of the Straits Settlenients on the 1st April. (Sd.) B. Maopheeson, Lieut. -Colonel, E. A., Singapore, Resident Covneillorand Secretary to 22nd March, 1867. Gowmment, Straits Settlements. STRAITS settlements'. CPeince of "Wales' Island, Singapore and Malacca.) Order of the Queen in Council for Bringing into Operation the Act 29 and 30 Victoria, cap. 115, intituled "An Act to Provide for the Government of the " Straits Settlements." At the Court at Osborne House, Isle of Wight, the 28th day of Decem- ber, 1866. Dated'28th Deeenlb6r,A866. Present. THE QUEEN'S MOST EXCELLENT MAJESTY. Lord President. Viscount Cranboenb. Sir John Pakinbton, Bart. Lord Chief Justice of the Common Pleas. Me. Seymour Fitz-Gbrald. Whereas by an Act of the Twenty -ninth and Thirtieth Tear of Her Majesty, Chapter One hundred and fifteen, intituled "An Act to Provide for the Government of the Straits Settlements," after reciting that the Islands and Territories known as the " Straits Settlements," namely, Prince of Wales Island, the Island of Singapore, and the Town and Fort of Malacca and their Dependencies, had become vested in Her Majesty as a Part of India, by virtue and subject to the Provisions of the Act of the Twenty-first and Twenty-second Year of Her Majesty, Chapter One hundred and, six, intituled " An Act for the better Government of India ; " and that it was expedient that the said Settlements and their Dependencies should cease to form a Part of India, and should be placed nnder the Government of Her Majesty as Part of the Colonial Possessions of the' Crown, it was Enacted that it should be lawful for Her Majesty, by Order to be made by Her Majesty with the Advice of Her Privy Council, to Declare that the said First mentioned Act should Come into Operation at a time to be specified in such Order in Council, and that at such time the said Settlements should Cease to be Part of.India, for the Purposes and within the Meaning of the said Act for the better Government of India, and it should be lawful for Her Majesty to exer- cise in respect to the said Settlements the Powers set fbrth in the s^id First mentioned Act. And Whereas it is expedient to Bring into Operation the said First men- tioned Act. It is Hereby Ordered by Her Majesty, by and with the Advice of Her Privy Council, that on the First day of April, 1867, the said Act to Provide for the Government of the Straits Settlements shall Come into Operation. (Signed) EDMUND HARRISON. IX. JUDGES. 1st Judge and Mugistraie of I'nnce nf Wales' Island. John Dickens Esq. faj 3800-1805, 1st Ohaexkr :)f JusTieE, 1807. Recorder of Prince of Wales' Island. Sir Edmund Stanley. Knt. Cb.J 1808-1816. ,, Andrew A. Cooper, ,, Cc.J 1816-1817. „ Ralph Rice, „ fc.) 1817-1823. ., Francis S. Bailey, „ 1823-1824. ' 2nd Charter, 1826. Recorders of P. W. Island, Singapore and Malacca. Sir John T. Olaridge, Knt 1826-1829. i, Benjamin "H Malkin. „ fd.J 1829-1835. ,. Edward J. Gambier, „ fl.J 1835-1836. „ "William Norris, 1836-1847. ,, Christopher Rawlinson,, fb.J 1847-1850. „ William Jeffcott 1850-1855. 3rd Charter, 1855. Recorders of Singapore and Malacca. Sir Richard B. MoCausland, Knt. 1856-1866. ,, P. Benson Maxwell, ,, 1866-1867. Recorders of P. W. Island. Sir P. Benson Maxwell, Knt 1856-1866. ,, William Hackett, - ,, 1866-1867. THE TRANSFER. From the Indian to the Colonial Government. The Colonial Ohartbb, 1867. Chief Justices of the Straits Settlements. His Honor Sir P. Benson Maxwell, Knt 1867-1872. ,, „ .. Thomas Sidgreaves, ,, ... ... 1872 Geo. Phillippo Acting from 21st to 31st Dec. 1876. Theodore T. Ford ,, 1st Jan 1877 to- Judges of Penang. His Honor Sir William Hackett, Knt. (e.) 1867-1876. Theodore T. Ford, Acting from 17th July/74 to 30th Mch/76. Geo. Phillippo, ... „ „ let Apl/76 ,, 20th Deo. „ Pmsne Judges. Justice Geo. Phillippo 16th Feb. 1874 to 3l8t Dee. 1876. Theodore T. Ford 15th Apl. „ ,. 30th Moh „ R. 0. Woods. Snr. ff.J Atg. ... 11th Dec 10th Dec. 1875. Jonas D. Vaughan, Cf J „ ... 12th Moh. 1875 ,, I3th Aug. ,, Theodore T. Ford 19th Dec. 1876 „ Henry L. Phillips, C. M. G. ... 30th June 1877 „ 9th |-Sept. 1877. Thomas Lett Wood 10th Sept „ ., (a.) A Barrister of the Calcutta Supreme Court— powers limited. Salarj $ 964-73 a month. (&.) Afterwards appoiuted to be Chief Justice of Madras. («•) ; „ „ » I. >, M „ Bombay, (d.) „ „ „ „ „ „ „ „ Calcutta. Salary of the Recorders under the 1st Charter was 1000 Dollars— under the 2ad 3000 Sicca Rupees. (e.) Afterwards appointed to be Chief Justice of Cejlon. (f.) Barristers of the Local Bar. LORD BACON > ADVICK. Eitr&ct from Lord Campbell's work on the life of Lord Bacon. While Lord Bacon was Chancellor he regularly twice a year before the commencement of each of the two circuits — assembled all the Judges and all the Justices of Peact-that happened to be in London in the Exchequer Chsonber, and lectured ihem upon their duties — above iill admonit;hing them to uphold the prerogative " the twelve Judges of the realm being the twelve lions under Solomon's throne, stoutly to bear it up, and Judges going circuit being like planets, revolving round the Sovereign as their sun." He warned them against hunting for popularity, saying, "A popular Judge is a deformed thing, and plaudites, are fitter for players than magistrates." The Justices he roundly threatened with dismissal if they did not effectually repress faction, " of which ensue infinite inconveniences and perturbations of all good order, and crossing of all good service in court and country." And he told them he should follow a fine remedy devised by Cicero when consul, a mild one but an apt one : Eo» qui otium perturbant reddani otiOoOt. In swearing in new Judges, he delivered most excellent ad- vice to them. Thus he ci>unsels Justice Hutton, when called to be a Judge of the Common Pleas : — , " Draw your learning out of your books, not out of your brain." " Mix well the freedom of your own opinion with the rererenee of the " opinion of your fellows.'' " Continue the studying of your books, and do not spend on upon the old stock." " Fear no man's face, yet turn not stoutness into bravery." " Ba a light to jurors to open their eyes, not a guide to lead them by th» nosei." ■' Affect not the opininn of pregnancy and expedition by an impatient and " catching hearing of the counsellors at the bar." " Let your speech be with gravity, aa one of the gaffes of the law, and not " talkative, nor with impertinent flying out to show learning.*" " Contain the jurisdiction of your Court within the ancient mere-»tonei, " without removing the mark." * " An overspeaking Judge is no well-timed cymbal. It ii no grace to a Judge first to find that which he might have heard in due time from the bar, or to show quickness of conceit in cutting off evidence or counsel too short, or to prevent (anticipate) information by quaBtions, though pertinent."— Esiay of Judicature. COURT or JUDICATUKK. 19th November 1827. SIR JOHN THOMAS CLARIDGE'S Charge to the Grand Jury on opening the first Session of Oyer and Terminer of the Court" of Judicature of Prince of Wale«' Island Singapore and Malacca. Genthmen qf the Grand Jury of Frinct of Wales' Itland, Singapore and Malacca ! I regrot, that I am unable on the occasion of our first meet- ing, to congratulate you on the lightness of the Calender ; which presents a Liit of crimes, and offenders, that must, I fear, de- tain you from your other avocations, a considerable time. But it must be remembered, that many months have elapsed since the last Session of Oyer and Terminer was holden in this Island ; and many offences will be brought under your notice that have hitherto been disposed of elsewhere. With such a Calender before you, it is not my purpose to fatigue your attention with many remarks on our Charter ; which has been obtained on the petition of the East India Company; to whom, on that account, as well as to the Royal benevolence, the thanks of the inhabitants of the united Settlement are justly due. Its provisions are nearly the same as those contained in that which has just expired, and they are perfectly familiar to all of you. I am induced, however, ( by the importance of the subject, on the perusal of a passage, in our Island paper together with some Comments, by the Editor as I suppose, thereon ) to make a few remarks on the mode of proceeding in Civil Cases. (Here his Lordship read from the Pinanq Register and Miscellany of ^/»e 14^A Instant, the Editor's observation* upon^ and ail Extract therein given of a Letter from Mr. Brougham on on the subject of Going to LAw.)t f We earnestly recommend to the perusal of our readers, whether in any way applicable to themselves or to their acquaintance, who rhay be in the habit of resorting too readily to Law proceedings, an Extract that will be found in our following columns, of a Letter from that eminent Statesman and Lawyer Mr. Brougham, upon the subject of Going to- Law. From some years personal observation, we are inclined to believe, that no community under the Sun would the appointment suggested by Mr. Brougham be more beneficial than to that of this Settlement ; in which, whether from false impressions of right founded in igporance and unchecked or encouraged by the counsel of interested COURT or JUDICATURE. Whether such a tribunal would answer the en4 propoBed I need not stop to inquire, but with the observation* of the Editor, as applicable to this place, I entirely concur. Many of the cases which I have decided in the course of the last fortnight, ought never to have come into Court at all ; and I oould have accomplished in five minutes that which has occupied -mine, or rather, the public time for hours, if the mode of pro- ceeding pointed out by the old and present Charter had been properly followed. or half informed advi««rg, or from whatever other reason . there is little doubt but that, comparatively, more groundless Causes hav'e been brought into our Court than into that of any other Settlement in India ; not only to the annoy- ance of Individuals, who are comficlled to waste tl'ieir time in apjiearing to an- swer such vexatious calls, hut to the greater annoyance and the losS of the more valuable time of the Court, whose patience must be' subjected to the se- verest trial, in being obliged to sit and hear a long and tedious course of inter- preted evidence, which in the end, turns out to be, totally unnecessary, or to establish a point that could have been easily determined by any uninterested person of common converse with the every day busines.< of the world. It would be furtbor beneficial in checking that teodoucy to corruption which is much too prevalent and considered no crime among the Native popu- lation ; who are very apt to believe, from the flight grounds on which they are advised to go to Law, that trick and chicanery sufficient for their own purpose may be purchased at some price. Penang Register and Miscellany 14zih Novemher 1827. GoiNO TO Law, — Mr. Brougham in a letter on the subject, says, " If, in the earliest stage of a cause, there were a posihility of bringing the parties themselves before a Judge or officer of reapoctability, who might hoar them state their mutual contentions, and the grounds of them, might question them, »ad cqnfer with them,upoh the whole mutter, and' give them his impression of the case, my firm belief in that much more than onfehalf the causes thus begun never, would proceed one step farther ; and that a still greater proportion of the causes now tried would lie abandoned or settled before they came into Court. The appointment of such arbitrator.s by public authority might have the most beneficial effects, effcn, if, at least, it were not made compulsory to go. before them ; for suroly many parties would be found not so entirely in the hands of these law agents as to prefer the course beneficial only to the profession " Something like what jMr. Brougham' suggests has long been practised in Den- mark. Parties, before entering on litigation,' appear in what are called Court of Rooopoiliation, andhoar the opinion of the Judges of the case, and if they choose to abide by the suggestion of ths Judge, a decree is entered ; if not,; they try their suocsas at law. [Samp. Telgph, 28ih May. ] T. W. ISLAND OR PENANO. Reverting to the Paragraph t6 which I have alluded, you may be surprised to hear, that a tribunal similar, certainly, in spirit, if not in exact resemblance, exists at this moment in the Settlement, and has done so in this Island, ever since it had a Charter. You know that in this Court all the Powers of all the Courts of Westminster Hall are consolidated ; you know that this Court ie g,l80 one of Ecclesiastical Jurisdiction ; you know that the mode of proceeding pointed »at by the Charter in page 28 of, the printed copies is as follows. " That upon any Cause of Action or Suit supposed to have arisen and to be cognizable by the, said Court in any of its Juris- dictions herein — mentioned upon any Occasion where the Aid of the said Court shall be required, it shall be lawful and competent for any Person whomsoever, by himself or herself, or his or her lawful Attorney, or his Friend or Agent, to prefer, verbally or in Writing to the said Court of Judicature of Princt of Wales Island, Singapore and Malacca, or to any of the Judges or the Registrar thereof, his or her Complaint, and thereupon the Recorder of the said Court of Judicature of Prince of Wales, Island, Singapore and Malacca, or the Registrar of the said Court, or the Clerk of such Registrar, by his Direction, shall reduce the Substance of the said Complaint, if verbal, into Writ- ing ; or if it shall be preferred in Writing, he shall divest it of all extraneous Matter, and set down the ,Substance thereof in a Writing to be drawn up, if it shall require to be re-drawn; and such Complaint shall be in, or shall be reduced into the Form of a Petition to the said Court Rotating shortly the Substance of the Matter complained ofj or touching which the Aid of the Court is required, and praying that Justice may be done, as the case shall require, and such Petition shall be filed of Record in the said Court." * Suppose a person to present himself before the Court, and state his ground of complaint while the three judges are sitting : pr suppose hin> to go to any one of the three judges individually. Upon hearing, or reading his complaint, the judge or two of them would refer him probably to the Recorder, or Re- gistrar, and I should wish to know, whether the Recorder, or even a Clerk could be said to transgress-the bounds of ' duty, by telling him, that, provided he proved his statement to the fall, he must necessarily fail in a Court of Justice. If a man is fool enough to go into Court, after such an admonition, he ought to be made to pay for his own obstinacy, and for the trouble given COURT or JUDICATURE. by him to the other party. If he is wise enough to t^ke the advice offej'ed to him, no harm has been done, and no trouble given to others. There are and always must be many cases which cannot be thus disposed of; such casea are the proper' sub- ject for the decision of a Court of Justice and the parties are fully warranted iji referring them, where the Law is uncertain, to the Tribunals of the Country.' It is my duty to tell you, that every person who has a cause of complaint, for which he asks redress in this Court, may get his petition drawn wherever he pleases ; but I recommend, every person so circumstanced, to apply to the Registrar, in the first instance, who will hear his complaint, draw his Petition, and if necessary, introduce him to the Recorder. By these means he will learn, whether he has a fair ground of success or not, and the extortion, which has been practised in this Town upon the more ignorant classes of the Population will be prevented. By the liberality of the E. I. Company, a monthly sum. has been placed at the disposal of the Court, which will enable it to secure an efficient Establishment of proper Clerks. These per- sons are instructed when drawing Petitions to state the substance of the complaint, in the manner pointed out by the Charter, so that a Defendant, may know what he is really called up6n to answer. They are instructed moreover Jo adopt the same course in framing Pleas'and Answers ; so that each party will know his adversaries case, and the presiding judge be enabled, to ascertain the point which awaits ;his decision. To give you a familiar instance. Suppose an Action brought on a Promissory note ; here, proof is to be given, of the signing of the maker, if the Defendant simply denies that it is his Note ; But suppose an Action brought on a Note for a Thousand Dollars, and the Defen- dtftit to admit the Note to be of his making, but says " I have delivered to you goods to the value of a Thousand Dollars, or less ; Now in such a case the question is whether he has delivered -goods to that amount, or not. If he has, the Plaintiff will fail, and must pay Costs. If he cannot prove his full set off, as it is called, he must pay the difference, and Costs into the bargain ; Common sense it is hoped will teach parties not to litigate in cases like this. But whatever may be the propensity to litiga- tion among the Inhabitants of this settlement, a steady adherence to the mode of proceeding which I now reoommeud, will contribute effectually to check it. To prove to you that such propensity doei exist, the following inetance out of many must p. W. ISLAND OK PENANG. at present be sufficient. A man brought an Action in the Court of Requests in which he was non-suited. He appealed against the decision of the Court below, and for lodging his Appeal he paid three Dollars ; he was not present when his Appeal was called on,, and his Cause was consequently struck out of the Paper. He paid 75 pice to a person in the Town, for drawing his Petition to hare it restored, and he actually paid four more Dollars to this Court for Subpcenas and costs, and by his own Petition, brought in by himself, it appeared the sum in dispute was thirty five Pice. I do not wish by what I have just now said , to discourage the employment of proper Agents, but as far as I am able, I will prevent the admission into this Court of persons who are' unable to do their Clients that justice which every one has a right to eipect.from professed advocates. "With respect to Executors and Administrators, you will observe that very extensive powers are entrusted to the Court ; very beneficial to the inhabitants of this Settlement provided they are duly and regularly exerted, and likely to prod/uce much public and private inconvenience, if neglected. In cases which fall within the 'provisions of the Charter, the Court is resolved to adhere strictly, to its duties as therein prescribed : A person therefore after application for letters of Administration, will be required to make imd exhibit to the Court an Inventory of the Goods of the deceased, according to the Condition of his Bond ; and afterwards to give a true account of his Administration ; and Executors will be called upon to pass their Accounts from time to time, until the Effects of the deceased shall be fully administered. The course of Administration, is, I presume known to and understood by all. The debts are first to be paid in regular order, nnd then the provisions of the Will carried into execution, — or where there is no Will, the Effects distributed among the next of kin, according to the Laws and Customs of the Nativa Inhabitants. But administration may occupy a considerable time ; there may be debts owing in various distant places, and the parties beneficially entitled after payment of those 'debts, may reside permanently, or temporarily, in other Countries. It is thus, a matter of great convenience to an Executor, or Administrator, to have a secure place of deposit at hand, for such funds and property, as may have come into his possession; such a place of deposit exists in this Settlement, namely, the Treasury of the East India Company ; for no other reasons I believe, than COURT OF JUmCATTJllK. to preserve this property in a place of security, was the clause relating to deposits in the Company's Treasury, inseirted in the late Charter ; and the same remarks will apply to the corresponding clause in the present. ' ' It is of the greatest consequence to the Inhabitants of this Settlement to know, that such a place of security exists ; and to know al^o that there is a Court which is able to protect the chil- dren and property of those who have been searched away without warning and who may have left their affairs in confusion and family unprotected. The Court is also authorized by the present Charter to hold General and Quarter Sessions, for the particular purposes therein specified : and it is particularly, ordained, that the Court shall have power at their (jreneral or Quarter Sessions, by themselves, without any inquest or Jury to inquire of, hear and determine, all breaches of the peace, quarrels, controversies, and other crimes, and misdemeanors whatsoever, other than and except Treason and Felony, and to cause the necessary witnesses to be summoned to give evidence, upon oath, and to award and cause such punish- ment to be inflicted on sUch persons who -shall be found guilty by them, of any such Offences, so as such punishment shall not ex- tend to life or limb, or perpetual impirisonment, or banishment, or transportation, from the settlement, and so as such .punishment shall not be repugnant to the religious customs or manners of thB person on whom it is to be inflicted. And the Court is authorized to proceed to the trial and punishment of such offenders as last aforesaid, in such summary way. I have beeii more careful to direct your attention to this part of the Charter, because, the practice obtained in this island, until lately, for a single Magistrate, sitting at the Police Office, to flog, fine, and imprison Offenders at discretion. This practice has been all along, and is illegal; Having said thus mu'ch, I trust, that I shall not again have occasion to notice it from this Bench. But let not servants, and others who may be guilty of offences falling short of felon V, think, that they, will escape punishment with impunity. The Sessions have power, as I have just remark- ed, to try not only offences short of felony, but even quarrels, and controversies, and to inflict summary punishment in a sum- mary way. In the present state of Society in this island, it is absolutely necessary that such a power should be lodged somewhere ; and for the future, the Court of Quarter Sessions will hold Sittings for the trial and punishment of offences of this nature : and the same p. W. ISLAND OE PENANG. 8 good wliich was effected by the late practice at tlio Polico' Office, will, it is hoped, be obtaiiied ii; the Court of Qiiarier Sessions by procee himself, a most honorable cxccpiion of Mr. Brown of Glugore, n'>t an individu^d rolnnlefred. I re;;ret that I am .djJiged lo notice this want of public spirit; jnul I n-^ret that I am obiigi'd from llli^ Bench, lo state the deteniiin.uicn of the Court, to puiii?h "ith severity all tho'C,' who having been called oil to take upon themselves in rotation, tiio dn ies of pe:ico officers shatl refuse to take iho necessary oatli, and net accoidin,'ly. Willi what propriety can the Government be called upon, to con- tribute funds for the preservation of order unless the inhabitant^, to proleci whose interests the police is established, will lend their aid in canyiii''- these objects into effect. ^Vitll respect to the Police itself, inquiries have been ra»de by the direction of the Court, of (he Supcrientendent of Police, of I he numbet of Constables and snbdrdinate Peace Officers cm- ployed on the Establi-hmetit, and whether the E^tnblishment of the Suiterintendeiit of Police is "complete, and whether the Office i* supplied with efficient Clerks— Whether many robberies have been committed, the perpetrators of which, have not been discovered— Whether there ia an efficient Marine Bolica— -Whether there is a 9 COTTRT OF JTJDICATURB. Police E4lablisliraflnt in tlie Oppoaiio Coast — AVhetlier there is a Niglit Parole on tlie Opposiro Coast iiiid on tliis isKmil — Wlicllser in Ills opinion, tlie B-titblisliincnt on tliis island, and on (lie Opposite Const, i.s NiiQiciont to protect tiie |iei'^>iln''iioii ii:u« a'so liiknn-pb'rK in tiie I'olici* liital'lifiiiUiMit, i.oiii in mnib'r iind Hifi'*!*: " i|i<> proeiil t-lrciiuiii'' S!i^!i Mr. Ciiu i!(i', ■' I lio not iliiiik >-nfficinnfc f is ill the Sin!ii<;' Majii-ifjue's office I am not ablo to inlorin \(iu ; but M' ti'Cf 1) pMinn nr. id' Siiporifiiii'iidcni «f I'olifC is still uiiilf-il to iliat'd'iiiH 51 .it;i-ti!itH, 1 lli'ii/k iliat mnlu ion^ and iiieoiiVi'iiiL'iice ir>i;.;iit HiiSil-. 'I in- dniii-fs of tlus two arn quite «)pprev»iiit iiif criniH Iiy it-i vigil ik'c, and ilHtetviui ihe perpetrator-" wheii ciiuics iir»* coniiuiiied. Tlie AEa^ijtraie sils fi^' i be purpose of coniinittinir I" Gio', llio-ie who have been brouufbt b^ fore bim liy the Tolice, that they inn y bo piii oti ilu'ir tri;ii bnfore a jury iiidne sc/ison. One department n'tjuire*, a number of active oflicery, to range the coun- try, or remain ^lationar)' in proper |ibu'ei<, lo act wIkmi railed upon by those "hose pir«>iKS aiid property have r«eeived injury 'I'ho othor requires ihe ailendanoe uf a vigilant and sagaciotis Ma^i^trate, and an adequate number of Clerks and Interpreters. We fintl that the united Establishment of the Sittiiifj Magis- trate and the Superinleiident of Police, has been greatly deficient. We find tbe number of constables and other subordinate officers, has been of late amply sufficient for the protecl/oti of the- people. Wc find that there is no Mariiie Police, and that ihe Police on llio opposite shore ii under a Provincial Superintendent^ and that the number of Officers on the establishment is not known. We hi:ve beeu favoured with the opinion of (he Sitting Mfigis- trato respecting the number of Clerks, Interpretera, and other olficeis necessary to conduct the business of that departpient, and you are acquainicd with the opinions of the^Superintendent of Polipe, from what I have just ^ead to you. - , \W have received the united opinion of the Sitting Magistrate and the Superintendent of Police, as to Ihe neccssiiy of (Hviding these I wo offi(;eg ; I therefore recommend you, the Grand Jurv to present, that lUcse two offices should be divided— that a proper placa r, W. ISLARS OR PENANO. 10 BJiotild be set apart for tlie Sillin,^ Magistrate, wiili tlie number of Clerks, Interpreters and otiier officera recomineinlccl liy Iiim. We rficoinnieiid that a full Ei^t.iblir-liiiirrit of CoiistuWes, J«me(liirs und Peons should be continued under the irisiiectiou of the Superintendent of Police — that the Supninleridt^iit himself, should be jihvavsa Magistrate, and have llio ICjial.i'isjlimcot allowed to him, by Uovernment, reco in mended in his Report. That a Marine Police be established, and placed undfir tiio Superintendent of Police — and that tha establishment of Police en the oppo4te shore be continued under the superintendence of a proper Controlling auihority. * Having said thus much respecting the Charter, it is my duty to address you on the particular matters wl'ich are now given you in charge. You are aware that the Grand Jury is returned by the Sheriff to enquire, present, do, and execute all those things which on the pare of the King shall bo rommnnded Ihcm. It is usually composed of gentlemen of the best fii;ure in the county, and the same rule is observc- a true Bill. It is therefore iie- re*sarv fora Grand Jurv to ttiki? ilie witne-ses one by one and if tlicy are satisfied, to iiml ilm Bill tiuc, "'o the evidHiire uf one or uiore> but not to r.j "M ilunil'thcv Kavo Jie;ird the evidence of mII. '^ Hi< Lor.Mii|i then diiei'ti'd the aitcntion of the Gf.ind Jury to Ihe insiilnbiity of (lie I-bind arising from the ^tate of the ro^ids parlicuhirly one >p"t n(-'ar 1'u1l> Toku", which hnd buen nearly ini- passiible for six nenk-: -and I'l^fcrrinj; to I lie Gaid, he told them tWt they nii^ht of cou -sf*, vi-it it if ilii'y wished, hot that he had rea'^on to know thai Government cnn'i'niplated the buildiig of a new Gaol iiean^r ill" Town. He tohl tlum also, that no i\lilitiiry Officer had aliv right lo vi-it Uio interior ot ihe Gaol without the pet'inis-ion of the Sliei iff, hut no ShoriflF, would ever hesitate lo grant such \^ei- mi.ssion on a priiper ap|ili<'!ition. His Lord diip coniinmvl and paid lliMt he did nut think it ne- cessary to diippt the iitlinii(n» of the Grand Jury to any of the cases which would be In'ou^ht bofore them, wiih the ixccption of n few whiidi he pointed out. There 'were muny caented (o have heen for a bahince of account, the sum Bou;;lit to be recovered lioiiig wiihiu the ai,iihon(y of the Court but beinsr the balance of an account of j>:rrtuiei' extent and in whieli some of the items iiidlvidnally CXL-Hcd tliH linjitcd sum. 'i'liei'c a|)pears to have been no r(^<;(iiar statement :ind ailjusnnwnt of an acoiiiit, so a» to furniili a conijdetely ne«' Ciiii-o uf iiction on an account stated, in which case no dnnbi •.pcms i" li;iv<' bfen cnioriainod lijat the povior of the Court woiiM ■■il'|>l.v ; but il is »ai I, on tlic ji'irt of the cOiii|dainaiit, thflfc he oonlil Iimvc in odiiccd (iviijiijict- loshowsoine acknortledijmHnt of a balnnc- si-iid iii;it cvi Iimmv wms iiol rHceivid. If il were iiccosfary In cxiininr oii.iiir Iv int'..- hIhiI tnok pLcfl on the iieariiig, nii>re inr'iiioiiiion vi.nld umli u''i<''!iy bu iiMjni-, ed, and a morercginhir uiiiniicr ofVii' iT'iih^i- iMi:.'liiinbi->;iilf'i'i''i!, lic- foro tbi>! Court c:in make any l.inili.n.: ■■niei- ii|i i: tit-: Uiiiiiiiiiii"ii'r of the C«)Uit below ; but a-; it :iji|) mis tin i n-y Ui;! >l c <.n y proper conr.'se of proceediii.: if tiip f iMiMui-- oiht m I'if' \\<> error in jidjuflicating on the Cii-c- 1 m li: d ii:' rely r fn •"! '■« liear it on a niistakf.'u notion ilut lie u.K u<.\ < iiip \>.-i,il i.. do so, would be to remit it to liini for iu'.-^riiiu. li.i' inof, on heiuiup- ih.ii oj)ini.iii the phiintifTsiiouId think it dcj^iiMb'!' m dn ^o. \i \\\\\ be "een by my giving the plaintiff that puwcr acted is this, tliat; the ohj-ct of llie insiiiution of (ho <• inferior Couit^i is to jiive a cheap and easy rniiic'ily for ail idniiiis of trivial amonnt, except iu ceriain ca^es "•here, by tlio pxpre<« iirovi>ii>ns of the statutes, claims MJiicli iwiiihl i»ave a material eollat^ral opera- tion as furni-hiiig evidt'oce of the title to lanil &e. are excepted from their power. DifRcnlt and ]>erp1exing quesiioiis mav iui-c in matters of f>mail as wi II as large amount, and the principle of all such Courts if to run the ri'^k. of a less correct judgment for the sake of having an earlier and cheaper deci'iion, in cases where, from the trivial tiature of the claim, ti tedious and expen.sive process is u prctiter evil than tlife dan<:er-of a less accurate rosuU. Thi»!irgiiment evidently applies to ilifficult as well as to easy questions: thegreater indeed the difficulty of a particular clas.sof investigation-, the greatet ik the evil of submitting thtiili to a less skilfijl' tribunal, t'ut it is a question only of degree and does not affect the nature of the nrgu- meat, though it tiiight' in certuiu idstahc&g i^r'oduoe'' a^difliir^hli p. W, ISLAND OK rENANG. 14 opinion !i9 to the bsilance of iiiponvenlence. . Tlie Gonrr of Coninion I'lcs eeem-i to have been principally impressed «ilh the inconvenience of allowinij claims not originally the snbjeci. of the jtiiisdiciioi) of llio Ci.nris of .Requests, to become so, at leii«t to tiie extent ol enqiiiiiiig into lliem collaterally, and Evre C. J. in pnrticiiliir ^^lly•* it would be iilloniny; iheni to exaniino into ihe mo«t intricate qii-nfions of mereantile aceonnts. In certain Ciist^-i ii mijjiit, but" still tlie qiv^fiioii iccnr-, i(' ihfl whole rlaini in ''xistt'iice :it the tiuieof'ilie luigati'Mi is uiUiin the limited amount, i* not I he party cnti led to jii:!' a-: clic;i]i luidsuiaia.-iiy a remedy in lli';Se e S!-i as ui any ^»lh^'r 1 Till! (idiinna^se is as gi-eat and ilio UKg-hietef a tvroii<>" deciriou i-i no jireiiler. ft; s .ems to nie that the^o ur-u u^-nts of iiiconvenience do not fun.ish iiny sufficient answer lo tlin reii^ouioj; on ihe olier I'ide, or t" ihe wonl-iof ihi-^Statnlva, Cli!irlei!< &.r. wliieli eni|)'i"er the diif.'r- oiit (Joint- in qii'Jslion : and :iii ex iMiinaiioii otHiu diff'ient ea^c8 whi'-U have heen decided niilioiit iiiiy fjai'stioii ari^iii^, jiecms ^tron:;ly lo eoiiliini the «lootiine ihiil Hlieiu^\Hr the " |,ole claim in exiitpiieo at liie time of the acioil hroij^lil i.s niihin the limited ainou il. the inferior Comts have jiirisri|;inally exceeding the (iniiiunt but reduced below it by |iai t, payment, by the circuin- s'ance that part of it has hfen barrerl by the o|>erati<>ii of tlie statute of limitations of by the infancy of the contractor, is within the authority of the Court of Requests. Atid wliy? Becauie although a larger sum may become the matter of enquiry the whole existing debt \a within the necessary nmouiit. On the oilier hand a debt to which a partial defence exi-its by reason of set off or tender is not within the authority of ihe .Courts. The principle of this distinction in cases of set off is so clparly explained by SirV. Gibb», arg : in Clark V. Askei* 8 E. 28, that I will only read his argument ( quod lege ) and refer further to the circumstance that it required a statute to admit setoff as a defence at ull. The case of tender ia equallyclearof explanation : for tite plea of tender admits instead of denying the debt ; the money tendered must be brought into Court and is taken out under iho auihority of the judgment, and ttie whole proceeding goes Hierely on the ]iriuciple of preventing < Vexation on the part of the plaintiff, not on the dLsaffirmaucc of the debts. On the whole therefore I think that whenever there is no debt beyond Ihe limited sum, the Commissioner oiight to cntertaiii the. cage; aud this will pruclicuUy be th« same question us whether ia 15 COTJET OF JTJDICATUKE. tilis Court, any plea of tender, set off &c. would be. required. This question would sometimes beadi^cuU one; for the distinction be- tween matters of account and payment, and matters of set off, often requires much nicety of application to the facts of a, particular case. Tlie general principle however is clear ; wlifinevor by the course of dealing between the parties,, Ilia items of tlicir respective acconnrs are to be received or the value of any iiood-! di-^posad are to be treated as jiayiu-'nt or liqnitlaiion of any connierclaini, tlien it is iiccjunt and ui"U, WIum!, on the otheihand, !t<. Mi(di ronrso of dealjnj; exisis, lint. iIih Iran.'ai.-lioti'* are sn'i;-tan- li;iilv iincounocted, thfn alfhou,''_i tli ' d.jl.-iil.i ii Ui-; the privilege of usji^ his coiiiiterel liin a;" a miliHi' > Idilf-iK-o. iii-^ at, his o)n ion to do si) or tci r^'i'ii-'i' it; the deht, ill ■ret'i;r« is the >' li'i'e anionnt incr <'u" ('> tlif pliiintiff, allhoil^h ho may be nn liili- i, • iPCov<-r if all, if I 111' dt'fendaiit olijects in a proprr iiitnupr, :iiid it i* therefore the province eiitenaiii liu: cise. It remains to enquire "helhei- tiipre is ai.y Jh H;; jn tho esta- blisliuiHut of the Court of Reqncsis here (o rniid r llu-se <;eMcral priacipi'^s iiiappru-able to it, and it se< m* in mo tlia' ilieieis not. 1 lie Caarii^r empowers, and tli9 I'ro'-i.m as'on lU'ci'lii, the er(X'iion of a Court Cor the recovery of dt'bt# and llif trial and ih u'lminaiion of guii.«, wiicnrxeri the debt, duty or matter in vli>piif() shall not exceed the value of thirty two dollars. 'I'iie only argnmcnt that can heralded out of (his is, that on the construction 1 have given i<> the authority of ihe?e Court*, matters of more than thirty t"<> dollars value might bo in dispute, and the subject of examination, llmuuii the whole reco- very was within the amount. I do not liowever think this argument available, and this for two reasons ; I have no doubt that, the matter in dispute means the thinir claimed and denied, and not any lliing which may come incidentally in question, and I am of opinion also that tlie plirase "matter iu dispute" has no (ipplicatiou at all to the debts which come in question, but applies only to tlio unspecified class of cases of small amount to which the power of the Court extends. The clause is to be' read, riddendo singula singulis, a court with full jurisdiction for the recovery of debts where the debt shall not exceed the value of thirty two dollars, and for the trial of other suits and causesvrhere the duty or matter in disputa is within tlic same limitation. p. W. ISLAND OR PENANG 16 On the whole tlierefore the case had better be returned, by the consent of ihe parties, to the Court of Eequesta, for the Commis- sioner to examine, not whether tiiere has been a regular and final settlement of account, which would give a perfectly new and availa- ble cause of action even though the dealings of the parties had not been originally matter of account at all, but whether there was a current account beiwe^n them at all, aa a set of distinct and independent transactions. In the latiercase the plaintiff cannot, by now chooBing to give credit for some of them, alter their natuie ; if they are really connected and the balance is tlie whole debt, the Commissioner should proceed with the investigation. Mr. Warne will of course not apply to the Commissioner to proceed further with the case, unless, in his way of viewing it, the latter is the real history of his dealing with Mr. Gaudart ^'■^ ( a ) This case is an authority ap to the present practice of the Court under Indian Act 29 of 1866. — See Max. Prac, of the Court of Requests p. 16-18. JN THE GOODS QF ABDULLAH, DECEASED. Will of a Mahomedan alienating the whole of l^is property ( although by the Mahomedan Law he can alienate only one third ) is good pro tanfco. The adminiFtration granted by the Court to the Widow revoked, and the Will ad- fnitted to Probate. ' '31st March 1836. Indian Law Commissioners' Beport, 1842. Morton's Beports, 19. JUDGMENT OP SIE BENJAMIN H.'MALKIN, KNIGHT, EBOOEDEE. This was an application to Set aside the administration granted to the widow of the deceased, a JVJaliometan, and to admit an alleged Will to probate. There was no dispute as to the execution of the paper treated as a Will ; but it was urged on the part of the widow that the Will was inoperative, as uoi being conformable to tlie rules of the Mahometan law; the fact that it was not so conformable is admitted, and the only ques.tioii iff, whether for that reason the Will ought not to be admitted to probate. It would be sufficient for the decision of the present case to ob- serve, that the Will is only at variance with the rules of the Mahome- tan law, inasmuch as it profes^■e3 to |iass the whole property, and by that law, the power of the testator to bequeath his pro-' perty extends only over a third part of it. As to that third part, the testator has not exceeded his power, and the Will is at all events good pro tanto. The consequence is, tliat the administration grant- ed,to^the widow must be revoked, as having been obtained on the 17 COUKT OF JtTDICATUKE __ — — — . , supposition that tliere existed no Will at all ; and the Will must be admitted to probate (oj' rather, as I will mention hereafter a course sHghtlj different adopted), as being an authentic instrument, of some force and validity ; the question, to what extent it will be operative, remaining unaffected by the mere fact of such admission. This result seems too obvious to require Huy authority to support it"; but such authority, if wanted, will be found in the case of Syed Ally v. Syed-Kullee Malla Khan, Sir T. Strange, Eep II., 180. . As a general rulg, I have been unwilling to express any opinion on points of law not necessarily comini>- before me for decision. And accordingly, in several cases, where the same principle as that contended for in the present case has come incidentally in question, 1 have avoided expressing any ojiininn upon if ; the parlies in some instances Inwing all wished their own law to be curried into effect, and the only question having been what was its true interpretation, and in others the party insisting oii the benefit of his own law, hav- ing clearly failed to. make out a claim, even upon his owi\ princi- ple. I am not willing however, to avoid declaring my opinion in this ease; Jpartly because the expression of it, though not necessary to the disposal of the present application, may prevent the parlies from having recourse to farther litigation, which otherwise must almost necessarily ensue; and partly because, as the question is not very likely aga'in to be raised before me, I should be unwilling to have it supposed, as it easily might, fi'om my having sometimes avoided its determination, that 1 felt it to be of any con'-iderable doubt. I, indeed, have in substanfce expressed my opinion upon it before ; and for that reas6n also, I am tha less unwilling now with- out absolute necessity, to declare it. I refer to the case of Rodyk and others d. Williamson and others ( 24tli May 1834 ), in vfWich I expressed my opinion, that I was bound by the uniform course of authority to hold that the in- troduction of the King's charter into these settlements had intro- duced the existing law of England * also, except in some cases where it was modified by-express provision, and had abrogated anv law prevously existing. I intimated much doubt, indeed, whether I should have agreed on such a construction of the' effect of a char- ter had^the question been a new one ; but I felt bound by the weight of authority, and decided against the continuance of the Dutch law at MfLlacca accordingly. The Mahometan law can stand on no bet- ter footing,, unless by the express provisions of the charter ; for the statutes giving the Mahometan and Gentoo inhabitants within the jurisdiction of the lung's courts at Calcutta, Madras, and Bombay * Vide Judgment in Keeinn v. WillauB, 1868. p. W, ISLAND OR PENANQ 18 the benefit of their own laws, apply only to persons so resident. Tlie bulk of tlie inhabitants of India are otherwise protected. It may be worth while, however, before adveriing to the terms of the ciiarter, to observe that though the Mahometan law cannot,' independently of them, stand on a better footing here than llie Duich law at Malacca, it may very easily stand on a worse. To place it on the same, it will be necessary to prove that it existed, not as the cu'iom of a particular portion of the inhubilants, but as tlie law of the place, up to the time of the first charter. I believe it would be very difficult to prove ihe existence of any definite system of law applying to Prince of Wales' Islander Province Wellesley previous to their occupation by the English; but that law, whatever it was, would be tlie only ln,w entitled to tlie same consideration aa the Dutch law at Malacca; indeed, even that would not in general poJicy, thouuli it miuht in strict legal argument ; for tliere might be much hardship in depriving the settled inhabitants of Malacca of, a system which they had long understood and enjoyed, but mora in requiring Ihe persons who resorted to these new and almost uninhabited districts (for such they were when we got them^ to conform, as all settlers must, unless there is an express exception in their favour, to the law of the land they settled in. I have said that I consider myself as having, in substance, disposed of the present question in the case of Eodyk'c Williamson; for all the arguments applicable to the present case would have applied to that also, the laws, customs, &c. of the Dutch being just as THuch preserved to them as those of any other class of inhabi- tants, exce'pt insamuch as they may be less repugnant to the Eng- lish law, and therefore less frequently affeetqd by its. introdnction, and the Dutchjaw being also, which pethaps the Mahometan law might be proved to have been here, (but that would be a matter of eTidence), the law of the country before the charter. The latter argu- ment, however, was disposed of in that case ; nor was it there con- tended that the general words of the charter, saving to the different inliabitants their several religions, maimers, and customs, had the operation now ascribed to them. Nor, in my ojiiiiion, can any such operation be sustained. If the question were entirely a new one, it would 'seem to me to admit of very little doubt. The operation contended for is qi,ute unlimit- ed; it gives to all the'jnhabitanfs ot these places the full benefit of their own laws, religions, and customs ; for no line is drawn to con- fine the effect of the words relied on, either to any particular na- tions, or to any partictilar rights. Tha effect contended for there- fore goes far beyond the state of the law at Calcutta, Madras or 19 COURT OF JUDICATXIEE Bombay, where tlie benefit, if it be one, is confine'l to Mahometans and Hindoos, and is limited to certain classes of rights and privile- ges. This is not a very probable operation of a charter made for the adminisiration of law to a new population, and where therefore tlie reasons for such a reservation on the continent of India did not, at' least to the ?ame extent, exist. r confess, I am unable to, pee any words in the charter wluch can bear out such a result. The passage relied on with respect to the present question is in page 21; " That the said court of judica- ture shall have and exercise juriadietion as an ecclesiastical court, so far as the several religions, manners, and customs of tli« inhabi- tants will admit.'' There are, however, similar passages on other subjects in p. 41,43,47,53 ; ihese all differ in the rainuiiae of express, sion, but I think there can be but little doub.t that they were all meant to give the same kind of protection. It would be a very dangerous way of construing a document so loose in its expression as the charter to attribute all casual variations of phrase to a definite intention of affixing a different meaning. But in the general im- pression the charter seems to have intended to give a certain degree' of protection and injdulgence to the various nations resorting here; not very clearly defined, yet perhaps easily enough applied in par- ticular cases, but not generally, to sanction or recognise their law. In the words of page 43, respecting the criminal proceedings of the court, " due attention is to be iiad to the several religions, manners, atid usages of the native inhabitants/'' or as expressed in page 41, process is to be accommodated to such religions, manners and usages, " so far as the same can consist with the due execution of the law and the attainment of substantial justice." In this last extract " the law '' is clearly distinct from those native laws which are to be favoured subordinately to it. I see no reason to ascribe a difierent construction to the word* giving ecclesiastical jurisdiction. And it is to be observed that in the detailed provisions respecting such jurisdiction no such words are found ; they are only inserted in the general description of the jurisdiction of the court; it mii>ht therefore be open to contend that they applied only to other matters of ecclesiastical cognilance not expressly included in the subspquent minute directions. Bui with- out insisting on this, which would probably be too strict a construc- tion. I think there is abundantly enough in these provisions of the charter to show that no such recognition of the different laws of differ- ent inhabitants could obtain. The court here is to grant probate and ad ministration of the wills and effects of all the inhabitants,and all other persons who shall lea,ve propetty here; the courts in the presidencies p. W. ISI.AMD OR PENANG 20 iilUniial e. Gnvrow, Sir T. Strange, II. 153. recognised iir Syed Ally V. Syed Kullee Miilla Khan, ib. 186) that no probate or adiiiiiii-itration was necessary in the case of native estates, though the court did not refuse to grant it. In the same manner it would not be here, for certainly it is neither SLilay nor Hindoo nor Chinese law that a party cai> have no r^prest^niative character unless derived from the court of judicature established hereunder the charter of the King of Enofland, and proceeding according to the law used in the diocese of London. The mere fact, therefore, that administration and ])robate have ahyays been ajiplied for, seems almost to negative, as far as general usage and understanding is ntaierial, the argument advanced. This observation is important, because Mr. Gaunter, the Advo- cate on |iart of the widow, relies much on the general practice of the Court as invalidating the Will, and recognising the national law of the testator. No decision*, however, are cited in detail, and much of the practice referred to might be only like that which has obtain- ed before myself, that, where the parties contested a matter on the footing of their own law, the court did not interfere to insist on their adopting another. In many cases too, the laws, and usages would be material : the propriety of an administrator's account, for instance, might depend on the religions usages of his njjtion as to burial ; the propriety of hi? applicatian of property might sometimes tle]iend upon a native law or cu'toni of marriage. And in respect of Wills, to one case of which Mr. Gaunter adverted rather more particularly than to any other instance, everything as far as the Will is acted on at all, mues referred to by Mr. Cannter, or else must have been given withouti'efeience at the time to the provisions of the charter under which he had then* ceased to act for nearly seven years. I come to this conclusion, because I find him drawing a mkrked dis- tinction between the civil and criminal law, for which, even inde- pendently of the general principle already adverted to, of putting the r-ame construction on provisions generally similar, 1 do not find that warrant in the special wordinn oi the charter which he seems to have considered to exist. With respect to the criminal law. Sir R. Rice (Art 1386, p. 174, of the Evidence before the House of Lords, 1830) expresses himself in a manner not much difFeiing from my own, though corresponding perhaps to a rather wider interpreta- tion of the clauses protecting the natives. But he draws a distinc- tion between the criminal law and that affecting civil rights, with respect to which he says, that tiie court was bound by the clause in the charter to administer the law to every part of our mixed popu- lation afccording to their respective laws and customs. Now, in the detailed provisions as to the prosecution of civil suits, no reference whatever is made to the religions, manners or customs of the parties except as to the administration of oaths and the frajning of process where the passage in page 41, already referred to, is to be found. And in the general description of the jurisdiction of the court nothing of the kind is said in the enumeration of the causes of action and parties Subject to it, and the, words of the clause giving it the same authority as the courts of common law and equity in England are only that these powers are to be exercised "as far as cii-cumstances will admit." The distinction therefore be- tween the civil and criminal law would seem, to be rather against than in favour of the more extended adoption of the native laws into the former; and 1 cannot therefore but think that there must be some error, either in the report of the learned judge's exainina> tion, or in his recollection of the words of the charter. Still it is evident that his practice must have been in some degree contrary to the opinion I have expressed. Under these circumstan- P, W. ISLANC OR PBNAKG 22 ceg, 1 cannot ,but distrust my own judgment; still, as the CHSe, invislies his possessions lo devolve according to the Mahometan, Chinese, or other law, has only to make his Will to that effect, and the court will be bound to ascertain that law and apply it for him. The jjeneral result is, that the administration granted to the widow- must be revoked, the Will of Abdullah being established as a valiV. ISLAND OR PENANG 34 is lite law upon facts thus ascertained. A question analogous, but not precisely siniilar to the present, was (leeiiiftd in tiie year 1833 by my predecessor, Sir Benjamiii Malkin, and I Imve been leferied by tiie Plaintiff's agent to the judgment in that case f »s decisive of flie preseni, with liigii com- mendations, at the same time, of the zeal and ability displayed by tliat learned Judge in expounding the local Regulations. To the justness of tliia encomium 1 most cordially subscribe, and no man I should imagine, can read the luminous decisions of that most able Judge, but must be struck witli his intuitive perception, accurate statement and masterly solution of the principal difficulties, actual and prospective, connectfed with any question which happened to come before him for decision. A case, however, precisely such aa the present does not seem to have been aniicipated by Sir Benjamin Malkin, or, if if, were, he vvas not called upon par(ic4ilarly to advert to it. Of the two eluase* of sellers from whom, as decided by Sir Benjainiti Malkin, the farmer cannot refuse to buy, the Plaintiff in this case belongs to neither the one nor the other. Tiiese two classes, as described in the 6th Claupe of the Regulation consist of, :prst Proprietors and Occupiers of Estates producing Seree (nitiiiti these Settlements of course^ and secondly importers in Prows, (that is from abroad. J The Plaimiff does not claim in either of these two capaciiies, domestic grovver or foreign importer, but in a tiiird and different capacity, Tiot recognized in the Regulation, viz., as a PttrcAaser from the home jirowers. It is contended, indeed, that as such he is neeessiirily comprehended within the general tern) •'Proprietor" in the 7th Section which provides that "for all Seree "or Betel Leaf produced oi- imparted witiiin the limits defined the "Renter or licensed person shall pay the Proprietor ei\ such rate "per Bundle as the Governor in Cotincil may determine." &(*. And > had this been all,' had there been notldng in the Regulation to qiialify or restrict the meaning of this general term, it might have heen difficult to evade the construction contended for. Bui siich is not' the cas'e. The 6tli and 7th Sections forming parts of tiie same instrument \and the one imitediately following the other, must necessarily be construed together to preserve the consistency of both. If taken separately the 7th Section might seem at variance t Inchee Karrim vs. Quay Fang, tried at Malacca. 25 COURT OF JUDICA'JORK with tlie 6lli or at leasl of doubtful iiieHiiing ; Courls of law "ilt always eiideiivour, and are indeed bound, so lo interpret evei y instrument as, if possible, to give harmony and consisieiicy to llie ■whole beeausesiicli, it must be presumed, was Ihe inienlion of ■those who framed it. Thft lierin " PropriHtor," tlierefoi'e, in the 7ili Sectiilii, corjslrued «'ith leferenoe as well to the precmling words in that section as lo the iiioi-e precise terms uf ihe 6tli Section, innst, in my opinion, be taken to mean Proprietor in one or other of these two senses, viz., Proprietiir as /iiwpor^er in prows from abroad, or Proprietor as Producer, that is Pioprietor oi" occupier of the pro- ducing Estate in these- Settletnenis. It has been said, that if the Plaintiff ooiild havfe anticipated the objecliofi ihiit he wati neither grower nor importer within the mean- ing of the Regulation, and so Could not obiii;e tiie farmer to purchase, he u)iglit easily liave obvinted the objection, as he or other speculators may do in Imure, by bringing the Scree round by sea in-lead of by land. It might be sufficient, to say that the Court will determine that question whenever it shall arise. But a.s pre- veniion is always belter tiian cure, 1 may as well take this opportunity of intimating thai so manifest an evasion of the clear ineaning of the Regulation would be at the peril of the parly atiempling it. Observations were also made by the Plaintiff's Agent as to tlie oppressive nature of ihe Regulation/and reference was made to a severe reprehension lately'passed upon it by the Right Hon'ble the Governoi- General. These remarks, it is hardly necessaay to ob- serve, were beside the question ; and silling in this place to deter- mine the legal effect of ihe Regulation 1 am not called upon to express any opinion with regard to its practical efforts upon the morals or happiness of the people; although on the Criminal side of the Court both I and my .predecessors have too frequently found ourselves obliged lo do. so. It is sufficient on the jiresent occasion to say that in this, as in all other cases of real or imaginaiy grievance, there is a constitutional mode of seeking redress. Oue other remark, however, suggest itself with, reference |io this pariicn. lar case, viz,, that whatever may be the hardship on,giei'nniBnt mnnopoly 'esi^bished for purpof^e of public Hevenurt o>itensil->ly applicable to objects of public benefit consider- ations, \vlii<;h niiglit alone ligve furnished a, key to tlie due meaning «f the Eegnhithm incases like the present', even hiul'its terms been more equivocal than tlipy ai'e. Judgment for Defendants with Qost. WILL OF THE LATE ME. GALASTAU>s', In tHE Goods op " Gatchatooe Galastau!!^" deceased. The proper -execution of a codicil according to the Indian Will's Act 25 of 1338 is sufficient to support the Will tq which if, refers, although the Will he not properly executed, if the Will and 'Codicil he written on the samepaper, or be annexed to each other, and the witnesses attesting the latter, — see hoth papers. This is an application for Probate, against which certain re- latives of (he deceased have entered a caveat, the object of both parties being amicable, a|id to prevent future liligatioii by obtaining tlie opinion of the Court as to the validity or invalidity of a document purporting to be the last Will and Testament of the deceased. The alleged Will, by which the testator, an Armenian merchant, disposes of the whole of his property in manner tlierein mentioned, tears date at. Pennng tlie 3l8i Dec. 1839, is written in tlie Armenian languafje and purjiorts to have been signed and seru'd in the pre- sence of three witnesses, Mr. Lewis, Mr. Palmer, and Mr. W. Norman Mclnfyi'e, the testator signing hii name both in Armenian and in English. It appears however, that although the testator acknow- ledged his signatures to each of these witnesses, and each attested the docnment in his presence, he did not sign or acknowledge his signatures in the presence of any two of them " at the same .timo," as required by the Indian Act XXV of 1838, See. 7, but to' each separately and on three different occasiou.-*, the last wiine.-is signing nearly a year after the two former. The last Vvitnes^. Mi'.' Mclntyre, did not subscribe until the 26ih November 1840, ■ when being at the house of the testator, the latter produce 1 l.i^ Will acknowledged his signatures thereto and a.'-ked Mr. .Mclntyre lo a'ltesUit, which he aceordingly did, .seeing that) only two witnesses ' 27 COURT OF JUDICATURJE ' line) signed anil supposing three to be still necessary' as before th^ Act. Aiiotlier person, Mr. Gregory Zechariah, ( since deceased ) was also present and saw and heard all that passed. The testator then expr6s3e.d a wish to add a Cadieil, wliicli Mr. M'clnfyre, a* his request and by his dietafion, wroffe in English at the foot of the Will, on the same sheet and cominencing in these words, "Codicil to this my last Will and Testament," whereby, the testator makes a further bequest to certain of the Iea dielum; and the conatruction whjch has been put upon it, in favour of the Rajah's claim to the whole of the properly now in question is as follow : "In cases of capture by an enemy, the property is not changed go as to entitle the taker and give ^.u absolute righj .P W. ISLAND OR PENANG to the recfiptor, until condemnation. But as there can be no con- demnation to entitle a pirate the general lavy is not interfered with, and the recaptor obtains tiie goods and the owner cannot be res^ tored." Now tliia ''general law,'' or ^'simple law of nature" as it waB called in the introductory part of the argument for the claim- ant, wag broadly defined tliu* : "The tnoment the owners, or those who are in possession for the owners, of a vessel, are divested of possession by those who have the will and the power to retain that vessel as tlieir own, the captors have become the proprietors, and tiie vessel is lost to the original awtiers." And thi^ law, it is fur- ther contended, though altered by express Acts of the Legislature in cases 6t recapture from an enemy, remains "stationary" in cases of recapture from pirates. It is needless to demonstrate the fallacy of this reasoning, — to prove that "might" is not always "right," or to cite autiiorities in support of one of the first precepts of the law of nature "mum (inque trib^ere." If the rule contended for ever obtained m England, it must have been the creature of positive institution for a pa,rticular purpose the suppression of piracy, biit certainly form- ed no part of the law of nature or of nations above the savage state. Nor is it necessary to point otit the palpable inconsistency of a plain) to the whole as a recompense by way of salvage. Sir. Edward Gambier's observations on a similar claim by oue of the salVbrs in the case of Brown and others vs. Duncan, tried at Singapore in 1836 are strictly applicable here : "I'he claimants own standard of ^emuneratioD taking the lion's share, is one, certainly ot a novel and exiraordinary kind; it appears to me to involve* contradiction in terms, that he claims tliis as a compensation by way of salvage; for salvage being the consideration paid by owners of property lost or endangered for the benefit accruing to them from its recovery or rescue, it seems to me that neither the name nor the thing itself can exist when nothing is recovered or restored.'' But as anything which felUfroin so great an authority as Lord Mansfield, especially on questions of mai itime and commercial law, is entitled to tlie most respectful consideration, I have consulted e»rery book within my reach which seemed likely to throw light tipon the above quoted remark, though a mere parenthetical obiter dictum, not necessarily connected with the question at issue in the case of Goss va. Withers, and certainly the observation derives weight from the circumstance of its being left apparently unquestioned, as irellin the annotations of Sergeant Hill as in the many subsequent yjeferenoes to the case by Lord Mansfield himself and by other 33 COURT of JUDICATURE -^ _ 1 ^± ; ■ judgec, besides, being: cited and uplield as at) authority in the Lex Meicatoria (title pirates), edited by the laie Mr. Cliitty,'not that I have any doubt ss to ihe present state of the law upon tlie subjeet, ■whatever it formerly migiit liave been. The enquiry therefore, is rallier one of cuviosily ihan of pj-aciical utility as regards the pre- sent claim. That ihe Rfijah Hhs no pretext whatever, in law or justice, for laying claim to the whole of ihe properly, even where the chii m reconcilable with the term salvage, I am quite clear. In Lord Tenterden's adniired work on Shipping (5th Ediin.pa. 17.) he states, with reference to the Statute 27tl) Ed. 3rd st. 2. c. 13 that "capture by pirates, who are mere robber& at sea, doe."* not divest the properly of the owner: and in a very early period of our history a law was made for the resutution of properly so taken, if found within the realm, belonging as well to strangers as to Eaglishmen. Butcapiure -by an enemy in tiie exercise of war between two nations, does according to the law of mitions, wholly divest the properly of the owner anil transfer it to the captor or the Sovereign of his State at some period,'' iS:c. Molley, also fas cited in Viner's Ab. title Piracy, and again in the Lex MercatDria, same title,) after referring to the above statute of Edward the3i'd, prdceed'sas follows^ "Tliis law hath a great affinity with that of the Romans de P^suca- pioneor the Atiniari law, as Atinius therein exacted that the plea of prescription, or long possession, slrould not avail in things that had been stolen, but the interest which the right owners had, should remain perpetually," to wliich is added in the Lex Mercatoria : ^"no right to the spoil vests in the piratical captors, no right is derivable from them to any recaptors in prejudice of the original owners-; and this appears not only to have, been the opinion of the writers on general jurisprudence, but to have been always main- tained in our Courts of comiiion law.'' And the author refers to Grotius de jure Belli ,ac Pacis lib. 3. c. 9. Godbolt 193, and Cro. Eliz. 685. The Editor of the Lex Mercatoria the late Mr. Chit- ty, repeats the same, almost verbatim, in his Treatise on Commer- cial law Vol. 3id Ch. 13, and Sir James Park and Serjeant Marshall in their respective Treatise on the law of Insurance virtually assert the same, by enumerating the saving or recovery of a ship or goods from pirates, as one among the species of service entitling to salvage or an allowance for the property sieved ; which would be inconsistent with a claim to the property itself. Had the law of, England ever countenanced Bueh a claim, it is extraordi- nary thai none of these writers, each of whom refers frequently as well to the case of Goss vs. Withers as to all the most celebrated works, English and Foreign, ancient and modern, on Marine law. T. yv. ISLAND OR PENANG 34 ■sTiourd Mo( even in a ))assing way, have noticed the former existence of pucii a rulfr. I find up allusion to it in the two most ajicieiifc ■boolcs of English law in my possession, Glanville and Home's Mirror, though perhaps the subject scarce came within the scope of either of I liose writers. But it is certainly not mentioned in the J^rival Laws of Oleron, where, it anywhere, some trace of it might have been confidently looked for, compiled and promulgiited, as that ancient digest is said to have been, by an Ene;li8h Prince, Ricliarfl tlie First. Nor, (if the abstract in Horsley's Laws, Ordin- ances and Irlstitutions of the Admiralty of Great Britain is correct and I have no rea^^on to doubt it) is there any allusion to it eitlier in the Ijkws of Wisbiiy or in the Ordinances of the Hansealic League. , I regret that I have not the means of referring to the still more ancient and celebrated Marine Code, the Consolato del Mare, so highly commended bv Lord Tenterd'en, "from whicli" says Ser- jeiiHt Marshall on the authority of Vinins, "most of the Marine Laws in Spain, Italy, France and England are borrowed, and the regulMtions of which are still of very high authority in every maritime State in Europe;^' though had the rule in question been noticed there, it is not likely to have been passed over unnoticed in the latter digest above mentioned. Nor were there any reference to it in the famous Marine Ordinance of Louis the Fo-urteenth, published in 1661, (which I have also to regret the want of,) is it to be imagined tiiat Lord IVTansfield, Lord Tenterden, Beaumes, Clirtty, Parke and Marshall should all have failed to notice such reference, forming as that Code does, according to the last mentioned learned writer, "a system of whatever expe- xience arid the wisdom of ages had pronounced to be-most just and convenient in the Marine institutions of the Maritime States of Europe;'' more especially as "Lord Mansfield'' says thd same writer "seems to have drawn much of his knowledge of the princi- ples of Marine law and of the law of Insurance from this ordinance and from the elaborate and useful commentary of Valin.''. The liist authority I shall mention, as affording from iiis silence a strong negative argument. against the supposed existence of any sucii rule in former times is Lord Coke, whose reseaohes had it ever existed, it is not likely to have eseaped, nor in his exuberant learning to have been left unrecorded by him in his Institutes or Keport« ; especially as a fair occasion presented itself, twice at least, far the uieo-tion of so remarkable a fact. " In a case reported in Jenkins' Centuries and 3rd Bulstrode, and in some points analogous to the present, it appears that the 35 coxjET OF jUDrcATtrniE Lord Admiral had seiied a vesgel in the Eiver Thames and ihsigted on his right, under the King's letters patent, to retain it against the owners, as a i-ecapture from priates, the crew having risen upon the master, dispossesed him and committed piracy at sea. In his 12th Eepott, page 73, Lord Coke states: "The King, James lat, referrefl the consideration of the letters pUtent of the Lord Admiral of England to the two Cliief Justices and the Cliief iBaron; whether by the said letters patent, the goods which pirates should take from others by robbery and piracy did pass to the Lord Admiral or no 1 And upon the consideration of the said letters patent it appeared to us, that thereby he had bona et dhattalla pira- iorum, SiTid also ionit et chattalla depredaia, ifi est, the goods robbed from others, which did not pass for two causes" — which he states at lengtlt, the first being, that in the analogous case of a grant of bona et chattalla fellonum, the grantee would be entitled only to the felons own goods and chattelsi, not to wiiat he had stolen from others ; the second cause being, tiiat the King had no power to make a grant contrary to the Statute of 27th. Edward 3rd. which directs tiie restoration of goods retaken from pirates to the-right owner ort due proof. "But it was tesolved,'' he adds, "that until such proof be made, the King may seize the said goods; for goods of which the property is unknowrt, the King may seize ; and if they are 6o»»« piratura the King may sell them ; and upon proof &c restore the value." Not a word here of any prioV usage or custom, actual ot supposed, under which the reeaptor could lay claim to such goods, even where the ownei" was unknown. Nor is there a hint of any such custom or visage, as constituting even a plausible reply to the severe remrirks in the answer of the judges (4th Inst. cap. 22) to thc- complaint made te the King by the Lord Admiral of England, con- cerning prohibitions granted by them against the Court of Admiralty. In the Judges' answer, it is stated among other things, "that the Lord Admiral, his lieutenants, of&cers and ministers had, without all colour encroached and intruded upon a right and prerogative due to tlie crown, in that they had seized and converted to their own use goods and chattels of infinite value taken by pirates at sea and other goods and chattels wiiich in no sort appertained unto his lordship.'* It remains to advert briefly to the authorities on which Lord Mansfield''s dictum in Goss b*. Withefs is snid to have been found- ed 5 promising that if the Report of his lordship's observation be jubstaniially Correct, there wotild seem to be an error of the prin- ter in placing the latter oi the parenthetical brackets where it stands in the Reports, as abo¥6 cifcw'd, instead of placing it after the word owner-; whea the passage would read^ as the Reporter -protably ¥. W. isiAnd oft PEiSfAN'a 3^ intended, thus ; viz'; "a capture by a pirate (and in Spain, Venice And England tlie jfoods yo to tlie captor against ilie ownei-;j as tliere can be no conderunalion to eniitle the piratp, or a papi\ire under a ciimmission wliere tliere is ho war, do not cliange the property.'* Tills contraction of tlie inirenlliesis renders ilie uhole passage clear, and remove" what before appeaved absurd. The pirate's want of title ia a very good reason why the owner's tille should remain mi- changed-, but cannot j)f its'^lf give a title to the recaptor. Non ' iwum; ergo Mn mum, sed meuni; is very bail logic, to say the least. The only subsequent reference to this obRervation of Lord Mansfield appears to be the passage in the Lex Mercatoria, wherein, after quoting his Lordship's words, the autihor or ediior adds, anil this is agreeable to Grotiu« de jure Belli, Lib. 3. C. 9. and to Loc- cennius de Jure Marit. The latter work is not wiihin my reach, but the writer is mentioned with respect by Serjeant Marshall and Chitty and classed with Bynkershoek and other forei|^n jurists of Celebrity. The authority of LoCcennius alone, however or of any other foreign juri«t9, on such a point, unsupported by any respecta- ble English author, can of course have no weight in an English Court and yet Loccennius (if even he shall be found to have been florreetly citedj is the only authority, as far as I yet know, that can be adduced in support of Lord Mansfield's dicttim ; for Grotihs cer- tainly does not bear it out in the only point material to this Court, tliis is as to the alleged existence of such a law or custom in Eng- land. After noticing thai, by the law of nations, the property in goods taken bj pirates or robbers is not changed, and that on this princi- ple the Athenians were unwilling to receive from Phillip of Mace- don except as a restoration {at fedditam, non ut donatam, valebant 'acce]peH)\\\i Island of Halonesus, which had been taken from them tiy pirates, and retaken by him, he adds, that it may be otherwise ordered ty positive i'nstitution ; thus by the law of Spain, ships taken from pirates become tlie property of the captors (Poteit tamen legt civilU aliud constitui ; iicuti, lege Sispanica. navts a piratis captce iorutnfiwnt qiii eat eripiunt piratit.) And he considers it not unjust that private property should be sacrificed for the public good, especially when recovered with so mu^h difficulty ; but that Buch a law would not prevent foreigners from reclaiming their pro- perty. In a note he intimates that the same law obtained in Venice: ''Idem apud venttot — Patetex Uteris FrauhJHfci8, the Court, usually adopts the proportion or recnpture, but it is not bound to do so, nor is the lewaid limited, in respect to fQr«ij|;ners the quantum meruit is the only guiile ; anli every person assisting in the rescue is entitled to share. I have not been able, nor did I expect, to find any recorded cwses precisely analogous to the present. The one which approaches nearest to it, though, in the Binin, mMteritiUy different, is thut oC the Trelawney, Lake master, 4 Rob, ?23 which is described as a "new speciea of salvage," being for the rescue of » slaveship from insurgent sUvep on the Co»st of Africa, by another slave-sldp. The affidavit of the salvor, Mr. Kendal, Doaster of the Lord Nelson, stated among other things "that ihe slaves on board the Trelawney, 35 in number, had risen upon the captain and crew and got complete possession of the slii|i'in about five Hiinutes; that the captain and all the crew, except iwq men who were wovinded, got through the cabin windows into two boats belonging to the Trelawney, and rowed away to the Lord Nelson; that the Deponent commenced a lieavy fiie from liis great guns and !*mall aims into the Trelawney, despatched thirty of his men who boarded her, and after a severe conflict succeeded in quelling the insurrection," Lord Stowell in giving judgipent said; "I have nothing to do but to consider the valueot the property that has been saved and the service performed, it is-meritorious service, to be con-; sidered as a rescue. effected from pirates, and to say the least of it, full as meritorious ag'recovering property out of the hands of the public enemy.'' In the point of personal danger encountered by tlip salvors, that case bears no resemblance to the one now before the Court; but in the moiematcrial circumstance on which Lord Stowell laid great stress, vijt; ''that the crew of the TreUwney had beeu completely overpowered," the analogy holds, The salvage awairdetl was only a tenth; on the ground that "both »hipg bsiqg erp ployed on the same trade, a service of common dangsp, the crews pf §apl| probably Went out under an impression pf the policy »n4 duty pf rendering mutual assistance,'' bub for whipb ponsideratjon, liowever, the learned judge said he should liaye been ^'disposed to giye «ftU •yage in ag high a proportion as is directed by the Priae Act for cases of recapture of war," (namely a sixth), The casjs of the Trelawney, therefore, appears to me, unassisted as I am by the criterion of any offer of compensation by the owners, to constitute p. W. ISLAND OR PBXANB. 40 Oil the wliole a very safe g;uiJe in computing the proportion of salvage fairly Hue on tKe present occasion ; and I a cconlingly decren t" tha salvor one sixth of the agreed value of the eliip, cargo and freiglii, with his expenses, subject however to the deduction which 1 will mention. The agreed value of the entire property eaved i( Dr«. 58,000 of which one sixth will be Drs. 9,666-67., and fiom this latter sum I decree Drs. '666-67 — to be paid to the surviving officers and apprentice in the following proportions, viz: To Francie Warde, 2nd Mate, drs, 250 William Plumb, Steward, „ 200 The Gunner , 80 The Carp* nter „ 36 . William H. Stonehewer, ) „„ Apprentice J " I am aware that as a general rule the crew are entitled to no extraordinary compensation for doing their duty in saving the pro- perty entrusted to their care. But in cases of capture by an enemy and subsequent recapture by the crew themseWes, they have occasionally been rewarded with a considerable salvage; and the Statute of 22nd and 23rd Charles 2nd, 11th and 12fh William 3rd, and 8th Geo. Ist. ch. 24th "for the more effectual suppression of piracy," provide liberally for llie reward by the owners of seamen who oppoae a determined resistance to pirates. 'J"he present, perhapp, is a cage scarcely within the literal meaning of these Statutes ; yet •he words of the 5th Sec. of the last Act are very cornprehensivp, and the Act expressly extends to all His Majesty's dominions , in Asia, Africa and America. In the present instance tha persona above named manifested every, disposition to do their duty to the owners in the perilous and unequiil conflict in which they and their unfortunate captain and chief mate suddenly found themaelves engaged, unarmed, and in the miilst of darkness and tumult, with an overwhelming body of desperate men. Two of them were actually wounded, the apprentice desperately ; tiiey have lost the whole of tiieii- little property; for many Weeks together they stood ia hourly peril of their lives; they nevertlxjless by their con- tinued steadiness and vigilance, and "by keeping a good' look out" ( to use the words of the 2nd Mate j, contributed materially to the safety of the ship and cargo during the perilous voyage to Acheen, after the murder of the captain and chief mate and as the leading convict confessed, saved the lives of all by bringing the siiip into harbour.. Self-preservation was, of course, the motive uppermost jn their minds, but the owners have nevertheless reaped the benefit of their discretion and good conduct, and as the discretion of the Court 41 COURT OF JUDICATXIKE. is large in all oases of salvage, I feel that under all the peculiar cir- cumstances of ihis case and on the equity of the Statutes 'o which I have raferred, I am not transgressing any legal principle in award- ing the nbove sums to the persons I have mtntioned. 1842. Before SiK William Norrib, Knight, Recorder. In the cause of, iiiin Bee, Plaintiff, m. Jadee, Defendant. Jubgmert. Thi«is an action to recover damages for the seizure and detention of t;he Plaintiff, his boat and certain arms, opinm, tin, money and other articles mentioned in the Petition, at Batoo Knwan in the month of November last. The defence, in substance, is that the ^efei^'^''"'' "S Commander of the Gun Boat "Emerald," one of the armed vessels employed by Government for tlie suppression of Piracy and tiie general protection of Commerco in these seas, seized and conveyed the Plaintiff, his boat and arms to the nearest constituted authorities, as' being unprovided with a re- gular pass from Kurow in the Perak Territory, the place whence be last came, and having attempted to impose upon the defendant by the production of an expired pass granted to another person on a different occasion and authorizing that person to carry arms differ- ing in quantity and description from those found on board the Plaintiff's boat; "such discrepancy, irregularity and attempt to im- "pose affording, as it appeared to the defendant, reasonable grounds "for suspicion and sufficient cause for him in the execution of his "duty and the orders and instructions he had received " to make sucli seizure and detention ; and that as to the seizure and detention of certain Opium or Chandoo found on board the Plaintiff's boat and supposed to be illicit, together with certain pice, supposed to be the proceeds of illicit sales of Chandoo, these were in fact seized by the Opum Farmer's Peons and merely placed by them in the defen- dant's Gun Boat for safe custody until they were, pursuant to or- ders, delivered over by the defendant to the Opium Farmer himself at Prince of Wales Island. The material facts, as they appeared in evidence on the trial, af- ter making due allowance for contradictions and discrepancies in the testimony of the witnesses on both sides areas follows : In con- sequence of the alarming extent of Piracy in the Straits pf Malacca an understanding has for some years past lubgisted between the p. W. ISLAND OR PENANG. 42 Briiisli Government and the Rajalis of tlie principal Native States in these parts that all boats quitting their Ports or those of Penany:, SingHpore or Malacca, should be provided wiih passes specifying the respective destinations, cargoes, quantity and description of arms on board and other particulars; and tliat boats unprovided with such jja'^ses should be liable to detention. Mr. Garling the Resident Councillor and Chief Executive Authority in Penang, who was call- ed as a wiineis for the defence, declared that this understanding had been established shortly after the memorable de-itruction of Pirates by Cajjtain Chads of H. SJ. S. Andromache in 1836 or 7, and he produced a printed form of the pass since issued at this port to the Nacodahs of Native Vessels in conformity with such arrange- ment. — The local authorities he said had acted in this matter with tiie sanction and under the express direciion of ihe Supreme Govern- ment, and that general instructions had been given to the Coniuian- ders of the Gun Boats forming part of the Marine Establishment here, thH defendant being one of these Commanders, to examine the passe.s of Nai;ive Boat^and to detain them in cases of suspicion. He added, however, ihut he had refrained from giving these men any very precise instructions, and was indeed afpnid to do so, lest hia directions should be nii-aunderstood and abused. To shew that the principal Native States had recognized and acted upon the arrange- nent in question be refered to an original letter from the Rajah of Aclieen to the Governor received in July last, and which MrJ Bon- ham had placed in his hands, from which he translated a passage to the eSeci that all boats leaving Acheen without passes were to be looked upon as Piraies. Another letter to Mr. Garling himself from the Rajah of Periik to the same effect with regard to boats leaving the ports of that territory was also produced on behalf of the defendant, bearing date the 20 th August last. It is true these let- ters both purport to have been written several months posterior to the seizure in question; but I do not consider this material for two reasons, — first, that the wriiers appear to recognize the arrangement as of some standing; and secondly, that the Plaintiff, himself had Tirtually recognized its existence by having as his first witness declared taken a pass when he left this Port for Perak last year and another pass when he left Perak on his return hither just prior t« the seizure complained of — a copy of the correspondence between the Supreme Government and tlie Governor of the Straits was also tendered in evidence to shew that tlie arrangement had been made with the sanction and under the directions of the Supreme Govern- ment ; but as the Governor's Clerk could not be conveniently sum- moned to verify the copy and the Plaintiff's Agent refused to admit it 43 COURT OF JITDICATUKE. this piece ofevidenoe was necessarily rejected. As regards the pre- sent case, however, I do not consider it to have been very material. Tiie genera! practice of native boats carrying such passes being noto- riously undeniable and admitled by the Plantiff himself, it is compar- atively nnimportant, as regards the ipain question, how that practice- came to be established. The object of the pass being clear viz. to protect the bearer from the suspicion of being engaged in piratical })ursuits, the absence of such a knovcu credential or the substitution of a forged or inapplicable one must of necessity give rise to suspici- on, and if in addition to thl'-; there be other circumstances of suspicion strong •nough to wan-ant a reasonable presutn))tion that the pariy unprovided with such regular pass or attempting such imposition ig> directly or indii^ectly conniving at the mal-practices which ihe sys- tem of issuing passes was intended to check, the parly has but him- self to blame for tlie inconveniences to which his temporary detention under such circuin'stances may expose liim — of course I do not mean nor can it be supposed that the Government ever mearU thai the mere absence of a regular pass or even the production of a wrong one would be sufficient in every Ciise to jnstify the detention of the party. Circumstances may be iufiniiely varied. In some cases the grounds for suspicion may be so sligiit, the absence or irregularity of the pass so nafuriilly acouHtee De- fen.larit to c irry liis peiso iei« to the Maiistr te on this I-land to bfi prosecufeil for the all»gee case of Ab-Dorahim versus Lieutenant Newbold" iii 1834 referred to as analogous to I lie present was manifeatly and widely different. It was argued alse, on the authority of Sir B. Malkin's observations in tftat case that the Supreme .Oovernment has no power to give orders or instructi(tns such as those which oc- casioned the seizure and detention now complained of. Sir B- Malkin in the observations referred to rather expresses a doubt than gives any decided opinion with regard to the powers of the Government, nor is it clear whether he alludes to the Local or the /Supreme Government, but Ihe two cases are not to be assimilated. If it is meant, however, to be contended, that the Supreme Go- vernment cannot lawfully issue general instructions either directly or through tlie Local Government, to tlie Marine Police of the Straits, as the Gun Boat Establisbment may bo denominated, with regard to the seizure and detention of suspected pirates, I do not suppose that such was Sir Benjamin Malkin's opinion. At all events it is not mine. Again it was denounced as no less incon- sistent and fraught with hardship and mischief than it was illegal to interfere with the right of Native traders to carry wliatever arms p. W. ISLAND OK PENANG. 46 tliey please for their defence against pirates wlio are said to. be so numerous. But this is another fallacy. It does not appear that Trader* are reslricied to any specified quantiiy or description of arms. They are merely required for their own prottction to in- form the Custom House Officer wha^arms they actually hiive on board, tliat the piss he gjrants may be drawn up in correspondence wiih the fact, and thus exempt the beaiei' frooi suspicion. Here, however, I may observe that as no further proceedings appear to have been taken against the Plaintiff as a suspected piiate, the further detention of the arms by the Magistrate cannot be justified, and that Gentleman will of course direct them to be immediately restored to the Plaintiff. I may observe also, that the heading of the present form of pass issued at this Port, declaring that Boats unprovided with a similar palied by their build and equipment from trading or fishing vessels of the same nation .anu that it would not be expedient tp act upon the principle that Vessels unfurnislied wiih passes and flags should be liable to be destroyed as pirates. It also would appear that the Commis- sionei's have expressed some apprehension that if tRe System of re- quiring these distinguishing marks were acted upon rigorously the Sclieme would afford to the Authorities of the rival Settlement at Rhio and perhaps to Malayan Chiefs or Superior power the means of vexing lionesr Traders whose destination might ilot suit their views and interests.'' " The Right Honble the Governor General of India in Council sees in these objections suflBcient reason to acf with great leniency and caution in the enforcement of the Scheme but is not prepared to abandon the design of requiiing Vessels especially armed one* fitted out from any M alay an port or Territory to carry the certificate of the Chief that they belong thereto and to bear his flag. It never was His Lordship's intention to apply this principle with such rigour a« to prescribe that any vessels not bearing in other respects a piratical character should, simply because not furnished with such flags and documents, be liable to be treated a* pirates and destroyed; the utmost in such case contemplated was, that the vessel should be detained until its real character should be ascertained and a pass procured. Much must of course be left to the discretion of the local authorities in the enforcement of a rule of this description and the Officers of this Government especially must be careful by, their example to afford to others no plea for the exercise of oppression. It will be necessary to regulate and restrict the power of stopping Vessels on the high seas on the plea ef requiring to inspect passes, for this mea- sure if exercised by any but Government Vessels Commissioned for the purpose would be fruitful source of injustice and tyranny. The passes, however, must of course be examined and confirmed at any port the Tessel may enter and in this respect the authorities at Rhio as well as thoso Native I^rinces would have the power of interfering p. W. ISLAND OR PENANG. 48 With traJero, but His Lordship in Coiiucil does not consider that tliis power is caicUlntpd (o become ii source of abuse if the right of stop- ping and examining in the o|)en seas is confined to knoivn Govern- ment Vessels eoinmissioiied for the purpose. VVitii this exphmaiion i)f the views of the Supreme Government on the point, His Lord- ship in Council connnits to you (he arrantrnient of all details for the further prosecution of the St-heme. "Enclosed I transmit copy of a letter from the Governor General of Batavia iind of the reply thereto from which correspondence and in particular from tlio terms of the convention concluded with the Chief of Lingin by the Dutch auihori- ties enclosed in the former, you will perceive, that the OfiBcers of that Government are fully prepared to enforce a similar Scheme amongst the Malay Chiefs subject to tiieir " Authority." Judgment for Defendant with Costs. Pia Cherai Buri, alias Pia BuriEak Po Thon-Plaintiff vs. Syed Abbas— Defendant. tTae and occupation or an action for rent lies altho' the lands be situate beyond jurisdiction of the Court. The Statute 11 Geo 2. c. 19, does not extend to the Straits. If a person not lawfuly anthorized acts as Agent for another such act wiU be considered the act of the 2nd mentioned party, if he adopt and ratify such acts according to the maxim " Omnis ratihabitio retrotuahitur et mandato priori aoquiparatur. " The plea of " Nil habuit tenementis" cannot be pleaded or given in evidence as a defence in an action for rent. Occupation of a part 6i a piece of land and liberty to occupy the whole, all being at an entire rent, is a constructive occupation of the whole, sufficient to maintain an action for rent for it. If an express contract to let out lands be proved, a constructive occupation or unrestricted liberty to occupy under that contract is sufficient to maintain an action for rent for the whole land. Eviction is no defence to an action for rent unless the Plaintiff, (the lessor ) was a party to such eviction, Judgment This was an action of indebitatua assumpsit upon an eiecufed consideration, in the common form, the Plaintiff 'declaring as fol- lows; viz,. " That the Defendant on the 1st February 1842 at &c. was indebted to the Plaintiff in the sum of Sp. Drs. 4,200 for the use and occupation of certain Birds' Nest Islands and the right of collecting, appropriating and -taking edible Birds' Nests in, at and upon certain Islands, by the defendant and at his request and by the sufferance and permission of the Plaintiff for a long time be- fore then elapsed, had, held, used, occupied, and enjoyed, and also for interest Ac.'' and being bo indebted in consideration thereof promised &c. The Defendant pleaded the general issue. It appeared in evidence that the Plaintiff, whose real name is Po *y COURT OF JUDICATtTRE Seng, wasEajali of Quedah (as his first appellative Pia Clierai Buri implies) in 1839 and for many years before, and wai subsequently transferred by the Siamese Govpriiment to the post of Rajah in the Island of Junk Ceylon or Poonga (as is implied in his second titular iippellation, Pia Buri, Rak Po Thon) ; tliat when Rajah of Quedah, tliough tributary to the Court. of Siam, he exercised an absolute au- thoriiy over Ws immediate subjects and dependants and enjoyed or was generally reputed to enjoy among other privileges ihe uncon- trouled right of farming out the Birds' Nest Islands beloniiing to "the territory of Quedah; that his original name vra=<, for all praciiual purposes, superseded by his official title which alone appeared in ail liis written orders, contracts and agreements; that on the IStii July 1839, the defendant, a Native Merchant of Pinang, being desirous ef renting the Birds' Nest Islands, despatched by the hands of his friends Hadjee Mahomed ArifiF and Mahomed Hassan, a letter ad- dressed to the Plaintiff as such Governor of Quedah, in the following terms viz., " 1 beg to acquaint you in whom I confide and send to meet you nay friends by the names of Hadjee Mahomed Ariff the Son of Hadjee Ahmed and Mahomed Hassan in whom I have con- fidence' to act for me as if I was present myself, they will settle all matters and engiigments on my part for me respecting the Birds' Nest Islands, in the Western Bay (TulloBarat) and whatever agree- ment they enter into on my part, it shall be ratified by me as my own act and deed without any demur, as they being my chosen friends in whom I place the greateit trust, when they arrive in th^ presence of my friend I trust that my friend will despatch them as early as possible back again to Pulo Pinang and do not d^'tain them unnecessarily because I myself am anxious to meet my friend. I have nothing at present worth »ending to my friend but a little Oil of Roses and a few pieces of Atlass Chintz — written on the 7th of Jemadal'awal Friday 1255." This letter was safely delivered to the Plaintiff who informed the bearers that he received them as the representatives of thp Defendant, and negotiated with them as such; and on the 22d of the same month they accordingly affixed their names to a Paper conceived in the following tormg, viz., "On Monday the 11th day of the Moon Jemadalawal in the year 1255, (corres- ponding with the 22d day of July 1839) or in the Eighth Siamese Moon, Tunku Syed Abbas despatched his Agents Hadjee Malioiaed Ariff Son of Hadjee Alimed and Mahomed Hassan to Qaedah and they brought his letter and waited upon the Most Honorable Taun Pia Cherai Buri, praying for the farm of the Birds' Nest Isles in the Territory of Quedah ; the said Isles amounting to the number of Fifteen and the rent thereof being at Spanish' Dollars Four thousand r. W. ISLAND OK PENANG. 50 two hundred per iinnum. Tauii PiaCherai Buri, was graciously pleased to grant tiie 8iiid Farm according; to the pra}'er of the said Tunku Syed Abbas and likewise gave a Paper of Authority unto the said Tunku Syed Abbas wherein the names of the aforementioned I-um|isit or debt; for the maxim dehitum et eontractus sunt nullius loci applies equally to both. And altho ' it was formerly held that assumpsit for rent ar- rear on a parol leate would not lie, the contract relating to the realty', yet it would appear from the old cases of Dartnal v. Morgan Cro. Jae. 598, Chapman v. Southwick 1 Ley. 204, and Johnson v. May 3 Lev. 160, to have been Ung ago settled that on the mere promise to pay a sum of money in conaideration of the Plain liff's permitting the Defendant to occupy lands &o., an action of assumpsit wag maintainable at common law. Besides, aliough it is a general rule that wljers there was an express contract the Plaint iff cannot recover on an implied one, yet there are many cases in which he may re- cover on the cominou Count, though there was a sjiecial agreement provided it has been executed; and the present action is on an execu- ted confiideration. '^or can there be any good reason for requiring in the action oi assumpsit iot use and occujation gioat strict- ness than in that of debt wherein as appears from the case of Stroud V. Rogers, cited in Wilkins vs. Wingate, 6 T E.. 62, the Court sf Common Fleas held that a daclaration in debt not setting forth any demise of the premises nor for what term, or at what rent they were demised, nor how long the Defendant had occupied them, nor when the sum claimed became due, wasyet suf&cient to enable the Plaintiff to recover for use and occupation. It was contended in the next place that the contract was void by the 4th Section of the Statute of Frauds as not having been signed by an Agsnt " lawfully authorized, " within the meaning of that Section, that is to say authorized by Writing under the hand of tha /Defendant. Bui it was answered, and I think conclusively, that the Defendant's letter (Ehibit B) was a sufficient written authority; and if not that the defect was supplied by the Defendant's adoption and ratification of the contract according to the well known raatim^ " Omnis ratihaliiio reirotrahitar et mandaio priori equiparaiur. " Thirdly it was insisted that the action was improperly brought in tlie name of the Plaint^, for that the latter was a mere Steward of the real Landlord the King of Siatn. And notwithstanding the posi- tive testimony of the witnesses as to the complete independence of the Rajah of Quedah, beyond the'^ yearly tribute of the" Bunga Mass or golden flower, it would certainly appear from the Plaintiff's own letter to the Defendant (Exhibit I) that be con- 63 COURT OF JUDICATURB. i«i(lereiJ himself acoouiUablo for the R«nt to the Court of Siiim. But even aclniittinu; the superior title of the King of Siam, still, a« ar- jrupcl for ih« P/aintiff, the authoriiies are numerous to sheiv that nil habuit in tenementii can neither be pleaded nor given in evidence as a defence in this action,— in other words tiiat the principle i" too well estiibli»h8d to be now controverted that a servant cannot, in this action, be permitted to im|ieach his landlord's title. — In the Case of Richards V. Eolditch, (cited in Selwyn's Wi : Pri:5thEdn. 1336) it was agreed by the whole Conrt " that if any one enjoyn a benefit at his request and by pernii'^sion of anotlier, that is a sufficient C()ii- sideration foran assumpsit. " And it is added "Chnpple cited a case ai ruled by Lord H.ardwicke, wliere A, without title, gave possession of a house to B; C, the owner, brought H.iisampsit for the use and occupation but becajuse B, ilid not receive hi'H possession /ram C, nor any wise occupied umhr him, L-ird Hardwicke held the ;iction not maintainiiWe by him." The case of Evans vs. Evans, 3Adolph- cited for the Defendant is not in point, for tiioro tho' the tenant received possession from Evan*, he recognized him only ns the Agent of the real Landlord, Jones, And the case of Balls v. Wettwood^ 3 Camp. 11. cited for the Plaintiff is conclnsiTe that a Dt-fendant who has received po'sscHsion from the Plaintiff cannot be peruiitied to shew that the Phiintiff's title has expired unless he solemnly re- nounced Plaintiff's title at the time, and commenced a fresli^ holding under another. , A fourth objection was that the occupation had not been sufiBeiently proved; but it was answered and with reason, that the acl;ual occupation of apart by the Defendant" himself 'or big Agents or under-tenants, (which was clearly proved) and liberty to occupy the whole of the Islands in question, all being let at an entire rent, was a constructive occupation of the whole, sufficient for the purposes of this action, even supposing that actual occupation of the whole might not be presumed form the evidence which had been given; and that, whether, or not, it was clear fas it certainly i*) that an expreBB contract having been proved, a constructive occupation or unrestricted liberty to occupy under that contract was sufficient. Lastly it was contended that the Defendant had suffered an eviction and was not therefore liable to pay rent for what he had been pre. vented from enjoying. The fact of eviction, however, was not pro- ved; the only evidence tendered in support of the assertion being the Exhibits I. J. &K.; tho first being simply the Plaintiff's own complaint in a letter to the Kajah of Ligore of certain apprehended treipassts about to be committed on the Birds' Nest Islands by Tuanko Mahomed Saad; the second, being the Rajah's reply, to the p. W. ISLAND OR PENANG. 54 effect that if such outrages should be threatened tlie Rajali of Qafi- (Jah would take meaeures to prevent them; and ths tliiid, a letter from the present Rajah of Quedah stating that the alleged trcRpaseea w«re sanctioned by the King of Siam. This certainly d«es not amount to proof that the irenpasees were ever committed at all, still le88 that if committed they weie sanctioned, as alleged, by the King of Siam. — But even supposing the Trespasses to have been proved, and proved also to have been done vfith the King of Siam's sanc- tion still from the well kiiown case in Aleyn, cited for the Plaintiff, Paradine vs. Jane, where tiie Defendant pleaded that Prince Ru- pert had come with an army and expelled him out of possession, it would be clear that the rent was nevertheless due, unless it was also established hy evidence that the actual lessor, the Plaintiff, had been privy to the trespasses, and tliat the Defendant had in consequence abandoned possession. But the evidence is in all these respects top defective for the objection to have any weiglit. On the whole then it is clear jhat Plaintiff is entitled to Judgment for Drs. 3700 and interest with Costs and I think full Cogts, as there was no just ground for resisting payment so long. 1855. IN THE OOUET OP JUDICATURE OP PRINCE OP WALES ISLAND, SINGAPORE & MALACCA. Between Lim 8$ang, Plaintiff, Plea Side and Jonas Daniel Vaughan, William Ward and William Magmss, Defendants. TO THE HONOEABLB THE JUSTICES OF THE SAID COUBT. The humble petition of the, Plaintiff. Sheweth, That your petitioner by John Edward Branson, gentleman, his Lavr Agent, sues the defendants. For that the defendants broke and entered sfmessuage and dwelling bouse of your petitioner, situate No. 8. Bishop Street, George Town, Prince of Wales' Island aforesaid, and sawed off, broke, damaged and destroyed divers wooden fences or rails Qr barricades erected, put up and affixed to and in the first or ground floor of your petitioner's said house ; your petitioner and his family being then in possession of the said house, and seized and took away th« same and converted the same to their own use. 55 COURT or JUDICATURE. And your petitioner claims 40' S|iKnish Dollars and costs of suit and prays that the defendants may be Summoned to appear in thi« Honorable Court and defend, tlie said claim so that jusiice may be done uB the ctisa shall require and your petitioner will ever pray. ( sd) J. E. Branson. Plaintiffs' Law Agent. IN THE COURT OF JUDICATURE OP PRINCE OF WALES' ISLAND, SINGAPORE & MALACCA. C Lim Seang, Plaintiff, J and Beticten "j Jonas Daniel Vaughan, William Ward t and William Magness, Defendants. The defendants in person say, that they are not guilty a-s alleged. And for a further plea, the defendants say that before and at th« time of the alleged trespass there was, and of right ought to have been a certain common and public way on foot, commonly called the "five feet pathway,'' into, through, over and along tlie sai'' messuage and house of the plaintiff, running paraltel with the com- niou and public highway there, for all the liege subjects of our Lady the Queen to go, return, pass and repass on foot at all tinier of the year and of their free will and pleasure and tliat th^ alleged trespass was a use by the defendants of the said pathway. Filed and annexed \ (sd) 3. D. Vaughan. this 9th day of January 185 5 > (sd) Wm. Ward. 3 {sd ) Wm. Magness. 1855 i- "^^'^ Plaintiff takes issue on the defsndanti j first and second pleas. ( »d) .J E, Branson, Plaintiff^s Law Agent. Judgment. Afterwards, on Thurs^ny tiie 1st February 1855, in open Court before the Hon'ble Sir William Jeffcott, Knight, Resorder, came the plaintiff by his Law Agent and the defendants in person, and all and singular the premises being seen and heard, it appears to the Court that the defendants are notginlt^ of the trespass within laid to their charge. Therefore it is considered by the Court that the plaintiff do take nothing by his petition, and the defendants do re- cover against tlie plajntiff the costs by them laid out, in and about their defence in this behalf here adjudged to them &c and that they have exeoution thereof. ( sd )A. Rodyk, Senior Sworn Clerk, for the Registrar. p. W. ISLAND OR PENANG. 56 Panang Gazette 16ih. October 186i. Before Sir P. Benson Maxwell, Kniglit, Recorder. f9tU. October 1858) Adley v. Robertson. Tlie petition stated that the Defendant had assauUed the Plain- liff, removed him from the Church, and imprisoned liiin in the Police Court. The Detendivnt, the Deputy Commissioner of Police pleaded not guilty by Siatuie ( Act XIII of 1856} Plaintiff— I am a Master Mariner, and I came here on purpose to have my children baptized. I applied on the 28th September to Mr. Wallis to baptize them. Last Sunday, the 3rd, I proceeded to Church at 10^ A. M. with two ladies taking the infants. Afteir five minutes, in consequence of something I heard, I left tlie Cliurcli, went round, and met Mr. Robertson near the vestry room. I siiid to him, "I hear you have constables here to turn me out of Church if I should proceed up to the font \ '' He replied "yes.'* We then went into the vestry room together, Mr. R. said to Mr. Wallis, if it is agreeable' to you to bapiiza the children in the evening, Mr. Adley will wait till then. Mr. Wallis replied he would not baptize the childreii and ordered me out of his private vestry. I replied "Mr. Robertson brought me here" and then went out. I said to Mr. R. before you take me prisoner, when I go to the font l«t me address a few words to the congregation. 1 went into Church and remained in my pew till after the 2nd lesson. As it concluded, I walked up to the reading desk, and said to Mr. Wallis "I wish you to baptize my infants.'' ( Here the plaintiff put in two letters from himself to Mr. Wallis, and a latter from Mr. W. to him ). M r. R. rose from his pew at the same time that I did. Immediately on my speaking to Mr. W., Mr. R. tapped me on the shoulde* and asked ni© to go to my pew. I walked back a few sfeps, when I ♦.urned my head and saw the two ladies witli th« infants in their arms standing at the font. I turned round and walked towards them, intending to request them to retire, and was then taken prisoner by Mr. R. After I had taken half a dozen steps, he seized me by the arm or collar, and pushed me along. When I got towards the door I said " I merely aeked the clergy- man to baptize my infants." When I got outside Mr. R. gave me in charge to a constable for three minutes. He returned into Church and came out again, when lie put me into his carriage and took me to the Police Office arrd kept me there for about ten mi- nutes, when Dr, Scott came and bailed me out. 67 COURT or JtJDrCATTJRE. Cross examined. — On leaving the restry I felt convinced Mr. W. vrouid not baptize my children. Mr. R. did his best lo induce Mr. W. to baptize the childi-en in the evening. Wlien I spoke, service was going on. Mr. VVallis was shutting the Bible when I spoke. There might be an interval of about 3 seconds between th© end of second lesson and the beginning of the singing. I did not say be- fore the service to Mr. R. that I was determined to address the con- gregation though it should cost me 1000 Rupees. I only asked Mr. R. to let me address the congregation. I walked before Mr. R. vrhen he took me prisoner. I think he held me by the back of my coat collar. I did not give Mr. W. any list of sponsors or any notice who they were to be. I did not enter my pew after I first left. The ladies stood to the right of the font. I had God- fathers and Godmothers ready. I was to be one. The Judge.— You were not aware, I guppo.se, that the canons Jo not allow a father to be the Godfather of hia child. Dr. Scott. — I was in Church on the 3rd and was one of the spon- sors. I had been in my pew only a few minutes, when I received a message from Mr. Robertson. I at once went out to him. He asked me if I was one of the sponsors. He said "I advi'se you to proceed no further in this matter, I have two European Constables here, and if you proceed I will take you prisoner.'' I told him if he did ao that he would exceed his authority. He stated that ha was acting under the authority ot the Resident Councillor; and that he would take me prisener. I said "I'll be Hanged if you do ; you shall not, if I can possibly help it, take me prisoner in Church." Mr. Robesrton said that as it was Communion Sunday it would be inconvenient to proceed with the Basptism. and he went to the vestry with the plaintiff. Shortly after, Adley returned from the restry and sat down in front of me. As the last words of the second lesson were being read, he walked up to the reading desk, and in a low tone of voice said, "Will you ftaptize my chil- dren, Mr. Wallis,'' or words lo that effect. Mr. Waliis looked down at Captain Adley as he addressed him, but made no reply. As Captain Adley proceeded to the desk. Mr. Robertson followed him, put his hand on his shoulder, and walked with him down the aisle. While he was walking down, the ladies came up to the font. I heard one of the infants cry, when the plaintiff turned round and walked some steps towards the font. Mr. R. immedi- ately seized him by the arm, turned him round with some force and either by pulling or pushing, got him out of Church ; bundled' him out of Church.' Ten minutes afterwards I went to the Police Office and bailed the plaintiff. Ha was in the guard room. ' p. W. ISLAND OR PENANG. 58 Crots examined. — Th« organ was playing the symphony when plaintiff addressed the clergyman. Plaintiff did not spesik a second >time. He walk^>d forvsrard respaotfully and quietly. I don't kanvv^ whether the congregation was disturbed. I was, but it was not by the plaintiffs' act, hut by seeing him dragged out of Church by the Police. Mr. Pretgrave. — I was in Church on Sunday last. At the end of I he second lesson plaintiff walked from his pew to the reading desk, and he 'appeared to address some words t» the minister, but I did not hear what tliey were. As he spoke, I saw defendant ap- proach him uiul tak<^ hiin by the arm and lead him down the aisle. By the time ihey were half way down I saw two ladies at I he font. Plaintiff turned back and moved up towards the font. He was prevented, I Ciin'C .say by whom, I thonght I saw two or three Police uniforms near him. He was taken hold of by one of them and put out of Chuich. Cross axamined. — When he walked up, the congregation were not standing up, nor were they when he addressed the Clergyman. Mr. Alexander. — Police Magistrate. I was in Church on the 3rlaintiff walk up to the readihg de.'sk and say sometliing, when Mi-. Robertson went up to him and said "come." Plaintiff walked b:ick. Si» did de- fondant.' After returning to his pew, plaintiff went up a second time in the direction of the clergyman. Defendant followed, col- lared him and then marched him out of Church. Defkncr. Defendant. — On Sunday morning last Irpceived a coinninnica- tion from Mr. Wiillis, in consequence of wliicli I went to the Clinrdi. I saw plaintiff in the Cliurch yard, he said he intended to present )iira?;elf before the congregation and publicly 'D OR PENANG. 60 of ship Ciiptaius nnd strangers in Cliurch, looking al>ont' and iip- pareiitly exciled. I saw that soniethiiiur was going to take place. Previou'! to this I had ordered an Inspector to remain at tlie Church door. After the second lesson, before the parson had closed his book, plaintiff went forward at a rapid pace to ilie read- ing desk and said fo Mr. Walli< something ahoiit wishing to have his children baptized. Mr. Walli^ seemed perfectly confnsed an protect di-seniers and others whose forms of vvorsliip wei'e toleraied by luw, from loo- lestatioii in tiine^ when the spirit of intoleranc* was more generally prevalent; iind he should have iiesitated to hold, without fiinher consideration, that the Indian Act which followed them, applied to aa irregularity committed in a religious assembly by one of its own members, especially when committed, as had probiibly happened in thi* Case, in the bona fide belief th«t it was strictly rej!ul:ir and right. In a case wliich had occurred in England, Lord Tenterden in giv- ing the judgment of the Queen's Bench, exj)re<8ed a doubt wliethe>" the Toleration Act applied exce])t where the thing was done on pur- pose to disturb the congregation or misuse the preacher; and ha (the Recorder) was sorry that he was not called upon to decide whe- ther that doubt was wellfounded or not. X\h here referred at some length to the case of Williams v. Glenistgr, 2 B & C. ) But the question did not arise upon the facts before him. Before adverting to them, however, he felt bound to say, aud he was sor- ry to say it, that he saw little to commend in the conduct of any of the parlies concerned. Whatever rule the clergyman might have laid down respecting the time for administering baptism under ordinary circumstances, it was quite clear that in strict right the Plaintiff was entitled to have his children christened on the day on which he had requested that the ceremony should be performed; and he thought it much to be regrel;ted that his request had not been complied with. The dSth Canon — and the Canons were held by the clergy to be binding on them, although they were not so on the laity, as they had never receivad the sanction of Parliament — requir- ed a clergyman, under the penalty of three months' suspension, to christian children upon " convenient warning " being given to him; and what was a " convenient warning " was settled by the third rubric prefixed to the service for public baptism, which directed that " where there are children to be baptized, the parents shall give knowlidge tliereof over night or in the morning before the begin- ning of morning prayer to the curate. " The only discretion which the latter had in the matter was in choosing whether the children should be baptized at morning or evening prayer. The first rubric to the private bapiismal service, to which Mr. Wallis had, in his evidence, referred, certainly gave n« countenance to the rule of hold- ing buptisnis once a month only, for it directed the curate to ad- monish his parishonars not to defer baptism beyond the first or second Sunday after birth. It ^^'as not for liiin (the EeeorderJ to say whether it was absoluti'ly necessary that clergymen ?!iouM 63 COURT OF JUDICATURE. jiliide stricily in all cases to the directions of tlie riibries"; but cer- tainly tlu' [ilaiiitifF appealed to him to be entitled bv them to have his cliiMieii bapt-izi'l onthe Sunday in question; and whatever rule tlie chaplaiii might hav.e laid down on tlie subjuct in ordinary cases he must »ay lie thought it iiard under the peculiar circumstances of the )>laiiiiifF'8 case; his having come here on purpose to have hi» children baptized, and being kept i)ere from inn ordinary pursuits for no other purpose — that he had not de|)arfed fioin it, and fol- lowed the course prescribed by the Prayer Book. However, even it' the clergyman was ever so wrong, he thought that tlie plaintiif iiad not done much to |iut himself in the rii^ht by the course he had adopted. It curtuinly was not a very riijht or * very proper meaii« of redressing himself for tlie default of the oleigy- nian, to t^et up a scene in Church. If he had a just cause of com. ])laint against the Chaplain his remedy plainly was to represent his condouci to his Bishop, and not to go off to the Church for the pur- pose of addressing the congregation and interrupting the service, — es- pecially, too, on a Sacrament Sunday, when people's minds ought least 10 be tronbled by a scene likely to excite angry feelings. He might, possibly, have been advised that it was necessary, in order to coinplttte his case against the clergyman, to present his children at the font for baptism; but surely big common sense might have told him that he was dispensed from going through any such forma" lily by the direct and point blank refusal which he had received from the chaplain, both in writing on the Saturday, and verbally 'n the vestry room before the beginning of th« morning service on the Sunday. Tha defendant, also, had been in the wrong, for in his (the R'jcorder's) opinion the plaintiff's conduct which was the cuase of his apprehension had not in any way jus- tified his being taken into custody. The facta of the case — and there was substantially ni» dispute about them — were shortly these: — The plaintiff walked up the aisle to the reading desk, and called upon the clergyman who was sitting there, to baptize his children. He had hardly uttered the words, when the defendant requested him to return to his pew, which he did immediately and without hesitation or remonstrance. So did the Defendant. If, then, this appeal to the clergyoian constituted the disturbance, all tliat could be said was that the disturbance was then over. The plaintiif had desisted ; the deteiidant iiad not arrested him ; and there was an end to the matter. But just as the defendant was re-entering his pew, he observed the plaintiff walking up the aisle again, and without waiting to see what he was going to do, at once seizi.-d hink and carriad him prisoner to the Police Office. Now iiwas impossiWs p. W. ISLAND OR PENANG 64 to contPiiiJ that a person was guilty of disiurbing a conpfj-egation wlio mei-Hly walked up the aisle of the Church in which tliey were assemble', that I shall be at Church to- morrow forenoon and siiall present my children for Baptism iii due fQrm, I shall demand this as my right and howiveV unwilling to create any interruption to the morning service I feel that I would be wrong in waiving what I consider my undoubted light, with you shall remain the responsibiHiy of refusal. ' I am. Sir, 2..d. October, 1858. Your Obdt. Servant. William Adley. Penang Gazette, 9th April 18i59. Before Sir P. IJenson Maxwell, Knt. , Recorder. The Laiv of England in Penang, 3£alacca and Singapore. Rbgina v. "Willans Esqxjike. The Judffe. — The ia a rule calling upon the Police Magistrate of Province Wellesley to shew cau.ie why lie should not hear and ad- judicate upon a complaint preferred by Mr, Duncan Pasley against one Chivatean, an agricultural labourer in his employment, for having absented lirnlself froin his service." It appears from tlie affidavit upon which the rule was granted, that Chivatean was -sentenced last December, by the foi-mer Magis- trate of the same [dace, to two months' hard labour in the House of Correction fot- a similar offence ; that upon the expiraiion of that term, "he did not and would not return to tlie said , service," and that he was thereupon again apprehended and brought -before Mr. Willans, who "refused to adjudicate *on the second complaint, on the ground thai the jurisdiction given to him by the Act of Parlia- ment, 4 Geo. 4 c. 34, had been exhausted by the previous convic- tion and punishment aforesaid, and that he could not punish tlie said Chivatean for a fresh absenting upon the same contract."^ The question raised upon this state of fact is whether the Magis- trate's refusal to adjudicate was well fouiided. Before expressing 67 COURT OF Judicature any opinion upon it, however, it is necessaiy fo daternnine whether the Statute under which the defendant was called ilpon to act, did give liim any jurisdiction, as asserted in tlie afindavit; that is, in other words, whether it is part of the law of this Settlement. This ques-' tion liHS never been decided in this Court, although the Act has been enforced by tiie Magiafrates for many years past; and its deci- sion depends, first, on whether any part of the Statute law of Eng- land of as recent a date as 1823 is in force here 5 and if it is, thetij secondly, on whether this particular Act is, from its nature, applic- able to this country. How, and to what extent the law of Enerland first became the law of the Indian Presidency Towns, and incidentally, of this Settlement, has been the subject of much discussion. Sir B. Malkin laid it down, a quarter of a century ago, that "the introduction of the King's Charter into these Settlements had introduced the existing law of England also... and had abrogated any law previously ex- ■^ting" («). The siime doctrine had long before been that of the In- dian Supreme Courts, with respect to the introduction of English law withiti their respective jurisdictions; and no stronger proof of the firmness with which it was established here can be cited, than the case in which Sir B. Malkin applied it; for though he expressed a strong doubt a.s to its soundness in principle, he acted upon it in a case wherfe its effect was to abolish the law of Holland in Malacca, and to substJtutethe law of England in its stead. If this doctrine, could now be disturbed, it, could not be in this Court, where it must be treated as beyond the reach of controversy. But as it has been disputed, since Sir B. Malkin's judgment, by the Indian Law Com- missioners, and, before them, by Master Stephen in his report in Freeman v. Fairlie, and has been sometimes questioned in local dis- cussions in the-Settlement (S), it may be as well to consider on what grounds it may justly rest- And as tlie learned judge M'ho laid it down, stated it to be subject to exceptions which , he left undefined, it is advisable, at the same time, to examine whether it is subject to any and what exceptions or qualifications. Having regard to the circninstances under which this place be- came a British posses'^ion, it may be doubted whether any, or if any, 'then what body of law ought deju'fe to have been considered aj-cl<. in the ordinary sen.se of the expression^ nor can it be said to have been an inhabited country when ceded, because four Malay families were found encamped upon it, when if was first occupied by us, (c). It was a desert Island beloiigin:truciioiis were sent (25tli March,- 1800,) to Sir George Leiihthe Lientemmr Gpver» nor of the I-land, (lireotin<^ tliat Enropeans guilty of murder or other crime of enormity should be sent to Foit William (a) ; but for, lesser offences, they appeai to have been left in totiil iinpuniiy. As late as 1805, the Governor eom|ilain8 ilia while jjrovision had been made for the punisUraent of naiivi' criiuinalg, •' the more tnrbuleiii Europ- ean remains on ihe Island free from all restraint,, with the ])ower of commiiting every act of injustice and irregularity towards hisneigli- bour and the most peaceable native, having set at defiance all autlio- riiy as not legally egtabli.-hed oil ihe Island '' (6). It may be said that this proves the want of leg;ally constituted Courts, rather than the absence of law ; but oriniinal law can hardly be said to exist wliere there are no triliunnl.^ to enforce it. However thi-i may be, what cri- minal law was in force was not English law. In 1794, a body of Eegulations were passed by Lord Teignmout,h, the Governor General for preserving the peace of the Island (c); and these appear to have Continued in force, and indeed to have been the only criminal law in force, down to the time when the first Chai'ter was granted. Next, the law of England was as little recognised in civil matters. Even the general rules of inheritance, which Blackstone considers to be among those portions of English law which are carried to their Seitlemenis by English settlers (rf), were wholly disregarded. Mr. Dickens, who was appointed in 1800, partly to act as Judge or asses- sor to the Lieut. Governor (e) , and partly to frame a Code of laws for the Seiilement (/), urged earnestly, in that year, that the Gover- nor General should enact a Regulation upon tlie subject (g) ; and even as late as 1823, "e find Mr, Phillips, the Governor of tl^e Settle- ment, meiitioniiag that " the rules wiich, according to Britjsh law, govern the disposition and inheriiance of real property have never been applicable to our lands,'' &c. (h). So, with respect to personal property. In 1804 Mr. Fitiquhar, ll^e Lieut. Governor, in applying to the Supreiue Government for instnictions for the distribution of the effects of a person domiciled in the Island, who had died intestate stated that thefe was here " no law nor any fixed custom," according to which it could be distributed (i). Again, slaves were bought and sold, not only openly, but with the sanction of the Local Govern- H)ent, one of whose early cares was to provide Registers for those transactions (J) ; and taxes were imposed by the sole authority of the Governor General in Council, viz. g, duty of 2 per cent on all (a) 5 J. Ind. A. 168. (b) 6 J. Ind. A. 93^ (c) 5 J. Ind.~Ar294. (d) 1 Comm 107. (c) 6 J. Ind. A. 167. (/) 5 J. Irid. A. 195. (g) Id. 119. {h) Mr. Phillip's Minute on the landed tenures of P. W. I. p. 8. (i) 5 Ind. Areh J. 409. 0) Mr. Phillip's Min. 10, 5 Ind. A, J. 102, 296. Missing Page Missing Page Missing Page Missing Page Missing Page Missing Page Missing Page Missing Page p. W. ISLAND OR PENANG. 80 W. Norris, I anxiously reconsidered my own decision, but found no ra»«()n for iiolding it wrong in princi|)le; and as Sir B. Malkin'a o|>iiiioii, alilKiii-fl) entitled to the liigliest respect, was extra iudiciiil while Sir W. Norris seemed to luive been adopted from his pre; dececsor, rather than to liavo baen (he result of any independent coMgideration of the subject, Ithoujjlit jnyself at liberty lo abide by own opinion. I niu«t add ihiit. I felt lass hesitntion in doing so, when I referreil to the paragrapli of the Indian Law Ciminissionors' repert, cited by. Sir VV. Norris, for I gathered from it that th«v ra- ther disMiited from Sir B. Malkin's vie'^Ts, than concurred with them, if the latter was to ho understood, as Sir W. Norris clearly under- giood him, as holding that the law of England was to be modified bp the Court, in the extensile ui«nner in which he thought it should be modified in the case of the adopted child. " We concur with the late Sir B. Malkia and the Governor General," the Commissionsrs 6ay, "in thinking that it (the law of England) ought not lo be changed substantially, but modified % express enactment, in the spirit in which Sir B. Malkiu thouglit it should be administered, under a large and liberal regard to th« different manners, uRoges and religion* of the various nations of which the pojinlation is composed " [a); clearly intimating that though thoy approved of the sugg-ested modifications, they consider'^d that they should be ma8siiy, the validity of the marriage depends on whether it was performed according to the rites of their religion. Refeiring to the Jews, Lord Slowell says " there is in England a nnmerous iind respectable body distinguished by great singularity of usage-:, ■•bo, though native subjects under the protection of tlia general law, are in many i-espeets governed by institutions of tliair own, and particularly in iheir marriages; for, it being the practice of niaukinil to consecrate their marriages by religious ceremonies, tliH difft-rences of rpligion, in all countries that admit resideijts pr<>- , ft'ssing religions essentially different, unavoidably mtroduce excep- tiotJS, in that n)atter, to the universaliiy of tlie rule, which mukes mere domicil the constituent of an unlimited subjection to tli« ordi- nary law of the ountiy. What is the law of marriage, he adds," in all foreijrn establishnienis settled in counti'ies professing a religion essentially 'liift;rentj ... Nobody can suppose that, wliile the Mogul Empire existed, an Englishman was bound to consult the Koran for the celebrat'on of his marriage. Even where no foreign connexion c;in be ascribed" — a case similar to that of the Eastern natives of tliis place — "a resjiect is shev^ to the opinions and practice of a distinct people. The validity of a Greek marriage in the extensive dominions of Turkey, is loft to depend, I presume, upon their own canons, without any reference to Mahomedan ceremonies. Their is a jus gentium upon this matter; a comity which treats with tender- ness, or at lenjt with toleration, the opinion and Uriages of a distinct people in this transaciion of marriage" (b). How fur the general law should circumscribe its own authority in the matter, it may, as the same Judge ob-erves, be difficult to say a priori; and unquestion- ably it is not easy to extend to Mahometan marriages that principle of comity which the law of England has applied to Jewisli marria- ges, without involving it in a recognition of polygamy, Whicli has al- ways been put by jurists beyond the p.ile of the comity of Cliriaiian (a) Balrymple and Dalrymple 2 Hags. Consist. E. 59. Kent Oomm 81. 1 Burge, Ool. and For. Law, 188. (6) Pertreij ti. Tondear 1 Hagg. 136. 83 COURT or JUDICATURE Nations (a). The question has never yet been deoiderl by any Court ill Enijlaiid; but Lord Broughnin, w'.iile declaring in Warrender v. Wairender that an Ennliah Court would never rocojjnise » plurality of wives, seems to liuve been of opinion ibat in dealing with a'lurk- i*l) niarringe " there may be some room for liolditig that we nre lo consider the tliiifg to \vliich the parties have bound ihemselvec, ac- cording to its legal aocepiafion in the country where" — or, (in the cone of aMahoiuetsn marriajre ii| an Englisli posses'^ion,) in the religion in which — "the obligation wai contmeted '' (6). I" this place, where the law of England hai been for, the first time brought to bear upon races ;imoii>;- whom polygamy hfi* been establi-hed from the remotest amiquity, the Court has had toconiidsr the ques- lion, and has always held polygamous marriag«» vali'J. Whether ihe Local Judicature eired, or not, in coming to ihi« decision, I do not stop to consider. It i-i enough to say that if it decided rightly, it it not bf-causfl our Charter deuiiuids an exceptionally indulgent treniment of the question, bnl siuiply because' tlie principle 'which make* the validity of a mairinge to depeiid upon the religions of 'he p«riie-, extends lo polygamous myrriaoi^s; while, if the Court , has been Wiong, it iian erred, not in adopting a principle foreign to. nncl at variance nith the law uf England, but in stretching, beyond its legitimntrt limits, a perfecly well established one. Again, if a Mahometan divoice be valid here — and its validity hag never been difiputed, I helieve — it mu«t be, not because there is any- thing in the Charter to make it valid, but because the law of Eng- land .recognises the right of a Mahometan husband to disgolva thq tnarriflge contracted by him according to the Mahometan law with a Mahomotiin wife; upon the same principle that ii recognises a Jowixh divorce effected according lo the custom of the Jews, without re- ference to the laws of the State where it was pronounced (c). So, in the ca.'ie put by Sir B. Malkin, of a bequest by a Mahometan of property "to be distributed accoiding to the law of God,'' I agree, and indeed I decided only a few months ago, that the distribution rnusi be made according to the Koran ; not, however, because the Charter requires that the English rules of construction shall be lernpered by a liberal regard for the Mahometan faith, but simply because the itrict rules of English law require that the intention of a testator shall be followed, and permit that ihni intention, in such a case at the supjiosed one, shall be ascertiiined in the same manner as Lady Mewley's gift to "godly preacher,'* of Chrisi's holy Gospel,'' wii" Bsr^rtiunod to be intondwl fur pVeaoher^ of Ihe relieions partv (o) Story Oonf. L. § § 113 a. 114. 2. (6)1 CI. "&^.~531, 2~ '(V) Q»ner v. Lady Lanesborougli Peake 17. p. W. ISLAND OR PENANGi. 84 to Mrliioh .'he belonged (al.) — viz : by exiiinsic evidoiicp, siiewinij wlint Wfts the religion of tlie 'estator, and lenvinu it lo flip Court, lo infer from tbe fact so arrived at, in ivluit seii--e tlie word?) in qoH«- tion were used. In the Same wdy, if the adopted '>r natiiint child of n Cbinfisa or n Hindoo is to be regardeii as ins heir, it niiiTt be, uot by viram of miy provision in the Clmrter, but solely Ue('au'8 Bench, and nfierwards by the Mou ivife uiitry gorerned by English law, simply because not Ida offspring burn after his in relax or tuperseiie general restrictions mid rules, whenever he thinks puriicii- l«r cn8»i not within the refison of them ^ould lie, as Feanie says (a), a greater misoliisf in its consefiuence!^, than tlmt which ia inteniled to be ohviateil by it; for thii is in fact makinu; the di~cretion of the Judge the only law in mucIi case*. I must achl, houever, tlnit I nin nnnhle t" see nny hardship in adiiering, in this country, to the riijfid rule oY the common law that all qtiegtions relating to land iire jjovern- •<1 »olely by the Itiw of the land. Owners of real esiate ai-H at li- berty to devise it as they plenne; and they may therefore direct tlmt it »hall devolve (of oonr'se within.the rule against perpetuity ) in the Course of succession established by the Isiws of their own nations or religions. To depnrt from the rule vfould, it seeni» to ,Tue, lead to jjeal difficulty and confusion; and I cannot but think that thoi^a who would suffer Chinese, or any othei' law lo have u voice in such questions, overlook the inconvenience to which Mr. Justice Story points, " of any nation suffering property locally :uk1 pennanently situate within its own territory, to be subject to be transferred by any other Istts than its own ; and thus iutroduoing into the bosom of its own jurisprudence nil the innuuierable diversities of foreign laws to rcfjulats its own titles toisuch property; many of which law* can be but imperfectly a-^eertained and many of which may become mat- ters of subtle oontrorersy " (&). Looking back, then, to the early history of the Settlement on the one hand, and the hutguage of the Charters on the other, I tliink that Sir B. Malkin had good grounds, independently of the nniforni course of authority on which he relied, for staiinjj that the King's Charter had introduced English law into the Settlement. It was, no doubt, a startling consequence of this doctrine, that the laws o^ an old and civilised community vrere abolished by implication, while those of England were gubstittitod in its stead ; but I think that the faj Cont. Eem. 535 n. (bj Story Oonfl. L. § 440, "Very little informa- tion," says Mr. Medhurst in a learned article on Marriage, Affinity and Inheri- tance in China, " has been hitherto collected as to the local usages in different parts of the country, with regard to the rights of succession to property in China j " ( Transactions of the China Branch of the Eoyal Asiatic Society, part IV. page 30). But if the information which he has collected ' be correct. Sir W. Norris was misled, in the case cited, as to the Chinese law of inheritance ; for the power of adoption appears to be strictly limited to the male relations of the next generation in a regular order of succession. Nothing is said of adop- ting danghters. Even legitimate daughters are not entitled to any share of their father's real or personal estate,, except on failure of the male relatives who are the objects of adoption 87 COURT OF JUDICATPRE. RpO'ii'diT woiili] have found it difficult to admini.»tei' " justice ami rit;lu" aocordiiig to ilie RitmHii Dutcii law, under a Chmtei "liieli, ill I he numerous piiiliculHrs already iidverteil to, implied that the common hivr whs itie only law in force. Tiie Chnrtei- of 1807 haviiifr introduced the liiw of Englnnd into this Island, thiit law, aa il! existed at that dale, would have bben the Ihw of ilii? oounti-y, if aiiotlier Charter h:id not been subsequently i-isnod. Thia second Charter was grunted in 1826, wh<>u Singapore and Malacca were first united to Prince of Wales' Island. The •luestion then aiises, did it import the later law into this Siation? The case of Rodyk v. Williamson (o) wns a Malacca ease, and wlien Sir B. Malkin decided in it that the law of England had been inirodiice'd liiere by the Charter so as to supersede the liw of Hel- Innd, he must have held that the law iiuroduced nns the law of En}j;land as it stood in 1826, since the Charter of tliiit date was the inn," says Pollock C. B., " I niu-t say satisfactoiily to my own mind, that the Legislature, by the third Sectionof the 4 Geo. 4. c. 34, did not intend that s workman should lie put into prison more than once for not fullfilini; his contract..., I Cftniiot help saying it appears to me contrary to the general spirit of the Engli-ih law, and the aduiiuieiration of it, that a man should bs puni-ihed thus over and over again, for what f^nbstantially i* the same ma'ter, and which for civil purposes, n-ould be considered and adjudicated to be the same matter, and which would admit of but one action being broutny tliat tiie second absenting is a di-tinct, offence, for he qualifies his a-iserl,ion by statinj;' that the ttfo Acts are " substantial- ly", tiiat ifi, I take it, " not perci«ely ", one. It i.^ |ierhap« true tli»t, in pracijce, the repeated tvois of ini-conduct i^ould be treated a.s one offence, and that one ad ion oidy wouhi be bronght in respect of them; but it would b« diffi.,;iilt l<> maintain the propo-iiti()pi, that, in strict law, a .second Tibsen ling ia not a sufficient can^f for a second action. IF a labourer could not be puni-'^hed for a second absenting, be would have a power which the law certainly denies to wrong doer* 'n all other cases, viz; that of taking advantage of his onn wrong; for he would be at libeity to. rescind at lii^ own plea'»nre his contract wiih^his master, wiihout ihe consent of the laitffr. But 1 do not think he has any euch power. As far as ha i- concernod, the con- tract continues bindiiiy;, and it is his duty to return to the pert'orniaiice of it at the expiraiioii of hi.s sentence. ]f he wonts it reacinded, he must endeavour to persuade the Matjistrafe to exerci»e in bis favour the power which tlie Act sjives hitn of displiiirij'inii the servant from hi.s' coiitraiM — a power probably j^iveii for the protection of tliQ liibourei-, but which would have been wholly' sup'^rflous if the latter liad actually riil himself of his obligation by oiicp breaking it. The master, indeed, i.i atliberty to avoid the contract, and it was coirteini- ed ii] Exparte Bakor, as in the present case, that on this account the man was not borrnd to return unless requested to do so; but I think that the objection was satisfactorily met by the answer of counsel, in the case in the Excheciuer, that if the contract contiiiued iii force as against the servant, a request to continue to perform it was un- necessary (rt). It in clear that if the contract were not voidable by either party, the master would not be bound to give the servant notice to resume the performance of his part of It; and it seems to me that the privilege of rescission acquired by the master through the servant's misconduct gives no fresh \\g\\\. to the latter. The ser- vant, by Ills def^ull', can give his master the option of rescinding the contract, but cannot impose u])oii him the burilen of a condition, not coniained in the contract. The oirly notice which the master is, under surh circumstances, bound to give, is, not a notice of big ad- herence to theconiraot, but a notice of liii intention to rescind it. Until such notice i.s given, the servant is bound to treat the agreement as 6i!ibsisting, and to continue to perform his part of it (6). Fur the<;e reasons I think that the Magisti'ate ought to have heard (ftl), p. 160, (a) Id. p. 158. (6) I was not awere, when I delivered thi« t. W. ULAND OR PENANG. 94 and arljudioMted upon thi< c«sa; ftnir native iawg or U'^ages in the setttlement of their 4icput6S.v It it not veiy «urprising tliat tlijs course should have been followed. The Judges found a state of things prevailing of which tliere w».? no previous example. The Charter of the Court was silent As lo the law. They knew no law but that of England. There was no estdblislied local law. The counDunity was exceedingly mixed, the iaiiabiiantis, with an exception numerically insignificant, being Chi- nese, Malays, Indiana, Arabs and othei? Asiaiics. The nctual law tiiat had been administered since this heterogeneeU'4 po|iu1ation had begun ti) galther, was partly natural equity to all, and partly the law of each race lo those who belonged to it. Continuing the Oriental sysiem prevailing in the dominion of Kedali of which Penang had formed a part, each considerable class of Asiatics was constituted u comniuniiy by itself under a native head or " Captain," who, in civil matters, adjudicated for it according to the religion and laws of the race, i The small English ingredient were so far from censidering that their native law had become the law of the place, that they were themselves left, in a great degree, , to natural equiiy. Even when a jjrofe.'jsionai Judge and Magistrate was appointed lie could 'find nothing better to guide him. The actual laws were thus not local but jieivoiial or ethnic. The operation of a judicial Ciiarter from the Crown on such a slate of things was a new question. Theore- tically the liiw of England appears to iiave been brought into fotce as the lex loci, but subject to large and indefinite or ill understood exceptions, arising from the mixed and Asiatic character of the po- pulation. The first Judge who completely carried out the Indian vdoctrine that the Charters of the Courts introduced the hiw of Eng- land and abrogaled all prior Ibcal law was Sir Benjawiin Malkin. He was far from admitting the reasonableness or justice of such a construction, but he considered himself bound by the decisions of the Presidency Courts. His judgment has never been disturbed in tlie Straits, althougii the question remains for final adjudication in England.. According to this dectrine, the law of Penang is the law of England al the proclamation of the first Charter in 1807- The Colony was not specially annexed lo England so as to be on tiia footing of.an English country, but remained a substaniive division, of the British Empire, — a separate dominion of the Crown. The r. W. ISI.A.ND OR PENANG. 96 exi^tiiif{ law of one of tlie older provinces of iIiq Empire ttih inlro- duoeiJ and Ijecnwis tlie law of Penang. But Iheiicefortli the i\v<) boili*8 of Inw were indopeitcient. Eaeli h;id its separjite lii»torv, and, no (diHiige ill the law of England aflfet-ted tlie law of Penano-, any more than a chiinge in the latter affected the former. Another con- sequence of the law being »in]ply imported without ,any territoriH' nnnexution, was, that only so much of the law of Eiioland toolt effect as the circumstances of the Colony requ't'ed and admitted. A considerable portion of the law of England i.s speei:illy adapted to the customs ami religion of the Engli-^h people and to English in- stiimioiis not found in the transmarine portions of the Empire. The Imperial Government did not confer on Penang all the institutions of England f)r, convert the mixed population into Englishmen. It left tho colonial community to adopt the law of England so far as it WHS suited to their needs. It did not attempt by legislative authori- ty to accomplish the impossible task of adapting ihem to the law of England. The case of the introduction of the law of England info a Colony already occupied by a composite and civilised community of Orien- tals has not been oontomjilated by English Lawyers and Judges^. No principles specially bearing on it are to be found in the commen- taries of the former or the decisions of the latter. The reason is obvious. The construction that has been given to the Indian Chai-- ters is purely fiiciitious. Tho liiw3 of any portion of the Em|)irecan only be altered by Legislntive, or, in certain Colonies, by Royal enact- inetit, and erery Act or Ord«r coiitaini 8pt>cial provisions to meet the justice of the case. The Penang Charier does not, touch ihe law. It assumes the existence of a local law adapted to tlio mixed com- munity. It establiihes a Court on the English model, not to import a new law, but to administer that already in operatior>. It refer* to the various religion's, customs and habits of the population as facts existing and therefore legalised, and ii merely provides that the Court shall adapt its jurisdiction and procedure to these facts. It gives it potentially all the powers of all the English Conric, but pro- hibits it from exercis^ing any ot them that may clash with these fact's^ and from exercising those adapted to the population in modes that would 80 clash. When so much violence is done to language as. to hold that a Charter establishing a Court abolishes the law of the land and enacts a foreign one in its place, it is a comparatively small ain against the rules of construction to hold that the .provis.ion3 for il'O accommodation of the introduced judicial funutionv cannot become the fixecutor of e^ach crfled. In cases where men do not choose to muke the iiecas3»ry provisions for complying with the requirements of their religion, the sin must rest on their own heada. For exHmple, if a Chinaman die nitliout making a will to secure, thw upplication of a part of liis e«t«te for the performance of the rite* to Ills manes t'le State is not bound to »tep in and succour the impro- rideiif and unhappy ghost. H i' did. it would soon find itbelf-tiu«- Jee for thousands of m nndering gpiriia. Another portion of t^e law is applicable, with due accomm-idalion to the aatablished religions and cu«ionis. We use tiie ordinary phruseolojty, but it \^ not very exact. Tiie principle* of the law ore not modifi'.d. It is only tlicir upplication or incidence that Vdrie*. For example, by the law of England the different domestic rehitioun are aceonipanied by vnrioiis dniie«i. In England these relniioiisi are, to a ifroat exien', formed oi- regulateif in conformity with the Chri»- tinn relig'ioii. But the oorrehitive duties are, for the mo-t part of universal oblitjfiiion ciiln'r in ethici or policy. In a polythoistiu Colony the forinaiion and exiindion of these rHbitions mu-it bu left to tlie operation of the religion and customs of each race. But the duties incidental to tlietn,ag they fall 10 be enforced by, the State, inuts a cliild, or directs his executors to do so for him, intends to give it all the rights of a child by blood. AVhat these rights are must be declartd by the Uw, in the abseupe of paternal provision. 'J'he law merely makes a geneial >yill for those who neglect to do so for themselves, and who may therefore be held to have nccepied th*t provided for intestucy by the Slate. 'J'lie mnttiftl rights of husband and wife vary greatly amongst dif- ferent races. When Mshomedans marry there is an implied con- ti'ftPt tliiit the wife sliall retain her pwn property, personal as well as leal. The law of England does not prohibit such a contract, but it requires it to be in writing. Nearly i^|ie whole body of mercantile law, imd the law of con- Iracts generally, furnish example.! of that portion of the law of Eng- land which is of universal ajiplioatlon, und which must h» taken to liave at once come into opersition iii Penang in 1807. T. W. ISLAXD OR PKNANS. 100 According to thia view tlia actual com[-)09itiun arii) conditii'u of li>e {iopnlatiori in 1807 determined the pxient to whicli ilie l:i\v of England was tlieii introduced. But so niucU of it ;i-i tonk effect, becmne th# lex loci, to wliicli all were aliliH subjeit. The iueid«nce of the law did nrtt v*i'y with the class or cru«d. There w;is no fur- tlier Rceomniodntion or raodifieaiion of its prinei|iles. To hold tlifttthera was, would be to deprive the 1b\y of ii» terrUorial English chiiracter and to give it an ethnio Asiatic one. English settlprS' who take po>i88ted to tlioir devi-iloiied society. 'I'he Enjrlish and Scotch * reaident* had no pecnlinr claim to have theinelijfio'n or customs regarded in dncidin|T the qijerfcion of adaptation. The rights and interests of the socieiy a« a coninuiniiy furnished the inle forjill. The jndicature of the mixed soeicty had to cc>n«i'r to rhe Suprenie (Joverpt-meut wiih refergnce to Lord Aueklftiid'i minufe on ilie ud- niirtistriition of justice in the Striiits, Sir B. Malkin, after i-euvernor General lo consider that it at present in, and ought, in (/eneral, for the present to con- tinus, the law of England, niodifiad * indeed by comidrrationii how fur gome of its particular provinions and ennctmentg are suitHl)l« to t,he circunistanees of the Colony, and admini'^tered in all cases uitli a Itir^e and liberal regard to the manners, u«aifei and religions of the different nations subject to its oppraiion, but coniHining no pjovisiong or principles wijicri cnnnot be bS-ied on that law so modified and constrneil. None of the provision* giving the Hindoc^ and Mahoinedans subject to the jurisdiction of the SnpreniH Court here [Calcutta 1, and at Madras and Bombay, the beiieflt of thtfir on-n laws in certain caciijing at Malacca in 1843 tliat the adopled son and (ianghier of a Chinese, were entitled to. hi* es- tate in preference lo the nearest rtdative by blood, a nephew, remaitk- ed, that in practice he had aiihered to the prineipio referred to in this paragraph. > * Quer*aa to this word. The Court as?umes a legislative power when it does not simply reject a law as inapplicable to the Colony, but modifies- it 150 as to make it applicable. t Not " respective. " p. W. ISLAND OR PENANG. 102 PENANG GAZETTE, 24th OCTOBER 1857. ( See Rgg. v. Willam, paye 67. note h. ) Sometime since we placed a few general remarks on the Law of the Settlement before our readeri, and they will no doubt be glad to see it treated from another point of view by another hand. The rough notes were -given, to us by the writer long ago, and he has not had an opportunity of revising them. One of the raott important quei^tions whicli arises on a p«ruial of the Cliarter <>f Juetice is the oi)eration of -tliat docMnient, on th« iaiv to be iiiiiiiiriistorad under iti sanction. It has been bi-oadly stated that tiie Chftrter introduces the Common Law of England as it itood at tlie date~ of the Charter and all Public General Statutes paBsed for England and not inapplicable to the wants and condition of the inhabitants of t!ie«e Settlements. Tliis view of the case ap. pears open to much objection and is certainly not in analogy "iih the Law as construed in the Colonies, under cironrastances, in this respect, similar. It has been decided in the Supreme Courts in India that no Act of Parliament passed since the 13th year of Geo. l.(1726j extends to India unless specially so provided. The date thus fixed relates to the passing of the Ciiarter authoriz- ing the establishment of Mayor's Courts \fifh oommon law jnri'- diction in the three Presidency Towns in the year 1726. Sino* tiiat date several Ciiarters have been pa«sed altering, amending and enlarging the jurisdiction of these Courts, but it has not been lield, in any single ease, that the introduction of the«e new Charters ha< brought with them a fresii access of Acts of Parliament, or 'has affected the Common Law as it stood in 1736. In the discussions on the lex loci for India in 1845 the Law Commissioners set out the law as above recited in the 4th sect, of tiie Draft Act submitted by them, and in an explanatory note, add- ed that they had consulted the Judges of the Supreme Courts and had been by them informed that the allegation was substantially correct ( see Reports publiohed in 1847, Pari paper p. 631-3.) At a subsequent date Sir E. Perry objected to the truth of the proposi- tion in so far as it related to Bombay. It was not correct to say *hat the Charter of 1726 was the firs't Charter of Justice, as Sir Erskine had himself ruled that the Charter of 1669 by Charles 2. must have introduced English Law into Bombay if it had not in- deed been already introduced at or immediately after the transfer of that lalund by the Crown of Portugal to England in T 661. p. 666. The question hat been decided on authority as far as the Supreme 103 COURT OF JUDlCATb'KE ' Courts ill IiiiliH are oonoeniecl, but in the Straita it is still open lo (liuedan order annexing- Singapore and Malacca to P. W." Island and petitioned ihe Crown for a Charter of Juslice. On this petition, the firSt Cliar-' tsr of Jnstice dated 27 th November 1826, was issued for tlie incor- porated Settlements. Malacca, unlike Penang and Singapore, 'before its cession was a cultivated, and populous pjovince under the rule of a civilized Eu- ropean Government, !ind here there could be no doubt of the effect of the cession on the laws. The laws must continue as before till al- tered by eoinpf^ient aulliority — that is, in this case, the Parliament and Crown. The laws were so altered in the abseiice of any stipula- tion to the contr-ary in the treaty of 17th March, and thenceforward, as to subsequent events, Malacca it! placed on a par with Singapore 'and I'enang, but, is not involved in the uncertainty experieftced as to I'enang and Singapoi'e, as to the effect of the system of laws adopted in each of those places before the passing of their resjjective first Ciiarters. After the 17th of Marcli 1824, the Act of Parliament 6 Geo. IV. c. 85., expressly snys, (Sec. 19.) tiiat Singapore and 'Malacca be- came Factories subordinate to Fort William, and therefore according to 39 and 40 Geo. III. c. 79. s. 20. subject to the jurisdiction of the Su(»rerne Couit. Penang' had become so subject to the jurisdiction of the said Court at latest on the passing of that Act, 1800, if not before, on its first settlement, under 13 of Geo. III. c. 63. sec. 14 and 36, and -ee also the ]ireanible of the Charter of the Calcutta Court. Therefore it .'ijipears that Engli-h law (that is the law of the Su- premo Court of Calcntta ) was in force at each of the three Stations before the publication of theii- respective first Charters, and on thb analogy of the Indian Supreme Courts it would follow that each suc_ cessive Charter does not of itself alter the ]ire-existing laws, uii!e8.s 60 directed in the Charters themselves. Is there .any part of the Charteis to bear out such an opinion? The Calcutta. Charter of 1774, in its jurisdiction clause, says; the Judges are to have such jni'isdiction and authority as Ihe Judges of the Kind's Bench have in t,hat pnrt of Great Britain called England in a subsequent section ,tlie Court is to be a Court of Equity to ad- minister justice us nearly as may be according lo the rules and pro- ceedings of the High Couit of Ch/mcery in Great Britain, and in such manner and form and lo such effwct as Our High Chancellor of Great Britain doth or lawfully ittay. Again Courts of Requests and r. W. ISLAND OR PENANG, 108 Quiirtei' Sessions are to be subject to tlie Court in the same aort, nTin. iier iiml form iis tlie inferior Courls and Magi-sirates are by law Hiib- joct to tiie Queen's Bench in thiit imrt of Great Britain oalied Eng- )ann is the same in boili Courts. Tliere are various restrictiotiii in thi~ Ciiarter, as to cases between British sultjects and natives, and between natives tlieMiselves, pro- viding i liar cases are to be deeide'd by the Mahomedan or [lindo^ law. Such restrictions are not found in any ol the Siraifs Charters- English law is here introduced to all alike "ithout reference to ooloiii' or religion. Beyond these restrictions what distinctions cati be mado between^ the provisions of the Calcutta Charter and any of the Straits Charters and if it has been decided, as it ha.e, that the Calcut- ta Charter, most mate)ia!ly e'llarging the ])o.wers of the Court, as it did, was not hold to affect the laws to be administered under the Ciiarter, how in' similar pircuinstances can any of our Chfirters be held to affoct the jurisdiction and laws settled by its predeces^jor when they are almost co].)ies one of the oilier'^ What is a Charter il it i^ not an act of legislation pointing out a rule of conduct &o., but inei-ely affords the authority and means for carrying legi-latinn into effecl 1 Wlierea~i previously to the parsing of the' respective first Charters for each of these Stations the inha- bitant- of each of the Sttitions were subject to and entitled to English law, but had to go to Calcutta for a machinery to jmt that law into motion. ,(\.frerthe jiassing of the Charters, the machinery was pro- vided at their doors for putting jii motion ajaw ali'eadv in force. The Calcutta Ciiarter and the Strait^j Clitirters give to the Judges such juri'^iliction and authorily as our Court of 'Kinii's Bench and our Justices thereof rpspcctivoly have and may lawfully exercise (&y the common lata in Calcutta) within that part of Great Britain called England — jurisdiction and authority to do what .^ to administer jus- tice according to certtiin laws laid down for them, — according to, the laws of the land, — and the IViws of the latid point out that vviien a jihice is settled by Briti-h stibjects they ^ake with them a certain proportion of the existing laws, and in cases of cession the Parlia- Jneiit and Crown are authorized to point out what Jaws are to[be in force. Parliament and the Crown have not pointedout what laws are to be in force. They have merely giveu a machin^ery with juris- diction and authority to carry out the laws (whatever they may be) already in existence; unless it can be shown that the mere act of paiisiiig a Chatter of iiseil. without express terms, caa be held to in- 109 COURT OF JUDICATURE tend the extension ^of tiie Common and Smtute law of England at its own datH. If thii Ciiii be shown,, *e hiive then the law of Peiiiuig to dale from 1807 ivmi the Imr of i^vino-apore and Malacca t> n« on the Char- ter ..f 1855. It i-^ uiltiepes«ary to coti'.iider the subject of the difference between British born and native subjects in the Siniits since the passin;j ot the Ciiarier, as tlu! Crown and Pai liiiraeiit iiave decided by that docu- ment tiiat the laws are to be the same for all, in fact i be only dis- tinction beinr roligionj the Court havinyr power, however, under the Clini- ter 10 temper the law to a certain extent, that is the Straits Charter uHve to the Judges of the Court dii-ectly a power or ditcretioti exer- cisfii by iill Colonial Judges, more or less, impliedly.' We have seen as above that Enijliah law existed for British sub- jects in all the«e Stations before the passing of the first Charter for each and a certain Charter law for persons not Biitish subjects what effect then had the passing of eitfier of the first Chasters, that of 1807 for Penang, and of 1820 for Singapore and Malacca on that law J II does not. appear by any written report that tl)e question hag ever been judicially decided in the Straits. It is a rational conclu- stion that when Parliament has given a Legislaiure to a Poisesion to milks law for that Posse.ision in as full a manner as is done foi- India under 16 and 17 Vic. c. 95., its own [fower, or at least the action' of thoie powers cease, unles-^ under partiouhir circuinsiancei. In the case of a Possesion, however, where no provi-ion was made for local legislation it would be oilierwise as in tiia case of Gihralter. The first Charter of Justice for that place yvas granted in 1720, applying to personal property only ; a second in 1739 with enlafgad powers; a third in 1752 in which the lanj^uage of the second Charter was " used that the laws of England is the measure of Justice to be ad- niini.itered between tlie parties, as near as may be." Burge Col. Law. Prelim. XL, and Clarke Colon. Law 680. It has been decided, in Jephson a Rieru 3 Knapp 150., that umler these Charters the law of England ns far as l>liey are applicable are the laws of Gibralter. Even here, however, it is not said ihatthe laws of England pa^.'^ed and to be passed. Clarke in mentioning the same place in aitother page 15, see note 5, "soin some Colonies not possessing Legislative AinemblieH such as Gibralter to the whole body of Eugli-^h law fts it existed at the time of the aoqniiition (1740 ) has been adopted. " That it in in the absence of n Local Legislature the Parliament ( British ) was left to legislate, by passing special Acts or by Acts specially intended for Gibralter individually or as one of a number similarly situated. If then in such circuinstiinces with 3 successive Charters each mors, 113 COURT OF JUDICATURE. extensive in its powers than its predecessor, it wafi lielil 'hut ilie law of Eiifjland applieil only aa tliafc liiw stood fit tlie first acquisitioiii how can it be 'uppose.'l that in our case, thr«« Cliiirters. one follow- . ing the other without any alteralion in powers, any the defendant and kept imprisoned for 16 days, during which he wa* repeatedly questioned^ kept in solitary confinement, and finally, du- ring a portion of the time, deliberately and intentionally starved ly order of the defendant. I'. W. ISLAND OK PE.NANG. Il4 The defeiidnut'i version of tlie nffiir is that the man did appeal- before the Mftgistrate on ihe 13th of Aui-ust, sceordiiijj to his bail b>iid, when the cane win remanded to the I7ih, on wliich di.y it was heard iind dismisge.l ; and that, thouf^^h true it was that the piaiatiff was for three days without food, and was found in a fainting state in his cell, yet that had uriseti from his own act: that having castp objections to the prison fare, he had been at first snfFefed lo receive food jir^jbared by his friend8,,bnt that a letier having l)eei< di^covwred in his rice, tlie defendant had ordered that jn fmure ho s)iould not he supplied wiili any other than tiie prison food, from wliich the plaintiff had obgtinftiely abstained lor three days. The two lea»cl>arged. Lastly, Karim, a Police Jemadar, swore ihat the men were taken lo the Magistrate on the'13tli, and remanded foi_,4 or 5 days to give time for search. As fai- then as mere nucnberof witnesses and po>itivcnenS of asiertion are concerned, the defendani'sca^e is strong enough. Bt.* when I come to examine ihe evidence of these men in detail, and compare it with other evidence, 1 find it iinpo8^illle to place any re- Hunce on what they state. The defendant himself, though swearing 115 COURT OF JUDICATURK. , ' , A.. - jiositively tliH< tlie ense was hen rd on the 17th, and professing a dis- tinct recollection of it, shews, wlien be gives hia Btory in detuil, thtit^ eVrn Bcoordinicto liis own version, the liearing could ncit iiare tukeii j)l;ic*' earlier tlioii the 18th. After Buying timt tli« remand vik or- dered on the 13th, he proceeds it) slate thatxm tke following inorn- iiifj he proldhitecl the supply lf, very ma- terial, hut it becoine-i worthy of notice, when' the rest "f tin; evidence is examined. Veiien S'lys he gave the plainiifiFhis food on the l-itli, ami for two or threi* days after, without (iljection, and that then the letter was found. Tliis could not have been enrlirr than the 16th. 'J'wo or three days after that, he goes on lo say, the docier was sent for — which would be the I81I1 or 19tli; and I wo or three (layi iifter that, the case was heard — tiiat is, on the 20th at the earliest. There i« no doubt, this witnens' evidence us to the number of days is very )o<)»e. He speaks of 2 or 3, 4 or 6, 5 or 6 'lays, iis if all thcS" ex- presBJon* meant the same thititr. However, he was the man who car- ried the plaintiff his food, and if it bo true that he broU|;hi it to hira two Or three times ai leant, before it was pioldbiifd, the difficulty in l'elievin,t tiiat the man was diacharned on the 17ih is increased. Ac- cording to JIntjness, thi» k'-pper of the lock-np, it was not till the 3id day, that i^, the 15th, that the food was stopped, and he siiyg that the plaintiff was not more than 3 or 4 days without food .in hi« cell — that is, till the'18tli. This would carry the hearing of the case down to the 19th, nt the earliest. But further, this witness nhose duly it vras-to corjduct prinoners to the Magistrate, has no r^ collec. tion wlmtever of the tneii appearing in Court on the 13th. On the contrary, he says that the fiist time they appeared after the plaintiff ■was bailed, was on the 17th. Again, when we come to inquire who were the |)rieoner«, and who the witnes'es on the two days, we find fre-h discrepancies. As to' the witnes«e8, Kathan says that Alngapn, Irfappeh, :he Chrilaintiff— Tan unlikely ocrurrence. Magness, who rectdleots oidj what he says pasneil on the 17ih, says that both Chailotte Edwards and Kathan were examined on that day. -This Charlotte Edwards J may observe by the way, was not called, and thongli something was said aboui h.'r being ill, no evidence was offered on the suhjpct. Then, p. W. ISLAND OK PENANG. 116 «8 to who were the prisorifirs ; Ktithaii say«, ihiit tUe.y were, on tha ]3th,him-=elt, the pliintiff Hiid Irlappen. Vellen shj-s, they were the pl«iiitiff. Knihfiii and Alagapa. According to Kathan, they were, on the IT'li, the three men lie had already mentioned, together with Alagapa. Magne«B says they nere On the 17lh, Kiihiin, the phiin'tiff Hiid Irlappen. The entry in the Police Sheet utiinilg thu-i : In the Biirae line with tiie date and the niimlier of th« case staiidn the nnma ot the plaimifF, above it, in much darker ink, is the nnine of Ku- than; and below, 'that of Alagapa, with " 17th," prefixed lo it. Butli Alugapa and Irlnppen, who were convicts at laru^e, deny thnt they e»er appeared before the Magi-.trate at all; and their denial is en- tirely 1)orn« out by the next ovidence to vhich I have to refer. If ii be true that the different personi) mentioned appeared either as wit- nesses or prisoners, it i« natural to inquire what evidence there i» in the Ungiftriite's books in support of ilie fact, If the c»se wa» twice before the Mai'i-'trate, as alleged by «£ll tlie defendant's witnessesi and if wiineBxeB were examined on botli occasions, a« asserted by nio»t (if them, iIih Magistrals')) Cliiir|;e Book, and his clerk'* Note Book must contain forae notice of ii. Nmr, the Charge Book d"i«s contain an enlry of a charge preferred by one Cligrlo'te Edwards against Kathail and the plaintiff — but no intention of Irlappen or Ala^jnpa — daieil the ISch of Au«:H-iiiierof th^se away. In ^nppori, how- evfT, of I he assertion that the case wan dismissed on llio ITth^ tlie ' Chiuge Slinet is relied ui>i>n; and there, unqne-ilinnnhlv, in the last colnraii opposite to tlii-s cae, ^land the words "di-inisned 17ch Au" gust.'' Now tliis entry invitf'H Boine attention. I'lie words jii.st cited' in the fir.st plaoi", are in very much darker ink than the rc^t of the entry, except the word " Kathan'', which however, I hare no doub^, utood in tl\e book o^j the morning of the 1 3th, for Mr. Foeton copii (J (he charge from tlii< slmet. The ink uied on the 17th in the other' parts of the book certainly appears ranch pah'r now than either " Ka- ihan " or "dismissed 17ch Aiigujt ", much paler for instance, ihun tlie words and figures " 17lh August" which app'ar in the very sain** entry. I see, iniieed, aiiotlier entry in tlie same pa^e, on the I3tii'' in ink as dark as the words in question, and therefore it is not im- ))ri>b.ible that the words " diRinissed " and " Katlian " were v^riiten on the 13th. But with respect to the "17 August" wliich are writ- lien immediatily und-jr that word, I have more doubt; for I do not find, as 1 just said, any dark ink used eUewhere on that duy. Tlie rest of the piige, and many-of the siiccoeding pa^es are all written in paler ink. Bearing in mind, then, that this book in in the is nevcrthelaes pntBred, and a retnark is entpreTS an ex- planaiion of llii-^. Afier his di-^chari^e on the 17th, he says, tlie plain- tiff was aiiain arrested. Xl'is, he says, was again done by Karirn, vtIio brought him in on' the forenoon of the 4th, and took him at once to the Magistrate, by whom the ease wai gone into and dismi-sd on tlie same day. This remarkably gpeedy justice, hovTever, not only dupjiose!! a third appearance befoi-e the Magistrate by Katlian ^3 wel[ as the plaintiff — and Kathan does not allude to any thiny; of the kind-^but it is entirely contradicted by Karim, the siippoped capior. Thi« man says, indeed, that he, did .afterwards ^arrest the plainiiff, (which the plainiiff admits to be true.j but that it was five months — or, at the defendant will have it, seven months after. Besides, al- though llie charge in September, is written in Mr. Foston'shand, the names of the prosecutor and accused a^e wriiten in Mr. Braddell's ; from wiiicli it would seem as if the clerk had learned on the morning of the 4th that the charge of the 3rd of August would then be gone into, but had not yet learned who vrere to be the parties. Now I must say, Magness' explanaiion entirely fails ; and the charge of tho 4th September throws the strongest doubt, if not entire discredit on the defendant's story thai the plaintiff was released on the 17th of August. In short, ihen^ we have the witnesses disagreeing as to who were the prisoners and who the witnesses in August ; the story of the second capture in September contradicted by the pretended captor as well as by tiie plaintiff and the prosecutrix of August not forthcom- ing nor the food roll of the prison. On the other band, we have not only the defendani's representation of the facts denied point blank by the plainiiff, Eungama, Aiagapa and Irlappen, but their denial 119 COURT OF JUDICATURE fitiikiny;ly eorroborated by the book-i, of tlie MajjiUi-ate's Office. U|ion the wliole of ilie facts, then, I cau come to no other conclu-ioii than iliat when the case was called on before Mr. Bruddell on the 13ih, lie ;aiii8t the parties, and the case could not be proceeded with, and that he thereupon di«miii- s-ed it, as it was his plain duty to do; or it may possibly be that he postponed it to tJ)e 17th, when he dismissed it for the game reas'in- But I do not believe i4iat ihe plaintiff was on either occasion before tlie M'l^^i^trate. I beii«ve tli»t ihe defendant cunui'ij the plaintiff and others to be detained from the 13th For ihepiirpose of iniiking fiir- ther invesiigntion, and, as I shall have to stnte presently when I come to the evidence bening on the Hubj-'ct, for the pnrpose of ex- torting a confession ; that he uhimaiely made U|> his iiiiinl lo shape tiie charge ag^ainst Mootoosamy alone and m»ke Kathan prosecu- tor, and that he then had the jdainiiff arraipuied before the Magis- trate on tlie 4th of SepiemJber. There^is unquestion-ibly this difficul- ty ill tlii'< theory of the case, that the period of confinement would then have beeii 22, and not' 16 days as represented by ilie plaintiff and it i| improbable that he should have forgoUen the exact leny;ih of time of his imprisonment, and siill more improbable that he should have designedly understated his case wiien suin;;- for damafies. But ii is easier to believe this than to believe the defendant'? verniou of the facts in the teeth of the evidence to wliibli I have adverted. But, after all, the decision of this case does not turn on ihi< question The length of the imprisonment is but of secondary importance, com- pared with the second to which I now come. The second question, then, which I have lo consider is, was the de- fendant starved, and if so, quo animo ? A« to the fact and the dura- tion of the starvation, there is no dispute. The defendant admits that the plaintiff was for three days without food, and though the petition says it lasted five days, the plaintiff makes out only three in his evidence. But whether of three or five days' duriition, ii lasted long enough to reduce the plaintiff to great weakneHS and to render- medical assistance iiecsssary. Now, the defendani'g excuse is, that as the itianwas a Hindoo, he was at first allowed to get his food from home, as he would not eat what was touched by the Mahometnn cooks and peons of the 8taiion;.but that as his friends abused this indulgence, by endeavouring to send, him clandestinely a letter con- cealed in liis rice, the defendarit had withdrawn iiis lioense, and or- dered that plaintiff should have none other than prison fare. This, he •ays, was furniihed to him. Both he and Magness swear that they sair it in his cell; but their statement is pesitively denied by the plaintiff, »ndl must here again observe that the defendant did not produce the p. W. ISLANn OR PENANG 120 food roll. Its absence can lead to but one inference — viz: that its contents would not have supported flie defendaiii's case. But assum- ing tlie story of the letter to be true, I do not see that it affords any excuse or even any intelligible explanation of the defendant's conduct. The commonest instincts of justice would have prevented him from punishing his prisoner for the mi^^conduet of his friends. Even if he thought it necessary to close this means of communica- tion between the latter and the plaintiff, it did not follow that he had no alternative but to drive the man to starvation — for he has been too long in the East not to know how strong are those wretched pre- judices among Hindoos about their food, and that his order would be tantamount to a total prohibition of all sustenance. He says, in- deed, boldy enough, that Hindoo prisioners never make any difficulty about the luatter, but the experience of Magness seems more in ac- cordance with the general belief on the subject ; and according to him, the practice at the Police Station is, or was at thiit time and be- fore Hindoo cooks were procured, that " wheti a Hindoo prisoner refuses to tiike liie cooked food, he receives the food uncooked ; and I have even,'" lie adds, " once or twice bought a pot for them to cook it in.'' Now, according to the defendant's own version of the trans- action, he knew day by day that the man was rejecting the prison diet. The day after his order, he snys, he went into the cell and saw his rine there. " He said he would not eat." So that here "we have the knowledge of the plainiiff'd antipulhy to food offered to him, and his rejection of it. plainly admitted by the defendant. Why did he then persist in refusing him even uncooked food, such as is given to other Hindoos ? Why wan not the food, prepared by his friends delivered to him after due exaniination ? Why could not his mother- in-law, who was iiani;iiig about the Police cells day after day during this horrible staivaiion, be given a handful of rice to boil for him under inspection, if the fears of communication were so strong? t see no satisfactory ans"er to the question, and seeing none, I am led to entertain doubts about the whole history of the letter. It affords 118 explanation of the defendant's coiiduci. Without going at length into An examination of the evidence as to its discovery, I tl^ink it noticeable that it is not pretended that the plaintiff was informed that it was on account of an attempt at correspondence, that hip food was withheld. The defendant merely says he gave the oi'der to his sub- ordinates. Magness says, he did not tell the plaintiff why; and Rungawa says that when she complained to the defendant that her son-ill-law would surely die if no rice were given him, she got no other answer than, " can't give ; " but that he never told her why He refused, or that the plaintiff might liave prison rice. 121 COURT or JUDICATURE The plaintiff's account of the whole affaii' i< very different ; and i if Ills evidence be true, I can come to no otlier conclusion than that his deprivation of food wtis a method deliberately adopted by the defen- dant to extort a conf^i'sion. In the first' place, the phiintiff says that he was repeatedly cross-questioned by the defendant about his hav- ing the property which he was ch'arged with detaining. Magness "recollects something about seeing him once in Mr. Eobeitson's room ; the latter was speaking to him about this matter.'' A nd the de- fendant himself, while positively denying the qiies'ions admits that he had the plaintiff brought to him the day after his arrest, when he told him that he had information against him that he had the watch, &c. With what object was the man thus brought to him? Merely to get this information ] He knew it already. He had learned it when he was arrested and bailed. 1 believe it was^ as the plaintiff states, for the purpose of being cross-examined. It seems to nie toler- ably clear that the defendant puisued with this man that oilious system of questioning which I have already, on a previous occasion, had to say was condemned by our law. Whetiier that law be right or wrong is a matter with which the defendant has no concern. It is enough forhim to know that it desires that prisoners shall be guarded against criminating themselves, and not that they shall be entrapped or forced into doing so. Here, then, the defendant was plainly gnilty of one gross malpractice. But according to the plain- tiff, not only was he asked whether he had the properly, he was al- so told that he had been betrayed by the father and mother of his wife. With what object could such a statement have been 'made, but as a trap to caich a confession. I am awiire that the defetidani de- nies this, and Earim, who is said to have interpreted between him and the plaintiff, denies it too; but their denial is by no means con- clusive on the subject, and the facts are all in favour of the plaintiff's statement. Then not only was he questioned, as he says, but he was kept in a solitary cell during almost the entire period of his imprison- ment., But what wag the object of this treatment of a man whom the law presumed innocent? Simply to keep the man safe till evi- dence was procured] That would have been as well attained by leaving him in the ordinary lock-up with other prisoners. But the depressing influence of solitude on the mind was a powerful aid to the defendant's powers of cross-examination, and I cannot help be- lieving that it was adopted for that purpose, for in this view it is con- sistent with the rest of the defendant's condiict. Here then we have two means assuredly well calculated to get an admis.sion. What then is to prevent me from believing' that it was for the same pur- pose that a third and still more efficacioiis jmeans was adopted, and p. W. ISLAND OR PENANG 122 r " ■ y •■ thnt the man was denied all food in order to force him to confess ? Ill this litchf, the starvation is intelligible enough, however horrible. And what is more, it ia the only intelligible explanation that has been given of it. And why should I not believe that this is the true account of the transaction 1 Nothing but a reluctance to believe that such conduct is possible on the pari of an official in any country un- der Eiii/lish rule. The defendant's explanation of his conduct is ut- terly inadequate, for the attempt to smuggle in a letter, couk! only have led to the man's food being searched, or to his receiving an un- cooked i-ation like other Hindoos, but not to his being starved. The starvation, too, was not the result of forgetfulness or neglect, for the defendant's attention was called to it. He visited the starving man in his cell and Ipt him cro on starving. The plaintiff's story is con- sistent and intellijiible, but if true, it stamps with disgrace all who hHve been parties to such abominations. In any view of the case, the defendant's conduct was inexcusable, and if it be pretended that lie was actuated solely by zeal to bring a criminal to justice, I can only say that the law makes no allowances for a zeal which takes no account of human suffering, and displays itself in acts of barbari- ty on the weak and unresisting. The plaintiff's treatment was bar- barous to a degree that I should have thoaght impossible under Eng- lish law, and had he appealed to the law for redress sooner, he ■would have recovered such an amount of damages as would have shewn how strongly the law of England repudiates such detestable acts. He has, however, delayed so long in bringing his action, that I can give him but a very moderate sum ; and besides as I had on a former occasion to remark, I cannot help feeling that practices of oppression and illegality have existed for some length of time in this Police^ and their long impunity is perhaps some extenuation for their conduct. With respect to the pleas under the Police Act, I shall not now go into the law upon the subject, I did so very fully during the last Sittings, and I therefore confine myself to saying that I do not think that the trespasses complained of were done or intended to be done under the provisions of the Act. There will.be judgment for the plaintiff with 200 dollars damages; execution in a fortnight. 123' Court of judicature BEFORE SIR P. B. MAXWELL, Recorder. Vellaysidan v. F. Wilson. An employer , is not justified in taking the law upon himself as to flog and imprison an agricultural labourer for absenting from his work without leave. A father jnight inflict corporal punishment on his child, so likewise a schoolmas- ter on his scholar and a tradesman or master, standing vn loco parentis, on his apprentice moderately in the way of cprrectibn. (a). PENANG GAZETTE, let OCTOBER, 1859. Tliis was an actjion for an assault. The plaintiff's petition alleg:Gd that lie was an agricultural labourer in the fimployment of the de- fendant, and that the latter kept him iniprisoneil for several days, and then tied him up fo a post and flogged, him, with a, rattan. The defendant pleaded not guilty ; and also a special plea justi- fying the imprisonment and flogging, as merely tliat moderate cor- rection which a master may inflict on his servant for misbehaviour, consisting in absenting himself from his pmployment witliout leave Witnesses have been called on both sides. The Recorder, in giving judgmentj expressed his opinion that the plaintiff had a good deal exaggerated the ill-treatment he had received, especially in irepresenting, as he had done at first, and un- til warned of the serious consequences of commitiitig perjury, that he had been kept; for ten days without food, whereas he himself had afterwards admitted, that the watchman used to bring him his rice regularly twice a day. When he found a man giving evidence in this way, he did not feel disposed to give credit to any sta^tement made by him which was contradicted by other witnesses; ami he therefore felt no doubt that the facts were as Mr. Wilson had repre- sented them — that is, that the plaintiff left his employment, was brought back after fly's dnys, and delivered over to the custody of the watchman for five or six days, aftei' which he appealed to the defendant to let him go to work, promising not to run away again, and that the defendant then had him fastened to a post and gave him some twelve or fifteen stripes with a rattan. The imprisonment did not appear to have been very severe, for the man admitted that he had sometimes left his pla^e of confinement and gone to the watch- man's house to cook his victuals; still less was it of that barbarous character which the plaiiitiff had at first attempted to make out. Still it was an imprisonment, and an ' imprisonment sufficiently irksome, too, to make the lazy Kling. prefer working in the field with his changkol, an4 was illegal. So, also, the flogging was alto- gether unjustifiable, for even if he thought thatthe law gaVe the defendant any such ahthority over the plaintiS as he asserted in thte, second pl6a,die should still have held that the flogging exceeded all '^ :^ — r ^- '■ {«.) See Illustration " I " Section 3'50 of the Penal Code. S. L. V. W. ISLAND OH PKNA?;0 124 tlie limits of niodernte cnrrpciion. The plaintiff hml probalily ex- aajjerated its severity, buf, there" were two fads in ih« case beyond question — the floogjuo- took ()lace on thn 1st of Ans'iist, ami the plaimiff's back wa* then, on the 27th of Sfif ternber, all miirked and scored with the stripes. But he was of ojiinion fhafc ibe se<*Ond plr>a was aUo2;ethpr bad, that i*, defendant had no suoh power a* he elaimed. It was true, Roine of our old law books, as Hawkins* Pleas "of the Crown, ppoke in general terms, of the power of a niastpr to inflict raoderatt? corporal punishment on his servant. But even if that were strictly correct, bow did it apply to ihe present cnse ] The defendant was not the plaintiff's magtor, nor the latter his servant. Tlie one was a field labonrer, the other his employer, — a totnlly rJifferent relation. Bnt tlie law was laid down in the old writers too widely. Blackstone, ■wliile cilinof Hawkins, stated tbe powev of correction as possessed only over an apprentice ; and Chancellor Kent, after obsfervinir that the power in qnestion did not grow out of the Contract of hiring, said that Dr Taylor in his Elements of Civil Law justly questioned its lawfulness, and then hims^'lf limited it to apprentices and i^ienial servants under age, in which cases the mastef was to be considered as standing in loco parentis. And this, as it appeared to him (the Recorder), was the true test. A father mijiht moderately correct his child, and any pefson standing in his position, or to whom his authority is delegated', nnight da so too. fhus, a < Schoolmaster might inflict corporal punishment on bis scholar, and a Tradesman on his apprentice, in moderation. And there was a vei7 good rea- son for this. In the first place, the pr)wer was given for the go6d of the child, rather than f of titat of the father or master. But in the next place, some such power was necessary from the nature of the relation between the parties. If the child or apjirentiee misbehaved, the falher or mastef could not put an end to the relation, as a man could that between liim and his servant. Even tbemasler of an ap- prentice could not dismiss him or refuse to teach him any longer on account of Iiis misconduct, and it was but right and necessary that he should therefore have some power to prevent the recurrence of mis- behaviour to which he must continue exposed. But tiie relation *of employer and labourer was totally different. Jt was a mere engage- ment on the one side to work, and on the other to pay for the work. If the contract wa* broken bj the labourer, the etnployer had various remedies. He miglit bring an action for the breach of the contract : or he might dismiss the man, or he might proceed against bim un- der the AiBt of George IV. and have him sent to the House of Cor- rection by a Magistrate. It might be said that an action was cut of 125 COURT OF JUDICATURE tlie question against a maa not worth a fartliing, and tiiat to dis- miss a coolie, was generally to throw away the advances made to hill) for i)is pasMge money. But there Btiil remained the remedy under 4 George IV. which he iifid, sometime since, after mucii de- liberation, held to be part of the law of this Settlement, in- fluencpd chiefly by the persuasion which he entertained that wiih- 011 1 some such enactment, it would be impossible to carry on the agrieultiiral operations of the country. It it were said, tlmt to pro- ceed against a defaulting coolie before a Magistrate involved great loss (if time and inconvenience — all he could say, was that thai did not jusiify any body in taking the law into his own hands. From what he knew of the Province, he believed that the gentlemen who lived tliere and had the management of plantations were Europeans, chiefly Englishmen, and therefore they mu«t know the way to re- dress any grievances that they miiiht have If the law, as it stood was not stringent enough, they could appeal to the Logislnlure. If it was badly adniinistered, they could address tliemselves to the Chief- Executive Authorities, and suggest what they wanted. If the Ma- gistrate did not sit often enough, or near enongh for the genera! con- venience, he had no donbt that their i-epresentation* would meet, with due attention from the Governor. But what they could not and must not do was to take tiie law into their own hands. In this case the defendant had done so, and though he (the Eecorder) was will- intt, on the one hand, to bear in raind that the defendant had some excuse for exasperation, still lie could not do otherwise than inflict damages of sufiiciently serious amount, to mark that the law did not tolerate the flogging of a labourer by his employer. It was necessary to protect those helpless/men from a repetition of such treatment. He would only add that as this was the first case of the kind that had ever come before him so he hoped and had every confidence that it would be the last. Damages 45 dollars and costs. Before Sir P. B. Maxwell, Btcorder. Peter Duggie v. Frederick Gibbons. A Oektioraei on the Magistrate to produce a Conviction. A mere mformality in the drawing of a conviqtion U no ground for qvashwig it if the evidence bears out the caie. An informal, corwiction may 6e camielled and an amended one sent ttp. Penang Gazette, 10th December, 1859. Inspector Gibbons, with the sanction of his superiors, applied to the Court for a certiorari to bring up the Magistrate's conviction, which was excepted to for inforraalifcy. From the copy of the pro- ceedings furnished to Captain Sanderion and published by hiiu in p. ^y. ISLA?fD OR PENANG 126 this paper, if appears tliat the Mauistraite coiivicted the Inspector of tlie charge of "roiiiifuny nnil cruelly assaulting a European .-eamaii, and sfiiitetieed him to piiy a fine of 50 Rupfies, to be jjivpn to tlie cm- piainant as c'>nip»>nsiitioii for the injury he had received. On Gib- bons staiintf that he could not pay it, the Magistrate ordered a wai-- i-ant to issuH loi- Ids conimiiment to the House of Correction f(ir two months or until payment of tlie fine. The sentence waiperfecily legal and formal according to Section 12 of the Police Act, which enacts that " for neglect or violation of duty in his office, and fc/r any breach of the orders and regulations framed as aforpsaid, every member of the Police, — be-ides being su8|»ended or dismi'^sed from Ids employment at the discretion of tlie Commissioner, — shall be liable, on conviction before a Magistrate, to a fine not exceeding 100 Rupees (which may be deducted from any salary then due to such of- fender), or to inipri-ionment, with or without haril labour forany time not exceeding 3 months.'' Section 105 enacts that wiien^no other means of enforcing payment of fines and penaltie-, imposed by a Ma- gistrate of Police, under this or any otjiar Act, is provided, the Ma- gisirafe is to issue a warrant for the distress and sale of the offender's good*. But if it shall ap|>ear to him, by the offender's ^idmiesion or oiherwise, that sufficient diay the fine, is sentejvced ^ two months' imprisonment in the Houise of Correction. '(Sd.) Gbgrge Windsor EARt> Poliie MagiiPrat*. p. W. ISLAND OR T>ENANG 132 1st March, 1860. Before the Hon'ble Sir P. Benson Maxwell, Kt., Becorder. Mat Pah Ali and Meh Salamah his wife versus K. B. S. Robertson. The Plaintiff Meh Salamah in person. Mr. Allan for Defendant. On this cause being called on, Mr. Allah said that before the trial proceeded, he begged to apply for leave to inspect any authority which the female Plaintiff has to institate this action. The Secorder referred to Ghambers v. Donaldson, 9 Bast, and refused the application. Evidence for the Plaintiff. Meh Salamah.— \ am the wife of M-at Pah Ali. I was marrifid at Kola in Quedah by Toh Bihil Kamiir' My father was dead. No relation of mine was present. I had none at Kotn, I had a brother at Permatang Bindahari. This was seven years a^o. I have been living as hia wife ever since. I have three cliiklren by him. I was married before, and had three cliildren by my former husband, Leb'- by Mohit, wlio died before I married Mat Pali Ali. I lived at Kota with Mat Pah Ali. About a year and a half ago I left Kota, and was coming to my brother Awang's hou«e at Permatang Bindahari, when I met Pungnlii Nasib at Alor Nea on the Company's territory, as near to Permatang Bindahari as from here to the market. I cal- led at his liou«e. He detaingd me and took me to the Pertoatang Bindahari Station, about 8 or 10 A. M., I sat there for a while. I told the peon I wanted to go to my aunt's house, Mah If am, near where my brother lives. He allowed me to go. Itiscloseby. I had been there half an hour, wl)en Subadar Mat, a Policeman, came on horseback. On seeing me he said, " come let us go to Sungei Tumbua, as the Dato (Inspector Jeremiali) wants to examine you." I was six months gone with child. I had taken with me, that day, two of my children by my former husband, and one of Mat Pah All's. He took me to his house at Penaga. I did not take my children I asked to do 80. He said, " never mind, I am going to take you for a little while, and yoii can return." We arrived at Penaga a little after midday, We l-emained half an iTour or so there, and then he took me to Teloh Ayer Tawar, I in a cart, he on horseback. Then I saw Pungulu , Syed and two peons, who took me at once to the landing place. The Pungulu left me there. The peons put me into a boat and brought me tb town, whicb I reached about 8 P. M. The peons immediately took me to the defendant's house. We went in a carriage, for Mat Saman who Came with us was unable to walk. He was lame. I saw the defendant. He said tome, "where is your husband." I said, I dent know. He said, " come along to tiie Police.'' Mat Saman, de- fendant and myself were put into a carriage, and we drpve to the 133 COURT OF JUDICATURE Police Office. I was taken to a room w lie re there were a number of men, Europeans -.iniong them. An European asked me in defendant's presence. " where is your husband gone to, how much property did he get? " I said, I don't know. " Wh*>re does your husband live! " — I don't know. He has run away. " Why wont you say where your husband is gone tol '' I don'l know.' "How is if you dont know? If you will point your husband out, I will let you go. If not, I will shut you up and I will send you to'Quedah.'' I can't say whether de- fendant was present when this was .si'iid to me. The def3u(iant did not say it to me. I was then taken and locked up in a dark room. A Nonia, the wife of Che Him, and Ciie Es-^a were there. I re- mained there next day and tiienext. I .slept three nighls, in the Police cell. In the early part of the following afternoon I was removed by a peon, who took me to the jetty and put me into a boat which took me to the gun-boat. I did not see defendant on that day till I got to the gun-boat. Then I saw him. He i^aid he was going to send me to Quedah. I said nothing. I cried. We went to Quedah. I remained on board half an hour after the gun-boat anchored. The defendant beckoned to a man. Idid not see, for I was below. While I was there a man came, and took me to the house of Wan Ismail. I did not see defendant there. I remain- ed there forsix months. I lived in Wan Isniail'-i compound. His wife said, "don't behave foolishly (tab katahuan) or the Europeans will get angry (Orang puteh marah).'' I had been there about a month when my three children were brought to me by Che Tahir of Qualla Muda. At the end of six months Subadar Mat and my brother came and fetched me. They brouglit me to Permatang Biudahari. I lived at my aunt's there for a fortnight. Then my brother, and «7ema£^ar Mat took, me to the defendant. I forget wheiher at his house or the Polipe Office. It was to his house first. I did not speak to him nor he to me. My brotherand the Jemadar took me to the Police Office. We went into a room, and I saw the defendant. De- fendant produced a paper, laid it on the table and said, "put the niark of your hand there." I said how am I to do that 1 He said, " any way you like. If you don't, I will send you back to Quedah." The Jema- dar said, " put it this way." He desired me to hold a pen, which 1 did, and taking hold of my hand wrote on a paper and said that was tha mark. The paper was not read to me or explained. I did not hear it. I was six months with child when I was taken away. I was confined 3 months after, and taken away before the 40th day. In consequence of all this trouble my child died. Vross EsKtmined. — My husband never threatened my life. I ne- ver said 80. I did not run away from him. I wai allowed, whea P.'W. ISLAND OE PENANG 134 at Queilal), to go to the market. I could not have efFecied my escape. I would, not have dared, because when I left the house to go to the villitge, n)y children remained at home. I did no't wiiiit to run away. Tiiere was no body in the room ■when I put my iiaml to the paper, except defendant, my brother and Jemadar Mat. The pap^^r was not read in my presence. I did not know what was in it. My brotlier has not given me 50 dollars, nor told me he lias 50 dollars for me. Defendant asked me if Awang hud given me 60 dollars. I said " tuan '' (Ye^). He said, 50 dol- lars for not bringing an action. I said " luan.'' 1 did not ask what was in the paper. The paper I signed was smaller than this I d^n't know whether this is it. After signing the paper, I returned to my aunt for 4 oi- 5 days. My brother got angry with me, and he would not let me remain there any longer, 1 went to Kola. I wailed till now to bring this aetion because it is only now my mind is open, (I have acquired sense) and hearing that Meh * had complained, I asked Mat Lutong what was the result oif that action, and when I heard, 1 said I would go and complain too. My husband did not . tell me to bring or not to bring this action. He said nothing. I dont know where he is. I brought this action because I lost all my things and was driven to distress from the defendant's acts, [Mr. Allan was proceeding to cross-examine the plaintiff as to the nature of I he articles lost, when the Recorder observed that their value could not be recovered as damages in this action.] When I came to Permatang Bindahari, it was to stay a few days with mj' , aunt and lirother on a visit. My husband had left home three or four days before, I was not in the jungle with iiim. There was a disturbance about my husband. People said he had robbed at Teloh Ayer Tawar. Pungulu Nasib.—l took her to the Station. Subadar Mat. — I took the woman toPenaga. Ididnotseeheragain till I went for her to Quedah. It was in August I took her t» Pena- ga. I swear I cannot recollect what montli I went for her. As well as I recollect it was in December. The defendant told me to go for her. He gave me a pajier to go to Quedah with Awang. He said, " give the Rajah this letter ; the Rajah will give you Meh the sister of this Awang." Three days after I brought her back. I can't say whe- ther she was three or six months away. When we arrived at Qualla Muda the brother and the woman landed there. I went to defendant. He said, where is that wo man .^ I said, I left her at Q. Muda. Hesai d, * Meh, the wife of Long, whose actions against Messrs. Robertson and Jeremiah for false imprisonment and deportation to Quedah, was compromiBed by the defendants paying her $ 700 and costs. 185 OOURf OF jaDICAl'IIEE " if she will come here. I will jrive her some biicksliiame date convey nxc and cause mo to be conveyed to Quedah wh'ere I have been detained since on a suspicion of being concerned in a gang robbery at Teloli Ayer Tawar in the month of July last past, and as be the said K. B. S. Roberlson, Dejiuiy Coinmissioner of Police for P. W. Island aforesaid, did on the 16th Instant cause me lo be re- leased from my imprisonment at Quedah as aforesaid. And Whereas 137 COURT OF JUDICATURE. I liiive good ciiusc for action a(;aiiist the said K. B. S. Robertson Deputy Commissioner of P(dice for Assault iincJ false iinprisonri)ent for rny arrest and detention at Qnedah as aforesaid bat tlie siinie hav- ing been settled between us and I liaving received the sum of 1 50 as compensation. Now ilierefore I hereby willingly and of my own free will and accord dn by tl;ese presents remise, release, discharge ant! for ever - quit olaim unto the said K. B. S. Robertson, Deputy Commissioner of Police for P. W. Island, his heirs, administrators and executois, all Actions and suite whatever against him the said K. B. S. Robert- son or them for or in respect of the premises. In Witness wlieii'eof I her'eunio set my Hand and Seal at P. W. Island, aforesaid, this 1st day of March [February deleted] 1869- Signed Sealed and Delivered' In the presence of Marfcof— Awang. L. S. Mark of— Meh. M. Thomas. ♦ * Awang. — I broughi back my sister from Quedah. I took her to my house. I came goon after to defendant, who gave me 50 dollars. I gave them to my sister. When defendant gave me the money he said," I give this for the losse.i filamages) of your sifter." When I gave her the money I said noihing. I said this is what the defen- dant gires. She held her tongue. I came to Mr. Robertson again with my sister. This lime we Went to the Police Office. A Malay and an European clerk, Mat, the defendant, myself and my sister were present. Tha Malay clerk held a paper and read if, to me and Meh. I and Meh put onr marks. I forget what the paper said. I went there on that ilay at Mr. Robertson's request. I gave my sister the 50 dollars in my own houle. Nobody was present at the time. I swear I gave her 50 not five. Mat Puieh. — The ])laintiflf'3 brother came with me to the defen- dant who gave the brother 50 dollars. Afterwards, he and his sis- ter came fco defendant's room. Defendant «aid to her have you re- ceived from your brother 50 dollars ? She answered, "Yes."' She signed a paper. I heard it read. The Malay clerk held it in his hand and read it. ' Mohamed AH. — I am the Malay clerk of the Polics. I saw Awang coma with Mat Puteh and receive 50 dollars. When the defendant gave the money, he 8aL4 "these 50 dollars with respect to your sis- ter having gone to Quedah, these are her expenses.'' Shortly after Awang came with his sister. Thomas read it to me in Malay and I explained it in the same language to the plaintiff. Slie was asked whether she had received the | 50. She said, "yes,"' Thomas told 1>. W. ISl.ANW OK PENANG. 138 liei" slifi was not to complain atiJilnst Mi'. Robei t-ion luiy more. Defendant. — I put the seal on the piper at the time she put her mark. Ill r finger \Tiis ])iit upon the seal at the same time. Here Hie tour other releases wiih similar se'als, [The defendant held some papers in his liiind, but they were not put in] Cross — Examined. — I look the woman to Qiiedtih. She was broujiht to my lioiise one day and I look her to the Police Station. ■ She came, to ihe best of my recolk'Ction, one ni^band was. I ne- ver said I would deliver her up to the Rajah or the Malay authorir tjes. I ordered her on board the gun-boat. I saw her, before that, at the Police Office. I don't lecollpcfc her being locked up. Nor whe- ther any body was ])rpsent. It was then, as well as I recoiled, that slie spoke abouther children. I can't recollect who spoke first. She said liow about my childrpn? I snid don't be uneasy about tliem, I will send them to you. Slie said nothing. I had never seen her be. fore. She did not tell me how many children she had. Slie told me they were at Permatang Bandahari. I did not ask her with whom they were. She expressed no desire to go back to them. I did not observe that she was pregnant. I did not take her to Quedah as a prisoner f. When I got to Quedah I said to ihe Rajah, the wife t Extract from Mr; Kobertson's evidence in the case of Che Him v. Robert- son and others, tried 7th March 1859. f Pewng Gazette of 26th March 1859.)_ " Besides the prisoners sent up to trial 2 men and 3 women were arrested in connection with this burglary. One woman brought an action against me. l39 count OF jXJDtCATUKE. of Mat Pull All is on boai'd tlie giin-boat; I broiiji;hf; her, and yen liad better send for licr. He told one of his men to go and bring lier U|» to him personally. The Riij.\b sseemed much ploased on heiiring she was on board. He siiid he would verv soon yet her husband as lie liad got her. I to(dt the woman U|) to the Rijah tor tlte puipope of geitiijg iicr hu'-band. I did not think about restoring her to hei' friends and country. ' • Mr. Allan then iiddressied the Court on behalf of the, defendant. He contended that there was no evidence of 'coercion. Tlie ivoman (lid not refuse to goj an- any ofiioe of Iru'^t, and subjected Chera to the peri.dties of'a proeinn- nire. Hut ah iiong-h the personal libei-iy of the Queen's suliject* in this Settlement was not'[)rofected by the Act of Uliarles II, it was prelected by the Common Lavi; and liiat was enough for tiie purposes of this actioti, for there wa* a second ctiunt for a-sault, fals^ inipri- gonnient and deportation without reference to the Statute. The Com- monLaw, at all events, was law here; and it not only gave redres* in tlie sluipe of dnma^ps to tho.'se who were illftK^lly arressted and car- ried abroad, but declared such an act a raisdemeanour. And he iriisted that ttie day yvas was not very distant when the law should be made less stringent in any English -possession, and should rey,'ai'd wiili iMoro indulgence than it now did every unlawful interference with the personal freedom of liiose who lived' under its protection. He did not know whether he viewed offences of that kind with nndue severity, but unquestionaldy he did consider it an offence of the grav- est character to seiie a ])erson, a woman especially, and carry her abroad and keej) her imprisoned there for monihs for no crime, and without legal warrant. He would however say nothin!>- more on the general question tlien, but would confine himself to the iFacts of the jiresent ease. The action was brought against the defendant for having assault- ed and carried abroad »he female plaintiff and kept her'abroad im- prisoned for six months; and the wonian?s account of the transac- tion was, that, having come from the Malay territory toPermatang Bindahari, on tiie British territory, with her three children to visit iter aunt or her brother, ehe wa.s apprehended by oiir Police on tlie morning of her arrival, tak'>n from her children, and passed on from station lo station, vintd she arrived in Penang in the evening, when slie was conducted to the defendant's house; that the defendant took her into his own custody fro^m the Policeman who had brought her, and lodged her on the same ninht at the. Police Station, where she Wiis questioned about her husband, and where she remained for three 141 COURT OF JUm(;ATTJRK. ri'^lits, lifter which she was carried by tlie defenrbini in tlie ijiin-lioat to Qiieiliih ar.d delivHrrtil uj) lo ihe R.ijiii "f iliat counti-y who kf>|it \iev therfi for six nnuith-s, whoii -^lie was (Iclivered a|) to her broUier and a I'olipe>iiaii at tiie dt)fenilaiii'-i iTque~t. She said al-o ih;il, "'hen nn-i-'stcd, she was six nioiiths advanced in prfu-iiancy. The defiMico to all tliis was. that no coercion wa« iiTier, and his ])i-isoner too, kepfr in custoilyby the R^jah at his r> quest, and to be delivered up at his request. . That was the defendani,'- uiia to deciding' ■at once in ticcordanoe "J'tli the opinion he had huriiedly formed, against its Viilidity. But on consideration lie thought it better lojjive the Grand Jury his opiuion at once now that he hud had time to form one upon it. He would remark that the Act of the Legi>;laiive Council upon which they were called to act, was one of a very string- ent ch-.iracter, giving- a power to the Courts of Britisii India which was not po^geased, he b«li«ved, by those of any other Country. The 2nd Sect, of Act 1 of 1849 declared that notoi^ly British iubject?, and all iieraons in the service of the Government, but a^so " all persons who shall have dweltfor six months" in any part of British India and who shall be apprehended or delivered to a Magistral;* ihere, might be tried foi' all offtjnce.s irlieresoever committed, il they were offences which our criminal law regarded as such. Thus if a Frencli- luan or German committed a crime in his own country and fled Ji ere, lie would be safe for five months and twenty nine days, but as soon- as he had been here for sis months he might be tried for the crime The Act did not say that the residence was to take place before or after the crime, so that either would be enough; and if a foreigner passed six months here early in life, and then vrent away, and established hinuelf in his own or any other foreijjn country, and com- mitted acriqie there, and then fled to India, he might bo appreliend- ed and tried immediately on his al'iival. This enactment carried the jurisdiction of our Court further than was ordinarily recognised^ the general rule in all countries being, that the jurisdiction of Crimi- nal Courts was strictly local, and did not reach offences committed beyond their local jurisdiction, or at all events by any but subjects if committed beyond that jurisdiction. When therefore the Legis- lature extended their jurisdiction beyond that might be called its na- tuj-al limits, it was necessary to take care that all the conditions for its exercise were strictly complied ytith. Now, the Act of 1849, af- ter directing that the Magistrate should commit the prisoner and report the case to the Government, provided, by sect. 4, that "the Government may order the trial tp be had" before a Court of com- petent jurisdiction ; and the question was, whether there was any Buch' order here. What was produced as sucii was a letter addrsssed , l-iO ' COX'TIT OF JUDICATURE. I I to llie Resident Councillor by "Mr. ProtUfiroe, Officiatinii S'^cretary to t'iie Governor." Bui this \v!is not ii |iublio officer, cliargeJ wijh the public duty of issuing and M(ithenticstinj; the orders ot the Go- Veriniient, in ilie same way as the Ailjutant General Of the Army lias the duty of i-suin,n- ihe onlers .of liie Commander-in-Chief, or. as a Coloni.'il Secrolary ha«, with renpect to tlie orders of the Coloniiil Go- ■vernnieht. This g-pi)tlem;iii wiis only the private Secretary of tiie Governor, that i^, his aui;innensis, and he fifhe Recorder) doubteU much whether any order signed by hiin could lie considered as an order of the Governor. However, assuminii for tlie present that" lie "'as -wroMj; here, the next question was whether thi.s letter was an "ordtM' that the trial be had " before tliis Court. It was not addres- sed to tiie Court, but lo the Resident Councilloi', the chief local exe- diiiive officer; bpit thi* nii|{ht pas*. a.s the Act did not in terms re- quire that it should be po ad(h'©«sed. The letter said that having sub- niiitg^ a letter of the Resident Councilloi- "for the consideration of His Honor the Governor," tHe writer had been directed — and here, in passing, if he were incliiled to mere verbal criticism, he minhtob- .siTve that it did not sav bj whom the direction was f>;iven — "to de- sire, that with referencs to Sect. IV, Act I of 1849, the prisone'" Eman may be committed for trial before [-!.■■ M's. Court of JudicaSS ture at Penan^."' Coraniitied for trial ; but this was not what wag wanted; it had been already' done by the Magistrate. The man bad bced committed foi- trial long ago, and wluit.the Court now required before it could act was an order from the Government to try the man already coinmitted. The Act, in short, said that the prisoner was to be committed and liiat the Government might order tiie trial, the goveniment did not order the trial but merely directed the local Exe- cutive Officer to send the man up for trial, loaviiig the Court without any direction on the subject. It might be said that the re- fereneo to Sect. IV. ]>lain!y shewed tiiat the Governor intended to make an order under it; but it is enot'igh to say, that if so, quod mluit non dixit. But even if an order could, in a matter of this kind, be spelt out of this letter by inferences, lie should be inclined to say that the Governorhad not intended to make any order; because be shewed that he had the Section in question before him, and he abstained from ordering that the Court should try, but merely di- rected that the Resident Councillor gbould commit the prisoner. For this reason, therefore, he must' direct them that the letter was not an order from the Government for the trial of the prisoner be- fore this Court, and without such an order they tvould exceed their, jurisdiction if they found any bill. There was another difficulty, ho.w- ^ver, wliich had occui-red to him in considering this Act, and wliich p. W. 1SLANJ1 Oil PE^'AXG. igQ lie tlioui>ht he ouglit lo take that opportunity of mentioning, in or- ri>video was born in this Is- land and was thereby, prima fecie, a subject of the British Crown and under the jurisdiction of this Court, became wholly exempt from such jurisdiction by having since been created an indepen4ent Sovereign ? Secondly,— If he is" not wholly exempt from the jurisdiction but is subject thereto with regard to cer- tain matters, then, whether the Bill discloses a case in whidi a person filling the two characters of Sovereign and subject is liable to be sued as such subject. ( a, ) See Broom's Legal Maxims, page 72. p. W. ISLAXli oil PENAXG. 152 As to the fii-st point it was laid down in Calvin's case, 7 Reports 10, Bl- and see 2 Stephuirs Commentaries 413— that a natural born subject is one who is born within the dominions of the British Crown, whether within tho United Kingdom or the territories thereto belonging, of parents who are either natural born subjects or aliens and foreign born, or, as Stephen has it, strano-- er-born, provided the alien parents were not at the time of birth in enmity with the Sovereign of thei birth place. There ai'e two other exceptions to this general rule of one. the children of the Sovereign and the heirs of the Crown, who wherever born, are held to be natural born subjects,, and the other the child- ren of Ambassadors. But with these three exceptions the common law holds all persons born within the Queen's dominions to be natural born subjects, and therefore the Rajah having been so born, is a natural Ijorn subject, the law presuming for the general rule and not for the exceptional case, J^hich, if any, must be pleaded for him. The Court will take judicial notice of the sovereign- ty of the Rajah, whifch is admitted for the purpose of this argument, and per- haps of the time when he came to the throne, but' it will not take judicial no- tice of the date of his birth or where that happened, and whether or not the Rajah was then the son of a Sovereign, or of any other facts which would make against the effect of his birth apcording to the general rule. The Rajah of Quedah in 1821 was expelled by the Siamese Government from that country and took refuge with his family in Penang. The Siamese held the country tiU the middle of the year 1842 when the Rajah was reinsta- ted in the Government. This was the grandfather of the present defendant. While inPenang Tunku Dai, the third son of the old Rajah, married here Wan Mas Eran the daughter of the Bindahara of Quedah, and their issue, to the ' number of 6 or 7, were all born here on British ground. There can be no question as to the nature of the occupation of Quedah by the Siamese. The de- fendant was born during; the occupation of Quedah by the Siamese, and the na- ture of that occupation is shewn by the treaty between Siam and the Bast In- dia Company concluded in 1826. By Article 13, the English engage that they wiU not permit the Rajah, who is styled the former Governor, to attack, disturb or injure in any manner the Territory of Quedah, which is there stated to be Svbject to Siam, and in another part of the Treaty (Art 10) is termed a Siam- ese cowntry ; the Siamese engage to remain in Quedah and take proper care of it. It is also stipulated that the inhabitants of Quedah and Penang shall have trade and intercourse, and that tht Siamese shall levy no duties upon certain articles of food required by the inhabitants' of Penang. and shall not farm the mouths of the rivers of Quedah &c. The country of Quedah was permanently occupied and treated as part and parcel of the territories of the Siamese Em- pire. This part of the treaty not only remains unrepealed, but has had renew- ed effect given to it by the late Treaty of the Home Government with the Siamese confirming the above provisions. " After the defendant's grandfather was driven out of his country and during the 20 years ^f his exile he certainly was not King de facto, and whatever his claims were ; the British Government recdgnized them not, but on the contrary supported the Siamese authority in Quedah ; in the same way that the British GovM-nment now recognize that French Empire under Napoleon the Third. The issue of a son of his Louis Phillippe born in EngUnd would be considered not as a French but as an English subject. By the law of England a n^rtural born subject can never divest hijnself of that character without an Act of Parliament. Bbwyer's constitutional laV, 402. 153 COUItT OF JVDIC'ATURE. In the case of the Puke of Brunswick v. the King of Hanover, C Beavan, the Master of the Rolls decided, that the inviolability of the Kins of Hanover as a Sovereign Prince vpas modified by his character and duty as a subject of the Queen of England ; that he was exempt from all liability to be sued in the Eng- lish Courts for any of his acts as King of Hanover ;but that, b^ing a subject of the Queen, he was liable to be sued in her Courts in respect of any acta and_ transactions in which he might have been engaged as such subject. It is true that the decision went on the particular circumstance that the King of Hano- ver, after his aocesion to the throne, so far from renouncing his allegiance to the Grown or his subjection to the laws of England, had renewed his oath of allegiance and taken his seat in the English Legislature, and in the P rivy Coun- cil. But the Master of the Rolls said "there are in Europe other Sovereign Princes who.if not now, have been, subjects of the -country of thair origin or adoption ; upon such a question as this I cannot disregard those cases but they may have their specialities of which I am not aware. I cannot venture to say that a subject acquiring the character of a Sovereign Prince in another country and being recognized as a Sovereign Prince by the Sovereign of the country of his origin may not by the act of recognition in ordiiiary circumstances, and by the laws of some countries, be altogether released from the allegiance and legal sul^ction which he previously owed." It is evident that the Master of -the Rolls strongly inclined to the opinion that, even without the peculiar circumstances of the case before him, the King of Hanover was liable to be sued in an English Court in respect of his acts and transactions as a subject; and that whatever were the laws of some other ■ Countries the laws- of England do not release a subject who may acquire a sov- ereignty from his allegiance and subjection to them. As to the second point. In the case already cited it was held that in a suit .against a Sovereign Prince the Bill should, on the face of it, shew a case in which he is liable to be sued as a subject. Here it sufBoiently appears by the Bill that the subject matter of this suit is of that description as it relates to a trading partnership originating with the Rajah, and which was intended to be, and was, carried on by the plaintiff in Prince of Wales' Island withja vessel of the Rajah having British colors. In Cremidi v. Powell, the Gerasimo (11 Moore's Privy Council cases), which was the case of a vessel seized by an Eng- lish man-of-war during the Rusian war, the question wag whether the owners of the cargo were to b» considered alien enemies , and the judgment said. — "If a war breaks oilt, a foreign merchant carrying on trade in a belligerent coun- try has a reasonable time allowed him for transferring himself and his property to another country ; if he does not avail himself of the opportunity he is to be treated for the purposes of the trade as a subject of the power under whose dominion he carries it on ; upon the general principles of law applicable to this subject there can be no dispute. The national character of a trader is to be de- cided for the purposes of the trade by the national character of the place in which it is carried on." For the purpose of the partnership transactions Carried on by the plaintiff and the Rajah the same principle must apply. , The trade was carried on in Prince of Wales Island, and for that purpose the national character of the Ra- jah must be that of an English subject. Mr. Braddell for the defendant, Ist. The statement in the Bill that the Eajah was born in Penang is not suf- ficient to constitute the status of British subject, for there are several excep- }•. W. ISLAND on PllNANG. J54 tions, such as birth in the house of- an Ambassador, (u- in a part of the British territory occupied by an enemy : Calvin's case 7 Bep. 48a, and the Bill does not, as in the case of the King of Hanover )). Duke of Brunswick, charo-e, in express vrords, that the King was a subject of this realm. It was for the plain- tiff to show that the defendant was subject to the jurisdiction not for the de- fendant to shew that he was exempt, and the plea supplies what is necessary on the defendant's part, in stating, as it does expressly, that the Raiah ia a Sovereign Prince : Duke of Brunswick v, King of Hanover, 5 Beav. 1. [The Judge — The Bill states that the Rajah was born here and that he is an officer of the Siamese Government. Is not that enough to shew, prima facie, that he is a subject of the Queen by virtue of his birth ? If ths defendant re- hes on the fact that his father was a Sovereign, should he, not have pleaded it ? It is a matter that should come properly from the defendant, not the plaintiff. In an action for goods sold and delivered, it is not necessary for the plaintiff to aver that defendant was not an infant or a married woman.] 2nd. Even if a-British subject at the time of his birth, the Rajah is now a Sovereign Prince, and, as such, is exempt from the jurisdiction of any munioi- . pal Court, — the King of Hanover's case above cited ; and, on the authority of the same case, it is contsnded that the plaintiff ought to have shewn on the Bill that the co,ntract alleged was entered into within the British territory, anii was of a character which excluded the supposition that it was entered into by the Rajah in his capacity of Sovereign, and there is nothing in the Bill to shew, in a part of the world where Sovereigns enter into trade for revenue purposes, that the contract alleged in the Bill was not an act of State. 3rd. In the King of Hanover's case the Master of the Rolls guarded himself carefully, throughout his judgment by restricting every position laid down of a foreign Sovereign bom in England and owing allegiance to the British Crown being liable to the Courts in England for all acts done by him in his capacity of subject, to the case of such a Sovereign himself claiming his rights as a Bri- tish subject, and actually residing in England in the exercise of such rights a(j the time of suit brought. Now the Rajah of Quedah, though born in Penang, was so born the son of a Sovei;eign Prince then in exile from his dominions, and received by the Britisli Government as such exile, and afterwards restored to his throne in 1842, at which time the defendant was a mere child, and so far from acting as the King of^Hanover did after his accession to the throne of Hanover, the Rajjah of Quedah has always repudiated subjection to the British Orovm, and has never come back to, any part of the British do;aJinions since he left Penang in 1842, except on short visits of a day or two oti State business- Therefore this case is much stronger than the Duke of Brunswick v. the King of Hanover: and at the time of, or within a few months of, the Rajah's birth in Penang this Court, at Malacca, held that his grandfather was then a Sover- eign Prince, and exempt from the jurisdiction of this Court. At that time the defendant's father was in attendance on his Sovereign, and the defendant hav. inj been born in exile was born in allegiance to his grandfather and not to the British Crown. There is strong authority for saying that the expulsion of a Sovereign from his territory does not take away the allegiance of his subjects ; see 2 Howell's State Trials 570, 595, 692, and it is contended that, although the infant born in Penang owed allegiance m return for protection, this allegi- ance was only localand temporary and ceased on removal ffom the Britis" dominions, for, by analogy in English law which makes the heirs to the Crown British born subjects, wherever they may be born, it is clear that in this case 15§ COURT OF JUDICATURE. the Eajah being born under the allegiance of his grandfather could owe no allegiance to the Britiuh Grown, any further and any longer than as a return ' tor protection granted by that Orown, and when protection ceased allegiance ceased with it. Lord Langdale, in the King of Hanover'* case, says "I cannot venture to say that a subject acquiring the character of a Sovereign Prince in another country, and recognized as a Sovereign Prince by the Sovereign of the country of his origin, may not, by the act of reoogniliion in ordinary cases and by the laws of some countries, be altogether released from the allegiance and legal subjection which he previously owed ;, but this case must depend on its own circumstances." It is contended that if any circumstancea could warrant the conclusion, the present case does. 4th. The Bill states that the RajaH proposed a contract to the plaintiff and this contract was afterwards agreed upon by the Rajah. At the time of this alleged agreement the Ra^ah was certainly in Quedah, and to make him liable to the jurisdiction, under the authority of the King of Hanover's- case, the Bill ought to have expre»sly charged that the contract was , entered into andj com- pleted by the Rajah while he was in the British dominions in the exercise of his rights as a British subject. 5th. The reasons on which the exemption' of Sovereigns depend exist in this case, as — how could the process of the Court be served, how could this Court exercise any authority over a man who claims and exerts the right of sovereign- ty, and who' is recognized by this Government as a Sovereign p War is the only remedy between States or Sovereigns for injuries when the Sovereign, even if a subject of the States, is sued fdr matters done by him out of the realm at a; time when he is not, within the realm. The following authorities-were also referred to by Mr. Braddell. - Sir Harry Vane's case, 6 Howell's State Trials 119. Taylor and Barclay, 2 Sim. 213- Munden v. Duke of Brunswick 10 Q. B. 656. De Harber v. Queen of Portugal •and 'V^ordsworth v. Queen of Spain, 20 L. J. <^. B 488, Marten's Law of Na- tions,, pp. 23. 101. 184. 231. Vattel-s do. Chitty's edit. pp. 2. 93. 102. 106- Jiidgment — 'The Bill in this case states that the plaintiff is a merchant car- rying on business here ; that the first defendant was born and has resided in tbe same settlement, but now resides in Quedah, a territory subordinate to Siam, and of which he is, the Governor or Ruler under the appointment of the King of Siam, holding such ofBce during his will and pleasure ; and that the other defendant is a trader, a subject of Quedah, "but now residing in Prince of Wale's Island. It then goes on to state that in January 1856, the first defen- dant, hereafter called the Rajah, was the owner of the British barque the &ra- titiide, but that he had purchased it in the name of Wan Ismail, who appeared as the legal owner ; that th,e Rajah 'and the plaintiff, about that time, agreed, that the plaintiff should take the entire management of the vessel, and employ her in trade wheresoever or howsoever, either on their joint account, or by char- ter or on freight, or in any other manner that the plaintiff should deem advisable ; the plaintiff to make advances for-the usual disbursements and expenses of the/ Ttssel and for the purchase of cargoes, which were, however, to be eventually borne by both parties equally, and they were also to share equally in profit or loss'; the expenses of repairing the vessel and of providing her with rigging, tackle and other necessaries were to be advanced by the plaintiff, but to be borne by the Eajiih exclusively. The Bill then' states that Wan Ismail, by the direction of the V. W. ISLAND OR PENANG. 156 Eajah. Bxeeuted a. Power of.A.ttovnery, to enable the plaintiff to act in the man agernent of the vessel and'partnership ; with regard to third parties ; that the ' yessel made several voyages, that the account of the first was furnished to the Rajah himself but as to all, subsequent accounts, copies of them were taken for the Rajah by Wan Ismail, who was empowsred to act for him as his agent. Finally the Bill states that the barque was chartered by one Oong Aehoon in April 1857 for a voyage to China, and was lost in the month of October in the same year, off the coast of Cochin China ; that the vessel was so char tered before, and not, a^ the Bill alleges that the Rajah insists, after the Rajah had requested the plain- tiff to return the vessel to him ; that the sum for which the vessel was charter- ed was 6000 dollars, of which 3500 were to be paid only on her return to Pen- ang:; that the freight was insured in the plaintiffs name in the Calcutta Mer- feantile Marine Insurance Society who refused to pay, and who were being sued - in Calcutta in ponsequenoe. The Bill conclude^ by alleging that, not taking into account the said sum of 3500 dollars, the result'of the partnership trans- actions left the Rajah owing the plaintiff 2789. 09 ; it says that Wan Ismail claims some interest in the transactions ; and it prays that an account may be taken in this Court of thess dealings, and that the defendants may be decreed to pay what shall be found due to the plaintiff. To this Bill the Rajah of Quedah has pleaded that before and at the time of the commenoement of this suit, he was, and still is a Sovereign Prince, that is to say, the reigning Sovereign of the kingdom pf Quedah, a State tributary to Siam ; and that by reason of the premises, he ought not to be compelled to an. swer the Bill, or any suit in respect of the matters in question in any Court. The question which I have to decide, on these pleadings, is, whether the Ra. jah of Quedah is amenable to the jurisdiction of this Court in this suit. ■ The fact a( his being tributary \o another Sovereiun i.s not inoon- sistenf witli liis own jDverfiignCv, and i-s iinrnaferi.il for the purposes of tliis «uit. "Though the |iiiyment of tribute to a foreign power does in some degree diinifiisli the uiitry, by virtue of our pecijliiu- law. There is'no nutliority in support of such a proposi- tion, and I ihink it cannot be supported on principle. Lord Lang- dale^ says, in one of the jiaasages alrea if he had come as King of Hanover only. Tiie former dii-tuni may have had reference to the n the eubject. If he had been miiitaken, bis judgment would, ofVoni^^e, fall to the g-round, and lie slionid overrule the plea, taking judicial notice that the avertuient that the Rajah was a Sovereifxn Prince, was not true. March 25.— This morning, the Recokder in Chambers, desired the Registrar to inforiii the parties tlint the R'.;>ident Coinicillor, ha- ving but lately asBun>ed his office, was not prepared to inform him authoritatively wheilier the Rajah of Quedah was recognised by on,- Government. But he fihe Recorderj had found on referring- to a correspondence which had passed between tke late Governor and himself, two years a;.>o, that ihat gentleiitan described the Rajah as an "indepenilent native chief," not only in wiitinij: to him (the Re- corder) but in addrew-ing the Supreme Ooverment, He could not hesitate to accept Mr. BInndell'.s assertion on such a point, ameeiny-; as ii dill, wit,li what he had always understood to be the fact. The won! "indeperident," was obviously converiible with "Sovereign ;" and having learnpd from ihe Resident Councillor iliat no change liad occurred in the Rajah's, position since the date of Mr. Blundt-ll's letter, he was satisfied that he had been right in considering I he Ra- jah a Sovereign Prince. His judgment would therefore stand, and the Bill be dismi--sed as against ihe Rajah. Before The Hon'ble Sir P. B. Maxwell, Recorder. Oh Wee, Kee versus Knppen Tombv. In an action to recover a ■penalty on an agreement for a breach of it, theplaintiff is entitled to recover the damages a.ctually sustained, if the arnoimt sued for is of the nature of a penalty and not of li- quidated damages. The damages in such case will not exceed the penalty named in the agreement. Penang Gazette 28th December 1861- Judgment This was an action brought (o recover f 200 penalty, for breach of a covenant. The plaintiff by an agieement under seal dated the 8tli of December last, agreed to supply the defendant, who is a dubash, with all the fresh beef ami white bread he, the defendant, should require during the next ten months for the use of all tl|e vessels in the hijrbour that should take their supplies of such articles from him, at the rate of five cents a pound for the beef and four cents a loaf for the bread. On his part, the defendant covenanted not to buy the above articles from any other butcher or bukei", under lCr» COtillT OF Jt'lrtCATUKE. a peualty of ^'200.- -The plaintiff' IiouihI himself in a like iifimlty for any brp;ic'li i)F thi^ iigreeaieiil on liis [lurt. Tlie (Ipelnratioii swt out the agrpHUiiMit and - avi-rred as a bi'eacli fliat the defendant hml Jit divHi's tiitiH"* beureen the 2iiil of Aii^ju-it aitd ilie 3rd, of September, bought wliitR bvead aiid'mpateNewhere foi' ves'sftl-'. The defendaiif lilnaded, amoiii: otlipi- plea--". I13' M'ay'of an equitable plea, tiiat the bread •^u|)|)li 3d by tiie plainiiff on cei-tain daya was not fii for food, and that the plainiifT ii'ad been gniltyof a liveach of povflriant in re- fusini;- to supply the defendani with gome beef that he required, At the trial ihe plainiitF'iii'oved ihat during- the "hole of Aiign)D OR PENANG. 166 was held to be recoverable. But in tbese case.*, tlie sum. nn.raeil iis a lieiuilty »va8, in fact, liquiiliiteii dainn<;cs. It would have been impos- sible for a Coiirl: of Equity to determine in these cases what was the damage actually sustained by the idaintiffs in coiii-pquence of the defendants practising- their professiims in certain places contrary to their. . If the defendants had gone to an Equity Court, they would iiave hai. Inio tliia qiii'^tinn also, it w;is unnecessary lo enicv; for it was pUiin that a I'ekisal.by tlife plaintiff to sell steak in September was no answer to an action against tlie defendant for having bought his bread elsewhere- in August; nor could the damages of ihe deffindant beiset off against those of'the plaintiff. The ple'a therefore failed altogether, lie had therefore only lo assess ihe damages susla,ined by the plaintiff during the month of Angnst bV ihc def'endHnVs two agents bu\ ing bread from another baker. And considering it proved that each of these men pnrchiissil 3 loaves a day during that month and that the plain;.iff made a profit of 2 cents upon each, the loss actual ly sustained by the plaintiff, was therefore $3. 60 and there would be judgment for hjni for that amount. Nonya Siu vs. Oothmansah Merican. Subsequent Marriage by Chinese females in this Colony, after divorce, valid. The law of China and the local custom as to guardain for Marriage ( Wallee as it is termed in Mahomedan law ), considered. Penang Grazette, 1st February 1862 Judgment of Sik P. Benson Maxwell, Knt. Recokder. " Nonya Siu was married to Lini Bun, left him, and lived afterwards with Hui Siau till liis death. In 1845 a deed was executed by her and Hui Siau conveying certain lands and tenements to the defen- dant, and the chief question in this cause was whether the conveyance was binding on her, as being a mai'ried wosuan at the time when it was made. 'I'he marriage to Lim Bun was admitted ; but it was as- serted on the plaintiff's part and denied on the defendant's, that she had been divorced by her first husband and married to Hui Siau. The i)laint iff alleged that she had been divorced by mutual consent.' according to Chinese law; that the cause of quarrel between herself and her husband which led to the divorce, was, that he complained of her indolence; that after the divorce she lived for a year with her sister Nonya Lian ; and that at tlie end of that time she married Hui' Siau. On the defendaiit's patt evidence was adduced to shew that tWe cause of quarrel w'as that the plaintiff had been detected ('arrving oil an ititrigue with Hui Siau, and that while slie stayed at her sister's, Hui Siau lived with hei-, and after a time both took up their abode in the town, and afterwards in Batu Uban. Evidence was also given on both sides as to reputation, some of the witnesses alleging that the two passed as man and wife, while others had al- ways understood that the j)Uiinliff lived with Hui Siau as his mistress F. W. ISLAND OR PENANG. 1G8 (iki)t sfiiiiit (lii). Cliine'^e witneases were examined on the sul)j"et oF tlie Cliine-e liw; b|it ilie evidence sli«wed that their iiifoniiaiion was ol' the slif^hiest character. Some of them went even so far as to deny that a divorced woiuiin could marry again. It is unneces- 8!irv, liowever, to refer further to the evidence, as the Ktecorder relied Sitlely on Staunton's translation of the Chinese Pen;il Code. The case vfas heard at the last December sitting*, iind the Recor. dei' look time to consider his judgment. On a subsequent day the learned Juilge, in delivering judgment, said I hat he consideVeti that the divoice had been clearly establishnd. The question was wliether the alleged second marriage had taken place. The Chinese law permitted a woman to marry a second time, unless she had received an honorary title from the Emperor during Ker first husband's Ufa ( Staunton's Penal Code p. 1 12. ) But to render the second union a marriage, .there must be a person to give the woman away to the new husband aud a delivery of marriage presents, otherwise it was considered simply as a case of conenbinage. fib. p. 113). If this rule were in force here, it was plain that the marriage set up could not be sustained, for the plaintiff admitted that neither her uncle, the head of the family; nor any one else, gave her away. But the rule could not be held essential here under English law, where a ve- ry different degree of liberty and respect ^yas ancorded to women than in China or other part of the East. In China a woman appear- ed to be, as in India, in a state of perpetual tutelage, and to be eilhej under a general incapacity to contract, or to have no right to dispose of her p'erson as she pleased. The necessity of giving away was not so Doiuch a part of the ceremony as a consequence of tlie general law relating to the status of the woman. But here this must be deter- mined by English, and not by Chinese law. It mu-t be taken, there- fore, that the uncle's not giving her away did not make the cere- mony a nullity, if in other respects it was a a valid marriage. The question however, remained, had the plaintiff ever been mar- ried to Hui Siau ; and on this point the evidence was conflicting. The plaintiff said tln.l si^veral persons were present at the marriage; Nonya Engku, Nonya Luan, her sifter Chiah Lian, Chau Su. Phau and Chiah Hin.- The two latter were dead. Lian denied that she was present. Engku was not caUled. Tian Tek, who was said to hove been at the feast, denied that he was. The only persons who gave any evidence in the affirmative were the wife of 'an actor who said that she was sent (or the bride, a man who said he e«rried Ira^s to her house with candles, pigs-feet and fowl in the morning, and assisted in laying the table for the feast in the afternoon, and one 169 COURT OF JUDICAIURE. - sails, which are useful in lijilit bi't^pzes, wei'e roiteiijand unserviceable. Noi having been properly !-upplieJ "it.li Sixili!, slie vviis not seaworthy, ami tbn Tolicy vvns void. So, it has ' been held in America; ( in Starbuck v. N. E. Insurance Co. 19 I'ick 199) that if the ship is not seaworthy at ihe be^iuinj; of ihe voyage, the insurer is not liable for a los-i, even if ir- arose from anotlier cau-^e. And the rnle as I have said is the same whether the Policy be on siiip or on ijoods. In the caH- idrs; and nil qiiesiioii "as made as to lii>^ competency. He said tiiai he had surveyed the Alert in 1857, 1858, and 1859, and again in May anil August 1861 ; hut that in his first suivey, he had found her so g'ood .i vessel, that he "dii.1 not survey her imich '' afterwards; Sire was built in Java in 1851, of leak and was " a< strong-," to use the expression of one of the witnesses, '' as wood and iron coiild make liei-' '' ; and she was re^'i^tered A. I.' 12. It appeared a'sn that she had from the time when she was launched, what is calleil a sieady or chronrc leak of an inch an hour; that i"", a leak ,ari;-in;i fi'oro some defect in the orjiinal const I'uction of the vcs^^ei, and which goes on uniiitei'rnpteilly and at the same rale in all wealhers. This leak, ii was admitted, did not make her nnseaworthy. When Captain Shepherd visited lier in Auiiust last, he "as lold. he said, by the Captain ( Price ), that llie vessel had made a liitle more water than ii-oon, and that he knew vvlicre llie leak was. He took Captain Shephei-d down to the low- er foi'ei'astle, where the sound of water oozini;- into the ship, a lit- tle below the copper line, was heard. The ve-^sel was lightened, afid a portion of the port bow was stripped off the copj)er, of the p!ieathini>- phmk (which was uninjured and fiom ^ to | of an inch ihiok ) and of the felt ( of the thickness of a blanket ) which cove- led it ; and a hole of about the size of a dollar ( a rat hole, accor- ding; to Captain Shepherd, or a hole made by the rotting away of a knot, accordini;- to the carpenter ) vvas found in the plank. The hole was above water when the vessel was li^'ht, but below it when laden with an avferage cargo. He also examined the copper, and had six slieeis of it, one here and there, on the portside, stripped where there were blue patches, t;o try the caulking, and he found it good. The plank in which the hole was, was rentoved, and a new one was put into its place. Captain Shepherd found that the bends, topsides and woodends above the copper needed caulking and they were caulked. When the repairs were compleied Cap- tain Shepherd considered, and becei'tified in his survey report, da- ted the day of ih^ir completion, ( 19th August, ) as he also stated a few days afterwards to the defendant, that he considered the state of the hull " good '' , and the vessel generally " a good insurance risk." He was satisfied that the hole |)olnted oat by the caplaiu was the cause of ihe leaking which had occurred on the recent voy- age, far he considered that it gave the sTiTp twelve inches, or more. p. W. ISLAND OR PENANG. of vviitcr an lioiir ; etioiifih, in Ilis opinion, to keep one ]Himp con- linuiilly, or two pumps occii-iionally, for J an hour at a time, at •worlv t.o keep her dry ; and lie had inferred from the sound, that water cuine from one hole only. But Captain Shepherd did not ex- amine the hull (urtlier. He did not go down to the forecastle after the repairs ware finished, to Ufccrtain whettier the" veissel was ilien tiglitnnd staunch, or whether there was still a noise of water oozin;^-; nor did he sound the well. As he observed, wheti a-ked whether he had done so, or made other inquiries, be had learned from the cMptain where the leak vras, and he trusted the captain. He said it nasusuiil to take the captain's word and lie had followed the cus- tom. But it mu-it be observed that the evidence of ii sui'veynr who does so is of much less value than tbiit rtf one who trnsts to nobody, but personally inspects everything liinigeH'. The evidence which i^ the result of his personal inspection is of greait value ; but all the evidence wluch rests on the information or opinion of others, is worthless. I think that Capt, Shepherd was led by his knowledge ever since 1857 of the strength and good quality of this vessel, to survey her with less care than he would bring to the survey of other vessels. I will even add that, it was perhaps not unreasonable that after he had found and I'epaired what he conaideied an adt^quaie cause of the leak, he should think it unnecessary tq make any fur- ther search. But still, the fact remains, that his survey was not of a character to be by any means conclusive on the que.'stion be- fore me. X The n«xt witness, whose evidence is of great importiince in this case, is the carpenter who executed the repairs. Now, this wit- ness, €hin Hah Hiang, who wai called, not by the plaintiffs but by the defendant, says that before beginning the repairs, he heard water coining in at both sides of the bow. He further says, that after tliB plank with the hole had been replaced, he went down again, and heard water entering at the starboard bow, two or three feet from the cutwater, about foi^r copper sheets down ; that he cut away a small quantity of the skin of the ship and passed in his hand, when he felt the water coming in. It dropped as rapid,ly as the ticking of a small watch. He observed to Capt.' Price that she had ■" more leak,'' and suggested that lie should haul her up and strip the copper at her bow ; to which the captain answered that there v*as no money, that the ship was expensive, and that he must go to Madras and then to Calcutta, wlien he would see the owners and go into dock. This wit ne»s also said that after he had com- pleted the repairs, Ke visitefl the carpenter of the Alert on board, and observed pumping for kiAi an hour at a time, It was said 183 COUUT OF JUDICATURE., tlKit llie fli'oppiiig spoken of could not litive been a leak, but naust liave cotnp from ilie deck ; and eertjiiiiiy it soem-; veiy |irobable, as Capt. Wiiglu obs«>r\fc'd, that a leak in the side of a vessel, from bad caulkint; 01' from a buit being started, would trickl.e silently down the side; but Capt. Engleshaui thouj>ht that water oozing in would drop as described by the cal'penter,' if a bolt or treenail had been in the way. Captain Steivart was of the same opinion; and I ara una- ble to discover any absurdity or error in such a view. It would be strange if hu experie.mjed ship carpeni^er were lo mir^take a dropping from the (leek, for a leak, in the side four .sheets below ihe copjter line. It was coniended that his evidence was open to much doubt, as Capt. 6heph«rd had, when be went clown, concluded I hat wafer was comini; iu from one place onl\ ; but Capt. Shepherd did not go down again to test thu correctness of his opinicni, and his infei-ences cannot therefore weiy;h against the positive evidence of the ship- wi-i^ht, who certainly can hardly have had any adequate moiive for milking, in this case, a statement which if fal>e, was wilfully false It was also coniended that his alleged conversation with the captain was an invention ; but Capt. Shepherd furnished, in the course of the case, a piece of evidence which seemed to be to prove its truth in a very stri.king manner. At the foot or corner of the copy 'of the sur- vey report, which he gave to Capt. Price, he recommended that the Alert slnmld be docked and coppered on her arrival at Calcutta. If so, the captain's answpr to the carpenter was just what might have been expected. It was merely stating that he intended to do that which had been recommended -by the surveyor; and certainly it would be a singulai', conclusion to come to, after this, that the carjien- ter invented the statement. This memorandum also seems to cor- roborate the rest of the carpenter's evidence; for certainly, a recom- mendation that the vessgl should be dock«d and coppered when she reached Calcutta, shpws that the person who made it did not differ very materially from him whosuggested that she should be examined at once here. The entry originally made in his survey book appears to have been to the same effect. After describing the vessel as fit for a dry and jterishable cargo "fur this voyage only,'' "something was added,'' says Capt. Shepherd, "about copper being worn, and recommending that it should be shifted." For these reasons, then I think the carpenter is entitled to belief; and another reason for believing him is tlie ab-ence of all exaggeration in his statement. I cannot but think that if he had bean disposed to depart from the truth, he \vould have spoken of something more formidable than a mere dropping of water; a description which, he must have known,* was not calculated to convey the notion of a dangerous leak. For, F. W. ISLAND OR J'liNAN.r:, 184 iis lo tlie beiiiiiiQ- or significance o( his evidence ujion tlie qiie.''tion at issue, I must, --iiy that I should not be disposed to attach much im- iVoi'tance to the fact of wiiich he speaks, per se ; for I should find it diffifiill lo believe that a leak of water dropping, drop by drop, in- to a vessel of. 300 tons could' be of serious moment. IF it lie im- ptjrtaiit, it can he so, as it seems to me, only so far as it may -iervo no, an indication of the probable existence of other defects of the same nature, oi- of the ship-having- received some injury. So far, liowever, it would m,, but that on one oc- casion, being on board at noon, he had noticed pumping going on at that hour, ^bdul .Kadir, the slivadore, wlio "as on board daily from 6 a. m. to 6 p. m., said that when she first arrived from Ran- goon, slie was pumped three times a day for from J to \ an hour at a time; that after she had been lightened, by tlie removal of her . cargo, the leaking ceased, and she was uotpumped for three days run- ning; but that on being half loaded for Nagore, she began to mnke water again, and was then pumped daily three linie.s, though for only 5 or 6 minutes each time. Captain Shepherd said, in answer to a question, that after the repairs had been executed, there could be no necessity for pumping ihe ship three times a i not exiiinined as ropes were stowed away there. There may be some exagjjeration in all this, as was urged by the learned gentle- man who represented the plaintiffs at tiie trial, and it may be true that the cargo (rice) Hu-stainod little damage, as was said by the con- sitcnees of it; but I cannot doubt Lavvton's statafnentH on the sub- jeef. He. was calleil by the plaint iff><, ami was evidently not a hostile witnes.s or di-^posed ij exaggerate her leaking condition; and I take it then to be established that on returning from Rangoon, the Alert made 5 inches anhoiir o'n an average, pumping every two hours. Such bping her condition on the Voyage which ended at Penang in August, what was her condition, on the voj'age from Penang to Nagore, the voyage for wliicli the insurance was effected ? The ' evidence on this |)art of the case is very impSrfGct; but as far as it goes, it is entirely consistent with that which bears on her condition in the harbour and oii the Rangoon voyage. None of the officers or crew who sailed on the Nagore voyage were called, nor were the logs produced. It is true, the proceedings at the investigation held at Madras after the wreck under the Merchant Shipping Act, were put in by consent of both parties; but they affoi'd little information on the present question, which was not the question there under in- quiry. Chin Hah Hiang, the carpenter before mentioned, says that he accompanied Captain Price to the i^hip on, the n)orning of her departure, to be paid for a plank, and that during the hour and a half that he remained on board the vessel, being ihen off Pulo Tiku.i, pumping was going on. There is probably exaggeration here. The other witnesses on thiis part of the case are two Malay passengers, whose evidence was given under a commission. These men, Maho- med Tahir and Mahomed Ha-sui. say that they observed pumping on the day when they embarked (the day before the Alert sailed). The former thinks that she was pumped twice the latter observed 187 covwi' OF jul:)iCATaKn pumping once only on that cliij'; but no inference can he drawn from tlrese sifitt'tnenis for it does noi upp(jfir at what tmie of llie tiny they respective!}' emliarked. Tiie next il;iy (when they dropped ont of the harbour Jind anchored oif I'ulo Tikus) thy n ssei was |>nn)ped two or three timen, accoi'ding to Malionied Tnhir, but tour limes according to Mahomed Ha' at sea was not less frequent nor U>ps long thnn that whieii took p'ace in tiie harbour before the Alcfi sniliil. Uniil she reached Acheen Head siie had fine weather. There^he nief wiih rough weather which appears to have continued wiih little or no intcrniissio'n, until- she arrived in the Madras road«. From the lime of hei' leaiving Acheen Head, all the passengers (how many they were does not ap- ))ear) were made to pnmp as well as the crew. "We never ceased pumping durin){ heavy weatinM-.'' says Mahomed Tahir, "but we did not pump so often during fine weaihei.'' '' We rested "t short inter- val* to liikn our meals," says Mahomod Hassnn. Boili witnesses speak also of the ship making "lots of wafer ; '' bni how often she was pumped daily and what quantity of water she made, is left in dopbt by these witnesses 'i'hey do not even state specifically whe- ther one only or both pumps irere used, though from the fact that they and tlie examining counsel speak of "the punips,'' of being '■|)Vit to the pnmps" &a. hut still more from the fact that it wa» found necessary to put the pa^sengors to this work, I think it is to be inferred that both pnmps were used in the bad weather. Price and Cochrane, (tlie (diief mate) sny that the passage was " rather rough," and that they lost a few fails. Bnt there is no evidence as to the state of these sails. Piice says tilso that the ship "became leaky,", making 2^ to 3 inohos p"r honr. Cochrane says tiiat she made from I to 2i inches waier in an hi ur according to the (veather. He says also that she was])umpcd every two hours; iindit appears from the extract from the loep liis cargo — • rice, dead weight, lying on the dunnage at the bottom of the hohl — dry ; but I do not uiufferstaiid that the Madras carffo, consisting of betelnut, rattans, mats and China crackei-.s, was likely to be stowed in a way to require more care in this respect. The passengers do not complain that thoy were worked capriciously, and lliere is no- thing to' lead to a suspicion of aoytliing of the kind'. Capt. iShepherd say.', indeed, that from this'frequent pum|dng no iiiference of un- seawprtliinesa is to be drawn. It is a common pract^ice, he says, to ''■jog oui'', (ihat is to pump witiiout sounding) a ship every two hours in rough, and perhaps every four, in fine weather, and that as the^^er^ had no sounding well, this vas puniped- only t« ioi- a da\ , morning and evening for 15 or 20 minutes each tioie, wliicli. as I have already mentioned, is what he say-i of her al- hii for ihe fir^t two or three flays after nlie sailed, "to the best of his recollcciiou" I do not think it material, however, to consider wiiich of ihese tivo statements is the true one. The questjon Iiere is, whe- tlicr LambiTi's aiiil Kni|..;lit's account of what occurred off Malacca is substantially true, or a sheer table. I was asked to disbelieve i.fc alto.;eiher; but I see no reason for doing so. There may be some errm- or exa'.;^eration in the details ; but it is unreasonable to sup- ]n>f!ici<)rily accounts for U»e facts which they staieil and which call foi' explanation. They say that^the^/erif leaked, and that her leak^ >vere all forward; Lambert and Knight say that she strnck on a snnd-haiik. and that it was the bows of the ship that were aszround. Captain Shepherd says that no report of any such occurrence wan made to him by the captain when the vessel ariived here in May, and tlmt he did not iiear of it fioin any othei- quarter. But this cannot weigh against the evidence of Lambert and Knight who swear to it, eipeeially as no other explaimtion of tlie condition of the Alert oti the ':iihsp(|iieiit> voj^iges is offered. Captain Price r. \V. ISLAND OR TENArs'G. 190 may liave had iiis own rfiasdiis for not desiring to comniniiiciite tlie oiroiini'^iuiice, aiui I think that it niaj; be inlcned from Captnin Shejihwrd's disposition to trust the .captain lluit il mny well liave liappencd, and yei not liavu become known lo liini. The lattpr said that if she had bumped a« described by the two witnesses, she wnuld have staited her fastening's, her copper would iiave been wriiikled, an(nl (that i<, cui'ved with the centre up and the extremities d'own); and lie obsei'ved no appeai'eno' of this. But tlie extern of any such damage must have depended uuueiial- Iv on tiie slule of the weathei'. Capt. Miller who •speaks of the pos- sibility of her being hogired, says only that he wonid, expect su(di a result if she had strueli in rough weathei-, which was not the lea- ther spoken of. Captain Wright and Captain Ea^lesiiam, gentle- men apparently of tnuch expei'ience in tliese matters, wouhl have expected^rom the accident, a loss of copper and consequent diimage hy worms to tiie ship's bottom ; but as she was not cxamirieil, there were no facts in evidence in support of tiiis view, howevei' in- trinsically probable it may be. Captain Eaglesliam, however, sug- gested another consequence as likely to follow from the accident, which appaarad to me quite as probable as any other, and as at the same lime accounting for the dropjiing heard in the fore part; and the fore part alone, of the sliip. "She might have strained," he said, "and if she strained much, her fastenings forward would have been loosened" agreeing, so far, with Capt. Shepherd. This was damage which would not, according to the same witness,,shew itself till bad weather came, and he added "if »he had nothing but fine weather between that lime and her ^meeting the bad weather off Acheen Head, I should a'ttribute her beginning lo leak then to what had passed on the bank, otherwise not". But in answer to a fur- ther question, he said that "even if she had met with bad weather before'' — that is before meeting it off Acheen Head, but after the ac- cident,— "Ishould suspect the same cause." This is a point upon which I should have been glad of further information ; but after giving it all the oonsideraiioii in my power, I cannot but think that Captain Eaglesham's opinion is well founded. In calm weather, the sides of thq vessel might well exclude the water, the planks re- maining in their original position, the copper, the sheathing and other such matters sufficing to keep them in that position, though the bolts which fastened them to the timbers of the ship might have been loosened ; and yet when the vessel pitched or rolled in rough weather they would yield to the pressure, and admit water into the •hip. This is, however, a subject on which my opinion is not of value ; and if I expreeB any, it is for the purpose of stating my rea- 191 UOURT OF JUDICATURK, son fdi' tliiiikinji the opinion of the scieiUifio witness sound. I tliink i', then, established by, ii iiiiis> of" evidence couiine hours' bumping- on tTie sand, and that he wouhl. not have pns-ied h^r, Imi woulii have dock- ed her 01' hove her down, if he had been aware of liie afcident. All Ibis can be nothing more than mere speculation and conjecture. But when frequent pumping is found necessary •after such an acci- dent, the inference to be di'awn is no long'cr. conjectural. It proves that an injury has been sustained, and ihe question comes, can tho exfent of ilie injury be inferred from the frequency and duration' of the pumping ? Capt. Smith, *Beemed to think not. "I know no- ibing of pumping," he said in answer lo a question on this subject ; " tell me what quantity of water she made an hour." So, Capt, Shepherd said in one pai't of his evidence that the oidy criterion was to sound the well. It may be the best, but it can hardly be the only criterion. The incessant working of the pumps on board a vessel must surely be as convincing evidence of her leaking as the. discovery of a hole in her hull upon a regular survey. Indeed, Capt;. Shepherd expressed last August, or Sepiembt^r, when the question of the vessel's seaworthiness was first a^iialed, a very stron;^ opinion based upon the duration of' her pumping. " If the Alert','' be said, "should, at sea, on her present voyage, use one ]iuinp for live minutes, every four hours, in bad weather only, with a heavy sea, as ia most common for deeply laden ships to do in such weather' 'n such a case I consider she would have been seaworthy when she sailed. But if s^ie required more pumping, she must have been then unseaworthy. Any need of two pumps except in a hurri- cane on her present voyage, or the need of a Ion;; spell of, say, half an hour or more with one pump every four hours, I look upon as quite conclusive of her unseaworthiness when she sailed....! have never passed a ship before as a good risk wliicli I knew would re- quire a short spell every four hours at tiie pumps at sea., and I would not have passed the Alert as a ij;oud risk,. if I had thought siie would require such puni|)ing.'' These earlier vie^Vs of Capiain Shep- lierd certainly are very strong against the seaworthiness of the V( s-el; and though he iias since, and probably with justice, modified them I cannot but think that his general experience and his long acquain- tance with the shi(),give them some weight. What conclusion, then is to be drawn from the pumping in the harbour? Captafu Shep- herd said at the trial that he would infer unseaworthiness if the Alert was pumped four times in tlie harbour, but that he lYould not come 193 COURT OF JUDICATURE to the same conclusion from her b«ing pumped tliroR times. If, then, it lias been eMt.iblixhed by Captain Lwycockand Abdul Kadir that, the Alert vvMS piimped four times, and for half an hour each time the sliip is Condemned by Captain Shepherd. But: all the other wiJnesses would cfindemn her even if slie were pumped less fre- quently. Even Capt. Chase, who has commanded no less thim tliroe vessels with steady leaks of from one to two inches an hour, and whose "standing^ order' it is ever since he has com- manded a ship, to try the pumps, when at sea, every two hours, with^out reference to the state of the weatiiec, said that in hai'- bour it wag his practiice to pump only tsvice a day, morning and evening. It is evident that the vessels which he comimanded have not been in general first class vessf^ls; and if a man of his prudent habits did not piintp hirs ships more' than twice a day in harbour, I think that he would stronL^ly doubt whether any vessel was seawor- thy for a voyage across the Bay of Bengal, which needed' pumping three times a day in harbour. Captain Laycock, when asked whe- ther a shi|) could be seaworthy which was' pumped so often under such circumstances, declined to express any positive opinion; but when asked how he could account for a seaworthy vessel pumping so often, his only suggestion was that water might have been poiired into her to keep her sweet. Capt. Laycoek was examined undei:^ a commi;.- sion, and this point was not further pressed upon him; but as his evi- dence stands, it would seem that he considered that unless water was poured into her, no seaworthy vessel could need three pumpings a day in hai'bour. Capt. Eaglesham said that no good ship would re- quire more frequent pumping in harbour thaii once in the morning and one in the evening ; and that any vessel which pumped three times a day for half an hour at a time in harbour was unseaworlhy. So, Capt. Wright said that if a vessel, after being repaired, required threeorfour times pumping daily, he would think that there was something wrong with her. In short in the opinion of all the most competent seafaring men, examined masters of vessels and pro- fessional surveyors, the ^Zer< was not in a seaworthy condition if she was leaking as she was last Augusi, in this harbour. Upon the whole, then it seeins to me that the Alert struck on a sand.bank off Malacca, and then received an injury which ciiused the subsequent leaking. I believe that that leaking was not.cured either by the repairs at Rangoon or by the subsequent repairs here. In- deed, when I bear in mind that the hole which was repaired here was covered with felt, with a sheathing plank ^ or | inch thick, and with a sheet of copper, I cannot believe thatany water would hare ever made its way into if, if the fastenings had not been started. I r. W. ISLAND OR ?ENANO. 194 l)eli(^vp, lurtlior, fcliat ilie Alert leaked in llie luirbour of Peiiatig OR PENANG. 7tl) October 1852. BiiFORE Sir p. B. MAXWELh—Refiorder. SvF.D NoOR and ;iiiotl)in' v. Ghkkm. In an agreement ichere ]}l(tint>ff undertook to build a house for defendant for a speci&ed sum and received an advance before the work is commenced but afterwards broke the contract owing to de- fendant' s refusal to make further advances. An action could , not be maintained upon the contract — Plaintiff sued Defendant for tchat he is entitled to, the Court assumed that from, the act of the defen- dant in the transaction a promise to pay icas to be inferred^ and al- lowed the plaintiff only his actual claim. 'I'licfiU-ts of lbi< ca'=e iippear sufEcienilv from llie judgmpiit, Mr. -4?Y/i?w iippeau'd foi' the plaintiffs ; tlie duf'eiultiiit ii|)pear,ed in \wv- Bon. < The Judge — In tliis case tlie plaintiffs sue the dHfendani for goods sold and delivered, and for work and labour; arfd the iiction arises out of iliese cii-cumi3tance&. ' Last Januar3', by a contract in writintr. iho plaintiffs un J eitook lo build a bouse for the (iefendant Viiiiiii two nionihs, for llie snin of 750 dojbir,^, of vvlncli 300 were to be p:iid down in advance, 200 when the liouae wiis roofi'il, a/nl tlie balance when it was completed. Tiie 30O dolliirs were pnid, and tlie phiintiffj coinmeiiced ihe liouse ; but liiey brojce their coii- iract, abandoning tlie work in March, ami not reuirning to it 'after repeated notices. Tliey said tliat this was owing to tin? refusal of , the defendant to make them further advances; but he was not bouml to make any, as ihe house was not roofed. Indeed, the walls of the upper storey had not yt-tbeen cmistructed. However, ii was not disputed that the plainliff> inid noi performed their con- tract ; but they sued not upon the contract, but upon a quantum meruit, ihat is, to recover what, they deserved ; audi this they are entitled to claim, under certain circumstances. The general rule is thai when the consideration for a i)romise on one siile, \i tlie previous performance of another promise on the other,— for exam- l)le, where, as in the present 'case, ilie consideraiion for a promise to pay a (siim of money is the performance of a promise to build a house— tiie latter promise must be performed before the former can be sued upon ; and in this case therefore no action could have been maintained anaiast the defendant under tlie contract. But there are contingencies in which an action may be mMintaiiied I hou-rh the contract has not been performed by tlie phiintiffs ; as where tlie dher party lias refused to perform his part, or has inca- pacitated himself from performing it,; or has prevented the other 197 flOURT or JUDICATUKK. side Irnm. iicrfoniiin^ his pnri ; oi- luis ac-ccpled some l)pii*-'fit fiom \vti;\t lia-: liftPM fl'ine bv the other siile, in ']>;irli;il perfurinniice of the irn^omplptei! conivact under such circuinstiuices th;ifc it wouhl be Uiijuii. if he ilid ii'le p'^'.-ion whom they employed, or froiU' whom they bou;;ht ihe niateiials ; while the defendant has shewn from the evidence of the biick seller, not ip(l in linililing liis new haiisc, Ii'h is clearly bciiiiul lo pay tiieir just value, iIihI i-, ilie sura just mentioned. Willi resi>ect ic the walls, the cMse is difFrent. They mere t'ounil cracked in iiiiiny place*, and wholly until for the puipose for which iliey were intend- ed. 'J'liis was ai triliuted |iai-i,ly lo the insufficiency of the founda- tions, which iveie only seven, oi' according to other evidence, 10 inches, in-ileiid of 2 feet, mthI partly to the deticienoy of lime in the uioi'tar. It was necensiiry to throw down these w^dls, and this was done aocorilingly, and about 50,000 of the bricks were fonnd avail- able for the new walls which 4vei-e built in their place. The re^t of the building, as n matter of course, was necessarily laknn down also; I mean, the beams and joists which had been laid on them for the upper storey. Under these circumstance*, the defendant derived no benefit fi'om the walls, ^anil if he had suffered them to stand and made no use ot them, I should have considered that from his simply resuming the possession of his property after the plaintiffs had brcdi- en their contract, no |iroiiii-c to pay for tlie walls could be im- iplied, although the walls became ids property by virtue of the rule puicquid plantatur solo solo cedit. For it must be remembered that not only is'a party to a contract liable only to the extent of tiie 'benefit that lie has derived from the partly performed contract, Init even then, only where a promise lo |iay is reasonably to be imjilied from the circumstances. For instance, in the recent case oiMunro v. Butt 8. E. & Bl. 738, a contract to do certain work on houses of the defendant not having been duly performed, the de- fendant took possession of the houses, and in consequence was in the enjoyment of what had been done on them uiuler the contract ; but it was held that the mere fact of taking possession of iiis own property was not enough to raise an implied promise on the part of the defendant to pay for the work done. Here, indeed, the de- fendant threw down the walls, and used such of the bricks as were available for the purpose in building his new wall; but assuming that from this act a promise to pay was to be inferred, which I do not assert, it seems to me that it could be only a promise to pay fi.r the bricks used, after deducting the cost of adapting tlievn for build- ing, that is, the expense of throwing down the walls: for thiiX is the extent of the benefit derived. This would be 110 dollars ( 120, the price of 50,000 bricks, WZ8MMS 10 dollars the cost of taking down the walls ). But this, with the other sum which, as 1 have said, the plainiiffs are entitled to recover, (^188. 80) is more than covered by the defendant's payment. There will therefore be judg- ment for the defendant. 199 roUllT or JUDICATURE. 19tli Sp|)tember 1862. Before Sir P. B. Maxweli-, — Recorder. . Eeg. i;.. Song Sam. The words "found therein" in the gambling Act, aj^plies to a per- son who is arrested some distance from the place of gambling, if he is seen going Qut of such place. The proceedings by certiorari, do not come within the 29th Section of Act 48 0/I86O as those tcords apply only to proceedings "against any person" and refer only to a crimi- nal proceeding. The Police have no authority to search and seize m.oneys found in a house where gambling is ^ carried on otherwise than the moneys found, in the room or place where the gambling ivas carried on. Accordingly where all the money in the house was seized by the Police and the Magistrate ordered the same to be forfeited, the Court quashed the order. The words "reasonably suspected io have been used or intended to be used," mean such money only as ap- peared to have been used or to have been destined to he tisedfor gam- ing then and there at the sitting, i.e., not money which might after- wards be intended, but tchich had then and there been intended. On the I71I1 of April last, Mr. Pluiiket, tlie De])uiy Commis- sioner of I'olice, if!sue(,l a warrant Io an Inspeclor, to enter a lio««e in Beadh Street, No. 82, under tlie 58th Seciion of ihe Police Act. Tlie information upon which the warrant was issued had been laid before the Commissionei- of Police, Tlie Inspector, accompanied by several Policemen and also by the Deputy Commissioner, pas.'^ed through the adjoining house, No, 81, and got to the rear of 82, As they approached, ihe alai'ni was giVen, and a nuniber of ])ei'8ons, including the defendant, ran out of a room at the end of . the build- ing, next to the seabeach. The Police officers iuime!irate had authority, upon conviction of any person for keeping a gaming bouse, or for being present there for tlie purpose of gam- ing, lo confiscate ttn^ money and aiHicles of value ''seized therein,'* such &< the Police authorities liad lavyful power to seize under the 58ih sect, of the Act, That section empowered the Commiscioner of Police to give authority to the subordinate officers by warrant, to do several things. They were to enter the house, ronm or place in- formed against, by night or by day, and by force if necessary ; and they were to take into custody all persons "found therein," whe- ther or not then actually gaming, and to seize all gaming instru- ments, moneys and valuables " reasonably suspected" lo have been used or intended to be used for the pur|30se of gaming which are found therein. What was meant hy found therein and by reasonable suspicion? di'd "therein"' mean the room which was the scene of the gaming operations, or did it mean the whole of the house or premi- ses of which that room was a part ? The Magistrate had put the latler construction on the words and had then "Reasonably suspect- ed '' that all the nioixey found in the front shop and the bed rooms "had been used or intended to be used for the purpose of gaming." He seemed to have coniidered that all moneys and valuables which were found in a gainbling house, Irom garret to cellar, were subject to confiscation if he had reasonable i;rouiKl to suspect that the own- ers of the money, at any time, however distant had used, or at any time, however remote, would use it for gaming purposes; and that the fact that the hoy^e was a gaming house was enough to stamp every dollar found in it with reasonable suspicion that it had been or would be staked at play. If this had been the intention of the 203 COURT OF JUDICATURE. Legislature, it was difficult to see why tliey iiail confined Jihe penal- ly of confiscation lo tlie money found in the hoii-e, and had not in- volved in thesKUie peril all the other property of the owner of the house, for all, upon such reasoning, was equally open to the same suspicion. At all events, it was unnecessary to have made the for- feiture of the iuoney dependent on the suspicions of the Mrtgistrate, if those suspicions were lo he applied thus indisciiminately to all property found in every part of the hou ease, proceeded to search their pri- soners and the rest of the house foi- money, and by what authmity had they taken the money, found on the men and in the house? The Act authorized — and the warrant neither did nor could give any greater power — the search of "all part of the house, room or place," and of the prisoners, only for one purpose, and only in one state of circumstances, viz: for gaming implements, and for them only wheti the officers have reason to suspect, that any are concealed. The woids were, "to search all parts of the house, room or place which he shall have so entered, when he has reason to believe that any instruments of gaming are concealed therein, and also the persons of those whopi he so takes into custody, and to seize and take into custwdy all in- struments of gaming found upon such search." There the Legisla- ture had put their own meaning on the word " therein." If the clause authorising the capture of all money (fee. "found therein" had been intended to apply to every pai-t of the premises, this last power would have been unnecessary. If it was necessary, it would be 80 only because by "found therein", the Legislature meant found on the spot where the gambling had been going on. It was plain, according to the maxim expressio unius est ^xclusio alterius, — a maxim which had been said to be never more applicable than when applied to Statutes that the Police in this case had no right to search 205 COUKT'Ol'' JUDICATUKE at all or if tliey Iiail a liglit. to searcli, it was only to seiircli for garn- iiiit insti'umeiit*. MijueV' tlipy liad no right to search for or t;ike. In a word the Legisliilure had nevHr conieinphiteil the coiifi-itatioii of any property bur. thiit \Tliifli, was p. W. ISLAND OR PENANG. ' 206 This depends upon, the tprmS of the contract. If the sale be upon the ordin- ary terms of payment on dehvery, it is another - rule that the vendor has , a right to detain the goods until he is paid for them. He has in that case a lien on them for the price. But if the contract is inconsistent with his retention of that lien, as if the goods are sold upon the terms that they shall be paid for on a future day, and there is no corresponding stipulation to postpone the de- livery till that day, then it is another rule th* the vendor has no right to de- tain th«m, but that not only the property, but the right to the immediate pos- session vests at once in the purchaser. As to the property in goods consigned by a bill of lading passing by an assignment of the bill of lading, as urged by the defendants counsel, that proposition is unquestionaljly true ; and there is no doubt that by assigning the bill of lading to the defendants, Rich ardson & Co, transferred all their interest in the goods to them. But Richardson & Go. trans- ferred nothing more. In legal affect, the transfer, of the bill of lading was tho same thing as if they had delivered the goods manually to the defendants. They are in the same position as Richardson & Co. would have beenif they had been themselves here, and were the defendants to this action. If Richardson & Co. had a right to keep possession of the goods till payment, so have the defendants. If Richardson & Co. were not so entitled, but the right to the possession passed to the plaintiff, the defendants cannot be entitled to detain them from him. Now, with respect to the facts of the case ; it appears that in reply to some communication'from the plaintiff,, towards the end pf 1859, t'o Messrs. Richard- eon & Co., the latter wrote to him on the 10th of January 1860, mentioning tlie execution of an order vvhich had been sent to them by him, and proposing that in future their mutual dealings should be conducted on the footing of " a half yearly account being rendered to you, against which you will remit to us." The 'same letter, stated that'the goods ordered had been consigned " to the care of Messers. Brovni & Co.," the defendants, " who will see to their clearance.'' In May 1866, other goods were consigned tQ the defendants for the plaintiff by Richardson & Co., but the defendants refused to deliver them till payment, sta- ting that they had received instructions to that effect froni their principals. On the plaintiff shewing them Richardson & Go's, letter of January 18C0, however, the defendants gave him up the articles without further insisting on payment. They appear also to have written to Richardson & Co. on this subject on the 15th of May, ; for in acknowledging the receipt of a letter from them of that date, Messrs. Richardson write ( June 27 ) "we note that you have handed over the goods valued" &c. " to Mr. Gaunter without any payment on his part, in consequence of his shewing you our letter of January 10th on the subject of a ■Tialf yearly account. He ought, however,, to have shewn you later letters cor- roborating our advices to yourselves to the effect that ho was to make payment to you, for which purpose the goods were consigned to you, "We should ex- plain that Mr. Gaunter is a stranger to us At the time of the letter of Jan- uary 10th ,our dispatches to him were but trifling, but when we found his or- ders increasing to sums of £50 and upwards, we deemed it prudent to consign the goods to you in the full expectation that, pursuant to oi;r advices, you would obtain payment prior to delivery. After this reaches you, pray act on this principle until further advices to the contrary." This letter, it is obvious, did' not alter the terms of the arrangement betweefa the plaintiff and Richardson and Co., and the former has denied on oath that he ever received any such letters as mentioned on the subject of payment on or prior to delivery. It does not refer to any specific letter, nor it does quote any 207 COURT or judicatdke. passage from any letter of their own or of the plajintiff, to shew their agents that the terms of January had been altered ; and I cannot but think that the real truth is that the instructions to demand payment wore, given, not because Richardson & Co. were entitled to it under the terms of their contract with the plaintiff, but merely because, as they say themselves, "they deemed it pru- dent to consign the goods to Brown and Co. in the expectation that they would obtain payment prior to delivery." I come to this conclusion partly because I have the plaintiff's oath that no alteration in the terms of the original bar- gain was made, and partly because, after having read all the letters and -papers whi<3h were put in, I have been unable to find any evidence or trace' of dealings' upon an altered footing. It is true, on the 14th of October 1860, there is a letter from Richardson and Co. enclosing a statement of account down to the 30th of June, in which they say, " we would beg to remind you of your promise to remit to us upon receipt of the goods supplied," and requesting a draft on London, or payment to the defendants; but according to the plaintiff there nev- er wg,s any such promise.^ Again, a few days later (October 26th) they write to him : " by the Southampton portion of the mail we sent you our statement of account and reminded you of the original proposal that you should remit the amount of each consignmentjjf goods on receipt of them". The departure from this has been the subject of some correspondence between us and Messrs. Brown & Co., and we refer to this as we observe that you have been looking for ac- counts from US; whereas every Invoice furnishes of itself an aoount pro tanto, against which we had anticipated remitjtances." If these passages are to, be understood as representing Messrs. Richardson & Go's, recollection of the ori- ginal proposal, it shews that their memory was in error, for the original proposal was, not that the amount of each consignment should be remitted on receipt of them, 'but that an account should be rendered half yearly, and that the plain- tiff should draw against it; that is, should remit the amount of each account on receipt of the account. If they are to be taken iis a proposal that the ori- ,ginal terms should be modified, there is no evidence that the plaintiff assented to it either expressly, or by adapting his subsequent dealings to itj All the evidence is the other way. Two accounts furnished by Richardson & Co. to the plaintiff are in evidence, one from January to the 30th June 1861, and an- other for the corresponding period in the following yeiir,.both stating in the en- graved heading •'■terms, discount for cash, interest after 12 months credit on half annual accounts, 5 per cent."; and both beginning with stating the balance of the account rendered up to the previous 31st of December. In April 1861, Richardson & Co. write to the plaintiff notifying the dispatch of goods specified in an Invoice annexed, but they do not ask for payment, or otherwise shew that they are dealing with the plaintiff on the footing of the letters of October 1860 ; and on the 29th September 1861, they send him a statement of account down to 30tb of the previous June, and request "the favour of an early remittance for the amount, and the continuance of your esteemed ftivours ". The last letter ever written to Mr. Gaunter by Richardson & Company, in September last, to which I shall 'have to refer presently, is substantially to the same effect. Then there is the fact-that diiring all the'dealings between the parties, the plaintiff never did pay for goods on delivery, and, as far as there is evidence before m« on the point, that Richardson & Co. demanded remittances not when advising the des- patch of goods, but on handing their half yearly accounts. Upon the whole> then, the conclusion to which I come, notwithstanding the letters of October 1860 and the letter to their agents of June 27, is that the dealings between the p. W. ISLAND OK rUNANH, 208 plaintiff and Riohardson & Co. continued tii bo regulated by the terms of the letter (if January 18G0, or to speak with more "precision, that the goods wliich were from time to time sold and delivered by the latter to the plaintiff, were sold upon the terms that they should be paid for, not upon delivery, but upon receipt by the plaintiff of Messrs. Richardson's account for them, which was to be fiirnish- cd half-yearly, and that payment was to be made by a remittance to the ven- dors in London. It may perhaps have been a' further term, also, — having re- gard to the headings of the accounts — that the plaintiff should be entitled to discount if he paid on delivery, and that Richardson it Co. should be ehtitled ta interest if he failed ti) pay within 12 months. I observe that the latter claim interest in their last account. It was suggested by the defendants in the bourse of the case that the plaintiff did not punctually perform his part of the contract — that he did not remit punc- tually or enough to cover tfie half yearly account. But I do not think this material. If the plaintiff made default in payment, it might be a very good reason for inducing Messrs Richardson to refuse to deal with him on the terms of credit ; and on receiving his order for the goods in question they might well have declined to execute it upon the footing of the old arrangement. But the question here is not whether they were justified as a matter of prudence, in so acting, but whether in point of fact they did so act, or whether they did not; as the plaintiff contends, act upon the old footing, and whether the goods now sued for were not sent in execution of his order upon that footing. If this be the true view of the case, Messrs. Richardson can have no right to exercise the species of stoppage in transitu which they have attempted. It appears that in January 1862, the plaintiff ordered of Richardson & Co. two casks of ale and one of porter ; and on th9 10th of June Richardson & Co. wrote advising him that the goods* specified in the Invoice annexed — the' goods in question in this action — had been forwarded by the Jtiventa, consigned to the care of Messrs. Brown & Co. and trusting that they would reach him at an early date. The heading of the Invoice is the same as that of the hfilf yearly accounts, except that a pen has been drawn through those words which I have mentioned as to discount and interest; but Richardson, & Co. neither demand payment, nor state that the goods are sent upon the terms of payment on deli- very, or any other terms whatever. The Jurenta, arrived here in the course of September , and the defendants, acting upon their instructions already men- tioned ; and also upon a letter from their principals, dated the 26th June 1862, directing them "on delivery to receive the price," refused to deliver the beer and porter except upon payment. The plaintiff in answer to this demand wrote to the defendants that he could not comply with it, '• as to do so would be con- trary to the conditions on which Messrs. R. & Co. agreed to do business with him'." He then went on to say; "If Messrs. Richardson's instructions to Messrs Brown & Co. are such as to compel them to refuse delivery of the goods fill they are paid for, they must remain with Messrs. Brown & Co. at the risk of Messrs. Richardson & Co., as Mr. Caunter disclaims all, further interest in them." This was oh the 24:th of September. On the 3rd of October, however his Solicitor wrote to the defendants claiming the goods under the terms of the letter of January 10th 1860 ; but the reply was that they could be delivered only upon payment, and that besides the plaintiff had disclaimed all further interest in the goods. However, a few days later, the plaintiff received a letter from Messrs. Richardson dated the 3rd of September 1862, enclosings a state- ment of account to the 30th of June adding simply ; " in submitting the same 209 COUllT OF JUniCATlIKK. for your approval and kind consideration, we would request the favour of an early remittance for the ammmt, vf}n& with the continuance of yoiu- esteemed favours, will greatly oblige " &o. The account included the articles in question, and charge'd interest down to the end of December next. Upon receipt of this ' letter the plaintiff again asked for the goods and was again refused them, upon which he brought the present action. The question now, is, what is the legal effect of all these facts. The terms on which the plaintiff and Richardson & Co. agreed to deal were, that the lat- ter iihould supply the plaintiff with goods and furnish him with an account half yearly, and that he, on receipt of every such account, should remit to them the amount. As I have already said, there is no evidence that those terms were ever altered, and I think that the letters of June and September 1862, are strong evidence that the goods in question were supplied on the original terms The ordir for the goods was sent upon those terms ; the goods sued for were set apart and specifically appropriated by Richardson & Co. for the plaintiff, as appears by the letter of the 10th of June ; and Richardson & Co. neither demand ■payment nor claim no lien for the unpaid purchase money. The effect of the order of January and the letter of June 10, then I apprehend was this : the plaintiff said, "send me beer within a reasonable time from the receipt of this order, to be paid for when I shall receive your account for the current half year"; and Richardson & Co', answered, "we have sent you certain specific casks upon those terms". In such a state of things, not only the property in the cask's but the right to the possession of them vested at once in the plaintiff. The case, however, has been somewhat complicated by the instructions sent to the defendants by Richardson & Co., directing them to deliver the goods only on payment. Reading the letter of June 10th by the light of those instruc- tions it might be contended that the letter was not a compliance with the plain- tiff's order, but dimply a notification that goods corresponding to those ordered had been forwarded, the terms for the purchase of which would be communica- ted by the defendants. The effect of the instructions and of the letter of June 10th might have been that, whether bound or not by the terms of, January 1860, Richardson A Co. refused to execute the plaintiff's order on those terms, "but they sent to Penang goods answering the description ordered, not in execu- tion of the or^er, but to be tendered to the plaintiff if he would take them on the terms of payment before delivery, it is not necessary however, to express any opi- nion whether this would have been the just view of the case, if the letter of June 10th had been the only letter to the plaintiff on the subject, for whatever doubtss might have existed are removed, it seems to me, by the letter of the 3rd of Septem- ber. For it appears from that letter that the casks which had been specified by , the letter of Jupe 10th and sent to the defendants, were ,sent in compliance with the terms of the order — the terms of January 1860. Nbt only it makes no reference to the instructions to the defendants, and set up no lien for the pur- chase money, but it is inconsistent with those instructions, and with the exis- . tenoe of any lien. It assumes that the goods have been delivered, and that they have not been paid for. The instructions to the defendants are, "receive payment on delivery;" while the letter of September says, "send an early remit- tance to us, Richardson & Co." I have no doubt, therefore, that the beer was sent upon the terms of the letter of January 1860, and that when the casks were appropriated to the execution of the order, not only the property but the right to the possession passed to him. The instructions to Messrs Brown & Co, are no doubt at variance with this view of the plaintiff's rights ; but they are 1'. W. ISLAND OU PKXA.NCJ. 210 not altogether irreoOnoilaljIe -with it. Richardson & Co, seem to have been desirous to continue on terms of corresjiondenoe with the plaintiff, but at the same time to protect themselves againsit loss. They, therefore, to avoid the risk of giving offence wrote to the plaintiff in effect, that they sent him the goods on credit, but at the sajne time they gave private instructions to thuir agents to obtain immediate payment. The plaintiff has insisted on his agreement ; the defendants have obeyed their orders ; 'and the present action has been the consequence.. There remains one point which was urged on behalf of the defendants. It was said that the plaintiff could not now sue for the goods, since he had ex- yiressly disclaimed all interest in thcun. But I do not understand the plaintiff's letter in which ho uses these expressions, as a refusal to accept goods which have been appropriated by Richardson & Co. to the execution of the contract between him and them, or as an attempt to rescind the contract. It seems, to me to mean merely, non hcec in fivdcni veiii, if the goods in your hands are de- liverable only on payment, they are not the goods for which I contracted, and I have no property in them, still le.^is any right to the possession of them. When that letter was written, the plaintiff had already received, it is true, the letter of June, informing him that the specific goods had been forwarded to him ; but still if they had been forwarded on terms different from those of his bargain, he was entitled to repucjiaie such terras, and to decline to receive the goods upon such terms. But he had not then received the letter of September, enclosing the half yearly account and asking for a remittance. Thai letter shewed that the goods had been sent according to the terms of his contract ; and he was bound ty take the articles if they corresponded to what he had ordered. In a word I think that the plaintiff's letter of September 24th was not a refusal to perform his contract or to take goods supplied in pursuance of it, but a repudiation of a contract into which he had not entered and which was being forced upon him in substitution of that into which he had, and a disclaimer of goods tendered upon other terms than those on which he had agreed to buy them. I see nothing, therefore, in that letter affecting his right to maintain the present action. Upon the whole, then, I think that the plaintiff is entitted to have the goods delivered to him. He ordered them on |terms of credit ; they were specifically set apart for him by Richardson & Co , and were sent upon thosCflterms. After this they could not, themselves, have withheld the goods from the plaintiff, and they cannot give their agents a more extensive authority than they possessed themselves. If they had, at the last moment, when handing their half yearly account claimed to detain the undelivered 'goods as the price had then become payable, it might have been a question whether they were not entitled to such a lien. But they made no such claim ; the claim which they made through their agents was payment before delivery and before furnishing the half yearly account, while in applying personally to the plaintiff all that they asked was the favour of an early remittance. Judgment for the plaintiff 211 COURT OF JUBICATURK Janum-y 19, 1863. Befoke SiK p. B. maxwell, Recorder Song Sam v. The Municipal Commissioners of P. "W. Island AND Li Chiang and another v. The aame. iT/te 'Police have no mitliorii/y to search and seize moneys^ found in a house where gambling is carried on otherwise than the moneys found in the room or •place where the gamhling was carried on. In an action for money had and received, it is no defence to say that defen- dant paid away the mcneij before he was calleA upon to refund it unless he re- ceived the mo ney merely as an agent for a third party and has made such pay- ment to that third party. The limitations given by the Conservancy Act apply to both actions of 4ort and ex contractu. , The plaintiff having been fined by tho Magistrate for gambling and all moneys seized in the ganibling house having been ordered by the Magistrate to be for- feited and paid to the defendants the plaintiff had srwh order quashed, and some- time thereafter brought an action against the defendants for money liadand re- ceived. ' Held that the ]imitnti(ms given by the Conservancy Act ran from the time of the receipt of the money by the defendants and iiat from the time the order of the Magistrate was quashed, as the action could have ' been brought before the quashing af the order and the Court cotdd have examined into the validity of such order as the Magistrate loho made such order was not a party to the action. A 2'^1'son is entitled to the privilege of such liinitation ordy when the action is for anything "done or intended to be done" nnder the Act, and a p>lea simply setting up siich limitation withoui stating that the action was "done en' intended to be done" under the Act, is bad on demAirrer. Semble — It imidd he even bad after verdict. 'J'hese two cases were tried la-t week. The facts iire sufficiently set forth in the jiidii-menf, to render a fuller report uiinece.ssary. Mr. Cm^pion nppeared for the plaimifFs ;' and Mr. Ait];cn for tlie. defftrulaiits. Thk Judge, — In lliese nction^ tlie defendants are sued for moneyg' liad and received to tlie nse of tlie plaintiffs, and they have pleaded ( 1 ) never iii'debied, and (2) tiiat the alleged causes of action did not accrue within iliree nionlhs. The fiicts proved were these: — On the niciiit of the 17tli of April last, certain Police officers en- tered the house No. 82 Beach street, under a gninbliiig; warrant, and found gambHtiji going on in a room oi- building situated at the reiir of the premises. They took into custody tlie persons found gaminjf, and also seized the gaming implements and the moneys found on the spot. After this ctipture, the Deputy Commissioner look the plaintiff Song Sam, who wasone of the persons apprehend- " ed, through the court-yard of the, house and along a passage, to the front shop, about a hundred yards from the i)lace where the gambling had been going on, and finding a wooden box there, as- p. W. I.'^I.AND OR PENANG. 2l2 keil whose it wii*. Song Sum siiici it, was liis; he proilnceii the kev of it, jiiul on being openerl, it wi\-< found to coiitiiin f)28 dollars unci some cents, in silver nnd copper. 'J lifre w:is iin iron cht^si in ihe Siiine ronni, whicii the phiimiflF Li Cliian-r -nys wus his, and con- tained hU and iiis co-plnintitf's moiie3'. Neither iit these men wem in the Iioush when the Police officer-; entered, or durinsr tlieir vi ^u-ip»^ct tluii it liiid ever been u>e(l foi- gaining or \v=ia destiiieil to be --fi u-'oil at. any siibsequeni time. But il, appeareil lo me upon ti;?! iiioi.ion lo quasli the oi'der,' and it, seems to me stilly ilial iliis coMsiriii'iion oF tlie Act i-; alt'ijj;etber erroneous, p.nrtly l.iecfiu-e the power to search all otlier ])artH of tlie premises is limited in terms lo training iii>trumeiii.«, and ihi'refore exidiides a power to seaicli f"r uioiipy, hill partly aL-iO, and chiefly, because the coiistriictioii in ques- tion would lead to''maniFestly unjust and, absurd consequences. '1'Iih money liable lo confi.scaiion is money "reasonably nuspncied to have beeii used or intended to he used I'or gaming;,'' but when, wliei'e, or by wiioni, is not mentioned. If, as I think, tile liej^islatuiH meant I lie BC'izure only of the money "then and there'' in use, such parti- culars were not necessary, for it is clear that the onlv properly wiiich would be taken would be that of the <;uiliy. The words '-then and there" are not used, it is true; but that I hev must, in reason and common sense, be intended, seems to me haidly uKire di^ be unjust and absurd, for it woulji in- volve in equal loss, the inui/cent and the guilty, and nothing- short of the plaii'iest necessities of grammatical con^irnotion ought to in- duce a Court to adopt it. It might perhaps be objecled that such cases could never arise, owing to tiie impossibility of ear-u)arkini; current coin, (thougli this would not apply to securities); but so far from any such objfciion b'^itij; suggested, it was contended ihat the jiiece-s of money found in the plaintiffs' boxes were "gambling mo- neys,'' as they were called, and had been properly condemned as such, because many of liiem were cut, bent, twisted and light; although it was admitted that there was not a scintilla of evidence as to when, where or by whom tliey had been used in gambling. In other words,' I was asked to hold that the fact that a dollar found in a gaming, liouse was light or bent, was evidence that it had once beeii won at play, and that it was confiscable, whether the game was lawful or liidawful, whether it had been played here or abioad, and whether by the present or any fornipr owner. I can but lepeat that, I would not impute such an inleniion to the Legis'lature unless tlipy expiessed it in language too plain to be mistaken ; and I thiidc that the lan- guage of the Act requires no such interpretation. A further argument niig-ht possibly be founded on the use of the words "fines and penalties'' only in the 29th Sect, of Act 27 and not also "forfeiture " (c.) Money tnken from an offender may be justly termed a "fine" or "penalty;" but neither term is .perhaps ap- plicable to the forfeiture of the property of a person charged with no offence, and not taken on account of any offence eommilled by him. But it is unnecessary to pursue this subject further. lalatod at Bome length the view what I took of it, when I quashed the order, and I shall now only add that I adhere to the opinion which I then expressed. This being so, the next question is whether it is any defence in law, that the money was paid away before action. Two cases were cited in support of that ])ropo8ition; but I think that they fail tO' establish it. They merely illustrate the general rule that it is not the collector or receiver of the money,, bijt the principal, or party ( c ) By Act 27 of 1856, Sec. 29, "all -fines and penalties, and all fees and poundage levied" by the Quarter Sessions or the Magistrate, as well as the tolls of public ferries, are payable into the Municipal fund. '. W. tSLAlSfD Oil I'KNANG. 216 for wlicim U lias heeu pnid, who slioiild hfi snel. TliRV woiil'l li:iVB l)Heii ill point il' tlie [)resent iictioiis had been broiijj'hl: against thi« Ma<«istr.itH 01' his cleik. One i>l '\Uo\i Atlee v. Backhouse 3 M. & W. 633, "'as an action against the Receivei' of the Excise Commis- sioners, to recover back money vvhich iiad been paid to him in hi-; official capacity, and vvhicii lie had paiii over to hi< principals, as it was his duty to-do, before he received notice of the plaintiff's claim. In the oilier, Hors/all v. Ra'ndleij, 8 Taunt. 136, the money had been received by the defendant as churchwarden, and had been luuuleil bv hio), in pnr-iiance of his duty anil also without notice, ii) tlio trustees oi a chapel. In both cases, the defendants were mere agents or receivers. The money never became their property. They had nothing to do with it, except to receive it for their princi)-)als and to pay it over to thei'n ; it jiassed from their hands in the same charac- ter as it came to them. But the Municipal C'ramis-ioners did nut receive this money as mere agents. It was paid into their Munici- pal fund, and applied by thera tis they might have applied any other part of their property. It is true, tliey are bound l)y law to dispose of their fund for certain pnhiic purposes; among others, for tlie pur- pose for which they employed these particular moneys, that is, in payment of the sum which the Governor deems requisite for the Po- lice force ; but that obligation dops not make the Municipal fu,iKl the pi'operty of thoHe who have claims upon ihem, and the Commis- sioners the mere treasurers of it for them; any more than the obliga- tion virhich ihe law imposes on a dtbtor to pay hl.s dubts, makes liini il trustee of any pai't of his property, for his creditors. The defence, therefore, when the facts ar^' examined, is not that they received the inoney as mere collectors, and that they have paid them over to the parties entitled ; but, that they have spent the money as a part of their own funds, in the discharge of their legal obligations. J3iit (his is no defence in law, any more than it would be in reason and justice. ( ci> ) The secontj plea sets np ihe Statute of Limitations. The 32nd Section of Act 25 of 1856 provides that actions against the Corjimis- sioners for any thing done or intended to be done under the powers of that Act or of Act 27, shall be brought within three months from the accrual of the cause of action. The present action was brought on the 18th of November, more than three months after the money was received by the defendants, but less than tliree rnonahs after the Magistrate's onler was quashed ; and two questions were raised on (a ) Swywdon vs. Davis 1 Taunt, 359, Parker v3. Bristol and Exeter B. C. 6 Exch 702. 707., Brooms Legal Maxims ( 3rd ed. ) p. 253., and Holland vs. Busseli^ L, J. Q B. ( N, S. ) 308. 217 ' COTJR'l- OF JUDt(;ATURE. tliis p:irf of tlii" CISC It wms eoiitHiifleil on b"lia1f of tlie pliiiiiiiffij iliiit tlie clause in qut^siion ap|ilie't tluii pi'opn.sjrion. Si'e- for iiisiance Kent v. The Great Western Raihcay Co. 3'C. B. 714, ami The Kennet and Avon Canal Navigation t. The Great Western Raihcay Co. 7 C. B. 824. 'J'lie diciuni to tlie contrary of Grose J. in Irviny v. Wilson 4 T. R. 435 « as overruled in Greenway v. Hard 4 T. R. 553, wliicli wn-; followed afterwards in Waterhouse v. Keen B. & C. 200, and I eoii>ider it ealablished that tlie enactment apjdii'S to acfton ex contractu, where, as here a tort is suhstanlially the sub- ject matter ol complaint. It was tlifen contended that I lie cau-e of action arose onlv wlien the ordiT, was qiisished, and Mr. Campion ciied Collins V. Rose bM.. ixu^ VV. 194 and passages in Mr. Ad- dison's book on 'I'oris, in support of thi.s proposiiion. But lllo^e authorities have in my o|>iiiii>n iio application to the question. They only establish that where there is a connnuina- wronjjfui act, as a false imprisonment, the party doin"; it is liable from the lime of its final completion, (a) But here there was no eontinniiif; nron;i(nl act. It was said that no action could have been brought till the order was quashed, but I am not of that opinion. If, indeed, l.lieaction had been against the Magistrate, and the order had been jiooil on the face of it, it would be fatal to the plaintiffs, because its valiility would not have been exaniitiable; owinir to the jjeneral rule that a matter of • fact adjudicated by a judicial officer cannot be pnt in issue in an action ajzainst ,him; Brittain v. Kinnaird I B. and B. 482, 'and Kemp V. Neville 31 Li. Cl\ 158. {h ) But. in an action against any other person, as for instance against the present defendants, the vali- dity of the order would have been examinable, and if the ordet had been set np in an action asiainst them, the plaintiff would have been entitled tb judgment on shewing that it was invalid. It seems to me, then, that the cause of action arose when the money was received by the defendants. It, became at that time money had and received by them to the use of the plaintiffs, and the time is computable from that period. But two other questions occurred to me with reference to this plea. I have had some doubt as to whWher the cause of action was "any- thing done or intended to be done" under the Act, havitij^ regard lo the circumstances under vvhich the money was received by, the defen- dants. It was delivered to them not as "a fine or ])enalty,'' or as • C ^) See Sandilands BMery & Co. vs. \The MwnAcipal Commissimvers of Penatig tried on 24th April 1872. ( 6 ) See Crepps vs. Burden Cowp. 640. S. C. Sm. L. C. 666 ( 6th ed)'ana Gilding\a. Syde LJ. OP. 174. F. W. ISLAND oil PKNANG. 218 'a fi'e 01' ponii(l;ige'' levied by tlie Miijjis'ratp, Uutasfi '" forfeiiuie ;" ii \va>i rt'cuive'l mIso, iioi «:im|ily for tlie "vdiiiHry., piirposes of tlip Conservancy Act'', but upon tlie spefinl condition of being rftnriied to the Majjistniie in ilie event of liis b^-inir ivqun-eil 'to ivfunii it ; nnti 1 think ir, clear tliat the defendiints, tliroujili their officer, had notice Of fill I ho circumstances chnneeted with the cotifiscuiion. How- ever, it is not necessary to express any opinion on this point, for it seems tome that the plea does not raise tlie question, and that con- seqaeiiiiy it is no answer to the nciion. Tlie plea .sa\s only that the cau-^e of action did not acciiie within three months, but this is no defence according to the general law of the land. The defetidants me entitled to the privilege of that short pifescription, only when the action is for anything 'ceiveil notice of action piiisii.uit to llicir Aci of I'av- liunieot which, emitled theiit to notice where tlie action was for soiiieihing done in pursuance of the Act ; and after trial and judg- ment in their favoiii- on that plea, the Court of Exchequer chamber levetsed the judgment on tl)e grontid that tlie plea did not »iaie ttiat the money sued for liiid been received in pursuance of the Act. The point is H technical one, no doubt ; and if it defeated the inttr- esls of>iubstantial justice, I should perhaps be able so to deal with it, so as to avoid tiiat consequence ; but it seems to me that in this ease it will promote, instead of defeating, those interests, to give lull eiFecf to it. When the only defence to a demand which seems to ine just isi I hat it accrued more than three nioinhs a^o, 1 do not Ihink I am called upon to defeat the demand by giving any a sisl- ance to that defence. There will be judgment for the plaintiffs. 219 couiiTOF judica.tuhe' AiJiil 15, 1863. Before Sir P. Benson Maxtteli., — Recorder. Mahomed Juso v. Khu Sek Chuan. If a lessee is in arrears of his rent andthe lessor' serves on him a natia^ to quit or to pay extra rent for the time he stays on the premises, and afterward! threatens to seizz and distrain if he does mt leave the premises, andthe lessee in complia/noe with these demands vohmtarily quits the prenlises, these drcvm,- stances will not amount to an eviction so as to entitle him to maintain an action against the lessor for breach of covenant in a lease for quiet enjoyment ; but stwJi circumstances amount to a leave and license hy the lessee to the lessor to enter on siKh Vremises which is an answer to the action. The Judge — The petition states that the defendant demised to the plain- tiff a piece of land with a house and ten shops thefeon, for two years from the first of June 1861^ and covenanted' that the plaintiff, paying the rent and per- forming his covenants, should quietly enjoy the demised premises ; and it alleires the plaintiff was evicted by the defendant in breach of that covenant, to his damage of 192 dollars. Plea : the general i,ssue. It appears that on the 15th of March 1861 two deeds in the Malay language were'exeouted by the plaintiff and the defendant. By one of ihem. ^the defen- dant demised to the plaintiff a piece of land with a house and ten shops, at the monthly rent, for the house, of two dollars, to commence from the day of the date of the deed, and for the shops, of six dollars, to begin on the 1st of June then next. The instrument provided also that if either party broke the agree- ment, he w.as to forfeit and pay 192 dollars. The shops were not, in fact,^ in existence at the time of this demise ; but by the vother deed, the plaintiff agreed to build aud complete by the 1st of Juiie 1861, the ten shops, of certain specified dimensions and materials, for the-., sum of 300 dollars, which the defendant covenanted to pay by ' instalments as the work proceeded. The plaintiff entered at once upon the land. , The shops were not completed at the time fixed, and in July, without iiny request, but also without objection from the plaintiff, the defendant sent workmen on the premises and spent 85 dollars on ^he erections. On the 20th September last, the plaintiff's rent being in arrear, the defendant sent him a notice "requiring bim to quit and deliver up, on the 20th of October next, the ' possession. of the hpuse (not the shops) with the appurtenances" which. he held from the defendant; and demanding in default a rent of six dollars a month in future while he held the premises. ' The plaintiff did not then give up posses^ sion ; on the 19th of November the defendant threatened that if he did not go •out, he would " seize and distrain ", and, a week later, the plaintiff left the pre- mises, and ceased to demand the rent from the under-tenants of the shops. There- upon the defendant entered into possession, and has ever since received the rents. The plaintiff, has now brought this action, contending that the defendant evic- ted him from the demised premises. But it seems 'to me that there has been no eviction, and no breach of the covenant for quiet enjoyment ; and that the plaintiff has fii.ijed to establish any case again.st the defendant. An eviction from premises is an expulsion from them. The expulsion, it is true, need not be by any actual vis major. It is enough, it has been said, jfthe tenant is wrongfully deprived of the use and enjoyment of th'e premises by any act of the landlord, which is intended to dijprivc him of it. Upton v. Townend 17. C. B. 30. In other words, the expulsion may be constructive as well as actual. Here r. W. ISJ.ANU OK i'E.NANG. '220 it was not pretended that there was actual expulsion, and I think'that a con- structive expulsion is not to be made out from .the circumstances. These con- sist of the notice requiring the plaintiif to deliver up the premises to the defen- dant, the subsequent .threat to distrain, and the plaintiff's withdrawal from the premises. The two former were not actually or constructively a trespass on the premises. The threat 'to distrain, even if the plaintiff was not then entitled, as he certainly was, to resort to that remedy for recovering the rent in arroar. would not have been such a threat as would vitiate any contract or transaction on the ground of duress. The plaintiff was not compelled to leave the premises in consequence of the demand or the threat. If he did so, then, he did it volanta- lily. The demand and the threat gave him no cause of action j and a man can- not by his own voluntary act convert into a good cause of action the act of another which is per se innocent. JThe plaintiff did not, indeed, give the key or other symbol of possession to the landlord, but he admits, and indeed asserts, that it was in consequence of, and'ln compliance with the demand, that he left the premises j and ttat the landlord was justified, it seems to me, in so regarding his tenant's departure, and in entering upon the promises. In fact, theti, there was a de- mand of possession on the one side, and a compliance with that demand, with- out protest or other expression of disapproval, on the other ; and the defendant's entry under such circumstances, whatever its effect in other respects, was not, in my opinion, an eviction of the pla,intiff. There are two cases, however, which seem at first sight to support a different opinion. In one of them. Burn v. Phelps 1 Stark N. P. C. 94, the tenant un- derlet the premises in various lots to under-tenants ; the landlord (the plaintiff) gave them all notice to quit, and one of them actually did so. In an actiop by the landlord agauist the tenan t for arrears of rent. Lord EUenbrough "was of opinion ", says the report, " that the plaintiff was guilty of an eviction as to the premises occuip^d by |he under-ten,ant, and suggested that an eviction might have been pleaded to the whole demand ". If the person who had left had been the tenant, or if the action had been by the under-tet^iint for an eviction, this case would have been an important authority for the plaintiff; but what Lord EUenbrough decided was. not that the under-tenant had been evicted, and could have maintained an action for the eviction, but that the landlord's notice, fol- lowed by the under-tenant's quitting, amounted, together to an eviction of the tenant. It was unquestionably " an act of permanent character' done by the. landlord in order to deprive, and which had the effect of depriving the tenant of the use of the thing demised "( 17 0. B. 72 )," in the manner in which he was actually using it, and therefore constructively an expulsion of the tenant. Whe- ther the un^er-tenant left voluntarily or not was immaterial; but what distin- guishes that case from the present is, that there the party held to have been evic- ted, viz. the tenant, was not a consenting party, as he was here ; and the maxim volenti nonfit injuria was inapplicable. In the other case. Hall v. Burgess, 5 B. & C. 332, the tenant (from year to year) left the demised premises at the end of the current year, without having given the requisite notice to determiua his tenancy, and sent the key of the house to the landlord's agent, who at first refused to accept it ; but in the course of the next half year he l.^t the premises to another person and afterwards the first tenant was sued for use and occu- pation for the period between his leaving the promises, and their being again let. It was held, as was manifest, that the action could not be maintained: Mr. Justice Bayley and Mr. Justice Littledale rested their decisions on the obvious ground that the rent was not api.ortionable, that the lan.dlord could not have 221 COtJHT OF JtlDl'CAl'URK, sued for the whole half year, as he could not have avei'red that he hail allowed' or was willing to allow the defendant to occupy during tiie whole of tha,t period. But Mr. Justice Holroyd considered that the subsequent4etting was an eviction of the tenant, and that such eviction might have been pleaded in bar. He did not say that the tenant could have brought an action against the landlord for the eviction, for the question did not a.lit this action to recover dauiiiges for- tlie loss of it, and the question is whetlier any such action lie.'?. His petition .states that the hi,iffiiIo lielonged to the fii'St and second defendants, and that it was uniler the care, <;"vernnient and direction of the third, who " so negliyentX ly and iinprojierly looked after it, as lo allow it to go about unat- teniied and without any guard upon its horn'), whereby it entered the plaintiff's compound and gored liis pony," &c. This statement was not supported by the evidence, for the animal was not " under the care, government and divection'' of the third defendant at the time of the accident. Those words would have been applicable if the defendant had been driving the buffalo at the time, and hroperiy allow tlie ImfFiilo to ^1) nbiiut uiiattfimleil siiiil willuiut any gund u|)on its liuriH." Noaciiial upj;lij^(Mice was [irovctl. The aniirial was se- cured al 8i A. M. in fhe field ; the accidriit oci-urred fit lOJ A. M. ; but how tliH animal yot loose, whether from csireles'iiess in the tftaiuHT of securing it, or by the uiiscliievous act of "ome |ipr ment and the notes hi Card v. Case 5 C. B. 627; -and some may think that the limitation on the owner's liability which exi.st> with u-i is hard n l>on. the aulf'iirers ; but this is not a question to be discus'ied hero. 'l"he law as I have jusi siaied it, was eslabli^hed at a very early perioil ; as early as the 28th of Henry VIII, "It was agreed by Fiizherbert and Shelley that if a man have a dog which lias killed sheep, the master of the dog being ignorant of such quality and ])roperty of the dog, the master shall not be punisiied for, that kil- ling; otherwise it is, if he have notice of the quality of the dog.'' I Dyer 25 pi. 162; and liie sailie law was laid down by the House of Lords in a recent case as the law of Scotland. In that case (Flem- ing V. Orr, 2 Macqueen's Lep.) the owner of a dog which h\id kiiled 18 sheep was iield not liable (reversing the decision ofihe Scotch Coiirtj as there was no evidence that he was aware of the vicious propensity of the animal. In J/Ii'son v. Keeling, I Lord Rayan, 606, (decided in the reign of William III) the declaration stated that the defendimt kept a very ferocious mastiiF aiul suffered it to ^0 abroad unmuzzled and the dog, from the want of proper care of I he defendant, attacked the plaintiff and bit him; and the' action was held not to lie, as it was not alleged that the owner knew its vicious habit. This case, I may' remark in passing, closely re- sembles the preseul; in the one, the defendant being char"ed with negligence in allowing a ferocious dog to go aliroad unmuzzled, in the other, with suffering a buffah) to go about without a guard on its liorns. In Hudson v. Roberts 6 Ex. 697, where the plaiutiif recov- ered for an injury done to him by a bull which was being driven along the highway by its owner, the decision turned on the fact that the defendant knew tlie darngerous character of his bull. lu' the t. W. ISLAlMD OK PKNANG. 226 (^■i(-' of ILimiiiiiek v Wliiie tilre.vly quoted, tlie Common Plefts lidd that ;i mm ridlnij; a viciiuig hor-^e in a public afreet wns not livl>le fi'i' an injury ilone by tlie liorse, as it was not sliewn tliat lie knftvv the horse to be vicious. AiiJ in a case deciiled last Jii,iiuai-y by tlie Cijiiit of Common Pleas, an aciioti against the owner of a lior-e which hid strayed into a road vTliei'e a child was playing, and had kicked the child, was lield not to lie, though negli^rence and impro- )ier care of I he lior-e was alleged, as it was not alleged or proved I liat tlip-'owner knew that his iiorse was given to kicking. Cox v. ]>iii-hidge'32 L. J. CP. 89. In the CHse before me, there was no evidence that the bufif.do was known to its owner to be vicious, luit tlie reverse apjieared to be ihe case. Both the owner and his servant Riiid Ihat ihpy had it upwards of a year, that during that tinio it \Va< frpquenliy tied in I be coui-t-yani of the Oovornnient OtKoes, where there was say .that 1 u-^e these expressions in tiie learned pen^e in which they "ere' used bv the same judg-e whose languaj^e I have quoted; and if it be contend- ed lhat.il is in the ordinary eour.« now added. There must be judgment for the defendants, (a) (a) See Lee vs. .Riley, 18 CB. N. S. 723. Notes by the Eolilor of the Penang Gazette. lingular questions sometimes arise upon the liability of the owners of ani- mals for injuries done, by- them, and the reasons given by the judges for their deeisions in these oases are often still mora singular, and savour more of so- phistry than dommon sense. , With regard to wild animals, such as lions or bears, the owner is liable to any injury. done by them while in his keeping, without any proof of their fero- city, because he must be taken to have known it CBex v. Huggins, 2 Ld. Raym. 1583). ' According to the Roman law, if a wild beast escaped, the person who kept him would not be liable for any damage he mighi do after his escape, because Such person had ceased to be the owner. " Si ursus fugit ett sic noouit,' non potest quondam dominus oonveniri ■ quia dcsinit dominus esse, ubi fera evasit." (Dig., lib. 9, tit. 1, s. 10). By the English law, however, according to Lord p. W. ISLA>'n OH'PENANG. 228 Hale, the owner of Bueh wild boast would be liable for any injury done by it, , "as was adjudged in Aiuireiv Baker's case whose child was bit by a monkey that broke liis, chain, and got loose." (1 Hale's P. 0. 430, part 1, c. 33). There is, however, a marked distinction between wild beasts, and animals which are domesticated — mansuetse naturae. In the case of a dog. bull. ox. ram, and such like animals, if they do an injury to any one, the owner will not be answerable for it in an aqoount for damages, unless it be shewn that lie was aware of their vicious pi-opensities. Thus, if a bull passing along a highway gores a man, the onus of shewing that the owner knew the dangerous character of the' animal liep on the injured party; and if he does not prove such know- ledge, he will be unable to recover any damages. Hudson v. Roberts, 6 Ex'ch. 697). So, if a dog injures a man or sheep by biting them, the owner will not be liable, unless it be shewn that he knew the dog's propensity for biting. {Mason v. Keeling, 1 Ld. Eaym 606). Where, however, it is proved the own- er was aware of the savage disposition of the animal he kept, it cannot be objectec'i that it escapsd and went at large without any default on the part of the own- er, because he is bound to keep it secure to all, events, (ikfai/ v. Burdett. 9 Q. ?• 113 ; Smiih V. Pelah, 2 Str. 1264, ) • '' ' The law with regard to horses appears to be the same. In the recent case of Cox V. Bii/rbidge (9 Jar., N. S., part 1, p. 970), ahorse strayed on the high road, where he kicked a child who was lawfully upon the highway ; it was held by the Court of Common Pleas, that even assuming the horse was a trespasser, no action would lie against the owner even although the horse strayed through hi.s negligence, unless it were proved that the horse was likely to commit such act. The principle upon which the judgment proceeds is, that the owner of the horse was liable only for such acts as a straying - horse was likely to com- mit. Hence the learned Chief Justice in giving judgment, says, "The owner of a horse is bound to know, and must in all cases be taken to know, that a horse is by nature hkely to stray, if not carefully confined, and to walk into a pasture and consume the grass. For this, therefore, the owner is held lia- ble." " But," adds his Lordship, " if a horse does an act. which it is not in the ordinary nature of a horse to do, and which no owner would, therefore without knowing his peculiarly vicious nature, have any reason to calculate on his doing , then he has the same protection as the owner of a dog. It is not in the ordinary course of the nature bf a horse to kick a child, and, therefore, the owner is not liable, unless he is proved to be aware of the tendency of the horse to commit acts of that kind." Now, we should have thought, before reading his Lordship's judgment,, that the reason why the owner of a horse is liable for the damage occasioned by it consuming the grass of his neighbour, is, that such owner is liable for acts of the horse by which he derives a benefit. , With respect to the point actually decided by the Court we can readily con- ■ eeive, that if the child had been a trespasser, and had gone into the field where the horse was kept, the owner ought not, according to previous decisions, to have been liable for the injury occasioned to the child. But we think that his Lordship goes rather too far when he assumes that a hQrse that strays , on a public road is not likely to commit acts endangering the public safety. The case does not appear materially to differ from Lynch v. Nwrdm (1 Q. B. 29 ; 3 Jur. 797) and Illidge v, Qoodwm ( 5 Car. & P, 190 ), in each of which cases the owner 6f a horse and cart, who negligently left them unattended in the street, was held liable for the injury, done tbei-eby. In those cases, indeed. 229 COURT OF JUDKMTITRE. negligence was proved ; in the case now under disouasion no such proof was given, but the learned judge in his judgment assumed it to be capable of proof, or proved. Now. if we asvsume that a horse and cart, left in a road negligently, are likely to be dangerous, and tliat. therefore the owner is liable for the injury that may be occasioned by such cart and horse, why are we not to arrive at the same conclusion with regard to a horse unattached to a cart allowed negligent^ ly to stray upon a public road P Whether the necessity of proving the mischievous propensity of domesticated/ animals, as a condition pi-eoedent to obtaining damages for acts done by them, proceeds, upon a correct principle, may well be doubted. The proof in most cases is difficult, in some cases almost impossible, even where the owner may have been himself well aware of the vicious character of tlie animal, Notwithstanding , therefore, the decision upon this subject have laid down the distinction so clearl? between the liability of the owner of wild and domes- ticated animals for any injury done by them, we think tjhe rule would be much more just if in the case of all animals, without distinction as to their character,^ and without the necessity in the case of domesticated animals of any proof that their ferocity was known, that the owner should be liable for all injuries caused by their acts, provided that they were not occasioned by any fault on the part of the person injured. July 22, 1863. Bi'foi-H the Hon. Sir P Bejison Maxwkli., — Recorder. ■ Sclimiilt .iml others v. Sp.ilin. An acirtpment noi to establish a person's self in ''Penang or Singapore, or i,i enter into any other business ei;isting in those places, as clerk or partner with- in tiijo years loithout tlte special consent of the plaintiffs," is reasonable mid qood, and not void as being not general and extensive. The words "any o- tlier busine!'S," bea/ring in mind what the parties to the contract are and whfd . are the surrounding circumstance s at the time, mean siwh business as both par- ties arc, or intend to be, engaged in. ; If an infant enters into a contract abroad, the law ( as to majority J of the country where the contract was made, must govern the contract, and xahat that lay) is; must be given in evideiKe as a fact. The object of this suit Hnd the oircumstanees which gave ris^e to it will np|ifiai- sufficienily from the judiiment. i>/;-. ^*7/i:e« appesired for the pUiintiffs, siiid Mr. Campion U>r tlie ee, in hi* bn-^iiiess, or ollier"ise iicling in violalidn of uri ngrecnienl. eiuercd into by him not to Ciitc-ir into business or act as ch^rk or partner. It api)ears from the Bill and answer that the )ili.iniiffs ctuMyiiig- on busiue'ss in Piiiano- iind Singapore as niei-- chfints and factov.s, en.giifred the'defendant in Switzerland, in May 1859, as tiieii- clerk for three years to he computed from iiis arrival in Penan"- ; and the sontraot, which was i'u German, contained a VV. Itil.ANJ) (IR I'KJN'AAG. 230 Ptiu|(uliii.ioii to the following' effect : "After tlii' ex|)ir,uioti of. tlli•^ fi.uH ( ihe tlice« ypars ) Mr. [leiiry Sj)hIui i. cnlirely five fr..ni ii'm fiiji-iiremtiii ; iifveri lieless he is iiiiiUT iha obHgatiou noi to esiiiblisli liiiDseir ill PHii.-iiig or Siii^'apore, or eiiler iiiio any ' otlief IjiiMiiess exi-;iin>>- in tlie two uatned places (in eln aiiilere^ atif dieseii piiitzHii bi'steliendes liesfhiift ) as clerk or partnei- wiiliin two veais tiiiiiout vlie special consent of tlie plKimiffs.'' T!ie defeudnnt arrived liei^s ill September 1859, and fulfilled his enga>>enient for tlie tliree years, wliicli expired in September last ; and during- tliat time, as lie adniiis, he acquired a full knowledge of the plaintiff,' business as <>enera1 merchants and factors; he had free access to iheir coires- pondeiice, books, aecouni.s and 6ther i)aper8, and acquired a know- ledge of the tasleu of native purchasers in res]iect to the wares dealt in. He then left iliem, and, in ihe term'i of Ids answer, " on the 1st of January last became associated with Mr; J. J. Ventre, a inerchant and factor carrying- on business in Peiuvnji," and he has since tliat tinTe b^en employed in Mr. Venlra's couniing house, at- lending there daily, vvritinu; letters and making sales, :is a clerk or partner would do. He admits also ilnifc he lias " written to mer- chants and manufacturers in Europe, some of whom send goods to the plaintiffs for sale, requesting them to consign goods " to Mr. Venire's house; adding that he was " aeqwainted with most 'and . the principal " of them before he left Europe. ^ It is clear, upun these admissions, that the defendant has broken his contract; and indeed this was n jt disputed. His defence con- si-ted of two points; first, that the stipulation in question was void on the ground tliat it was an unreasonable resuaint of trade and without consideration ; and secondly, that he was an infant when he signed the contract. With respect to the first, I consider that the rule of law to b6 gathered from the numerous decisions on agreements of this nature is that a contract in general restraint of trade is void ; and a con- tract in partial restraint is also void, unless it be reasontvble. To be reasonable, tlie contract must be made for some consideration ; and the restraint must not be wider than is necessary to afford a fair protection to the interests of the person in whose favor the eon tract is made. If the restraint is wider than' is neco9sai-y for that purpose, and the excess is in its nature separable, it may be se- parated, and the residue is valid. If it is not separable, the excess vitiates the whole ; and the contract not being necessary to the one side and being oppressive to the other, is regarded as mischievous to the public and is tlierefore void; Somer v. Grmes 7 Bing. 743, Mito/iel v. Beynolds 1 P. Wms. 181, 1 Sm. L. C. But when the 281 COUJt'f OF JIIHltAl'OKE. restruint is imfc widtM" tluui U iiecefsaiw, the contract, so f.n'' froin* heiiij/ I'egaTileil as Injui'ioiis, is consiiii-reil liiglily bsiieficiiil both to tlip parties iind to the public. As it, has bneii weil pointed out, it is jidvHiitKgeoiis to the employer to obtain the sei'vices of an iniel- liuent and useful cleik. or assi-^taut with the security and that he vill not become iii.i rival after he has learnec] his "business, and has become acquainted «itli the customers and connections of his em- jdoyer. It; is advantageous to the clerk, as he might not - on other terms obtain employment; for as Erie G. J. said in a recent case, " if such apreemeots were discouraged, employers would be extremely scrupulous as to engaging servants in a confidential ca- pacity '' ; and merchants in the position of the plaintiffs uoiild finil it to consist better nith tlieir interests to employ natives of India or China as their clerk«, than to go to Switzerland for one. And it is advanlajieous to the public as promoting the interests df trade. See the judgment of the Court of TExchequer in Mallan v. May, 11 M. & VV. 653, and of Erie C. J. in Mumford v. Oemng, 29 X. J. C. P. As to the consideration, though it veas formerly held that a con- tract of this kind could not be supported unless there was a sub- stantial Consideration for it, adequate to the restraint ; it is novi^ es- tablislied, at law, that the Court will not inquire into the adequacy or extent of consideration, HjfcAcoc/c v. Caker 6 A. & ,E. 439, Archer v. Marsh Id. 966, Leighton v. Wales 3 M. & W. 545, Pil- kington V. Seott \5M.. &, W. 657. Any consideration, however nominal or colours^ble, is enough ; and if any is necessary, contrary to tlie general rule, where the contract is by deed, \t is in order to satisfy the rule that the agreement, should be reasonable, whicii it would not be, in law, if it were wholly without consideration, though the amoiint or adequacy of the consideration is a matter for the exclusive determination of the parties and not of the Court, ( Mallan v. May, Archer v. Marsh ). A Court of Equity, indeed, would be more influenced by this circumstance, because, in the ex- ercise of the discretion which it assumes in dealing with such sub- jects, it might decline to enforce tlie contract, as it declines .to en- force all other kinds of contracts, when it deems them hard and unconncienlious. See for instance,- JKmJcWey v. Jennings 6 Sim. 340, Falcke v. Gray 29 L. J. Ch. -28, Tildesley v. Clarkson. 31 L. J. Ch. 362. In this case, however, the question of consideration cjinnot be said to arise; because, though so.ine observatioiis were made inthe course of the argument, as to the inadequacy of the salary, I am clearly of ofiiiiion that even if those otservations were well founded, p. W. ISLAND OK PKJSTANG. 232 there is quite con'sideration enpugh to sii|)port the in-oinise on the face of tlie contract. Tlie more important question is whelher the restraint is or in not greater tlian is reasonably necessary for the ju'^t protection of the phiintifFs; and I have, after sonle consideration come to the conclusion that it is not. No objection was made to it on the ground of being too general, in respect eiilier of the space or of the time to which the restrictions applied ; but the restraint was said lo be too general on' the ground that it extended to pursuits in life entirely foreign to those of the plaintiffs. It 'was on this ac- L'ount, it was contended, wider than their interests reasonably j'e- quired, and therefore was void. The restraint certainly ai)pears at first sight very extensive ; it is " not to establish himself in Pinang or Singapore, or enter into any other business existing in those phi- ' ces, as clerk or partner!" This, it was said by the defendant's ad- vocate, would exclmle him from every calling and pursuit, from agriculture, for instance, as well as trade, the word "business" be- ing wide enough to embrace bglli. But it is plain that ihis was not the sense in which the term was used or unrnercliaiit for the services of the former provides that the clerk shall not enter into any other business at the end of his engagement, it is absurd to suppose that they referred lo or thought pf any other business tlinii mercantile business. And this is the sense in which I think tlie word is to be understood in tiiis agreement, 'J'here still remains the question, however, whether an engagement not lo carry on any "mercantile business" for two years in Penang and Singapore is too wide a restriction. On this point I have had some doubt; but the cB,se oi Avery V. La ngford, 23 L. J. Ch. 837 ; w'hicli was jiot referred to on either side, seems to me to be very inuch in point. There, the pit. and deft, carried on the business of general mer- chants in a country town in Cornwall, and the deft, on selling hid buiiness to the jdt. agreed to bemnderatood by the parties. In coii- slraing an agreement it is necessary iq bear in mind what the j)nrtie8 lo it are, and whut were the surrounding circumstances at the time; and when a contract between a mercham's clerk and a merchant to enter into a- bond conditioned to pay the pit. 20001 , if he, the deft,, should, afteii a certain day, be concerned "in any traii- tract should be in writing; and it was admitted that there was no writing. It i-^ unnecessary, therefore, to consider whether the mere continuance in the employment and the receipt of the salary would at common law have been a ratification of every part of the contract. The question, however, as I have saiil, of the defendant's capacity to enter into this agreement is not to be determined by our law, but by that of a foreij^n Slate, and I have had no evidetice as to what that lawis. The defendant ^is a native of tlie Canton of Schaflliausen and was domiciled there at the lime of the cotiiract; ^but the contract was signed by him at Niederuzwyl in the Canton of St. Gall. Evidence was j^iven to slieyv that hy the law of thel'oim- er Canton, 21 is the age of majority; but I could get none, as i;o whether tlve contract was valiil according to I lie law of St. Gall yet it; is by this law as it seems to me, that tiie question must be goveiii- ed. The law of the defenilant's domicile determines his capacity as to all conlraets executed tlrere; but with respect to contracts entered into by h'im elsewhere, — it is establi-^lied by our law that the law of the place where the contract was made determines capacity, at #1. Story Confl. L. sects. 101, 130. Thus, if a person who is a minor in his own country till 25, enters into a contract here,^the coniract at 21 is binding on him. In Male v. Roberts 3 Es p. 163, an Eng- lislinian was sued upon a contract entered into in Scotland, and he pleaded infancy. Lord Eldon held that the question was whether he was an infant by the Scotch law. "What th"? law of Scotlatid,"' he said, "is with respect to the right of recovering against an infant for necessaries, I cannot say ; but if the law of Scotland is, that such a contract as the present could not be enforced against an infant that should have been giren in evidence ; and I hold myself not war- ranted in saying that such a contract is void by the law of Scotland, because it is void by the law of England. The law of the country where the coniract arose, iiiitst govern the contract; and what tliat ( a ) 9 Geo IV. o. 14. extended to India 4 the Straits by Indian Act 14 of l840. 235 COUKT OF JUDICATURE. i«, should be given in evidence to me ^is a fact. No such evidence has IJeen given ; and I cannot take the fact of wlial," that law is, without evidence. I therefore think that the second ground of defence has not been established; And that the pits, are pniitled to the injunction for which they pray. As, however, the deft, appears to have been under an entile misapprehension on the question by what, law the plea of infancy was to be determined, I think under the .peculiar circum- stances, — although such a plea ia little entitled to favor — that if he should find himself within the next four or five months — abundant time to enable him to write to and hear from Europe — in a position to establish clearly that the contract would not be binding on him according to the law of the Canton of St. Gall, I ought not to refuse to re-hear the case, (h) (h) Leave to have the case re-heard was applied for on the 6th of Jan- uary 1864, by Mr, Campion, but was refused by the Judge on the ground that the time accorded' to him had past — see Harms vs. Parsons 32 L, J. oh. 247„ Ehis vs. Crofts 10 C. B. 241. 22nd June 1864". BEFbEE SIR P. Bbnson Maxwbll, Recorder. Khouse Miah Malim vs. Anamahh Chetty. To support the count for use and occupation there must be a contract between the parties, express or implied. ^ An action of trespass for mesne profits cannot be sustained if the plaintiff has . not entered on the premises. The Judge. In tliis case, the defendant took a house frpm the plaintiff's tes- tator, for one year from the 1st of March 1859, at the rent of 125 dollars. Be- fore th^ term expired the testator died in India. Abdul Kadir Marican, who had been his agent in his life time, while yet ignorant of the death, agreed as such argent, with the defendant and the defendant agreed with him that thet tenancy should continue from month to mqnth at the same rent ; bu hearing soon after that the testator was 'dead, the defendant refused to. pay rent to Abdul Kadir Marican, who sued him in his own name in the Court of Requests for $ 31.24, being three months'rent. The de- fendant set up the testator's death, and the Commissioner of the Court, of Bequests decided that Abdul Kadir Marican was not entitled to recover ; but he also went on to order that the., defendant should pay into Court the $31. 24 sued for, and further should pay monthly into Court the sum which he, had agreed with AbdVil Kadir to pay as rent, until further orders , that is, I sup- pose, until some body came and established his title to the premises to the Com- missioner's satisfaction . The defendant paid altogether $ 89. 'TO cents under this order, and he expended in necessary repairs $ 7. 50. He continued in possession till 23rd of April 1861, and tTien left the -house and went to India. He return- ed last August, and lodged for 7 or 8 days in the same house, which was th^n occupied by other persons ; but it did not appear that they ocbupied as, his ten- ants or servants. Tlie plaintiff is the executor of the testator ; he proved the Will in this Court in May 1863, after which he applied to the Commissioner of V. W. ISLAND OK FKNANG. 236 the Court of Requests fov the mpney paid- into that Court by the defendant, and it was paid to him. He then brought tliis action for the use and oocupa- , ^tion of the premises, or for the profits of them, down to the present time. He has not yet entered upon the premises, or recovered judgment in ejectment for them. To support the count for use and occupation tliere must be a contract be- tween the parties, express or impUed. ( a ) The question is wliether any can be collected from the aboye facts. 1 think not. When the agreement to coribinue the tenancy was made, at the expiration of the original term, Abdul Kadir Ma- rican acted as the agent of the testator ; but he was not his agent, for his au- thority had been revoked by the testator's death. There was therefore, no con- tract between the testator and the defendant nor was there any between tl^e plaintiff and the defendant. The contract with Abdul Kadir Marican was not made in the name or behalf of the plaintiff, and he therefore cannot claim the benefit of it, or give it validity by ratification. Nor can any contract between him and the defendant be implied from the order of the Com- missioner of the Court of Requests and the payments made into the Court. Without considering the general nature of an order in a suit between A & B, which not only dismisses A's claim, but orders B to pay the amount sued for into Court, for the benefit, it must be presumed, of some other person, known or unknown, who may afterwards establish a right to it, it is enough to say that the Commissioner was not the agent of that person to let his house, and that even if he had been, no contract could be inferred from liis order to pay what he called rept, monthly, into Court, and from the defendant's compliance with such order. But if tliere was no fresh contract after the expiration of the terra for a year, the plaintiff, on its expiration, had a right to enter, for the reversion was then vested in him, and the defendant became a tenant by suf- ferance, that is, one who "at the first came by lawful demise, and after his es- tate ended, contin'ueth in possession, and wrongfully holdeth over " Co. Litt 57b. But it is of the essence of this tenancy that it is not founded in contract. If it were, the possession would not be " wrongful," if it were with the assent of the reversioner, it would be a tenancy at will at least, and not a tenancy by suf- ferance. There being no contract, then, express or implied, the count for use and occupation cannot be maintained. Tjie only other question is whether the plaintiff can recover on the count in trespass, for the profits while the defendant was inoccupation of the .premises. But here, again, he must fail, because he has not entered on the premises. Co. Litt. ubi sup. Adams Ej. 342, i The result is that the judgment must be for the defendant. raj\ See 5 Ex, 5&3. 19 LJ. : Ex. 318. 22 LJ. CP. 219. '• 237 COURT OF JXJDlOATORE ■- 15(h June 1864. , Before Sir Bexson Maxwell, — -Recorder. Khu Teen v. Shiramaleh Marican. If a jettison nf cargo becomes necessary in cotisequeiice of any fault or breach of contract on the part of the owner or master, such as the vessel being in an un- senworthy condition, such jettison, is attributable to that fault or breach of con- tract, oAid noi to sea peril, though that also may be 2Jresent and enter into the case, and the owner or rnaster must bear such loss. If a cargo on board is damaged in a stwm by the negligence of the muster or creiv in storing or Iceeping by the sa'une, such as the luitches not being properly secured such loss or damage falls on the WMster or owner. ' The Judse.— This action ia brought .against the Master of a brig for not delivering a quantity of rice to the plaintiff, and for delivering another quantity in a damaged state. The defence is that the default -was owing to perils ex- cepted in the bill of lading, viz : dangers and accidents of the seas, ko. The evidence in support of this plea proved that the brig, which Iftid left Rangoon for this port on the 1st of November last, encountered a gale on the 4th and 5th, and that part of the plaintiff's rice was thrown i<.t b^ made of ■walls 01 houses not to be , ', i ■ ij 1,1 made ,of combustible gva-s. leaves, mat- or other snch ittfl.imtnable materials. materials; and it shall not be la"iul tor the owner of any hul or other bnilding in or near any street now liavint; an external roof or wall rande of any such material, and whtth is conrifiiions to or adjoining to any othei- biiild- in;r, toi snffe;' such, roof or wall to remaiit for n longer time than two years after the |ias^in^' of thin Act. unless wjth the consent in wriiinjif of the Coiiimissioners ; and whoever makes at\y external roof or wall of such materials, or suffei s any roofer wall made of suck materials to continue contrary to the provisions herein contained, and who slwll not remove or alter the snme within one inonih after notice given to him f(>rth;rt purpo-e by the Commissioners, shall be liable to a, ])enalty not ex?eedini; ten rujiees for every day that such roof or wall shall I'onlinne. " Mr. Rodyk, in tnovinir for \\\e cprliorari, contended that the con- viction was liad for not showiitt; that the house of the defendarit had been eriected since the Consjervancy Act came in'lo operation, or that it was eoniignona to or adjoining- another building. In sn])port of this view, he cited a caseofiZeg'. v. Mira Lehby, decided in this Court by the present Jnd^e in Se|iteinbi^r 1857 (See the Penang Ga- zette of the 30tli of September, in that yearj. The conviction wa.s returned with the depositions; but it did not Mppear upon the latter whether the house had beeii built before or pince the passing of the Conservancy Act of 1858, or whether it was contiguous lo another house or not. The question raised by the proceeding was whether the owner of a detached house situated within the town, aiul in existefrce when the Conservancy Act was passed, was, since that Act, at liberty to put a roof of attap, or iii- ftatnniable materials on his house. Mr. Plunket, the Magistrate, shewed cause against quashing the conviction, and contended that the 36tb Section ol the Act prohibit- ed the cotislruetion of a new roof or wall of infliainmable materials, whether the house was built before or after the passing of the Acl; and whether adjnceiil to other houses or not. The Judge. -=-The object and scope of the whole section r. W. TWI.ANn OK I'KNAN'G, 242 S''«mj to HIP tfi be, till-'. Tlie Leiiislurure fle-iired lo prpsi'rv« tfiMni* from the (latiuer of fire arising from oi)ilections of iidfc.-i iiud oiiior biiildiiiirs coMstnictfd, a-* tlim' ^'iierallv are in tlinse ccnniti'ie>, ol grn-i-i, leaves and other such corabuf til ile miitpriiils. In deal lug with t'.ie suhj'^ct, it hiid to coii-^ider tvvo clas-es of property, viz: Inits and biiildinifs whio.h slioiild be erecied afier the paw'-ini of I he Act, ami huts and buildings already in exi-lencn. As to the foirnpr, ihei't) was no difficultvin simply and peremptorily |iroliiiiitini>- the ccinslrni-- t'on of any, with gras- or other dangerous inaieriids. As to the lai'- ter, ii was to be ^jatliered from the huiguaue, what mi^bt 'aliuosi bn ])i-esunied a priori, ih.it ihe LegislaLure, while prote(.'ting tlie para- nioiinl ioteresis of tiie piiblie, desired lo interfere n'ilb private rijihts So far oidy a« the pulilie iuieiests absolutely reqiiirod ami no furlbcr. Hilts and buildiM|j;s luade i)f leaves "eriH Very peri-iiable. Inilie ooiir.se ot very few yeirs thev niurds of reference, should be read as applying to the itist antecedent, unless there be some good rea.soii against it. But it is «aid that such a reason is to be found in the words themselves. "Renewed," it is said cannot properly be .ased respecting a hijt or other building, while it is applicable aiid com- monly used in speaking of the const ruction of a new roof. Tliis argument might be retorted by taking the other word, "erected", which certainly is applicable to a hut or builditig, tiiuugh hardly so 243 f;oURT OF juint'AT'uRE to a roof. But I d.i not feel weight of the objection. If a roo'f may be siiiil to be renewed wiien a new one i.s made, 1 do not see why a hnt .«ii(iuld not be said to be renewed tt'hen it is reconstrucfed. 1'he word se«ms lo have been used to meet an atiesn|ited evasion of tlie Act in two ways. By leaving an iii'-ignificant portion of the old building', wiien conHtrueling- uliaf wn3, in siibsiance, a new hut, ihe owner might possibly contend tlial be bad not ei'eclcd a netv but, and yet find it difficult to deny that bis old one wa^^ in vealiiy rebuilt, or renewed, by the extensive alterations made in it. Or, if he built an entirely new but on the site of I he old one, it might jierhaps be open lo liirn to contend that the prohibiiion againtt ei'ectiug new Imt* a'pplie.^,■^ib!y be a question, but tliia wag not contend- ed now, nor was tlie conviction inr renewing the house. It was next contended iliat thy ciau^e imposing the penalty, points out ibat "roola and walls" of nil bouses old or new, are tiie subjects of the prohibition, und not merely those of new huts: Ie invoked to control a construction sanctioned and required by several well established rules, and this, I think, would not be done. If any thing might be gathered from the note, it would be the conjecture whether the word "houses,*' which occurs in it, does not indicate tltai; tiie same word stood in the section also, as originally framed, and was designedly struck out. ' There being nothing in the language to require that the qualifying terms "erected or renewed'' should be applied to any but the last antecedent woj'ds, are there other reasons for departing from the rule of construction ? "The object of the enactment is to guard against fires ill towns, and it may be said that the Act should be so construed as to meet (he mischief most effectually, and, as Coke says, to "ad- vance the remedy." Unquestionably, the Act would be much more stringent if the other construction were adopted, and the remedy would be more advanced. But this rule is siibordinale to the more general one, that the intenlion of the Legislature is to be gathered by reading tlie terms in which it expresses itself in their plain 245 COURT OF JUIJK A'lUKK, iiieiiiiinsr Mini accoi'iliiig' .lo the oi'ilinarv rules i>f coiiHtrtiotion ; iiiul 1 tliiiik tli.-it, vend by tlinse rules, tlie Act must be uiidfr-tooil as 1 iiiiiler-lir« of ihe «ubj 'Ct, ;iu(l vi.sits wiili peiiiiliii's tlio^e wlio tnin-ijj'ress a^';iiiifANO. '2 If of the s^-i/Aiie ; (a) mikI j2ih1; tlie seizure was oiilv unilt^r a Writ of Sequesti atioii whoreas Liin Uh vvik a judumput crtnliioi' of llie 1).'- feiiilaiiC. Tlie affiiliivii on wliicli lie niiule the uiolimi cimtaineil fiei/erai erasures ami iiiterlint-alious wliicli were not initialed by tlic Coinmis-iciiur. The Jxiuge. — I cannot read tlie affidavitis in supporl of this niotioii, as tltpy contain i^rasnri-'S and interlineations iiiiidf, I nunfc |)r(^sunie, since tiify were sworn, as otherwise they would have been dnly no- ticed by the Con'imis-io'ner, Re WortliDigton 5. C. B 511 (h). On a subsequent day, the affidaviis haviui; been pnt to right>, Mr. Rodyk renewed liis motion and olnainpd a rule. Oil the I6iii day of September folloninsr, Mr. Logan shewed cause, and contended that the seizure should not beset a-^ide as by the different affidavits filed in this cau^e ii clearly apiiearid tlie De- fendant was iiibseht ; and secondly, the said Lim Un was only a jnd,;- nieiil creditor of the Court of Requests ami his claim "as small, whereas the seizure under till- Writ of Sejiteafration was issned by this Court, and the Plaintiff's claim vias uiiich larger than the said Iiiiii Uii's. Mr. Rodyk in support of the rule contended that the Defendant was proved lo have been here at tiie time of ihe seizure, and sucli seizure ought to be set aside against the said Liin Un's judgment debt, as I hat was the bigdiiT debt of the two, and the amount was iraiiiateria], and cited Angel vs. Stnithd Vesey Jr 336., Aston vs. Heron 2. Myl. & K. 390, s c 3 L. J. (N. S.) Ch. 194., Froicd vs. Lawrence 1 Jac. & Walk. 655., Phillip vs. Worth 2. Xluss & M, 638, and Onyon va. Washbourne 14 Jur 497- The Court held. that tlie seizure should be set aside and made tlie Rule absolute with costs faj The Court will not examine an affidavit to see whetter it be true or not, or allow the merits to be tried on a counter affidavit, if it be good on the face ^fit. Nizetich-vs: Sonaciob5B.&Ali.904:, VaughanYS. Gaadley SM & W. 115., BillvB, Borers 12. Price. 194. By the Supreme Court Ordinance 6 of 1868 s, 36., a writ of sequestration might now issue although the debtor be present, provided the affidavit states that he is " concealing or otherwise' dealing with his property so as thereby to defeat his creditors or the; Plaintiff in his said ac- tion." ' , • . (6) -The Cbnifliissioner need not initial the erasures or interlineations if they be immaterial-. In re Jameso n 8 Dowl. 651. C:()UKT OF JUDK.ATUKK. 'ird October, 1864. Befoke Siii P. E. Maxwell, Eecorder. KHU POI-I t;.'WAN MAT. This Court can have, no jurisdiction in a case where the caruse of action arose abroad and the difend'iiit is also abroad, A vessel having certain goods of the plaintiff on board,: was wrecked off a Foreign country where the defendant took possession of them and sent the same to Penang. He himself though born here but had for nometimepast ceased to reside here. In an action af trover against him for the goods in whi^h the plaintiff proceeded by sequestration and heard exjjarte.—lIsLD. that the defendant being, abroad, a'nd the cause, of' action arose abroad, the GouH has no ju/risdiction to deal with it and theplavntiff was nonsuited, The Judge; — Tlii< "as art nciion of trover for certain ,«IaI)s of til). Tlie flcfeiii',!int \va< |)roceeileil aLjiiiiist by seque.str atioii, and tlie cmi'^ewii-* \\e:y\'i\ ex parte. It ;ip|)fiiire(l tliar two yeaisagoa Cliinese junk culled ihe Kim What Seng, on a voyage from Tong- k.'ili lo ihis island, was wrecked on a bank off Pulo Tengali, one of tlie Lanciiwi Islaiids, wliicli are part of the territories of tiie Ilajitli ot'Quedali. The plaintirfliad a cargo of lin on board, and evi- dence was i^iven ihat th« defendanr, with a number of followers, came to tiie wreck and took possession of a portion of tlie tin, against tlie will of the master and crew of the junk. Tiiere was Also evidence that the defendant was born in Penang and continued to reside here till he was twenty years of aue; but ihat he had ceaseil for some time to live here. It was-^aid that he whs the sou of one of the Chiefs of Quedah, and a Puuguluh or holder of some other office under the Rajah of Quedah. Upon this evidence, Mr. D. Logan claimed judgment for Ihe plaintiff; but it does not apjiear to me tliatlhis Court lias jurisdic- tion to proifiounce any such judgment. The question whether the Court has jurisdiction or not depends upon the language of the clause of llie Charter which defines its civ- il jurisdiction ; but to understand that language, it is necessary lo have correctly in mind the principles by which the jurisdiction of Courts in general i-i governed and limited, as well as those which govern the interpretation of enactments. Primarily, the jurisdic- tion of a Civil Court over persons is limited to tiie persons within its territory. If t;he cause of action be-p^rsonal, that ig, be a civil injury to person or personality, or a breach of contract, the Court has jurisdiction, no matter where the caiise of "ctio" arose, if tlie defendant is within the territorial limits of its jurisdiction. If the matter in dispute be real property, the property also mu^t be with- in the territory. In the former cases, tlie venue \b transitory, in the latter local. Beyond this, the jurisdiction does not, primarily 1'. W. ISLAND OR PEKANG. ' 248 go. Tlie geiipral 1'uIh (passing over the peculiar cases ofjiid^- lui'iitrt in rein, nnl cases of which Penn v. Lord Baltimore 1 Ves. may be iiieiiti'>iie(l as a leailing ofte,) is, tiiat Extra territoriumjus dicenti impune nonparetiir. But the jurisdiction of a Civil Court may legitimately be extend- C'l beyond tliese limits, if tiie soveriegii ])0WHr sees fit; and the grounds upon vvhich this may be done have been so lucidly staters of their native country follows men every wliere; thougii how far tliis ex- tended jurisdiction would be recognized by the Couris of foreign countries is doubtful ; Story, Conf. L. sect. 540. And next, the jurisdiction of a Court may be extended to all persons abroad, foreigners as well as subjects, in cases where the matter in con- troversy must under any circum'^tances be determined by the law of the country of that Court, wheresoever the litigation might aris^e. "Thus." says Lord Wesibury, by vfay of example, "it is generally /agreed by European nations that all questions relating lo the ownership of land niusi be flecided by the lex loci ,rei sitce, that all questions relating to the succession or administration of the proper- ty of a deceased person, whether testate or intestate, belong to the Judge of the donjicil of Ihe deceased, and that contracts ought to be applied and interpreted by the law of the place wheie they are made, and where it is intended that they should be performed. If, therefore, an action or suit be commenced in the Courts of a particular country relating to a matter which, by the consent of nations, is ap- propriated to the law of that country, it may brf right, in order to prevent a failure of justice, t> give to such Courts the power of ex- ercising complete juris'iiciion, and therefore of citing absent parties uudei' the penalty, if they do not apjieir, of having judgment pronounced against them in their absence." In such cases, the judgment of the Court so proceeding would, in general, be respected by the Courts of other countries as conclusive on all the parties^ whether they were abroad or within the jurisdiction. The history of our Courts in England illustrates these principles. Their juris- c^iction was until of late years confined to its primary liuuis. The party liable who was out of the kingdom was safe from all proceed- ings in them, for personal sefvice of the writ by which they were begun, was necessary, and service could not be legally effected be- yond the realm. The Acts of 2 Win. 4, and 4 & 5 VV. 4. referred 249 COURT OF JUniCATURE. to bj Luii'il Wesibury, exierided the j-ari-j.dictioii of tlie Court of Cliiincery over (lefen- jects o<' foreigners, when the cause of aciioii has arisen in Eng'land,, or tlie eontraci sued on vvas made there. To turn, now, to the Charter under whicH litis Court is cotiRiitu- ted : — it autliorizes the Court in the fir-^t place to deteimiiie actions and suiis brouj^ht coiicerning( 1 ) any trespasses or injuries of wiiat nature or kind soever, (2 j any debis, duties, demands, iiiterewts or eoncerns gf wliat nature or kind soevpr, and (3) any rifilits, ti- tles, claims or demands of, in, or to any houses, lands or other tilings, real or personal within the said Setileraeni of &c. Having defined the subjects of the Court's jurisdiction, it goes on to state over what persons that jurisdiction is to be exercised, viz : ( 1 ) tlie East India Company, (2) persons who sluiU be resident, (tbut I--, who are resident at the liine of action brought,) witjiin the Settle- ment ; and, as I read the subsequent passage, with the provi^to wliich immediately follows it, (3) persons who have resided in it, and who|have debts or property there at the time of action brought. But persons who have never been resident, are excepted' from the jurisdiction and so are former residents who have become resident in the Uniied Kingdom, except when the action is brought within two years after the cause of action arose, and the sum to be recov- ered does not exceed 12,000 dollars. Now, no distinction is here made between subjects and aliens ; it is thei-efore plain that it was not intended to extend (he juiiediciion over the former upon the ■ first of the two grounds mentioned in Lord Westbury's judgment. I take it therefore to be immaterial whether the defendant is a British subject, ai was urged by Mir. Logan, or not, since a wider jurisdiction has not been given over British subjects than over for- eigners. But, unquestionably, jurisdiction has been given over other per- sons than those actually within the Settlement; and the question arises, are such persons subject to the jurisdiction for every tort and contract, wheresoever committed or made ? Is, for instance, a person abroad who was bnce resident here, subject to the juiisdic. tion of this Court for ii personal injury committed by him abroad? Gil general principle he would not; for the question to be deiei- mined vi-ould be governed not by the law of the tribunal but by the law of the foreign country where the wrong was done, and the can* P.W. ISLAND OR PKNANG. '250 lli.erefoi-e, \touM not fall within tlie principle upon wliicli tlie jiiris- irded in its p-eIatiou'< with other Stale", some other interpretation inu- time from the said creditors for the payment of tiie siid debt.', the Defendant* should make and execute a liominal mdrttjajje of rhe siid go"ds and securi- tiefl to tlie PlainiifF for the nominal «nin of Spini-h Dollars 2,500, and deliver the said goods ami secnrltie-i to the Pliyniiff, anil that the Plaintiff should m-ake ]iayment8 of small »u'ns to each of the siiid creditors to account of iheir re-'pt'Ciive debts in order to induce them to allow the Defendants to continue their said business until (hey could mike an arrangement with their said ci-editors for the liquidation or compromise of the «aid debts, and that the PlaintiflF should tiiereupon account to the Defendant* for tlie Said goods and securities, and that such deed of mortgage sliould be ante dated i^i order further to deceive the said creditors and cause fhem to believe that it had been executed before the Defendants had become Insol- vent a-s aforesaid, and tlie Defendants accepted the s:ii(l proposaland thereupon on the 23rd day of March aforesaid, in pursuance of such illegal and frauiiulent ai;reement between the I'laintiff and the De- fendants, the Defendants made and executed the said alleged deed in the Petition m-^ntioned, and dated tlie same the 20i.h day of Decem- ber A. D. 1862, and delivered the same a)id also the said goods and securities to the Plaintiff, and the Plaintiff received the same in pur- suance of the said illegal and fraudulent agreement and the sum of $ 2,500 in the said deed mentioned was not, nor w^s any part there- of, paid by the Phintiff to the Drifendants at the time of executing tlie said agreemeijt or any other time; but, the same was falsely slat- ed thereon to have been so paid for the illegal a nd_ fraudulent pur- pose aforesaid." The Plaintiff demurred to this plea. Tlie margin- al note of the demurrer being as follows. "A matter of law intend, erj to be argued is, that it is not competent to the Defendants, who are guilty of the, fraud in the said plea mentioned, and who origina- ted the^fraudulent arrangement therein set out, lo take advantage of the fraud aforesaid, to avoid the covenant therein, pleaded to on the ground tliereof." The Defendants joined in Demnirer. Mr. B. Eodyk in support of the demurrer contended that the plea was hnd as the Defendants being parties in executing the fraudulent transfer, could not avail themselves of the Stat. 13 Eliz. c. 5., and cited Hawes vs. Leader Cm. Jac. 270., Steele vs. Brown 1 Taunt 381.,' Bvmford vs. Baron 2 T. R 594., Roberts vs. Roberts 2 B. & Aid. ^367., Beasey vs. Windham 6. Q B, 166 , Montefiore vs. Mon- tefiore I. W. B. 363, Philpots vs. PMlpots 10. C. B. 85. ,,2 Chitty's Stat i65 , Chitfy on Cont. 590., Broom's, Com. 281. 253 COURT OF JL'DII AllIRB. Mr. Logan for ilie Deft^ndaiits conteiifled tluii tlie [ilea was gond as tln^re whs no coii-idc-Trttion for uiukiiii^ the Moi-lgaj;« Bond. The Court lnWil that the pl«a wns bad, as tia man can _ avoid his e»ii deed hr fraud to which hu is a party.and allowed the derriurrer; Demurrer allowed, (a) (a) The plea might have been good if pleaded on equitable grounds. Sea Broom's Com. 29(k Dukes rs. Sawiders 1 Dowl: 522., Mayne on Equitable PU p. 79. ; Oroley vs. Mb. (jalldghan 5 Jr. Bq. Rep. 25. — See' also Mooioo Carpen Vhetty \s. Pomiesawmy ^Nayker tried on 16th September 1872, where a plea' somewhat similar was pleaded on equitable grounds. Bkfohe The Hon. Sir P. Benson Maxwell, Knt., Eecokder. Haivah v. Daiid. Mahoraedan Married Woman's Personalty* is her own separate Property, and does not belong Jo her Mahomedan husband by marital right. The Maho- medau law considered. Penang Gazfette 9th March, 1865. 'I'he )ietilion in this case alleged ihat the plaintiff, being sei.'ied and pin.sussed of reiil and personal property, married the defendant some j'eiirH auo. The iaitei- was without properly ; hi-i occupation in life "IIS tliat of a police penti. He left the police shortly afifir his rnar- riaj>e, and unlil about a year ago lived with his wife, and upon her property. A year ago, he goi posse-ion of her title deeds, gold or- naments and money, divoi'ced her, and turned her out of hia house. Ill his iinsviier. ihe defendant alleged that the ornaments had been- purchased by him, that the money which he had taken was his own and had 'never been his wife's and he denied the divorce and expitl- sioM. The object of the suit was to recover the properly taken and for this inirpose.tliat the defendant might be declared a trustee for the plaintiff" The, Judge said that he had no doubt upon the facts of the case; and after examining the conflicting statements of the parties, he held that those of the plaintiff were substantially true, and those of the defendant unworthy of credit ; except as to the subject of divorce, as to which, he said, it was unnecessary to express any opinion. He, proceeded, then to observe that the legal question which was raised by the petition, was one to which he had often given con- sideration before tliis -uit. By ilie law of Kngland, the husband on mari'iage became seised of the wife'd real estate during the mar- riage, or fof his own life, if a cliild was born alive. He became, further, upon the marriage, absolutely entitled to all her personal ef- fects, and to all the debts owing to her, and other rights, which were * As to her realty or lands in the Straits, see Oader Meydii y. Shatomah ( 1868 ), and Judgment in Reg. v. Willans, pages 83,and 84. V. W, ISJ.AJSH OR rKJNAiSO. 254 TPtiucililp, anil whicli he reduoeil into possfts^ion flmiiii; liie inar- rin^fe. He becsitne houml, on ihe otiier hand, to 8n]i|iiirt her (luiiii|i the marriage, thiic is, iluriiiji' lier or his lite. He alsio befarne bounil for her debts coiitrafteeHy and riijhts, to the position or condirioii in wliicli slie was before t.lie niairiaye, or ( wbat would be the same tiling) to place her in tha posiiioii in which she would be uiidei' the Mahometan law, upon the , divorre. It was not, however, necessary in the present case, to (de- termine whetiier any of these views wore well founded; for if the properly and j-ights of the Maliometan wife vested in lier husband in the same manner as those of a Cinistian vfite, at law, there would yet be griod ground for holding llia't t>'e nian in whom >nch property and rights become vested by virtue of a contract whioh he was at liberty to rcsciinl at his pleasure, impliedly undertook to bold them as ii trustee for the benefit of his wife, in equity, in the giime njanner and to the same exient as the Mahometan law gav^ev them, or left them to her, on her entering into the Mahometan contract of mar- riage. Implied contracts and implied trusts were not ura' ge either at law or in equity. In equity, if one bought and paid for an estate in ihe name of a stranger, or conveyed it to him without considera'- tioii, the hitter held it as a trustee for him, or as the expres-ion was, there was a resulting timt in his favour. When freehold hind was pHrchased by partners for partnership purposes, tliough at law they might be joint tenants of it, equity impressed tlie properly with tlie cliaracterof personalty. When a lui>band died witliout having' ob- tained administration to his wife, her administrator was in equity a tnislee for his personal representative. In these and a multimde of other cases, implied trusts were raised to obviate injustice and meet the presumed wishes of the parties, or what would have mani- festly been their wishes if the question had occurred to them. The Judge thought that ihe same principle might be applied to cases like -the present. In any view of the case, however, whether the wife's property remained her own at law, unaffected by the common law rules which gave the husband certain rights over it in Christian marriages, which was perhaps the true view, or whether the hus- band was under an implied contract or an implied trust,', it seemed to hiin ( the Judge ) that the plaintiff was entitled to the relief prayed in her petition. He would therefore order the defendant to deliver up the ornaments and money to his wife, in the same manner ns he (the Judge ) would have ordered him to do so if they had been set- tled to her separate use and for her own personal enjoyment, and ha should restrain him by injunction from receiving theients and profits or otherwise intermeddling with ftie real estate of the plaintiff, p. W. ISLAND OR PENANGi 256 Before Sik P. Benson Maxwell, — Recorder. Kho Guan Chiat vs. Tan Giok Lan. A deed or contract, ajid an instrument not under seal should not he altered ixfter being signed and executed, any erasure or alteration made subsequent to the execution, of it, will vitiate the contract. Judgment. In this case a Tionsuit must be entered. It was proved that the note or con- tract sued upon was altered subsequently to the defendant's execution of it, by the addition, without his privity or consent, of t}ie word "Witness" and of the names of three persons purporting to be attesting witnesses to his signature,- who were not present when he signed. There was no direct evidence that this was done by the plaintiff or by his direction, but considering that the paper was delivered to him, that he sued upon it, that there was no evidence that it had ever been out of his possession, and finally, that he was not cal- led to offer any explanation, or to contradict one of the alleged attesting witnesses who denied that he had signed the pape> or seen the defendant sign it, and who said that he had been urged by the plaintiff to state in Court that he had attested the defendant's signature, I come to the conclu- sion that the- alteration was made by the plaintiff's direction or with his assent. This being so, it is unnecessary to consider whether the alteration was material or immaterial, though I should hesitate much to consider it in the lat- ter light, although the terms of the contract are not altered nor the legal character or effect of the instrument changed. The mode of prov- ing the document was altered by the addition of the, attestation clause , for although since the Indian Evidence Act of 1855, it is no longer neces- sary to call one of the attesting witnesses when the instrument does not require attestation, the regular course is to do so, or if all of them are dead or out of the jurisdiction to prove the document by proving their hand writing. The rule of law as to alterations in documents after their execution is, that if the alteration was made by the party seeking to enforce it, without the consent of the-other side, the instrument is vitiated, whether the alteration was in a material or an immaterial particular; and that the same consequence follows, whea the alteration is in a material part, altljough it be made by a stranger. This rule applies not only to deeds (Pigot's case 11 Co. 27) but to instruments not under seal, as, ex.gr. to bills of exchange, bought and gold notes, guarantees, charter parties. ( Master v. Miller. Smith's leading cases, whore the cases are collected in the note. . ) It is applicable therefose to thc^ instrument here sued upon, which was an agreement by which the defendant in consideration of 300 tickets for a feast delivered to him by the plaintiff, agreed to account to the plaintiff for the pro- ceeds of the sale of such as he sold, after deducting his commission. This rule, which has been frequently recognised and enforced, is said by the Court of Exchequer Chamber, in delivering judgment in Davidson v. Cooper 13 M. & W^ 352, to be based on the principle " that a party who has the custody of an in- strument is bound to preserve it in its original state ; " and the Court adds that ■' itis highly important for preserving -the parity of legal instruments that this principle should be borne in mind, and the rule adhered to. The party who may suffer has no right to complain, since there cannot be any alteration ex- ■ cept through fraud or laches on his part," So, the Court of Exchequer said in the recent case of Croochewit v. Fletchcr,26 L. J. Bx, 159. " It is of the most essential importance to the public interest that no alteration whatever 207 SUPJlkME COURT. should bo made in written contracts, but that they should continue to be, and rejriain in exactly the same state and condition as when signed and executed, without addition, alteration, erasure or obliteration ; " and the rule in question is intended to secure this important object. The law will n&t permit a man, after having tampered with an instrument, to claim the benefit of it in its ori- ginal state, after he has been detected. If the plaintiff in this case suffei-s fromtHoruleof law, he suffers from the- consequences of his own act. He must be nonsuited. 1868. Before Sir Wm. Hackett," Judge of Penang. The ATTORNEY GENERAL of the Straits Settlement?. vs. KUM KONG GAY and others. If A rented a. house from B-under a lease and remained in it af- ter the lease has expired without a notice from B to quit, the law implies that he holds it under the terms and stipulations contained' ill /he oCiid lease so far as they are applicable to, his present tenancy . The plaintiff brought an action against the defendants as the Opium Farmer of Penang for rent due to Government,- the defen- danU did not deny their debt hut contended that they were not liable to pay it at the old rate as they have been injuriously affected by the repeal of the Excise Act under which the contract was made by an Act subsequently passed. Held, that the defendants having contin- ued to ilsc and enjoy the Opium Farm after their contract had be- come void by the repeal of the said Act and having paid rent for a certain tunc at the old rate, there was an implied contract on their part to pay rent at the -rate reserved in the said contract so long as they coutiuiicd m possession of the Farm. This is an acfcioi* brought by tlie Attorney General of the Straita Setileinoiits on behalf of the Ciown against the defendants for' rent alleged to be due liy them as the Opium Farmer 6"f this Seltlement. Ihe Pelition states an agreement between the defendants and the Governor of >the Colony, that fit consideration of the rights and piiviloges of the 0|)ium Farmer of the Settlement of Prince of Wales Island, as the same are contained in the Excies Act of 1867, should be vested in the defendants from the loih day of October until such rights and privileges should cease to be vested in them,' ihede- fciidants agreed and inomised to ))ay to the Governor, fur the use of the down, $ 7850 montidy so long as ihe i-aid rights and privi- Icizes should conii-iiua to be ^o vested in them. Tlie Petition goes on to stale that the ;-.iiii rights and privileges vtfere tliereupon ac- cordingly vested in tiic defeiulants, and the defendants thereupon ,PEN/LNG, !}f)8 becnine and iioie'l as tlip 0|iinni Funnpr of ilio SuUlemeiil, and crn- liniiPil to be so until iheGOHi ofJanf 18G8, iimi did In'ni the 15i.li Oi'- tober 1867 until tlie 30tli .lune 18GB. pos-ess and use nil the rii,'.lils and |iiivileg-fls of such Oijiuiii Farmei-, yet tlmt the defendants have not paid the rent as aforesaid i'roin the loili May to the 30lli June 18C8, The evidence in the case pIiovs, that by a contract under seal beaiiHg date the 24(h A|iril 1867, made between the Lneal Govern- ment and the defenilanis and reciting that ihe defendants had been' declared to be ihe Opium Fanner for the term* commencing on the let May 1867, and eodinii on the Slnt March 1870, all the rights and privilegfes of the Opium Farmer of Prince of NVales Island under rho jirovi^iDUs of Act XXX of 1866, became vested in the defendants for the said term. These rijjhis are stated in sec. 3 to I>e the exfln- sive rio;'.it of making or prepaririii opium orchandoo, and < also of retailing it in smaller quantities than one chest. There «eenj9 to be no qupslion as to the position of the defendants under tlie contract I have mentioned. They seem to bo clearly en- titled to all the rights and privileges of the Opium Farmer of Piinre of Wales Island under the provisiojis of the Act ofl8GC. The pre- sent litigation has arisen out of snhsequont legisla.iion. On the 15th October 1867 Act XXIX of 1867, called the Excise Act of 1867 was passed, totally repealing, without any reservation, the Excise Act of 1 866. ^ow although the Act of 1867 does not in terms affect tlie written contract betweenthe Local Government and the defendants, yet there can be no doubt, in my opinion that, in effect, it makes it inoperative. and thus virtnially rescinds it. What does the contract say ? and what are the rights conferred by it on the Defendants? They are "all the rights and privileges of the Opium Farmer of Prince of Wales' Island under the pro- visions of Act XXX of 1866," Once therefore the Act of 1866 has been repealed it appears to me, that there is no longer anything on which the contract can take effect. There is no Opium Farmer, and there are no rights and privileges deriving their force from the repealed Act, and consequently the contract itself becomes inoperative and valueless. The Act of 1867 takes no heed of any interests which may have vestod under the former Act. It repeals it in toto. It only provides for contracts to bo entered into uuder the new Act, ■without any mention or reservation of contracts already existing^ possibly because it regards them as virtually rescinded (sees. 2 and 4 Excise Act 1867 and sec. 82, repealing the Act of 1866.) Whether the defendants have been injuriously afifected by the re- peal of the Actof 1866 and the passing of the Act of 1867 1 have not '259' SUPREME CoXlRT. "0\T to inquire, nor have I to decide wliellier they liave reason to com- plain of any breach of the original contract betweentiietn and the Lo- cal Government. 'The question I have now to determine is whetheriii the eventa that have happened since the 15th October 1867, any con- tract ca« be implied on the pait of the defendants to continue to pay the rents tljey were bound to pay by the contract of the 24feh April. The Act of 1867 as I liave already said,^in my opinion, ])ut9 an end to the written contract of the 24th April, and when that Act was parsed if tlie defendants thought themselves aggrieved, they should have then asserted their rights: — that would liave been the moment for putting an end to their tenancy or repudiating their contract. Tliey might have said, for instance, that, they had taken the Opium Farm under the Act of 1866, and as tiie conditions under which they entered into the contract had been altered, they did not consider themselves any longer bound by it. But they did not/do so. They continued in possessipn of (he Opium Farm from the 15th Octoljer 1867, the date of the new Act, until the 30th June last; nay more, it appears from the receipts produced and it is not denied by the de-^ fendants, that they continued to pay rent at the rate originally agreed on up to the middle of the month of May last. The case therefore seems to me to resemble in principle those cases of tenancy of land^ where, when a man occupies premises under an agreement or under a void lease, or continues to hold over and pay rent after a former lease has expired, the law impliies that he holds under the terms and stipulations contained in such agreement or lease so far as they are applicable to his present tenancy. •In the present case the defendants having continued to use and enjoy the Opium Farm from the 15th October 1867, when their wiitten contract came to an end, and having paid rent at the old rate, I think that thei;e was an implied contract on their part to pay rent at the rate reserved in the written contract so long as they continued in possession of the Farm. ' Judgment must therefore be given for the plaintiff. EMicOOOOOecs PENANG. ' 2C0 13a Ji'lyl8G8. Before Sir "Wm. Hackett, Knt,, Judge of Psnamj. Kader Meydin, Administrator of Hossansah rs. Sliatouiali. A Mahomedan married woTtMn must in accordance ii'itli Indian Act XXXI of 1854 acknowledge all assignments of her realty situate in tin' Colony and the Inisbaiid must jui/ii in% such assignments or his absence accovnlcJ for, Tliia was an action of Ejectment in wliicli Judjiinent li;ul been given for tlie Plainijff. The matter wa* re-aro-ned last year ;ind llie original Judgment aiSrmed. The question was whether an assign- ment by a Maliomedan mariied woman of her leiilly in Penang un- aoknowledged by Deed in conformity with Act No 31 of 1854, and without the poncnrrence of her husband, was a valid conveyance. B. Rodyk for the Defendant contended that as the Court had decid- ed in Hatvak v. Daiid (a) that Mahomedan married women were entitled to their own property to tlieir sole and separate use, it ne- cessarily followed that the incidents appertnining thereto must also be granted to them and cited Taylor v. Bleads, 34 L. J. Ch, 203. Adams v. Gamble, 11 Irish Ch. Rep. 269. Lechmere v. Brothe'ridge, 32 L,' J. Ch 557. Haynes' Outlines of Equity. 2 Ed. 228, D. Logan Solicitoi- General, tor the plaintiff, contended, that the lex sitits,-\.\\e law of the land, -must govern all such questions as to really, ami cited Story's Conflict of Laws. 363 & 435. The Judge held that every married woman, whatever her creed or race, must conform to the Act, and in conveying lands situate in this Colony they must obey the law of the land : that the native wives are bound by the same law in such matters as other married women and that it would be contrary to public policy to allow of any such departure from the rule as had been contended for. (b) If the husband were absent the wife should apply to the Court, who wh^uld see that justice was done, (c). (aj Vide ante page 253. ( 6 ) See ChiAas cmd anot her vs. Kolson binte Seydoo Malim (Malacca case) tried in March 1867; also see Story's Oonfi. Laws, § 341, 463. (c) See a cross[action in equity, Shatomah vs. Kader Meydim,, tried on ICtli February 1870. NOTIFICATION. -No 147. The 8th September 1864, Under the operation of Section VII of Act XXXI of 1854, the Magistrates of Police of Prince ot Wales' Island andjProvince Wel- lesley, and the Registrar and Senior Sworn Clerk of the Prince of Wales' Island, Division of the Court of Judicature, have been ap- pointed ex-officio Commissioners to take the acknowledgment of deeds by mariied women. 261 SUPKEM.E COURT. 'jTlieatlcntioii of llie Cc^intnissioners is callHcl lo the follciwing Sec- tions of the (iliove-!tv?ntioiieil Act: — Section VIII. Every sin-h ,rnil Ac , ing her acknowledgment, sliall examine her apart; irom her Jm.'^band, touching her knowledtie of such deed and shall asceriain whether she nnrlerstands its ol)j^>ct, and (reelyaiul volnntarily conspnts to t'lie same, and unlaws slie appears to undersfam) its object and freely and voluntarily to consent to such deed,.he shall not permit her 10 ac- knowledge the same, and in sncli case, such deed, so far as relates to the execnlion thereof by sucli manicd wouian, shall be void. Section IX. Every Judije, Officer, or CommisMoner taking such , ,, . arknowleduinent under this Act, fthall, at the Judge, &o shall sign ■ ._ ,„g,„„,„n,i„,„ a Memorandum ot no- '""tr lai^i iti, ■■-■c < , j, 1 / ■ knowdgment-form of it. to be endorsed on or wrii ten at the loot , or 111 the margin of such deed, which memorandum shall be to the follow- ing effect namely, " this deed marked ( ) was this day produced before me and acknowledged by therein named, to be her act and deed, previous to which acknowledgment the said was examined by me sepsirately and apart from her husband, touchiiiji: her knowledge of the contents of the said deed, and her con- sent thereto, and appeared lo understantl the same, and declared the same to be freely and voluntarily executed by her." By Order M. PROTHEROE— Lieut , Depvty Secretaryto Oovernment, Straits Settlement. lUh. July 1868. ^ Before Sir Wm, Hackett, Knt, Judge of Penang. Kena Moona Vebrafa Chetty, w, Jean Joseph Ventre. . Action on Bottomry Bond against Defendant as surety, loss of ship through the ignorance of tlie ma in exe- cuting a Deed upon which the present action is founded. By this deed,— which recited the loan to Angles for twelve calendar months, on the under- FKNANG. 262 standing that the Charles Julie might during that period bo employed in vo}-- ages from Penang to Rangoon and back, and to Sinp;apore and back, and shduld eventually return to Penang, within the aforesaid time, the defendant and j^gl^s jointly and seve'rally covenanted, that the said vessel would not go on any other voyages, or deviate from thpse authorized by the said Deed, ( the, perils of the seas &o, excepted ) and should return to Penang at the stipulated time. Then there was a covenant, by the defendant and Angles for payment of the principal sura with interest at 2 per cent per mensem, ton days after the arrival of the vessel at Penang from the last of her voyages, and a proviso, that if she should previously have been totally lost, the principal and interest should not be payable to the plaintiff. And as a further security Angles as- signed his interest in the Charles Julie, to the plaintiif. The plaintiff in the first count of his petition alleged that the "vessel with- out sufficient cause deviated from the sf^id voyage and never went to, Singa- pore whereby the saixJ bottomry bond wa? determined, and the said $4000 be- came immediately due and payable by the defendant to the plaintiff." The defendant to the first count pleaded that "the said ship did not deviate from the said voyage to Singapore as alleged," and upon this plea issue was joined. From the evidence it appeared that the Charles Julie, a threje masted schooner sailing under French colours, loft Penang on a voyage to Singapore «n the 22ad February 1866.. Including the master (, J. 0. Anglfe ) there were ten seamen on board. The vessel proceeded on her voyage without ac-, cident until the morning of the 25th February. On that morning between three and fonr o'clock land was seen on the Port bow, which the Captain and first mate supposed to be Pulo Oooob, an island in the proper channel, and which, supposing the vessel to be in her right place woiild have been seen on the Port bow. The vessel then appears to have been steered to the south for about four miles " to take " as the Captain said, "the mid channel so as to round Cocob island and the land." He then goes on " Convinced that 1 was in the channel between Cocob and the Oarimons the breeze having slackened, ,1 ordered to steer to the S. S. E.— S. E. and S. E. i B., trying to come to Port as much as the land allowed irfe, so as to take afterwards the direction of the E. S. E. in order to sight Oopey Island which was to load me to the Straits of Singapore where I was goJlig it day break about 6 a. m. without having taken any rest, watching the lead, going up the mast myself with my spy glass, or- dering my mate and my second mate to go there also, I saw through the morning haziness the land on the starboard, I supposed it to be the Carimons, and in the Bast I saw small Islands rather distant. I came up the mast again to'look about trying to see the light of Coney Island, when I observed a change in the colour of the water at a small distance ; the looming had already al- tered the appearance of the land. It was about 7 a. m. I immediately ordered t6 take in sails and to lot go the anchor, but at the same moment my vessel had three violent shakes having struck on a shoal covered by the sea"— Having been asked what he did when the ship struck, he'replied. "1 immediately or- dered to sound the pump and found a,t first one foot of water in the hold— the vessel was fast a-midship. I ordered to sound at the stern and found four feet in the hold. I immediately ordered to lower the boats, to free the main- hatch for throwing cargo over-board to lighten the vessel, but the water was rising in the hold,— the vessel was burst, the water was on deck * * *. Then the vessel had a list to Port, and siink fast. I remained on board the last and left the vessel when urged by m'j crew to do so ■ * * *. I only 263 SUrEEME COURT. knew where I was through a Malay of the name of Said, who came near the vessel at the moment of the wreck and of whom I asked where was the Great Oarimon and which he pointed, out to me to the Northward. I then perceived the error caused by the currents. 1 believed the Great Carimon was to the South. I was not able to perceivq the error myself, navigating with a "hart ending at the beginning of the Great Carimon. The error was then evident. I had been brought by the influence of the currents in the Straits formed by the island of Pulo Panjang and the Great Oarimon, a, channel parallel to the one I wanted to take ; and which I thought I had taken, viz ; the one formed by Cocob Island and the Carimons, and which would have led mo to Singa- pore. The evidence of the Captain is in [substtince corroborated by the evi- , dence of the first and second mates, and as regards what took place immedi- ately before the ship struck, it is confirmed by the evidence of some Malays who, from the shore, saw the vessel strike. A number of witnesses were ex- amined on behalf of the plaintiff to show that there are no currents in ^those seas which would account for the course which the vessel took and to prove that with the most ordinary care the vessel could not have got into the position in which he was when she struck. On the other hand the defendant exam- ined witnesses who testified that there was a current in the Straits which might have carried the vessel put of her course in the direction in which she was lost. The result of the evidence on this point in my opinion is this.— That ihere probably was a current or tide setting to the southward between^ Pulo Panjang and the Great Carimon, but that, a vessel navigated with ordin- ary care and skill could not have been carried out of her proper course by the force of this current without the deviation being perceived, and therefore that the Charles Julie could not have drifted to the shoal on which she w-as wrecked except through the negligence or unakilfulness of the master and crew. Now the plaintiff contends that the departure of the vessel from the proper and ordinary course of the voyage was a deviation within the meaning of the covenant against deviation contained in the deed, and that for the breach of this covenant he is entitled to recover the -principal sum of $4000 together with interest. And the question arises, was this departure from the ordinary channel in the voyage from Penang to Singapore, a deviation within the mean- of the covenant P T take it for granted that I may^Mwume that the covenant not to deviate contained in th^ deed is to be oonattii^''Vr^ the same sense in which the condition not to deviate which is implied in Policiea of Marine In- surance is understood. ^ , • Now on referring to the text writers on Marine Insurance whoso works I have been able to consult, I find the following definitions of the word ' ' devia- tion." Park defines it, as, "a voluntary departure without necessity or any reiison- able cause from the regular and usual course of the specific voyage insured " ( Park onins. 8th cd. p. 619. ) Marshall states ; " By deviation is meant a voluntary departure Avithout ne- cessity from the u.^iual course of the voyage insured " ( Marshall on Ins. 4th ed. p, .138 ). Arnould'B definition is more full than either of these. Ho says : • ' The true propo8ition,|thcrefore, is, that every voluntary and unnecessary departure from the prescribed oouise of the voyage, by whieh the risk is varied, is a deviation'" whether the risk be thereby aggravated or not." {Arnould on Lu. 3rd ed. p. 426 ). Further ou he says : ■ 'Moreover it must be a voluntary ideparture from 11ENANG. ' 264 the usual course of the voyage in order ta be a deviation ; but it will be so con - sidered althougii it takes place through the grosi ignorance of the captain " ci- ting P/iyjim. TO. li>iia\ Exch. Ass. Compcmy 7 T. R. 505. ( Ibid in end pag.) ■ Tliis last proposition is relied on by the plaintiff in support of his claim, and he contends that iu-as-inuch as the 'Olidrles Julie departed, from the proper ani^ usual course of the voyage through the gross ignorance of the master there was a breach of the covenant not to deviate, even although the master may have thought he was proceeding in the proper course. But, in my opinion this is not a correct view of the author's meaning .- — the whole passage must be read together; and I think it is clear that the act done in ignorance which constitutes a deviation must be a voluntary act, and not a mere error of judgment. Nor does the case oi Phynnv. Royal Exeh. Ass. Co- bear out the pr6position contended for by the plaintift'. In that case a vessel bound from London to Jamaica was carried by currents and other causes out of her reckoning until she was found to be between the Grand Canary and Teneriffe. From this point her direct course to Jamaica was to the South West, but the Captain bore up for Santa Cruz about 30 miles to the North West, where he came to an anchor. .There the vessel was seized and condem- ned as prize. Here therefore we have a distinct voluntary departure from the proper course of the voyage after the master had fully aBcertained his position, and. from the report of the case, it seems to have been taken for granted that al- though the master lost his reckoning and got out of his course, there was no deviation uiitil having ascertained where he was, he voluntarily shaped hia course for Santa Oruz. But in the case before the Court the master got out' of his reckoning and nev- er found out his mistake until after the vessel had struck ; — there was no in- tention on his part to go between the Carimons and Pulo Panjang, and there- fore the case does not resemble thf one just referred to. There is another case which was referred.by the counsel for the plaintiff, that of Tait v, Levi ( 14 East, 481 ) in which the captain of a vessel insured to a port or ports on the Spanish Coast not higher up than Tarragona went into Barcelona mistaking it for Tarragona. This case is cited as a case of deviation. But although there is apassage in Lord BUenborough's judgment from which it appears that his Lordship thought this might be a case of deviation, yet in the opinion of the majority of the Judges of the Court it was not considered a case of deviation because it was not voluntary, and the underwriters were held to ^ be. discharged on the ground that there was a breach of the implied warranty to provide a Captain of suffiqient knowledge for the purpose of tlie voyage insured. This case therefore rather supports the proposition that an involuntary depar- ture from the ordinary course of the voyage through the ignorance of the mas- ter does not consitute a deviation, and that to constitute a deviation-the depar- ture must be voluntary. And indeed it seems to me that any other doctrine would be attended with absurd results, and it would come to this that ineverj case in which a vessel s*ruck on a )»ock or sandbank through the ignorance and unskilfulness of the master there would be a-deviation in-as-much as such rock or landbank must necessarily be out of the proper course of the voyage. I am of opinion therefore that there has been no deviation in this case with- in the meaning of the covenant not to deviate from the voyages stipulated and authorized by the deed, and tha,t the plaintiff is not entitled to judgment oa the 1st count of hii petition. 205 StTI'KKME COTKT. The plaintiff further contends that, in any case, he if entitled to recover on the-count for munej- had and "received, on the ground of a breach of the war- ranty of seaworthiness which must be implied in the contract; tliat this war- ranty not having been complied with there was a total want of consideration and therefore that he is entitled to be rejjaid the money he has lent. The grounds of unseaworthinoBS alleged Ijy the plaintiff are three ; — First the ignorance and incompetence of the Captain ; Secondly, the insufficiency, of the crew ; and Thirdly, the want of proper and necessalry charts on board the vessel. Now assuming a warranty of the seaworthiness of the «hip to be implied in the contract between the parties, and that on the event of a breach of this impled wuj-- raniy the plaiijtiff would be entitled to recover back his loan on the count for money had and received, I proceed to consider the evidence on the various breaches alleged by the plaintiff, 'First as to the alleged incompetency of the Captain. I quite agree to the contention on behalf of the plaintiff that there is evidence to show negUgj?.nce or ignorance on the part of the Captain, and that it is difficult to conceive how he could have got into the position in which the vessel was lost with ordinary care and a competent linowledge of his dutres. And if this were the case of a British ship, prior to the 13 & 14 Vict.- c. 93, upon the evidence I think there might be strong reason for contending that the Captain was not competent. This was so in the case of Tait v. Levi which I have already' mentioned where the evidence showed that the Captain was incompetent and the underwriters were discharged. At the time however that case was decided there were no requirements by the English law as to the fitness and capacity of masters, and it may be doubted whether since the Merchant Shipping Act, the question could well arise. By the Act, Marine Boards are constituted for the examina- tion of masters and mates of foreign-going ships and of home-trade passenger ships. The examination is under the control of the Board of Trade, and when it has been passed, the Board of Trade grants to the applicants a "certificate of competency " either as master^ first, second or only mate of a foreign going ship, or as master or mate of a home trade passenger ship, as the case may be. If then this were the case of a British ship all that, in my opinion, the Court could look to in any allegation of unseaworthiness on the ground of the master's incompetency would be the ''certificate of competency " granted under the pro- visions ofihe Merchant Shipping Act. (see Merchant Shipping Act 1854 Sec- tions cxxxv & oxxxvi.) If the master were properly certified under that Act, 1 do not think evidence of his conduct would be admissible to show that he was incompetent. Bnt this is not the case of a British ship. The Charhs Julie was a French ship — built in France — with a French master and crew, and it is clear that any question as to the Competency of the master or the sufficiency of her equipment generally must be jieoided by the law of France. As Willes J. observed in Lloyd V. Oivbert, (Law Rep. Q. B. vol. I. p. 127.) — " With respect to all per- ' Bons, things and transactions on board, she was, as it were, a floating island, over which France had, an absolute, and for all purposes of peace as exclusive a sovereignty as over her dominions by land." Now what is the French -lavf with regard to masters of merchant ships ? There was no evidence adduced expressly on the subject, and the absence of such evidence may be accounted for by the fact of the plaintiff resting his claim mainly on tha ground of the deviation of the vessel-from her proper course. But PKN'WG. 26u theru is evidencp fVom which 1 think it may be fuirly pre.si.iined thattherequiro- ments 6i' the Frciioli law as to the qualifications cif master have been complied with. • A commission ,was issued out of this Court to Marseilles for the examination of witnesses and under that commivssion Captain Angles was examined. He there stated "that he was a master mariner for navigation on all seas; apd that he had passed a pi-actical as well as a theoretical examination after which a, certificate of master mariner for navigation in all seas was granted to him in 1854." In a subsequent part of his evidence Captain Angle.s states that after ■ the loss of the C/wn'te J-itKe and his return tf> France "ho passed in com- pliauoe with tho Frenoli law linforo several Courts compo.^ed of competent men who have entirely ab.solved him, and have left him his certificate and the power to continue to command," - Doubtle.sg it would have been more satisfactory if the point had been properly raised between the parties , aud the provisions of the French law established by proof in the usual may, but I must deal with the evidence as I find it, and considering that the evidence of Oapt. Argle,> is pot contradicted I feel bound to presume tliat he is a properly certificated master acc(n-diug to French law, and therefore that in any question of seaworthiness evidence of his conduct during the voyage cannot be adduced to prove his incompetency. The second ground of unseaworthiness alleged by the plaintiff' is the insuf- ficiency of the crew . — The only evid»nce we have on the question of the sufficiency of the crew is that of the master and the fiyst and_ secimd mates of the Charles Julie.^ Captain Angles states as follows: — " I had a mate, a second mate and a boatswain, and a crew of six " *. She ( the vessel ) w.-is a three masted schoon- er, being so easily manned " * *. 1 had only three square sails and all three at the foremast * *. They ( the crew ) were more than sufficient ( to man tho'vessel ) according to what I have just stated." Amedee'Aubert the mate states : ■"We were ten hands altogether on board- Th,e officers were, the captain, myself and the second mate * * *. In diffi- cult circumstances besides the man at the cathead and the customary watch, orders were frequently given for some one to go up the masts." Felioie.n Perraohe on this point says : " There was a sufficient crew for manning the vessel considering the vessel was a three masted schooner aud that the only heavy work was in moving the square sails." This being the only evidence in the case with regard to the number and sufficiency it is clear that there is nothing from which I should be justified in assaming that the crew was insufficient. The third ground of unseaworthiness alleged is the want of proper and neces- sary charts on board the vessel. From the evidence of Captain Angles, it appears that the chart used on board the Charles Julie is the chart published under the directior. of the Secre- tary pf State for the French Navy in 1862. A copy of this chart was produced before the Commission at Marseilles and is the chart marked No. 2 in the docu- mentary evidence. It is designated " Carte du Detroit de Malacca (Partie Sud) Depuis Les North Sands Jusqu'a Singapour d'apres M. M. Wm. Eose, Robert Moresbyet C. Y, Ward de la Marine Anglaise de 1' Inde," "Chart of the South part of the Strait.1 of Malacca from the North Sands to Suigapore, according to Messrs W. Rose Jto. lea-, of the Indian Navy." From its title therefore the chart 267 SUPKEME COURT. purports to be the authorized chart-of that portion of the Straits of Malacca ia het voyage tlirough which the Charles Julie was lost. And there is further evidence of this. The mate Amedee Aubert states — ',' The chart made use of is the chart of the Straits of Malacca from the Depot of the French Navy " and Louis Honore Gilette a retired Captain describes the chart in question as " a new and more complete edition of the one published by order of the Minister of the Navy which I used, and which is used by French captains to go to Singapore. It enables me to see the navigation which is to be made in the Straits of Ma- lacca." It would appear therefore that the chart used is that published by order of the Minister of the Navy and used ordinarily by French Captains. ' But a chart was produced before the *Commissiduers on the examination of witnesses at Singapore, an English chart, whiob appears to be a more complete i chart than the French one and it is contended on behalf of the plaintiff that be- cause the Charles Julie was not provided with a chart as perfect as this English chart — therefore she was uuseaworthy. Now -on examination of tliese 'two charts it is clear that as compared with the English chart, the French one is imperfect, and must necessarily be less serviceable in navigating those waters. Besides it appears from the evidence of the Captain and mute that the place where the Charles Julie was wrecked was altogether .out of the range of the French chart which therefore at that point became useless. Whereas the English chart which extends a third of a degree more to the Southward includes the spot of the wreck. But it seems to me that all that was requisite was tRat the Charles Julie should have on boayd the 'chart stamped with the authority of, and prescribed by, the French law. It would be most unreasonable to hold that, as regards her equipment, a vessel should be governed by any other law than that of the state to which she belongs. I am therefore of opinion, that the plaintiff has failed to establish ^the third ground of unseaworthiness, namely, the want of proper and necessary charts. The result of the whole is that there must be judgment for the Defendant. I7ili. September 1868. Before His Honor Sir ,W"m. PIackett, Judge of Penang. W. E. Maxwell, Aiiininistyator&o. of Mullah Mahomed deceased vs. Chiltyappali' Cliitty. Mortgage of a Hachnei/ carriage not in a regular form, and agi'ee- ment to sell is not stated. Saleby mortgagee upheld. ' Judgment foi\ defendant. The Judge— Tliis is an action of trover to recorer the value of a ciiniage. Plaintiff U the administrator of one Nnllah Miihomeil 'I'lie fnots appear to he a.s follows. In Jannary 1868, the plaintif's intestate horrnwed money from Ihe defendin\t and gave liim certain papers as a security for the loan. On the 29th February the intestate dieipeaking in assignments by way of mort- gage there aie stipulations as lo the ciri'umstances aii<] conditions nnder which I he raortgau'ee shall be entitled to take |»os-iessioii of am] dinpoee of the niortuaijed property. Here there are no such siipulaiiiins, and «e have tlie bare fact of the morigagc to the defen- dant without anything more. jVow in ihe absence of any stipnlation to the conti'ai-y a mortorage would eniiile the mortgagee lo immediate possession of i lie inort);iiged property. A moriijaiie is an assignment of the property in anyllnug 8ulije(!t to aC'>ndition or proviso that if tlie debt is itgagor (unless there are provi.-i(»ns for his retainiiij( posses-ion of the mortgaged properly, in which case he may be ales- see) is his right of the equity of redemption. In this case, therefore, there being nothing sti|>ulated to the contrary, the defendant had a perfect right to the possession of the mortgaged palanquin until his debt was satisfied. Then the question comes had the defendant a right to sell ? and if lie had no right to sell does the act of the sale operate so as to revest the riL'ht to the possession of the mortgaged property in the moit- gagor or-his representatives? I ihink not. At law the title of the mortgagee to the possession of the mortgaged property is absolute un- less there be some special clause in the mortgaged deed by virtue of vfhieh the mort^agoi' is entitled to claii,n possession, and even in the 'caseof a pledge in which the property does not pass, it had been held in the case of Donald v Suckling and the recent case i/f Hallidayy. Holgate that the pledger is not entitled to bring trover as long- as the debt for which the property was pledged as security remains unpaid. A Fortiori this must be so in the ease of a mortgage in which the legal estate in the mortgaged property is vested in the morlga'>'ee, and the only riuht or interest remaining in the mortgagor is the equity of redemption. I express no opinion here a.i to whether the sale was regular or otherwise. It is laid down in the books that the mortgagee of a PKNANG. 270 cliattel may sell on "ivtng iioiic6 to tlie mortgiigoi-. In ilii.< cn^e i't the time of tlie snizdre and sale, the mi)ngii«-nr wasideiul and Ijhiu"-'t seek for redress in another manner. I may mention tliat it does hot appear to uie from the evidence that the representatives of the mortgagor have been prejudiced. There is no reason to believe that tlie property was not sold to the beat ad- vantage, and in point of fact there is still a considerable balance due to the defendiint. Under any circumstances, therefore, according to authority oi Brierley v. Kendale, and Johnson v. Stear, the plain- tiff, even if he were entitled to judgment in Ills favour, could only claim nominal damages. I think, ^therefore, that law agrees here with equity in giving judgment for the defendant. February, 1869. Reitore Sir Wm. Hackett, Knt., Judge of Penang. VaDAMALIA PlLLAY V. ShbTTHa'y AmAH. This Court has no Jwrisdietion on its civil side to entertain suits for restitu- tion of conjugal rights a/mongst Hindoos. This was a suit instituted on the civil side of the Court by a Hin- du husband against his Hindu wife for restitution of conjugal rights. The woman pleaded cruelty and violent assault. There was no evidence as to the duties of husband and wife according to Hin- du law.-f- His Honor the Judge held that the Court had no Jurisdiction iii such cases, and referred to Hyde t. Hyde and Wooduiansee, 35 L. J. p. & M. 57. ■)• See I and 2 Strange's Hindu Law, as to its being a criminal offence by that law. 271 SUPREME COURT. IStli September, 1869. Before Sir Wm. Hackett, Judge of Penang. Eozells versus Che Dean. An action for slander in the tvords following "you are a great rogue, a great thief, you are a beggar and I consider you to he equal . to" 8fc, is not mcfintainable without proof of special damage. This was an action hv sliinder spoken in tiie Malayan language as follows, "Loo ada besar saiupanchuri, liang bangsat punia onuig, akn sania haiig siiina" (fee. The declaration alleged that by means of snch slander the plaintiff was injured' in liis ciedii and reputation as a trader witliont allejiing apy fnrther damage. The defendant pleaded tiie general i^sue. No special damage was proved. ilfr ioya/i for the defendant contended, that the words were not actionable without proof of special damage, and that the case fell with the class of cases known as "damnum absque injuria" and the ac- tion could not be maintained. Mr Bond for the plaintiff contended, that the words, especially "you are a thief," were actionable without proof of special daniaLfij and cited Munis vs. Leford, Cro. Jac. 134., Showel vs. Haman Cro. Jae 464., Thomson vs. Carle Cro. Jac. 162., Roberts vs. Cauder 9 East. 90. The. Court HELD, that the words were not actionable without proof of special damage and gave judgment for defendant with costs. 2l8t December, 1869. Before His Honor Sir Wm. Hackett, Kt, Judge of Penang. WALTER SCOTT LORRAIN & ore vs. NEO LEANG & ors. If A sells goods to B. and the memorandum of sale is silent as to whether the sale is by sample or not, parol evidence is not admissiblct to shew that it teas a sale by sample. In the case of a sale of damaged goods the maxim caveat emptor applies as by the terms of the bargain, the purchaser has notice of the defect and has an allowance made him for it, and it is his own fault if he does not sufficiently protect himself against the riski^ incidental to such a purchase. In all cases where the purchaser is satisfied without requiring a warranty, in the absence of fraud, he must bear the risk. Where goods are sold by sample, and on delivery but before ac- ceptance they are found not to correspond with the sample the pur- chaser might in that case, if the right of property has not passed t^ him, be justified in returning the goods. PENANG. 272 The Judge, — Tlils is an action brouiiht to recover tlie sum of $ 3020 — ' with interest fi'oin tlie 12th of August last, for breach' of • an alleged promise to si^n a promissory note for that sum, being tlie price of 30 packages of Turkey Red Twist b'ougiit of the plaintiffs by the defendants. The defendants have denied the promise as alleged. According to the evidence for the plaiiitiifs, the first named defend- ant ( a partner of tiie otiier defendants) went to tlie plaintiffs' go- down on the 9th August, and purchased Iwo bales and twenty eiifi, le^s^ 10 per case for mildew — terms 3 months, which memorandum was signed by the defendant, Neo Leang. This' was the contract as it appeared from the wriiten memorandum, and further, the plaintiffs' clerk, Mr. Tolson, who effected the sale, states positively that he did not warrant ihe condition of the goods in the unopened cases, and that it was iinpoasible he should have done so, inasmuch as he had no means of knowing the state of the contents. He says, that he made an allowance for damage, as set forth in the written memo: without qiialiCying the extent of the damage. He also denies that he ever said that the three cases which had been opened were a Faniple of the renminder. In opposition to this the defendant, Neo Leang sweais that,lhere w;is an agreement that the remainder of the cases should be as little damaged as llie opened cases. The goods were delivered to and received by tliedefendiuits in due course. But when they came to examine the yet unopened ca-^es, some of them were found to be so much damaged, and some of them iso ut- terly worthless, that the defendant Neo Leang begged of the' pUiin- tiffstomake him a further allowance, Some negotiations then toyk 273 SUPREME COUUT. place between tliem t(i wliicli, inasmucli a* lliey were fruitless, it is ■ utinece^fary (0 refer particularly. And on tlie24ili Aw^a^t, Mr. JBond, Ihe defendatit.s' attorney, wrote to tlie pliiiiKiffs, requiring tlieni to take back 24 of the cases on the ground iliat tliey did not corrpspond- with the sample. Four days after that notice, the present uciion was brought. It is contended by Mr. Bond, on behalf of the defendants, tliat the sale in this ca^;e was a sale by sample, and further, ihat ihe plnin- tiflfs warranted the remainder of the goods to be of the same qunlity, that. is to say, as little damaged as ihe opened cases, and the other cases proving when opened to bamucli more damaged than thesanii. pies, that the defendants weie justified in returning them. But are there any circumsiances in this case from which it can be collected that the plaiutifFs intended to guarantee that the un- opened cases were as little damaged as the o|)ened ones. Because, Ihe warranty insisted on by the defendants is not the ordinary war^ ranty ihat goods are of a certain quality or description, but i,i is tiuit goods supposed to be damaged were not damaged ftiore thaJi certain other goods. Now, in thi* case there was a memorandum or entry in the plain- tiffs' sales book, containing the terms of the sale and signed by Neo Leang and which must be looked on as the contract between the parties. It is true that Mr. Tolson states, that he did not read over this memo: to the defendant, but still I iliiiik, it must be assumed that he was aware of its terms, for he states, thatJMr. Tolson, after they bad agreed on their bargain, wrote something in a book, and'begoes on to specify what was thus written-, namely, "2 bales and 28 cases at^^lO per case — with an allowance of $ 10 on each case," which, as has been seen were precisely the terms of the written memo: I think therefore that I am justified in taking this to be the contract between the parties. Now this memorandum is quite silent as to any warranty, there is no mention whatever of any sample, it merely states the price of the goods and the allowance of $ 10 per case for mildew, generally. Assuming therefore, /or the moment, the defendant's statement to be true that he only agreed to buy the goods on the understanding that they were of the same quality as the three opened cases, yet as there was no mention made of this stipulation in the written con- tract, it.seerns to me that parol evidence cannot be admitted to show that it WHS an essential part of the bargain. In Meyer v. Everth 4 Campb. 22, it was held that if the sale note do not contain a stipulation 'th,at the goods are equal to a 8aini)le, PENANG. 274 pnrol eviilence tfi prove it is infidfiiissible, II was alE^fANG. 276 The Chief Justice. — Tlie plaintiff ii])pears to be a mere volunteer and desires the aid of the Oonrt to aid a detective execul ion, 1 donbt if the Deed could be construed as a declaration of Trust even. Tlie Bill must be dianiesed. Bill dismissed, (a) (a) See 2 Spence 891, 192, 902, nete c. 909, 912, 913, 914, 57^ Lemn on Trusts, oh. 5. § 2. p. 62, 84, 85, 86, 93. Smith's Man. of Eq. 27, 43 2mh August 1870. Before Sir P. B. Maxwell, Knt., Chief Justice, S. S. KOH BUAN «. TEOH CHOON. A Promissory/ Note with a 3 cent adhesive stamp thereon is not properly stamped, and therefore not admissible in evidence. So in an action on a Promissory Note under Act Vofl^&& such note was rejected in evidence, the Court granted leave to add the common money counts and go to trial instanter. There is no necessity for filing a declaration in an action under Act V of 1866, until appearance has been entered by the defendant. This was an action commenced under Act V of 1866, on tlie de- fendant's inland Promissory Note, payable on den.iand, having a three cent adhesive stamp thereon, at the trial the note was tendered in evidence, Mr Woods ior the Defendant objectect the adiniuistration of the charitable laml-. 'J'ho Judge ?aid that Act 20 of 1837 had changed the devolulioti of real ))roperty in the Sirails from the heir to tlie Exi'cuioror A There is not a word in the Charter about the Matrimonial causes eo nomine and the jurisdiction in those cases was merely one of those classes of cases which the Eoclesjastioal Court has always dealt with. Thejurisdictign in Matrimonial causes theaefore given by the Supreme Court Ordinance is simply the jurisdiction which was exercised by the Court of Ju- dicature as an Ecolpsiastical Court, and the contention of the Defendant is that this suit having been brought on the Civil side, the Court has no jurisdic- f^n in -as-much as all suits of a Matrimonial nature should pjoperly be brought on the Ecclesiastical side of the Court. The principle involved in the question thus raised is of some importance in-as- much as if suitors are declared incompetent to bring suits of a similar descrip- tion on the Civilside of the Court, a very large proportion of the Inhabitants of these Settlements will be deprived of those remedies which the law gives to husbands and wives professing the Christian religion, who sue for redress in the proper Matrimonial Court. . The case of Ardaseer Citrsdjee v Perozeboye ( 10 Moo. P. C. Ca. 375) decided that the Supremo Court of Bombay on its Eccle- siastical side (and it must be remarked that the "Words of the Bombay Charter of Justice conferring Ecclesiastical jurisdiction are very similar to those of the Penang Charter) had no jurisdiction on its Ecclesiastical side to entertain a suit, by a Parsee wife against a Parsee husband for restitution of conjugal rights as there existed such a difference between the duties and obligations of a ma- trimonial union among Pavsees from that of Christians, th.at the Court jf it made a decree had no means of enforcing it except according to the principles govern- ing the matrimonial law in Doctors Commons which were in such a case in- compatible with the laws and customs of Parseos. The effect of this decision was to exclude all persons except Christians from their right to bring Matrimo- nial suits in the Ecclesiastical Court, and as the only Matrimoni.al jurisdiction expressly given to the Supreme Court is as I have shown that exercised as an Ecclesiastical Court it becomes necessary to consider whether under the gene- ral powers conferred upon it, the Court on its Civil side has power toon tcrtam such a suit. The general powers of the Court .ire. defined m the 23rd section 28'j, sOpRKMb couin. ijfXlie Sii|ironi,-' Ci)nvt Ordinance as lollows : '-The ('oiii-t sliiiU linve .siiuli juri,-;- diution and authqrity as tlio Coiii't of i.^ucpn'.s Deiicli and the Justices thereufi and also as the Court oi'Chanoory and fhe (Jourts of Common Pleas and Bxoho- iiui.r i-ospoctively and the seveial Judges, Jlijstieesand Barons thereof resfiectivo- ly huve and may lavvfully exercise in l'>n;!;ia!id in all Civil and Criminal actions.'' The Court then possesses the powers of the tiuperior Courts in Enghind and cannot exorcise any Jurisdiction which would not be properly exerciseable liy those Oonrts. In deciding wiiutlior this suit is properly brought, It is necessary tlierefore, to refci' to the law of England and to those institutions in which our Supreme (^ourt lias been mi)del!od, in order'' to ascertain what are the pro[ier limits of tlie jurisdiction of the Civil and Ecclesiastical tribunals respi^ctively, and how far this Court is bound by those limits as established by precedent and authority. ' Now it cannot be deniedthat the present suit is novel; ;I cannot say that is jpiima'.iHjpi'e.Si!Hji!.is as there are some petitions similar to 'the present, on the files of the Court, but this is the first case in which as fir as 1 am aM'are the question of the jurisdiction of the Court has been formally raised. In England it is perhaps needless to say that no such suit as the present has ever Ijueii brought. It is well linown that from the earliest times in the history of our law, the Ecclesiastical Court assumed owlusive cognizance of curtain niatri- mouial questions and especially of those in which either a divorce or a leiirlcr- ing of conjugal ri;;lits was sought. The jurisdi ction of the Siiirhual Judges lo decide upon the delicate quistions arising from the relations between husband and wife wa^ never dispmtod by theTemporal Judges, ^and remained nutuucli- od by the Parliament. It is alleged as a reason for this, that as marriage . was admitted, by the religion of the country to be a Sacrament, the juvisdictiou of the Ecclesiastical tribunals, could not well be disputed. But I think a suffi-" cient reason may be found in the consideration that in these mati-imonial mat- ters which were considered to fall peculiarly within the cognizance, of the Spiri- tual Court the ordinary tribunals of the country w.ould have been incompetent to afford a complete remedy. The Common Law Judge indeed might have for- cibly compelled the delinquent husband or wife to return to the conjugal abode, but how co.uld he possibly have pretended to enftn-oe the rendering of the cun- jiigaliri ohscqnia which were sought for by-tiio oomplaina,nt. 'J'he Conunon Law therefore feelirig itself p<)worless to deal with these matters, wisely withdrew, and decided to leave them to be dealt with by the' Judges whose peculiar pro- vince it was to settle matrimonial disputes. The same aoithority which' had united the spouses togotUe.r was foimd to be the most fitting tribunal to appeal to in matrimonial disputes. The Ecclesiastical Court could act upon the guilty or rebellious spouse 6y monition and in case of need by excommunication. It could appeal to the conscience which in the, delicate relation of husband' and wife is the on\y forum where' complete reparation can be made. The Common Law Courts might indeed force the reluctant spouse back to his home but once there it must leave him. But the objject of the Spiritual Court was to restore peace to the household and to engage s|)ouses to render to each other that mutual lov.c and affection which they had Towed at the altar. Gradually, no doubt the proceedings of the Ecclesiastical Courts ceased to he Gharactorized by that paternal solicitude for the welfare of those who sought its aid which at first rendered them the fittest tribunals for the se,ttleraent of matrimonial disputes. In process of time they became in effect mere lay tribunals presided over by laymen, and, the spiritual punishijienta,^ which ori- l-liNA.NG. 286 p;in:iUy they wei-e iible to invoki^ in aid of their decrees, et-asod to have any ter- rors for their objecits. The term restitution of conjugal rights came to moan nothing- more than a reliivn to eohuhitation in a dwelling in the same house. But notrtithsfcandiiig this alteration of their oliaraoter, the Ecclesiastical Courts continueil to [ireserve the e-'ii-lnsive cop!;nizance of all suits of a matrimonial nature which tl\e\- liad held from the oai-liest times, and the ordinary tribunals made no attempt to iutei'ferc with theni in the exercise of this jurisdiction. ITow far at Common Laiv the husband had a right to the custody of his wife seenis to liave been doubted in some of the earlier cases See Rex, v. Marif Mend 1 Bun. 542., Rex. v. Listi-r 1 Str,, 478. But in ex pcirtt SiutirU.mds, 21 L.> .1. Q. B 342., the Court of Q. B. refused an ap]ilication on the part of the busba.nd for a writ of /iafteas coi'pv.s to bring up the body of his wife, it ap- pearing upon the affidavit that she wag staying with her 3(m against wdiom the application was made, by her own ooii,seQt, and that no coercion or imprison- mei,it had been used towards her. Lord Gamiihi-ll O.J. on that Occasion said : —'-If this writ wei-e to go, and the lady were to be produced in Court, she would be at liberty to follow her inoliaation, and to return to her son's protec- tion, aud wo could not make an order npon her to return to her husband. The constitution of this country' has wisely pointed out a tribunal wdiere such a subject may be dealt with ; and if the applicant shews that his wife has no good cause for living apart from him, there will be a decree in the Ecclesiasti- cal Court that she shall return to him, and reside in- his house, bed and board being restored. But here it is clear on the Affidavits that the lady is under no restraint. 'The case of infants is totally different, for there the father has a right to the custody of his child ; and if he is deprived of that righ\ and the child be of tender years, the Court will order the child to be restored to hjs fa- ther ; but the Court has no power to restore a wife to her husband, and a writ of /laficfts eiirpus in this case, if granted, wyuld be wdioUy nugatory. It is e- iJViugh,''howevef, to siiy that the Court has no power to grant the writ, " Assuming therefoi-e, as I must assume, that this Court has merely the ordin- ary jurisdiction of the Superior Courts in England, rtfoUows from what I have' said that as a general rule, a suit for restitution of conjugal rights does not lie on the Civil side of the Court. The petitioner however in the present case rests her claim on the circumstance that being a Chinese she cannot sue in the Eo- olesiastical Court and that her only remedy is on the Civil side of the Court. And it is urged that although suits of this nature have always in England been left to the determination of the Ecclesiastical tribunals, still the powers of the ordinary Courts of the country are sufUciently comprehensive and elastic to authorize them to interfere whenever a fitting occasion arises 'to call for then- intervention. Now it appears to me that this argument is founded on purely speculative considerations and that it involves a pure assumption. It is difficult now to say positively, why the Common Law Courts refused to interpose their authority to compel the co-habitation of husband and wife and in many other questions of a matrimonial nature, but it seems to mo just as reasonable to suppose that the abstention arose from the feeling that those matters were beyond the pro- per scope of their powers and that thoy could only be properly dealt with by tribunals which could act upon the consciences of suitors, as that it was solely owing to the circumstance of marriage being deemed a Sacrament, I do not therefore feel myself justified, from any speculation as to what might possibly have been tlie policy of the law in fixing the boundaries of jthe jurisdiction of 287 SUPREME COUllT. tlio various tribunals of tho couatry, or from any opinion 1 may Chtortain as to the oxpansivcness and elasticity of the common law in extending it beyond^ those limits which precedent and authority have assigned to it. As Baron Parke observed in Egeiiy,b v. Bivw:ilow. ( 4 H. L. 0. 123 ) '• it is the province of the Statesmen and not the lawyer to discuss and of the Legis- lature to determine what is best for the public good and to provide for it by proper enactments. It is the province of the judge to' expound the- law only; the written from the Statutes ; tho unwritten oV common law from the decision of our predecessors and of our existing Courts upon the principles clearly to, be deduced from them by sound reason and just inference and not to speculate what in his opinion is best for the community." It is *isy to illustrate tho difficulties which might arise from admitting the priuciple.thata judge is authorized, when an injury has been done, for which the law gives no, remady, to enlixrge his jurisdiction, to meet the exigencies of the case, I will suppose the case of there being no Court here pofsessing Admiralty Jurisdiction — a supposition >vhich might at any time be realized,. Would it be , competent, to the Judge on the ground that there was no other tribunal empower- ed to deal with Admiralty cases to assume to himself on the plea of necessity. Admiralty jurisdiction. ^ This I think could scarcely be contended for. It is clear that every Court is bound to exercise its jurisdiction within the limits im- posed upon it by law, and that those limits cannot be exceeded except by the ,authority of the Legislature. , I am aware that Sir B. Maxwell considered himself bound by the suggestioij which wasunade by Dr. Lushiugton in the case of Oursetjee v. Perozeboy, when that lj>itrned Jjudge said. ^''We should much regret if there were no Court and no law whereby a remedy could be administered to the evils which " " ~ ' and he goes lij Civil might' t|,d= rly approaching to thenT STircumsAirofe*! ■would admit." But it must be remembered that in using this language Dr. Lushington is speaking of the Courts of India. Now the Courts of India have special powers conferred upon them with -reference to native lavrs which this Court does not possess. As Doctor Lushington observes " The Civil Courts of India can bend their administration of justice to the laws of the various suitors' vrho seek their aid. They can administer Mahomedan law to Mahomedans, Hindoo law to Hindoos." No such powers have been conferred upon this Court and tlie ■ omission from the Penang Charter of the clauses of the Indian Charters autho- rixinf the judges to decide in certain matters according to Hindoo or Mahomed- an law is remarkable and significant. Tho maxim expressio uniiiB, cxchisio alterms seems to me to apply, especially when we consider that both the Indian Charters and oUr own emanated Irom the same department of the State. I am therefore of opinion that Dr. Lushington's suggestion however just it may be as applied to the Courts of India is quite inapplicable to a Court constituted like our Supreme Court. Bvit it may be said the parties are in the position of foreigners and the aid of the Court is sought in a matter arising out of the contract of marriage which is juris gentium and they are entitled to relief on the ground of comity. It is true as Lord Stowell observed of marriage there that is a jits gemtiimh .upon this matter, a comity which treats with tenderness, or at least with toleration, the opinion and usages of a diatinct people in this transaction. In this Court I'ENAMG. 288* the marriages of Chinese, Hindoos and Mahomedans have always been recog- nized if contracted in accordance with their respective laws. In questions as to the legitimacy of off?;pring and for> other purposes these unions ought no doubt to be upheld. But a totally different question seems to me to be raised when the petitioner asks the Oourti to exercise its jurisdiction t(( meet the case of an injury which she alleges she has sustained. The observation of Justice Story upon a siuiilai; question seems to me deserv- ing of citation. ■' It is universally admitted and established, " says this learned Judo-e " that the forms of remedies and the modes of proceeding and the execution of Judgments, are to be regulated solely and exclusively by the laws of the place where the action is instituted ; or as the civilians uniformly express it, accord- ing to the 2ex/ori. The reasons for this doctrine are so obvious, that they scarcely require any illustration, each nation is at liberty to adopt such forms and such a course of proceeding as best compats with its convenience and in- terests, and the interests of its own subjects, for whom its laws are particularly designed, all that any nation can, therefore, be justly required to do, ia to open its own tribunals to foreigners, in the sEtme manner and to the same extent, as they are open to its own subjects and to give them the same redress as to rights and wrongs which it deems fit to acknowledge in its own Municipal Code for natives and resident. ( Story Confl. of Laws, ss. 556, 557. ) On the whole I am of opinion that the suit for restitution of conjugal rights is by the law of the Colony and by the constitution of the Supreme Court, a re- medy peculiar to the Ecclesiastical side of the Court and that the Judge on the Civil side has no jurisdiction in such a suit. ]6th March 1872. Befokk Sik Wm. Hackett, Knt., Judge of Penatig, FATIMAH AND OTHERS vs : DANIEL LOGAN and othkks. Penonjf having been taken possession of in the name of the King of England far the use of t/ie East India Company, the law of England was immediately im- ported into it, and all laws previously in existence wis thereby abolished. The mere fact that at that time there were few wandering fishermen on the Island does not take it out of this general rule of law, as they could not be regarded im the same light as the inhabitants of a settled country with laws of thevr oiim, and who are entitled to the benefit of them wntil changed by competent authority. Nor does the circumstance of possession of the island being taken by an officer of the E. I. Company prevent the transfer of the sovereignity and dominion of the island to the Crown of Oreat Britain and Ireland, especially as by the Act 53 Geo. 3. C. 155. s. 95. the undoubted sovereignty of the Grown of England over all the ter- ritorial acquisitions of the Company, was preserved. At all events, if the' Eng- lish law was not then imported, it was imported by the Charter of 1807. A Clause prohibiting the devisees and legatees from "proceeding to law in any Court or Courts for their said shares " under the pain of losing their legacies, is void as being repugnant ani inconsistent with the gifts, as' property is insepar- able from the right to institute legal proceedings, and the protection of the law. Though by the Mahomedan law concubines may be incompetent witnesses to prove a divorce, still that is no reason why their evidence should not be received in a Court of Justice, as the competency of loitnesses is to be determined by the 289 SUPREMK COURT. law of the place where the qnestion aj'ises. where the retnaly is sought to he enforc- ed, and where the Court sits to enforce it. . • If a testator gives ce^iain persoiud prop&iiy, {imning tlieml to legatees, and m a subsequent paH of his Will he gives tlie whole of his personal property to Us Executors vipon certain trusts, such latter pa/rt idM not prevail over tlifi former as bemg irreconcilable with it on the principle that it deno tes'a subsequent intention, as this rule only applies o^% the failure of every attempt to give to the whole ot,A 0; constriKt'uyn as will render every pa/ii of it effective ; and the gineral terms of the latter shall not be held to control the distinct terms of the former.: A testator having devised 11 pieces of land in P. particularly described in Us Will to Trustees, directed that the lands should be called the ' ' Whahkoff of M. N.,"and he further directed his Trustees out' of the rents and profits of the said lands to-pay for ever the sumqf$20 monthly to the, managing body of a School in Chulia -Street, Fenang, also the sum of $60 monthly io the pititioner T. C. M. amd her lawful isme dwing their rwutmul lives, the sum of$4:0-month- ly for the maintenance of o?ie of his sons and his wife. The testator then gme the residue'ofthe said devised premises upon trusts as follows :— "to expend for theyearly performance of KandMries and' entertainments for 'me and in my nams^ to commence on the anniversary ofnvy decease according to the Mahomedam re- ligion or custom, such Kandooriea and entertainments to continue for ten succes- sive days everg year,- and also in the performin.ce of an. anmud Kandoorie in the name of all the. prophets, and to expend the same in giving a Kandoorie or feast according to theMahomednn religion or custom, to the pool- for ten successive days in every year from the anniversa/ry of my decease, to the extent of fh/ree hundrpd dollars, indwdirtg the costs of lighting up the Mosqne or hirial place of my de- ceased mother and the schoolrooms thereto adjoining- And also to give Kamdoories orfeastk to the poor as aforesaid, once in every three months to the exjteKt- of oiie htmdred dollars, and provided there shoidd remain any smpVm monies -then the same.is to be 'expendad.in purchasing clothes for disti-ihution to the jioor."— Held (firstly) that the pu»t for the school was a good charitable gift, and therefore^ valid. — Bfihv I (secondly) that fte gift to T. G. M. amd her issue was a gift' to her, for life, for her sole and separate iise, with remainder to such of her child/i'm, as were in existence at the time of the testator's death as joint tenan is for life- That the word "'issues " was used in the sense of " children," and was a word of pu/rchase and not of limitation, and as the gift was oiHyfor life, the children born after testator's death could not be lei in.— 'HsshD fthirdlyj that the gift of the residue of the rents and profits for Kandoories Sc.^ was riiot a charitable gift but void as tending to a perpetuity .—U-Ehu (founihly) that the gift for clothes to the poor was a good charitable gift, and as the _amount of the surrphts monies with which it was to be paid, wcks suffi^ciently certain, 'the gift of the surplus was valid! By a cla/use, the testator directed the rents and profits of his estates, after deduct- ing the expenses of collection amd management, to he divided into twenty four shaures, which shares were to be held upon trust for the benefit q/ his children thereafter named amd jiheir^ issues. , The testator then proceeded to distribute these twenty fowr shares amongst his children and grandchildren in certain propor- tions, and finally directed as follows ; " I direct that the annual income of the said share'^or Biares sq set apart for nvy said sons and gra/ridsons and their respec- ' tive issiies in the said trust estate and premises shall be paid to the saifne son or grandson dming his life, and from and after his decease that his said share or shares shall be held in tntstfor all suA ones born ir\> his lifetime at such ages and 'i mes as he may by any writing under his hand or by his Will appoint, and in ds- I'KNANG. 290 f'lu'.t of su-^h app^intm-int (&{>, in, trust for all his children who henig a son shall attain the'age af tW6itty orw years or being a daughter shall attain that age' or marry m equal shares and if then there sliall be but ont svch child, the whole ■ to be intrust for sush child" — Held ih'it if wasnot void on, the ground of reinote- ness. A teslatur by his Will gave a legacy to M. N. and his issite. and directed that in cose he died ivithout issue his share was to go to A. C. J. and. R B. and ih'ir issues in eqiial shixns. lie^also gave a legacy to A. C. J, and directed that in case he died withmi ismehis sh^ire ivis to go to M. N. and^R B. ;A. 0. J. hav. ing died in the lifdi,mi of the t'Mntnr without]issue.—UBLn that the words '-die lenving no issue'' apply to dea.th in the- testator's life timsand' that the gift to A. C. J. did not lapse, but the ulterior gift took effict as a simple absohde gift., A testator by aportionof his Will devises his lamds sitiiate at A. amd T. for cer- tain purposes, and in a siAseqnent paii of his Will he devised the rest and residue of his estates at P. and. P. W. or elseivhere I'exclnsive of those which he had by f^eed of gift given to his children i-.id grandrJiildren) . ' ' for certain other pv,rposes . ' ' llzLD that th 'Sfi two clauses where not inconsistent, as the word^ '-rest and residv" , excluded w^i, it the testitnr h%:l already given, and the effects of these words iverc tu)t effected by the parenthetical clatise. The Judge. —Ill this case a peiition lia« been filed on tlie Equity piiln of'ilie Coiiit l)\' Faiimiiii stvlini^ iierseif the widow of tiie Jjiie IMiiliomfiil Nocirilin and Tengiih Chee Mali, lii-i dauii liter, anil ilia liiKliaiid oF tlii> laitcr ao^^iirist tlie Execufors iunl tlie per-iona iiiterest- es'' ( 2. Moo. P. C. N. S. 59.). But it seems to have been thought iliat Peiiang did not come .within flieoperaticm of the rule to which I have referred^for two reasons: — fire benefit of them nniil ehanued by compeient authority. Neither do J think tliat tlieciiNHimsiances of p'o-isetision of the Islarid being takt'n by an Officer of the Eist Lidia Company for and on behalf of the Company, prevented the' transfer of i he sovereignty and doniinion.of the LUnd to the Crown of Great Britain and lr(Jand. Nothing Cfin, be clearer than ihe deteruiinatio n of Parliament to preserve the undoubted sovei'eignty of tlie Crown of England over the territorial acquisitions of the Company. T bi< is shewn by ilie declamatory clause in Act 53 Geo. 3. c. 155 s. 95 "Provided always that no- thing herein coiitaineii shall he construed to extend to prejudice or affect the und.iubted sovereignty of the Crown of tlie United King- dom of Great Biiiain and Ireland in and over the said teiiitorial acquisition-j.'' And indeed it is difficult to conceive how any Eng- lish Company could wiiliout the clearest and most positive ued by the Attorney General that Penang was a dependency of Fort William in Bengal and therefore subject to the same laws as tliat Presidency. And as by the laws m force in Bengal, Maliomed;ui3 were entitled in all maiters of contract inher- itance or succession to the bbuefitof their own Iaw,MahomedaRS in Penang must be hold entitled to the same privilege. Plf>ANR. 294 III support of li'n proposition he lia* cited Act 13 Gt>o. 3. c. 63 s. 38. which t'lrtpowpr-' the Govi>niur Gein^nil jiml Council al Fat Williiiin to iii;ik(> rule- and oidinavice^ for GoveriimHnl. of plnces siibordina.te (fuTwto iind 21. G^<>. 3. c. 70 ss 17 and 18. And wiih lejjiinl to the first lu^ntioned Act it is sufficient to ob- serve that MO laws or reuiiliitions ever were made in pnrsuiince thereof \\U\cU afFi'Oted the !^ettlemnnt of Pensinsr. Indeed it ia not a little reniMrkaUle thtit for many j'f^urs the Indiiiii Government was of opinion liint it had lio power to lefrislate fof the Islaml, and it is only about the yenr 1800 , that we find the Advocate General of the Indiaii Government expre~sin^' his opinion that the Govefnor General was authoriz d toeiiaci; laws, Civil and Ciiminal, for the Go- vernment of Pfince ot Wales' Island in the same manner as he did for the I'i'ovince of Bencjal. And as to Act 21. Geo. 3. C. 70. s--. 17and 1^ they in terms ap- )>Iy only t.o the jurisdidtion of th'e Snpi'eine Court at Fort William over the inliabitahts of Calcutta, and therefore do not affect the question. The Attorney General also called my attention to wjiat he term.^ an ordinance of the Governor General in Council, which lie said has been overlooked by all th'e Judges. Ii is f .und in a letter ot in- straetions addressed by the Chief Secretary to the Indian Govenv- iVient to Sir G. Leith, Lieut-Governor of the Island, dated 16tl) March 1800. In this letter under the lieading of 'JA)lls decided that a proviso that if any di^ipute arose between hi-< devis^efs it should be referred to arbitration, and tliat if any devisee took proceedings at law or in Equiiy, his estate should go over, was invalid, as being repugnant and inconsistent with the gifts. In that case the M. R. said ; "The effect is the same as if the Testator had said, 'I give yon this property, and I impose on you a condition, tliat if you resort tit any legal proceedings ne3eiin returned to live in the house of i)er husband (oxcept when her hiisbsirid was on hi-s deaih bed) seems to me iinconsis'ent, with the supposition that slievvns ever restored to the position of a wife. The evidence of Nina, Noi>rdin who stages that in 1.864, thir- teen y,eai'» after ilie alleged divorce, his fati^er told iiim to order Fa- tiniah lo Cleave the house in wliioh she was living, because she was a divoreed woman, shows clearly fhatNoordin himself considered tiie divorce as binding and it may. be not immateriai to mention as sure evidence of Nnordin's estrangement from his former wife and the. mother of iiis children that siie is not even named in his Wjll. It has al-;o been nrged by the attorney General that there is not snffioient evidence of the divorce, because the two concubines ndio testify to havinu' been present^ are competent witnesses according to Maho medan Imv. Bnt in my opinion that is no reason why their evidence r, are bcqueatlii^d to ihe Executors of the Will in trust, and the petition {riiesoii lo eharije that the subsequent bequest ot thepersoriiilfy over- rules and renders void the previous bcqut'St lo Ihe i"o natural sons. 'J'lie sections tlius reft-rred to are as follows: — [3rd an'd'4th Sees, read in pxienso.] The contention is, that these two spciions are irreconcilable so that they cannot possibly stand lojiHther and therefore ilie 4th section must prevail, on the principle that the subsequent words of the 4ih clause are considered to denote a subsequent intention. But this rile which sacrifices the former of several conradictory clauses is never applied but on tlie failure of every attempt to give lo tlie whole such a construction as uill render every pari of it effective. ( 1 Jarm 4'45) Now here we have in the 3rd section, gifts of ceitain specific parts noOTJwd^m of the. Testator's personal properly, and in the subse- quent section a gift of all his personal eslate and effect* whatsoever and wlheresoever. This it seems to me is a cafe in whicli the rule, that a devise or bequest in general term*, shall not be iield to control an- other devise or bequeet made in distinct lertps, may be pioperly hold to apply. InBorrelly. Raigh (2 Jur. 229.) a Testatrix devised all her messuages, cottages, closes, land and hereditaments at H. to A. and afterwards gave all her copyhold estates and herediiainentswt N. and 'Wixnyi elsewhere. It appeared that the only place besides N. and T.ih which the Testairix'had copyholds was H, but Lord Lanj^dale held that the prior devise which clearly carried the copyholds at H. wa.s not defeated by the vague expression which followed. Upon the same principle, I think, the specific bequests in the 3rd section of the Will, are not defeated by the general bequest contained in the 4tli Section. The next question is one. raised in the 7th par. of the petition and arises in the 5th clause of the Will. By that clause, the Testator aftfir certain bequests, directs the res- idue of the property divided and bpqueathed in the 4th clause, to be divided into tweniy four equal shares; and he then proceeds to distri- bute these shares among his children and grandchildien in certain proportions, and gives one of these shares to his grandson Abdul Cader Jellamy. Abdul Cader Jellamy having died in ihe lifetime of the Testator without issue, it is contended that his share lapsed, and I think, there can be no doubt that his share did so lapse, and that it falls into the general residue of the Testator's Estate. 3y3 SUPREME COURf. Tlie next c[uestion arises on tlie 6th section of tlje Will. By tliat feciioii tlie testaior devised eleven pieces of liiiid in Penany:, parii- cularly desciibed in liis Will to trustees, and directed tluit the lands shonld be culled the " Whahkoif of Malioiried Noordin" and he fur- ther directed his trustees out of the rents and profits of the said landsi lo piiy for ever the sum of Twenty Dollars monthly to the managing hody of a school in Chulia Street Penang, also the sum of sixty Dol- ]»vs monthly to the petitioner Tengah Che Mah and lier lawful issue during their natural lives, the sum of Forty Dollars monthly fur the maintensmce of one of hi< sons and his wife. The Testator then gave the residue of the saidjdevised premises upon lru>t as foUows: — "to expend for the yearly performance of Kandoories and entertain- ments for me and in my name, to commence on (he anniversary of my decease according to the Mahomedan religion or custom, such Kandoories and entertainments to continue for ten succes-^ive days every year, and also in the performance of an annual K.andoorie in the name of all the prophets, and to expend the same in giving a Kan- dftouie or feast' according to the Mahomedan religion or custom to tlie poor for ten successive days in every year, from the anniversary (if my decease, to the extent of Three hundred DoOars including the cost of liglifcing up tlie Mosque or burial place of my deceased mother and the school-rooms thereto adjoining. And al.so to give Kan- doories or feasts to the poor as aforesaid, once every three months to the extent of One hundred Dollars, and provided there should re- main any surplus moneys, then the same is to be expended in pur- chasing clothes for distribution to the poor.'' The petitioners maintain (^ee lOih par. of petition) that this devise is bad in law, and that (he said eleven pioces of land shontd fall in the residue of the Testator's Estate. Now this is a devise to Trustees Aipori certain Trusts which I will take seriatim. First, then there is a trust in favour of a school builc by the testator "for the learning in English, Hindostanee, Malay, Tamool, Mals^bar, and the Alkoran" wldah seems to me a good cha- ritable gift and therefore perfectly valid. Then there is a trust for the support and maintenance of Testator's daughter Tengah Che Mah, the sum of Sixty Dollars per month, to be paid to her andher lawful issues during their natural lives, fpr their sole J^nd separate use without power to dispose of the same by way of anticipation. Here, tiie testator evidently intended to make a provision for hir daughter and her children. I!uf in the manner in which it.is to be carried out is not very intelligible. Prima, faci^ his & gift to his daughter and her, children jointly, but then there are the words "hv their and her sole and separate use without power to dispose of the PENANG. 304 Piime in tlie wny of (inticipation," ami besides there is tlie commRiice- inent of ilie olnuse co\taiiiiiig the gift in wliic-li it is said to be " for tlie support and maintenance of wy daugliter Tengali Che Mah," sliovving that she was the primary object of tlie Testator's bounty. On the. whole I think I shall be^st effectuate the testatoi;'8 intention by holding it us a gift to his daughter foi" life for lipr sole and sepa-, rMte use, with remainder to such children as were in existence at the time of the testator's death as joint tenants for life. The word "is- sues" seems to be used in the seihsc of "children.'' • At any i-ate it must be construed as a word of purdiase and not of limitation^ and as only life estates are given to the "issues," I do not think the . gift can be construed so as to let in children born after the Testator's death. Then there is a sum of Forty Dollars per month to be paid to Shaik Meydin for the maintenance of Beebee and Habib Mnho- med Merican Noordiii in accordance with the terms of ^ certain marriage Settlement. Upon this no questson has been raised. Then there is the trust of the residtae^of the rerits and profits of the subject of the devise, and I have to express my regret that the question of the validity of these trusts were not more fully argued. The purpose of this trust seems to be of a ceremonial, religious, and also of a fes- tive nature. They are-described by the Tt^ataioras "Kandoories and enterlainments for him anil in his name to commence on tlie anni- versary of his decease according to the Maliotnedun religion or- cus- tom.'' In'another place he s^peaks of "an annual kandoorie in the name of all the prophets," and also of a " Kandoorie or feast accord- ing to the Mahomedan relit^ion or custom to the poor for ten suc- cessive days every year from the anniversary of my, decease." The clause concludes by directing that K:indoories or feasts shall be given to the poor as aforesaid once in every three months lo the extent of One hundred Dollars and directs that any surplus which should re- main shall be expended in purchasing clothes for distribution to the poor. This clause was not discussed at. any length, and I have no means of knowing the meaning of the word Kandoorie exeept from tlie context, as there was no evidence on the point. But the whole object of this clause seems to be lo i)rovide funds for certain e«rem.onial entertainments to be given in honour of the Testator in accordance with the Mahomedan, reliy^ion or cus- tom. As the gift is to last for ever, the question arises whether it is charitable or not, as if it is not, it is void as tending to a per- petftlty. No evidence was given to show the nature and object of these feasts or Kandoories, and vwhether they are enjoined by the Mahomedan religion, and I am therefore left -to form my opinion from the words of the Will itself, and I confess that looking at the description of tiie objects of the 'Testator's bounty in the most liberal •30-) supRT.ME Court. iniiniicr, it does not appear to lue lliat tliey can, in miy •iense of the woni, bi.' fiillefl oliaritable. I do noi sne liow it can bi-! of miy public utility (0 give feasts fiv,eii wlieu iliose feants are to be enjoyed by tlie poor. For although it would be a good cliariiy to tjive niui-i to iKe pour, a feastcan scarcely be regarded in the same li^tht. Oa tlie wliole lam of opinion that the gifts in the clause are not cliaritsibJe, and that they aie therefore void. The only remaining qnestion on this part of (.he Will is a'' to the giftcf.the surplus monies "to be expended in purcliasint{ clothes for distribution lo the poor." When a Testator gives funds for jturposes wliich are illegal or unattainable and gives wbat may remain after providing for thope purposes- to a purpose which is legally good, the qneSition of the validity of the gift of the .surplus would peem to depend on whether tlie exact amount to be laid out on the prior purposes is either 8|)ecified or can be ascert ained ( C'/sajomam vs. Broton 6Ves. 404., Limbrey v. Gurr 6. Mad. 151.) The language of the testator iiere is not very cleai-, but I thin*k the clause may be construed, with- out doing violence to the language u.sefl, by iiolding that the words "to the exientof Three liutidred dollars" apply to the whole pre- ceding clause: — so tliat there woiilj be ana'nnnal "iift of that amount lor all the purposes previously mentioned. Then comes the gift of ■ one hundred dollars on<;e in every thiee months for giving feasts to the poor, about which thei-e is no doubt, and then we have the gift of the surplus. If I am right in, this construction the testator would have given altogether the sura of Seven hundred dollars annually for the Kandoories or feasts, and the surplus if any stiould remain was to he expended in purchasing clothes for the pooi'. Accordin"" to this reading of the clause the surplus is perfectly capable of bein"^ ascertained, and there is therefore no objection to it on thegioundof ^ uncertainty, and as the gift seems to me to be a good charitable gift 1 am of opinion that the gift of the surplus is valid. ' The exact question arises upon llie 7th clause of the Will. By that clause the testator devises to his Trustees all the rest and residue of his real estate in l*enang or Province Wellesiey or elsewhere fexcln- siveiif what he had by Deeds of gift given to his children and grand- children) upon the following trusts. That his Trustees should lease or Jet the said lands for any term not exceeding seven years, and should bold the net income thereof after deducting the expenses of collec- tion and management and divide it into the twenty-four shares vvhiHi shares were to be held upon trust for the benefit of his children thei'ein after named and their issue. The testator then proceeds to distribute these tweniy-four shares amongst his children and grand- chiklien in certain proporlions and finally directs as follows: "I l^KNANG. 30G direct that the iuinual income of ilio said sliai-e or slinrea so set iipni't for my said sons and graiul-ioin and their respective isiissroNEHS of Penang. Tli,e lim'datkm of three modtlis, tvlthin which an ^ition imist be'hrougHt, as is required by 'the Indian Ait H of 1856 { comm.o7ily called -'The Comervanctg Art," ) applies only when the act or thing cotnplaiiiedof, bdt ncit when it edntiti- 'J'his was an action to recover $ 1,000, as damages for ti-ospass. My. Bond for the plaintiffs. Mr. B. Bodxjk'ior the defendants. Tub JoDOE.^This is an action to recover damages for trBS|)ass: The declar- ation states, that by means of the buildings erected by the defendarits, the plaintiffs have been deprived of theil- ancient rights, their premises have 'been greatly depreciated in value, &c. &c. The defendaats have pleaded several pleas: — 1, Not guihy. 2, Not prtsae.'Wod 3, They deny the public highveay. 4, That the alleged trespasses were done by and at the plaintiffs' permission and -request. 5, A plea on equitable grounds. 6, A plea which they have-since abati4<*ned. 7, That the act complained of, was done under the Indian Act 14 of 1856 (commonly called "The Conserv- ancy Act") and that the action was not commenced within three months, according to that Act , The action only depends on the 4fch and 7th. pleas, the others are immaterial. Mr. Buttery's letters written in 1867 and 1868 were relied on by the defendants in support of their fourth plea, but I think . those letters shew the contrary. I take those letters as a protest to the buildings ia question in toto, and come to the conclnsio.n tha,t there was no leave, or license whatever by, the pi nintitfs.. The next question' is on the 7th plea, and is this, wJien did the plaintiffs' right of action accrue, and whether continuation of tlie trespass, does not give the plaintiffs' right of action die et die. . Mr. Rodyk on behalf of the defendants, ^relied on the- case of Wordsworth vs. Harley 1 B and Ad. 391, but I think that case is distinguishable. The subsequent cases seem to overrule it, as ShadweU vs. flirfcJiiwsoji 4 C. and P. 333, , Whitehouse vs. Fellowgs 30 L J. C P. 305, I think then on the «4ithoritiea that the plaintiffs' right of action continues as long as the trespass does, and that the Act ajiplies, only when the trespass is completed, and not when it con- tinues. The plaintiffs on this waived their right to damages. Judgment for plaintiffs ( dWmages 1 dollar ) with costs. Tlie'24th^pril 1872. .Before Sir Wm, IIackett, ICnt, Judge of Penang. Koii Boo Am, vs : Pungulu Shaik Benan. In an action agaiiist a constMe or against a person acting und^ Act ,13 6f 1^56 or 48 of 1860, it must he distinctly and clearly stated in the declctration, and proved at the trial, that the Defendant acted malicioiisly and without rea- sonable or probable cause.' If there's any failure in this respect, Jiidgment mitst be for the Defendant. So in an action against a Pungulu for assa/ult and faise invprisonmsnt the Plaintiff clearly proved the asscmlt and itnprisonment, and also that Defendant acted without reasoi\Able or probable cause, but failed 'to prove malice on his pa7-t, the Defendant had judgnfhent. This was an action to recover $ 1,000 as damages for assault and false im. prisonment. 310 Mr. Bond appe ired for thn plaintiff. Mr. Lacjan for tli« Dcfi.Midaiit. The Judge — This is an action to rccnver damages for an assault and false im[>rit.onment. The, assault and imprisonment were cleaily proved. But the' question is, -was the Defendant Ju,stified by Statutes. The Defendant relied on a letter he had received from his suf)erior Officer, and on the 29tii Section of Act 48 of 1860, but as far as the letter is concerned, that can afford no justifica- tion. Tha?principal part of Section 29 of Act 48 of 1860, ani^on which the De- fendant relies, is in the following words, "and in every such action it shall be'' "expressly alleged in the plaint, that the act complained of was done niali-' "ciously and without reasonable orprobable cause, and if at the trial of any'' "such action, upon the general issue being pleaded as hereinafter provided,'' "the Plaintiff shall fail to pi-ove such allegation, he shall be nonsuited, and a" "verdict shall be given ^or the Defendant." (a) Now in this case I must confess there was no "reasonable or probable cause" but I also think, that the act was n<)t done "maliciously," I think that the letter to the Defendant from his su- ■ perior Officer, is an answer to charge of malice. The Defendant felt hijnself bound by his superior's orders, 'and was not acting of his own accord. These words are not in Act 13 of 1856 or any of the English Statutes. The only pro- tection the constables and those acting under the Act, had by that Act, was the notice therein mentioned ; but tlie protection afforded under Section 29 of Act 48 of 1860 is more extensive. The acting "maliciously and wlthoutj reasonable or probable cause" must bp clearly proved, and it cannot be presumed on the evidence brought forward by the Plaintiff. Judgment for'Defendmit with costs. (a) See Police Force Ordinance 1 of 1872 Section 47 S. L. 7th May 1872. Before Sir Win. Placketr, Judge of Penang. In the goods of Khoo Chow Sew deceased. ~Thfi Statutes, 31 Edw 3. c 11, and, 21. Henry 8. c. 5, tvhich giv e a widow » right to administt-ation, extend to the Straits ; and although wider these Sta- tutes the Cowt has a discretion, yet, this discretion in general is given in fa- vour of the viidow, imleis good grounds are shewn for departing from it. The Judge of the^upreme Court has the same powers ^i.; the Ordviary m'Mioned in ihese Stattdes. The words '-next of kin," in the Charter and Ordinance, are not to be construed too idri^My. lij this case there wag a Petition for Letters of Administration filed by Lira Tuan Neoh, the widow of the deceased^ against which a caveat was entered by Khoo Ghee Boon, the eldest son of the deceased by a former wife. There was alec a Petition by the said Khoo Ghee Boon, for Letters of Administvation, against which a Caveat was entered by the said L'nii Tuan Neoh. Mr. Woods for the son.— There are several objecti ons to the widow getting Administration. First, she has no locvs standi. The Charter of 1807 at page 24 on^jr mentions, the "lawful next of kin." The Statute 21. Henry 8. 0. 6. s. 2.,. whidi ^ves the widow a right, does not extend here, it is local and was made for. Christians only and uot for Pagans. The widow has no right by the Common Law. Hemloe's case, 9 Coke. 54, shews a widow has no right. The wife is not the next of kin of the husband, Watts vs. fVatls, 3 Veaey 347. The Statute, 31 Ed. 3. C. 11., only mentions the "nearest friend," this was priw to the Statute of Henry 8. The Legislature really meant what they said, wheu 311 siipKi'.ME col' in. using the^words in the words of the Charter, Glarhes Colonial Law p. p, 430 and f)33. ; Broom's yfaxiins p. 6; The India, 2 Maritime cases p. 193.; 1 MorUy's ladian Digest 240. s. 64. The maxim expressio unms est exchisio alterim i,s ap- plicable. The Court has a discretion oiuder^thc Statute of Henry 8., Fawti-y V8. Fwwtry 1. Salk36. Perhaps the other side will rely on Goote's Pro. 'Prac p. 81, wiereit is said, the wife, under the Statute of Henry 8, takes in preference to thrfchildren, and that passage cites the case of Conyers vs. Kitson, 3 Hogg; 557, but that case in no way has decided such- a thing. The, same subject is spoken of in pages 83, 167, 168. The next objection is, the widow has in her Petition, ^under-valued the Estate. The Estate is therein declared to be worth $ 100,000 whereas it is really worth % 200,000. Another objection is. the widow has not paid the fee for filing her - Petitiop. Another objection is that the lands belonging to the Estate are situated in different places and the widow being a female, will not be able to look after them as a man could. The son is a man of business .and such a man would be preferred. Goote's Pro Prac p 169. The interest of the next of kin is greater than the widow's, and it is but right for the son to have administration. The widow is also not prepared to give security and such a thing cannot be dispensfed with. In the Goods of Poqres, 34 L. J. Prob. ; Bwarris' Statutes p. 533, 578. citing 6 Bing. 561 ; Clm-ke's Colonial Laio 369, 370 ; also support the view, that the Legislature really meant what they said, and the same was advisedly inserted and not at hazard. Mr. Logan ( Mr. Bodyk with him ). The first objection, as to the widow's having no locus standi, is quite untenable. Webb vs. Needham 1 Adams 494. A great deal was said of the Charter, but it must be remembered, thp.t the'! Charter does not form the whole law. Ordinance 5 of 1868, ( Supreme Court Ordinance ) s. 27. does not say to whom Administration is to be granted, so we must fall back on the English law, by which the widow has a right. The 28th Section indeed makes use of the words "next of kin" but does not explain the meaning of these Words. [ The Judge. — What are the words of the Act of Henry 8 .' I am not the Or- diriary P I am bound by the Charter. ] Mr. Logan. I submit the words "next of kin" in the Charter are not to be construed too strictly, for then they would do injustice in great many cases ; for instance, they would divest the husband, who is not a next of kin of his wife, of his right to Administration to her Estate, which by the common law, he is clearly entitled to. It was said the interest of the next of kin was greater than the widows. I submit it is no such thing, as her share alone will be almost $ 93,000, which is nearly half the Estate, whereas each of the next of kin, will only get a share in the remainder of the Estate. The Court, under the Statute of Henry, has a discretion, but this will be given in favour of the widow, uriless ihere are good grounds for departing ■ from it. Williams on Executors AOl. In the Ooods of J. Daviet 2 Ourties 628, Conyers vs. Kitson 3 Hogg 567, Athiiison vs. Barnard 2 Phil, 317. Her under-valuing the Estate does not affect her right, as it was not done with an intent to defraud any person. As to the Court pre. ferring a man of business, the 169th page of Coole was cited, but tliat ought to have been read with the preceding sentence ; the author is there dealing with next of kin, and not with the widow, with whom he has done. As be- twicen the widow and the next of kin,, though the next of kin is a man of busi- ness, yet the widow will be preferred, Li the Goods of Browniiig 31 \L J. ^E^'AI«G. 312 Prnb. 161. Mr. Woods in reply. Tile Ordinary ie the Governor, and this Court, can- not under the Statute of Henry, grant Administration to' the widow. Clarkes' Colonial Law 32. As to the Ordinance 5 of 1868, tlie Charter, and not the En- glish laW, supplies the omission in the 2Tth section, as, it (the Charter) is included in the 4th section of that Act. The practice of the Court is no cri- terion to go by, as may be remembered, that all along it has been the practice of this Court to entertain suits for restitution of conjugal rights, bn the Civil side of the Court, until the objection to the jurisdiction of the Court was form- ally raised by Mr. Bond in the case of Lim Chye Ftow vs. We,e Boon Teh ( a ) when the Court held, it had no jurisdiction ; so the same here, the prac- tice to grant Administration to the widow has never been objected to, and this is the first time- the objectioiihasbeen raised. The raasiras mmis curi(e est lex curion and comenaus tollit errorem are not applicable. Cur. Adv. vuU. 2tth, Judgment of the Court was delivered. The Judge. — In this case I am disposed to overrule tlie objections raised against the right of the widow to Administration.. The Charter indeed does not mention the widow, but the praetice of the Court has always been to grant Administration to the widow. Abdull;ih's ca-se ( 6 J ( , Woods' Oriental cases p 1. ) By the Charter the Judge of this Court is the same as the Ordinary in England, and the Ecclesiastical Court there, as that constituted by the Char- ter. By the common law the Ordinary had complete control in these oases. The.Statute, 31Edw. 3. o. 11., was the first Statute on, the subject, and it only makes use of the words "nearest friend," according to the construction of that Statute, Administration can be granted to the husband, or widow, or, next of kin. The subsequent Statute, 21. Henry 8. c. 5., then expiressely gave the widow a right, the words there, beipg, "the widow or next of kin," under these words both had a right. These Statutes are still binding and are still consi- dered as law, and I assume both Statutes are in operation here. The Court uniformly granted Administration ofwife's estate to husband, unless he di- vested himself of all his interest. By the Charter the Court of Judicature was constituted an Ecclesiastical Court, the Judge of which had the same powers as the Ordinary. The question here, then is, whether the words of the Char- ter have restricted the power. All our learned Judges granted Administration on the groi;ind that they were in the same position as the Ordinary, and that the.words "next of kia" in the Charter, did not restrict the power of the Court but only meant the possible claimant. Sir Benjamin Malkin, in Abdullah's case, held, that the words were accumulative, and that the maxim "expressio unius est exclucio altorius" was not applicable, and Administration could be granted to the vvidow under the Statu- e 21 Henry 8. c, 5, ; and that such right was not taken away by the Charter. Tho^Supreme Court Ordinance is differ- ently worded. The words there are general, and are not so clear as could be wished. It does not constitute the .Court an Ecclesia,stical Court, the 27th Section states "The Court shall have power to gf-ant Probates of the last) "Wills and Testaments of all persons leaving moveable or immoveable proper- "ty in the colony, and to commit Letters of Administration to the effects of "all persons leaving moveable or immoveable property in the colony, who die "intestate, or without naming an executor resident in the colony, or where "executors duly appointed by Will shall not appear to sue "out Probate, or (a) see page 283. (*) See page 15. 313 SUPREMR-CdURf. "where the effects of any person deceased shall not be fully administered,'' but does not specify the persons. The next section was relied.upon, as it sim- ply mentions "next of kin," I confess that this section bears out somewhat of Mr. W^oods' construction, it iftnores the widow's right, and was urged as proof against her right. I would be vslow to come to such a conclusion on ao-, count of these general words. Consider the effect of the argument ; a hus- band is not the next of kin of the wife, nor the next of kin of the husband, by the English law, the husband has a right to Administration to his wife's estate ; and if the 28th Section of the Ordinance is construed according to Mr. Woods' argument, it would defeat the husband's as well aa the wife's right, I caitnot take the obscure-words of that section to defeat this right, I will not be, justi- fied in doing so. The Statutes, 31 Edw 3. c. 11 and 21 Henry 8., are binding in England, and I think here as well, and by tho.se Statutes, the widow has a right ; giving then every credit to Mr. Woods for the great learning, reseal'oh. and ingcnuityK\A.NG. 318 trust estate. And it is cley part of the adjacent premises, and the plaintiffs denying that the ghaut is a public highway or that the defendant has the right contended for. The action is one of trespass, breaking and entering a close of (he plaintiffs' called Church Street Ghiut, situate in Greorge Town, Penang, andfor tnking up, bi'eaking down and removing two boards of the plaintiffs' fixed to the said close. "Eor which tres- passes, the plaintiffs claina^lOO damages. The defendant has pleaded, first, not guilty ; secondly, not possessed; thirdly, a plea of the public highway. 'The fourth plea has been held' bad on de- murrer ( a^.and thg fifth plea claims private right of way, by non- existing grants over the close in question. About the two first pleas there is no diflBculty, it is clear that the trespass was committed by the defendant's orders, and there must therefore be judgment for the plaintiffs upon that plea; nor do I think that there is any doubt that the plaintiffs have established a sufficient title to enable them to sustain this action against a wrong (a) The M. C. m. Tolson. heard on 18th March 1872— not taken. 325 SUPREME COURT. (Joer. Trei^pass is founded upon possession [Graham, v: Peat, \ Enst 243, 246, iee. vs: Stevenson. E. B. & E. 512 ), and the pai-ry in possession will make ont a prima facie case sufficient to entitle liini to a verdict by proof of such possession in himself and of entry by the defendant. There niust therefore be judgment for the plaintiffs in tlip secon(l plea also. Then we come to the third plea, which is as follow-: "The defendant says, that at the time of the alleged trespass there was. and of rif^hl oufjht lo have been, a cer-' tain common and puldic highway into, through, over and along the ^ said close foi' all persons to return, pass and repass on foot and wiili horses and other cattle and with carringes at all limes of the year at llieir fVee will and pleasuie. Wherefore the defendant Jiavins? occasion to use and using tiie said way, because the said boards or fences had been and were wrongfully ei'eded across the said hifjh- way and obstrncied the same, pulled down the said boards or fences which are the trespasses alleged. The plaintiffs have taken issu^ on this plea, and I have therefore to decide, whether upon the evidence Church S^treet Ghaut is or is not a highway, as alleged by ihe defendant. Hiiihwtiy is said to be the genus of all public ways, of which Lord Cdke says, there are three' kinds, a footwtiy, a foot and a horseway, and a f.iot horse and cart- way. Co. Litt. 56. a. Mr. Smith ( 2 L. C. 136. ) defines it aa "a passage open to all the king's subjects," as it is clear that every pas- sage which is open dejure to all the king's subjects must be a high- way. The present plea claims a right ot passage of the most exten- sive kind for persons on foot and for horses and other cattle, and for carriages. A way is ususally constituted a public highway by a dedication of it by the owner of the soil to the |)ublic use. And this dedication i may be presumed from circumstances. Thus, where the owner of the soil suffered the public to have the free passage of a street iu London thougli not' a thoroughfare, for eight years without any impediment, it was befd a sufficient, for presuming, derelection to the public. [Trustees of Rugby Charity vs: Merryweather 11 East'. 375j. So, where a street connnunicating with a public road at. each end> bad been used as a public road foi" four or five years, it was liehU the jury must preflorae, a dedication (^ James vs : Bean 3 Bing, 447 ; See per Mansfield C. J., Woodyear vs : Madden 5 Taunt. 125)- The defendant's case rests principally upon evidetice of user, an' drains in the new town, which Committee was to be presided over by a Government Offic&r to be named by the then Lieutenant Governor. This Com- mittee was aided in its efforts by the Government which gave money and land to assist J^hem in carrying out their views. At a meeting of Committee helti on the '4tli January 1801, estimates were proposed for making streets and drains, and it was also proposed that a ghaut should be made opposite to street leading out of Beach Street. It is important to'bearin mind, that, at this time the land on the seaward side of Beach Street was still unappropriated and was called a mud-bank, and one of the objects of the Committer seems to have been to have this mud-bank covered with "puckah gQdowns." Tfie Committee therefore asked the Goveinment for per- mission to sell this land, reserving sufficient space for the markets. The Government having given the necessary permission, it appears from the records of the Municipality, that the mud-bank to the east- ward of Beach Street was put up for auction, in lots, and sold in the month of February^ 1801. Tbe land, upon which the godowiis of Messrs. L. Gillespie & Co. stand, waspuchased by a Mr. Perkins, as well as the ground which now forms Cliurch Street Ghaut. But on the 30th of March subsequently the ground now forming Church Street Ghaut. was repurciiased by the Committee from Mr. Perkins, for the purpose of making it into a Ghaut opposite to Church Street. 327 SUPREME COURT. At tlie SJime meeting of " tlie Conimittee when iIir Cliiircli Strfset Ghaut was repiiroliast'il, it was resolved tliat a wall oC tliree feel wide find three feet higli should he mside between the glmut and-the ad- joining ground as soon as possible. It is important to recollect, that at this time(' 1801 ) t'le town of George Town, properly >o called, was not yet aclu;illy in existjence; It existed in great mea.iure only oji paper, in tlie designs ot the Surveyors. That which is now ihe Eastern side of Beach Street, a line of shop.s and godowns filled with merchandize, was only an unsightly brink of mud, unavailable for any useful purpose until it should be filled in and reclaimed. The^hauts or at least many of them existed only in name, and ihe streets to ihe West of Beach Street were still in process of formation. This is clear froin a re- solution of the Committee of Assessors of the 30th Aujiust 1801, "That the Compainy's convicts be ordered to finish Bishop Street and Church Street, after which Mr. Brown be allowed 30, and that the remainder of the convicts be employed upon the ghauts,'' and on the 28th September following, we find ihe Committee approv- ing of a contract for filling up the Chulia Street Ghaut. On the 23rd November 1801, it was agreed that two hundred and fifty dol- lars be paid for filling up the Prison Ghaut, and on the same day it was resolved that a wall siiould be made between the Ghant at the end of Church Street and Captain Farquharson's ]iiemises, one half to be paid by the Commissioners and the other half by Captain Farquiiarson's Agents. It may be remarked that in the Grant of tlie Gliurch Street Ghaui, it is described as being bounded on the South by Captain Farquharson's land, which would be the site of Messrs Lorrain Gillespie and Co'a godowns. To ])TOceed witli the history of Church Street Ghant, we find the Committee of Assessors in their meeting of the 25fli June 1802, requesting that an application should be made to ilie Government for Grants to the Public of the landed property belonging to them in Georgetown, and that the Grants, be made in the "names of tlie Public at lartje, them and their administirators in succession." Ih accordance with this request, on ihe2iid October 1802, the Lieutenant Governor issued Grants of the land which liad been i-eserved for the purpose, to the inhabitants of George Town, to them and their repre- sentatives in perpetuity. The Grant of the Church Street Ghaiit has been produced, from which 1 take the following details. George Town is described by the following boundaries: "From the North- east angle of the poiijt extending along the sea beach to the West- , ward of the Penang Road and including all grounds beyond the Penang Road which enter immediately upon it. From the beach. PENANG. 323 ill n Soutlierly direction to tlie First bridge, from thence following tlie Nori hern Bank of the Prangin iti an ISHsterly direction to tie seii, andfrum thence silons: f'e East side of the town to tlie North Efi.at poiiit.'' The grant is stated to be "for the express iinrpoi^e of establishing a nvenue to he applied to the repairing Sireots, Ghauts and other {jnblic works in the said town," and tlie suliject of the (.rant i< described as "a piece of ground situated on the East side of Beach Street denomina'ed Church Street Ghaut George Town, bounded to the Eastward by the sea and measuring on that side tliirly eight feet; bounded to the Westward by Bt^ach Street and measuring on that side thirty eight feet, bounded to the Northward by Messrs Abbott and Maitlanil's ground and measuring on that side one hundred and tliirty feet and bounded to the Southward by -Captain Farquharson's ground and measuring on that side one hun- dred and thirty feet, but without power to sell or dispose of the same unless required by Government.'' The grants of the other ghauts were mutatis mutandis in the same terms as that nf the Church Street Gliaiit. v In connection with the grants of the Gliauls it may he convenient to refer to the title deeds of Mes-r«. Lorrain Gillespie & Co., which have been put in by the Befundant, and to the arfjument which de- fendant founds upon the terms of tho-er some liras, and that the natural inference is,' thai it had beenpieviously used as a public ghautor means of access to i he sea, and consequently that it had been dedicated to the public as a highway, and was in effect a highway at tiietime the grant was made (2nd November 1801). Much stress has been laid on the vvoni ghaut, as shewing that the place was for the use of the public. Tito word ghaut or ghat is, I believe Hindoostanee, and whatever its literal meaning may he (in one dictionary I- see ii defined as "an enirance to a country'';, it seems to be used here and in Calcuttiv to mean a landing place. Now I quite agree, tiiat prima /acj'e there is some reason lo think that a landing place leading from the sea to a public highway would be also a highway, but I do not think that the inference is absolute- 329 SUPREME COURT. ly nooes-^iiry, »nd I lliiiik ihat ii; miiiht be rebuHed by evidniice ehewiiig tliat it could not have been tiedicaletl ae a iiighway ur tbaC it wiis in fact not so dedicated. Ill tlie present ciise, it i-i clear from tlie docmiienlary evidence, tliat. in the year 1801, the town was only in process of lorniation ; the sti'fiets and di'nins were designed, but were not yet made, and, the bank to the eautwrird of Beach Street was not yei filled in niul as lo the Church Street Ghaut, up to thn 30ch March 18f)l, it formed a portion of the land purchased Irmn Government by Mr. Perkii!-;, and then repurchased from him by the Committee of Assessors, so tliat it is clear, that any presuiH|itioii, that it had been for sometime ))reviously used as a hii;hnay, is conclusively rebutted We liHVe now ai-rived at I lie period when the land on wiiich George Town stanils, which iiad been up to that lime ve.steil in the Local Giivernuieiit, was iriin-tVrred by them to the persons who hail purchased from the Coniniittee of Assessors. The Committee of A.ssessors wna appointed by the people, with the exception of the Cliairinan who was nominated by the Government, and to this Com- mittee the Government emrusted power to lay out the town in ihe manner most r^uitable to tlie requireuieut.s of the iidiabitauts. With; this subject in view, the Commitiee weie authorized to form streets, to sell the adjiicent lands in lots and to establish a system of drainage. 'I'iie Government also consented to inake the inhabitaiiiti ol the town a present of certain reserved lots adjacent to the aea which were called Ghauts and which we may therefore suppose were intended to afford tiie inhabitants of the town access to the sea at several different points in the town. It seems to have been tiiou^ht desirable wherever Beach Street was crossed by a principal street, that there should be~a ghaut which should afford a direct approach to the water. This, I tliiuk, appears clearly from the original plan of town referred to in the Municipal Documents, in which the ghauts are called the public ghauts. It ap])ears, from what I have said, that tlie Government land which now forms George Town, was dealt with in these different ways by the Committee of Assessors, with ihe consent of the Go- vernment. First, the streets were laid out and iiupliciily^ detlicated to Ihe public. Then there was the land which was allotted to pur- chasers who obtained Grants from the Government; and laslly.there were the lot* reserved by the Committee of Assessors for the use of theinliahitaiitaof George Town, and called public ghauts, for which also Grants were ia-ued by the Government. It has been ar;^ucd by Mr. Bond, that these public ghauls as they were called, could have been only ghauta for the uae of the public,! PENANG. 330 ami tlipi'oforo liinated hy the name of streets, and tle- dicaiioii was presumed. If it had been intended to coo'^tiiute the ghaut,* into mere hii>hways, nothing wouhl h'lve been simpler thati to have mapped them oin, and railed them liy the names of streetg or lanes or ghants, and the dedication wonld have been presumed. B(it iiere wo have firoses, thui lie was a Municipal Commi?s'oner fioni,1855 lo 1859. and tlint during that period Cliurch Street, (ihaut was let out, sulijecf to a ri^fhi of way for people ill the middle, tliat ihe isides of the Clmicli Street Ghaut have been <'onirnnient pei)sioner. rempmliprs Messrs L'Train Gillpspip & Go's premises move tlian thirty yesira ago when the CiHldin House whs there ( tliis was in 1816J lie stfvfes,~ihat Hurinir his time ill Penaiifr, tlie (jhaiifs were always u-e'l for lamling goods and ;i8 a ptiblie thorontihfare. Chill Ah Heiig. a Carpenter, states, that for the past twenty years ho has been in the h>ibit of ijeltiiii; liis wood from flie seaside over Church Street Ghaut, and that he has iipvev been interfered wiih in so doinu. This witness ealled tlie tjhaut by the name of lane. I^e stated in cross-exatninatioH, that he was in tiie habit of earryiMy; his timber through the centre of the ghaut, and that as lonti tishe conld recollect there were bricks and v.irious articles, such as I imbc-r, firewood, biick and lime. Mr. Prestii-;ive, Seoietury lo the Mnnicipal Commissioners, stales, that the Gliauts '.^ere renle prnposed lo tlip Coinniittee of As- sessors by ll\e GovernineiH, that tliey should fill np and cirrry out the public Ghant between the Cu~l<>Mi Hoti-e and Mr. Hall\bur- ton'H premises ( Gburch Sti-eet Cilnint ) ; and as it vms stated' to be a work which would niaii.-i-ially benefit, the public, it was agreed that the Co,minitiee sjiould on their paii carry oiu tlie pnckiili drains, as being a fair proportion ivf the expenses to be l)oriie by lliem. On the 4tli December 1811, we find that Mr. R, Caunier'i.-i desired bv tlie Coiinnitti'e to get tlie.drain made in ('hurch Street Ghaut, as' soon as po-sible, as the Govermneni ii.teinl filling nji mid carrying out that Ghaut as soon as the drain is ciunpleied. From the two last entries, it wcnlil appea,r that as late as 1811, Cliurcli Street was not yet filled in, and that the work was ultinintely done by the Governiiieht. In 1813, it seems that Cliurch .Street Ghaut had been added to, as there is a complaint made by Mr. Hallyburton, on the 19tb February 1813, of the damage done to his premises in con- sequence of the addition. On the 5th October 1814, ihe Government wrote to the Com- mittee of Assessors, prohibiting Aiiap slieds beinu built on the pub- lic Ghauts, and directing that all buildinus of that description then standing slioidd be immediately removed. I have now mentioned the parts of the evidence, which appear to nie to affect the question of u^^er. And I think, that the general re- sult may be sliorily stated as follows : that ever since 1810, Church Street Ghaut, as well as the otlier Ghauts, has been used as a thoroughfare by the public, both for cans and for foot passengers, that there was never any attempi to obstruct the jiublic in the ex- ercise of this iif\a manor, and had been used by the public ;ienerally ever since it lunl been so set out, being a period of fifty years iiud a portion of the waste had been allotted to the lord in respect of his ' iniere8i in the »\n\, it »'as contended that the soil of the road had biv^n taken out of the lord and tr;insferred to no other person and that iliercfore there wa-< no owner or none against whoin adedication (•sary to rai,se a presuraption of a deilication that if I lie owner had been a private person. But the Court of Queen's Bench lield, that a dedicatioii might be pie.^uined even atiaiiist the Crown from long ac- quiescence in public user, and that the jury were riglitly directed f,o consider whether the owner, whoever lie might be, had consented to the public user in such a manner as to satisfy the jury that be in- tended to dedicate a highway to the public. Lord Denmaii 'C. J. there observed, "Enjoyment for a great lenglh of time, ought to be sufficient (.-vidence of dedication unless the state of the jiroperty has been such as to miike dedication' impossible." li\ Beg. v. Pettie ( 4 E. and B. 737 ) it was laid down that when thei-e is satisfactory evidence of such n.-icr of a road, as to time, manner and circum- stances as wyuld lead to the inference that there was a dedicatioii b3'^tlie owner of the fee, if it was shown who he was, it is not neces- sary to enquire who the indivitlual was from whom the dedication necessarily inferred from sncli user first proceeded ; and when such user is proved ih« onus lies on the person who seeks to deny the inference from it to show negatively that the state of the title was such that dedication was impossible, and that no one cn|)able of dedicating existed, li is however to be observed, that it is not enciUiih to c-ilablish the right of the public that the ])ersoiis usin"' iliewiiy reasonably believed froin the conduct of the owner, that they acquired a right to it ;' an actual intention on the pari of the owner to dedicaie must be >hown. The last proposition is sup- ported by the cases of Banaclough vs. Johnson 8 Ad, & E. and PENANG. 338 Fei-ni/id vs. Milligar, 7. Q. B. 750. On llie whole, I think, the Cnses sh.iw ti^iit u-ior alone, t'or'liowever leiiirthened a jieriod i^ noi con- clu.sive, and iliat it may be rebutted. either by facts showing that it WHS not the intention of tlie owner to ileilicate or by showini that (Mvinu- to the sinte of the title, dedication was impossible. -I now eome to the consideration npon which the plaintiffs' counsel rnain- Iv rested and wliich may be stated thus tliaf Church Street Glmut was the .subject of a chiiricabje tru-t, and that in-as-ninch as its dedication as a public highway was incon-istent wiih the purposes of the irust, that a dedication could not be presumed. It is said that Churcli Sireet Gliaut was granted to the inhabitants of George Town, for the.expr.efis purpose of establishing a revenue foi' the re- pairs of ihe streets, ghauts and other public work<, and that as a (ledicat'ioM of the ghauts as a highway would be a breach of Irnst on the part of the tru.stees which would not be implied and iherd'ole thai the presumption of dedieaiion is rebutted. If has been olijeded by Mr. Bond in the first place, that the grant which creates the chiiriiable trust is void and therefore the ninjor premiss of the argument is unsound. The grant in ihe present case being to the inhabitants of George Town and tiieii' representa- tives in perpetuiiy, it is argued that the gift is void, in-as-nigch as the Inhabitants of George Town are not capable of taking by grant being unincorporated. For this, position he relies upon the passage in Duke, (Diike's Charitable Uses 2}- 134^ where it is said "that a gift lo a parish l)y deed to a cliaritable use is void, but a devise by a Will is good." It appears to me that this passage must mean that ilie grant is void at law as it is laid down in Sheppard's Touchstone p. 237. " If a grant be made to the parishoners -ments. And the next important Act on the subject wai Ad IX of 1840 which also provided for the assessment of the town and for the watching, repairing and lighting the roads, streets, &c. This Act also directed the Civil Authoi-ity of the Settlement to ap- point a Municipal Committee to make order for the performance of the Act and empoweied it to make rules and regulations. But this Committee was not incorporated and no properly was vested in it. Then came Act XIX x)f 1856- which vested in the Municipal Corn, missioners all property, however, acquired by the Commissioners &c., and then vested in them or any other persons in trust for them to be held by them as Trustees for the purpose of the Act. But it •was not until Act JCXVII of 1856 that the Municipal Comrais- gioners were constituted into a corporation with perpetual sucoessioii and a right to sue and be sued. It is clear that they would not previously to their incorporation have acquired their right to pro- perty, except in their individual capacity. 'It is probable therefore that the legal estate in the ghauts remained in the E. I, Company the grantprs, down to 1866, subject/ of course to the trust which they had themselves .created. The Committee of A.sses8ors or Municipal Committee or by whatever names these different bodies may be desigifated may be regarded as the agents, acting for and on behalf of the trustees of the charity. ..Assuming then, that they were to all intents and purposes as far as the ghauts were concerned, the agents of the trustees, had they or their principals power to dedieate'the ghauts to the public as highways. Mr. Bond urges 341 SUPREME COURT. iliat they had and cites the Rtighy Charity case, 11 E^st 375- But tliat case is vei'y shortly reported in a note, iind ihe fads do not appear, and I may remark, that Palke J. observed in Rex v. Leith 5 B'. and Ad. 469, tiiat "tlie 'I'rusiees in lite Rugby case were only tr.iiste IS as to pi'ofits and tliat they actwd as ordinary owners." Mr. Bon I also referred to Surrey Canal Co. vs. Hall, 1 M. and G. 392. But that was a dedicalion by a Canal Comjiany wliicii stands in a different fontinu' fioin trnstees for public purposes as tliey are uoastei's of their own property. As w;is said in lliat case, though liiey may be answerable to the rest of the proprietors for failnre of duty, there is no reason why the public may not by use gain a ri<;lit as against them, as well as against any other iniUviduals. Mr. Bond then urged, that nlihongli the ghauts were granted to the town for the express purporie of establishing a revenue, yet that as the mode of rai^^ing the revenue was not poinied out, it dii! not ne- cessarily follow that the revenue was to be raised diricily from the ghauis themselves. And that it might well be, that it was contem- plated that the user of i he. ghauis as highway.^, would enhance the value of the adjacent property, iind by increiising its rateable value would thus indirectly enlarge the revenue. But alihough this^con- struction is ingenious, 1 confess lam unable to read ihe grants iu this way. It iippears to me that the words, " for the express pur- pose of establising a revenue," means that the revenue was to be laised out of the ground itself and not indiredly out of some other piece of ground whose value might possibly be increased by using tiie ghauts as a hjghway. I liiink in conslruing the meaning of the words "eslablishing a levenue" we should regard the gliants as the proximate and not the remote cause of the revenue to be raised, and it appears to me clear from the wor(.ls of the grant, that the inten- tion was that the ghauts should be made use of for the express pur- pose of raising a revenue in aid of the town. How that revenue was to be raised was not staled. That was left to ihe discretion of tiie town people I hemselves, and as has been seen in ihe earlier days of the history of the town, a revenue was raised from the markets, and slio|)s which were established, in some of the ghiiuts. Not in- deed in Church Street Ghaut, but although this ghant was not made use of for any purposes of profit, I think the original trust still clings to it, and that the Committee of Assessors or the Muni- cijial Committee or who^vfer were the persons acting as or on be- lialf of the trustees we.re bound by the original trust. The duties of trustees for public purposes and tlieir right to dedicate property entrusted to them, to the public as a highway was discussed in the case of the jK'wg' vs. Zeare, 5 B. and Ad, 469. In that case the PENANG. ' 342 CoiiiiiiissiioiierH for drainage beinir authorized by an Act to make diiiiiis ami di-ipose of tlieeartli in fnrniinur banks on tlie sides thei-e- «)f, made a drain and witli the cartli taken I'roy) it made a bank on one side of ii whieli had been used for twenty five yeaisas a public highway, it not appearing' tliat ihe cleajiing of the drains or any other purpose of tlie Act, had been or was likely fo be interfered with by any piicli usei' of the soi], it. was held that a dedication might be made liy tlie Commi'jsioners upon the case, it is necessary to 1)6 observed thai the question decided was mainly one of fact, the law on the s-nbji'Ct being clearly laid down by Parke J. a's follows: ' " If the land were vested by the Act of Parliiimentin Commissioners so thai they were thereby bound to use it for some s])eeial jujrpose, incompatible with its ))iiblic use as a highvvay I should have ' thought tiiat such trustees would have been incapable in point of law, to make a dedication of it ; but if such use by the public be not incomjMlible with the objects pre^^cribed by ihe Act, theti I tliink it clear, that the Commissioners have that power." But the learned Judge after carefully considering the dnliesj imposed on the Coaiinis,sionors by the Act of Parliament came lo ilie Conclu-^ion ihat there v/ns nothing inconsistent with lliose duties in thfe dedica- lion of the land to the public as a highway. Mr. Justice Liltledale however differed in opinipn'with the rest of the Court, and his re- marks arevvorth oiling. He said, "certain powers are given to the. Co nimis.si oners to deal wiih the land mentioned in the Act in the manner there presorib*'d and under their power thfy have made a blink wliicli is subservient to the pni-poses of the drainage. Over a part of this bank the road in quesiiou exiends. It i^ true that the bank has not, for a great nuiiiber of years, been pratically u?ed to give any further protection or supjiort of ihe works t,han it did when first made, and- probably it never may be wanted in any otlier slate than that in which it now is. But I cannot take judicial notice of that, and. I cannot say bui at some future tiine ii may be wanted tor the works of the drainage, in such a mannei- as that it could not be usedbeneficialiy for those purposes if there was a com- mon highway over it. And I think the Commissioners Imd no power to dedica'te lo the use of the |mblie as a highway, lati'd which they were entrusted with the ownersldp of, for a special pur- pose, and for which special purpose this land- may at gome future period be required." Now applying the principles laid down in E. vs. Leake and the present case, it seems to me that the dedication of Church Street Ghaut to the public as a highway, would be altogether inconsis- tent with the purposes for which the ghaut- was granted. It was 843 SUPREME COURT. probably contemplated that the ahaut would be iiiaile , iie as a highway or he has failed to make out his cape. (a). ~The issue raised is higliway or no highway, and ordinaiily speakini;- u here a road runs between fences, the whole space between the fences is considered as highway, (iS. v. Wright 3 B. & Ad. 681) and any contracting or narrowing of tlie road is a nui-^anee. For insia'nce slipposing ihedeilication in the present case to be esiablrshed the Coiiiniissioners if they erected sheds or Foffered tjoods to remain for any length of time on the ghaut, would bw guilty of causing a nuisance. In fact any effort to uDilize tlie gliaut for purposes of profit would be illegal once it was established as a highway., Mr.Sond has further urged that fiie Act. XIV. of 1856, which vested the property in the Municipal Commissioners has put an end to the trust created by the Grant of lg02. 'i'he 4th Section of that Act is as follows: "All property moveable, and immov- eable purchased or otherwise acquired before )he .passing of this Act by the Commissioners or other persons however de-^i'Minted lierelpfore lavvfully administering the funds applicable to^tlie Con- servancy and Improvement of the said Towns &c., and now vested in tliem or any other persons in trust for them for any suuh pur- poses, shall after the passing of this Act be vested in the Muni- cipal Commis.xioners for the said Towns &c , as trnst^es for ihe purposes of this Act." The purposes of the Act are ili the pream- ble, sliated to be, to tnake better provisioil for the Conservancy and Improvement, of * * * * the several Stations of the Settle- ment of P. W. Island, Singiipore and Muhica, and t.o invest the Municipal Coramissidners for each of the said Towns and Stations with the powers hereinafter menlioned. Then in Section VI. it is {a). See Knight Lillo, 2 Wils.' 81. 344 snid lliiU tlie Coinraissioners «itli tlie consent of the Local Govern- nieiit may liiy our. ami make new eireets and rends &c. I presume the ar:;uuienl on this point is, tliac the Conunissioneis under ihe powers, of the Act have deilicated tiiis gliaut and made it into a street But it appears to me ihat tiie evidence of what occurred subsequently to 1856 is opposeii to any presumption of (hJilicalion. It is in evidence ihat for some time previous to 1856 the Municipal body had conteinplaled letiing out the vaiious ghauts, and we ,find thiit in 1859, less than three year? afier the Municipal Commis- sioner came into exi>teiiee (ihe Act XXVI-I. of 1856 was nofc passed until 20th December 1857) Church Street Giiaut was rented out, a fact which conclusively rebuts any presumption of its dedication as a iiighway. I think therefore even admitting that the Act of 1856 empowered the Ccmmis.sioners to dedicate Church Street Giiaut to the public as a highway that there is no satisfactory evidence of such dedication. It is also said by Mr. Bond that only a portion of Church Street Ghaut is .included ill the Grant of 1802i and that the new portion is not subject to the trusts of the grant and therefoie may. be the subject of a dedication as a liighway. But it seems to me that even agreeing that one por.ion of the gli.iut is not subject to the trusts of iho graot still this dues not help the Defendant in-as- niuch as he is bound to show that the whole ghaut is a highway, apart from the difficulty of holding that the trustees, whoever they were, intended to dedicate one portion and not to dedicate the other, the evidence of user being precisely the same with regard to both the old and new portion of the ghaut. On the whole case, I am of opinion, that previous to 1856 tha Municipal Committee had no power to dedicate the Churoh Street Ghaut as a public highway, in-as-much as such dedication would have been altogether inconsistent with the purposes for which the ghaut was granted. Any dedication of the ghaut as a highway in the full sense of the word, would have put an end for ever to any revenue to be derived from it. And as to what has occurred since 1856, I think the whole evidence rebuts the idea of any dedication being intended. The account given by the witnesses of the state of Church Street Ghaut in modern times of iho b;id state in which it was kppt, of the con- stant obstructions in the shi'pe cf piles, of bricks, limber, firewood and other articles, all this seems tome to negative the idea that the Municipal Commissioners intended to dedicate the ghaut to the public as a highway. But in deciding this, I wish to guard against being understood 346 SUPREME COURT. to deride anything more, wliptlier tiie public may riot Iiave Ac- quired a riglit of passage over Ihe ghaut, suiijeet to certain restric- tions is a, question into « hicit it is unneres-iary to enter, iis ii is not in isBUP. All I intend tn decide is tlial 1 do not consider that Chtirch Street Giiaut has been dedicated to the public as an or- dinary higiiway. I now come to the Fifiih plea, (the fourth plea havinp: been held bad in demurrer) in which the defendant relies upon a piivato right of way on foot 'and with horses and otlier cattle and with carriages from the hig;liroad over the Church Street Ghaut to the prfimises occupied by Messrs. Lorrain Gillespie and Co. and vice versa. 'J'lie evidence in the ca^e showed, that for a long- time, certainly evr since the yciir 1810 and jTobiibly previously to ilmt date, there waa a giit& in the premises notv occupied by Messr*. Lorrain Gil- lespie and Co. opening in the Chnrch Street 'Ghaut and that iliia gate has been nsed ever since by tiie occupants of these premises as an ordinary access to them for all purposes. Tiie user, there- fore, has l)een for a sufficiently long period of tinie to support the presumption of a grant of private right of vyay. Bnfc Mr. Rodyk has contended, that the whole evidence lends to shew that tliere was only a permissive user of this right of way nind ihai you iire not to make the sume presumption in the casf of trustees for pub- lie purposes as you would in the case of private inilividn.-ils. He aht> chet\ \he AUorney General vs. Magdalen College, 2 Honsa of Lords Ca. 189, to shew that it was only in the case of the pro- perty being parted with for a valuable consideration that the rights of those entitled to trust jiroperty would be barred by ilie Statute of Limitations. Now with regard to the point fcliat the user was only permis- sive I ciin find no evidence in the case to support that view. The u-ef has the ordinary use of a gate for every pur))08e for which it was required and no permission was asked or granted. But Mr. Rodyk relies on the circumstance that for a very Ion" period the premises now occupied by Alessrs. Lorrain, Gillespig and Co. were occupied by the officers of the Municipulity and that under those circumstances the same inference cannot be made as if the premises had been occupied by slrangers inid that it might well be, that the Municipiil Committee pcimilted this use of the gate in question without intending thereby to confer any rio-ht of way. liut with reference to this argument, I think, it is suffi.> cient to observe that it is in evidence that on the opposite side of the ghaut to Lorrain Gillespie and Go's, premises, in the pre- PENANQ. 346 mises (iccupied by Mr. Nairne, there is a gate wliich lias been in existence fur a j>'rcat mnny years, and as to which there never litis been any qiie«ii<)ii as to tlie liglit of way. This fact seems to me to rebut the inference which Mr. Rodyk wishes to draw as a mat- ter of fact, namely, that it was only the accident of the Conimi,t- ti'e liavinsj their offices in Church Stre'et Ghaut which caused th» (jale opening; on the gliauf to be tolerated. Whereas in fact, we l>ave it clearly established that a sinailar gate with. a like right of way exis'ed in the opposite premises which were in the possession, of persons uiioonnected witi) the Municipal body. As to the ai'gument, tliat presumption against trustees' for public- purposes is not clearly made, tmd the effect of the Statute of Limi- tations as concerns trust property, I will deal with them both togeth- er. And first, I think it necessary to point out wha^ strikes iub a« a fallacy in Mr. Rodyk'-s reasoning. He has argued this part of tlie OH^e by analogy to cases in wlricii the trust property has been alienated by the trustees and the question his arisen as to whetlier the entire cestui que trusts should he bound by the jilienalion. The questiou here is whether it was altogether inconsistent with the pur- po'ies of the trusts that a right of way should be granted over the trn.st properly. This latter question seems to mo to differ some- what from (he otlier. The analogous case to those cited by Mr. Rodyk would be if the Commissioners had sold or leased Church Street Ghnu', in fact had altogether deprived the Town of the use of it and thf! people of the town disputed their right to it. 'The pre.sent question seems to me to resemble somewhat that which arose in Sex. v : Leake, whether it was consistent with the purposes of the trusts that a right of way should be granted. To return once more to the early history of the town we find that the ghiuits were jilaeed opposite the principal streets intersecting Beach Street, ahd I think there can be no reascmnble doubt that one of the i-bjects of llieir institution was to afford the inhabitants of George Town easy aecbss to the sea. They were to all intents and purposes public ghauts, i. e., public landing places. No doubt tliey Avere stated in the Grants to be granted for the express pur- pose of establishing a revenue and their user must I think have been restricted in iiccoidance with ihe terms of the grant' but wlien we look the maimer in whicli they were formed, their early his- tory, their mode of using their position with regaid to the town and their name, it is impossible to avoid the conclusion thiit al- though intended to aid the revenue, they were also meant for ihe general convenience of the people of the town. Now tiiis being so, was there anything iu the' nature of the trust to prevent tho 347 SUPREME COURT. ti'ustpes from g-ranting the owners of conterminous property rea- 8onal)Ie ■dccei?8 to the ghaut? Is ihe gliaut to he viewed in the^ same way as enclossd premises, which might be seriously damaged by the allowance of svc.h an easement ? Would it be a breach of the truat to permit such an encroachment on their right? I think not, I think it was quite within the scope ot I he discretion of the trustees or the personi managing the jiroperty to permit tlie owners of tiie adjoining lols reasonable access to tiie gliaut and tiiat'tiiere would be nothing ' inconsistent with the trust in such a user of the ghaut, and we find that, in fact, in most of tire ghaiits, such gates have existed as far back as the time of living memory. For this reason I think, that it was quite consistent with the ori- ginal purpose for which the gluiut was established, to grant a right of way over the ghaut and with regard to the upper gate the de- fendant has made out iiis plea. But the Plaintiffs in the petition allege two trespasses, the break- ing down of two boardings, one of these was at the upper gate of which I have been speaking, and the dher was at a gate much lower down in the ghaut. This gale stands in a different position from the other. It has only recenily been opened — and it stands in a part of tlie property which was not in existence at the original grants, having since been reclaimed and filled in. Strictly speaking, therefore, the plea alleging a grant previous to 1802, could not be supported by a proof of right of way over property, which did not come into exist- ence until many years after the alleged grant. But apart from, this legal difficulty, I do no); find that the evidence in support of this second right of way is sufliciently clear and distinct. There is no doubt that the gate has only been made recently and not sufficiently long ago to confer a right, but then it is said that be- fore the wall was made in that part of the ghaut, we were' in the habit of passing and repassing over the ground in question, and thus acquired aright of way. If user of this sort were showti for a sufficient length of time, no doubt it would es.tabli8h a right'of way, but there is no evidence as to the length of time that this use was made of the lower portion of the ghaut, and I am therefore of opinion that the Defendant has not succeeded ia supporlinghis plea, as regards the lower gate. On the whole case, there must be judgment for the Plaintiffs. KXlOOSCSUsi PENANQ. 348 May 1872. Bbforb His Honor Sir Wm. Hackett, Kt, Judge of Penang. Reg. vs. Lim Ah "Weng. The Crown cannot call the tvife of the prisoner as a witness against him, although he consents to it A icoman tcho is simply a mistress of the prisoner can be called as a witness against him, without any consent on his part. The pi'isoiier wns indicied for iimriler. Tliat lie commit'ficl tlie mardpr was clearly proveil, in fuct it was admitted by liie defence, wlio in anfwer to the charge, set. up the insanity of the prisoner as a defence. During tlie coui-^e of the trial, Jfr. iojraw, the Soli- citor General, on belialf of the Crown called the prisoner's wife, as a witness against the prisoner, the Judge told him he could not do so. Mr. Woods for the defence then said, lie consented to the wo- man being examined, as he was instructed her evidence would be in his favour. The JxjDGg. — The Act [a) expressly prohibits hu>^b,inds and wives being witnesses against each other in Criminal cases, sO the Court cannot act beyond its jurisdiction, even by consent of all parlies. (&). It afterwai'ds; appeared that the woman was not the wife of the prisoner but simply his mistress, she was therefore allowed to be call- ed and examined as a witness against the prisoner. The Jurors about ai] hour after brought in a verdict of " Guilty.'' . . (a.) Act 2 of 1855, also see Ordinance 22 of 1870. S. 28. (6.) See Fkteher ts. Moore, 18 L. J. Oh. (N. S.) 384. 2nd July 1872. Bbfore Sir W. Hackett, Judge of Penang. ■ Ong Pak Ong, Appellant vs. Tan Boon Teng, Respondent. If the case stated by a Magistrate under Act 27 of 1 867 is not transmitted to the Court loithin six days after the appellant has re- ceived the same according to the Act, tbe case is dead, and ihust be struck off, and it cannot be revived. Tliis was an appeal uncjer Act 27 of 1867 (a) from the decision of the Penang Police Magi!!t<-ate. The case sent to the Appellant by the Magistrate was not transniitied to the Court until 10 days after receipt of same. After which it was remitted by the Court to the Magistrate to be amended. Mr. Logan appeared for the Eespondent and made a pre'iiminary objection that the Act was not complied with as the case was not (a.) Now Ordinance IX of 1874, 3i9 s^uPBEME covnt. tran^rriitted to the Court witliiti six days from receipt of -^ same, Anil it oould not now be revived after once beinj; dead,' imd ' cited Tarjlor on Appeals^ ^8 — 51,; Woodhouse vs. Woods, 29 -L. J. M. C.U9; Morgan ra. Edwards, 5 H. & N. 4l3 and 29 L. J. M. C. 108; Pendall vs. Church Wardens of. Uxhridge 31 L. J. M. C. 92 ; Gloucester Local Board of Trade vs. Chandler, 32 L. J. M. C. 66 ; Banks ya:6oodwin, 3 B. & S 548. Mr. Bond iar l\\e Appellant coiii< ndod, tluit ' in lliis case, tlie case staled beinjr so bad, tliei'e "t.s no ease at ail, and consequently it Could not be deaittfihiip, mid not simply by tiie accounts i^eiiclernd to tlie Farmer. This construction is helped liy the 36ih Section vyiiich n«es tlie "ords "to enter into the pre- mises in which such Spiritiions Liquors are stored and to inspect the Snme." I suhrnii the accnunts dfinanded and rendered were insuflSfient. It is impossible to say that "inspection" means any thiiijr else than that the Furmer must go to the premi-es and in- spect. By the Farmer's own aecounts, the permits for removal und exportation are mixed up. Tliey are entirely different things. 'Jhe JuDGts. — What Section was the conviction under 1 Mn. Woods-. — Section 87. '1'he Judge. — -What's the meanitig of " or otherwise." ' Mr. Woods — I submit it means "search duly authorized." by the 36th Section. The Judge. — Was there any search in this case 1 Mr. Woods — No, i hey proceeded simply on the accounts ren- dered by the Appellant. This is a dreadful Ordinance. Tl^e dealer is tied down both ways. The permit should never be returned, if so, the Section is done away with. I -ubniit there is no evidence of a deficiency. Tiie 37ih Section includes two offences; 1st, a deficiency according to permits of. Imports and Exports of liquors; and 2nd, permits for the removal of liquor. They have jumbled the t»v() together in this case. The Judge. — It is h;ird to draw the line between the two offences. I understand the charge to be this, you ought to i ave so much liquor accnrdiiig I* the permits. ^ Mr. Woods. — Theoretically it is so, but nothing is said about • the removal in the charge. 2ndly. — There is no evidence of the guilly knowledge of the Appellant of deficiency, whicli is necessary in a criminal charge. Inspection must refer to previous Section on Avhicli it is supported. There is a total absence of this act of the Farmer. The Judge. — Did the Appellant explain the deficiency? Mr. Woods. — No, the Farmer has to shew it by the periTiits. The Judge. — No, the Farmer has not the permits. Why has not the Appellant shewn evidence? Why did nut he defend the case ? Mr. Woods. — I snbmil the defence was unnecessary, the Ma- gistrate had 1)0 right to convict on such evidence a^ this, under this Section. I'BNANG. 352 The Judge. — You rely tlieii on no searcli lieing made, you did not shew that lie did Jiot searcli, why was there no defeme if you relied on this? Mr. Woods. — The Section is gtronij and as it was not followed it was uiineeesaiiry to go into the defence. '1'hk Judge. — It appears to me tliMl, the Defendant, was con- victed by his own moiuli. He now says that is ioKufficient. Tlie only qupstion here turns on the Act. Mr. Logan for the Respondent. — The only objection taken before the Miigi-irHte an3 wliicli is the only question here, is on tlie Act . and- 1 submit it is not C')nipetent to the App-llant to taise any other objections than those made before the Majiistrate. Taylor on Appeals^&Z. As to the word "inspection,"' I submit the contention of the other side is untenable. In Paul vs. Knoz 4 B. & S. 515., tlie same objection was raised as here. No judgment was given, but the case was sent back to the justices. Tlie pre- sumption therefore is that actiuil search is unnecessary. I submit; that the remarks of Ju-itice Blackinan in tlmt case is ex.iciiy in point. It clearly sheivs an actual search is nnnece^saiv. If iha argument of the opposite side was to hold good, i;lie lii"hest, evidence, (a) namely, the Appellant's own confession wot^ld not be suffipient. If the Farmer' saw a man carry 1 dozen bottles of brandy out of iSeow H nek's godown whicli ho knew of liis-own knowledge was being taken away wiihont a per- mit, surely his own eye-siglit is sufficient, and it is not. necessary for him to go into the stores and in-pect the whole stock of liquoV to find whether there is any defiL'ieiicy. He is bound liy the 36t,li Section to render accounts when demanded, and that is suOicieni; to shew tiie deficiency; e-^pecially here where we have his own con- feission which is strong evidence. The Judge. — It is only necespary under lliis Section for the Magistrate to be satisfied there is a deficiency. Tlie words in this Section no doubt arb anibiguoiis. Mr. Logan. — An inspection is only necessary when be can get no other proof. If the man in tiie instance given, were to replace the goods before the Farmer could inspect, the Act would then assist him, instead of punishing him. As to the };uiliy know- ledge the evidence of the last witness shews the Defendant hud knowledge ot the deficiency. Mr. Woods in reply. — If any search was made it was before (a.) See Stlaterie vs. Pooley, 6 M. & W. 664 ; Newhall vs. Holt, Ibid 662 ; the cases tu the contrary must be considered as overruled. 353 SUPREME COU^f. tlie Aot came intn operation. The Judse. — Yon sliould liave shewn tliat in evidence, you liave aliogetlier relied on ilie words in tlie Act. Mr. Woods. — The ponviction is also bail, as ilie Appellant was Hilt only fined, bitt was ordereil to pay tlie Fnrmer ibedntyon pucli alleged deficiency. Tlie fine itself was fufficit'iit under ibe 37tii Section. And as to tlie gnilty knowledge, ilie Miigigtrate himself says the Appellant had no knowledge of the offence. Cur. Adv. Vult. On the 8th of July Judgment was dnliverod. Thius 1-iqnors ; and 2iidly — If not saii>fied ■ with the accounts, for himself to go and inspnct. The~e are two dis- tinct ihiuiis. If he is satisfied «iili the accnuniis, he need not iti- spect, otherwise lie can. It eiiher of these is refused, the party refusing is liable to a penally. It is clear from the pn'coding Section, how the 37th Section is to bn construed. Tlie evidence fo be given under this Section may be according to the 36ih Section, "or otherwise," which are aeneral word<, and include' any sort of eviilence; but I think the 36th Section i- quite clear on the point. Tiie 37th Section is not free from doubt, the words shew it was not carefully drawn, anil havintj rei;ard, to the 36tli Section, it seems the writer was not happy in the mode of express- jug himself. Taking the whole context, I tliink the Farmer in- tended that the' Magistrate should convict, if the evidence was sufficient to shew a deficiency. The words "search" and "in- spection," have not the same meaning. If "search"' meant "in- spectioii," why use the word " ins)iection.'' Tlie word "search" than I take to mean "inquiry," and the letters and notices of tiie Farmer, was an "inquiry,"' and was a sufiiineiii " search,", and as the Farmer was satiofied that tiie acoonnts corres|ioiided with the quantity of fiqnor in store, he was not hound to in^^pect. If the conteniion of tlia Appellant is correct, it, would shut out tlie, strongest evidence against him. Conviction^ affirmed. PENANG. 35 t 2nd July 1872. , Bkfore Sir iVM. Hackett, Knt., Judge of Fencing. Ong Hoic 8( others, Appellants vs. Abdulrahman, Rdfpomlent,. The wwd "produced" immediately after the statement of a wilmessihat he received a written information, in m case stated by a Magistrate under Act 27 af 1867 is not of itself sufficient evidence that' the imformaUon was prodwed. QUERY.— If there was evidence that the information was p-roduced, whe- ther it would vitiate the whole proeee iin s a * being e mtrary to 4c.t 13 of 1870. Where the defence of the prisoi^ers was an alibi and the Magistrate admifted. evidence iti reply which not only contradicted the defence hut corroborated the evidence for the prosecution.— HBLD, that it was left to the Magistrate's dis- cretion whether the emdence could be admitted or not, and as. he had admitted it, it was no ground for an appeal. Where the witness in reply was called after the prosecution was closed, but dwring the tkne' the defence was going on. HELD, that this gave the less objection to the evidence being admitted. Tlii-i «a:< an apprtal liom ilie aei-isiou "f lUo rroviuce Police Majri-'trf^te. ' 1^ Mr. E^s/ss for the ,Jppenants.— This U an apren^ from ilin de- cision of (lie I'pivince Kilice Majzistratp, in a ca>e for keepina; a comawn gambling h'lusft. A Sutnmons was issued agauist ine Appt^Uiint-i bur was diniis-^Ml as the number of tlie lionse "'as wrong- ly sfafHil. A new Sinnmons was is^und nliich only cl>arj;ea the Appi'H.inis wiih keping a common jjambliiig bousB. 'Plie easf! utaif'.l by' lu> M.iui.sirate iius place; tlie defence, and the deposition , book of the Maj^i-iiritte b:is ifso. I submit tiie evidence in this cnse dot»a not bear our the coiivicti'iii. They were only charged with keepiii:; a itamhliiiu li'oiise. B'th the informers say all -tlie Defen- dants were artiiig as " Poh Kwai.igs,'' and of course if such was tlieciiiif, all were equally guilty, yet. the Magisirate discharged two, and fim^d three, which are the present Ap|iellants. The whole evidence 8im|)ly sh^ws the Defeiulanfs were there for tb^ purpose .of gambling, but not for keeping a ({ambling bouse. The Judge.— Is there not sufficient evidence to support the conviction? Mr. Moss. — No, they were charged with one offence, namely,' keeping a gambling lioiise, and fined for another, namely, for gambling. The Judse. — ;The depositions no doubt are not satisfactory but I thing the evidence is sufficient. Mr.. Moss. — The Grambling Act 13 of 1870 (a) makes these two separate olTences, the fine on conviction for keeping a gambling liouse is not exceeding $ 3000, whereas for being there for the (».) Now Ordinance 9 of 1876. 355 SUPREME COURT. purpose of jjnmljling, the fine on cimviciion is. not exceodinjr $ 50 only.- The cu-'toni in tlie Polii-e Courts liere has always been to chac-fe the Defernlant witli both offences, so that if he is iipquitted oil one, he might be ronvicteil on the other, but this was omitiecl here. There ia not the least eviclenee that they kept the gambling house. 'I'he Jc'dge — I thiiili the evidence is siiflB.cieni. Mr. Ross. — Secondly, the information was produced at tlie trial. This is expressly proliihitted by the Act., It miijht be said thnt it was to.tlieir aistrate and may have had some weight on him. It is the daily practice of the Courts' here to write the word " produced " \\ hen a paper is produced. The Judge. — No, that is insuflScient. * Mr. Ross — Thiidly, the evidence of Punjiiilii Sam Guan ou^llt not to have been admitted, it was evidence in reply, but althougih it contradicted tlie defence, if corroborated the evidence for the prosecution, and therefore ought not to have been admitted. The rule ill such case is, that the evidence can only be admitted when it simply contradicts the defence, Rex vs. Stipson, 2 C. & P.'415. I have a still stronger case, and it is on all fours with the present,,,! and that i.s the cave of Rex vs. Hilditch and others, 5. C. & P. 299. The Judge. — The depo>itioiis are all regular. * Mr. Ross. — Yes, but the orij;iiial are not so. . The Judge. — Yes, but I mu«t look to the record sent up. Mr. RosSi — Fourthly, the Defendant's witnesses were present in Court, but were not called. The Judge. — That is a dangerous ground to oro pn. Suppo«ii^ng Pnng^lu Sam Guan's evidence is struck out, will not the other evidence support the convlpJion ? Mr. Ross. — I submiti that iliis evidence having been admitted, it viiiaicB tlie whole, proceedinjjs. The Judge, — The latter casf* cited was only a niti prius case. A subsequent case decided by B. Aldi-T.^on contradicts the authori- ties cited. ,' Mr. Ross. — Yes, but in tliat case the case of Rex vs. Hilditch was not I'iied. The Judgb, — No. No one appeared for the Respondent. Cw. Adv. VmU' PI'NANO. 356 On the 3i"(l of July Judgment wni delivf>retl. Tliis i>! sm iippe:il from ihe dei-i-ioii of tlie Proviiicn Police M(v- gistniie. 'I'lie only qa 'Kiioii is as to i lie effect of Pungiilii Sam Gunii's evi(^('nc^' (ui tlie Avhole prot^Heilinifs. It was conteiidefl, thnt as Ills evidence, wliich'wa'j ailmitieil sifter the case for the piosecu- tion was (jlosed, corrohoriiffid tlio erideiice for the proseciition it wa* iiiadiiiis^ihle, and hiiviiio; heen admitted it vitinted the wliole prooeedinj^-:, aiiil ilie ca^es of Rex vs. Stipson 8f Rex vs. Hilditeh were cited Tlie-p c;ise- seem to b<' eoiiti'iidictpd by a ■•ubsequenf. case decided by B ron AIiIkt-'oii, Rex vs. Briggs, 2 M. & Rob. 299. It WHS said iliai Rex vs. Hilditch was not ciied in thSs cape; ns~nming such wiis 'lie case, I think, it would Imve no efF^'Ct. Be- sides tliis, ihei-c is I he case of Briggs v-n. Amstcorth, 2 M. & Rob. 168, decided 'by 0. J, Deninan. whive ilie evirlence was held, admissible. lluvMVHr all ihis inny liH,all the eases clearly shew thai it roust bf left in the tliscretion of the presiding jnilge It has '♦"often hiippeneil in my time thai iifier cases for both sides were closed, ilie Plaintiff Wiis allowed to jiive (uitl'fer evidence in reply; but h*re ii was i, fur I he case for tlio prospcniion was closed, l)uc •wliili; the defence WIS j:oin<;- on, this I thiuk gave the less ohjec- lioii to the evidence being admitted. The conviction must, be ~ afi^niied. Convietion Affirmed. ■i M p r ee e cppg™ 18th.Sepien)ber 1872. • Bkfore Sik W. Hackett, Judge of Penang. ,' Tan Toh Lee, Ap\)e\\;int vs. Hat, Respimdeiit, Although ihe GamUing Act 13th of 1870 is very strict, still there cannot be a cormiction under it for keeping a gaming house, unless proof of guilty kiww- ledge is given. Where ihe Magistrate convicted the Appellant on such a charge without proof of such knowledge, and the Appellant appealed, the Court re- fused to quash the conviction, but sent the case back to the Magistrate for such proof. Thia was an appetd from the decision of the Province Police Magistrate. Mr. Bond/or the Appellant. — This is an appeal on the ground that there was not sufficient evidence for a conviction, and eon- sequenily ilie Ma^:istrate had no jurisdiction. The Appellant was charged with keeping a house for the purpose of gambling, but the evidence has not in the least shewn this. Not the least in- ference can be drawn from the evidence even of the Appellant being there. He sulmits .the house is his, but says it was, anil still is, in the occupation of another his tenant; and ho altogether 357 srPKEME COURT. flenips all kiiowlfidfre of the way, or for what purpose, the liouse WHS u^eil. Thk Judge — If it, is Iiis hoii=e, would lie he^gnonnt of it 1 Jfr. 5o«c?.— Although i he Act is .-trict, yet I subniit proof of guilty knowleilfie is ii'»re the future recovery of damages for trespass founded on the same injury, but also operates by way of estoppel to any action for an injury^to the same supposed right of posses- sion." His Lordship cited a case from Leonard (Anon 3 Leon. 194), where the Defendant in an action of trespass g«owecta«5iim/regfif, pleaded a former recovery, in an ejeetione firme brmght by himself against the plaintiff for the same land, and the plea was held to be an estoppel, for that the possessiou was bound by the recovery. Mr. Woods for the plaintiff hak contended, that the doctrine laid dewn in 361 SXJPIIEMK COURT. Outram v. Morewood, does not apply, because this is an action of ejectment, an3 as he maintained a verdict mter pa/rtes is no bar to a fresh ejectment, andthat any numbef- of other ejectments may be brought by the same party for the same premises. This maybe so, and that peculiarity in ejectment arose from the facility of varying the title of the plaintiff by 'alleging a differ- ent demise or a demise on a different day, so that the title might always be made to appear differbnt. But if the second declaration exactly resembled the first it is difficult to see why^ upon recognized principles, a pi'evious judg- ment should not be pleadable. In Doe V. Wright, 10 A. and E. 763, it vras held that a defendant vras estopped by adjudgment against him in ejectment, from pleading MBsritm t^nementum in an action brought against him for the mesne profits. And in the case in Leonard a plea by a defendant in trespass of a former recovery by him in ejectment brought for the same piece of land, was held to be an estoppel, for that the possession was bound by the recovery. The question in the present case does not seem to me to resemble either that in Doe v. Wright or in the case from Leonard. In the present case it appears that the now Defendant brought an action agsinst the present plaintiff for breaking and entering the Zociismgito. The defendant in that case pleaded amongst other pleas, a freehold in the premises, upon which issue was joined. If in- deed there had been a verdict upon that issue, I think the plaintiff would have been estopped from bringing his present action. But that was not the ca^e ; on the day of trial the defendant agreed to confess judgment, and, by consent judgment was entered for ^ 15 with a stay of execution. Now it seems to me impossible to contend that thisjudgment by confession can have the same effect as judgment after verdict upon an issue between the parties in which the title to the land was in question. This judgment by confession is in effect, nothing more than a judgment by default—that is to say the de- fendant withdraws his pleas and admits the plaintiff's cause of aetion as set forth in his declaration. Now what is the cause of action stated in the'de- claration, it is the breaking and entering the land of the plaintiff, and carry- ing away certain fruits. We must therefore take it as conceded, that the defendant in the former suit admitted the land to be the land of the plaintiff, but only so far as was necessary to support the action of trespass. And as the mere possession of the land gives a right to maintain trespass, I da not think the present {Jlaintiff is to be taken as having,-by his confession, admitted any thing more than the bare naked possession of the then plaintiff. And I therefore think he is not estopped by the former judgment from bringing the present action. The case of Hewlett v. i Tmie, 31 L. J. 0. P. 146 shows that a defendant, by allowing judgment to go against. l)'im by de- fault in action to which he has a good defence, is not estopped from pleading such defence in a subsequent action against, him by the same plaintiff, if such defence be not inconsistent with .any,, ^aversaMe, averment in t^ie declaration in the former action. Applying, that pj-inciplg'to the present case, I do not think the claim to the right of possession get up by the present plaintiff is inconsistent with the allegatipn of a dp facto posses- sion in the declaration of the petition in the former suit. ' 1 thereg)ye think that on the issue raised by the fourth plea there must be judgmient for tl^e, plaintiff. I have now to consider the issue raised by the three first pleas which put in issue' the plaintiff's title. It appears from the documentary evidence put in, that the land now in dispute was conveyed to three persons name4 Pan- jang Emeh, Allang Gandel, and Lebby Drawey, as joint tenants in fee, by a PENANG. 302 Deed dated the 26th day of Novembev 1844. Panjang Bmeh survived the other joint tenants, and assuming that there was no severance, would have become entitled to the whole land by right of survivorship. Panjang Bmeh died about the year 1852, and his widow Fatimah administered. In the year 1869, aPetition was filed on the Equity side of the OoUrt by Bssah, the widow and administratrix of Abdul Rahnee, one of the sons of Panjang Bmeh, against Patimah as the administratrix of Panjang Bmeh, for the administra- tion of the estate of Panjang Bmeh. The defendant put in her answer but instead of the accounts being taken in the usual way, I find that the matter was submitted to arbitration, for what reason I a-m unable to say, as T should have thought that the accounts could have been taken much more cheaply and efficiently by the officer of Court. And the arbitrator having made his award, the award was on the 12th May 1870 made a rule of Court. A writ of fi. fa. then issued out of the -Court in pursuance thereof, and the Sheriff in accordance with the writ caused the land now in dispute to be put up to auction on the 23rd of October 1870. At the sale, the person througfu whom the defendant claims was declared to be the purchaser, and the land was subsequently, on the loth December 1871 conveyed tio the defendant. The defendant's title-therefore is claimed thro' Fatimah the administratrix of Panjang Bmeh, and if it is true that Panjang Bmeh, as the survivor, became entitled^to the shares of the joini-fenants, then the title, of the defendant would primd facie appear to be good. The plaintiff however asserts that there was really a severance of the joint- tenanciy,' and he contends that the othej- joint-tenants, AUaing Gandel and Lebby Drawey sold their respective shares to him — and effectually although apparently informally conveyed the same to him, so that there was an actual alienation on their part. The plaintiffs evidence upon this head is that twenty four or twenty five years ago he purchased AUang Gandel's shares from him for $ 50 and that on the occasion of the purchase a Malay paper containing the contract was drawn up by Lebby Drawey and signed by Al- laiig Gandel. A Malay paper has- been put in evidence which purports to be this contract, the translation of which is as follows : "In the year 1263 on Thursday the seventh day of the month of Eabilhakir (25th March 1847). Be it known that a Malay man of the name of AUang Gandel came and directed me to have a paper made and given into the hands of Mahomed Joonoos. ' I Al- lang Gandel do hereby sell a piece of compound land in the district of Tan- jong Tokong held in partnership by three persons, Panjang Bmeh, Lebby Dfawey and me the said AUang Gandel. the grant thereof is numbered 2321 and it is my share that I have sold unto Mahomed Joonoos for the sum of fifty dollars I have received from the hands of Mahomed Joonoos and the agree-- ment between -me AUang Gandel and Mahomed Joonoos is that when I AUp,ng Gandel return from Pulo Lancawi I will make out a grant and gfive the same unto Mahomed Joonoos without question, or answers in future days. Written in the presence of the nndersigned witnesses." "This is the mark of the hand of me AUang Gandel a true Token.'" "Attested by Lebby Dra-wey, attested by witness PahlangBawah." • The pla;intiff further states that about a year subsequent to this he pur- chp.sed Lebby Drawey's share for $ 40 and that a paper similar to the preced- ing was drawn up and signed by him, and that ever since that time he (the plaintiff) has been in possession of the shares in the, land' thus purchased by him. 363 SUPREME COURT. The plaintiff contends that the land was effectually conveyed to him by these documents. But although the Act, 8 and 9 Victoria c. 106, is not in force here, yet it appears to me to be impossible to regard this Document as a valid conveyance. It is certainly not a grant, not being under seal, and it cannot, I think, be regarded as a feoffmetit for two reasons, first because it does not contain words implying an actual conveyance, and secondly be- cause the eisence of a feoffment is the solemn and formal livery of seizen of which the writing was, by the common law merely the evidence, (although by the Statute of Frauds a writing became necessary for the transfer of any greater interest in land than an estate at will,) and there is no evidence in this case of a formal^ivery of seizen. But the Plaintiff further contends that he has at all events acquired a good title by length of possession. It is clear that by stat. 21 Jac. I. an uninter- rupted possession for twenty years not only gave a right of possession which could not be divested by entry, but also gave a right of entry. So Ijhat if a person who had such possession was turned out of it, he might lawfully enter and bring an ejectment for its recovery ; upon which he would be entitled to judgment. The period of limitation which I have mentioned is that which, in accordance with English law, was in fo/oe here prior to the Indian Act XIV of 1859. By that Act, however, it was enacted that " no suit shall be maintained in any Court of Judicature within any part of British India, un- less the same is instituted within the pej-iod of limitation therein after made applicable to a suit of that nature, and the periods of limitation and the suits to which the same respectively shall be applicable, shall be the followmg that rt to say : * * * * * " 12. To suits for the recov- ery of immoveable property to which no other provision of this Act applies ' — the period of twelve yeai-s from the time the cause of action arose," This Act therefore, as to all actions subsequent to the Act, swept away the English law which previously existed, and for ^a period of tvventy years, in suits for the recovery of land, substituted a period of twelve years : since that Act therefore twelve years of uninterrupted possestion forms a positive prescrip- tion, and the impression which seems to have prevailed at the bar during, the argument, that the Act of 1859 did not apply in this case, seems to me to be erroneous. Its retrospective effect is clear from the 18th section, by which " all suits to which the provisions of the Act are applicable that shall be in- stituted after the period of two years from the date of the passing of the Act are to be gpverned by the Act and no other law of limitation." According to the evidence of the plaintiff he farmed the land himself after ' the purchase from the two joint tenants, and then let it out to Sitamby. Ma- homed Ibrahim however differs somewhat in the account he ^ves. He says that after the purchase from AUang Gandel and Lebby Drawey, Mahomed Joonoos used to manage the land, and that Panjang Emeh (the other pur- chaser) used also to rent out the land. But he states that his brother Sitamby farmed the land from the commence- ment. He also said that he rented the land from Joonoos about 8 years ago for a period of 5 years. Sitamby it appears, died 8 year^ ago and at tba* time $ 14 were due by him for rent, which sum, Ibrahim states, he paid'to Joonoos. On cross-examination this witness stated that Sitamby first rented the land for 10 years from the three joint-tenants, and afterwards from Ma- homed Joonoos and his lather. The date of the death of Panjang Emeh is not fised positively, but it seems to have occurred about the yeto 1852. PENANG. 364 Mat Akib states that he has seen the plaintiff exercising authority over the land in dispute for the last 10 or 11 years. The evidence of the plaintiff's witnesses has not been contradicted, in any material part, by the witnesses for the defendant, and I think that the plain- tiff has succeeded in shewing that he was' in possession of the shares in the land purchased by him from ^;he, joint tenants for more than twelve years prior to the entry of the defendant. I therefore think that there must be judgment for the plaintiff^ for two thirds of the land described in the deed of the 26th of November, 1844. 19th September 1872. Before Sir Wm. Hackett, Knt, Judge ofPenang Mah Keoic by lier next fiieiid Che Em vs. Chtah Hit otherwise called Low Tway and others. If an m/ami, knowing himself to be under 21 years of age, enters into a con- tra,et, hut is ignorant, at what age a person is said hy law to cease to he an in- fant, and is aecordvagl/y - silent as to his age, by which the person with whom he contracts, is deceived; thatisnot a fraud on his part, which will estop him from applying to a Cowt of Equity to set aside such cont/ract. — The defence of being a pv/rchaser' for valuable consideration viithout notice, cannot be set up, miless siteh defence is specially set wp hy way of answer or plea. Semblb. — An infant is entitled to apply to a Cowrt of Equity to set aside his contract, even if he obtained a benefit thereby This was a suit on the equity side of the Court praying that a certain Deed «iade between the parties to fhia suit, mortgaging a piece of land of Ihe PlaintiiF to tlie 1st named Defendent lor $ 300; may be ordered to be given up to be cancelled on the grounds of fraud and duress, and tliat the Plaintiff was an infant at the time of thp execution of the Deed. , The Defendants in their answer denied generally the fraud and duress and that the Plaintiff was an infant. The money raised by the mortgage was said by the Plaintiff to have been wholly received by the 2nd named Defendant. The Defendants admitted that one of them, namely, the 2nd named De- fendant, had received a part of the money, but maintained that the Plaintiff had received the balance, which, according to the ac- counts of the Defendants themselves, was only $ 98 — 50. There was no evidence of the 1st Defendant participating in the fraud or duress, or that he had notice that the Plaintiff was an infant at the time the said Deed was made; but there was evidence that Plaintiff knew at the time that she was under 21 years of age. Judgment. In this case Plaintiff .made a mortgage of her property in which she had a life interest and she has now come into Court and asks to have this mortgage Deed set aside. She alleges that about four monthiS before the suit was commenced the Defendant Poh Oh be- ing in embarrassed circumstances together with his wife the De- fendant Nem Boey asked her to execute together with them a 36§ SUPKEMK CO¥KT. certain pappr writing: mort;n- ers. By the Cominon Law no cotinty jnstice in tiie Colony has jiiri'idiation lo try such a crime, and there is no statute wiiii wlrich I am acquanited, which confers any such jurisdiction. There are certain exceptions to the general rule, as in tiie case of crimes com- mitted on the high seas l)y Britiah subjects, or in British vessels, and aNo in the case of piracy /««>•« gentium. There is also the In- dian Act 1 of 1849 by wliich all British subjects, and all Govern- ment servants whilst aclually in smdi service and for six months afterwards and also all persons who shall have dwelt for six months within the territories of the East Indian Government, who shall be apprehended within tlie said territories, shall be amenable to law for all offences committed within the territory of any Foreign Prince or Stale. But it is clear that the present case does not fall within any of these exceptions and that as far as it appears from the iiiforinaiion,/it is altogether out of the cognizance of the Courts of this Settlement. Mr. Woods in support of the motion. has con- tended that the Magistrate having once issued the Warrant was bou^id to proceed with it and had no right to release the property. But I conceive, that if, after issuing the Warrant, the Magistrate thought that it was a case in which he had no jurisdiction he had a perfect right to decline to proceed any further in the matter. Mr. Woods also relied on the cases of B. v. Eimberley, 2. Str. 848 and Mure v. Kaye, 4 Taunt. 4'3, to shew that the Magistrate has jurisdiction in the case of crimes committed in foreign coun- tries. But it appears to me sufficient to say tliat there is no ana- logy between those cases and the present. In those cases there were persons in custody on the charge of having committed crimes in foreign countries — and the question was whether they should be detained for (he purpose of being handed over to the authorities of the place where the offence was cognizable. Here ,, there is no charge made against any one, there is no one in custpdy.andthe question is whether the Magistrate is bound to seize the goods alleg-. ed to be the proceeds of a crime committed out of the limits of this Colony, and as to which the Courts of this Colony have no jaris- dietiou, on the chance of some charge or other being brought against some as yet unascertained person. I will not go so far as to say that the Magistrate would have acted illegally in seizing and detaining the goods, but I think it is a case in which very great caution was necessary and that he exercised a sound discre- tion in declining to proceed when the question of jurisdiction was so doubtful and the whole proceedings 190 vague and indefinita PENANG. 368 I may also remark that Mr. Forsyih in his work on Constitiitioniil Law-p. 370 throws some doubt on the ciise of Mure v. Kai/e 4. Taunt 43, where the crew of a Duich ship having mastered the vessel and run away with her, the question arose whether the English authorities could seize them and send tliem to Holland, and it was held, they might. Upon this case Mr. Forsyih observes ; "But I cannot understand how this 'CouM have been done without the auiliority of an Act of Parliament. In former times, Ivowever, there was a laxity of practice in many things which would not he allowed now." Recent legislation in Englanid has dealt with the question of extradition and I apprehend that now np English Court or Magistrate would deliver an accus^ person, to the au- thorities of a foreign power or State without the direction 'of an Act of Parliament. In India, also, there is the Act VII of 1854, which provides for the apprehension within the territories under the Government of India of persons charged with the commission of heinous offences beyond the limits of the said territories and lor delivering tliem up to justice. I apprehend that if it is the ob- ject of the prosecutors in this case to apply ior the extradiiion of any persons charged with the commission of any crime that they should proceed under the provisions of this Act. It is true that when a person is charged wiih a heinoU'< offence under Section 21 of that Act, and his immediate apprehension may, in the opinion of the Magistrate, be necessary for the ends of justice, tiie person accused rawy, without an order of Government, be apprehended and proceeded against in the same manner as for an offence chn,rged to have been committed in tlie place where the person m.'cused shall be found; and after his aiiprehension he shall be nommitted. But in the. present case, there is no person charged, and the only apparent object of the int'ormation jg to secure the goods, whereas, the object of the Act is to pre'i'ent the criminals from escaping. Mr. Woods has also argued tUiit it is possible that some persons may have been guilty of some offence, in connection with the al- leged stealing, committed witliii> the limits of the Settlement : when such a charge is made it will be time enougii to deal witii it, but in the meantime, as the information does not disclose any offence cognizable in the ordinary way by the tribunals of this Coiouy, I must decline to speculate on whether possibly some persons at present unascertained, may not have been g.uilty of some offence, undefined in connection with the alleged crime, committed with- in the jurisdiction of our Courts, and I must Certainly decline to force that view upon the JMagistrate. A case has been referred lo its having lately occurred in London, where a person was charged 369 surKEM:E t'ouRT. ■witli being ill possession of certain ai'ticles, the proceeds of a larce- ny. An application was maile to the Court for liis release on tlie ground that the larceny in question had been committed in Russiit, with which cuuniry England has no Treaty for the mutual extradiiion of Criminals. The Court however ordered the pri- soner to be retnanded. But this case as it appears to me does not prove that if the Court had thought fit to discharge the pri- soner it might not have done so. There can be no doubt that the jurisdiction of Criminal Courts is local, and only extends lo crimes committed vrithin the territorial limits assigned to them. The ex- tradition of persons charged with the commission of crimes com- mitted in foreign cojiniries is a political not a judicial proceeding, and depends, as Wheaton says, on reasons of State and noi on rules of law. / Public Jurist* are divided as lo how far. a State is bound to deliver up persons charged witii crimes committed in another country upon the demand of a foreign Sfaie. Some dis- tinguished writers, such as Grotius, Heineccius, Vattel, and Kent hold that, in the case of crimes affecting the general peace and security of society, extradition is demanded by the country whose laws have been violated, as a matter of right whilst other no less distinguished names support the opinion that extradition i-i a mat- ter of fmperfect obligation, and only depends on mutual com- ity and convenience, unless it is confined by special compnct. ' If we may judge by the practice of nations in modein times, tlie latter opinion is now generally accepted, as it is not now the cus- tbm lo demand the surrender of' criminals except in accordance with I reaiy obligation. Upon the whole case I think the jurisdic- tion of the Magistrate does not, sufficiently appear in the face of the information, and that he has exercised a sound discretion in refusing to proceed further. The rule is refused. ' Mule Refused. ■ ■ a oOC Mjou i III 22nd January, 1873. Bbfore Sir Wm. Hackett, Kmt, Judge of Penang. Fredericks and others vs. Dunlop and others. A Shipping Order to the following effect " To the Commcmding Officer of the S. S. " T." Please receive on board 100 tons tin for L. @ 3/10 ptr twenty iwt." signed by the Defendants and given to Plaintiffs. HELD a binding cOn- tract on bothparties amd that parol evidence to shew that Defenda/nts contract- ed merely as Agents was not ddmissiMe and in-as-much as the "T", through the defavM of the owners, the Defendants' principals, did not amve wh^eby the goods covld not be sent by her bvi had to be sent by an^other vessel, the De- fendants were personally liable foi' the h-each of the contract. SEMBLE. — A Shipping Order of this kindhow'ever is subject to antf mtr- PENANG. 370 emvtile vsag_e in the place where made and if by siich usa^e the Defendants are not personally liable they could not b'e held to be so. There is however no usage in Penang as to instm/ments of this naiure as to the non-personal liability of the Defendants, SEMBLE. — The measwre of damages in sikIi a case would be the difference between the two rates of freight or oHierwise according to cvrewmstamAes, and if no actual Idss was sustained by Plaintiffs they would be entitled to nomiwl, damages only. Tliis was an action to recover damages for biTencIi of contract. Tlie defendants pleaded the general issue on wliich is'iiie was joined. Mr. Logan (Solicitor General) appeared for the plaintiffs. Mr. Bond, — For the defendants. The Judge. — Tliis was an action, to recover $ 700 for breach of contract. The Peiition alleges that the defendants by a shipping order required the Cdmmatiding Officer of tlie sieani^r Thales to receive on board 100 tons of tin for Londoii^it then averred that air condition precedents, were performed and had happened, yet the defendants would not perujit the tin to be shipped, by means of which plaintiffs lost divers |)rofit8, which they would have gained if defendants had completed their contract and incurred expense in sending it on in another ship to London. The defendants deny the agreement on which issue has been joined. The plainciff< are merchants carr\ing on business under the name and style «( Messieur* Fredericks & Co. The defendnnis are also niprchants carrying on business under the name and gtyle of Messienis Fru- ser & Co. Tiie evidence at tiie trial shewed, that on the 13th October 1873 the plaintiffs received an order from one of their, London constituents to purchase and send them 105 tons of tin. They thereafter purchased the tin and asked defendants to allow them to ship it by the Thales. On the 4th November, Mr. <3entle th^ Manager of Messieurs Fraser & Go's firm wrote to Mr, Fred- ericks stating that the Thales was at Singapore and would be here Jn a few days thereafter and asking him if he wanted a shipping order for the tin he had wanted to ship. To this Mr. Fredericks replied he was glad the Thales was coming in and asked for a shipping order for 100 tons tin, and some tapioca and tobacco. The shipping order was accordingly forw-arded and is as follows : — " No. 2. To the Commanding Officer of the S. S. Thales, Sir, Please receive on board 100 tons tin for London @ £ 3-10/ per twenty cwt." and this was signed ''p. pro. Fraser & Co. Alex. Gentle." Plaintiffs after tliis telegraphed to their principals say- ing the tilings were to be sent by the Thales. Shortly after do- fendants' Agents at Singapore telegraphed to them to say, that the Thales h&d been sold to Chinese and^io recall all shipping or- ders already issued. Mr. Gentle thereupon wrote to Mr, Fie- 371 ' SUPREME COURT. dericks telling him the Thales was not coming as she had been sold. The plainliffs lost no time in holding the defendants res- ponsible and got their lawyer to write to defendants saying that tlie^ will hold the defendants for all loss and damage sustained by the non- arrival of the Thales. On the IBih, plnintiflFs' lawyer ■wrote to defendants to say, that the tin had been shipped in an- other vessel and that tliey would hold defendants liable for all loss they may sustain thereby. To this letter defendants replied acknowledging receipt of it and saying that the plaintiffs had no claim on them for the non-arrival of the Thales. On the 24th November, plaintiffs' lawyer sent defendants a Memo, of^ their claim for loss, on tin &c. &c., shipped onboard another vessel at £ 5 per twenty cwt., to which defendants replied that they did not admit the claim of the plaintiffs and promised to forward their letter to the proper quarter but could give no hopes of their. ob- tnining what they wanted. From the correspondence, there it seemH, the plaintiffs claimed all loss they sustained in shipping the goods by the other vessel on account of the non-arrival of the Thales. Mr. Bond the counsel for the defendants resisted the claim on two grounds — 1st., that the shipping order was not a binding contract and that parol evidence could be given to shew that defendants con- tracted merely as .^gents, especially as time which was essential to the eontrfict was not mentioned. But I think there is a sufficient coniract and that there was an implied undertaking that the vessel would come to Penang and would take the goods, and that it is only material to consider whether defendants had committed a breach of their contract. It is clear, the letter of the defendants announping the airival at Singapore of the Thales confirms what I have stated, there is an implied contract I think, that the vessel would arrive here within a reasonable lime — say about the 15th November. There is nothing in the order or letters to shew, de- fendants contracted as Agents merely, in fact the word ," Agents " is not once even mentioned. The defendants merely say " We can give a shipping order," and the plaintiffs' reply " please give us a shipping order." I am therefore of opinion that there"is a complete contract in writing and therefore parol evidence to shew that defendants contracted merely as Agents is inadmissible (a). The defendants even never told the plaintiffs that they were con- tracting merely as Agents. It is said plaintiffs knew of it; assum- ing that they did, but still as the contract in writing does not (a.) See Higgms vs. Senior, 8 M. & W. 834. Jonss vs. Littledah, 6 A. & {). 490 per Lord Denman. Paterson vs. Cf-randusequi 15 East 62, 68, 69 — and Thompson vs.- JDavmport, 9 B. & 0. 78. 372 mention a word about it. I tliiiik the ^lefendants are liable as principals on the contract. Secondly, Mr. Bond conteudHd tlmt even assuming there was a complete contract and that defendants were personally bound in point of law still the contract is subject to certain mercantile usages which he contended waa proved in fill's case on in-itrnments of this kind. Mr. Gentle in his evidence say«, the shipping order i;< is-^ui^d iihen the stetimer is in a foreign port and niu-^t arrive here before it can take effect. According to Mr. Gontle's evidence, four conditions must be performed before the shipping order is binding — 1st., the vessel must have com- menced lier voyage ; 2nd., she must nrrive at the port where the goods are intended to be shipped; 3rd., there must be' sufficient room on board of her to takfe in the ooods ; and 4th., that there must be ennuuh room so as not to spoil any goods already on board. Mr. Tolson of Messieurs Lorrajn Gillespie & Co. of Pe- nang was c;il!ed to support Mr. Gentle. He did in some respects do 90, but doubted whether if all these conditions had been per- formed and yet the defendants refused to complete the contract whether thpy would not be liable because they were Agents. The order in a note states, the condition to be, that there be room in the vessel, but nothing is said as to her safe arrival. In opposi- tion to these, several gentlemen, some of the leading merchants here were called. Mr. Allan, of Messieurs Sandilands Buttery and Co., considered that the agreement was binding and that there were no other conditions to it, except those expregeed in the con- tract, but he con-*idered that the defendants only acting as Agenta it would he impqliiicto hold them liable. Mr. Scott, of Messieurs Brown & Co., considered the order binding on' both parties and - applied to ships as well us to Steamers. Mr. Anthony, of Messieurs Anthony & Co., considered the contract as binding. Mr. Padday, of Messieurs Wm. Hall & Co., considered the contract binding on the parties but that the ship owners were liable for the non-arrival of the vessel. Mr. Maekie, of Messieurs Bonstead & Co., con- sidered the contract binding — from these, witnesses it appears that the non-arrival or want of room on board is not a condition pre- cedent unless so expressed. Claims like the present it also ap- pears have never been made, though often things like the present have happened. Upon the whole evidence then, I think, there is no usage as the kind contended for and that I must decide this case by the contract itself. It is unnecessary to consider whether the defendants would be liable if the TJiales never arrived here, eitlier by being lost or otherwise, as there is no plea to that effect on the record. It is clear a breach of the contract was committed ; 373 SUPREME COURT. after agreeing tliat the vessel should come here the owner wrong- fully sold hei' by which defendants are made liable. It is no ex- cuse to say that the contract was made impossible by ilie act of a third party. Mr, Justice Blackbnrn in Taylor ts. Caldwell, 32 L. J. Q B. (N. S.j 166 says, "There seems no doubt tliat where there is a positive contract to do a thing, not in itself un- lawful, the contractor must perform it or pay damages for not doing it, although, in consequence of unforeseen accidents, tlie performance oi his contract has become unexpectedly burtbeii- some or even impossible.'' (a) I therefore think, there was a, breach of the defendants' agreement on the 4tli November and tliiitiliey, are liable to the piajntiflFs for the loss they have su.stained thereby. No doubt at first sio;ht this rule of law appears a- very hard one, but as one of two innocent parties raa^i suffer by the frauil of a third, and the defendants iiere have neglected to protect themselves . whilst entering into the contract, ihoy must bear the las'* sustained by the plaiiilififs. The question of damages it has, been arranged between the parties should be referred to arbitration, so it is un- necessary for me to ascertain the amount. There will therefore, be juiigment for the plaintiffs, the amount of damages being re- ferred to arbitration. ' Before I conclude I must thank Mr. Woods for the case men- tioned by him where the same question as liere, was raised at Cal- cutta. The case clearly shews the shipping order is a binding contract, and the only difference between that case and the pre- sent is that, there the vessel was in the harbour and the good3> could have been shipped immediately. The judgment of the case is valuable as shewing the principle how the damages are to be. assessed. The Judge of the Court below non-suited the plain- tiff, as he was of opinion that tlie goods sent on by them by the other ship not having then arrived, the damages they had sustain- ed could not be ascertained, but on appeal to the High Court this decision was reversed, the Court being of opiiiioij that the cause of action was complete the moment defendants broke their contract, and that the damages therefore could be ascertained by either the increase rate of treight or otherwise, according to the circumstances. The right to sue did not depend on the arrival of the vessel but arose tlie moment the breach was committed ; if there were no loss susiaitied, then the plaintiff would be entitled to nom- inal damages only. In the present case the plaintiffs have sustained actual damage. The case mentioned shews clearly the very principles governing the question of damages in the present (o.) Also see Hill v.s, Sugune 15 M. & W, 253. PENANG. 374 case. The performance of tlie voyage by tlie other vessel is not a condition precedent, and the damages mu>:t be ascertained accord- ing to the ordinary measure, namely, tlie difference between the two rates of freight. Judgment for the plaintiffs. See Brinhnarm, Kwnpers (6 Co . vs. Bautcnherg Schmidt <& Go. report- ed in the Straits Times of 7th June 1876 ; a, case somewhat similar to the above was heard before Sir T. Sidgreaves C J", and judgment was given for the plaintiffs. S. L. 6th May, 1873. Before Sir Wm. Hackett, Kkt, Judge of Penang. Thompson vs. Puah Toh. The Cowrt viiU not grant a new trial simply on the ground thoA, Counsel has twt called several witnesses whom the client wished to he examined first, as the Coiunsel miist be allowed his discretion, Cunless he has acted contrary to his- client's express instructions, which must be proved in the clearest mmwier,) and iecondly, as by granting a new trial it will dimply be opening a door to fraud ana perjwy. This was a rule to shew cituse why a new trial should not be gfranted — several affidavits were filed on both sides which are not here set otit as the sura and substance of them appears fully from the argtluients and jndgment. Mr. Woods.— This was an action on an agreement as sure- ty, there were two pleas; first, did not agree; and second- ly, a ' plea shewing that by PlaimifFs conduct, Teoh Ah Tong for whom Defendant stood surety w:vs unable to per- form ilia coJitract. The case was tried before this Court and judg- ment given for Plaintiff. The Defendant made an affidavit, stat- ing that Mr. Bodyk his Counsel had declinedi^to call his wiinesses. Mr. Kodyk filed an affidavit in reply, staling that h6 did not call the witnesses as what they could prove was, what the Plaintiff in his cross-examination had already admitted, but which evidence, the Cdurt had iield, was inadmissible under the pleas pleaded and had refused leave to amend, and as to the question whether the said Teoh Ah Tong had a sufficient number of men according to the contract, they just proved the very contrary, namely, that 45 men or thereabouts were the most he could manage to get and in con- sequence thereof he had not called them. Puah Toh the Defen- dant made a further affidavit, stating that Mr. Rocljk must have forgotten the facts of the case as the witnesses could pi^ove not only the Plaintiff's cruelty but also that Teoh Ah Tong had a suf- ficient number of men. Mr. Kodyk replied to this denying generally the whole affidavit. I eubmit that it is very apparent, 1575 STJPEEME COURT. first, tliHt it WHS a surprise to tie ■ Defendniit rhafc bis nit. ne-^ses were not called. The surprise is — 'vere the persons had been Eiitopei^ns, who speak i ami umleisiaiiil English, it would he different, but here the D.frtndant is a Chiiiiiman, who can't do either — secondly, tlie witnt's-'es were in Court with the Re- gister of the coolie~^ whioli wouhl liave haii-'t 1872, struck work on ilie 1st of tliat month, refii-iiig to work ilie remain- ing 6 clays. 'I'lie Mnuistrale iilfliouKli of opinion ih^t tiie men had broken iheir contract, Jeclined to ordpr tlie men to return to work; but, beyond wliat nra'y be gatiiered from an expression tend-' ing to shO|W tliat he thonght if tlie full term of the cnntract had expired he had no jurisdiction, there are no 'means of asceriaiiiinjr his reasons for refu'^ing the order.- If chni.se 1 of tlie contract stood alone, a very literal interpretation of its language might, perhaps, support thin conclusi/Dii ; hut in the view I take of the case, viz., that the labourers in such case are bouncF nndei' Clause 3, the point does not become iivaterial, If^ however, as I am in- formed, tlie summons was taken out before tlie 6i,ii of August, althoueh not heard until tlie. llih, the argument would clearly not be sustainable, the employer being clearly soon enough for liis remedy. The decision of the case, liowever, sepms to me to rest upon the answer to the question. Whether the case of these men and of the other class who omitted to work at an earlier period of the term for which they engaged, falls within the provisions of the 3rd Clausal Does the breach of their engagements by these two bodies of men under the stipulation that they " shall make good the loss of labour or of money'' incurred by the breach, con- fer upon the planter a right to have his loss repaid in kind or only by a money equivalent through the process of a civil action ? To get the answer to this question the Court has simply to put the correct construction upon the term "to make good." The expression is no doubf not so full and consequently not so clear as it might be. It has a double meaning, readily illustrated. The case of a tenant who undertakes to make good all injury, or even wear and tear to the premises leased, during his holding affords one illustration. His undertaking is not merely to pay money for the damage to the tenement. He is bound, should the land- lord require him, to make good the damage in kind, to leave him the tenement in the condition he took it. It may be that the owner as a general rule takes a sum of money as damages. That however is for his own convenience' and cannot interfere with his right to specific performance if he wishes it, and can get a Court to enforce it. It is the latter difficulty, as Courts of Equity limit their enforcement of contracts for specific perform- ance to a limited class of cases, which usually induces the party to forego ' their right in consideration of a pectiniary indemnity. The other class of cases, where, from inability to make good in kind, a pecuniary compensation for a breach of such an engage- ment is the only remedy, afi"ords numerous illustrations. A fami- 381 SUPEBME COURT. liiir one would bft a contract to make good any injury done in the n>je of cattle or aiiiraiils liirfid for agricultural or otiier work. Mr. Webster, in liis well known diciioiiaiy, gives to the term two simi- lar signjAcntions. He defines "to make good" as — (Istj to fulfil ; to accomplish ; as, to make good one's.wonl, promise, or engage- ment,— (2nd) to miike compensation for ; to supjily an equivalent ; as to muke (lood a loss or damage. TJie way in wiiich the ex- pression i'l u«ed in any particular clange, must be gathered from a reference to the circumstances under which it is used, tlie res- gesfce of iliecase; from the context; from the subject matter of the, contract. Here the subject matter of the contract is labonr and labour only. It is what the planter goes far to seek and runs great ri-k to obtain. It is whfit the labourer comes/arfor and undergoes many privations to procur^. A sud- den withdrawn! of his labonr might place the planter ni a position (if ruin ; w.-re it permitted, he wonkh be at the mercy of J hose he iias risked so much' to obtain.. It is, therefore, of the highest pro- bability that expressions such as tliese would be used by both par- ties rather in the sense of making good in kind, than in making gbod by way, of compensation in, money, a form of compensation which, indeed, would practically leave the planter without remedy. Doesthe context support this interpretation ? I think it do , , A Mohamedoun husband takes no imterest in his wife's freiehold property dwrmg the lifetime of his wife or after her decease by virtue of the coverture. Penang Gazette, 24th June, 1876. - Judgment. In this matter two questions were submitted for our consideration, 1st.— Whether tiie freehold property of a wife predeceases her husband and dieg intestate, is to be held to have been chatt,els real, duifing the lifetime of the wife, under Section I of the Indian Act XX of 1867 and as if vested in her husband, during the coverture jure uxoris, 2nd. — If so whetlier there is an exemption in the case of a Mohamedan woman. We consider, that in the case of a Christian marriage in these Sektiements, the law upon the subject is precisely the same as in England, subject as regards the wife's real property to the modification iutroducfed Ijy section I of Act XX of 1837 which is as follows: "It is hereby enacted,^tha,t from the 1st day of October 1837, all immoveable property situate'wfEJjIS^I* jurisdiction of the Court of Judicature of Prince of Wales Island, Singapore and Malacca shall as far as regards the transmission of such property on the death and intestacy of any person having a beneficial interest in the same, or by the last will of any such person, be taken to be, and to have been of the nature of chattels real and not of ft:eehold." The effect of that Act has been, that as regards the transmission of immovea- ble property, on the death and intestacy of any person having benefical interest ■ in the same or by the lastwill of such person, it shall be taken to be and to have been of the nature of chattels real, we consider this provision to relate to the tranmission of such property only and that it does not affect or alter the nature of such property, either before or after the death of such person.' The answer, to the first question therefore will be, that in case of such a marriage as hereinbefore mentioned, the freehold property of a wife dying before her hus- band and intestate, is to be held to have been chattels real for the, purposes of tranmission only, during the lifetime of the wife. It does not, however, have the effect of relating back and altering the nature of, the husband's interest in his wife's freehold estate before her death, and theVefore such freehold property cannot be considered, as haVing been vested in the same way as chattels real • By the Act, the Court is to consist of four Judges, or not fewer than three. The Solicitor General, one of the appointed Judges, who sat in the other cases, declined to sit in this, as he had been Counsel for the case previous. The Court idelivered the judgment by consent ofCdunsel ou both Bides and held it to be hiudini);. 3. L, PENANG. 384 might have been in her husband, during the eoverture jure uxoris ; the husband therefore will have to take out administration to such property in the usual cOarse. Consistently with the cases referred to in the argument reported in Woods' Oriental cases we have no difficulty in deciding that the English law based en- tirely upon the Christian marriage is wholly inapplicable to the relationship existing between the sexes by virtue of a Moharaedau marriage. For some purposes a Mohamedan marriage is recognized as a valid marriage by our Courts but the nature of the contract is essentially different fi-om that entered into by Christians, and in accordance with the oases already decided that a husband who contracts a marriage which he is at liberty to dissolve at plea- sure, takes no interest in his wife's estate. We hold that under a Mohamedan marriage the husband takes no interest in her freehold property during the lifetime of the wife or after her decease by virtue of the coverture. Judgment therefore in favour of the Defendants will be affirmed. NoTB. — Further particularB regarding Mchamedau married womens' property, sac canes at p, 2S3, 260 ft 27fi. Of marriage.^ and divorceB among the Mohamcdans, Hindoos and Chinese, see eut> at p. 81, 260, 270, 282, 167, t 314. S. L. -.a=^,,a.5.#=. 1st March 1877. Before His Honok T. T. Ford, Acting Chief Justice. LIM AH YONG vs. KHOO KHAY CHAN. The Indian Act XX of 1837 having altered real estate to chattels Hal for the purposes of transmission, on the death and intestacy or tesiacy of the otvner thereof, has done away with the legal estate of a devisee and transferred it to the Administrator or Executor as the case may he. Such devisee cannot therefore without the assent of, or a conveyance to him of the property devised, from, the Executor, maintain an action of ejectment for it. This was an action of pjeclnient to recover posse.ssion of certain property in Beach Street alleged, to belong to one Lim Kong- Waii deceased, who died in 1843. The plaintifFclaimed as devisee under the Will of the the swid Lim Kong- Wah. The defendant was sued as the occupant, but by an order of Conrt one Ong Cheng Neo, wl)o claimed to be interested in these i)reini8es under the Will of Oli Yeo Neo deceased, the widow of the said Lim Kong VVali, was permitted to intervene and defend the action in the name of the defendant, but, as Executor of the said Oh Yeo Neo. The defendant was one of the Executors of tiie said Oh YeO Neo, but did not appear iriliing 385 SUPREME COURT. to defend ilic itction. Oh Yeo Neo was fliiring lier lifetime the Execu'iix cif I he s^iid Lini Kong- Wall, Mnd in 1844 obtained I'ro- hute of his Wi.ll, which was dated the 19th Se|itember 1843. The Will wiis .wriiteii in Chinesn qharaciers and it. was alle}>'Htl by the )>hiintiff tliat I he residuary clause, under which he clnimed, was wionjrly 'istusUiied. The case was first called on for hearing on the 20th March 1876, but wa^ allowed to stand over, in order that an apjjlication should be made lo the Ecidesiastical Court for a rec- tification of the iranslaiioH. An applicaiion was made some months after, when the Court ordered ihat the new trann- lation be filpd and kept with the rpcords, but not to be attached to the Probate. On the 22iid February 1877. the case was again called on, the Court after a day or two's hearing, fiiuilly disposed' of it on this day. The plaintiff gave evidence of the abovfi facts and of the seisen of the testator Liin Kong Wah and of hi,s relationship to the de-. ceased, also of his being the person referred lo by the testator in his Will as his son " Yoiig " or " Mah Yoiij? " and of (he wrong translation of the Will by the ofifieer of the Ecclesiastical Court in 1844, at the time the Probafe was granted and put in a correct trans- lation thereof. By the translation the rest anly make it profitable to tiie Government, The main question seems to be wiiich was the primary and which the secondary object. It the object was tlie imposition of the duties, the power of tlie 99th Sec- tion of the Statute to make i ules and regulations with respect to the duties and taxes imposed, might by possibility extend to tlie iniposTtion of the conrtplicated machinery introduced ; though this would in my judgment be a very sti'ong construction to put on the words of tlie Statute. But if the object was the regulation of the lands, the assertion of the Company's title, the registry of titles, for the sake of the public benefits to be derived from such registry itself (a most important object in my judgment every where, and especially here, but which cannot be effected, except by some legal authority) f aj or even the better security of the Com- pany's rents, which though revenue, »re neither dut^ nor iax, then it seems tome that the establishment of a rate of tees was only subordinate and incidental to the main object, that the Governmeuk having no power to legislate for the main object, the Regulation is illegal, and. that it is not prevented from being so by the oir-: cumstance that some profit may have been incidentally realized out of the fees established for another purpose. It would be useless to go minutely into the details of the Re^i gulation, every page of which, I think proves that the latter is its. real character. Its title shews it conclusively. So does its pre- amble, and even in the two sections 8 and 9, in which alone the payments which can in any degree give it the character of a tax regulation, are imposed, they are expressly declared to be levied in Qrder to meet tjie incidental charges, and are spoken of as feesf, a sort of payment perfectly distinct from a duty or a tax : so much ' (a.) Broom's Legal Maxims p, 4 . SINGAPORE. 390 SO. that if it were not for llie lllli Section ]>roviiliMg tliat iliey shall be carried to the credit of Governineni, there would be notliing in ihe terms of tlieir imposilion even to make tlieiii availa- ble to public purposes. Many of the pnrposeg of the Regulation might, iiotwilhstand- ing its illegality as a law, be secured by mfikirig them matters of condition and stipulation in the leases granted by tiie Government. I do not think, however, that in any case it could be inferred tiiat the leases were subjected to those contlitions, unless rnade so by express statement oi- direct reference to the Regulation itself. And at all events no such stipulations could exist in the original lease of the property in question, which is annexed to the mortgage, and bears date long before the pa.^sing of the Rettulatiou. In any case also, as between third parties, such stipulations would i)ro- bably be ineffectual however available they might be to secure the interests of the Government. If the mortgage is not illegal, the mortgagor would be bound by it, though he would have acted in contravention of his covenant in making it: audit he would be bound by it, his creditors claiming under him and staniling in his place, would be bound al»o. No one could enforce the stipnlations introduced for the benefit of the Government, except the Govein- inent itself, or persons claiming under them by title paramount to that of the lessees. The case would just belike that of a con- dition in a lease not to assign witlibul licence, which has never been supposed to render an assigviuient made in contravention of it void except as against the assignoi' or his assigns. A mere cov- enant would not make it void, even as against them : but would only give. them a remedy against the covenanter. The only remaining questioii'is, as to the amount of damages ; and as I understaud that the pai-ties, to prevent further litigation, are willing to agree that the whole amount of substantial damage shall be recovered in this ac-tion, the plaintiiF consenting to secure the purchaser under the execution in his title, 1 need not discuss it in detail. Jt would seem tome independently of such agree- ment, that the Plaintiff was entitled only to nominal damages, as he retains the right of treating the sale as null and void, and re- serring the potsession* of the land and the mesne j)rofits of it since the saje, lor the purchaser, who would have to seek his re- medy against the Sheriff. As however it is agreed that the Sheriff shall make the necessary compensation at once, the only qiiestion is up to what time the damages should be computed. It was sug- gested that the Plaintiff had been himself in fault, having left no one to act for him, and ought not therefore to rec&vei' mure than COURT OF JHDICATUUK. his piiHoipiil iiiiil ilie intere'^t due a' the liine of tliC'Siilp. I ilo not see the force of tlie arj^'iiinerit : fiie seizure took place with iiolice of the mortnaifc, and under a oliiiiii 'if liijlit arisiiiii oiif of ihe Regulation, and in all probubiliiv it would not have beeri llie leH8 enfoiced, even if the plaintiff had been here in person to as- sert his claim. Be-ides, if the judsiroenl is now given for nominal darnaues. ihe Plaintiff if he pjocceded against tlic purchaser would clearly be entitled lo recover not merely the possesaicni of the land, but its profits (iuring- the period of its unlawlul oecu[)aiioii («) : and the Sheriff, if liable at all to the puichnser would be liable to the extent of the injnry "liieh he ha ail Action of 'I'rover bi'du^;!)! to recovpr tlis value of 977 bags of Sug-ar shipppd at Manila on bosird tlie Elizabeth, iiiul coa- gigiied lo live PhiiiitiflF-, Mpssis. Boiistead Scliwabe wnd Co. at Siiijiapore. The Elizabeth, or at: le«Rt a portion of iliiit vessel, appears to have been cjiaripi-ed l>y Mr. McKeriich Moses, for a voyage from Siii<|!;apore to Borneo and Manila and bnck again. — On lier return to this port she was laden with the Siiuars in ques- tion, which are retained by tiie Defendants, the owners of the Eli- zabeth, on the alleged ground that the cargo is the 'property of Mr. Mose*» and that they have a lien upon it, for the amount of freight due under the Charter Party. The questions in this case are ; first, whether at the time of the Elizabeth's arrival at Singa- pore, Mr. Moses iiad that speciPS of properly in the Sniiiirs which made them suhject to any lien on the part of the Defendants ; iiiid secondly, suppo>ing the Suiiars to be, lo ,«uch extent, I lie property of Mr. Moses; wheihor llie Defeiidants so f;ir retained po-sessioii of the vessel duiiiig the voyaj;e as to have a legal j-iglit to enforce (heir claim by ihe detention of the tioods. The first question is the only one which has any difficulty about it, for I am clearly of opinion, «iili regard to the st-cond point, that the Delendants hajp_ quence is, that the return cargo of tlie Elizabeth would not ab- soiuiely and nnder all circumstances, be a|i|no|)nated to the pay- meiil of the Plaintiffs. By tlie letter of Messrs. Paierson and Co. to Mr. JVIoses dated 2n^ June 1835, and l)y the siatwrnent of accounts between thera made upon the same day, it iippears that the Sugar-; sent to Singa- por'e in the Elizabeth were shipped on lii« account and that he was debited with the price of tlietn. Ill liio leiter addressed by Mr. Moses to the Plainiifi". Hiid bp;ir- ing date the 22nd December 1834, atter stating the puriicuhii-s both of the outward cargo and of the returns, there is this pas- sage: "It is unibursemenfs were for the remuneration of the Master and crew of each of ihe ships en- gaojed in the business, and for that of the superintendents and ..divers who were more iniraediaiely concrerned in raising and re- covering the cargo. The services of ail these persona have be«jn recompensed according to a scale agreed upon when the expedi- tions were sent out, and no further' claim for salvage is exhibitefd by theffl or on their behalf. A claim for palvage is however made by the Defendant, and his right to call for remuneration is not contested by the Plaintiffs; the only question, as I understand, between the parties being as to the amount which he is entitled to receive. Not being able to adjust tliis matter between theni- selves, they are now before the Court in its eqiiitable capacity, the Plaintitfs having filed a Bill of Discovery and for art Account ; the Defendant having put in his Answer with an Accbunt tkdked to it, and evidence having been adduced on the one sidef and on the other. In his first Answer, the Defendant appears to admit the possibility of some balance being paid over to the Plaintiffa after a just and equitable compensation for himself. In his fur- ther Answer, put in aftfer exceptions to the former one, he claims for himself all the remaining balance of the property saved. This balance, acccn-ding to his amended Account, is 2,771 Spanish Dollars and 46 cenis; The claim of the Defendant to compensation in the nature of salvage resting upon the ground of his interest in the adventure, it is necessary to fix and ascertain ; first, the prinfiple upon which .compettsafion should be given to a party sustaining this character ; and secondly, what% under the circumstances here disclosed, would be its just and proper amount. I hardly think that it would satisfy the Defendant's expectations, if this case were treated as the case of mere owner, who by the employment of his vessel in a salvage service has suffered damage and' inconvenience — for a party in that situation would scarce ob- tain more ft'ohi any English Court of Justice than the mere amount of such loss and damage and this upon the ground that (lie principal ingredient in salvage remuneration — nutndy, the 397 COURT OF JUJUCATURE. ciinsiidcratioii of tlie pftrsonal exe-rtions, tlie personal .'kill, the per- »oiial tlaiijfer of the party — is found wholly wanting in a case of iliis flesciipfion. "It is a first principle'' says Mr. Holt in liis Treatise on Siiippi<>g p. 539, " that in the ease of a vessel saved, the master and crew are strictly the only salvors. The owners claim only under the oquiiable consideration of the Court for the risk of their vessel &,c , the Court beino: not disposed to allow their cliiim lo any t>reat amonnt.'' And he refers to the case of the TFjgrA^, 5 Robinson, Adm. Rep. 215. — "The j^eneral rule," said Lord Stowell in ihe case of the Vine, 2 Hagsjard's Admiralty R'^p. 2. "is thiit a party not actually occupied in effecting a sal- vage, is not entitled to share in a salvage remuneration. The ex- ception to this rule, iliat not unfrequently occurs, is in favour of owners of vessels which in rendering assistance have either been diverted from their proper etnpli>yment or have expeiiericed a special miscliief, occasioning to the owners some incon- venience and los-i, for which an equitable compensation niiiy reasonably he claimed." "Such compensation was awarded in flie case of the Salacia, 2 Hiigg- Adm. Rep. 262, though, I think, it appears that the sum there given lo the owners was only that which was estimated as the amount of actual damage sustained by them in consequence of the loss of the fishing season. And in the cHse of the Jane, 2 Hagg. Adm. Rep. 338, the claim of the owners to a share of the compensation was admitted by the Court, on the ground of the detention of their vessel, and the consequeii- tial risk and expenses, though the Cimrt said that the claim (if Owners generally was very slight, unless, from the circumstances of the case, their property became exposed to danger, or tljey in- curred some real loss or inconvinience. The principle therefore upon which the absent owners are com- pensated for the salvage services which their vessels may have performed, would not prove a very productive source of profit to the defendant artid tho.se who engaged with him in the adventure. But I am disposed lo think that the case now before the Court has circumstances belonging lo it, and possesses peculiar merits, which are not fnuud in ordinary cases of salvage. It usually happens the service is rendered by a vessel that is employed for other purposes, and with other objects,^ — and not by one that is sent to sea expressly and solely with a viey? to the recovery and preservation of the property that is either lost or in a state of jeo- pardy. The ordinary case is that of a ^hip which in course of her voyage, either upon the public services, or with a cargo on board, or trhen in quest of one, falls in with a vossel in distress, and ex- SINGAPORE. ■ 398 peitds the laliour of tl)e crew anil the time vvliich may be consiiler- fd us tlie piopcriy of tlie owners, in rescuing her from the peril jii "lijeli she is fi)iiii(.l. The cliief actdi-s and prime movers, un- der tliesH cireniiisrances, iire the master and crew, wliose duty it is (and thiir. duly i< fonunately stiiniilaied by motives of interest) to afford as-isuiuce in all cases of maritime distress. There is no merit in the ouner — no nieritoriuus serrices on their parts — no 8|)'mtaiifOU'S exertions by tliein lor the relief of the sufFeimg party, 'i'he law therelore mete* out coiniiensation to them with a sparing, and 1 may almost say a niggardly hand. But those who fit out an expedition lor the sole purpose of seeking and saving that wliich was lost ; those wjio emiiark their capital in the undertaking and employ .suitable and skillul jicrsons for carrying it into execu- tion ; those who charier and equip vessels with no other object in view ; with no cargo on board, and without any ulterior destina- tion, stand ill a very different situation from the ordinary owners whose case I have alluded to ; and to apply the same rule of com- pensation to them would, I think', be illiberal, impolitic and unjust. I have certainly found no case in the books which resembles in its circumstances that of the Defendant and those who acted with him, and I know of no express authority to which I can look as a guide for my decision. In a case so new in its kind, general principles must be resorted to ; and I think the very first prin- ciples of the Law of salvage furnishes a test by which the ques- tion of compensation may be determined. The very ground work, on which salvage compensation in general rests, is the stimulus which it affords to the exertions, which are necessary for saving property and lives that are jeoparded by the perils of the seas. As' this remuneration, in order to be a sufficient inducement to act with effect, must, in cases where bodily exertions are required, be something more than a mere compensation for the labour be- stowed, so, it seems to be reasonable that, in cases where capital is tlie primary instrumejit employed, it should be something be- yond a bare return of capital with a mere ordinary profit upon the use of it. I think therefore that I shall not be depariing fiom the true principles upon which all questions of "salvage compensa- tion have been decided by saying that the remuneration, in tlie present case, ought to be large and liberal ; that is to say, that the profit, upon the capital employed sliould considerably exceed the profit upon an ordinary commercial speculation, bearing per- liaps something of the same proportion to the usual every day profits which tlie interest on a Respondentia Bond bears to that upon a common obligatory instrument. 3^9- COUin OF JUDICATURE. BupIi !ii'^. I tliiiik, ilie tiejienil priiici|>le9 wliicli are applicible to cases like tl>e present,. The situatKni.of tli^ parties wlio tliu3 advaiipe tiieir iiiDPiey wit.jiout eiiyKt(ii>;r pei-aoimlly in tlie udven- ture, is 8(0 different from i).int pf persons "ho are aclivply Hiiiployed lipoM the spot, tihat it would be "'rong, in point of principle, to remunerate tlietii botli ill (Mie imtl the san)e manner. The a^'tiial salvors may witli great propriety be rewjirded in ponie piopoj-tiot) to the amount of pr^peirty lecoveied, because that "iode of remu- nera'iou g-tirpulatesi theH» to 'greater exertions and induces th«ni to r^covpi- as much as possible. I'lie natural siiiiiulus to the em- ployment of ca|)itHl is ihe return wliiub it afFords, and I am there- fore of opinion not only tliat it is unnecessary to iiave recourse tp any other mode of compeusalion but fcliai. a j)er cuntage upon the outlay is tiie best and wisest and most nppi'oj)riate method that can be devised for tjie purpose. Tlie amount of per c^inta^e must dejiend on a variety of considerations— the jiriiicip^l of which are the nature and extent of the rigk incurred, and the successful issue of the adventure. • A different mode of adjusiing the claiiii of the Befendaiit ha? indeed been suggested by the Plaintiffs themselves and has, I understand, been adopted in the arrange- ment of other claims — that of allowing to the puriies a certain proportion of the net pp'ocefds remaining in their hands. And I find that on the 4tl» March 1835^ ^before these proceedings were instituted, an offer was made on the part of the Piuintiffs, that 65 per ceni should be allowed to the Defendant out of the net pro- ceeds of his portion of the property saved, such sums only being charged for expenses as had been actually paid. Considering the amount of salvage already, iu substance antl effHCt, paid to real salvors, I think this offer was a very, liberal one on the pai't of the Plaintiffs, and the sum which it would have secured to the Defendant would, according to my judgment, and the calculation which I have made, afford a most ample return for the capital laid out — ^ar more indeed, than I think he is entitled to expect. 1 have already howevei' given my reasons for proceeding upon a different principle. The Defendant appears to have agreed with tiie Plainiifs in re- garding the net proceeds as the fund from which his remuneration sliOMld be drawn ; but he differs widely from tbero as to the amoust antl measure of his rewiard. His own stsindurd of remnueration — taking the lion's share — is one qertaiidy of a novel W'd extraof- dinary kind, and it appears to me to involve a Qontradieiion in terms that he cluin)s this as a compensation by way of smltftgtt ; ior salvage being the consideration paid by ownere of pr&p»rty lo^t SINGAPORB. 400 or endangered for the benefit accruing to them from its recoverjr or rescue, it seems to me that neiiher the name nor the thing' itself can exist m lien nothing is recovered or restored. The Defendant proposes iliat the proportion which he has in his poBsessioxi should accrue, not toithe benefit of the owners, but wholly and exclusively to his own. He must intend to mete out the same equity to others as to himself — and therefore his proportion must necessarily imply that all the other salvors should retain each liis own division of the spoil, :and that no part of the recovered property should be restored to the real owners. This, I tliink, can scarcely be deem- ed the proper rate or standard of remuneration. Upon the whole, I am of opinion that in this case, a just, pro- per aiid sufficient compensation will be made fo the D«fendant for his share in the enterprize if I give him 50 per cent upon his real outlay, or advance of capital. This, I think, will amply repay him for all the trouble as vrell as all the risk which can be fairly said to have flowed from his undertaking ; and it must not be forgot- ten that he has derived some farther advantHge, from having held the proceeds of this property for so considerable a period in his hands. The amouiit of capital embarked in these adventures by the Defendant, blending the two transactions, by the Madeline and I/ucile into one account, will be made up of all sums paid for the aflreightment and outfit of the vessels employed in the service, and also of all such further sums as would have been lost to the Defend- ant, supposing no property have been recovered from the wreck. In order, therefore, to ascertain the amount of capital laid but, I deduct from the Defendant's Account of Expenses incurred, the following sums; first, Spanish Dollars 601-86, the portion of the jproceeds which were paid to Mr. Melany and the Captain and crew of the Madeline; secondly, Spanish Dollars 307-83, the amount of per centage paid to Mr. Melany, Mr. limms, the Captain, land crew of the Lucile ; and thirdly, Spanish Dollars 90, which evidently form part of the per centage (5 per cent) paid to the ten diyers. According to the evidence of Mr. Crane this per centage should be taken on Spanish Dollars 7231-86, and thi^ Defendant's share would be about Spanish Dollars 162. Deduct- ing honerer, such sviras only as clearly appear in the account to have been paid out of the i)i:oceeds of the property saved, and whifch make together 8p. Drs. 899-69 the remaittder, Sp. Di-s. 2,249-85 will be the amount of the Defendant's outlay, and fifty per cent on ^hat sum will be Spanish Dollars 1,124-92. Tlii8isth0 jBum which I award to the Defendant^ and which ii therefore to be taken froin the balance of the Defendant's account. 40 1 COURT OF jtDICATUKE. The question of Cosi^ is one upon whicli I can entertain no c^oubt wliatevpr, it being clear to me thnt all tlie expenses of this ?iiit, on boih sides, would liave been avoided if tlie Defendant \\s\i.\ accented the offer of the Plaintiffs. made in March 1835. I'liat oiffer WH.«, ill my opinion, a most ^ndsome and liberal one ; I can see no good reason for its having been refused. It is indeed alleged that it was clogged with a condition that the accounts should be sworn lo before a Magistral?, and that this between merchant, and merchant, who ought to be satiefieti with the pro- duction of the ordinary mercantile documents, was an unusual and unbecoming demand. But I think it should be borne in mind that Ihisf was not a negpciation conducted by the Plaintiffs tlieiu- selves, who reside in Atnei ica, but by an Agent whos^ duty it wap. not to sacrifice the interest of his principals to any refined potjons of mercantile etiquette^ And '' nuist be confessed (hat if no other documentary evidence was intended to |be submitted to his inspec- tion than that which has been produced for the iiifonnatiird to the risk. The evidence in both cases is too nieagre to permit my going into very nice calculations. But upon the whole, I think the consideraiion which I have suggested in fa- vour of the Defendant may be fairly set off against the fresh evi- dence which has been adduced on the part oi the Plaintiffs, and I therefore pronounce for the same rate of compensation as in the former casfe, 50 per cent upon the capital laid out. For the bal- ance, a decree must be drawit up in favour of the Plaintiffs with their costs of suit. BEFORE SIR WILLIAM NORRIS, RECORDER. Tan Boon Soo vs. Ghoa En Seng and another Executors of Tan Che Sang, Deceased. Jjtgacies to males and females are all liable to abate alilie and in proportion^ to the amount of their re^ecti/oe legacies, if the assett are insufficient for the pbymeni of all infult. \kn Executor, has not the option, as in the case of debts of eqiial degree, to give orie legate^ a preference over another, ^mless the testator's intention to give siuch preffr^twe appears clearly from the Will. If legacies are given under the apprehension that there is still a s^lrplu3, {af- ter giving several legacies,) such legacies mil, if there be no surplus, be lost, promdiditcanclearly be inferred from the Will, that stuih legacies would not have been given at all, and that they were given only on condition that a sur- plus shmdd be found to exist. Legacies vphich are in their nature ge^erftl are not entitled to any exemption from ahatement cm the ground of Hheir being applied to amy particular object, , or purpose. Masters vt. Masters, 1 P. Wm. 243, questioned. Ifv the fat\si»ci\(yn ni those legacies, his dangji- " ler, notioithstanding, should be i)aid her full legacy (Marsh v, " ,JEvans,l V. Wms. 668.) So, where the Testator after giving " vurioDS legacies, expressed at the end of his Will his aiiprehension " that there would be a con-ideiable Surplus beyond what he iiad " before given away, /or which reason lie, gave several further lega- ■ " cies, and he .afterwards, by a codicil gave several further legacies; " it was decreed, tliat the subsequent legacies having beeii given " on a presumption that there would bo ,u Suridus, and thers liap- " peiiing to be no Smphis, the former legacies should have a pre- " ference, and the legacies at the end of the Will be lost; and also, " that the same apprehension must be intended to h'ave continued "in tlie Testator at tlie time of making the Codicil ; and therefore " unless the inference could he repelled the legacies by the Codicil •' must be lost also (Atfi;. Oenl. v. Eobins, 2 P. W^ms. 23)." Now it is quite clear that the present case cannot be assimilated' to tliafc of ilfarsA v. Evans, where the intention of preference- was clearly expressed in the VVill. And the Case of Atty. Oenl] v. SINGAPORE. 410 Mobins, aUo nppears to me to be VRvy dlstinguisliabie from the present, on two grounds. In tlie first place, the pocise teriris miiile use of by tlie 'I'esiator in tiiat case, "for which reason,'' sectn clearly to have implied, in the absence of any expressions to the contrary, that but for that reason (ihe expectation of a Surplus) tiie subsequent legacies wonbl not have been given at all, and that they were given only on condition that a Surplus should be found to exist. In the present instance no condition of this kind is ei- ther expressed or appears to be clearly inferrible as in that case. But Secondly, even if such inference ijiight fairly be drawn in the absence of aught to repel ft, I think it is sufficiently repelled by the general expressions already quoted, showingithe Testator's intention to give no such positive preference to one 89 1 0^ Legatees over tiie other in the divi^^ion of his Estate, «Z^ of tiiem, whether nearer distant rehilions, old or yonng, being as it xrere broughf together towards the close of the Will and etijoivied to give no trouble Init be satisfied with their respective ))ortioiis; the Testator appearing to have no doubt but that there would be enough to pay illl in fnil, and certainly not diroding that in the event of i>ny dHficienoy any one or uiore were to be paid in preference to ; Ihe' rest. 'But it may be further contended, perhaps, that that clause con- taining the suhscqnent bequests is void, as repugnant to and irre- concilable wiih what precjeiles, by assuming the existence of a fund already disposed of in the jnior part of the Will, viz., the residue which might rriuiain after j>aynient of the first legacies, and which had been expressly given to the male children and grand-children befure-montioned. This |io-iiion, however, is untenable and fal- lacious on many grounds. The rules which govern the ' construc- tion of Wills are liberal and not controlled by the same regard to forms and technicalities a* is necessary in the construction of deeds. It is a principle thar, a Wi'll must be most favourably and LeTiignly expounded, to pursue, if pos-^ilde, the intention of the Test itur as apparent from the whole Will, and that words and litnitaiions may be transiposed, supplied, or (if insensible) rejected for this purpose; again, ih;it the intention of the Testator is not (0 be set aside be- cause it cannot take cffr'ct to the full extent, but is to woik as far as it can; again, that effect must be given to every word of the Will, provided an cfi;ect can be given to it not inconsistent with the general intent of the whole; as, if a man devises land to A. in fee and afterwards in the same Will devises the ss^me la:id to B. for life, both parts of the Will shall stand, and in construction of law the devise to B. shall be first (Anonymous Cro. Mis. 9). And 411 COURT OF JtJDICATUEE. lastly, where tlie separate parts of a Will are absolutely irrecon- cilable, t)ie latter will prevail. All tiiese principles and rules wliicli are too well ostnblisliHCl to iioeil a citation of Authoriiies, are dirHutly opjioseJ to (lie posiiion last asfumed on belialf of tiie Plaintiff and plainly warrant the construction that the bequest of the residue, if any, was not intended to take effect, uiitil all the other legacies I had been satisfied. With regard to the argument for a special preference of one individual legacy that, of Mr. Baumgarten's client, the Plaintiff in tliis puif, founded on the presunipiion that this particular beqiiest of 15,000 Dollars was manifestly intended by the Testator ''to be " placed befond the po.'^sibility of being defeated by any deficiency " in the residue," iiiasimicli as that bequest was saddled with an obligatiun peculiarly sacred, viz., the devotion of 5,000 Dollars to "the due performance of the religious observances to the manes of the Testator's paretits ;•' this reasoning, though plausible, can- not countervail the authority of decided cases, wliicli leave no roonJ for doubt upon the subjeet. It has been decided that lega- cies which are in their nature general, ar^ not entitled to any' exemption from abatement on the ground of their being applied to any particular \;bject or purpose:- Thus legacies of a certain sum each to Executors for , their care and trouble, or of suras of money for mourning rings, or to servants, or to charities, are not to be preierred to other general legacies. (See the cases cited in Williams 840.) A decision in one case, indeed, Jfasifers v. Mas- ters 1 P. AVni". 423, is opposed to tiie general cui-rSnt of antiiori- ties'; Lord Parker having i\i that case exempted a legacy of a cer- tain sum for building a monument to the memory of a relation from abating with the geiierallegacies; but the soundness of that decision is said to have been doubted on strong grounds, and standing fis it doe<* alone, at variance with the principles laid down in numerous other case--, and. directly opposed by a subsequent decision of Lord Thui'low in a preei.sely similar case, (Blackshato «. Rogers, cited by the Master of tlie R(dls in Simmons v. Val- lance 4 Bio. C. C. 349,^ cannot now be regarded as of any au- thorifyj It being clear, then, to my mind that all the Legatees named in the Will, whether in the former or latter part, stand on exactly the same'footing, the serious question arises whether the Defend- ants, tho Executors., by liaving voluntarily pa^d a portion of the Legatees, the daughteis, in full, liove thereby rendeVed ihemsel'ves liable to make good to' the Plainiiff and the other legatees tliQ defi- ciency, about one foui'tk,' being the extent to which they haivs SINGAPORE. 412 been compelled to abate on the g^round of an alleged insufficiency of assets to pay tlie whole in full. And if this were tiie only ground, there can 1)6 no doubt that the Executors would have Leeii thus Vv.Mo ; tlie ■general rule referred to by Mr. Baumo;arten tciiig-, as laid down l)y Sir John Strange M. R. in Orr. v. MaineSi 2 Ves. Senr. 194, "tfial whenever an executor pays a legacy, the " presumption i- that ho ha'^ sufficient to pay all legacies, and the " Court «ill oldi-^e him if solvent to pay tiie rest; and not permit " him- to bring a bill to compel the legatee whom he vohmtarily " jviid, to rfdiiid." \Vhere the payment yuan not voluntary, but by com|m!yian of a suit, the executor may compel the legatee to refund in the event of a deficieiiey ; and so also where rfeJis after- warils appear of wliich he.had no previous notice. In the present insia'nce the pavin(i\i appears to havs been voluntary, and the complaining larty ia not a crei'iior but an unsatisfied legatee. If therefore,, as already obs'rved, the alleged insufficiency of as- sets to pay all were tl'.e only proffered ground of excuse for pre- ferring some of the Legatees, the Executors would, most undoubt- edly, according to the above general rule, have rendered them- selves personally liable for (he defii-ieiicy of assets not being 'ad- missible a<;-:in.st the presumpiiou to the contrary arising from their own act. But rorlnnaiely for the Executors, a further and ap- parently more valid ^riuind of excuse is urged by them in justifi- cation of iheir act, viz., the supposed auihority of the Will itself, for the pn-'fererice sliewn to tiie females; not that even this could have availed theni, had it been perfectly clear, from the absence of all raiional or plaii.-iibie ground for such an interpretation, that they mu-t have acted mala fide. 1 confess, I am not quite satis- fied, in my own mind, that their interpretation was even plausibly defensible and n"t raiherobslinat'.dy perverse or altogether pretended. At all events it is cortaiti that the construction which they chose to put upon the Will in this respect was not so entirely free from doubt, or rather was so very doubtful that they ought not, ia common prudence and good faith, to have acted upon it without the previous sanction of the Court, whose direction in such cases ought always to be sought and would readily be afforded (a.) If the sworn answer of the Deffendants, therefore, be admitted as sufficient proof, in the absence of any express evidenoi3 to the contrary, that the account appended to that answer, and exhibit- ing the amount of assets available for distribution among the Le- gatees, is correct, so as to limit the responsibility of tjbe Executors to that amount; it cun only be deemed sufficient on the ground {a.) See 1% re Mary Hooper, SOTU J. cfc. (N. S.) 795. "^ •413 COXJET OF JTJDICATUEB. fliiit tlie Defeiiflanfcs liatc, in the judgment of tlie Court, when; it shall pjiss its decision in this casfe, acted bond fide, and reaUyuii- deistood and helieved the inientions of (lie Testator to be as tiiey have reprpsentsd fhem. ShonUl liie Court, however, be inclined to take this lenient view of the Executors' conduct, ihey will nevtM-theles« not be aliogether cxoneraied from furliier res|ioiisi- bility to (he Plaintiff and the rest ^)f the ni^le legatees. The as- sets fassuiiiing the corrrciness of ihe accounts to be admitted) haviii>>- been oiiginally insufficient, the female legatees who have been paid ill full,. without any claim to a preference, are condi- tionally liable to be called upon by the unsatisfied legatees to re- fund each the atiaount which she has received i|i excess of what she was justly entitled to had a fair distribotion of the actual fund been made, as it shonld have beep, in tlie first instance, among all the L«i;atees rateably in proportion ti» the amounis of their respective legacies. {See Waleot v. Hall 1 P. Wms. 495 and other oases.) I say conditionally liable, because the remedy is in the first instance against the Executors, and it is only in the event- of their insolvency that resort can be had to the Legatees •to compel them to refund wliat was vohintarily paid to them by tlie Executors. This was expressly laid down by the Master of the Rolls, Sir John Si range, in the case of Orr v. Barnes, above refeirred to, and the rule does not appear to have been subsequently questioned or departed from (a.) It appears to rae, therefore, that tlie Plaintiff is entitled to Judgment aiiainst tlie Defendants for Dis (l)eiiig the diffurence between Drs ■ which lie has actually received and Drs wliicli lie for two years before be was entitled to it, and was held to be justified in retaining them out of the future payments of the annuity. (6.) (b.) In the case last cited the legatee had still a property in the Estate and this might have been the reason for the Court allowing the Executrix to ' retain the excess out of the future payments. See Gitiins vs. Steeie,' cited, supra, 30th April, 1849. BEFORE THE HON'BLE SIR CHRISTOPHER RAWLMSON, RECORDER. GUTHRIE & another ««. Mc. KIB. By a Bill of Lading for goods ship2ied, "freight to be paid here (at port af shipment) one month rfter sailing, vessel lost or not lost," the shipowner or Master does not lose his lien for freight unpaid, although credit is thus allowed and a fixed and distant day named. The mere making of an agreement for .freight, does not exclude , the'right of lien, unless its terms are clearly inconsistent icith such a right. Trover for a bale of merchandise. Pleas : — 1st, the general issue ; 2nd, not possessed. This was an action to try whether the defendant, the master of the ship Tapley, hadia lien for freight under the following Bill of Lading : — " Shipped, in good order and condition, by Y.'i!!iam Eose & Co., of Liver- pool, in and upon the good ship or vessel called the Tapley, whereof is Miister, for this present voyage, G. McKie. lying in the port of Liverpool, pnd bound for Singapore, four bales merchandise, being maj-ked and numbLred as per margin; and are to be delivered in like good order and condition, at the afore- said port of Singapore, (nil and every the dangers and accidents of the Seaa and Navigation, of whatsoever nature and kind, excepted,) unto Messrs Guthrie & Co., or to their Assigns ; Freight for the said Goods to be paid in Liverpool, at the rate of thirty shillings per ton of 40 cubic feet, with Primage and Average accustomed. In Witness whereof, the Master or Purser of the 415 COURT -or JUDICATURE. juaid ship or Tessel has affirmed to foui? bills of lading, all of this tenor and date ; one of which being accomplished, the rest to stand void. Dated in Liverpool, this 11th August 1848. ' Freight to be 'paid here in one month after sailing, vessel lost or not lost.' * Weights and qontents unknown to G, McKie," V Judgment of the Court. This action was brought to try the right of the defend.ant to retain posses- sion of certain goods consigned by the plaintiffs' ng'enis at Liverpool to the plaintiffs-at Singapore, and for wliioh the freight had not been paid. The Bill of Lading was in the usual form save that it provided that "the freight was to be paid in Liverpool one month after sailing, the vessel lost or • not lost." It was contended on ,the part of the plaintiffs that no lien was cl.aimable on , these goods in consequence of this special provision in the BUI of Lading.' Let us enquire what is a lien, — and what is the state of the law respecting it — and what destroys a lieu. A lien is a Tight to retain the property of another until a debt due from that person has been SE^tisfied— and rests upon principles so convenient and eqijitabie that, to use tlie words of Best 0. J. in Jaeobs v. Latour 5 Bing. 132 •' it cannot be too much favoured." I am speaking of a jjarticular lien, as in the case before us. The doctrine of lien wa? originated to meet the cases, such as those of Carriers and Inn- keepers, ■who were . compelled to receive and be responsible for the goods of parties. It has since been much extended and the decisions of the- Courts during the last 30 years have tended to place the law relating to liens on a ' more reasonable and intelligible footing than formerly. It was once considered that wlienever the pai-ties made a special Agree- ment the .right of lien -was abandoned (see Rolls Abridt. tit. Justif. pi. 1.2. Chapman v. Allen, Cro: Oar; 271., Brenan v. Currint, Sayers Eep. and other old cases. But this doctrine has been now some years overruled ; and' the rule now clearly established is — that the mere existence ofa.speciaj agreement, does not exclude the right of lien, unless some of its terms are clearly inconsistent with such a right. The strongest authority for a contrary view cited by the plaintiffs' advocate , was the case of Gowel v. Simpson 16 Vey. 275. The authority of this fease Is thus treated by Lord Henley in his Bankruptcy law 290, a« early as-1825 : , " perhaps it might not be amiss to qualify the generality of the doctrine laiif down by Lord Eldon in Cowel v. Simpson in the mode pointed out by the King's Bench (alluding to the case of Steavenson v. Blahelock, 1 M. and S. 535 ; Chase v. Westmore, 5 M. and S. 190 ; Crawshay v.- Homfray, 4 B. and A. 51) and to conslderthe taking of a security as not necessarily a waiver or abandonnent of the right of lien, hut only, whore the nature of the security, orthe oircunistances attending the taking of it are incciisistent with the right of lien." In the work on Mercantile law by the lalo Mr. Smith, one of the most accurate and able Lawyers I ever'met with, the case (jf Gowel v. Sinip- ' son is not cited — a fact proving to my mind that he oonsidered it' a case of ■ no gref^t weight ; but I think that there is little doubt but that that case, at all events as far as regards the point under consideration, may bo considered aa On the margin. SINGAHOEE. 416 ^_ . / overrwled, except for the doctrine (see C. J. Tindal's judgment in Heivison v, Guthrie 2 N. C. 759) " now well established by the authorities cited at the bar that if a Semrity is taken for the debt for which the party has a lien upon the property of the Debtor, such security being payable at a distant day, the. lien is gone." It is equally clear now that the taking of a Security for the payment of the Freight or carriage of goods does not destroy the carriers's lien ; unless such security be payable at a day subsequent to the delivery of the goods' — Hew- ison V. Guthrie 2 N. 0. 75,9, and see Cowper v. Green 7 M. & W. 633, Stevenson v. Blalcelock 1 M. & ,S. 535, i|j which last case Lord Bllenbo- rougli observed :" that the bill having been dishonored placed the defendant in his original position as to his lien." In Hutton v. Brag, 2 Marshall .45, S. 0. 7 Taunt, (since over-ruled, as. to its main points) Gibbs G. J. expressly guarded against being understood to say, thatfthe lien which had been taken awayhynn agreement to pay in bills would not be restored after the bills had been dishonored. I am not inclined to subscribe to the expression ' ' taken away " as correct — agreeing with the advocate for the plaintiffs, that unless a lien attaches to the goods originally, no subsequent default will give such right. The suspension and non-existence are different : from the Judgment of Mr. Justice Holroyd in Crawshay v. Ilomfray, 4 B. atid A. 50, the principle above laid down is to be collected. An expression towards the close of Mr. Justice Best's Judgmant in that case, relied on by Mr. Logan on behalf of the plaintiffs, is not Inconsistent with my decision here, if applied to the facts of the case then before the dourt, in which no lien had ever existed ; the wharfage not beibg payable till the Christmas a/ter the arrival of the goods. A passage cited from Abbot on Shipping 7th Edit. 231, was also much re- lied on. I find that the only authority there cited to show that an Agreement to pay before delivery would defeat a lien, even if the passage can fairly bear such an interpretation, in Lucas v. Nockels 4 Bing. 729, where the pay- ment was to be ten days after, and where it is clearly laid down that any stipulation for dealing . on credit is destructive of a claim of lien, Numerous other cases were cited during the argument, which nearly all relate to ques- tions of lien between the ship-owner and the charterer — I "allude to the cases of Bothbu/ry v. Inglis 3 Elast 384, Tate v. Meek 8 Taunton 280, Christie V. Lewis 3 Br. & B..410, Saville v. Campion 2 B. & A. 503 and Canvpioii. T. ColvilleS'S. 0. 17, in which last ease" the principle is clearly acknow- ledged "that the lien attaches in all cases where the payment for the freight of the ship is to precede or accompany the delivery of the goods," adopting the Judgment of the Court of King's Bench in Campion v. Oolville. In these last mentioned cases no doubt or difficulty seemed to arise as to this principle, the great contest in most of them, being whether the ship-owner had retained such a possession of his Tessel as to be allowed to exercise the right of lien. We have no difficulty of that kind here. The point therefore to be ascer- tained is, is there anything in the agreement under these Bills Lading (for I see no substantial difference between them) inconsistent with the party still retaining his security of a lien on the goods carried- I can see none. Many instances might be cited where parties before doing work always requine Bome additional security, or even a payment or part payment in advance 41 7 COUTIT OF ;)i;.DIC'ATUUE. when half the work is done ; and it is clear on the authorities cited that uiilesa the agr(?ement made or security-given postponed the time of payment I'jll after , the delivery of the goods, or contained some term shelving that the parties intended ^at no right of lien should exist, the right ^ould- continue ii^itact. I regret that being on circuit, avray from my Library, I have not been able to look so completely through the eases as I should have wished. I confess, that I should have been better, pleased had I been able to have referred to some mote express decision on the exact point now under consideration ; but the principle is so reasonable and one Calculated to prevent so much injustice' that I arrive at my present conclusion without much hesitation. Had the lavv been such as was contended on behalf of the Plaintiffs, it would have en- abled them to avail themselves of the labors of the Defendant, and after a breach of contract on thqir part to have taken the goods out of his possession leaving to him a bare right of action, under whidh he might never have re- covered a farthing. The result is : that I am of opinion that the plaintiffs are not entitled to recover in this action ; or in other 'words, that the defend- ant was entitled to be paid fi;r the carriage of theae goods before he Qould he called on to deliver them to the piaiutiif's. Judgment for the defendant. Free Presst May. 10. In the Goods of CH€A CHONG LONG, deceased. This was a case brought before the Hon'ble Sir iJ.iohard Mc. Oausland, on the 25th, of June 1857, to qu^sh the AVill of a wealthy Chinaman born and domiciled in Singapore. The Testator died on the 18th of, December 1838, at Macao, in his Will he bequeathed the whole of his landed property!, in Singapore and Malacca to three Gentlemen, their Heirs, Executors and Ad- ministrators for ever, upon Trust, , to receive the rents, issups and profits thereof, and to pay certain legiloiea to his four sons and' daughters and a monthly allowance for ajnother son during his lifetime — the residue -of which, after providing for repairs and insuraiice, is to be expended in the perform- ance of religious ceremonies -called Sin-chew, or in other words to feed hia own ghost or spirit and the spirits of his deceased wives, four times a year and oftener if the fifinds would admit ; this bequest the learned Judge held valid. In deciding it, he said, he was of opinion that the Court is bound to declare it valid, and to give effect to those provisions of the Charter, whioj^ directs that, " all or any of the powers thereby committed to the Court sha| " be e;xecuted with an especial attention to the different religions, manners "and usages of the persons, whs shall be resident or commorant within itiS " jurisdiction, and a• For Olwa Ghmg Long's ease, see the Straits Times of 14th July 1857, Penang Gazette 29th. Idem,^ and Woods' Oriental Oases, p. 13. Further, see. lieyina vs. nillam ante p. 67, and Note 6. to th? same p. 94. S. L. SINGAPORE. 418 In the Goods of Lao Leong An, deceased. Administration granted to the first wife of a Chinese. The second wife en- titled to an. equal stare of the Intestate's property. The law of China con- sidered. Singapore, Daily Times, — 1867. judgment of the Hon'ble. Sir P. B. Maxwell, Knt., Recorder. In this maiter, two petitions were filed /praying for Leiteis of Admini^iration ; onp by (.h« fir.4, anil the 0|thpr by the second wife of the intestale, a Chinese inhabitant of this Settlement. I eee no .sufficient reason for refusing the npplication of the first wife, and Letier.s of Ailministraiion will therefore be granted toiler. But as it was much urijed, in resisting tlie chiim of the aecbnd wife, that' the condition of the latter 1st April 1867. J Government Notification— No. 7. Notice is hereby given that, all Officers holding ap- pointments under the Letters Patent for reconstituting the Court of Judicature of Prince of Wales' Island, Sin- gapore, and Malacca, datfd 10th August 1855, will con- tinue to hold their appointments in the Government of the Straits Settlements under the aforesaid- Letters Pa- tent. Her Majesty has been pleased to approve of the Re- corder of Singapore being henceforth styled Chief Justice of the Straits Settlements, and the Recorder of Penang- being henceforth styled Judge of Penang. By His Excellency's Command, R. MACPHERSON, Acting Colonial Secretary. Colonial Secretary's Office, ) - 1st April \mj. j 421 COURT OF ,JUD,ICATURE. Bbfoeb His Honob Sir W. Haokett, Ent., Acting Chief Justice. Veeramah v. Sawmy. The Court has no jurJgdictioTi on its Ecclesiastical side to entertain suits for the restitution of conjugal rights of Hindoos. (August 1867.) This was a libel instituted by a Hii>Joo wife against iier Hin- doo husbiind on the Ecclesiastical side of the Court, for restitu- tion of conjugal rights. The Defendant protested against fclie sup- posed jurisfliciion to the effect that "this Conrt ought not to have " or lake fuitiier cogniziince o( this snit bscause he saith that t.hjs " Court is incompetent to take cofinizjinee of or proceed in tlie " suit or to administer towards and upon tlie pliiiniiff the Eecle- " siastical Law as the same at the date of the Letters Patent es- " tablishinij this Court may be used and exercised in the Diocese " of London, in Great Britain." Protest allowed. * * Et Vide Perozeboye v. Aderser Cursetjee, 10 Moore P. 0. C. 3?4. S17FB.BM3E: COURT. BEi'OEE His Howok Sir P. B. Maxwell, Kni., Chief Justice. Choa Cheow Neoh v. Spottiswoode. * Will "by a Chinese directing rents and profits of land to be expended in " Sinchew " ceremonies, held void, as being contrary to the law against per- petuities, and not a charity. Superstitious uses considered. Straits Observer, 19th Feb., 1869. Judgment. In this ease the testator, Choa Chong Long, a person born and domiciled in Singapore, but of Chinese descent, by his Will, in the English language, after bec[ueathii)g legacies of 500 Dollars apiece to each of two sOns and four daughters, and making pi^O- vision for another son, and after reciting that he was erecting a building for charitable purposes, and for the performance of re- ligions cerenjonies, according to tiie, custom of iiis ancestors, call- ed &'« Chew, to perpetuate the memories of his departed wiveSj. as also of himself, after his decease, devised certain houses and land in Singapore and Malacca, and also his residuary estatp,. to trustees, upon trust, to apply the rents and profits, after provid,- ing for repairs and insurance, " in the performance of such Bin Cheiv or Charity, in and to the manes of myself and my ' said wives hereinbefore named and mentioned, to be performed four times in each and every year at the least, and as much oftener as the funds applicable ihereto will admit." The Will contains also a direction to the trustees to see that the "Charity" is faithfully I I ^ ^__ ^ * This case overrules In re Ohoa Chong Long's Estatfe, ante page 417. SINGAPORE. , 422 eiiiTie\t nre the nutiue and (ibject of this devise, and the sulistaiice of tlieiv eviilcnc^ is as foll'ivv- : — The word Sin.Chetv is composed vf Sin, which inftans a spirit, soul or ghost; and Chew, which means ruler; iinii the coin|i()«ii(e word menns the spirit ruler ov ■ spiritual head of the houxe. When a man di-cendant, and mankind generally. To avert tlie latter evil, the wealthier Chinese make, in the seventh month, every year, a geneial public offering, or saciifice, called Kee-too or Poh-toh for the- benefit of all poor spirits. Tiie question is whether tliis devise or bequest is valid. No difficulty arises in respect of the .9 Geo. 2 c. 36, commonjy called the Mortmain Act ; for that Act is not law here, Attorney General v. Stewart, 2 Mer. 163, and consequently lands may be devised for any uses which are recognized by our law as chaii- table. It was adtnittetl, however, by Mr. Woorjs, who contended for tlie validity of the devise, that it did not fall under the legal designation of chariiable ; and it seems to me that it would have been difficult to estiiblish that it did. Tlie term charity receives, in questions of this kind, a ])eculiar bnt wide meaning ; and al- though the Statute of Charitable Uses may not be law here, I think that .it may be laid down that not. only the various objecis mentioned in its Preamble — such as gifts and devises for poor peo- ple, for sick and mainied soldiers and sailors, for schools, educa- tion and learning, for the jepair of cliurches, bi-idges, and other public works, and for other purposes which it is unnecessary to enumerate — but also, as,in England, all objects having any ana- logy to such uses, wt)uld be regarded as cl]!uii;ible. Loi'd Ciaii- worth said in liie case of the University of London v. Yarrow, \ 26 L. J. Ch. 430, that^ every ohjeci beneficial lo the comraiiuiiy is a charity in the legal sense of the term; ic is wide enougii,. at all events, to comprise gifts lor tlie support and diffusion among men of every kind of relijiion, provided it be not. immoral, or cruel, or otherwise against public policy. It was iield, for in- stance, by Lord Romilly, that a legacy to print and propagate the writings of J(diinina youthcote was a good charity, as, however foolish tliey, mi^ht be deemed by most persons, they were neither im- moral nor irreligious, and were designed by the testator to conler a benefit on the community, Thornton v. Soive, 31. L. J. Ch. 767 ; and I do not doubt that the validity of a bequest for the maintenance or propagation of any Oriental creed, or ivv building a temple or mosque, or fur setting up or adorriiiig an idol, ^as in 425 MJI'RKME t'OURT ;in IiidiMii ciise ineiitioiieil by Mr. Wood^s, would be delermined in tliis Giiui't on the same priiici|i!e, mid with the wide"-! T' gurd to the relifjimis opinions find feelinff of the viiiious Ed-tei'ii liices es- tabli-hed here I niiike ihpse iemarhs, not becmi^e ilit'}' are np- cepsary to the doci-ion 6f 'this ciise, but lo giiaiii iigainst my pie- sciit judgment beinj; nii-nnderptood aa questioning llie validjry of any Eastern charity. In the case before me, hoivever, the devise is plainly not charitable ; it has not any charitable object whatever, whether general or special, in the sense of a benefit to any living being. Its ohjectis solely for the benefit of the le-tntor liim-^elf ; and although the de^cendanis are supposed iMcidenlly to »lerivH fiom the performanfie of tiie Sin Cheiv eerHinony ihe advuniajie of pleasing God and e.tii'aijiiig liie (hmger of being haunted, those advan-tiiges are obvi"Usly not the object of the te!stator, nor if they were, would they be of such a chaiactrr us to brinit the devise witliin the de.flignation of chaiitatde, :is used in our Courts in re- ference to such suVjects. But if ihe devise is not a charity, on what frround can it be sup- ported] It is clsar that ii\ Eiigi.ind it would be void. In West v. Shutthworth, 2 M.^i\m\ Y^. 684. Loid Cottenham \w\i\ that be- quests to Roman Catholic priests and chapels, in order that the testatrix and her deceased husband might have the benefit of their prayer n and masses, were void, and the .simie qnefition has i)eeii since decided in the same nay in Heath v. Chapman, 23 L J. Ch. 947, and Blundell's Trusts in 31 L. J. Ch. 52. .As Lord Cot- tenham observed, there teas nothing of charity in their object; they were not intended for the benefit of the priests personally or for the support of the chapels for general purposes ^ and they could not, therefore, be supported as charitable bequests. It is true, the legacies are in all those cases , spoken of as void be- c.iuse super-titiou-; but as Sir W. Grant observed in Gary v. Abbot, 7 Ves. 495, there is no statute making superstitious uses or bequests void generally. The statute of 1 Ed. 6 c. 14 relates only to superstitious uses of a particular description then existiiii;-, and the 23 Hen. 8 c, 10, which was intended to guard against the loss suffered by feudal superiors tliroui:li alienations in niort- inain, rather than to check the spread of superstition, relates only to asflurances of land to churches, chapels, and corporate or quasi corporate bodies, for longer terms than twenty yenrs. Besides, wlien West V, Shuttleworth was decided, the dogmas and prac- lioes of the Roman C.iiholic religion bad ceased to be .supersti- tious in the eye of the law. The 2 & 3 W. 3 c. 115, had placed it on the same fooling as other forms of Christianity dissenting SINGAFORE. \'2ij from tilt' H-itiihlished oiifi, in rf'spect of tlieir pohnols, plMces of wor- siiip. ariv Cliinese for iiftwards of eigluy yoar.a ; jin'l aiirely if a devise in fee for tlie u^e of tlie tesia-' tor's loul was dictated by some iiiippraiive religiou' obligation, tlie question now before me would bave been raised and liecided long; ago. Ceitainly it wonld reqn're very sirons evidetice to es- lablisli that it was regii-ded a-; a duly, in anv reljirion, to disregard tlie cliiim>' of natural afifection, and, aa in llii-^ cast', to di-pose of tbe bulk of one's property in prnvidiriij for ilie supposed benefit and comfort of his own soul, while he left ids sons and daughters alino^it wholly unprovided for. As there is no snoh evidence, I am unable to see any reason for holding that the rule against per- petuities is less applicable to jiroperty in the hands of a Chinese and a Buddhist I lian to 'property . in the hands of an Englishman and a Christian and I think thai the former iias no power to 'de- viso or bf'queath property to be devoted in s'mcula iceculorum to any purpose not-charitable. For these reasons, I tliink this devise void, and that the pro- perty is distributable among tlie testator's next of kin living at his death. t Sinohew is a custom well known in Penang and practised " there amongst the Chinese, but upon a very limited scale. Gov. Gazette, 10th June, 1870. In the Supreme Court of the Straits Settlements. DIVISION OF SINGAPORE. , The SOifA day of May A\ D. 1870. The Court doth hereby appoint the Senior Magistrate of the Straits Settlements, the Commissioner of the Court of Requests at Singapore, the Magistrate of Po- lice of Singapore, and the Registrar and his Senior Sworn Clerk of this Division of the Court, respectively, to be ex-officio permanent Commissioners at Singappre to take the acknowledgments of Deeds of married wo- men, under the Indian ActXXXI of 1854, and the Re- gistrar is directed to cause the said appointments to be published in the Government Gazette of the Colony. By Order of the Court. C. BAUMGARTEN, Registrar. , 429 SUPRKME COUKT, Before Sir P. B. Maxwell, C. J. Baumgarten '«). Kraal. JVhere property was seized and sold wider an execution from an inferior Cov/rt, and after seizv/re but before , soJe the same property was seized by the Sheriff on a Writ of Sequestration :—HELD, that the Sheriff could not main- tain an action against the officer qf the inferior Cowrt for wrongfully selling more than was sufficient to cover the execwiion and for not paying over such swrplus to him. QUERY.— Wheilier such an action ie maintainable by the party suing ovi the Sequestration ? Property seized under a Writ, whether right or wrong, is in custodia, legis, and ca/nnot be seized under another Writ, as long as that seizure last. Straits Times, August 6th, 1870. The following jmlgment was delivered by the Chief Justice on Mondiiy, the Ist instiint. The fiicts of this case aie pomewhat fiingular. About noon on the Slst of Miiy, the defendant, wiio is theB!|iliffof the Court of Bequests, received two Writs for execution, ami he proceeded at once to the preinise-i of the judgment debtor, in liic Town. The amount due on the two Wriis was ^75, and the landlord inade a claim for $ 55 more. The Bailiff seized goods which he after- wards sold by auction for $ 671, so that it is clear that he seized a much larger quantity than he ought. He left men in possession of the whole. About 4 p.m., the plaintiff, who is the Sheriff of Singapore, went to the same premises with a^rit of Sequestra- tion which had been placed in his hands for execution two hours before, and putting a seal on two or three articles, declared that he seized them and everytbiiig else in the house. He, too, left men on the premises, but without molesting the Bailiff's men in the possession of the goods. On the 10th of June the Bailiff hc; gan to sell, and as he had reeeired, on the 1st of June, twelve Writs more in execution of judgnients recovered in the Court ,of Requests, he sold all the goods which he . had seized and applied- the whole of the proceeds in payment of those debts as well as the earlier claims. Under these circumstances, the Sheriff has brought an action against him, and the question which I have to decide is -whether he has any good cause of action ; for though the action is,. in form, in trover, for the wrongful conversion of the goods, it was agreed that judgment should be given for the piain^tiff, if he had any legal ground of complaint against the Bailiff of the Couft of Bequests. ^ It is laid down that only such a quantity of goods should be seized as is reasonably sufficient to satisfy the debt and costs ; and it is clear that in this case the defendant seized , far more than SINGAPORE. 430 enoujrii lo sati-fy Ihe two Writs in Iris hands for execution at tlie time of 'fpizii'e, and the linidh)i'(i's : but even if tiie ciefeiidani is liiible to s(),inebod}' in some form of [irooeeding for seizing more tlniii he ouiciit, does it follow tliat ihf pliiintiff is entitled to msiin- tniii an iiciinii for dainag'i'S agiiinst liini for tiie excessive seizins or,snle? In scizini)- more thiin he onght, i>e does not appear lo iiie to be a iresp!is--er in respect of tlie excess. Il hus been lield, indeed, ili it t)ie owner of the goods may sue him for selling more tlian was neops-iary, foi' ihougli he conld noi know exactly what quiinliiy to sell, he mu-t know when lie sold enough, {Batchelor T. Vyse, 4 Moo. & Sc. 552) it lias never been held that ilicy were recov<'r!ible from the purchaser, as they would be if tlie Slieriff or Bailiff had niii by seizure acquired the legal rigiit to sell', but were a mere trespasser. But further, if more goods than enough are seized, it set'ms to me that by the seizme they all are nevertheless equally in eustodia legis. h is not only goods riglitly seized thai are under the custody of the law ; the goods of A. seizt'd by mistuke in an execution against B are as much in the custody of the law as those rightly seized, and their owner would be liable to an altacliianeiit for a contempt of Court, if he took them out of tlie officer's po-session (Cooper v. Asprey. 32 L. J., Q B , 209j' Fieri non debuit, factum valet. The goods in question, liien, were not seizable by tlie plaintiff. His entry on the premises and his (lechiratioii lliat hefeized all ihe goods therein", when they were already in the "actual possession of the defendant, was either a rescue or an idle ceremony ; iu neither case did he acquire any right or power over them, nor did any cause of aciion accrue to him by the sale. It was conlended that, as the defrtiidant hadied feet wide." — AV'lien called upon for a conveyance, the defendant coiitended.j(liat tiie fifty feet were to be measured by the iiuinan foot and not by tlie ordinary legal measure. He i)ad made the same assertion when tiie receipt was being written. In the witness box, he fur- tlier a-serted tiiat the piece of land lay in a different direction, not extending lo the highway, and the four hundred feet lying parallel with the plaintiff's boundary, and not at right angles to it. The question is, whether the Coui;! will enforce this contracfc, it. being contended that there was no sufficient contract, or note, or menioranduin thereof in writing, as required by the Statute of Frauds. In the fii*t place, it may be doubted w.heiher any writ- (a.J No— see Kotes to Leister y. Foxcroft, 2 WK. & T. Leading Cases in Bq. p. SINGAPOKE. 432 iiig- is necessary in this case, for a Court of Equity to enforce the specific perfoi-mance of a verbal contrast when there has been a part performance of it. It is true, part payment of the ])urcliase money is not a sufficient part performance for this purpose, but it lias never been decided that the payment of the whole of the money, or iti other words the complf^te performance of the con- tract by the purchaser, is not sufficient to eniitle him to have the contract enforced. Lord St. Leonards, refers, in his work on Vendors and Purchasers, to a dictum to the effect that even pay- ment of the whole purciiase money is not enougli, but his own opinion is that " it would be difficult to refuse specific performance where the purchaser lias paid all the pnrchase money.'' (a. J It is not necessary, however, to decide the case on this ground, for I think' that there is a sufficient note or memorandum of the agreement signed by the party to be charged therewith, i. e., the defendant. — Mr. Rodyk contended that a mere receipt of the money was not sufficient for this purpose, and unquestionably it could not be seriously lisseJ'ted that that paper was intended by either part to embody the terms of their contract. But in point of fact, it does embody theui. It states the vendor and the purcliaser's names, the price, and the piece of land sold ; and it was decided in the case of Evans v. Frotheroe (21 L. J. Ch.j cited by the Attorney General, that a receipt, stamped with an agreement stamp, as thi-* is, w»as a sufficient note to satisfy the Statute. The authority of this case was qnestioned, but it is unnecessary for me to express any opinion upon it, it is enougii tliat it is a decision of the Lord Chancellor; and I am bound by it. It was contended, however, that even in this view, the document was insufficient, first, because it did not state where the land was, and next hecause it did not state the width of the land^ it being uncertain whether fifty referred to feet or yards or any other measure. On this latter point, I tliink, that it is no undue stretch of construction, or any violation of the rules of grammar, to hold that the adjective fifty agrees with the substantive feet, wliich follows the words four hundred. If the agreement had said that the land was fifty feet wide and four hundred long, it would hardly have been disputed that four hundred feet were me^nt,— that the four hundred agreed with the preceding sub- stantive feet. It is true, this latter arrangement of the words would have been more agreeable to the genius of our language; (a.) Kg specific performance will be decreed, as the purchaser can ob- tain the money by an action for money had and received. See Sm. Man. ofEq.2tO. ' ' ^ 433 SUPREME COURT. but Still, I think, that on strict o;rammatical principles the word "fifty " must be tiiken to agree with " feet " wiiich follows " four hundred." As to the situation of the land, it is a well known rule that ex- trinsic evidence is always admissible to shew what is tlie (iroperty wliich is tile sulijecfc of the contract. Such evidence does not vi,ry or contradict the instrument, but merely applies it U) its subject. On tliis.ground, therefore, all the evidence which was admitted on the subject of ■ the verbal agreement and tlie acts of the parties was ]ir6perly admissible. It is true, tlie land was not marked out and specified by boundaiies ; but according to Lord Bacon, in commenting on the maxim '■ amhiquitas verborum v^rifieatione spp- pleiur," " if I grant ten acres of wood wliere I iiave a liundjed, tlie grantee may elect which ten lie will take; '' and in this case, con-_ sequenily, tlie plaintiff would have the right to select any- part of the defendant's land. But his right is limited by the evidence which shews that the piitiiway runs over the land which was tlie subject of the sale, I think that he is entitled to have any jiiece of land of the defendant's fifty feet wide which compi'ises within its limitsthfe footpath and extends to the road. With respect to the measurement of the fifty feet, notliing was said at the time of the verbal agreement, and nothing is mentioned in the memorandum, as to what kind of foot was intended, I think, therefore, that the known measure was meant. As to the assertion made by the defendant at the time when the receipt was written, it is enough to observe that, that was merely the construction or gloss which he jiroposed to put upon the terms of the agreement wiiich had been entered into several days before, and it cannot vary the meaning of the language used at the time of the contract, or in the written paper. Specific performance decreed. 30th April 1872. BEFORE HIS HONOR T. SIDGREAVES, * Chief Justice. In the matter of Ahamado Bawa. The Jvrst part of the 4X)th section of Act. V. of 1868, (the Supremt Court Ordmance,) on the principle " Expressio umws est excVusio alterius," wmsthe reijtd as if it excluded all persons not specifically mentioned therein. The words " persons of good repute" in the second part of the section rrmst he construed strictly, and it is necessary for an applicant und^r thaipaHof the section, above all things, to give by the evidence of others, the most unexcep- tionable certificates of character. The Chief Justice. — I had some doubt at first, to whether I ought not to have remitted the Petitioner iii this case to Penang, in- * Knighted, Jb'etauary Uh, IS'i, ~"^ • ' - SISGAFORE. 4:54 as-mucli !\s if whs in tlie Supreme Court of that Division that he filed liis Petition ill tiie first instance, and it was before the learned Judge of thai Court that ihe matter was first of all enquired into and to some extent disposed of. Had I considered this Petition was in any way meant to impugn that decision or to obtain a new hearing, I should .iiave declined to entertain the Petition at all. The fact, however, tiiat ilie^i Petitioner came to Singapore in (he first instance shows tiiat he intended to present his Petition here originally, and was only prevented from doing so by the fact that at that time there was no Chief Justice liere, and that the Acting Chief Jusiice was at Penang. At the lime of the presentation of his Petiiion at Penang he had not resided in the Settlement for the three months requiied by the Kule-, and it was principally upon (iiat ground, and without going into the merits of the case, that hi^ Petition was dismissed. He presenis his Petition here, how- ever, after having completed three months residence in expressing his wiHingness to submit to an examination if necessary. I think, therefore, that wilhout any discourtesy to my learned coadjutoT Sir William HaCketf, I may look upon this as an original Peti- tion filed in my Division of the Court and deal with it accordingly. The Petitioner certainly opens' np qnestions of very considerable importance to all who are practising or who expect to practice as Advocates of this Court, and the manner in which the questions are brought before the Court and the circumstances under which they are brought, are of a somewhat extraordinary character. ,The , Petitioner comes here from Ceylon, where he has been, as he says, and there is no reason upon that point to doubt his assertion, a Proctor of the Supreme (Jourt, and he claims to be admitted here on the ground of his professional status, as a member of the Bar of the Supreme Court of the Straits Settlements. Novr it is im- possible to suppose that the Petitioner being a lawyer, or any body else in fact contemplating such a step as the Petitioner contem- plated, viz., leaving his practise in Ceylon and coming over to Singapore to apply for admission amongst the Bar of the Supreme Court of the Straits Settlements, would not before doing so obtain and examine the regulations which governed the admission of Advocates and Attornies of that Bar — common prudence would liave dictated that. If he had obtained those regulations and perused thorn, he must have seen that that admission was regulat- ed by the 40th Section of the Supreme Court Act, which provides that " It shall be lawftl for the Court to admit and enrol such and so many persons as have been admitted Barristers at Law or Ad- vocates in Great Britain or Ireland, or have been admitted Attor- 435 SUPREME COURT. iiies, Solicitors, or Writers in one of the Superior Courts at West, minster, Dublin, or Eilinbnrgh, or have beeh admitted as Proctors in any Ecclesiastical Court in England.'' Now, I ?aid on Monday ai.d I say again now ; tliat on the principle " Expressio unius est exclusio alterius," those words must be read as if they excluded all persons not specifically mentioned therein, and amoiinst the persons not specifically mentioned are "Proctors of the Su])reme Court of Ceylon." (a) The Petiiioner went into' a very long argument to shew that the Ordinatice did not say what it meant and'did not mean what it snid. He argued that becau.se by the 20th and 21st, Vic. c. 39, Aitornies and Solicitors of the Courts of certain Colonies and Dependencies were upon 'certain conditions eligible for admissipn to the Superior Coufrs of England, lliat a Proctor of Ceylon must have been meant to be included in the words "Attorney and Solicitor," that Ceylon came within the pur- view of the Act— that a Proctor of Ceylon might go to England and be enrolled as Attorney of the Superior Courts of England, and that therefore a Pioctor of Ceylon was equal to an Attorney- of Greai Britain. He also contended, that a member of the Bar here might goto England and be admitted as an Attorney, and that therefore he was put on tiie same footinfi; as a Proctor of Cey- lon, thfit is, they were both equal to an English Attorney ; that tilings which are equal to the same thing are equal to each other, and that therefore a Proctor of ,Ceylon was equal to a member of the Bar of tlie Supreme Court, and that it would be an injustice to exclude him from practising as such. This is, as nearly. as I could gather, the argument made use of by the Petitioner, and I merely mention it, in order to show to what shifts he was driven, in ordef to evade the plain meaning of an Ordinance and to sub- stantiate his claim on the ground of status. Of course, it must not by any means be .assumed, that I accepted his interpretation of the Act referred to. He must have known this before he loft Ceylon. Being a Lawyer, he must have Ipown, that there was not a shadow of a pretence for supposing, /that a Proctor of the Supreme Court of Ceylon was by virtue of his status, eligible" for admission to the Bar over wliich I iiave the honor to predide. He must have seen that his only possible chance of admission depend- ed upon the construction which might te placed upon the 2nd part of the 40th Section. That part of the Secliion gives power to the Court to admit any " persons of good repute " not previous- ly admitted as aforesaid, subject to certain conditions. The Peti- tioner says, " If lam not admissible under the 1st part of the (a.)- &Ge Morgan vs, ieacA, 2 Moore- Ind, App, 428. STNGArORE. 430 Section, then I am admi««ijble under the 2nri part.'' But why? "Because I am a Pi().cf()r t by giving us Ions and- irrelevant details respecting his domestic life, and informing U8 that for certain reasons he was disliked by the Mahomedans of Ceylon. Even if these matters were pertinent^ which they are not, and even if this Court could be turned, as I trust it never will be, into a refuge for the destitute — we have no- body's word for the Petitioner's statement except tiiat of the Pe- titioner himself. " Nemo judex in sua causa," and the last .pe,r- son in the world who should expect his ^statement to be taken for granted in a Court of Justice, without the production of 'any evi- dence, is a Lawyer. But the Petitioner explains in a manner how it is that he is'totally devoid of testimonials from Ceylon. He says, that he could ihave brought plenty from natives, but then the Attorney General would liot have attached any importance to any- thing coming from the natives, and that therefore there was no use in bringing them. Immediately aftersTards, however, he says that the Attorney General was quite unknown in Ceylon, so that that motive could hardly have actuated him, when he was consider- ing whether or no he should get Testimonials from the natives. He says, again, if he did bring Testimonials to whom was he to present them ? There was no Chief Justice at the time in Singa- pore, and the existence of the Attorney General was unknown in Ceylon. The question is, not to whom he was to present them, but from whom he was to bring them, and to say that he did not bring them because there was nobody to give.them to, is so bad an excuse, that of itself it excites suspicion. He says in the same breath, that he endeavoured to make his arrival at Singapore cor- respond as nearly as he could with the arrival of the Chief Jus- tice from England. He came here expressly to piesent a petition to the Judge, and that the reason why he did not bring Testimo- nials was, because there was no Judge to present them to' But the Petitioner goes beyond this. He says, that lie has given the Singapore Bar an ample opportunity of finding out whether he 437 SUPPEME COTUT. was an iiiipostoi', and that it is not to, Ite supposed ihat tliey have not strained every nei've.tofind out any thing to liis prejudice. I am very much afraid that the Bar have not taken quite such an interest in tlie matfer as the Petitioner seemed to think that they must have done; I do not ti;ink that any member of the Bar has taken the least trouble to try and find ont anything eitlier to his prejudice or to his credit. At the expiration of the monlh's notice, I consulted tlie Attorney General iis to tlie feelinu; of the Bar upon the subject and this was tlie first time the subject had ever been mentioned hy me to any member of the Bar, or tliat any. member of the Bar had mentioned the subject to me. .Tiie At- torney General told me, that the Bar knew nothing at all about the Petitioner, one way or the other, Mnd that tliey were absolutely without the means of knowing !inythinK about him. He suggest- ed to me, or I suggested to him, I really forget which, that he should call a Meeting' of the Bar to connider the matter. This was done, and I received a cotnmunication in due course from the At- torney General informing me tiiat he was auihorized by the Bar to oppose the admission of trie Petitioner upon certain grounds wliich were stated. This is the " organised opposition '' of which the Pititioner has cpmplained so much, and for which, if any body is responsible, I am responsible myself. If it would have been possible to have entertained his application for admission under the second clause of tliie 40th sectioh, it would have been necessary for him above all things to have given by the evidence of others tiiG most unexceplionable certiiic^rtes..Qf character, including at all events, one from the presiding Judge of the Sffpi^rae Court of Ceylon. It must not gp forth, however, that any person even arm- ed with the most'unqdesfcionable Testimonials would be successful in his application for admission here. The Bar is not a business ; it is a profession, and a high and honourable profession too. It dependi upon conservation for its very' existence, and it is guarded in the mother country by Regulations so stringent, that to the uninitiated they seem almost absurd. What is the .practise in England — a practice sanctioned by thie usage of centuries, and having all the effect of a binding law? A Barrister when lie is called to the Bar makes choice of a circuit, and he is allowed three before mak- ing l)is final decision. After I hat period he is net allowed to change. He may receive the most friendly overtures from an- other circuit ; he may lose all his practice or all his friends upon his own — but the portals of every other circuit are for ever closed to him after he has once made bis filial election. If this has been found to be necessary for the preservation of the Bar itself in siNGAPonE. ' 438 England where Barristers iire known, and where everytliing- about tliem ia known how much more necessary must it be in the Colo- nies, thai the Bar of one Colony should be guarded from tliein- Veasioii of persons utterly unknown to them from another. If the principle for which the Petitioner contends to be adniiited, — that an Advocate shoiihi be allowed to take his goods to the best mark- et, tken we miglit siiy farewell to the Bar as an honourable pro- fession. If disappointed praelitioners or needy> adventurei's inii;ht roam from Colony to Colony endeavouring to disturb the practice of those lonjr' settled in the place — men who have given hostages for their good conduct, and who look lo the approval of tiieir fel- low-citizens quite as much as to the pecnniary gains which they oblain from thyeir profes-^jon, then the degradation of a profession which now stlands second to none, would be imminent, II the Peiitioner has been induced to come to Singapore by false hopes being held out lo him, I am very sorry for him, certainly no per- son of any knowledge or of any authority could have held out snob hopes, and if lie has been induced by the oiiinion of persona without knowledge or authority, he can hardly lay the blame at any body's door but his own. It is idle to suppose that a small section of tM po|iulati<)n here cannot gef; justice without the in- tervention of the Petitioner, because he is able to converse with them in their own language. If that were absolutely necessaiy, a native Judge should occupy this Bench, or rather as many native Judges as there are varying nationalilies, and the great work ofimpi^ssing English notions of justice which is even-handed and impartial, and which they have begun to recognize as such, would be entirely frustrated. There is no greater difficulty in this small section making their wants known than attaches to any other members of the communiiy. To whatever class or to what- ever race a suitor in this Court belongs, he will always receive, and I believe always has received, as much consideration, and have the game measure of justice meted out to him, as the ir;pst flourishing European in the Straits Settlements. It is not, how- ever, by encouraging, but by preventing litigation that their in- terest will be best consulted. An enlarged Bar struggling for practice would be a serious evil to the Colony, and it would be an evil that would be most of all felt by those who are at least able to protect themselves. Holding, as I, do, that the Petitioner has entirely failed to make out his case, I have no other course left but to dismiss his Petition. 439 SUl'llEMB CDUKT BEFORE HIS HOXOR THOMAS SIDGREAVES, Chief Justice. REG. vs. 6 and F . Motion in arrest of Judgment. Construction of Statutes. The Prisoners were convicted for emhezzlement, hut before sentence the Oomi- selfor the prisoner moved fm' ore arrest of judgment, on the ground that the Act under which they had been tried had been, repealed : — HELD (on leave reserved) that the Act XIII of 1850 upon which 'they were convicted, was still in force here and that the words ■' British India " in the Act XVII of 1862, which re- pealed the said Act, did not include the Straits Settlements and the Convic- tion was affirmed. Daily Times, — December, 1872. The following Judgment was delivered on the 16th instantr by the Chief Justice. In this case the Prisoners were tried before me at Malacca, and convicted of Embezzlement. Before sentence, Mr. Davidson, acting as Counsel for the prisoner , moved an arrest of judgment o^ the ground that the Sta- tute creating the offence, — Act 13 of 1850, — had been repealed by Act 17 of 1862. I proceeded to pass sentence, reserving to Mr. Davidson leave to move be- fore me at Singapore, which he accordingly did, the Attorney General ap- pearing on behalf of the Crown. If Mr. Davidson's contention be right, the consequences would be, not only that this conviction is wrong, but that all the convictions obtained under it for the last ten years, during all which pe- riod the Act has been acted upon, have been wrong also. It becomes important, then, to consider whether Act 13 of 1850 has been repealed so far as the^ Straits Settlements are concetned or not. The first Section- of Act 17 of ,1862, upon which Mr. Davidson relies, is as follows : — " The several Regulations and Acts set forth in the Schedule hereunto an- " nexed, so far as they provide for the punishment of offences, shall be held " to have been, and are hereby, repealed from the 1st of January, 1862, in " the Presidencies of Bengal, Madras, and Bombay, and in the other parts " of British India, in which such Regulations and Acts or any of them were " in force on the said 1st of January, 1862, except in so far as they repeal " the whole or any other part of any other Regulation or Act, and except 'as " to any offence committed before the said 1st of January, 1862." Now, amongst the several Regulations and Acts, set out in the Schedule, we find this Act No. 13 of 1850, and the extent of the Repeal is stated to be the whole Act. If the Straits Settlements come then under the general words of Section 1st, it is obvious that the Act has been repealed. Mr. Davidson's, contention is, that they do come within those words, that those words are perfectly clear, and that being clear and unambiguous, we cannot look at the Preamble to explain them. In the cases which he quoted, however, the real state of the law upon th^ subject was made abundantly clear, and it must be taken tliat although a clear and express enactment cannot be controlled by the Preamble, yet if there be any doubt upon the subject, the Preamble may be referred to for the purpose of shedding a light upon it. It must be taken also, that in constru-. ing an Act, the Court is entitled to consider the whole scope of it, in order to arrive, at the meaning of any particular enactment. SINGAPORE. 440 In the Sussex Peerage case, 8 Jur: 793, where the question turned entirely upon tfie construction of a Statute, — The Royal Marriage Act, Lord 0. J. Tindal, delivering the opinion of the Judges who had been called in by the Lord Chancellor to advise the House of Lords says, " The rule for the construction of Statutes is that they should be construed according to the intent of the Parlianient which passed the Act. If the words of the Statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do in such case best declare the intention of the Law- givers. But if any doubt arises from the terms employed by the Legislature it has always been held a safe means of collecting th^ intention to call in aid the ground and cause of making the Statute and to have recourse to the Preamble, which according to Chief Justice Dyer, is a Key to open the minds of the makers of tile Act and the mischiefs which they intended to redress." In Attorney-General v. Powis, 1 Kay 186, it is stated that in construing an Act the Court is at liberty to regard the state of the law at the time, and the facts which the Preamble or recitals of the Act prove to have been the existing oircamstances at the time of its preparation. Now with regard to Sec. 1st of the Act 17 of 1862, it was contended by Mr, Davidson that the Court was bound to give effect to the words as they stood, and that the words, "in the Presidencies of Bengal, Madras, and Bombay, and in the other parts of British India in which such Eegnlations and Acts were in force," clearly include the Straits Settlements. But looking at the words " British India,'' and knowing that the words are used in different senses in different Acts, we are surfely entitled to know in what sense the Legislature intended to use them here, and even if the Straits Settlements were at that ' time a portion of the Presidency of Bengal, were they so for all purposes of the Act? We refer to the Key which has been mentioned, the Preamble, in order to open the minds of the makers of the Act, and there we find the rea- son why the Act was passed. It was because a Penal Code had come into operation in British India and a Criminal Procedure Code come into opera- tion in the Presidencies of Bengal, Madras and Bombay, and was at the same time, or had since, or might thereafter be, extended to *other parts of British India. Now here we have the very same terms used as in first Section, " Bri- tish India " and "the Presidencies of Bengal, Madra'S, and Bombay." Do these terms include the Straits Settlements P The two Codes each contain a definition of what is meant by " British India," both to the same effect, the words " British India " shall denote the tertitories that are, or shall be- come, vested in Her Majesty by the Statute 21 and 22 Vie. C. 106. entitled " an Act for the better Government of India, except the Settlenlents of Prince of Wales Island, Singapore and Malacca." It is quite clear, therefore, that the Act never contemplated the introduc- tion of these two Codes into the Straits Settlements, and the 3rd Section shows'that the intention of the Legislature was that the Acts in the Schedule ohould be repealed in other parts of British India, at the same time that the Codes were introduced into them. The Code of Criminal Procedure never came into operation here, and, even if it did. it could not have affected this Court, which was a Court founded by Boyal Charter, and the Penal Code expressly excepts these Settlements. Giv- ing the same words the same signification _in the 1st Section, I am of opinion. 441 SUrfiEME (JOURl-. therefore, that they do not affect the Straits Settlements, and that the Act 13 of 1850, is still in force within these Settlements. The mo,tion in Arrest of Judgment will therefore be dismissed and the Judgment will stand. . BBFOKE HIS HONOR SIR THOMAS SIDGRBAVES, Kt. Chief JvMice. Hajee Mahomed "Arsad. — Appellant, Vs. Captain S. Dunlop, Acting Inspector General of Police, S. S. — Respomieni. In a case agai/nst the owner of a house or premises for permiUing it to be used as a Common Gaming House under Ordinance XIII of 1870, CaJ and in which certain applianoes and contrivances, inentioned in Section 15. are fownd — nothing hvi a mere presufm^tion arises against him that it was so usgd by his permission, which he may rebut by evidence. The Magistrate must be satisfied of the Defendant's ■' guilty knowledge," (b ) before he can convict. • . ' Straits Times,— July, 1874. ' Judgment was delivered on the 1st instant, by the Chief Justice. This was an Appeal from the decision of the Police Magistrate in Sinffapore, in regard to a oonvictinn by him of the Appellant " for tliat he the said Hsijee Mahomed Ar^ad. being owner o£ House No. 39, New Bridge Road, in Sinjrapore aforesuid, permii- led the same to- be ke|>t and u-ed as a Common Gaming house, and has thereby committed !an offence punishable under Sec. 3, Clause 2, of the Gaming Houses Ordinance of 1870,'' the punish- ment itoiposed being a fine of $\,QQO. Mr. Donaldson appeared for the Appellant, nobody appeared op behalf of the Respondent. In this ease I he question mainly turned upon I he proper con- struction of the 15tli Sec. of Ordinance 13 of 1870, which is as follows : — " Whenever any passage, staircase or means of access, in a place lawfully entered as aforesaid, to any part thereof is unusually narrow or st^ep or otherwise difficult to pass, or any part of the premises is' provided with un- usual or unusually numerous means for preventing or obstructing an eitry. or with unusual contrivances for enabling persons therein to see or ascertaiia the approach or entry of persons, or for giving the alarm or for facilitating escape from the premises, it shall be presumed until the contrary is shown that the place is a gaming house, that the same is so kept or used by the oc- cupier thereof, and that it is so kept with the permission of the owner thereof" ^ By the 3rd Sec. of the same, Ordinance.taxnongst other offences therein defined, whoever permits a place of which he, iei owner or occupier to be kept or used by another person for the purpose of ■'(».;. Now Ordiiiaiicc IX 011876. (b.) SeeTmTokUe vt- Wa<, ante p. 336. SINGAPORE. 442 cairyint; on tli« bu-iii(>ss of a common gaming hou^e^sliaU l>e pnn- isliHble vvirli a fine not pxceedihg ,8 3,000, or with imprisonnient with or witliont liaid labour not exceeding 12 months. At the hPHi-int; bcfoie the Magistrate, Mf. Donaldson on the part of tlie Defendant, the now Appellant, admitted that he was tiie proprie- tor of the liou^e in question. Evidence wa.s then given wit li re- gard to the fitting up of ihe hoiis;ige there was a narrow flight of stairs, at tlie top of wiiich was a trstp-door, I rfin up the stairs and trieil to force o|)en the trap-door hut could not. I heard the sound of people escaping over the loof. I tried to enter the house and those next to it, but could not. I gent a con.stable to the front window of this house and he effected his entrance by catting a bar, he tlien opened the trap-door and I entered the room on the first floor.'' In that room Mr. Mfixwell found articles which clearly proved that gambling has been carried on. He found two broad ladders lead- ing frona the gambling room directly to the roof, and ii^was quite clear that the gamblers had effected their escape across the roof. He says. "There whs noihing in the construction of (hehou.se different from others except the ladders." Capt Dunlop, tbe Act- ing Inspecior Genernl of Police, gave similar evidence, adding "In the gaming room was a stool on which a watchman sits while .the gambling is going on, in readiness to let fall the trap-door when an alarm is given." Inspector Kraal stated, that he had bpen watching the house for a month previous to the day on which it was entered. He s^Ated in his evidence that, no one but Chinese, except they haiual contrivances for enabling persons to see or ascer- tain the approach or enlry of persons, etc., liie presumption will lie. All this points to the conclusion, that the house is to be so fitted up or so guarded in such a palpable and evident uianner, that the fact of collusion on the part of the owner of the house with the gamblers therein so using it, is almost irresistibly forced, upon us. Even then, however, a pre8um|ition only is raised, and it is quite open to the owner to I'irove, if he can, that all fhis has been done without his knowledge or permission. The description given by the witnesses for the prosecution shows, that so far from being provided with all these unusual appliances and contrivances, there was nothing unusual about the premise;^, except a pair of ladders leading from the first floor to the roof. I consider, therefore, that this .case does not come within the mean- ing of the 15th Sec. of the Ordinance, and the adjudication" most be reversed. I feel bound to add, that I look upon this Ordinance as seriously menacing, if not actually invading, the liberty of the subject and the rights of property. It may be of great importance that Gam- ing Houses should be suppressed in Singapore, but it is of still greater importance that the rights'and liberties of British subjects should not be interfered with. In their anxiety to suppress gam- ing, it would seem as though the framers of this Ordinance had overlooked the elementary principle of English criminal law, that a man is to be considered innocent until he has been found guilty. By this Ordinance, however, creating for the first time an offence and visiting it with a most severe punishment, — ^passed in terras which would puzzle even a lawyer, and printed in a language whiclvis not understood by one person in a hundred belonging to the community, and which yet, by a fiction of Law, is supposed to be known and understood by every one of them, — the position is reversed, and an accused is deemed guilty until he can prove himself to be innocent. To avoid trouble, th© necessity of a pro- secution upon a charge involving 12 months imprisonment with hard labour is dispensed with, and the unhappy owner of property is called upon to prove a negative as well as he can, his own mouth being altogether closed. 44o SXIPRCMT! rnUKT. But tills is not all. By ihe 18t.h Section, "To every demise iiiid liire of a place made affcr the ptissing of this Ordinance, is annexed the condition that the same shall be void i£ the place de- mised or hired sliall be kept or nsed aa a gaming-house by tiie lessee or hirer or with his permission. In all legal proceediniiuiry unwi-itten condiiion attached to every demise anil hire of a place, of which every owner of pro- perty is bound , to take cognizance. If he does not. and does not also at once enforce his right to recover possession of the place for breach of the condition, and the place is again •' declared" by the Majiistrate, "it shall be presumed that the said place was so kept or used with the premissioii of its owner,'' and in the Section the virords " until the contrary is sbown " are omitted. This means, that in the Straits Settlements every owner of property, who does mot iis soon as a house belonging to him has been declared by a Magistrate to be u does not arise at present, but if it is raised, and it is proved to my satisfaction that this is law which is not reasonable in itself and that it is repugnant to the law of England, I siiall not hesitate to treat it as an Ordinance/ passed " ultra vires,'" and' regai'd it as a uuliitv. Question ov Costs. Thefollowmg article is taken from the Penang GaeeUeof 25th Jidy 1874, — its remarks a/pply not only to the above decision of a Magistrate hiet also- to aU other cases where the Magistrates' Convictions a/re quashed on Appeal. The Appeal Ordinaiwe IX of 1S74:, Section 36 provides that, "The Cowrt may, " on the decision of amy Appeal, direct that the costs of the Appeal shall be ' ' payable by either party thereto . ' ' AppelUmt or Bespondent f ! There is no post in the Settlement of more importancs than that of Police Magistrate. The office, we believe, is' clothed with powers considerably more extensive than those committed to London Magistrates, aU of whom are se- lected ' from the ranks of the legal profession. The jurisdiction of Strait* Magistrates extends to 12 months rigbroiis imprisonment, and they can im- pose a fine as high as $ 3000. It is obvious that powers so exteMiVe, anless HIN'(,Al'ORK. 44G skillfully exereised, may be the cause of very great hardships, and possibly ruin to those whose conduct becomes the subject of investigation in the Police (/'ourt. The oases too, with which our Magistrates have to deal, are very frequently not a whiD less 'complicated than those committed to the higher Court to be sifted by a learned Judge, aided by Counsel and Jury. To the proper solution of such cases, a plenary knowledge of what constitutes legal evidence, the faculty of long and unremitting concentration of thought and, some aptitude for fishing the truth out of human testimony, are' doubtless in- dispensable qualifications. If there is any truth in this, the nanies, with few exceptions, in the list of newly made Magistrates, give ample cause for doubt- ing whether Government ever seriously reflected on, or is in inforination suf- ficient to judge of, what the duties of local Police Magistrates really consist. Even the recent appointments out of the Settlement are not calculated, in our opinion, to lessen this doubt. Is it, because we find so little real respim- gibility attaching to the grossest mistakes of Magistrates, that no test, or guar- antee of capacity, is required P In all other public departments of a special nature; a candidate is bound to produce a certificate, or some kind of diploma, before he can hope to obtain employment. To us there appears lamentable inconsistency in providing laws to protect the public from the risk attending the employment of uncertificated legal-practitioners, and yet permitting a large and' by no means insignificant portion of the law, to be administered by a medium entirely opposed to the principles upoia which only such legisla- tion can be based. If Magistrates', or the State, were to become responsible for decisions not in aecoi'dance with evidence or common sense, by which individual loss or suffering is 'entailed, there might be less concern for the mode in which the former are nominated. But so lohg as we have cases in which innocent defendants are compelled to incur heavy expenses, in order to get rid of the consequences of palpably erroneous judgments, some altera- tion in the law by which responsibility would be ensured, appears to be ur- gently needed. We have been partly led to these remarks by a judgment given by the Chief Justice, which we take from a copy of the Straits Times, and publish' in another column, deciding an Appeal, froni the 'Magistrate's Court at Singapore, in favour of the 'Appellant, who, as landlord simply, had been finded $ 1000, his tenant having used the premises demised to him, as a common gaming house in coijtravention of Ordinance No. 13 of 1870. ' The particulars of the case will be found in his Lordship's judgment. The ques- tion with which we are concerned at present is, how are the expenses, amount- ing in all probability to a third of the heavy fine imposed, incurred by the ^.ppellant in the endeavour to vindicate his character and save his pocket, to- be refunded ? The Magistrate is protected, and the State is equally beyonS reach of the Ijiw. That the latter should possess the right either directly, or mdireotly by its servants, to entail such a sacrifice upon an innocent person, is an anomalism. There is no reason whatever why the State should not work under the same obligations as priva,te individuals, and be like them amenable in damages for personally injurious acts, when ordinary precaution might have avoided the evil. We are not advocating that the public purse should be made to pay for every inevitable un-right committed in the pursuit either of justice or any other general good. But what we do say is, without any reference to the particular case to which we have alluded, that it is a grave reproach to pubMo justice, that no responsibility rests either with the State or MagistratcB for radically bad decisions, from whatioever causes they may 447- STJ>'EEJI35, COURT arise ; and it is to be regretted that generally there is not more thought be- stowed in the selection of the individuals to vvlioin is committed so much power of doing mischief as well as good. SuMMAKy Side of the Supreme Couut. , Before Sir Thomas Nidgreaves, Chief Justice. MIANG vs. KUGLBMANN. If a person contracts to serve another as a servant hy the month, and Uaves it vnthout notice, he will not be entitCed to recover arvy wages for that month. If a master discharges his servant without just cause, the master will he liable for such wages, even if the servant had served only one doAj. straits Times, 17th August,' 1876. The plaintiff claims a month's wa»es or 12 dollars. This case was heard before the Chief- Justice on Friday last, and the decision must be satisfactory to the public, as it decides a question, which very many are interested in. The Defendant employed plaintiff for some time, as a driver of one of his Johore Omnibuses, and he got $ 12 per month for this service. He was however a cruel fellow, and so severely whipped one of the horses of the' Bus, that his employee was annoyed attho'cruelty and brought his conduct to tho notice of Major Dunlop,' who took him before the Magistrate, and he was justly fined. After this. Mr. Kugleraann, did not discharge the syce, as he might have sent him away, but 'ordered him to work in the stablings, as he considered it unsafe to let him drive his horses. This wounded the feelings of the syce, and he left Mr. Kuglemann's service, without any notice, and as he had tvro other of his relations working in the same stablings, he enticed these fellows, and got them also to leave. Thus beside putting Mr. Kuglemann to much inconvenience, lie sent his employer, "an invitation," and wanted a month's salary. The Defendant pleaded, that the Plaintiff left him suddenly, and put him to much inconvenience, and out of spite, lured away two other syces from his employment. He brought his Mandor, or head syce, to prove, that he left without notidfe, and while in service, the syce Vas regularly paid and well treated, and had no cause of complaint save that of being degraded, from that of a driver of the Bus, to a syce, who had to groom the horse and confine himself to the stable work. The Court in giving the decision remarked, that had his employer discharged' him, he would have been entitled to claim the wages, and had he served bit one day, and after this sent away without any just cause, he would have got a decree for the wages of that month, as the contract was to serve for a month, but remarked the Judge, "you left suddenly because you thought you were degraded, and he set you to a work you were fit for, and you go huffed and left him. The syces here think they can do as they like and leave when they like, this however must be put a stop to." The case was dismissed, and the gyce Was taught a lesson which may be of service to him. — iuoLC gl O Cl cmu « aj— Compiled and arranged by S. Leices^ter, Printed at the Com/mercial Press, by Heap Lee & Co., PENANG. 1877. COURT OF JUDICATURE 4-48 MALACCA- JULY 20th, 1833. BEFORE SIR BENJAMIN MALKIN, RECORDER. Inchee Karrim v. Quay Pang. Construction of the Local Regulation No. Ill of 1830, providing for the re- tail of Seree or Betel Leaf within the Towns of Fort Comwallis, Singaipore and Malacca. liKiM that the Renter of the Seree Farm is hound to pwrchate all Seree tendered to him at the rate fixed by Government, and that he cannot re- fuse to do so wpon the. ground that he is supplied for a dayls conswm^tion — and beca/use he was informed by the officers of Cfovern/ment at the time of his bidding for the farm a/nd before (hepwrchase that under the Regulation he was at liber- ty to reject Seree undir such circumstances. This was an action brought by a grower of Seree or Betel Leaf, againat the Farmer ot that article at Malacca, to recover damages for his refusal to take Seree grown by the plaintiff. The plaintiff by his petition alleges himself to be a Seree plan- ter within the Juiisdiclion of tlie Court, but not within the Town of Malacca (at least this aualification may be collected from the petition) and that he did ou tlie 17tli day of June import into ihe Tgwn of Malacca certain quantities of Seree, of tlie value, accofd- in'>- to the Governuieut rales of two or iliree cents per bundle, of 79 cents and tendered the same to tiie defendant, as renter of the Seree farm, who, refused to take them ; and he claims damages for this refusal, which he alleges to be contrary to tlie provisions of the Regulation after mentioned. The defendant by his plea does not deny any of the facts staled lin .the petition, but says ' that, before the tender of the plaintiff's Seree he was supplied for a day's consumption, and therefore re- jected the plaintiff's $eree, as he was at liberty to do, and that the plaintiff was at iiberiy lo sell the same at the place from whence he brought it, without let or hindrance from Ihe defendant, or any person acting for him : and he further alleges that at the time of ihis bidding for the farm in question, »aud before the purchase„ihe vendors ot the farm informed him that under the Regulation he was at liberty to reject Seree under such circumstances as those in the present case. The plaintiff by his replication denies the matters alleged in the plea: but on the trial, the delendanc substantiated them ; and the case now stands for judgment on the vjhole record, the facts by the plea being treated as proved. These facts however appear to me immaterial-. It is not pre- tended by the pl«a that the plaintiff was present at the sale of tlie S eree farm, or in "any way consented to be bound by the inter- 449 COUUT OP J0DICATUEE pretaiion tlien put upon tlie Regulations: his rigliis tiierefoi-e inu'il; depend merely on the Regulations theniselireB, and not on any nn- autliorizeii explanaiion of ihem. With respect to his offering no liiiiJninoe to the plaintiff's retiiiling the Seree in question elsewhere, it is sufficient to say tha't no complajnt is made on that ground : if that were the plaintiff" ;< grieraiice, he ought so to have stated ji, and not having done so, the only qiie4ion is whether the defend- ant was not bound to take the Seree in question : if^be was not, the Court is not asked to re«iedy any misconduct in ti>e manner of the refu^^al, or arising after il. The only fact in the plea that could be of any importance is that of the defendant's having a sufficient supply before the plaintiff's Seree was offiered. In my judgmeut this is also inmiaterial : the Regulation neems to me ei- ther to make it imperative on tlie farmer to lake all Seree offered to hira, or else to leave him without any obligation on the subject, at liberty to use merely his own discretion as to taking or refus- ing-, and if so, the Court has nothing to do with the qmeslion of ■A reasonable refusal. But it is onlyOin this way that the facts mentiotied in" the plea could be of imporlance, for the pitrticular limitation as to a day's consumption is clearly not auihorized by the Be^tllation. The Regulation, under which the question arises, is made for the purpose of conferring an exclusive privilege or monopoly. Its validity and force are not called in question, for each parly claims under it: but it must be remembered, in examining it, that mono- polies are contrary to the gfeneral spirit of British legislation, and iliat as such, the instruments establishing them require to be closely and strictly construed. In the present case, however, there is little or no doubt about the abridgment of the original right of the subject: the monopoly is conferred by clear and distinct words within the limits defined by the Regulation ; the question rather arises on the equivalent which the parties deprived of thqir common right are to receive, or rather it is whether they are to receive any : fori have already intimated, that I do not see any thing in the Regulation which com- pela the farmer to take the Seree brought to him at all,' unless he is compelled to do so absolutely. There are three classes of Seree growers whose interests are in- Tolved in the question before the Court, those who live within tlie limits of the monopoly, those who without those limits, but wilrhin tiie Conipany's territory, a^id tliose who have no connection with this place in particular, hut import from a distance on speculation. < ll mi2;tit perhaps be desirable that thero should be different MALACCA 4yO provisions with respect to these three cliisseo, as the ln^^t c1;i8>j i^ pmitled to the least consideration, and tlie fiist cjass i< most aff>ct- «d by the monopoly. 'With respect however to the liability of the farmer, to take all Seree brou those grower^ who would to a certain extent compromise their right, would ren- der it very impolitic for any one to insist fully upon his own. These datlgers indeed might be avoided by provisions requirin-; the renter to buy in all cases, unless where he had some reasonable excuse, pointed out and recognized by the Reuulation. For the purposes of the present case, it might be en"ngh to say, that there are no such provi£|iqns in the existing Regubition, but it nioy perhaps be worth while for the purpose of meeting any argii- 451 COTTRT OF JUDlCATrPE meiit ihiit 3oine Such reasonable provisions might be infeh-ed from the neeeasily of the case, to examine whether any one rale qonUI be beneficially or fnirly applied to all chisaes of producers. If , there could, peihfips it miglit be implied, though tlio iniplication would be a rental kiibly violent onfe,, but if there could- not, as ufi« doubteiily no varying rules iire laid down, it would leave the witole question to be determined by the discretion or caprice of tlie Judge in each cage, who would then have to say on each par' tieular transaction, without any general rule to refer to, whether' he thought the refusal reasonablis; neither the grower nor the renter would have any known principle to act on, by which they could be secure as long as they adhered to it. The first class, to be considered, are the growers of Seree withiu the Town of Malacca. Before the Eegulation, they had certain ad- vantages in their situation as being close to the best market- These they retain li the fanner is obliged to purchase from them, but if he is not, they are worse off thfin any- other class. If they cannot sell in the Town, they are obliged to go to a distance t» seek a worse market, and may perhaps be liable to penalties even for that; and they cannot even withbut I'isk consume Seree of their own growth, for the exception in Sect. 11 to the general imposi- tion of penatties'on all persons in possession of Seree not purchas- ed from the renter, applies to persons importing Seree in prows, and lo them only — Any construction, therefore, which allowed the 'enter to refusi; i heir produce would be highly prejudicial to the growers within the Town, and at variance, I think, with everyprin- cijile of justice towards them. This consideration cannot conttrql the clear intention of the Regulation : but if the intentiim is doubt- ful it deserves attention. The second class are the growers within the territory but with- out the Town of Malacca ; a body of men like the first, entitled to the protection of the Government, and who ought not to be deprived of tlieir original rights without some equivalent. Tne only equivalent they have is the CRrtwinty of their being able to dispose of their Seree at a fixed price: if they have not (hii, tb^ are deprived of almost all chance of effectitig a sale at all', for they are shut out of the principal market within their reach and con- fined to those purchasers scatteied over the country, wh'o have themselves the power of growing Seree for their own consumption. Nor would it be a slight inconvenience, even if their chance of selling rejected Seree beyond the Town was better then-it'seems, that they should bo obliged either to forego the best market, or 'else to bring a cheap and perishable articlis from a considt^rable'diis- ■jrAT.ACCA 452 tance at the Imzard of the cotnptete loss of time and labour. Tliis ii>- deeJ is no more than all veTidors o<^ friiir,, vegetables, &c., are every where liable tft : but then they geneniliy huve the f;ivoniiible as well as the unfavoiirable'chanees of- tiie market. Here, they are nearly, if not altogether, excluded' from the former. If there were only these two classe-;, it might bo ilioughtthe most reasonable construction of tlie R gnlaiion is that ihe rent^ should be obliged to taUfi their produce; but a different opinion might be entertained with respect to the third class, growers with- out the territory of the Company, who are not excluded from any but a very limited market, comparecl to the wide field to which (hey may have equally easy access, and entitled to no speciiil coi'i- sideration from the Government. It is, therefore, maieriai lo ob- serve, that this class has been the sulij'^ct of peculiar pf-ovi-^ions in the Regulation, a'nd to examine whether the provisions do n(^t shew that it was intended that even they should be enlitled to have their Seree purchased at the regulated price. By the 8ih Septioti, all importers shall give notice to the farmer, who "shall within one hour after the receipt of such notice furnish a peon lo superin- tend the landiiisj of the same." There is no power expressed of refusing to allow it to be landed: only time is given to semi an officer to prevent its being landed clandestinely. It is no* indieed, by Siection 9' to be landed without a permit^ but there is nothing to render the grunting that permit discreiioii- ary in this case, any more than in others where it is not so; and if landed without such document it is seizable; not however on such seizure to be despatched without the limits of the town for the protection «f the renter, but " to become the pro|>erty of Gov- ernment, to be disposed of in such manner as they may see fit.'' and similar provisions are made in Sections IQ and 11 with regard to other causes of forfeiture. The whole scheme therefore seems to treat all Seree imported as entitled to continue within the jimits of the monopoly ; and unquestionably if it is so, the rights of the importer can only be efif«ctually secured, by treating the farmer as obliged to purchase. But if the importer has these rights, the grower within the British territory cannot have less. I am not aware of any argument against the construction above put upon the Begulation, except a supposed hardship on- the farmer. I do not mean on the present farmer in particular.- if he has mis- understood the legal effect of the law under which he derives his privileges, he must, as in all such cases, take the consequences of his mistalce; if he has been misled by any statement at the tini« of sale, he mny perhaps be entitled or the Government in eithor 45,3 COURT OF JtrDICATUKE case niijjlit. pos'iibly be inclined lo admit Itira to relief from his coiitrdct. But intiependcnily of tlie particular ease, there mny Iw u hiii'dsliip^eiterally in leitviiig the fiirmer obli>>:ed io iiike what- ever quantity af a pf>risi)»ble> article usiay be suddenly cast on his handM, at a fixed price. It would, liowever, be difficult to make an inconvenience -' gon for fivinre the Government hftve also the power of secnrins; him in a great degree, by fixing such rate of purchase, as will prevent it from being, the interest of any one to injure him, by pouring in upon him a larjier quantity uf Seree, than is adpquaie to t lie rensona^ble consuuiption ol the, ^lace. If there are to be monopolies at. all, the most convenient course would eeera to be, th»t the pnrcliasing price should be fixed sonae' what below the common markf^t price, and that the seliei', in coui- pensaiiori for thus having a less price than he might, oiherwiseiget, eliould have a certain sale secured to hira ; and this, if the prices are wisely adjusted, would be the effect of that consiruction of the E.t'gulation, which I have put forward as the true one. Even on that construction, there may be ineouveniences and difficulties,. but these are only some of the consequences inseparable from a sys- tem of monopolies: on any otlier it teems to me very difficult to avoid absolute injpstice. It is true, that the interpretation thus put on the Reguiatiton in question may diminish the revenue, which has hitherto been ob- tained from the monopoly of Seree. • This, however, is a considei^ation which I do not think, the Court is at liberty to entertain either one way or the otlier. The Renur lations are imposed by the Government with ihi? fullest opportuni- ty of considering their policy and effect; and the Government must be understood t9 have intended by them whatever is ihe true meaning of their provisions. Whatever revenue, therefore, is likely to be realized upon the true and legal construction; I must consider to have been the amount which the Government thought it reasonable lO:derive fruin the particular article in queationj not lo be diminished to the pre- judice of the public service, by any inclination towards the inter- ests of the grower ; nor to be iijcreased by any forced ititerpreta- MALACI A 454 t'on to an exaction wiiich ilie fiMiners of tlie Ilei:ulaii(in, on its mosr obvioii* constniciion, would liave considered as over-tiixntioii TiiKge iirsrumfiifs lio«ever of justice and policy, rlioiii4h not, im- iiiaierinl ill the discu-»ttion of a question qf iniurh public importance, me not tiio«e on wliicli I rest ilie opinion «hicli I ihink it my duly lu express — Tiisir opinion iH founded on the words of the Regula- tion ihfti the renter " siiall l)iiy (ill Seree" at ii iertaiii rate, wliicli fvemB to me to l^ave no qupstinn sis to his obligation to do so. 11^ li!is p'fued to peiform tluit ohliguiion, and the judgment of tlie Court tliovefoie nuist bo for ihe plainiiff. The Seree Tax was abolished many years ago. I in pert this case, be - CHase Sir Midkin's jadgments were considered the most scientific and logical. See judgments of Sir W. Norris and Sir B. Maxwell , p. 28,66 S. L. July 29rH, 1834. BEFORE SIR BENJAMIN H. MAtKIN, RECORDER- Ab Dorahim V. Lieutenant Newbold. An, order to a person from his superior officer, to seize ana detain any boats or vessels proceeding to places within certain prohibited limits for thepwrpote of observing a neutrality professed by the Government between two belligerent chiefs, will not aitthoriae a seiaure of a vessel and cargo retur ning frtm a place not mihin such p^-ohnbited limits, although she might have gone elsewhere and aasisied either of such chiefs. JuDGMKMT. # ^ ■ Tliis was an action to recover compensation for the spizure of a boat and certain articles mentioned in tiie petiiion; and ihe de- fence is ii) substance that they were seized l)y the delendnnr., a military officer in command at Qualla Ling;y, beeanse the Plainiiflf had been engaged, or had incurred reasonable Buspicion of being engaged in rendering assistance to one of the two belligerent parties, not subjects of the British Crown, in a manner which the defendant considered hitnself empowered and bonnd to prevent. And the sub- * A d'eciHion of an important oature was given lately at Malacca, by* the Hon'ble tbe Recor der, in the case of Ab DO^knm versus Lieut, T.J. Newbold, of which mention was made in se- Teral of our papers some months back. The particulars are briefly these : The plaintiff Poi^a. him was owner and commander of a trading boat, a nd in November last, was returning therein to Malacca, from Sungye Baya, near Lingy, when the defendant, who was in temporary command of the Lingy station, seized, and detained the boat for four, hours, taking from her, three guns. a blunderbuss, a 'musket, a qtUantity of gunpowder, and shot, with eight bags of rice, valued al. together at 222 gp. Drs. The damages were laid at 500 Brs. The defendant, in his plea, set forth that he was sent in Septem'ber last to take cotaamnad of the frontier post at the mouth of the Lingy River, by the Officer then commanding the Malacca field force, with instructions as contained in a letter annexed; (see No. 3.) that, consistently with those instructions'the defendant considered himself Justiiied in making the seizure, land in act. ing as he did. It was notorious at- Lingy that the said beat as well as another belonging to a (jhinese at Malacca, had been fitted out for the purpose of supporting the hostilities alluded to In the letter oflnstructions, (No. 2.) by 'affording assistance to the vassal chief (alluded to-thiere- in) whose adherents Were in great distress for provisions. ' How far this seizure was legal, the following Judgment, passed in open Court.at Malacca, on the 29th ult. by the Hon'ble the Recorder, wtUshow. 455 COURT OF JUiflCATUliE; staniial question is, wlietliHi- lie i(iok a liglit view of liis |»ower ami n>isting principally of Rice ;. delivered the greater part of it at a plaae beyond the limits of the British territory, and on her re- turn was seized by tiie defendant for a real or supposed breach of neuirality in having !'upplied provisions to one of the belligerent par6i(}8, and probably with a view to preveni her again being en- gaged in a similar manner. If it were necessary to consider whe- tijer the'boai had been actually so employed, tlie evidence would be VHi-y scanty: it seems to me however ihat tlie defendant ha i at least veiy reasonable grounds for supposing it to have been so, and that the existence of these would justify his conduct, if the truth of the suspicion would d,o so. Bui it i» my opinion that the seizure was not legal in either case. It is not pretended fo have been so on any general principles of English or international law. The right or duty to make it rests entirely on the orders received by the defendant; and the seizure cannot be supported unless he acted with those orderSi and unless they were themselves, in all their stages, supported by competent authority. Now the defendant acted upon orders received from Brigadier Wilson, who issued them in pursuance of certain direciions received from Mr. Garling, the Resi^dent Councillor at Malacca. The seizure therefore is illegal, unless it were uitbin the scope of Brigadier Wilson's orders, unless those orders were within the scope of Mr. Garling's instructions, and unless those instructions were within the limits of Mr. Garling's authority. A failure in any one of these con- ditions is fatal. It would be so . in any case, as each step is pro- fessedly founded on the preceding one ; but it is peculiarly so in this, as the whole interference is in abridgement of the general freedom of trade and action and cannot be justified (except per- haps where Military law has been declared by competent autbo> MALACCA 456 rity to be generally in force) by any tliing sliort of the autliority of Gyvernmeiit, even if iliui would be sufficient. Now it is quite clear, that nothing contained in eitlier of tlie papers beariiij^ tlie signature of Mr. Garling, autliorrze.i the seiz. ure wliicli has taken place. The first is merely a notification to the public that a blofkade Iiad been declared by a foreiiin power of certain places within the Lingy River, that passes wonld nn( be issued for ' those places, and ihat conti-cation hy the hhckading power might follow any attempt to elude the blockade; a publica- tion very expedient to be made for llie benefit of the .tradinsf com- ninnity of Malacca, bnc whieh in no way rendered it illegal for tiieni to export to placet within the blockaded limits (to which lionever tl,iB plaintiff's boat tlid not proceed) if they were inclined to run tlie rigk and could obtain the tiecessary jiapers. Tlie se- cond, the letter addressed to Brifiadier Wilson, refers to the form- er paper as containing every thing necessary with respect to what is there termed " proldbited exportaiions,'* and carries the case therefore no farther exee|>t niih respe?t to arms and ammunition landed at Lingy about which certain directions are given in the 8th paragraph. It contains indeed a 8U<>'ge8lion that it would be expedient to compel boats to stop ut Lingy, but- it expressly de- clines to give any sitch order. It is dear that these documents, however largely construed, cannot extend to nuthnrize ii seizure of a vessel and cargo, return- ing from a phice not within the prohibited limits. It is not mate- rial lo enquire whethir i he error arose from Brigtidier Wilson's orders depaiting from the instructions vliicli he had receiveil, or from the defendant's exceeding those orders. It might perhaps be found that the ►rror was mo«s proceeding from it. Bui whether the error rests will) the one or the other, or is divided between them, if Mr. Newhold has exeeeded the authority confided hy lite Government, he must be, at least civilly, responsible for the consequences of his aciions. It is undoubtedly an emhairassing case for an officer, when his military and hi* civil duties are at variance; hut it is only lite incmvenience inseparable from every case of a double subordinaiion. The otily other document to which it is necessary to refer is the letter from Brigade Major Wyllie, conveying the expressioas of 4^7 COURT OF JUp|C4.TtJRE Mr. Gailin-j's anc} Col. Wilaon'a iippiobation of Mr. Newbold's conduct during; his conaui:in(J at Qu^il'^ Linrtiiig a recognition of tlie propriety of each particubir transaction comprised in tlie -^prvitje referred to. lam o*bligfed in thi^ case to come to i he conclusion that the ' defendant, while acting; in conformity witli the general policy, has exceeded tiie particular orders of the Governinetii; bii^ I see nothing in his cotiduct which should in any way pievenl him from receiving the liighefit tet^tiiiiony to the general activity and intelligence ol' his services in a diffiiiilt ami responsible situa- tion. But if not, his having received such testimony does not bear on the question. Besides the principal evidence in the case, there was a good deal of testimony as to acts done by the plaintiff at a place called Paneallan Bala ; and a ijort of secondary defi-nce that the seizure might be justifiable for the preservation of the iientrality of that place. It was not strictly within Mr. New hold's commanfl, btit may probably be considered as a place referred to in Brigadier Wilson's orders; but certainly it is not in Mr, GailiiigV. The plea also and the whole of the evidence respecting the seizure itself treat it as made in consequence of what ciccurred at Snugye Raya and afterwards and not with refei'eiice to Paneallan B^b. i^^'en, therefore if the seizure might have bfcn justified to.r the pregervif: tion of the neutrality of that place, that was not the ground of it; nor do I think that the evidi nee shews sufficient leison for ex- pecting a /wtore breach of neittrality thereto justify a seizure i»i) that ground ; nor that such a seizure as il"«t t-ffi'cied ?otjild hay? beet) warranted as a measure of preven'ion with respect to P^ii- callan Bala. And Mr. Newbold's auihori'y was clearly limit?d to preventioi. : it did not extend to putii>Ument. The eviilenceoif this head therefore must be neglected; and the decision of lli? case will depetid on the qitestioti already diseus-ed, apd iiiuslj oi> the principles already stated, be in favour of th,e Plaintiff. The only remaining question is ro the aniount of damages. The claims made for compensation for the loss of a bpocfii-ia,! cpi^tra^jt and for the probable loss of a coni^iderable deht S'^'^ra, to me quite unsupported by evidence. I cap see no reii-^pn why 'lie plainiifjf should not have executed thai contract, and no piubabjlity i.tiijat tkat debt may not now, as well as cvei', be infiijcrd, T1(h V<""' was ai,u>o^t iuicaeiiiately returned ; liuji 4ja^u)jeii thieiefure will b^ MALACCA 458 ineasiirerl By tlie va'u4 of (he other things taTcen ; and as it waij ajrreed on ilie trial tliiit liie plaimiff, if ih« jtidgiiient was in his favour, shiiuhl receive l»ack ilie thinsiSi taken, according to 'he list prodaced by ihe defeindant,. with tlie exception of ihe Rice, the juduraent of the Court will be for the damages laid in the peti- tion, with ^osts ; thws ; , "But with respect to the Lhw whereby ri^^hts are consliiulfd and efSta'bislled, I niidersland the Governor General to consider thiil it at present is, and ought in sfeneial foi- the present to continue, the lii'fi of En'glaiid; rifodified indeed by consideraiions how far some of its paTtieulsur provisions and enaciments are sniiable to the cir- cumstances of the Colony, and adminisiered in ail eases \>iih large and liberal regard to the manners, usages and religions of ihe differ- ent nations subject to its operatlni, hu' containing no provisions or principles which cannot be bnsed upon that law, sb mollified and construed. It would seem very ditfieulc, for insiance', to refuse to treat a Hindoo son by adoption as a son and consequently a* an heir in the absence of other sons; or to declare the eldest snn of a Mohometan not to be the heir, because bis father had two wives at once,, and h;e was th? son of second marriage." , In the 5th Paragraph of tfieKeport made on the 8ih Febrtiafy 184^, by the Law Goaftailsuii*n*^rs^ on tlie Judicial Establishment of tlio Straits, tbey etpfesstlieircottcui'i'ence in Si* Mdkin'sj \«w*- of MALACCA 463 the spiijt in which tlie hiw of ^^ngland shoijld be admiiiistpred in these SH.itlements; anil I liiive invselt adhered in practice to tlie same |)iinci|)les, tr. quwntly (iirectiiij!; the 2 or 3 widows of a Mahoinedan [n^Hstate to rank as one widow, and tiieir several Children as one {aniily, in the distrihution of the Estate. * In one of llie Peiiiions in ihis case, tliat of 6an Nio, dated 25tli Auausi 1842, Hie case of Alooioo Vallee is ciied to shew that a iiatural d^vughcei' lias b en congidt-red as legitimate for the pui'pose pf iiilieritaiice, I am Out aware of that ca«e ( wliicli I suppose however, is among tiie Malacca Records ), but; I'epeat, fi)r the re£^S')n above stated, Uittt the adopteii son and daughter ai'9, ittmy opinion,, alvne enti- tled to the Asseis. Wm. NOERIS. Malacca, 3rd Mat, 1843. * See Judgnjent in the good^ of L?,o Leong An, ante page 419, where this part pf the judgment is upheld. S, L. Chulas and Kachee v. Kolson binte Seydop Malim. Plea of Coverture by a Mahomedan married woman is no answer to an acr tion on her Bond. Singapore Daily Tinjes, 20th March, 1867. JvDGMENT oy Sir P. B. Max^well, Knt., Becordek. In this case, which »a* iriid before me lately at Malacca,, t)>e qupsiu)n arose wliPiher to an ac ion on a bond, a plea of coverture, by a Maliometan woman, was an answer to the action, and I took time to consider my de^i^ion. Tlie quesiion how far the jjeneral rules of the law of England are applicable to races haviiiff reli<;i'ius and social insiitutions differing from our own, is of occasi mi.l reiurreiicein this Court, and it is Hclilom free from diffimliy. Ii lias Ijcen repeatedly laid do.wn as the dociiine of onr law ili;it i ts rules are iiQt applicable to sucli races, wlieii iniolerable injn'tice and oppie-siDU nould be the con- s' qunnce of ilnir aiipliciiiion. Thus, ill the ciise of the Advocate G^-neral of Bengal V. Ranee Surnomnye Dossee, 2 Moo. Ind. App. 22, it was hehl that ihe law whicli impose-^ the penalty, of forfeiiiire oC property for siiicidi% was inapplicable tn Hiodns. The absurd iur justice of punishing a Mahometan for bi^aniy or polygamy is another and familiar instance of a portion of our law beip,g inapplir qable lo a part "f our populatjoi) and tlier>'for^ not, applied to them;. If the criniinal 1 iw may bi- m^ide lo be".'' 'n thi" uiiMinHr to 1 lie exigencies of natural ju-iicr, the qivil Im™ tnuit be ap least &- fleJfjble, aad wliero our law ia wholly uusuited to tjip conditian of the mlien 463 COURT OF JUDICATUltB races living under it, tlieir own larts or u^age* must be applied to tliem on tlie smie principle* ai(e, being liable for her antenuptial debts and engasiemetus only iiS long as ihe marriage lasts, it appeared to me impn-sible to bold that sucli a state <>f law could be applieil lo a marriage dissoluble at the "ill of tlie husband miihont intolerable injosiice lo ihe wife and lo others. Our law, transmitted to us frnin early times and a rude state of society is, indeeil, so littlf suitahlf to ourselvi's imvir that no woman with properly can, Wiiliont great loUy leave it, on marrying, subject to that law; and setileniMnis are necessarily made to protect lier for- tune from its operation. But if she is sn iniprovidi^iit as to ni'glect this precaution, the contract of marria^ie is al least, indissolnlde (or virtuiilly so) and she acquires that riolit of being m.iint;,ined by her husband during his and lier joint lives. Tlie Malioraftaih woman's contract is wlndly dififerciit; it may he dissohpil at any momnnt by her husband, and her right to mainte oe uoes with it. But on the other hand, her rigl>t of piopprty and her powers of contract are unaflfeeted by the marri:ige; under Mahonieian law she remains in this respect like tm English feme sole. Wo Inive never- ques. tionetl the Jtf.diometaii hu-sbaiid's ri.;ht to exereise that power of .repudiation whic'li is one of the incidents of the Mihoiiietaii mar- riage; why should we question any of the oilier incidents nf ihat commcl t why should the right of ihe III) b;inainly would be oppressive and unjust lo give o the husband all the rights both of a Mahometan and of a Clirisiian and «i the same * Vide ante page 863, MALACCA 464 time to tiike from tho wife lier riglits as a Malioinetan and im- pose on her the torfeiUire and incapacity which full by our law on Christian Women. If the Mahometan law were to prevail as regards tfie husband's right of repudiation, but the Englisii law were to prevail in all thiit regards tlie property -and status of the wife, it would follow that every Maiiometan husband would have it in his power, not only to cast off under his own law, his wife wlienever he pleased, but by foice of the Christian law to send her into the world stripped of all her personal property and of her real property too, for the rest of his life, if she had the niisforlune to bear him a child; absolving himself by the same act from the obligation of paying her antenupfual creditors with her money. Whether the mischievous consequences of thus attaching to one contract the incidents of another might not be adequately averted by the means by which many hardships of the common law have been at various times averted at hoine, viz :, by creating an im- plied trust or an implied contract, is a question which I have not omitted to consider ; but it seems tome that to meet the evil in this way would be to deny that general rule wliicli I mentioned at the beginning as a recogtiizsd part of our law which makes the common law so flexible and so adaptable to the various I'aces sujt- ject to it; and tiie conclusion to wnich I have come is that at cura- mon law, and without any recourse to equity or to equitable doc- trines, the rules which vest in the English hasband various rights in his wife's property do not apply to a Mahometan marriage,' but that her property continues vested in herself in the same way as if the Maiiometan were the law of the land. The question now before me is whether a Mahometan married woman is under any disability to bind herself by a bond. Here again, if the question were brought within the operation of the principles of Court of Equity, the woman would be liable as far as her separate pn-perty extended to the payment of this bond, and to the performance of her general engagements ; Hulme vs. Te- nant, 1 Bro. C. C. 16, Murray vs. Barlee, 3 M. and K. 223. But I see no necessity for resorting to equity. It seems to me that the question of her capacity or incapacity to contract must be de-. termined, and for the saine reasons, like that of her rights to property, by the law which governs her contract of marriage, viz ; , the Mahometan law ; and foi- these purposes the Mahometan sub- jects of the Queen here must be considered as governed by the law of their religion in the same manner as the rights and capaci- ties of a foreign husband aud wife are governed by the law of their Matrimonial domicile. A foreign woman could not setup. 4<>5 COURT OF JUDICATURE any more than an infant, Iter disability to contract unless the luw of her own country iiicapacitat«d her from contracting, Male vs. Robeits, 3 Eap. 163; and if, as is the case, the Maiiometan law- does not impose on her that disability, her plea of coverture i« no answer to ilie action. Indeed, it is not necessary in sup])ort of tiiis view to seek for analogies in case-s to which foreign law is applied on principles of comity. We hare at home exceptions recon;niz"d by the common law to the married woman's general incapacity to contract. Thus by custom, in the City of London, when she carries on « trade there on her own account, she is competent to bind her.-elf by con- tracts ill that trade; and if site is iiiijileaded in the City, she pleads as a feme sole, and if coitde'mued, is committed to prison till she makes satisfactiott, and the husband and his goods are not cliargea- ble; Lavie and another vs. Jane Cox, 3 Burr. 1776. Tlie wife of an alien enemy or of a transported convict is equally competent. I see therefore, no anomaly in holding that a Maliometati married woman is left unaffected by English law as to her capacity to con- tract as well as in respect of her riji;hts of property, and that site is, like the Londoit married woman subject to iter own custom or law, and liable to be sued on her contracts. The iitcapacity to contract which affects a married woman at common law is founded on the fiction that she and her hnshand are one .person ; but I ^ink that fiction may well be confined to that kind of marriage for which it was intended, the Christian and indissoluble marriage, lo extetid it to the Mahometan marriage would be to apply it to someilting different, and to establish but a weak foundation for a law absurd- ly unjust and intolerably oppressive. I am therefore of opinion that tills plea is ito answer to the action. Tills decision is not inconsistent with holding, as I have held, that for the purpose of conveyance of land, the deed of a Mahome- tan, as well as of a Christian woman, is not operative unless ac- knowledged as required by the Indian Act of 1855, corresponding to the fines and recoveries abolition Act ; for it is a fundamental principle of the common law that for all that relates to the forms and solemnities of conveyances, and even of executory contracts relating to land, tiie /ea; ?oc« rejr*^ aciM»i; Story Conf. L. ss. 363, 435. * Nor, for similar reasons, is it inconsistent with the de- cision by which it was established that the English Statute of Dis- tributions applies to all persons of whatever religion or race. Nor does it, seem inconsistent with the application of our own rules * See Gader Meydin t. Shatomdh, page 260 ; also see to cases noted at the tnd of case on p, 383. MALA(;CA 4C6 in questions of giiuidiaiisbip. But even it it were otiierwise, it must be liorne in mind that in appljring foreign law to particular cases, Couris niml be governed more by considerations of public policy and convenience tlian of strict logical consiatency, and it is not therefore necessary to pursue this part of the subject fur- ther. For the reasons stated, I am of opinion, that the plea of co- Yerture in this aciion is no answer lo it, and tiiat there must be judgment for the plaintiff. Supreme Court. March 17th, 1870. BEFORE SIR P. BENSON MAXWELL, C. J. Sahrip v. Mitchell and another. The word " preseription " in the 12ih Section of Act XVI of 1839, means lo- cal custom,, usage or law. SEMBLS. — The prescription or custom therein mentioned is not only rea- sonable, Imt very well suited to any cowntry like this where the population is thin cmd the uncleared land is superabundant cmd of no value. SBMBLE.^The introd/uction of English law into the Settlement by the Charter no more supersedes such custom, than it supersedes custom in England. QUERY. — Is the Lieut. Governor a "Collector" within the meaning of the Act? QUERY. — Is it necessary for a notice under the 3rd Section, to state that umless fh& persons in occupation of thela/nd " engage for, or remove from" it, within d month from the date of such notice, they will be ejected ? The Chief Justice. — This is an action of trespass. The peti- tion contains two counts, one for expelling the plaintiff from iiis land and preventing him from reaping the growing crop : the se- cond, for breaking and entering into his duelling house and ex- pelling him from it, whereby he was prevented from currying on liis business, and was compelled to procure another dwelling. The first three pleas deny the trespass and the possession. The fourth alleges that the plaintiff, not being a cultivator or resideM tenant holding by prescription, was by a duly served notice informed that the land in question had been assessed by Government from the first of January 1870, at 97 cents per annum, and was therein also called upon by the Collector to take out a proper title for ihe land, within a month from the date of the service of the notice, and that in default he would be ejected : The plea than avers that the plaintiff would neither comply with the terms of the notice nor remove from the land within a month ; and that the defendants , by the order of the Collector, and in the exercise of the powers given to "him by Act XVI of 1839, assisted him in ejecting the plaintiff, which are the trespasses, &c. 467 Htil'Bi:MH (Uiuisl TliP Aol >(i(onH(l 1(1 MiilliorixoR lli» (-ullortor, by SHotioii 8< to •jt«ot |ioi'H(inii ill oooiiimlion of Innd (lUiciwino ili(vn umloi' n ^rftnl or title (loni (JovdiiMiKiiit, if tlioy mfu'^ii to " «njj(i(j« Cor cr lo rn. move from'' it wiiiiin n inonlli lioin tlio ilain on wliioh tl)«y tti'0 01)11(4(1 u|i(>n l)y liiin to entnr into n\w\\ eriKii|4i>iii«iii Iho lii«t, SiKiiioii (if iho A''t «xo(»ptH (nuii it* provinioni " mioli OiiWiviitor* 1111(1 roNiildiiti toniiiitM of Mivliicisiv n*< iiold their IivikIn liy pre»cri|>iiiiii, ';iiliJ(M5t only to a pnyiiiful of (nic-tentli |iiirt of llie |in>(liic(« tlisrouf, whellior aiioli |>iiyiii«iit 1)u initiiit in kind " or in inonoy, The trospiias wns cidavly provod ; indcod, it wii» in nnl)Mtiiii(!0 ndniiltod. It wii'< {>riiV(^d or ndinilfcd tliiit ii noti(Hi in tim ((n'lnn ntiited in the i'l'iu'th |)l(>ii, iii^'.'X'd l>y llio Licni. Oovornur, hitd Ixii^n H(trvHd on tlio |ni(t(n''(( ordorK tli(4 dofonduiit. Mitohell, n (d(U'k (d tlio Land Olliod, lu^ooin- |)aTii('d liy aiioliior ciiMk of tlioRHnio Offlcf, went in oompftliy with tlio (ithor didVndiiiit, Indin, whoiK n [i(ilio(f duffivdftr, tlirtoA otlior p()li(U!in(Ui, and nil lOiiropofvii Inspoolor, to llio lioiiHH o( llio pliiin- liff lit about II ii. m on t.lio liHtli Ddcdniticr. 'I ho p(dioem«n wwro nrjnod tvitli Mwonln, and oik^ of the I'^nropfliiiin vvilli ft doulilo bur- ridliid |.'uti. Tho plninlilT wiii aliiont ; bnl, ibnj lurnnd hit wifH iind fmtiily ont of llio iioiuio, iind tint (iirnitiira wu* rHiiiovod from it by tlioir orilfMH. 'I'liii gnnlcn iind piuldy Innd worn idHO tftksn posaension (d'; ilu^y wftra iiftorwitrdx oold by Mitoliidl ; nnd \\\9 plftintiir wiiM kofit out o( pOHSCMBicMi down lo tlio proncnt tium. Tlifl jiliiimiff's wil'o iiiiido Honio iiiipiiliition«, in the (jonrMO of hor ovi- doiioc, on llio (Miiiducl of diifttiidiinlH itnil Hioir coinindoM, in Hg((rHV- aliiiii of tlio tr«fipaiB, to llin ofeol ihiit her box had bdcm hrok(in opMi and Honin money tiikcn from it, and ili,il, noihii of lier fiirni- tnro had h(!(Mi br(dl)<.«ii'c(l, to laiiil, but only t" itip.oryoiotA fj«r»!- flit;itnf!(it«, niich ai ri(licfttion lo fiihivfttorHof Innd. W-biul no Ht.nhito of f.iniitiitinrM4 in tlito cmjntrjr, relatinj; to land, until iH.Oy, and if " jnoHfription'' vr«r« to b« Ullder«t"od aM r<;forrintc lo « tide lo land acquired by lonj^ occnpiilion, (be section in (jnMotion would find little or no applicil- I ion here, l»f!f!iUi«H tlifl title acrpiinvl by tli« cnlt.ivntorfi and kf-nantn iti MttlaCfft dotion, long u«iige give** title to an individual; in the caio of nnntoui, long usage e«tabli«hos the ouitom, and it i« the rnntoin, boconies law, which gives title to a class of pemons in a locality, and gives it to them at once. The two things are OHitentialiy different, but thoroisasuffi' cient siffiilaritj or analogy boiwoon tliHm, — uRugo being an element common to both,— to account for thnir hoin^' occasionally confound- ed ; and I think it plain, from tint hmtory of the land tenure of Malacca that it was in the senwo of "custom" that the lerin "pro- fcription'' was used in the Act of 1 830. Tt is well known that by the old Malay law or custom of Malacca, while the Sovereign was the owner of the soil, every man had nevertiielois the right to dear and occupy all forest and waste laud, subject to the paymoiit, to the Sovereign, of one-tenth of tlie produce of the land mo taken. The trees which be planted, the iiouses which he built, and the remaining nine-tentlii of tiie pro- 469 SUPREME COURT duce, were his property, which he could sell, or mortgage, or hand down to his children. If he abandoned tlie piiddy land or fruit trees for three years, or his ganibier or pepper plantations for a year, his rights ceased, and all reverted to the Sovereign. If, with- out deserting the land, he left it uncultivated longer than was usual or necessary, he was liable to ejectment. See Mr. NewhOld't Work on the Straits of Malacca vol. 1. p. 160. It is clear that riglifs thus acquired aie not prescriptive, in the technical sense of the term, but customary. They are acquired as soon as the land is occupied and reclaimed, and the title requires no lapse of time to perfect it. It was contended by tho Solicitor-General that such a custom was unreasonable and therefore invalid; but if such an objection could now be raised after its long recognition, as I shall presently show, I should not hesitate to hold tiiat the custom was not only reasonable, but very well suited to any country like this, where the population is thin and the uncleared land is superabundant and of no value. It must be "for tlie adrantHge of the State to attract settlers to lands which are worthless as forest and swamp, and thus to increase at once the population and wealth of the country. A similar custom or law prevails in Sumatra, Martden's Sumatra, 224; in Java, every Javanese has the right to occupy uncleared land, paying for it by giving the State his person Jtl labour on road-making or similar public work, one day in five, or now, un- der the Dutch, one day in seven; and though it mighti seem un- reasonable in England that one person should acquire an indefeasi- ble title to occupy the land of another by felliTig his forest and ploughing the land, I think that in the circumstances of these countries, it is neither unreasonable nor impolitic for the Sovereign power to offer such terms to persons willing to reclaim and culti- vate its waste lands. But it is too late to question its reasonable- ness, after a long and continuous recognition amounting virtually to an offer of forest land to all who chose to clear it, on the terms of the custom. Tlie Portuguese, while they iield Malacca, and, after them, the Dutch, left the Malay custom or lex nan tcripta in force. That it was in force when this Settlement was ceded to the Crown appears to be beyond dispute, and that the cession left the law unaltered is equally plain on general principles, Campbell v. Hall, Cowp 204,209. It was held in this Court, by Sir John Claridge, in 1829, to be then in full force ; and although it was decided by Sir B. Malkin in 1834, in conformity with what had been held in India, that the law of England had beei^ introduced into the Settlement MALACCA , 470 by the Charter, whicli created the Supreme Court, it seems to ine clear that the law so introduced would no more supei-sede ihe cus- tom in qiieslion, than ii supersedes lucal customs in Ent^land. Further, the custom lias always been recogni-;e(l by tlie Govern- ment ; down 10 the present time, tenths are collected, lioth in kind and in money, from the holders of l.vnd acquired under the custom, and fi'om 1838 to 1853 commutations of tenths into money pay- ments were frequently made by deeds between the East India Company and the tenants, in which it was recited that the Com- jtany '" possessed the light of taking for the nse of the Govei'UMient one-tenth of the produce of all lands in ihe Settlement of Malacca." The Malacca Land Act of 1861 plainly refers to and recognizes the same customary tenure, when it" declares" that " all culiivatois and resident tenants of lands,'' (ihe sovereign or quasi manorial rights of which had been granted away by the Dutch Government,) " who hold their title hy pritcription, are, and shall be subject to the payment of one-tenth of the produce thereof to the Govern- ment," either in kind or in money fixed in commutation. That the 12th Section of the Act of 1839 would be justly ap- plicable to these customary tenants can admit of little doubt, when it is considered that that Act made all persons, in general terms, holding lands in these Settlements otherwise than under Govern- ment Grants, liable to assessment " in such manner, at such rate, and under such conditions'' as the Collector, under instructions from Government, chose to impose ; and authorized the Collector to eject all those who declined to "engage for" (that i«, I sup- pose, to accept the terms of the Government,) " or remove from the land'' in their occupation. These provisions, suitable enough to a new Settlement like Singapore, where neither custom nor even prescription had had time to spiing up, could not, without manifest injustice, have been applied to persons in Malacca who had already a good title to their laud by the law or custom of the place : it was to be expected that provision should be made for excepting such a numerous and important class of persons from their operation, and it seems to me that provision was made for that purpose by the 12th Section, the Legislature using the word " prescription,'' not in its technical meaning in which it would be insensible having regard to the circumstances of the Settle- ment, but in the sense of local custom, usage or law, with which it is readily confounded. If this be so, it is plain that the plain tiflf was not liable to eject- ment by the Collector for declining "to take out a proper title" for the land in his occupation, under the Act of 1839. It was fortst 471 SUPREME MVRT and uncultivMtPc] laml uhfin lie cle!ire opportnnity -of cro»s-exan)ining them. Mr. Justice E. Jackson. — I ajiree with Mr Justice Glover that this conviction cannot stand. The evidence does not in anyway allude to the negligence of wliich the Magistrate has found the accused guilty ; and that evidence appears to have been taken be- hind the accused's back. The fine, if realized, must be returned to the accused. 473 CRI3IINAL RULINGS. 2 W. B,,, Cr. R, p. 57. The Ist April 1865. I Present : The Hon'ble E. Jackson and F, A. Glover, Judges. Commitment (Annulment of) — Compeomise. Queen versus Salin Sheik. Referred under Section 335 ActXXV of 1861. A Commitment once made by a Magistrate to the Sessions cannot be annul- led by his allowing the prosecutor to file a compromise. Mr. Justice Jackson. — The Coiitonment Miigistrate ce^'uis lo Itave coiisideiGfl it necessary to draw out a charge iigainst the pri- soners before he examined, and he does not deem to have been aware when he topk their answer^* i>n tliecliarge Uiat he whs tlicreby coni- iiiiliing them to the Sessions. However ihis inay lie, tlie Canton- ment Magisfrate, after he iiad commiited ilie ])rii=oner for trial un- der Section 226 of.the Procedure Code, hail no authority to quasli the commitment. His order accepiing a nizeeiiamah, and safee- n.-imah is withoui jurisdiciion, and coiisequentlv void. Tlie Ses-iinns Judge should Hx a day for the trial of tlie prisoners before him, and direct the Magi-tiate to have all the panics in attendance on tlie dale fixed by him. As regards the persons agjiin.st whom the Se.«- 8ion.s Jdilge tliinks proceedings ought to be taken, he can apply the pioviriioiis of Section 435 of the Procedure Code. Mr. Justice Glover. — There can be no doubt that a committnent once made by a Magistrate to the Sessions cannot be annulled by the former allowing tlie prosecutor to file a compromitie. Such case moreover must go to trial when once commiticd, however incom- plete the original investigation may have been. But, if this investigation be found to be incomplete, the Sessions Judge has the reintdy in his own hands, and can summon, and examine any witnesses he thinks proper under Section 367 of the Criminal Procedure Code. There appears to be, iherefoi-e, no nece.ssity for quashing the Joint Magistrate's commitment, as his investigation, thougli it may have been unsatisfactory, has certainly not been illegal. The reason given by the Joint Magistrate for- accepting the ra- zeenamah is untenable. Basiruddeen having once on oath charged the accused parties with a crime cognizable by the Court of Sessions must be bound over to prosecute. He cannot now withdraw his charge except at the expense of his recogniuances. For the rest, I concur with Mr. Justice Jackson. PENAL CODE. 474 2. W. R., Cr. K.., p. 57. The 3ed April, 1867. Present. The Hon'ble E, Jackson and F. A. Glover, Judges. Amends — Thept. Queen versus Gogun Sein and others. Reference under Section 434 Act XXV of 1861. Amends cannot be awarded for a false charge of theft. It has been fVequenfly ruled by this Court that "amends'" can only be awarded in respect of cases coming' unroi«Pciit()r as oonipensiitioii for the offence of cheating. The Sessions Judge of Dacca on appeal confirmed the senlence. On petition to this Court, I directed the Sf8«ions Judge to sub- mit tlie record of the cnse in order that I mifiht satisfy myself of the legality of tiie conviction ^Section 404 Code of Criminal Pro- cedure.) In the meantime I directed liie prisoner to be admitted to bail. The pleader for the petitiimer contends. — \sf. — That the circumstances as detailed in the evidence, do not disclose a Criminal offence. 2ndly — Th:it tliere is no evidence of dishonest intention. I find on reading the evidence that the petitioner and others held a joint-decree against the prosecutor for Rupees 194-10. Execution was «ued out, the property of the prosecutor attached, and its sale was imminent, when prosecutor is said to have entered into an amicable arrangement with the petitioner, agreeing to pay 154 Rupees, provided a petiiion was filed in Court, and the sale was stayed. The petitioner did not fulfil his promise. The Bi)Ie took place, and a portion of the property was purchased by the petitioner's vakeel. I hold that tliis is a simple breach of con- tract for which the prosecutor, if so advised, has his Civil remedy in a suit for damages. The prosecutor may have been led to ex- pect that the petitioner would take measures to withdraw the exe- cution process, and to stay the sale; but there is no evidence what- ever that, at the time the petitioner agreed to settle matters for Rupees 154, it was then his intention not to do what he led the prosecutor to expect that he would do. The main element which constitutes the oflFence of cheating, jg^ therefore, wanting, mz., there was no intention then present to deceive and thereby to indues the prosecutor to make conditional arrangements for an amicable adjustment of the decree. I would quash the conviction of the prisoner, and direct the release of the prisoner. The papers must be submitted to my colleague Mr. Justice Seton-Karr. I also observe that the »ward of compensation to the prosecutor was illegal, the offence not coming under Chapter XV of the Code of Procedure. Seton-Karr, J. — This case can only be 16ok«d at by us under Section 404 of the Criminal Procedure Code. I hold, and have always held, that we cannot go into or criticise the evidence, and that any such attempt on our part would be highly prejudicial to 485 CRIMINAL RUMNGS. tlip inferests of juadce. The case i«i one in whieli the decision of a Magistrate has alrpady been confirmed, in regular appeal, by a Sessions Judge. All we can do is to consider if there has been error in a ^oint of Law. I am well aware that tite dislinction between Criminal and Civil liability is occasionally somewhat narrow, and that it i^ very ne- ceosary to take care that the Lower Courts do not confound differ, ent transactionn, or make individuals liable to conviction and pun- ishment, who oughc properly to be only liable for a suit for breach O'f contraft. But in the present case I hold that there was quite sufficient, OH the evidence, to justify the Court in drawing the inferences of cl^eating, which they did draw, and in convicting the appellant urfder Section 417 of the Penal Code. The decisions, es- pecially that of the Deputy Magietrate, are very clear and eInborate, and they show clearly that the appellant did receive the sum of 154 Rupees, which he has stoutly detiied ever having received ; and that he did at length write a letter to his pleadei;, which also he, on trial, has denied ever having written. It is also clear that the property of the complainant was sold, and l;hat he got nothing as an equivalent for the sum of 154 Bupees which lie ■had paid over to the appellant. Besides, this distinction between the Criminal and the Civil Law was never pleaded in either of the Lower Cou«s, in which the appellant simply denied the receipt of any money from the complainant. From these circumstances, i. e., proof of payment, and Iheide- fendant's resolute denial of any such payment, and from the other facts, I think the Courts were quite at liberty to draw the conclu- sion that " the defendant at the time of receiving the money had noTer any intention of stopping the sale of the land." The Courts, in consequence, rightly convicted the appellant of cheating under Sections 415 and 417. The defendant, to my thinking, did, " by deceiving, fraudu- lently and dishonestly induce the complainant'' to deliver to hiiu property, (i. e., 154 Rupees) which he would not otherwise have delivered. The Illustrations appended to the Section quoted (415) appear to me to fit thig ease very well. Seeing, then, no illegality in the conclusions drawn from the evidence, I would allow the conviction to stand. The case must go to a third Judge. Loch, J.^— I agree with Mr. Justice Kemp in thinking that this is a case of breiich of contract and not of cheating, and that the pri.s6ner Sodoo Churn should be teleased. On the 23rd Magh 1271, he^agreed to compromise a debt, under a decree in tli& name FENAI, roDE. 486 of his two brothers, wiih the complainaot in this case, promising not to aell the debtor's property on payment of 154 Rnpecs. Tiie money was piiiin(^ death. The adef- meiit held to be proved, was the prisoner's onii.si^ioii to g'ive in- formation of the offence — information which I he Jury wt-re toM lie was legiilly bouiic\ to have given. We think that the Jury were misdirected in tliis point, and that the conviction is therefore bwd. The prisoner was arraigned on several cliarges, on all of which, except the one of abetment, he was acquitted, and the only evidence of the abetment was the man's cunfession to the Magistrate, in which he siated that lie saw two persons whom he named hold the boy Umes under water and drown him. This admi.ssion might under certain eircnmstanoes have made the accus^ed guiljty of abetting a murder, bii! there is nothing in the law which makes it criminal in a person in tlie prisoner's posi- tion to omit to give information (hat a theft with violence hiis been conimitied ; a mure omission to give information can only amount to abetment under Section 107 of the l^enal Code, when the person who neglects to give the information is one boutid by law to give if. For instatice, a Policeman or a Chowkidar wotdd come under this Section, if they saw an offence committed and gave no information, so wouhl a Zemindar in certain particiriar cases, but a private individual is only morally boutrd, and if he oniiis to do what he ought' to do, he may suffer in conscience or character, but the law will not touch him. The priiioner in this case was not one of those persons whom the law compels to give inforinadoii, and we think therefore' that the Jury were wrongly directed to find him guilty of abetment by illegal omission on the strength of the confession made by him to tiie Magistrate. Ashe has been acquitted by the Jury on all the other counts of the indictment, we think that he must be inamediately dis- cliarged. Loch, J. — In this case the Sessions Judge, looking at a note appended to Exjilanation 2, of Section 107, in Morgan's Edition of the Penal Code, held that the prisoner was guilty of abetment as he had failed to give information of the theft which he had seen committed, and he charged the Jury to find a verdict of guilty if they believed the prisoner's statements. 'I'lie Jury did accordingly find the prisoner guilty of abetment on the 4th head of the charge; but after the verdict was given, the Sessions Judge considered this part of his direction to the Jury to be incorrect, ns the con- cealment, being subsequent to tlie commission of the offe^nce, could not be regarded as an abetiueut of the offence. But, coueidering PENAL CODE. 490 tlvat tlie piisotier liad comniitteil an offence punishable under Sec- tion 202 of the Indian Penal Code, he Sentenced him to six months' impri-ionmerit:. It appears to me that the prisoner lias been pre- judiced by what was a misdirection on the part of the Judjre to the Jury. He stated tiie law to the Jury ; and on his statement they found the prisoner guilty of abetment. He subsequently found his statement of the law to be incorrect, and the prisoner has been sentenced to punishment for an offence with wliich be WHS not charged. A further que.vhose favour a judgment is pronounced by this Court, is guilty of a gross breach of duty, and a contempt of this Court. Ii matters not whetiier the sura received is large or small ; whether it is for services performed or to be performed, or wholly inespective of any cervices rendered by the officer. It ■matters not whether tlie present is given in consequence of ti judg- ment pronounced by the Judge upon whom it is the peculiar duty of the officer to attend, or to which such Judge was a party, or in consequence of a judgment pronounced by any other of the Judges of I he Court. It matters not ^.hether it is before judg- ment or after judgment. The mere fact of asking for, or receiv- ing, under any circumstances whatever, any present, reward, or gratuity, in consequence of any judgment or proceeding of any kind in this Court or in any way connected therewith, is punish- able as a contempt of this Court. The offence is not confined to those who ask or receive; but it extends equally to those who offer or give. A fruitless request is at great an offence as an actual acceptance, and an offer which is refused is punishable in the same manner as if the present or re- ward wer« accepted. FENAL COIIE, 496 In Martin's case, in wtiicii a p^r-ion wrote a letter to tlie Lord Chiincelliir stating iliat he had btea thrjutened with a bill in Chancery and enclosing a Note for £ 20, of wiiicli he begged the Chancellor's acceptance, the offender w's jmiiished for a con- tempt of Court. To offer money to an officer of the Court, though, perhaps, not so yrave an offence ai^ that of offering it to a Juiigp, is beyond all doubt a serious conten)j)t of the Court to which that officer is attached. A suitor who seeks for justice i^ not, as Sjon as he succeeds, to be haiMs.«e,d wnd annoyed by tlieae requests for j)resents on the part of tlie officers of the Court. I am determined, us far as lies in my power, to put an end to all practices of this kind in this Coitrt, either on the part of the oflBcers, or of the parties or their mook- tears. Every suitor, therefore, may be certain that, any charsi^ made upon him for presents to any officer of this Court is wholly unwarranted, and that the party making the charge is liable to severe punishment at the hands of the Court. As this is the first case in whicli any officer has been brought before the Court for puiiisliment, I think a very lenient sentence will suffice. I by no means wish it to be understood that the Court will consider such a punishment adequate if, on any future occasion, an officer or other person be brought before the Court for an offence of a similar nature. You are liable to fine or imprisonment or to both. We have considered anxiously what puni.'jhment should be awarded. You are poor men, and I do not wish lo deprive you or your families of any part of your wages, and therefore I shall not punish you by fine or add fine to imprisonment. You, Abdool, have been etnployed as a public officer f(n' a much longer time than Mah(nb. I therefore order that yc u be impri-oned in simple imprisoMment in the Presidency Jail of Calcutta for the term of 14 days inclusive of iliis day. You, Mahtab, having, as I understand, been employed as an officer of this Court for a period of 8 months only, I order liiat you be imprisoned in simple imprisonment in the same Jail for a period of 10 days inclusive of this day. You are bolh dismissed, and your names will be registered in or- der tiiat you may never be again employed as officers of this Court. I trust that this sentence will operate as a warning to others. 497 TKIMIXAL RULINGS. aw. R, Cr. R, p 35. The 8th July, 1867. Present. The Hon'ble F. B. Kemp and F. A. Glover, Judges. Kidnapping— Dishonestly taking property from person of Kidnapped child. Queen versus Shama Sheikh. Committed hy the Magistrate, and tried hy the Sessions Judge, of Moorshedabad, on 0, charge of kidnapping-, 8fc. The offence described in Section 363 of the Penal Code is included in that described in Section 369, the kidnapping and the intention of dishonestly taking property from the kidnapped child being included in the latter, Section. Kemp, J. — Tlie prisoner lias Veen convicted of kidiia|i|niig un- der Section 363, and of kiduiipping wiih tlie iiitfiniion of taking dishonesily moveable property from the person of the kidnapped cliild, under Section 369. Separate sentences liave been passed under eacl> Section. The trial w.is with a Jury. The charge to the Jury soems to be a very proper one ; but we think tliat tlie offence de.icribeil in Section 363 is included in that described in Section 369, ilie kid- napping and the intention of dishonestly taking property from the person of the child being included in ilie latter Section. The conviction and sentence under Seciion 363 is quashed. 8W. R.,Cr. R., p. 67. The 3rd September, 1867. Present. The Hon'ble L. S. Jackson and C. P, Hobhouse, Judges. False charge— Sections 182 and 211 Penal Code. Criminal Revisional Jurisdiction. Raffee Mahomed versus Abbas Khan. Sections 182 and 211 of the Penal Code distinguished. The latter held to apply to a case of false charge in which the accused in the present case had appeared before the Police and charged the now complainant with having caused the death of the accused's child by poisoning. Hobhouse, J. — Tlie case referred to ns is tliis : — The accused in this instance appeared before the Police and charged the com- plainant with having caused tiie death of his (the accused's) child by poisoning. The Magistrate considered this was a false charge made with intent to injiire corapUiinant and with the knowledge that tliere was no foundation for ii ; and he found the accused guilty of an offence under Section 182, and sentenced him to six mowllis im- lirisonmeiit, PEN\I, CODE. ■ 498 The Jiulo:e considers that thfi offence comes under the terms of Seciion 211 last purl — an offence friable nnly by tlie Court of Session* — and recommends ihat the order of the Magistrate be set aside, in order that the aceu'sed be committed to, and tried by, the Sessions drnrt for an off«nce nndf>r Section 211. We concur wiih the Judge that tlie order of the Magistrate is illegal, and must be set aside. Seciion 182 clearly refers to informations of which that given in illustration b. is an instance. Section 211, on the other hand, as clearly refers to the exact case before uj, — to the cas« of a person who, wiih intent to cause injury to another person, institutes a Criminal proceeding against that person on a filse charge of hh offence punishable with death, knowing that tliere is no just or lawful ground for such proceeding. Such an offence !■« cognizable by the Court of Sessions alone, and not by the Magistrate; and we direct, therefore, that the or- 'der of the Magistrate be set aside. This order bring thus set aside, the Judge can exercise his own discretion under Section 435, Code of Criminal Procedure. ©"W. K.,Cr. ZC,p. 1. . The 1st December 1867. Present. The Hon'ble F. B. Kemp and Dwarkanath Mitter. Judges. Criminal Trespass— Section 441 Penal Code. Beference under Section 434 Code of Criminal Procedwre from the Sessions Judge of 24 Pergmmahs in the case of Kalinauth Nag Chowdry. In order to convict of criminal trespass under Section 441 of the Penal Code it must be proved that the property was in the possession of the prosecutor (xnd that the entry was made with intent to "commit an offence or to intimi- date, insult, or annoy any person in possession of the property." Mitter, J. — This case has been before us under the provisions of Section 434 of the Criminal Procedure Code : The prisoner has been sentenced to a fine of 50 Rupees by the Deputy Magistrate of Busseerhaut on a chnrge of criminal trespass. On looking to Section 441, we find that it is necessary to prove two things before a charge of criminal trespass can be sustained. The property must be proved to have been in the possession of the prosecutor, and there must be evidence to show that the entry was made with intent to "commit an offence, or to intimidate, insult, or annoy any person in the possession of property.'' In the present case, there ia no evidence to prove either of these two facts, The result ot the 499 CRIMINAL ETJLINGS. local investigation made by tlie Deputy Miigistrate, evpii if it «ere admissible in evidence against llie prii^onc-r, does not sliow iliiit the projiecutor was in possession of tlie land, nor is lliere any legal evidence to prove that the entry was made wiili a criminal intent. We do not see how the erection of u fence within the liollow of a drain, could iiave intimidated, insulted, or annoyed the pro-ecufor. At any rate, there is notliing to sliow that the prisoner Imd aeled otherwise than bona fide\\\ helieving tliat the drain apj/eriained to the land purchased by himself. We reviT-e rhe sentence passed by I lie Deputy M;igistraie, and direct the refund of the 50 Rupees fine which has been imposed upon the prisoner. . 11 W. K..,,Cr. B.!, p. 2. The 12th January, 1869. Present. , The Hon'ble L. S. Japkson, and W. Markby, Judges. False charge— Police Officer— Section 211 Penal Code. Criminal Revisional Jurisdiction. Nabodeep Chunder Sirkar, Petitioner. ^Mr. R. T. Allan for Petitioner. Section 211 of the Penal Code applies not only to a private individual but also to a Police Officer who brings a false charge of an offence with intent to injure. Jackson, J — It seems to me that there is no ground for inter- fering with the proceedings of the Courtis below. The petitioner is charged with an offence under Section 211 of the Itidian Penal Code ; and after hearing the papers that have been read to us, I think it is impossible to say that there was no evidence, and it was upon that evidence that the Magistrate, and Judge who heard the appeal, clearly found that the petitioner committed the act with which he is charged. Mr. Allan contends that the Section is one that applies only to private individuals, and that a Pt>lice Officer affecting to act in execution of his office cannot be brought within the purview of the Section. It appears to roe, howpver, that a Police Officer who maliciously commences criminal proi-eedings against any person, or charges such person with an offence, or causes him to be charged falsely, not only commits the offence under Section 211, but commits it in a very aggravated form. I think therefore that the'petition must be rejected. Markby, J. — I am of the same opinion. TENAL CODE. 500 11 W S,, Cr. S, ,p 11 The 17th Febkuary, 1809. Present. The Hon'ble L. S. Jackson and W Markby, Judges. Procedure— Land dispute— Title to land^Criminal tres- pass—Section 441, Penal Code. Reference to the High Court under Section 434 of the Code of Criminal Procedure, hy the Sessions Judge of Bhaugulpore. The Queen verstis Surwan Singh and others. Held by Jackson, J., (setting aside the"order of the Magistrate, Markby, J., dissenting,) that a Magistrate ought not to decline to go into a case of criniinal trespass under Section 441 of the Penal Code, because the complainant did not make out his title to the land : — the offence may be committed in pe- spect of property in a person's possession, even though such possession may, not have originated in right. Jackson, J. — In ihis case I think it clear that the IVl agistrate vas wrong in (lecliiiing lo go inio ihe complaint because the pro- secutor did not first make out his title lo ihe land. The facts allefred were sui'h as, if proved against the accused, might support charges of.uiilawfui assembly, assault and iriminal treRpass. The offence of crininal tre^pas^ is committed if a person enters into or upon property in the possession of another with intent to com- mit an offence or to intin)idate, ins^ulr, or annoy any person in possession, lac. I think it is not necessary tliat the complainant should prove his right to the properly, but that the offence may be committed in respect of property in his possession even though such posses- sion may not have originated in right. The evidence in this case went to sliow that the prosecutor had been for a year or thereabouts in possession and had sown and cultivated tlie crop on the ground. I am therefore of opinion that the Mngisfrate ought to have taken cognizance of the case, and if he believed the witnesses for the prosecution ought to have called on the accused for their defence. The question remains vfliether this is a case in which we ought to interfere for tiie purpose of correcting the error. It seems to me that ne ought to do so, for disputes relating to land are noto- riously the most futile source of crime in Behar, and the public peace wrould be seriously affected if it were-supposed that offences such as are charged i" this case might be committed with impuni- ty unless the complainant was prepared to make out his title to 501 CKTMINAL hUTJNOS. ilie properly in respect of wliieli ihe oiFence of criminal trespass had been coramitterl, and of course the Magistrate's argument does not even touch the other two offences wliich I luive mentioned as * cliargeable in ihe circumstances of this case. I therefore think that the order of the Magistrate ought to be set aside, and he should be directed to proceed with the case according to law. Markby, J. — In this case I am not prepared to say that tlie Ma- gistrate was wrong in law in refusing to put the accused 4ipon their trial in a criminal charge, and unless his decision be contra-* ry to Jaw, we have no power to interfere under Section 434, wliich is the provision under whioii this case comes before us. On reading the depositions taken by the Majjistrate, I find evi- dence which might have supported a commitment upon a charge that the accused were members of an unlawful assembly, and there is perliaps some slis'ht evidence of an assault, but I have no rea- son to suppose that tiie Magistiate overlooked that evidence. With regard to the offence of criminal trespas'', I think the Magistrate was right, in the view which he took of tlie evidence, to abstain from committing the accused on that cliarjre. I have already held, sifting with Mr. Justice Kemp, that, "if one person " forcibly enters upon property in the possession of another, and " there does an act with intent to annoy " fvve ought to have said intimidate, insult, or annoy) " the person in possession, he is guil- "tyof the offence specified in Section 441 without , reference to " the question in wh om the title to ihe land may ultimately be " found." — (1, Weekly Eeporter, Criminal, 2.) To that opinion I adhere, although 1 am aware that it involves a construction of the Section which gives to the word " trespass '' an arbitrary mean- ing inconsistent with its ordinary use. But from the Magistrate having abstained from committing the prisoner on a charire of assault, or of being a member of an unlawful assembly, I infer that he disbelieved the evidence which tended to establish violence and a man who .enters upon land which is in the possession of an- other, but which in good faith he claims as bis' own, cannot, as I conceive, be considered guilty of criminal trespass, simply on the ground that he does that which, if his claim be well-founded, he is as owner perfectly justified in doing, such as cutting crops, ploughing up land, and the like. Even if his claim be not well- founded, but the intention is merely to assert his right, and not to insult, intimidate, or annoy the person in possession, he would not be guilty of the peculiar offence described in Section 441. Upon the view, therefore, which, as far as I can gather, the Ma. gistrate took of the facts of this case, I cannot say he was wrong PIONAL fODK. - 502 ill law ii) refusing to proceed witli the charge and in referring the piirties to tlie Civil Court. 11. W. R., Cr. B,, p. 16. The 4th Makch, 1869. Present. The Hon'ble L. S. Jackson and W. Markby, Judges. Procedure— Commitment— Trial of several prisoners to- gether—False evidence. Reference to the High Court under ■ Section 434 of the Code of Criminal Procedure, hy the Judicial Commissioner of Chota Nagpore. The Queen versus Kureem and another. The commitment and trial together of several persons who are charged with having given false evidence in the same proceedings, should be avoided. A Court of Session is competent to try separately prisoners who have been com- mitted together. iJe/erewce.-^It appears tome tliiit, as oiieof iheoffence< with whicli tlie ttcoased is charged is said to have been coinmiited on 17tli December 1868, and the oi her on tlie 5ili February, and that as tlie charges are not qnite identical, and ^llould each he separate- ly proved, the aem^ied might be tried separately, and not in one trial. I therefore submit the proceedings, under Section 434 of the Criminal Procedure Code, with the view of the coinniiiment being annulled, should the Court think proper to do so. Judgment of the High Court. Jackson, J. — We think there is no necessity to set aside the commitment in this case. / Ifcis quite competent to the Judicial Commissioner to try the pri- soners, and he ought to try tlieni separately ; not, however, because the acts charged were committed on different dates, but because the offence of each is quite distinct, and must be separately dealt with. The commitment and trial together of several persons who are charged with having given false evidence in the sj^me proceedings is a veiy frequent erior which the Courts of Session should bo careful to avoid. 11. W. R, Cr. R., p. 38. The l4rH April, 1869. Present. The Hon'ble G. Loch and L. S. Jackson, Judges- Punishment-Sentence— Theft. Befermae to the High Cowt under Section 434 of the Code of Criminal Pro- cedmre by the Se$sions Judge of Hooghhj. 503 OKIMINAL RULINGS. The Queen versus Sheikh Mooneeah. Where the accused stole property at night belonging to two different persons from the same room of a house, it was held that he could not be sentenced* separately as for two offences of theft. Reference. — It apijears tlmt the piisoiiRr broke into a house at Howrali and stole cert.iin jiroperty wli-l! belonged lo two separate persons. ' He wan ^e^t up for trial ou separate cliiirge-* wiili respect to the property of the two owners, and the Deputy Magistrate li;is recorded separate sentences for each off«iioe. 1 agree niili the Officiating Magi'^irate in thiuking tliat, the order of the Deputy ilagiatrale was illegal. It appears that theie was only one act of lionae-breaking, and that the property of the two owners was stolen from the same room. The two offences are supported by the same ev-dence, and therefore, uiider the rulings of tlie High Court, page 21, I'riiisep's Code of Criminal Procedure, a verdict of guilty should have been entered upon one offence only, and a verdict ot not guiliy on the other CUUIlt.'). In the present case the double offences consisted of house-break- ing by night "iih intent to commit theit, and theft, and under the High Court rulings recorded in page 22, of Frinsep's Code of Cri- minal Procedure, to pass douhle sentences w.a3 erroneous. The Deputy Magistrate's exphmation is also forwarded. It ap- pears that he, is under a misiuke in supposing tluit the two prose- cutors occupied different sets of apartments at the time of the theft. The evidence shows that Duncan's property was kept in Gor- man's room, that the theft took place on the night of the iOth, and from Gorman's statement, that Duucaii, did not come into the house until tlie llih. Under these circumstances, as no appeal has been preferred to me in the case, I (hinlt: that the sentences for the second offences of house-breaking and the two offences of theft should be quashed, Judgment of ihe High Court. Jackson, J. — We are of opinion tiiat the convictions and sen- tenees as for four separate offences are erroneous. ■ The offence of the prisoner was one, viz., tiieft in a dwelling- house under Section 380, Indian Penal Code. We find no evi- dence of "house-breaking,"' as there is nothing to show how the prisoner entered and quitted the house. It only appears that he was seen climbing over the wall, but it is not sliewn that he entered through or left the house by any passage to which he gained ad- mittance by such climbing. VENAL <(1UE. 604 'J'he prisoner's offence is however gveatly aggravated by tiie fact that he had Utely been a servant of the proseculor and availed liim- • BeU'of the knowledge of the premises (knowing also that they were unprotectedj in order to commit the theft. We therefore set aside the convictions and sentences passed by the Deputy Magistrate, and instead thereof order that a conviction be entered under Section 380, Indian Penal Code, and that the pri- soner be rigorouiily imprisoned for two years. 11 W. K,, Cr. a, p. 39. The 26th April, 1869. Present. The Hon'ble L. S. Jackson and F. A. Glover, Judges. Sentence— Punisliment. Reference to the High Court under Section 434 of the Code of Criminal Procedure by the Sessions Judge of Ditiapore. The Queen versus Bhoobun Mohun and two others. Where a conviction has been had under two Sections of the Penal Code, in one of which only an alternative sentence of imprisonment or fine is allowed, a sentence of fine cannot be passed. Jackson, J. — The Joint Magistrate has convicted the accused under Sections 147 and 325 of tiie Penal Code, but has inflicted only one puniuliment, viz., a fine of 500 Rupees i" the case of Bhoobun, and 200 Rupee* eacii in the ease of the other two. Had the conviction been umler Section 147 only, . the order of the Joint Magistrate would be right, that Section allowing the alternative punishment of either confinement or fine. But on conviction under Section 325 the punishment must be imprisonment of one or the other description, and no option is given of substituting a fine in lieu of iinpiisoiiment. The Joint Magistmte'.s sentence is therefore illegal and must be quashed. He is directed to pass a fresh sentence according to law. 11 W. R.,Cr. R.,p. 44. The 3rd May, 1869. Present. The Hon'ble J. P. Norman and E. Jackson, Judges. Police Officer— Diary— Forgery. The Queen versus Rughoo Barrick. Committed by the Magistrate and tried by the Sessions Judge of Cuttack, on a charge of dishonestly using ds genuine a forged document. 50'5 CRIMINAL KBI,INGS. The false alteration of a Poliee Diary by a Head Constable was held to fall under Section 471 Penal Code, as the forgery of a document made by a public servant in his ofiScial capacity. Norman, J. — Tlie |irisorer has been convicted. of iising a forged document tinder Section 471. He is the Hesid Consuible of an ou(;|)ost, who^e duly it was to enter in tlie Police Diary the par- ticulars of cattle impounded. On the 19ih of July last, 73 bufFa- liies were driveri to the pound, and on the following day an entry was niiide by Sewnarain Pntnaik in the dittry at ihe request ot the prisoner lo that pfFect. In the afternoon of the same day the owners of the buffaloes came to the Thannah and liad some con- vers^ation with the |irisoner, on whifii lie requested Sewnarain Put- naik to aher the figure.'* into 13. Sewnarain reluseil. But the alteration was sub^equelltiy made, aiid the fine lor 13 buffaloes received and acknowledged iii the Police books. The prisoner has been sentenced to 18 months' rigbrious im|iri8onmeni. On reading the petition of appeal, it Hjppears lb me tliat the con- viction is correct. I'h6 alteraiion of the Police Diary may, in my opinion, be properly characterized hs the forgery of a (locutiaent made by a public servant in his official capacity. Had the entry been orijiiually false, the conviction might have been under Seciioii 218. I di.^uiiss the appeal. Jackson, J, — 1 concur. II W. R., Cr. R.,p. 49. Thk 5th May, 1869. Present. The Hon'ble J. P. Norman and E. Jackson, Judges. Contempt— Section 163 Code of Criminal Procedure— Sectibii 179 Penal Code. Reference to the High Court under Section 434 of the Code of Criminal Procedure by the Sessions Judge of Cuttack. The Queen vs. Ruttun Sahoo. Under Section 163 of the Code of Criminal Procedure if a Court before which the oifence of contempt under Section 179 Penal Code, is committed, considers that a sentence of imprisonment is called for, it should record a statement of the facts constituting the contempt and the statement of the ac- cused, and forward the case to a Magistrate. Norman, J.- — Ruttun Sahoo, complainant in a cnse of culpable homicide tigaiust Snt Churn Achai:jee, refused to answer ques- tions put to him by Mr. Cnrrie, (he Assistant Magistrate investi- gating the esse. For tiiis offence Mr. Currie sentenced hira to PFXAT, CODE. -it'-l' thre^ rnoniiis' Jtaptisoniiient under Section 179 of the Indium Perwl.C.Kie. Tlie Juil^e of Cutta&k, Mr. Maepheraon, sends uj) the papers to tlii-i Court under Seciion'434, pointing out that under Section 163 of the Coile of Criminal Procedure, it the Couct before which the ofFeiic© under Section 179 was committed, considered tliat h sentence of imprisonment was called for, after recording' a state- ment of the facts constituiiRg: the comempt and the statement of the accused person, it should have forwarded the case to a Ma- gistrate. There is no d'mV that tlie conviction is wrong and ilin! Mr. Currie ouijiit not to have dealt \Yith tiie offence himself. We quash the conviction and direct the release of the prisoner. 11 W. B..,Cr. B,.,j>. 51. The 13th May 1869. Present. The Hon'ble L. S. Jackson and W. Markby, Judgfs. Criminal Misappropriation. Reference to the High €Owrt mider Section 434 of Me Code of .Criminal Pro- etdure.by the Sesaiont Judge qf Moorshedabad. ■J'he Queen versus Bissessur Roy. Baboo Rash Behary CRiose for the Petitioner. A servant who retains in his hands money which he was authorized to col- lect, and which be did collect, from the debtor of his ma.stor. because money is duSi to him as wages, is guilty of criminal Mijsapprapriation. Zachsan, J.— In this case Bii^sessur Roy, who was a peon in the employ of Messrs. iLyall Rennie& Co. in their silk fiiatnre, was sent by their gomastah to realise, amongst other debts dne to ihenii a debt of 8 Rnpees and 3 Armas, from one Juswuiit Shaikh. For the purposes of the present decision I will a'S.nme that the faeis al- leged are trne. He realised this amount from Juswunt Shaikh. He gave Juswunt Shaikh, not the i-eceipt with which he had been, provided by the gomastah, but another receipt of his own in ac- knowledgment of the money. Returning to the factory he informed the gomastah that he had failed in collecting this particular debt, and he returned the gomastah his receipt. Shortly afterwards, Bissessur Roy was discharged from the employ of Messrs, LyallRennie & Co., and after his discharge, it was as- Cj9rUine4'that he ha,(i received from Ju^swunt Shaikh the particular siiim in q,uQstion. On these facts he was cl)ftrg«d before the Joint Magistiate with 507 CRIMINAL RULINGS. criminal misappropriation, imd i\\e Joint Magistrnte consiflered thut tlie charge could not be snsfaineil because he found that tlte pri- soner, previous to liis (iiscliarge, had a claim against Messrs. Lyall Rennie & Co, for vrages to the amount of 8 Rupees 3 Annas and 1 pie, beiiio; 1 pie in excess of tlie amount which he had appropriated. Fi'om this tlie Joint Magistrate aj'^ues ihat there was probubly no dishonest intention on ihe part of Bissessur, inasmucji as he may fairly have con-iidered himself entitled to rep.ay himself out of the amount which he had recovered. Tiie Joint Magistrate goes to say tluit in liiq opinion the peon was quite as mucli entitled to keep back the money realised by him on account of his masters, as his masters were entitled to keep back the w«ges due to liira. It seems to nie tliat the view taken by the Joint Magistrate is manifestly erroneous, supposing tiie fact lo be true as alleged, and that the circumstance of the prisoner keeping back the proper re- ceipt from Juswunt Siiaikh and his denial to the gomastali that he had recovered the money, completely disposes of the supposiiion that he could have iiad any honest belief that he was entitled to keep back the money and show that lie did keep it with what the Magistrate calls an animus furandi. It would be most mischievous if the law were understood to be as supposed by the Joint Magis- trate, that servants employed in collecting their master's debts were at liberty to keep back such debts, when collected, in satisfac- tion of claims of their own, and to inform their masters that the amounts so kept back liad not been realised from their debtors. It seems to me, therefore, quite clear that the Joint Magistrate was utterly wrong ; that his decision declariair the charge lo be not maintainable cannot be supported; that that decision must be set aside; and that the case must go back to him in order that he may come to a decision upon the facts and pass such further order as the case may require. Markby, J. — I am entirely of the same opinion. 12 W. R., Or. R., p. 1. The IsT June, 1869. Present. The Hon'ble J, P. Norman and E, Jackson, Judges. Mischief— Section 425, Penal Code. Reference to the High Cowrt imder Section 434 of the Code of Criminal Pro- cedure hy the Sessions Judge of Moorshedabad. The Queen versus Denoo Bundhoo Biswas and others Before a conviction can be had for mischief under Section 425 of the Penal Code, it must be proved that the accused intended to cause, or kcetv tbelt he was likely to cause wrongful loss (Seetion 23, Penal Code,) p>>'Ai, ciiDE. 508 Norman, J. — Tlie prisoner*, serviirit« of tlie Zemindar of Biilly liHve been convicteil of committing: misfhief by dpstroying a bar of bamboo laid across a water course. The Deputy Matjisfcrate finds that; there is a (liipute about a riaht of fishery in the water-course between the Zemindar of Bnlly and the Zemindar of Maharajpore ; that tlie Zemindar of Maha- rajpore, iiavin^ set up a bfir acroaa the water-conrse, whicli ob- structs the egress and ingress of fish wiiile it allows tiie water to pass freely, the defendants, being unable to induce the Police to interfere, threw down the bar. Before the Deputy Magistrate, the defendnnta produced a de- cision of tlie Sudder Araeen of Moorshedabad, affirmed by the Judge on appeal, to show that the fishery belonged to the Zemin- dar of Bally. The Deputy Magistrate said it wa« unnecessary for him to go into a question of title, and adds that the decision to wliich the Zemindars of Maharajpore were not parties is not evi- dence ngainst them. He says the evidence does not clearly es- tablish the fact of exclusive posses-iion of either party ; tliat even supposing the Zemindar of Bally to have been in exclusive pos- session, it does not follow that the removal of the bar was justified. He says that the prisoner Denoo Bnndhoo should not have taken the Law into his own hands. He fined the prisoners 10 Ru- pees each. The M-agiatrate, Mr. Hankey, ha^ fent up the case under Section 434. We think that the conviction cannot be sustained. The con- viction does not show that the prisoners threw down the bar wiUi intent to cause, or knowing that they were likely to cause, wrong- ful lo<8 within Section 425. Wrongful loss is defined to be the loss by unlawful means of -property to which the persoti losing it is legally entitled. The conviction does not show on the face of it whether the mis- chief for which the defendants have been convicted is the damage to and loss of the bar, or mischief to the fishery. Suppose it to be the injury to or loss of the bar. If the fishery belonged to the Zemindars of Bally and they were in possession, servants act- ing under orders might lawfully remove an obstruction newly set up to the passage of fish to prevent injury to their property and interferenee with its epjoyment. In Blackstone's Commentaries, Book 3, Chapter I, it is said : " Whatsoever unlawfully annoys or doth damage to another is a> 509 CRIMINAL RULINGS. " iiuisunce, and such nuisance may be iib.ited, that is. taken away " [>y the party iiggrevied thereto, so that he commirs no riot for " breach of the peace) in doing it. If a new gate be erected across " a public high-way, wliich is a common nuisance, any of ihe " King's subjects passing that way may not cut it down and " destroy if." It is nof found tliat t!ie defendants wantonly destroyed or in- jured the bar, the whole coat of which is stated to liave been about a rupee in removing it. Suppose Ihe niisciiief for which the Deputy Magistrate intended to convict is miscliief to the fisiiery. First. — Tbe Deputy Majristrate has not found or even enquired wlietiier the Zaniindars of Maharaj pore are legally entitled to the fishery. If not, no wrongful loss was inflicted on ihem. Secondly. — It i-i entirely consistent with the finding of the De- puty Magistrate that i lie defendants were acting in good faith for the protection of their master's interests, and repelling what tiiey believed to be an unlawful intrusion on the part of the Zemindars of Maharajpore. If tiie defendants really acted in the belief that the fi'^hery belongel to their master, tlie Zeinind-ar of Bally, it cannot be said that in removing a bar which interfered with that fishery, they acted with intent to cause, or knowing they were like- ly to cause, injury to the Z.nnindars of Maharnjpore. Admitting that the decision of the Sudder A-ineen is not evidence on a ques- tion of title as against the Zemindars of Maharaj pore, ii may well have led the defendants to suppose that their master had, a legal right to the fishery, and should have been considered by the De- puty Magistrate with reference to the question of the good faith of the defendants, wiietli er they acted with intent to cause or knowing they were likely to cause, injury to the Zemindars of Maharaj pore. The Deputy Magistrate finds that th« parties were jointly in possession. If the act had been in its nature a malicious and wan- ton one, which could have had no other object than that of the in- jury or destruction of the property, or to prevent the title to the property being ascertained, or otherwise to injure the >Zeniintlars of'Miharajpore, we have no doubt that Ihe parties migU bave been conticted as- in the illustration. PEJJAL CODE. 510 When A, liaving joint property with Z, in a horse, shoots the }>orse intending tliereby lo cause wroiigfulioss lo • Z, A has coni- mitteil mischief. ' In tlie present ciise \Te tJiink no intent lo injure or knowied(£e tltat injury would he caused to tiie Z^mintilar of Mahrjij|)ore ap- pears. The act is even preeuinably done with a totally different object. The con viol ion is therefore bad, unci must be quasiied ajid the fines repaid. i nj cC C O C*««'^- ' law. R., Cr. K,,i). Z7. Thb lO'iH July 1869. Present. * The Hon'ble L. S. Jaeksou and W. Markby. Judges. Procedure— Wrongful confinement— Absence of Prosecutor- Section 347, Penal Code. Reference to the Sigh Cowrt imder Sec ^ion 434 of the Code of Criminal Pro- cedure by the Sessions Judge of Sylhet. The Queen versus Bedoor Ghose. A Deputy Magistrate has no power to dismiss in default of prosecution a charge laid under Section 347 of the Penal Code of wrongful confinement for the purpose of extorting money. Where the evidence of a prosecutor and his witnesses is taken in the presence of the accused, and the case is postponed by the Court for the evidence of wit- nesses for the defence, the case ought not to be dismissed for default of prose- cution if, on the day to which it has been postponed, the prosecutor is not prcisent. Reference by the Magistrate. — One Dhan Chung, on I8lli Marcli, complained at the Chuituck Police Staiion that Bedoor Ghope, Slieik Adil, and others, had wron>ifuily coitfined his rehitive, Locliun Oliung, for the purpose of extortijig money. The Police entered the case under Section 342 and though tiiey reported it true, sent it up in B form, as they^aid it was not proved. On April 1st, the Acting Maaistrate ordered the paper to be filed ; but on April 2nd, Lochun Cluing himself presented a petition, slating that he had been confined in various places to make him pay iiis rent, and having been released hy tlie Police now brought a charge under Sections 352 and 347. The Police reports were examined, and on April 6th, the sworn deposition of Loeiiuh was taken, and summonses on five men, named Bedoor, Muthan, Naro, Adil, and Beparee, were issued, and April 15th fixed for the trial. 611 CRIMINAL HUMNGS. Oil that day all the pai'ties being present the cu-p was inaile over to the Deputy Mnfristiate who on the l7th and l9iU took the evi- dence of the prosecutor and his witnesses, imd on ihe 19th liolditu; the accused to bail, postponed tlie case i ill Miiy 13tli for tlie evi- dt-nce of two persons whose evidence was considered necessary by the Court. On May 13th he disinisi^ed tiie case and discharged the accused, because the complaiiiain was not present. On that name day (May 13th) the complainant, Lochun Chung,. applied to the Joint Magis- trate (who was in charge of the current duties of my office) stating that he iiad been present all day in the Deputy Majjisfrate's office, and that not his name bui that o{ Dhan Chung (tlie original in- formant at the Police Siation), had been calleil out, and because he had not anssvored it, the case had been dismissed. Tiiere are three illegalities at least in tlie Deputy Magistrate's proceedings : — (1). He had no power to dismiss in default of prosecution a charge laid under Section 347. (2). Having taken the evidence of a prosecutor and postponed tlie case f')r tlie eviilence of other parties to a future date, he hud no power to dismiss any case in default of pro^iecutioii : the prose- cutor having given his deposition in the presence- of the accused, and having produced his witnesses, the case should then bare been decided on its meriis. (3). The pro.secutor's name entered on the fly-leaf of tlie case was Dhan Ciiuug ihe actual prosecutor was Lochun Chung, and Lochun's name ought lo have been called out, not Dhau's. In the iiialterof calling the name.s 1 fully believe Loclum's story as it is corroborated by hi^ subsequent beliaviour and by the record. Under these circumstances, I beg that you will submit the case to the High Court under Section 434, in order that the Deputy Ma- gistrate's order of dismis-ial may be qunshed. The irregular proceedings of the Depuiy Magistrate in delaying the examination of the witnesses from April I6th to 19th has been noticed. • Remarks ly the Sessions Judge. — 1 am of opinion that the irre- gularities and illegalities pointed out by the Magistrate are sufficieu't to quash the order of dismissal passed by the Deputy Magistrate. JuDSMENT OF THE HiGH CoURT. Jachon, J. — We agree with the Magistrate and the Sessions Judge. We quash the order of the Deputy Magistrate dismissing the complaint for default, and direct that he proceed herewith accord- ding to Law, VENAI. (.ODE. 612 12 W. R., Cr. K , p. 49. Thb 28th Ausust, 1869. Present. The Hon'ble F. B. Kemp and F. A. Gloyer, fudges. Order by Public Servant— Section 188 Penal Code. Reference to the High Court imder Section 434 of the Code of Criminal Pro- cedwre by the Sessions Judge of Saekergunge. The Queen versui Ramtonoo Singh, peon. Before a coDviction can be had under Section 188 Penal Code, it must be proved that the accused knew that an order had been promulgated by a public servant directing such accused person to abstain from a certain act. Kemp, J. — Tlie conviction of the Deputy Magisirttte cannot Btand. Under Seciion 188 of the Indian Penal Code, it i» neces- sary that the person convicted of an offence under that Seclioav Bhoulil be proved to iiave known that an order ,bad been pronml- gaied by a. public servant directing such person to abstain from a certain act. No evidence whatever was taknn in this case to bring home the knowledge of the order to the licensed. U'he conviction is quashed and the iiue iniiiit be refunded to RHintonoo tsingli, peon. 12 W. R., Or. R.,p. 54. Thb 21«t September, 1869. Vreitnt. The Hon'ble E. Jackson and Dwarkanath Hitter, Judgts. Procedure— Recogniaance— Evidence. Criminal Revibiomal Jukisdiction. Application under (Sections 404 and 405 of the Crvminal Froctdwrt Code to revise the proceedings of the Magistrate of Daicca. Ealikant Eoj Chowdhry, Petitioner. Baboo Kalee Mohun Doss for the Petitioner. Baboo Anrund Chwnder Ghose for the Opposite Party. There must be a regular judicial trial and legal inquiry before an order to forfeit recognizances can be passed and the evidence taken should be re- corded in the presence of the accused or in the presence of an agent of the accused duly authorized to appear in such inquiry. Jackson, 3- — Tliis is an application to thJH Court to revise the proceedings of the Magistrate of Dacca passed against the appli- cant, Kally Kant Roy Chowdhry. Boih'tlie orders passed by the Magistrate are dated 14tli of June 1869. In one of them, the ap- plicant was ordered to forfeit his recognizances for 1,000 Rupees which he was ordered to pay, or on failure, to suffer imprisonment for a period of six months. By the other h« -was required to furnish security to the extent of 6,000 Rupees to keep tlie peace 613 CE1M.INAL RVUNGS. for 20 montlis. Tlie period of 20 inonthR »|>pears from a proneed- ing of the Sessions Judge to liave been since clisinged to one year. The M»gistnite recorded in his decision the grounds upon wiiich lie has pni^ed these orders. It is enough to say that from that decision it is quite clear tliat no evidence was recorded in the pre- sence of the accused before those orders n-ere paiised upon him. The accused was called upon to show cnuse why his recognizance should not be forfeited. He appeared and did gliow cause. If the Magistrate still con-idered that the recognizances shouhl have been forfeited, it was his duty to record the evidence upon which it was proved that the accused had acted in such a way tlmt i( became ne- cesnary to forfeit that recognizance for 1.000 Rupees. There mint be a regular Judicial tri:d and leiial inquiry bnforn such puni-^h- ment can be inflicted. Siinihvrly, it has been lately held by a Full Bench of this Court that even before reco) The Judge on appeal reversed the decision of the Magistrate under Section 155 and allowed the conviction to stand under Sec- tion 154, and under that Section the defendants were sentenced to pay a fine of Rupees 1,000 each. The Judge in appeal finds that the riot was not premeditated and on tlie question Whether their agent used all lawful means in his power to disperse or suppress the riot, he says. " Now it " is not attempted to be shown that their agent Rakhal Doss Roy 515 CRIMINAL RULINGS, " did anytliinp more towMrds flisper»ing or sappressing the riot " than telling the Chowkedar Saboo to see that there is no row " and make haste to give inforiuation to the Police. Giving him t lie full benefit of this eyidence, I cannot believe that this was " fill that he could do. Undoubtedly he might have taken active ' steps to stop the disturbance, and if he had done »o the serious results which followed might probably have been avoided. I ' therefore reject this appeal so far as regards the conviction un- der Section 164. It is of the utmost importance that all persons " should understand that they are bound to use all lawful means to prevent a breach of the peace on all occasions.'* For my part I fully concur in that oboervation, and it is not without some reeret that I feel myself compelled to reverse the decision of the Judge beeau*e where riot and bloodshed take place as the result of a stantl-up fight between the partisans of two rivals Zemindars, where, as is too often the case, and as the Ma- cisiTHte has found, was the case here, lattiah are employed on both sides, there can be litlle or no doubt that the riot is, if not for the benefit of, at least mainly instigated by, the Zemindars or their agents. If the finding of the first Court had stood, namely, that hired lattiah retained by each party, were members of the unlawful as- sembly, some of them actively engaged as combatants on the side of the Pnul defendants party, there could be no doubi of the pro- priety of the conviction under Section 164. There would be no doubt that the finding that such men were retained would have been quite sufficient to justify the inference that the Zemindars and their agents, so far from using alt lawful means in their power to prevent the riot, had made preparations beforehand to enable their faction to take an effective part in it. The Judge finds that the riot was unpremeditated. He does not find what, if any, were the lawful means to which Rakhal Doss Roy, the servant of the Zemindar, could have resorted in or- der to suppress the riot or disperse the rioters. It is a fact that the Police were stationed in the village, and it is found by the Judge that news of the riot was sent to the Police by Rakhal Doss. It may be that Bnboo Rnkhal Doss Roy might have used his influence with the ryots of the Paul party, and by that influence might have induced them to disperse and cease from rioting. But there is nothing to show that he had any such in- fluence and could have induced them to disperse, or that he wil- fully kept out of the way leaving the riot to take its own course. If we allowed the conviction to stand, it woald be on some bare PENAL com. 516 conjecture ihat lie iniKhi have had some means of dispersinfi; the riot, of wliinh tliere^s no evideiic-. Therefore it seems to me that oil the Judge's fjiiding', tlie conviction cannot stand. Tliere is a second objection tsiken by Mr. Bcurke which I think of considerable importance, because it illustrates the inconTonience of a practice, yliich is very common ujion chaises of riot, namely. Treatiiiji the attacking parly and resisting party as constituting one unlawful sissembiy and trying them together. Each party con- stitutes an assembly iiaving an obj«>et. totally distinct fro«i that of the other party, and the reBponsibiiities under which theseveral ■parties m-ty come under Section 149 are totally distinct. In the present c ise a fi«ht took place between Mk- Anderson's men and the party of the P»ul detendants. It is quite plain that the two asnemblies did not constitute one unlawful assembly. They , had not within the meanin<>; of Section 141 " one common object." It is su)<;^ested that the object of tlie Anderson's party was to beat, ilUnse, and over-awe the ryots of tlie Paul party, to compel them to cultivate the indigo, ivhile the object of the party of the Paul Zemindars was either to resist and drive off, or to wreak their re- venge on Anderson's party. Tlie Paul party had no common ob- ject with the And«?r8on's pnrty. Wlien the witnesses for the defence of Mr. Anderson's party were called, the vakeels for the Paul defendants' party wished to cross-examine the witnesses called for the defence of Mr. Ander- son's men, and not unnaturally as it was probably impossible for the witnesses for Mr. Anderson's party to avoid making statements which would tend to fix charges on the Paul party. The Magis- trate refused the application by the Paul defendants' vakeels to cross-examine Mr. Anderson's witnesses, and as I think properly refused it. This matter has been considered on the original side of the Court, and it has been held that the right of a defendant to cross-examine is limited to a ri-^bt to cross-examine the witnesses of the plaintiff or of the Crown called against him. . If he wishes to avail himself of evidence which has been given of which can be given, by a witness called for another defendant, lie must call him as his own witness. On the second day the witnesses of the Paul parly were called and the vakeel of Mr. Anderson's party claimed a right to cross- examine those witnesses. The Magistrate, reconsidering his form- er determination, permitted such cross-examination. Thereupon it was objected by the vakeels of the party of the Paul Zemirdars that they ought to have been allowed to cross-examine the witnesses called for the defence of Mr, Anderon'i party. The Magistrat 517 CRUriNAL RULINGS, decideil tliat lie would allow the TritnesBes to be rei-alleil and cioss- exiiiiiined, but ' it was uliimutely arranged iliaC iIih case of ench prHoiier ^ihould be tried and coueiilered separately without adver- tei)ce to tlie evidence for the defence of any other party. So far~ a^ prisoners can assent tu anytiiing that arrangement was aasented to by the Vakeels of each party. I do not rely on any consenc. I thii.k that the courte nliimately taken was the correct oonrse. The matter nas brought to the no'icH o( the Judge who has stated lii« view of it, as I think a very jii»l and proper view, in the following words: — " A preliminary objection is raised by both Counsel that the " ca^e cannot proceed in its present form as the witne-sses for the " defence summoned by the defendants coMiiecled with Mr. An- " derson and with the Paul Zemindarii pariy renpeciively were not " allowed by the Magintrate to be crosg-exsi mined by the pleaders " retained for the defence ; and it is ur^ed iliat as the defence set " up on each Ride is that whatever wa.s done was in the right of " priyate «elf-defence, the Court cannot arrive at any satisfaciorj " concIuHion without causing such cross-examination to be allowed. " But it appears to the Court that the correct principle upon which " it should act under the circumstances is to deal with the case " according to the evidence adduced for the prosecution modified, " so far as that may be in the opinion of the Court, by lh« evi- " dence adduced by each party in its defence. The Court entirely " admits, and will in considering its judgment thoroughly adopt, " the principle that none of the evidence for the defence can be used " against any other person than the person on whose behalf it is " produced.' ' But even if there was no error in dealirfg with the evidence as given on the examination and cross-examination of the witnesses in the case, it appears tome that when two hostile parties con- cerned in a conflict are placed on their trial at the same time they are still virtually arrayed against each other. There is great danger that the mind of the Judge may be more or less influenced in the trial of one set of defendants by the evidence given for the defence of the other set of defend- ants. And although no doubt the Judge has a discretion in the matt($r, we think that discretion in cases like the present would be better exercised by trying each set of defendants separately. The conviction of Surroop Chunder Paul and Heera Lail Paul mutt be quashed upon the ground that on the findine of the Judge PEXAL CODE. 518 tlifii-e i» nothing to sliow th»t their iigeiifc Raklial Dofs had any nieiuis of suppressinji- the riot which he did not u««. The amount of the fines, if leviad from them, must be returned. As to the appeal of the ryots, the only obji^ction being that tliey were not allowed lo cross-examine the witnMses called by the other party, I see no reason to inteifere, and their appeal is there- fore rejected. Kemp, J. — I concur in tlie remarks of -my learned colleague with refi-rHuce to the appeal of the ryots. I alHo concur in quashing the order of the Sessions Jmlge under Seciion 154 on the appeal of the Faul appellants, but for my part 1 feel no regret whatever in setting a.side the decision of the Judge jn this case with reference to. the Pauls. I fully admit the duty which ilie law imposes on Zemindars and the obligation on the Court to administer that law with wholesome leverity. I also admit that by the mere fact of the Zemindar's not re.^idiug on his estate he cannot avoid the liability which the law imposes. In this case the Zemindar lias been fined for an act committed by his agent. Now, it is admitted that tlie Police were on the spot before the riot. Whether they were deputt^d by ihe Magistrate himself or whether they were sent on the application of the rival Zemin- dars does not appear, but they were there. The Judge aflso finds that the riot- whs unpremeditated and there is also evidence to show that the agent did direct the Chowkedar to suppress and disperse the riot or unlawful assenibly, and also to take steps to inform the Police of the same. I therefore whol- ly fail to see how he has neglected to use all lawful means in' his power, within the meaning of Section 154, to diaperse or suppress the riot. It cannot be expected, that a Bengalee naib should per- sonally attempt to suppress a riot between two parlies, who sud- denly and in great numbers and armed with deadly weapons choose to hare a stand-up fight. The only means in the power of the naib is to invoke the aid of the Police, and this the naib did in the present ca^ie ; and having done so, I think that his con - Tiction under Section 154 was clearly wrong. With these remarks I concur with my learned colleague in quashing tlie conTiction, and in directing that the amount of the fine should be returned to the Paul defendants. 519 CRIMINAL RUMMGS MADRAS HIGH COURT REPORTS, VOL. I, PAGE 30. .27th Octobek, 1862. APPELLATE JURISDICTION. Present: — Scotland, C. J. and Phillipa, J. The Queen against Subbana Gaundan and otliers. To constitute tha offence of preferring a false charge, under Section 211 of the Penal Code, the charge need not be made before a Magigtrate. Nor need the charge have been fully heard and dismissed : it is enough if it is not pend- ing at the time of the trial. The petitioners were convicted unfier Section 211 of tlie Penal Code (Act XIV of 1860J, by S. N. Wnrd, tl.e Sessions Judge of Coimbatore, for fal»ely cliMrging the proipcutor with having com- mitted tlie ofFenpe of highway robbery, knowing that there was no jitgt or lawful ground for such charge. Tlie ciiarge had been preferred before an Inspector of Police, wlio disbelieved and re- fused to act upon it. Section 211 of the Penal Code enacts that " whoever with in- tent lo cause injury to any person, instiiute-^, or causes lo be in- Mtituteil, any criminal proceeding against that person, or falsely ciiarges any. peiaim with having committed an offence, knowing that there is nojiist or lawful ground for j^ucIi proceeding or charge against that person, sliail be punished " as therein mentiimpd. Branson for the petitioners. The conviction was wrong, for, first it did Moi. appear tiiat the charge was made before a Magi-- trate, and, secondly, it did not appear that the charge was finally disponed of in' the prosecutor's favour, ami this it would be neces- sary for the plaintiff to prove in the case of an action for a mali- ciou* prosecution. Scotland. C. J : — To constitute the offence of preferrinjr a fal-e charge contemplated in Section 211 of the Penal Code, it is not necessary that tiie charge should be before a- Magistrate. It is enough if it appear, as it does in the present case, titat the charge was deliberately made before an Officer of Police, with a view to its being brought before a Magistrate. Of course a mere random conversation or remark would not amount to a charge. As to the other point it is said that it must appear that the cliarge was fully heard and dismissed. That is not necesnary. It is enough in a case like the present if it appear that the charge is not still pend- ing. An indictment for falsely chargined in that Section ?] The instrument should contain a direct promise to pay, or should purport to creaie an obligation on tlie face of it. Otiiirwitaiement on oatli tefore a public >errant and tliereby committed an offence under Section 181 of tlie Indian penal Ci>ile. This coiiviciion was con- firmed on appeal by tlie Session J ndiie. Appeal is made to us on the ground, that the conviction is illegal, the offence not being one which would properly fall under Seciions 181 and 116. The prisoner asked the first witness lo suppress mention of cer- tain facts in giving his evidence aitainst him before the Deputy Magistrate, in reference to a charge of defamation, and ihis con- stitutes abetment of giving false evidence in a stage of a juilicial proceeding, which is expressly excepied from the juriadiciion of all CouriB but the Courts of Sestiion. Section 181 would appear to apply to cases in which the pro- ceedings wens not of a judicial character, such as proceedings be- fore a Commissioner of Income Tax. The case being one which involved an offence triable by the Session Cw fo be the wife of one Muttusimii Mndali from llie said Mnttuaami Miidali with tlie intent that he might have illicit iiitprcnuriie niih I lie said Ajiilandani. It appeared in evidence that the prisoner and one Ramasawmy, wiio were neiglibour* of t'^e proseetitor, met his wife Agilanduni in the street on the 17th November last, she liavina left her hus- band's house to fetch water, that the three went together by Rail- way fo Vellore and Arcot where the prisoner and Agiliindam re- mained about 12 days and where sexual intercour-e took place between them, but Ramasawmy swore and the Jury found as a fact that Agilaiidam asked ihe prisoner to allow her tQ go with him, that all the solicitations proceeded froni iier and that the prisoner for some time refused to yield to her request. I told the Jury that this did not in my opinion exoneraie the prisoner from the charge, that the 498th Section of tiie Code was framed for the protection of the husband and that though the request and spliqitations came wholly from the wife, yet as the prisoner had yielded to it and gone away with her, there was a Bufficient taking on his part within the meaning of the Section. The Jury found tiie prisoner guilty, and I sentenced him to six weeks' simple imprisonment, but feeling some doubt whether my direction was right I have reserved the question for the considera- tion of the High Court." No counsel appeiired. The Judgment of the Court was given by Sir C. H. Scotland.— I do not think that the facts found of the woman having been the (a.) The Section is as follows : — " Whoever takes or entices away any woman who is, and whom he knows or has reason to believe to be the wife of any other man from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals, or- detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." 523 CRIMINAL EUI.INGS. tempter and the prisoner in the fii'st instance reluctant to yiehl to her soliciratioiis can render tlie case different from one in which the ailvances and solicitations are on tlie part of the man and tlie u'onian com|)lies and willingly leaves her husband and cohabits with the man. All tiiat cxn be said is that lier consent is given under circumstances of greater ])rofligacy in the one case than in the othpr. In ihis case, therefore, it seems to me the real point for consideraiion is simply whether the wife's willingness and con- sent, evidenced by her solicitations of the prisoner and the circum- stances under which she left her husband and remained absent from hill), afford any defence to the prisoner.. Now the Section and the preceding Section (497j (b.) w«re evidently intended for the protection of linsbands wlio alone can institute prosecutions for offences under them. It is the taking or enticing of the wife from the husband or the person having the care of her on behalf of the husband for the illicit purpose that constitutes-the offence. If whilst the wife is living with her, bus" band a man knowingly goes away with her in such a way as to deprive the husband of his control over her with the intent stated in the Section, that, I think, is a taking from the husband within the meaning of the Section. The wife's complicity in the tran- saction is no more material on a charge uttder this Section than it is on a charge of adultery. For these reasons, I think, the con- viction must be affirmed. Conviction Affirmed. fh.) Section 497 is as follows : — " Whoever has sexual intercourse with a person who is, and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man , such sexual intercourse not amounting to the of- fence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years or with fine, or with both. In such case the wife shall not be punishable as abettor." This Section is omitted in the Straits Penal Code. S. L. MISCELLAXEOaS CASES. 524 HIGH COURT OF CALCUTTA. 8 W. R, Cr. R,. p. 7. Thb 4111 June, 1867. Present. The Hon'ble L. S. Jackson and 0. P. Hobhouse, Judges. Breach of Contract^Act XIII of 1859— Coolies in Assam. Reference under Section 434 Code of Criminal Procedure. Queen versus Gaub Gorah Cacharee and others. Coolies in Assam who have received advances in contemplation of work to be done, may be proceeded against under Act XIII of 1859. Jackson, 3. — We tliink there is iiofliing in the terms of Act XIII of 1859 til 8up|Jort tlie view taken by the Judicial Com- iiii^sionei'. Itappenrs to iis tliat tlie LegiKlaturfi. in taking mpaRure.'' for tlie protection cf employees who have made advances nf nionpy in con- templation of work to he done, advisedly employed the widest terms to desiirnate the person receiving sucii advanx-e: in u-ing the word.* artificer, workman, or laborer, tliey evidently intended to include labor, as well unskilled a" skilled, «nd in exleinliiig or making it lejjal to extend the operation of the Act to a re;j;ii)n like Assam where labor would be chiefly agricultural or out-door labor, they doubtless liad in view tlie common cooly whose services it is necessary to secure by an advance. We do not quite understand what is meant by tlie Judicial Com- missioner's expression " work of a specific ciiaracter,'' but the 4th. Section of the Act provides that the contract to be- enforced may be for a certain term, or for special work or otherwise. Probably, the work of a garden cooly is something well imder. stood in Assam, and the work would, in that case, be of a specific kind, even if that were necessary. We are of opinion that -the Deputy Commissioner was compCr tent to summon the coolies complained of, and to make an order under the 2nd and 3rd Sections of the Act. 8. W. B,., Cr. R., p. 45. The 22nd July, 1867. Present. The Hon'ble L: S. Jackson and 0. P. Hobhouse, Judges. Municipal Act— Nuisances. Criminal Revisional Jurisdiction. Queen versus Brojo Lall Mitter The occupier ■ffho suffers the land to be in a filthy state, is the person liable for penalty. 525 CRIMINAL RULINGS. Jackson. J. — Tliere is notliing on the record before us to sliow tliattlie peiitioiier is not the (iccnpant of the land ; but as Mr. Halihine, lh6 VicB-Cliairman who appears on behalf of the Mii- iiifiipal Commissioners, adniiis for tlie snke of obtainino- an expres- sii>n of I he (Jonrc's opinion tliat ihero was an oecnpiei", we proceed to give our decision in tlie case staled. It appears to me tiint the occupier who puffers the land to be in a filthy siate, i-i the person liable for the penalty, becanse the worda " owner and occupier " are only words qualifying the main proposition nhich is " whoever suffers any house, building, or land in or neiir any public highway in a filthy state." Therefore when land ha* been leased by the owner to some one else who is an occupier, the Commis.jicnieis ought to proceed against the occupier, I am therefore of opinion, supposing the fact to be^ as staled in the petiiion, that the petitioner was wryngfnJly con- victed, ihat the fine (lught to be refunded. Hobhouse-i. — I concur. 8 Vr. B.., Cr. R., p. 69 The 7th September/' 1867. Present. The Hon'ble L. S. Jackson, and C. P. Hobhoaae, Judges. Act XIII of 1859— Advances worked off. Criminal Revisional Jurisdiction. Tara Doss Bhuttacharge, on behalf of Messrs. Lyall & Co. Versus Bhaloo Sheik. Act XIII of ] 859 relates to fraudulent breaches of contraet, and does not apply where an advance has not only been worked off by a laborer, but an actual balance is due to him. Sobhouse, J. — The facta of the case referred - for our orders seem to be simply these : — One Tara Doss Bhuttachnrge, on the part of Messrs. Lyall and Co., silk manufacturers, complained before tlie Magistrate that one Bhaloo- Sheik had broken his contract to work as a katoni or silk-spinner for three years in Meeara. Lyall and Go's, ailk fac- tory, and prayed that, under the proviaions of Act XIII of 1859, his complaint might be enquired into and determined. In making the complaijut, 'i'ara Doss admitted that Bhaloo Sheik owed no money for any fldvancesj, but rather that he was owed a small sum, it may be presumed, as a balance of wages due. The Magistrate conaidered that no prima facie case of advances MISCELLANEOUS CASES. j2G dnH was iiiiiiJe out agaii)~t tlie ])ersi)ii aoGU>iet], nml uiuler tlie pio- visioiis of Section 67 Code of Criminul Prdcerluie ili^-iuissed ilie cotiifiliiiiit. 'I'lie Sessions Judye is oi opinion tliat, inasmuch as ilie custom of the disirii'i in tlie matter "f silk-spinners is foi' tlie niiinufiic- lurer to make an advance of one month's pay for work to be done, there was in l hi- ease sufRcient evidence of an advance made nn acce as tlie law directs. I observe that in this case there is no evidence of exactly that custom to which the SesKions Judge alludes, but tlie contract be- fore us allows that Slieik Bhaloo received an advance of some- tliiiig more tiian'five Rupees, and ilieren|)on contracted to work as a silk-spinner for ihr^e seasojis at Messrs. L) all's factory, on wages of live Rupees a month; agreeing that, if he failed so to Work, liis jjroperty might be sold by way of recovering diimages, or he him^eU miglit be punislied in the Criminal Court as the law Hiiglii direct, and the fact is that im advance is now dtie from Slieik lihaloo, but that r.iiher money is due lo him. These facts being so, liie case appears lo uie lo be one to which the provisions of Act XIH do not apply. The Act is one to provide for the punishment of "fraudulent '' breaches of contract by laborers, and tlie condition tlierefoie wlii^li seems to me lo be precedent to any enquiry under tlie Act is, that fraud of tome kind should be disclosed. Now, on the face of this case, theie is no fi'aud disclosed ; for if there was an advance made on account of wages for work to be done, then those wages have not onjy been worked off, but there is actually a balance due to the accused. And if on the other hand the money advanced was not for waj;ies, tlieii it seems to me the alleged advance was not truly an advance, but was simply a premium upon a contract The very penalties imposed under Section 2 seem to me to show that the present case does not come within the teims of the Act, for the Magistrate is either to cause the money advanced or any part of it to be repaid, or he is to direct the laborer to perform or get performed the work. But here there is no advance due, and the case is simply that, of a laborer who refuses to continue to work for the wages agreed upon. 627 CRIMINAL lltFMNGS. Til is may vf'i-y well be a case for adjuilication by a Ciril tri- biiiuil ; but in sucli a case, the Magi*lriiiB waR, I think, r)}jht in declining to pioceed with any Criminal enquiiy under this Act, and iiis order must stand. Jackson, 3. — I am of opinion that this wasiiot a complaint cog- nizable under Act XIII of 1859. TliafAcf relates to fraudulent breaches of contract on the part of workmen and others, and I think it ougflit to appear that the workman refuses or neglects to perform work in respect of which he has received an advance. When a man has contracted to work for three or ten years for another and at the timo of (he making of such contract, has re- ceived an advance equal to one month's wages, and afterwards works for 12 months, receiying payment on account of wages and at the end of the 12th month buying a small sum due to him, afler taking the advance into account, refu-^es to continue working, can it be said that such a man is under advance, or that his breach of coniraot ipso facto fraudulent? If such a case come within the Act a man might l)e bounrl, up- on an adviince of one Rupee, lo work for 20 year.i/ and although the Maijistraie migiit jirobably not enforce the contraci;, still the complaint would be cognizable, and the Magistrate ^rould probably be bound to issue his warrant or suuimons and the knowledge that the Act might b* applied in such a case, would have the effect in many instances of reducing the workman to something like bond- age. I therefore concur wiih my brother Hobhouse in holding that the Joint Magistrate was light in refusing to entertain this complaint. (See page 377.J BENGAL LAW REPORTS, APPELLATE CR. VOL III p. 32. 10th July, 1869. Before Mr. Justice L. S. Jackson and Mr. Justice Markby. In the matter of Domestic Servants, (a.) ActXIII of 1859— Servants— Artificer, workman, laborer, ' Act "Kill of 1859 does not apply to contracts for a " chakri,'' domestic or personal service, but to contracts to serve as artifioer, ivorkman, or laborer. Jackson, J. — We are of opinion that Act XIII of 1859 does not apply to contracts to serve as domestic servants, and that the pro- ceedings of the Deputy Commissioner, sitting as Magistrate in two oases before us, were erroneous. MISCELLANEOUS CASES. 528 To bring; any person under the operation of the Act, it must be shown that lis has contracted to serve as an artificer, workman, or laborer. This was not sliown in either of the cases before us : on the con- trary, the Hgreement produced was for "chakri,"' whicli usually means domestic or personal service, and not service of the kind referred to in the Act. The accused, Sukura, was sentenced to rigorous imprisonment for one month. The sentence must be reversed. The accused, Subhai, agreed to com))lete the remainder of his service, and a recotfnizance to that effect was taken from him. This recognizance must be quashed as taken witiiout authority. (a.) Reference from the Judicial Commissioner of Assam, under Sec- tion 434 of the Code of Criminal Procedure. Same case, see 12 Weekly Eeporter, Cr. R. p. 26. S. L. 12-W. K.., Cr. K,.,p. 3. The 14th June, 1869. Present. The Hon'ble J. P. Norman and E. Jackson, Judges. Procedure— Evidence given in a former trial— Corrobora- tion— Section 31 Act II of 1855. Committed by the Magistrate and tried iy the Sessions Judge of East Burdwan on a charge of daeoity. The Queen versus Bishonath Pal. The irregularity and injustice of using against a prisoner in a subsequent trial the deposition of witnesses given in a previous case commented on, and the piroper course which should be followed in corroborating evidence under Section 31 Act II of 1855 pointed out. Norman, J.-^The prisoner has been convicted of daeoity * by the verdict of a Jury, and sentenced to tran8|)ortat;ion for life. There appears to have been a very serious irregularity in the mode of conducting trial. The depositions of witnesses taken in the fri;il (in July 1867) of other persons charged with having been engaged in the same daeoity,, are put up with the record. The witnesses appear to have been re-3worn and each in turn says in effect — " I gave evidence before in this Court, and that evidence is true." Without going into the details of the daeoity which must have been taken by the Judge and the Jur y entirely from the feriae r * Gang-robbery is substituted for this word in the Straits Penal Code. S. L- 529 CKIMINAL RULINGS. deposition, each witness in turn merely adds a few particular facts and details, to show the connection of ilie |iriioner with the dacoity. Even while inaking these statements, the witnesses refer to their former depositions, as* for instance thu« : "It is true that I recog- nized Bisiionatli Pal during the dafioity," &c. " It is trne that I saw the prisoner Bislionath strike two or three blows at Heera Lall." The Judge's record does not clearly show in what order the evidence was laid before the Jury, but, I am led to infer that the Judge, probsibly in the first instance, allowed the deposition on the former trial to be read in ilie presence of the Juiy, and then proceeded to question the witness. However tliat may be, the course of proceeding was most irreirulai-. ' Under Section 31 of Act II of 1855, * the deposition containing the statements of a witness as to the couirais-ion of the dacoity taken on the trial in July 1867, wonki have been adniis-'ible in order to corroborate his testimony given on the trial of the pri- soner Bislionath. The evidence of the witness whose testimony it was proposed to corroborate, should have been first taken, and after sucl) witness had finished his evidence, and not before, the former depositi^on iiiight have been put in, not to add to his testimony, but simply to corroborate it by showing that the statemems made by him while the facts were still fresh in his memory correspond with those made by him in the Court of Session in the present case. In the present case, at the same time when each deposition was pui in, the evi- dence of tlie witness not having been given in the Court of Session there was notjiing in the record which made it admis-ible. There was nothing which was corroborated by it'. In the Attorney General of New South Wales versus Bertram, reported 36, Law Journal, Privy Council Cases, 51, on a second trial, when the witnesses were before the Jury the deposiiions taken on the first trial were read, and the witnesses were asked in turn whether what was lead was true, and they were theii submitted to fresh oral examination and cross-examination. What was done was done by the consent of the prisoner. Their Lordships say they were not in a condition to say that any injustice to the pri- soner resulted from it, but they say that no one called on to review the proceedings could be certaiii of the contrary. They disregarded the consent of the prisoner, and speak of the wisdom of the common understanding that a prisoner on his trial can consent to nothing. They say it is essential that no unneces- * This Evidence Act is in force in the Straits. ' S. L. JlISCELLANEOOS CASES. 530 s»ry diffiinilty slioujd be thrown in tlie way of tlie Jury's under- standinsi, or rijihtly appreciatinvhen he comes to his defence will be a blurred and most imperfect impression of the case which lie has to meet. But that is not all. The course we suppose to have been taken of reading over the deposition of a witness against the prisoner, and putting the question to him whe- ther or not the deposition is true, is not only open to the objec- tion that it is putting a leading question in the must objectionable of all possible forms, prompting the witness as to all the details of the story which he is expected to tell in a great degree thereby, depriving the prisoner of the means of testing the veracity or the recollection of the witness by cross-exiimination; but to the wit- ness himself it is a dangerous snare. He is reminded that on a former occasion he deposed to circumstances tending to establish the prisoner's guilt, and it is impliedly intimated to him that the same story is expected from him again. To illustrate further the injury to the prisoner that may result from this course of proceeding. Suppose on the former occasion the witness spoke positively to having recognized three or four prisoners, then under trial, amongst a body of dacoits, and also named one or two other persons not before the Court. Suppose tlie witness to be speaking quite honestly and to the best of his knowledge, he could not as regards such other persons speak un- der the same sense of responsibility as he would with respect to a prisoner under trial. He fnight have felt some doubt, hesita- tion, or uncertainty as regards the absent person which he might not have thought it necsssary to express. No one would be there to cross-examine or check his statetnents as regards such persons, or to induce him to consider whether on reflection he really wa€ quite as sure of their identity as he supposed and represented him- self to be. If at the end of these two years the deposition is put into the hand of the witness it would at once occur to him to MISCELLANEOUS CASES. 532 tliink that as, wlien tlie fncta were quite fresh in his iiieiiioi-y, he spoke poRitively to identify the person, lie was no doubt tlien riirlit. Doubts iind hesitation would be forgotten or cast away, and he would feel sure tliat what he then said was correct. In the present case the facts are fe\fr and simple, and if may be that the prisoner has sustained .little or no actual injury by the course adopted at the trial. But it would say with their Lordsliips of the Privy Council in the case I have ciied, that the ohject of » ti'ial is the administra- tion of justice in a course hs free from doubt or chance of miscar- riage as merely human admini'itration of it can be. A prisoner defendino; himself against a charge of an offence alleged to have been committed a long lime previously, if he has any defence, must alwiiys be under a fjreat difficulty in substantia- ting it by proof; and therefore in such cases it is peculiarly neces- sary to see that the case for the prosecution is not conducted so as further to prejudice him. It is impo-sisible to say that the pri- soner may not have been injured in his defence by the course adopted in the present case. As the evidence has not been legally taken, this Court ban not before it materials in which it can properly form a correct judg- ment as to the guilt or innocence of the appellants, and therefore, accordintr to the opinion of the Full Bench upon an analogous point in Elahi Buksh's case, * it is necessary that there should be a new trial. This is a Jury trial in which the Court has not the power to re- verse the finding of the Jury on a question of fact. The prisoner has a right to the opinion of the Jury or of this Court on evidence duly and legally taken against him. I am therefore of opinion that the conviction must be quashed and that a new trial must take place. ■ Jackson, J. — I concur with Mr. Justice Norman that tlie mode in which this trial was conducted was irregular. The evidence of witnesses given and taken down in the abseiTce of the prisoner is no evidence against the prisoner. The irregularity alluded to >s one which has been frequently animadverted upon by this Court, and upon which numerous trials have been set aside even in the time of the late Sudder Court. The conviction of the prisoner is quashed and a new trial will be held. , * 5. W. R., Criminal Rulings, 80. 533 CRIMINAL LETTERS. 4 W. R,, Cr. I.etters p. 1. No difference in Mahomcdan Law between Nekai Wives and others. No. 503. From the Registrar of the High Court, Sfc, dated Calcutta, the SOth May 1865. ^(Criminal Side.) Present. The Hon'ble C. B. Trevor, G. Loch, and.W. Morgan Judges. Sir, — In reply to the question submitted by you in Tabular Siato- ment No. 127, flated the 12th instant, vis., whether a '' Nikahit Stri " is a wife within the meaning of Section 497 and 498 of tlie Penal Code, I am directed to inform you that marriage, under Ma- homedan Law, is a civil contract, and proposal and consent are the essentials to the contract ; and if tiie leual condition as to tlie age and freedom of the contracting psirties are satisfied, it is a valid marriage. There is no difference in Mahomedan Law between a Nekai wife and another, and the Sections of the Penal Code above cited apply equally to both. 1 W. R.,Cr. I.,p, 1. Withdrawals of Complaints and Compounding offences. No. 866. From the Officiating Registra/r of the High Court of Judicaini/re at Port William m Bengal, to the Sessions Judge, Sylhet, dated Cakutta, the 19th September 4864, (Criminal Side). Present. The Hon'ble G. B Trevor, Judge. Sir,— With reference to para. 5 of the Magistr.ite's letter for- warded with your communication No. 27 of the 29th nltimo, I am directed to request you will inform that officer that withdrawals of Complaints and compromises can, under Sec. 271 of the Code of Criminal Procedure, be permitted only in cases falling within the scope of Chapter XV of that Code. A party may compound • an offence which consists only of an act irrespectiye of the intehtion of the offender, and for which the injured person may bring a civil action, e. g., assault, illegal confinement, adultery (Exception, Seo- ti6n 214 Indian Penal Code) and such like; but, if he once brings such an offence to the eognizwnce of the Crimfnal Courts, he cannot withdraw the charge. You will be good enough to impress the above remarks on all the Magisterial officers subordinate to you, as it is quite possible some CRIMINAL LETTERS. 534 of tiiera may be under a similar misconception of the prdvisions of tlie law ill respect of cases comproinisiible. 2. Wiih reference to the reasons a»sig,nerl by the Magisira^e for delaying to resjiond to requisitions for explanrition made i>y you, I iini to request you will inform that Officer that his Collec- torate duties cannot be heavier than, if so heavy as, those of other OfficHrs. Be this, however, as it may, the Court expect he will exery, 'I'in Mistry (Case No. I of StateiHent No. 4.) the first head sliould huve been sub-diviilfd into two head", one chdi-ginsr tlie prisoner with theft of Mr. Bell's piivate property, the other with tlieft of properly l)elonging to the Jullinga Tea Company of wliicli Mr. Bell "as M inager. The first head of tlie cliarge should have been framed thus : — That he, between the nmnths of February and October last at Jullinga in Caeliar, bivin;; a i^eivani of Mr. Bell, committed theft by stealing; about five iiundred Rii|iees worth of property in ilie possessiop of l)is master Mr. Bell,. &c., in the words given in column 9. The words underliiieil, yon will observe, are very tniiterial and have been omitted in the charge on- which tiie prisoner was tried. The actual possession is very material in a charge of Theft, as it con- st ituiea the difference between Theft and Breacii of Trust. The S'^cond head of charge should have been Bimilar to the first, but referring to the Tea Factory instead of to Mr. Bell. In what was the second head of the charge upon which the prisoner was tried, the Court observe that the following "ere omitted — ''he, being a servant, and being in such capacity entrusted with dominion over property worth 500 Rupees," committed a Criminal Breach of Trust with respect to " that property ." 2W. R.,Cr. L., p. 15. A charge of House Trespass cannot be compounded. No. ,181. Resolution of the Sigh Court of~ Judicature at Fort William in Bengal, under date the 20th Febtuary 1865. Present. The Hon'ble C. B. Trevor and the Hon'ble G. Loch Judges. Eead a letter No. 13, dated 6th February, from the Sessions Judge of Bhaugulpore, submitting, under Section 434 of the Code of Criminal Procedure, the case of Dookha Hulwai versus Nuthoo Mahoot, that the order of the Deputy Magistrate, dated 8th De- cember 1864, permitting the withdrawal of the prosecution may be cancelled as illegal. CRIMINAL LETTERS. 636 The Deputy Magistrate in his judgment, has Hctecl under tha erroneous impression that ihe offence charged (House Trespass, Section 448 of the PenHl Code) consists only of an act irrespective of the iniention of the offender, and, therefore is wiihin the ex- ception specified in Section 214 of the Penal Code. House Trespass is defined, in Section 442 of the Penal Code, to be tlie commission of Criminal T/-eppas» by entpring into or re- maining in any building, dec, used as a liunian dwelling, &e., drc, and Criminal Trespass is defined by Section 441 of tlie Penal Code to be the entering into or upon pro[>erty in the possession of another with intent to commit an offence oi to intimidate, .&c., or ( after the lawful entry into or upon such property ) the unlawful remain- ing there with intent thereby to intimidate, &c., &c. It is tha crimjMfl/ tw^ew^ which is the principal ingredient to the offences of Criminal Trespass and House Trespass. Moreover, as the com- promise or withdrawal of a Criminal prosecution is permitted only by Section 271 of the Code of Ciiminal Procedure in cases falling under Chapter XV of that Codf, and as Hoii.se Trespass, which is punishable with imprisonment for one year, does not fall under that Chapter, a charge for that offence cannot he cmn pounded. The Court agree with the Judge as to the illegiillity of the Deim- ty Magistraie'.-i order flated 8rli December last, and, cancelling it, direct that he proceed with the trial of the accused Nulhoo Mahoot. , The original record of the case is. returned. Para. 2, of Letter No. 503 omitted in page 533. 2. I am to add that the iibove reniaiks do not apply to tli()«e marriages amongst the Sheaks which are ordy temporaiy, and, though called marriitgeH, arw a sort of legal concubinnge. ■Mo i jorgig\g« M »- 4W. B., Cr. L.,p. 1. Dacoity with Grievous Hurt— Finding and Sentence in case of doubt of which of several charges the accused is guilty. Extracts (paras. 2,, 3, 4, and 5) of Letter No. 855, from the Registrar of the High Court, 8fc., dated Calcutta the 2Gth August 1865. 2. The Court ai-e of o|)inion, on consideration of the qnesiioii put in your first par'agraph, that, when grievous hurt is inflicted with a deadly weapon by one of ten men aimed with ^uoh weapons, and engaged in dacoity, all the men are liable to the minimum punishment prescribed by Section 397 of the Penal Code. 3. In regard to the points set forth in your second paragraph, the Court observe that the two substantive crimes under Sections 537 CRIMINAL LKlTpKS. 395 and 396 are dacoity, and dacoity with mmder. Dacoity widi wounding (as under tiie old laws, it wduld liave beei. oalleil,) or dacoity witii gripvous hurt, op- attempt to cause death or gvievou*! hui't, fulls, as lo iis punishment, utulfr simple dncoitv, with this difft'reiice that the minimum punishment is seven ypars. Hence it is strictly neops'siiry thai, in such a case, hoth Sections 395 iind 397 should he cited in a charge under Section 397 of the I'piml Code : for the jjunisinneni is hot fully given in the last Seciion, which \i, as you observe, simply declaratory. 4. With respect to your third pnrHgrjipli, the Court obserre that, if the ofFetlce of "giving false evidence" is assigned in two ' stiiiements, and you are unable to dpciile which is (lie I'ulse one, — in otfier words, it" you tire iloubtful of wliich of tlie charyea. the accused was guilty, — you should only find ihai he is guilty on some one of the charges, and r(>cor^d on the charge regarding which yon entertain no doubts ; and a plea of guilty to a particular (diar^je if you discredit it, does not, of necessity, reqniie a ^entence ayaiirst the party pleading it. 5. In Conclusion the Court diieci me to reqnest that, for the future, in cases like those which form the subject of your present reference, you will rely on your sound judgment. Yon will very probably be rigiit in your conclusions and your interjiretation of the law; and if you are not so, any error can be rectifieil on ap- peal. If every District Juilge were to ventilale his doubts to the Court, and requir« answers with a view to the solution, the per- formance of his duty would very seriously interfere with the other duties of the Court. 4 W. R., Cr. L., p. 2. False charge of fraudulent de»truction of valuable Secu- rity—Statements of Witnesses recorded by Police Officers. Extracts (paras. 2, 3, and 5) of Letter No. 898. from the Re- gistrar of the High Court, 8fc., dated Calcutta, the 6th Septem- ber 1865. 2. The first head of the charge against Boop Chand Lalla (Case No. 2 of Statement No, 4,) is not complete. If the accused merely charged Buidonuth Saiputte'e with having destroyed a va- CRIiriNAL LETTERS. lujihle sef'uriiy, lie did not oliarge that penon with an offence iin- iler tlic Pencil Coile It is, however, pi-esumfd thut, with ihe ex- ception of I he iiiC(>m|ilete charge in this case, your proceedings were reguhir; and that the accu«Cid made a false charge under Seel ion 477 of the Penal Code. In such an offence there must be fraud, dislionesty, or an intent to cause damiige or injury, and llie '^ fnlse cliarge upDn which this trial is founded probably contained one of tliese esHfintials. 3. It doe> not appear clearly from your judgment in the case of Kalee iMyiee (Case No. 9 of Statement No. 4) that the deposi- tion of the deceased woman, recordt'd by tlie Policeman Aiimad Bnx, and receivefl by you as evidence (Exhibit B,) vfas mado un- der suoh circumstances as would make it a dying declaration uri- der Section 371 of tlie Criminal Procedure €ode. Tlie Court pie- snnie ihat the i)eces>ary precauiions were taken, as otherwise the deposiition, being; that of a witness taken by ihe Police, would not be receivable as evidence (Section . 145 of the Code of Criminal Proceduie.j 4. The piipei- termed Exhibit B in the case of Oroon Mytee (Case No. 11 of Statement No. 4J should not have formed part of the record, or have been treated by you as evidence. 'J'he |)ro- Tisions of the latter portion of Section 145 Criminal Procedure Code, would apply to this document wliich appears to have been the staiement of a witness recorded by a Police Inspector while enquiring into a matter under orders of the Magistrate. The d«- positions of tiie Inspector and of some of those who were present, when the prisoner avowed the authorship of the anonymous peti- tion, would have been sufficient to prove the avowal. 4W. R.,Cr. L.,p.3. Framing of charge for False Evidence— Dying depositions without proof of belief of approaching death. Extracts (paras. 2 and 3 ) of Letter No. 903, from the Re- gistrar of the High Court, ^c, dated Calcutta, the 7th September 1865. 2. The Court remark that in the charges against Bunwaree Singh ( Case No. 4 of statement No. 5,) and Koylash Chunder Mitter and others ( Case No. 8 ) , the false statements uiider Sec tion 193 Penal Code, upon which these charges were founded, should have been fully set forth. 3. With reference to ycur remarks on the case of Radihca Pershah Gliosain ( Case No, 9 of Statement No. 5,) the Court di- 539 CHIMIN- AL LEITBRS. rect me to state tliat, if the cle|jositi(>n of the deceased wfig tnken by the Di'puiy Magi>-traie in the presence of the accused, the absence of proof as to whether the deponent believed himself to be in dan- ger of approaching death, would not make his evidence inadmis- sible. It could not, of course, be treated as a dying declaration, but it might be admitted as evidence under Section 369 of the Criminal Procedure Code. 4 W. B. , Cr. 1. , p 3. Doing bodily injury with the knowledge that the act done is likely to cause death, is Murder. Extract (para. 2.) of Letter No. 908, from the Registrar of the High Court, 8fc., dated Calcutta, the 8th September 1865. 2. The Court, on perusing your finding in the ease of Saribut Mundul fCase No. 18 of Statement No. i.) are whollj unable to understiind on wliat grounds you have concurred in the verdict of the Jury. There was no legal provocation in the case, nor was there the absence of premediiation, nor was there heat of pas- sion on a sudden quarrel which would reduce the crime to culpa- ble homicide ; but, on the other liand, the act causing the bodily injury w»s, according to the verdict of the Jury, done intentionally with the knowledge, on the part of the offender, that it was likely to cause death. Under these circumstances, the case appcara to the Court to be one of cruel murder. 4 W. R.,Cr. L, p. 4. Compensation to prosecutor— Proof of pecuniary loss— Con- victions under Sections 211 and 193 Penal Code. Extracts ( para*. 5 and 7 ) of Letter No 92T, from the Regis- trar of the Sigh Court, Sfe., dated the Wth September 1865. 5. With reference to the sentence passed by you on Gunga Gowala and another f Case No. 8 of Statement No. 4 ) imposing on him a fine of 25 Rupees to be paid to the prosecutor, and your remark that the amount should " be paid to the co-prosecutor for the pecuniary loss which must have resulted to him from his long sojourn in hospital," the Court observe that it was your duty to find, ^r«<, that the prosecutor had incurred pecuniary lose, and then to assess the amount of such loss before awarding compcnsa- CEIMTN'AL LETTERS. 540 tion. You -^hnuld not iuive Jiwardecl compeii*ftiion on tlifl above Buppo»itio!i ; but, ms tlie frtci would mIiow tliat ppcuuiary loss lia** been suffered, and thui tlieaiuount awarded is rfiasonable iiiid pro- per, the Court see no reason to interfere n iih your order. 7. The prisoner Blieeeliook Dosndh ( Case No. 14 of Staieraent No. 4. ) sKouhl not have been convicied and sejitenced both under Section 211 and 193 of ilie Indian Penal Codf, since these offences were committed by liitn siinullaneously and by the ssime act. A", however, the sentencei in ihe aggrejjate are nor excessive for a conviction under Section 193, the Court will not interfere unless they thimli proper lo do so as a Court of Appeal. (Seep. 279.; 4 -W. B, , Cr. 1. , p. 4 False Evidence— Grievious Hurt— Forgery. Extracts (paras 3, 4, and 6 J of Letter No. 929, from the Re- gistrar of the High Court, Sfc, dated the Wth September 1865. 3. With reference to the cliarge of ^Ww^ false evidence auainst Sofer Ali fCase No. 23 of Statement No. 4,) the Court ol:)serve that tiie statement made by tiie accused upon whicli that charge VTu.'< founded, sliould liave been ex|)ressly stated therein. 4. T(!our judjiment in ihc cuse of Hyder Ali (Case No. 24 of Statement No. 4j is not sufficiently clear a< to the naiuie of tlie grievous hurt inflicted. Y^'ur obsermtion that " the injuries re- " ceived by Bunnoo were severe, but nol dangerous; the evidence " of Civil Suijreon, however, shows that the constituted grievou.s •' hurt," is very vague on this most important point. Tlie Court ■will however, pre-^urae, unless the contrary be shown on appeal, that your judgment was correct. 5. The charge against Bahsarut Ali (Case No. 25 of Statement No. 4) should have contained some description of the forged docu- ment. It Tvas not sufficient that it should state merely that the prisoner had " committed forgery by signing Ameenoollah's name on a document." It does not appear from your judgment in the case that the prisoner signed Ameenoollah's name with any such .intent as would make his act /or^rery, under Section 463 of the Penal Code. It is possible that that act might have amounted to some other offence under the Penal Code, but further action is un- necessary, since the sentence of two months' rigorous imprison- ment passed by you has already been undergone, or will imme- diately expire. 541 CEIMIXAL LETTERS. 4W. R., Cr. L.,p. 6. Recovery of unpaid portion of fine on death of offender. No. 968. From the Registrar of the High Court, 8fc., dated Calcutta, the Idth. September 1865. ( Criminal Side. ) Present. The Hon'ble B. Trevor, Judge. Sir, — In re|ily to your leripr No. 239, dated the 7rh ingtaiU, I am diivetod lo slate that the miiiier theieiti referred has been i'lilly coiisiilei'ed hy tlie Court, and thnt ihoui^h, under Seciion 70 of tlie Pfnal Ci)ii«, after the death of an offender any property wliicli would then be legally liable for hia debis, would be liab'e to ihe payment of any poi'tioii of a fine reiuaiidng iinpiiid at hia dpaih, still, durinjr his life, under Section 6 of the Code of Criuii- nnl Piocediiie, oidy movealile property belonging to ihe offender which may be found within the jurisdiction of the Mairistrate of the District in which he lins been sued and sentenced, is liable. Memorandun:! made by Police Officer. Extract (para : 4) of Letter No. 970, from the Registrar of the Sigh Court', 8fc., dated Calcutta, the \Wi September 1865. 4. With reference to your 5th para : I am to observe that the ]V)emorany yon to becoriecf. 2. The fine alliidpil 'o in Section 70 of tlie Penal Code i< one of the |iUHi: under the Code, and that fines inflicted tor oftences jiuiiisliable under other laws are not within the provisions of that* Section unless its operation be specially extended theieio. 4 W. R., Or. L., p. 8. Notes made by Police Superintendent. JN'o. 1069. From the Registrar of the High Court, S^c, dated Galciitta, the 29th November 1865, (Criminal Side.) Present. The Hon'ble C. B. Trevor, Judge. Sir, — In acknowledging the receipt of your letter No, 210, dated the 31st ultimo, 1 am directed to inform yon ihut the Couit, in the 7th paragraph of my letter lo your address,. No, 816, dated tbe 19th Au{?ust last, only inientfed to point out to you that the notes made by a Police SnperintendenI; should not be looked at by him in order to refresh liis memory until they hnd been verified, that he might then refer to I hem and eive evidence on the point entered in them ; but the notes themselves, by being u.sed to re- freah memory, do not thereby become evidence ; and ireiiher under Section 145 of the Code of the Criminal Proiiediire, nor under Section 45 of Adt II of 18.5,5, should they be received and looked at by you as such, as seems to have been the case in the trial of Gopal alias Junglee, which gave rise to the Court's remark. The notes are simply allowed with a vie.vv of refreshing the meinoiy of the person whose statement alone is evidence, and, as sutIi, they may be, seen by the accused parties' vakeel, and he may 543 ■ CRIMINAL XETTERS. cross-examine witnesses upon tiiem in ordflr tliiit: liis client may hiive tlie beuefii of the witness refresliirig his memory by every part of tiieni. .2. I am ileRireil to reqnest your attention in future to tlie in- struclioue contained in liie forejjoing. 4 W. R., Cf. L, p. 8 How Police records to be evidence against an accused-^ Magistrate not bound to file any document alluded to in his grounds of commitment. No. 1092. From the Registrar of the High Court, 8fc., dated Calcutta, the 7th December 1865. (Criminal Side.) Present. The Hon'ble C. B. Trevor, G. Loch and H. V. Bayley, Judges, Sir. — I am clirecieions Jndge, such Police records aa lie may call for; and wiietlier the Magistrate is or is not bound to file any document aliinled to in bis grounds of coiiimitment ; and, in reply to answer both tliese questions in the negative. 2. The Court aie of opinion that the Police records are not evidence ajjainst an aconsed party ; that you should summon the Police Offieer with th^ daily record of bis proceedings kept under Section 154 of the Code of Criminal Procedure; you shfmld (hen examine him as, to tiie matter you require to elicit, giving him an opportunity after the recoril lias been proved to be what it is re- presented to be, and, if it be necessary, to refresh his memory by looking at it, and to toll the Court what it contniiis. The Police- man's statement will then be legal evidence, and the object of the Court will then be fully gained. 4 W B. , Cr. I.., p 9. Each head of a charge to be complete in itself. JExtract (para. 3) of Letter No. 1114,/roOT the Registrar of the High Court, 8fc., dated Calcutta, the 11th December 1865. 3. The Court observe that the entire charge against Nujub Sitah and others (Case 2 of Statement No. 5) is not altogether re- gular, for each head should have been eou)plete in itself; whereas, CRIMINAL LETTERS. 544 insf^ad of attacliing to each particular head the Seclion of tlio Penal Code under which the offence ciiarged therein was puiiisli- able, tlie Committing Officer has wound up the charge by a general summing up of the several Sections of the Penal Code under which the offences ciiarged in the different heads were punishable. 4 W. R.,Cr. L., p. 10. Framing of charge of Unlawful Assembly. No, 1150. From the Registrar of the High Court, ^c, dated Calcutta, the \6th December 1 865. (Criminal Side.) Present. The Hon'ble C. B. Trevor, Judge. Sir, — With reference lo your Jail Delivery Statements for September last, I am directed to remark that the first head of the charge against Ishwar Chunder Ghose and another (Case 2 of Statement No. 4,) and the second and third heads of the charge against Azgar and another (Case 3 of Statement No. 4) are in- complete, inasmuch as they have omiiiied to state the eommon ob- ject oi the xxnhiviiixl as-ieml)ly, in prosecution of which an offV-nce was committed by a meniber so as to render all liable to such offence under the jjrovision of Section 149 of the Penal Code. 4W. R.,Cr. X. , p. 11. Charge of dishonestly receiving stolen property to set forth knowledge or belief. No. 1154. From the Registrar of the High Court, 8fc., dated Calcutta, the ISih December 1865. (Criminal Side.) Present. The Hon'ble C. B. Trevor, Judge. SiE, — With reference to your Jail Delivery Statements for Oc- tober !a«t, I am directed to point out thav, the charge against Shirll (Case 2 of Statement No. 4) should have set forth that he knew or had reai\i Sing (Case. 6 of Statement No. 4) tlie Court find ihat the silteriiative senteTice of irapriaoiinifint, in default of payment of fine, exceeds tlie legal limit which in such a cii'^e would be one and a half monih, inasmuch as Spciion 65 of the Penal Code limits imprisonment for default to one-fouriii of the maximum period fixed for the fiuljuitabie form of ehtuge : — Tliat she, on or about the at , kidnapped A B , being a female minor, under tiie age of 16 yeaiS, (rom I he lawful guardiaBship of her fatiier, and tiiereby, &c. The offence of kidnapping from lawful guardianship, as defined in Section 361 "f tiie Indian Penal Code, can be committed only in respect of either a mnior or a person of unsound mind. To kid- nap a person therefore, would not be the offence in question. The Rct of forcibly compelling or deceitfully inducing a person to go irbm any place is called " abduction '' (Section 362 of the Penal Code^; but &ny person may be kidnapped from British India, (Sec- tion 360j. You are requested to call tiie Magistrate's attention to the exact words of the law. 8 W. R., Cr. L., p. 17. Form of charges in cases of Grievous Hurt and Rioting with deadly weapons by a Member of an unlawful assembly. Letter No. 887, from the Registrar of the High Court of Judi- cature at Fort William in Bengal, to the Sessions Judge of Tirhoot, dated ike Zlst July 1867. Present. The Hon'ble C. P. Hobhouse, Judge. Sir, — With reference to your Jail Delivery Statements for June lasi, I am directed to observe that the charges against Seeta Eann and others (Case 2 Statement 4) and Degumber Rai (Case 2 State- ment 5j have been incorrectly drawn up. Tliey should have set forth. — ^ , " \st. — That he, on or about the at , wag a member of an unlawful assembly, and did, in the prosecution of a common 549 CRIMINAL LETTERS. object, voliinlnViIy cause grievious liui't otherwise tlian on grave or siidilen provocation to , and that, he has thereby committed an offence puiiiqiiable under Section 149 read with Section 325 of tlie Indian I^enal Code, and within tiie cognizance of the Court of Sessions. 2ndly. — Tiiat he, on or about the^ , at- , was a member of an, unlawful assembly, and did, in prosecution of a common ob- ject of such assembly, commit the offence of rioting, armed with a deadly weapon, or with something whieli used as a weapon of offence uas likely to cause death, to wit, a- -, and lias thereby commiitod an offence punishable," &c. 8 W. B,., Cr. L., p. IS. Forms of charges in case of False Personation, and Abet- ment thereof. Extract {para. 2) from Letter No. 908, dated 2nd August 1867, from the Registrar of the Sigh Court, to the Sessions Judge of Backergunge. The charge's against Ram Cliunder I>os9 and Prosono Coomar Gangooly have been incorrectly drawn up. Tlify should have set fbrth. Against Earn Cliunder Doss. "Firstly, — that he, on or about the at falsely personated one G'loroochiirn Dult, and in such assumed character made a statement, m%., (here the statement should he set forth) in a proceeding under Act 20 of 1866, and that lie has hei-eby,'' &c. In the Second head, the words " on oath was not recorded '' should have been omitted. Against Prosono Coomar Gangooly. '' Firstly, -~\\i&\ he, on the said date, at the said place, abetted R-im Cliunder Doss, in falsely personating one Gooroochurn Dirtt, a witness, and in making in such assumed character a statement testifying to the identity of Jumaldy, Opagnddy, Nyzuddy, and Arman in a proceeding un- der Act 20 of 1866, and that he has thereby committed an offencer punishable under Section 94 read with Section 93 of- Act 20 of 1866; and within the cognizance of the Court of Sessioirs. " Se- condly, — tliat he, on the said date, and at the said place, alJetted Raw Chnnder Doss, in intentionally' making a false statement, by stat- ing before the Sub-Registrar of Midnapore, who was acting in exe- cution of Act 20 of 1866, in a proceeding under the said Act, that he is Gooroochurn Dut( and a witness to the instrument A, and by testifying to the identity of Jumaldy, Opaguddy, Nyzuddy, and A'rniE^n, and that he has thereby committed an oflfenee punish- able under Section 91 of Act 20 of 1866, and within the cog- nizance of the Court of Sessions." CRIMIXAL LETTERS. 4 W. B.., Cr. X.., i>. 3. Reference to Section 75 Penal Code— Previous convictions. Extract (para. 3J of Letter No. 912, from the Registrar of the High Court, Sfc, dated Calcutta, the 8th September 1865. Alluding loilie sentence passed by you upon jDvrjim Alieer (Case No. 8 of St.itemeiit No. 4,) llie Court observe that, as llieie ■was no enluinceiDent of punishment beyond tlial to whifh the pri- soner was liable under Seciion 457 of ihe Pensd Code, you should not have referred to Section 75; 3 ou "ere quite right, in pas.^ing sentence, to tuke into consideiation the prisoner's previous Conviction. CHARGES UNDER THE PENAL CODE. From Mayne's* Penal Code, 9th Edition, p. 439 to 456. . (No. 1 .) Abettor of Murder ichere the Principal is aho charged. That he I he said C D, on or about ihe day of at abetted the comn)ission of tlie said murder by tlie said A B which vras coinniiited in consequence of the abet*n)ent, and that he has thereby committed an offence punishable under es. 109 and 302 of the Indian Penal Code, and vfithin the cognizance of tlie {Style of ihe Court ) Upon conviction of an abettor his punishment dfepends upon the penalty attaching to the principal offence charged, and also upon whether the offence was or was not committed in consequence of the abetment, or a different of- fence was committed. Therefore, both the principal Section must be men- tioned, and the. particular Section of Chapter V. under which the case falls ('ss. 109-113, 115-117,) with the circumstances which bring it under that Section. (1 WE. CL. 9 ; 2'Ibid. 1, 8.) (No. 2.) Abetting as a separate offence. That one C D ( or certain person unknown) on the day of committed theft by dishonestly taking Rs. 50, the property of one — out of his possession, without his consent, and tiiat he the said A B abetted the said C D (or the said persons) in the commission oftlieisaid theft, which was committed in consequence of the said abetment, and that he has thereby committed an offence punishable under at. 109 and 379, of &c. 551 CHARGES UNDER (No 3.) Abetting an offence with a different hnowledge from that' possessed bij thepersons abetted. Tliat lie, on or aliout tlie tlay of ilid insiigate and abet oiiH A B to assault one C D, lie tlie said (abettor) tlien and tlieie Wfill knowing iliar the death of C 1) would be liie probable re- sult of sncli agsiiult and intending to piocure the death of the said C 1) by'means of the as«aalt so abetted, and that the - said A B did, ill consequence of siudi abelnieni, assault the said C 1)^ who ilied ill consequHiioe of ^uch assault, and that he the said [abettor) has iheieby committed an offence puiiidhable. under 88. 110 ■ and 302 of &c;. (No. 4.) Abetting one offence where a different offence is committed. Tiiai he, on or about the day of did instigate and abet one A B to break by night into the iiouse of one C D, having made |irepai;iiiiins for causing hurt to a person, and lliat the said A B did, in pnrsiiHuce of such abetment, break into the hou>e of the said C D, and murdered one E F, then bein;.' in the said house, pufii murder hein<>' a |nobable ccmsequence of the said abetment and hfiiitj eommitied under the influenee of tlie iiis'jgation afoie- Miid, and that he tlie said (abettor) lias thereby comiuicted an of- fence punishable under ss. Ill and 302 of (fee. (No. 5.) Abetting an offence which is not committed. That h(j, on or abouc ilie day of did instigate and abet one C D, then bniug a Village Moonsiff in lo take u grati- fication oilier than his legal remuneration as a reward for showing favor to, him the said (abettor) in the exercise of his official func- tions, that is to say, in 0. S. 1 of 1861 then pending before him the said C D, and that he has thereby committed an offence punish- able under us 116 and 161 of &c. ■ {No. 6.) Public Servant for concealing a design to commit an offence which it teas his duty to prevent. That, on or about the day of A B, and certain other persons unknown, committed dacoity (gang-robbery) in the village of and that the said (defendant) being then and there a Police I'eon and, as such, a public servant, whose duty it was to prevent the said crime, being well aware of the design to commit the said offence and intending to facilitate the commission thereof, did vo- luntarily conceal the same and did illegally omit to inform his su- perior officer of such design, and that he has tlureby committed an offence punishable under ss. 119 and 391 of &c. Note. — The indictment ought to state such facts as will show not only that the defendant was a public servant, but, also, that he was a public servant whose duty it was as sucfc, not merely as an ordinary citizen, to prevent the offence I THE FENAL -CODE. 552 (No 1.) Waging War. See page '^lA for this charge. [No. 8.) Attempting to over-awe a Councillor hy violence. That lie, on or about the day of at witli the inten- tion of inducing the Honorable A B, a Member of the Council of the Governor of , to refrain from exercising his lawful power as Buoh member, assaulted such member, and that lie has thereby ' committed an offence punishable under s. 124 of &c. (No. 9 J Attempting to teduce a Soldier from his Allegiance. That \ve, on or about the day of attempted to seduce from his allegiance to the Queen one then being a private soldier in the Regiment of Her Majesty's Army, and that he has thereby committed an offence punishable under a. 131 of &c. (No. lOJ Joining a;,\ unlawful Assembly Armed with a Deadly Weapon. That he, on or about the day -of at with other peraons to the number of five or more, did unlawfully assemble together, he the said being then and there armed with a deadly weapon, that is to say a gun, and that lie has thereby comniitipd an offence punishable under s. 144 of &c. NoTB. — If the circumstance of aggravation does not exist, omit the clause in italics, and charge the offence as punishable under s. 143. See the remarks upon the indictment for daooity (gang-robbery) under s. 391. For Unlawful Assembly &c. See p. 514, 544 & 548. S.L. (No. 11.^ Rioting. That he, on or about the day of at with other per- sons to the number of five or more, unlawfully assembled together at and there used force in prosecution of the common ob- ject of such assembly, viz., in resisting the lawful arrest of A B, and thereby connnitted the offence of rioting, and tliat he has thereby committed an offence punishable under s. 147 of &c. . See pages 490, 514, 548 & 504. S.L. (No. 12.; Affray. That on or about the day of they the said. A B and C D did commit an affray in the public street at by fighting there- in, and disturbing the public peace, and that tli«y have thereby committed an offence punishable uiider s! 160 of &c. {No. 13.j Public Servant accepting a Gratification. That he being a Public Servant, that is to say, an Inspecting Engineer in tlie Department of Public Works, accepted for him- self from one A B a gratification, other than a legal remnneration, as a motive for his the said {defendant's) procuring a certain con- tract for the said A B, sucli being an official act, and that he has thereby committed an offence punishable under s. 161 of &c. See page 493. S.L. 653 CHARGES UNDER {No. M.) Disobeying a Summons Sfc. s. 174. That on or about the day of one A B, then being a Ma- gistrate legally competent to issue a summons, did by bis summons call upon the said {defendant) to appear and answer to bis charge {or give his evidence) at the Police Court of on and suqh summons was duly served upon the said {defendant) who was legally bound to attend in obedience to the same, yet lie intention- ally omitted to attend at the said Police Court, and tiiat he has thereby committed an offence punishable under s. 174 of &c. (No. 15.) Disobeying an order promulgated by a Public Servant. That on the day of A £, then being Magistrate of made and promulgated an order directing the Left Hand Caste to refrain from conducting a processing through the Street in the Village of , such being an order which he was lawfully dmpowered to promulgate, and the said {defendants), well knowing the said order, disobeyed the directions of the said A B and conducted the procession through the said street, whereby a riot was caused in the said village {or) whereby danger to human life and safety was caused, and that they liave thereby committed an offence punishable under s. iSSof &e. If no riot resulted and no danger was caused by the act of disobedience the clauses in italics should be ofliitted, but some averment must be inserted to show that the consequences stated in the previous clause of s. 188 have re- sulted from the disobedience, otherwise no offence at all has been shown. Further see p. 612. S.L. {No. 16.) False Evidence. That he, on the 1st day of May, 1861, being summoned as a •witness ai the hearing in 0. S. 1 of 1861, being a judicial pro- ceeding then pending before the Magistraie of and being bound by solemn affirmation to state the truth, intentionally gave false evidence by knowingly and falsely staling that he iiad seen one Ramasawmy sign a certain document marked A, whereas he had not seen the said Hama>awmy sign the said document, and that lie has thereby committed an offence punishable under s. 193 of &c. • NoTB. — The averment that he "intentionally gave false evidsnce" is a very material point. (2 W. R. C. L. 11.) The date of the trial and the Court or officer before whom, the false state- ment was made should be set ont according to the facts, so that the prisoner may be able afterwards to plead his conTiction or acquittal. (7 b. L. B. Appz. 66.) Fmiher see pages 502, 538 ^ervice of ihe Government of tlie Straits Setlemenig, wiih intent to deceive the said C D, and thereby dishonestly to induce the said C D to deliver certain goods to the said A B on credit, for which he the said A B did not mean to pay and that h^ has thereby committed an offence punishable under ss. 511 and 417 of &c. See notes to, Forrii No. 59, p. 566. S.L." Compiled and arranged by S. Leicester. Printed at the Commercial Press, by Heap Leb & Co., PENANG. 1877. 569 . PRIVY COUNCIL CASE. Privy Council Case, Vol. vi, p. 381. July 6f 7^ 8 &. 28, 1875. Present: — Sir James W. Colville, Sir Barnes Peacock, Sir Montague E. Smith, and Sir Robert P, Collier. Yeap Cheah Neo and others Appellants ; and Ong Cheng Neo Respondent. On Appeal from the Supreme Court of the Straits Settle- ments, in its Division of Penang. i English Law in Penang — Will — Construction — Gift of Residue to Executory, ichether absolute or in trust — Gifts poid for uncertain- ty — Perpetuity— Pmver of Appeal from the Supreme Court of Penang. A testatrix, after appointing four executors, made over to them by her wiU " as such " all her property and effects, " but in trust always for the purposes hereinafter mentioi^ed ; " and after directing them to preserve certain houses as a family house, and giving certain specific bequests, disposed of the residue of her estate as follows : — ' " As regards the remainder of my real and'personal property of what kind soever, not already disposed of, I direct that my executors shall receive and collect the same from all persons whatever, and in such manner as to..them may seem proper, and I direct that they, their heirs, successors, representa- tives, or descendants, may apply and distribute the same, all circumstances duly considered, in such manner and to such parties as to them may appear just " :— Hdd, that, aqcording to the true cpnstyuction of the above clause, there was no absolute gift to the executors as individuals. The residue was not severed from the trust with which the testatrix had clothed all her property in the hands of her executors, but although a trust was intended to be created, it failed for want of adeqnate expression of it. A gift " of the upper storey of four specific houses or shops, to be occupied by the several members and descendants of K. S. C. and L. K. W. as already proposed ; " i.e., as the context shewed, as a family house for the use of two separate families, hdd to be void for uneertainty, and as denoting an intention to create a perpetuity. : A devise of " two plantations, in which 'the graves of the family are placed, ■to be reserved as the family burying place, and not to be mortgaged or sold,'' is void as a devise in perpetuity. A direction " that a house for performing religious ceremonies to my late husband and myself be erected" is Void; such a devise being in perpetuity and not for a charitable use. The law of England inust, having regard to the Royal Charters of 1807, 1826, and 1855, be taken to be the law of Penang so far as it is applicable' to the circumstances of the place, and modified in its application by these circum- stances. English statutes, therefore, in their nature inapplicable to Penang are not introduced along with the general law of England. Mayor of Lyons v. East India Gompomy (1) approved. (1) 1 Moore, P. C. 175. ' PRIVY COUNCIL CASE. 570 The vule however whieh prevails in England against perpetuities, which " exists independently of statutes, and is founded upon public policy, is part of the law of the colony ; so, also, the exception to that rule which exist,? in fa- vour of charitable uses, passes withj;he rule into the said law. Ohoah Ohoon Nioh v. SpdUiswbodt (1) approved. The power of appeal to Her Majesty, and the authority of the Supreme Court of the Straits Settlements to grant leave to do so, contained in the Letters Patent of the Queen of the 10th of August, 1855, were not abrogated by Ordi- nance No. 5 of 1868, establishing the Supreme Court. All the provisions of the repealed Letters Patent applicable to the old Court were virtually re-enact- ed by the Ordinance, and made applicable to the new Court which was put in its place. Appeal, from a decrfle of the Supreme Court of tlie colony of the Straits Settlements in its division of Penang, (iiited (he 24th of July, 1872, iuul also from a subsequent order of that Court (July 4, 1873) refu-iiig leuve to appeal ajjainst supJi decree. Special leave to appeal was granted by Her Majesty in Council on the 2iul of February, 1874. The nature of the qnestiona decided, and the manner in which they arose, appear on the face of tlie judgment of tiieir Lordlihips. It may be convenient to the reader to add to the clauses of the will therein set out the 1 lih and 14th, wiiich are as follows : — " Eleventh: — My two plantations at BatwLanchang comprised in bill of sale, registered No. 100 and 131 respectively, in which the graves of the family are jtlSced, I direct lo be reserved as the family burying place, and not to be mortgaged or sold.'' " Fourteenth : — I direct that my funeral expenses shall be such as my executors and other friends may think jiroper, and I fur- ther dii'ect tiiat a house termed " SoW,Chonff" for performing religious ceremonies to my late husband and myself be erected on some part of tiie ground of the four shops or houses, already so often referred to, and of such size and description as lo my execu- tors may seem fit and proper." Mr. Hdimming, Q. C, and Mr. Ford North, for the Appellants, contended, aniongst other things, tiiat by tiie residuary clause of the will there was a good gift of tiie residue, and an absoUiie dis- posing power and ownership over it given, to the Appellants and Lim Cheng Keat beneficially. The trust with regai-d to the upper storey of four shops contained in clause 2, and the trusts respec- tively declared in clauses 11 and 14, were valid, free fiom uncer- (1) Woods' Oriental cases (see page 421 pf this work. S.L.) 571 « PRIVY COUNCIL CASE. tainty, and consfituted no infringement of the rule against perpe- tuities. Tliere was a beneficial gift of the residue to tiie executors : See Williams v. Arkle (1); Morice v. Bithop of Durham (2); Gibht V. Rumsey (3.) Mr. F. J. Stephens, Q. C, and C. Russell, for the Respondent Ong Cheng Neo, contended Ihiit tiie trusts declared in clauses 2, 11, and 14 were void for uncertainty, and as creating perpeiuities J that where the trusts were inadequately expressed, the subjects thereof fell into the general residue of the testatrix's estate ; ami that by the 15th. i.e.^ the residuary clause of the will, the residue ■was vested in the executors as trustees, and not as beneficiaries, with a resuliiiii; trust in favour of the testatrix's next of kin. Upon this lasf^ clause the question was, whether any trust was declared, it being immaterial whether it was a good trust or not. The exe. cutors were described as trustees with the necessary powers, and the case came within Morice v. Bishop of Durham, and not within Oihls V. Rumsey. Mr. Hemming, Q. C, replied. , The Judgment of their Lordships was delivered by Sir Mon- tague E. Smith. , This is an appeal from a decree of the Supreme Court of the Straits Settlements (Division of Penang), in a suit in equity, brought by the first Respondent, Ong Cheng Neo, against the Ap- pellants, tlie executors of the will of Oh Teo Neo. Some of the legatees under the will were also made Defendants in the suit. The first Respondent claimed to be entitled as the half-sister and One of the next of kin of the t«statrix. She did not dispute the validity of the will, but contended that the bequest of the residue and some of the specific bequests were void. 'J'he testatrix and the parlies to the suit were Chinese, dwelling in Penang, and the real property devised by the will is situated in that island. The first question rnised in the appeal related to the right of Ong Cheng Neo to maintain the suit. It was not disputed that she and the testatrix were daughters of the same" mother, Cheah Tuan Neo ; hnt '\i v/»s contended that Ong ' Cheng Neo was not legitiniiite. It appeurs that the testatrix was the only child of Cheah Tuan Neo, by her husband Oh'Wee Kee, who died in 1806. It is said that in 1809 the widow, Cheah Tuan Neo, married Ong Sai, imd that the Respondent, Ong Cheng Neo, and a deceased sister, were the offspring of' that marriage. The Appellants do (1) Unreported, House of Lords, June 7, 1875,— (2) 10 Ves. 535,— (3) V. & B. 294. PRIVY fOUNCIL CASE. 572 Tint dpiiy iliat tlie widow nnd Onri Sni cnlinbitprl fiom 1809 until Ong SaVs death "in 1811 or 1812. but tlie)- di-pnfe the nllpged Tniirrijitve. A pfrent dpa' of evidpiiop wns gone into upon the ques- tion, to wiiirh tlieir Lordships do not think it neop«Hary to advert in dfitiiil, since they are perfectly sali-fied wjih tl\e eonelu'^ion at whicii the learned Judge below has arrived, viz , that the marriage was pstabliihed. , Tt was not diopiitpd that Ong Sai and Cheah Tiian Neo lived together !is man and wife, and weie so treatpd by tlinir family and fiiendfj, nor that thfi Plaintiff and her deoeased sister were regardod and treated as lesjitimate children. So much was this the case, that the testatrix herself had allowed her si«ter, Ong Cheng Neo, to take out admini.'-tration to the mother's eifects. In addition to strong and consistent evidence of reputation, witnesses were called who were .preseiit at the marringje festivities,; and al- though some of tlie nsual cpremonies, sudi as the <>ivinor away of the woman, were not distinctly proved to have taken place, there is ample evidence from which, at this distance of time, the per- formance of them may be presumed. The principal opposing evidence canje from some members of the family, who say tiiey were not present at any marriage cere- mony, and did not know that any had occurred, and of a witnes? who deposed that the testatrix had spoken of the connection of her mother with Ong Sai as a shameful one. But the Judge be- low has expressly found that this last witness was not "worthy of credit, and the evidence of the other witnesses relates to facts of a negative or iiiconelusiye character, which the Judge rightly thought was insufficient to countervail the positive evidence of the- witnesses who were present at the marriage festivities, and the presumption arising from reputation. ,Tt is said that, with the Chinese, the difference between the so- cial status of a wife and that of a concubine, and in the position and treatment of legitimate and illegitimate childien is so slight, that wi)at is termed reputation affords no satisfactory ground for presuming a marriage. But if this be so, which, however, is not very clearly established, their Lordships see no reason, in the ab- sence of satisfactory evidence to the cqntrary, why the ostensible relations of the parties should not be referred to a legitimate and correct connection, rather tlian to an illegitimate, and, to say the least, a less correct one. The will in question is drawn in the style of an English, will, and attestejd according to English la^^- and the main question i" 573 PRIVY COUNCIL CASE. tlie suit, viz , the effect of the bequest of the i-^siduary estate to the executors, was dispussed nnd aigued at the bur upon the priii- ciples which govern such a bequest in an Englisli will. 'J'he will commences as follows : — " Know all men by these presents that I, Oh Yeo Neo, Chinese single woman, beino- of sound inind, do hereby make and pub- lish this my last will and testaraenf. " I am now possessed of considerable property in money, houses, lands, and so forth, and of four shops or houses in Beach Street, numbered respectively 40, 41, 42, and 43, comprised in two bills of sale, registered respectively No. 313 and 1930, and of two Government grants for land recbiimed from the sea, and forming part and parcel of the four shops or houses, just meitiioned, these four shops or houses having been left by my late husband, Lim Kong Wah, who died about twenty-six years ago. " Having no children of my own, and having every confidence in Teap Oheaft Neo, the wife of one of the partners of my liusband, named E^hoo Seek Chuan, with whom I have long lived, in Khoo Kay Chan, her son, in Khoo Siew Jeong Neo. her daughter, and in Lim Cheng Keai, a nephew of Lim Kong Wah, her son-in-law, I do hereby appoint them the executors of this my last will and testament, and I do hereby make over to them as such all proper- ty and effects whatsoever that may. belong to me at the time of my death, but in trust always for the pur_pOses hereinafter to be mentioned. " 1st. As my long experience tells me that nothing tends so much to the prosperity, happiness, and respectability of a family as keeping its members as much as possible together, it is my wish that the four shops or houses left by my late husband should continue to be the family house and residence of the family of Khoo Seek Chuan, referred to above, and also of any part of the family oi Liin Kong Wah, my late husband, now residing in China,^ who may visit this island, and that ' tliey slia;ll neither be mortgaged nor sold. " 2nd. With this object 'in view I direct my executors, as soon after my death as possible, to lea«e to two of their number, named Khoo Kay Chan and Lim Cheng Keat, their heirs and as- signs, the lower storey of thejsaid four houses or shops, that is to say, the whole of the shops, warehouses, and all other places in the premises now used for such purposes, or that may be added tliereto, for a period of forty yeai's from the day of Eby death, at the rent of 100 dollars per mouth f&r each and eVei'y . liionth du- PRIVY COUNCIL CASE. 574 riii;i tlie S'lid perii)fi of forly years. Tlie upper storey of these SHiiie four liou^cs or .'^liops to lie occupipd \>y llio spveriil members aiKJ- dt-sceiKlimt.s of Khoo Seek Chuan and Lim Kong Wah, as already pj'opiised." * The lestiiirix then in other chiuses fnumbered 3 to 14), by way of directions to her exeouiors, makes speoific dispositions of por- tions of liHi' properly, principally for the benefit of members of the fiunilies of Khoo Seek Chuan and of Lim Kong Wah, her late hnnband. Some of these chinses rai^e questions upart from the gift of the residue, which liave to be decided in this appeal. 'I'lie concluding clan S(S of the Avill are as follows: — '/15th. Aq reguvds the remainder of my real and persoiial property, of what; kind soeyer, not already dis])08ed of, I direct that my executors shall receive and collect the same fiom all persons whatever, and ill such manner as to theiu may seem propei-, and I direct that they, their heirs, successois, representatives, or de.scendants, may apply and distribute the same, all circumstances duly considered, in such manner and to such parlies as to them may appear just. " 16tli. It is my wish that my executors may noi be interfered with ill the managemem of my affairs, and that any one of them accepting this trust shall be competent to manage it, and that in the managenient thereof the wisii of the majority shall prevail. I direct that jf any of my executors from absence, death, or any other cause, become incompetent to act, that the coniinuing; exe- cutors a|>point other executors or trustees in his or their place and stead. It is my wish also that each of my executors shall only be liable for his own acts and intromissions, and not forihoseof- the others of, them." ^ ' It will be seen from tiie will that the testatrix wished to benefit the relatives of her late husband, some of whom lived in China, and also the family of her husband's partner, Khoo Seek Chuan, some of the latter being her executors and trustees. It was contended on the part of the Appellants that the residuary clause contained an express bequest to the executors in terms which imported an absolute gift to them; and a recent decision of the House of Lords (Williams v. Arkle) was cited to establish that in the case of such a devise the Statute of the 11 Geo 4^1 Wm. 4, C. 40, had no application. Their Lordships entirely con- cur in that view of the statute; but the question of the nature and character of the bequest remains, and it has to be decided whether, according to the proper and natural constructioa of the 575 - PRIVY COUNGIL CASE. lan^fdage ami provi-ions of the will in qiief.tioii, regaideiJ a-^ a wliiile, tlie iiitPiiiioii was Ur creaie a iriis! in the residue, or to make :i beDi^fioial gift of ir. to the tixwutort). 'I'his quesiioii, in all ciiften of I he kind, must be detei'mined, as Lord Cottenham said in Elis V. Selby (1), upon tiie construction of the languiige of tiie in^tl■ulnent in each pirticular case. , In eiitii'e accordance \Vitli Lord Cottenham's view the present Lord Chancelhir, (2) in delivering- his opinion to the House of Lords in Williams v. Arkle, said: — "Where an express de- vise of ihe residue is found, the meaning of tliat residuary bequest must be asceriained by the ordinary rules of construciion.'' In the numerous decisions which are found in the books on this subject, variou-i mallei's have been relied on as indicia'oi intention on the one side or the other, sucii as the use of the words " upon trust ;" the gift of specific legacies to the exocuiors or trustees and the mention of the executors by their pi'oper name^. Indicia of iliis kind, on wliicli eminent Judges have relied, may no doubt afford in some cases useful aids to construction, bat fifier all tliej ni;iy, and often must, be modified by the provi^il)n8 and language of the pariiuiiiar instrument to be coiisti'ued. Mr, Jl^iming, Uir the Appellants, cited >vhat he de.-ciibed to be two repre>eniacives cases on ihe subject: Morice v. Bishop of Durham and Oibbs v. Rumsey. He did not deny the principle laid down by. Lord Eldon iwMo- rice v. Bishop of Durham, that "If the testator meant to create a tiugt, and not to make an absolute gift; but the tiust is ineffectually created, or is not expressed at all, or fails, the next ofkiniiike." Indeed, he cited that case as a leading auihority, but be contended that the present one fell within the decision of Sir W. Grant in Gibbs v. Rumsey, who there held that the words of a I'esiduai'y clause giving I be residue to the trustees and executor's " to be disposed of unto such per>on and persons, and in such manner and form, and in such sum and sums of money as ihiey in their discretion shall think proper and expedient'' did not in the particular will before him imjiort a trust, but an abso- lute gift to the trustees. This case of Gibbs v. Rumsey is tbe autlioriiy on which the Appellant's counsel most strongly relied, but it is to be observed with regard to it that even if the present will were not distinguish- able (a question to be presently considered), Lord Cottenham cer- tainly expressed no approval ot the case in Ellis v. Selby, and (1) 1 My. &iOr. 298. (2) Lord Cairns. PKIVY COUNCIL CASE, 576 Wood, y. C, in Buckle v. Bristow (1), spoke of it as going to* the verge of tiie law. Coming to the will in question, it will be seen that, in the com- mencement, the testatrix, afier appointing four executors, makes over to them " as such" all her property and effects, " but in trust always for the purposes hereinafter mentioned,'' words which, taken alone, indisputably impress a trust upon the whole property. The 1st and 2iid clauses shew the desire of the testatrix to keep the family together, and for this purpose she directs the executors to preserve certain houses as a family house, for the residence of the family' of Khoo Seek Chuan, and of any members of her late husband's family living in (Jhina who might visit Penang ; awi she directs what appears to be a beneficial lease of some shops in the lower part of the houses to be granted to two of the executors for forty years. By a further clause the testatrix directs $ 50,000 to be given on loan to the Siime two execuiors for forty years, at 5 per cent interest but dii'ects that the rents of The shops and tlieir interest shall become part of her trust estate. There are numerous other specific bequests, but it ai^eai's that they are far fro'n exhausting the estnle, and that a large residue will be left. The clause di-poeing of this residue has been before set out at lengiii. In trying to reach iis meaning, it is to be ob- served that it contains no words of gifti but directions to the exe- cutors, and that they iire mentioned by that title, and not by name. The first direction is to collect and receive the residue ; the next, " that they, their heirs, successors, lepreseniatives, or descendants, may apply and distribute the same (all circumplajices duly consi- dered) in such marmer and to .such parlies as to them may appear just." These are neither usual nor apt words of absolute gift ; on the contrary, they indicate an intention to impose a tru-it to dis- tribute the fund among persons other tlian, or at all events, ia addition to themselves. It may be inferred from the rest of the will that the persons intended to be benefited were the niembeis of the families she desired to kisep together. It, was sai- In the goods of lewis lewis (deceased:) June 12 Will — Attestation— r-Names written ^^y another, Witnetses hold- ing Top of Pen. The names of two attesting witnesses to a will, who were unal)le to write, were written by another person whilst they held the top of the pen: — Held, that^.the will was duly attested. Br. Wambey (May 30, 1861,) moved for probate of the will of Lewis Lewis, ilece'iised.— J'lie <»i>lj question was vvhetiier the attest- ing witnesses had duly suljBcribed (he, will. It appeared from the affidavits of Willinni Croft, who had writ- ten the will, and John Lloyd, the survivinjr attesting witness that after the testator had executed the will, by making his mark, in the jiresence of the attesting witnesses and of Croft, Croft, at the, request of John Lloyd and John Jones, the two attesting witnes-ses, they being, unahle to vyrile, wrote their names, each holding tiie pen whilst his name was wriiten. Dr. Wambey contended that'the will was duly subscribed by the attesting witnesses. Sir Herbert Jenner Fust refused to grant pro- bale of a will where the names of the atiesting witnesses had been subscribed in a similar manner in In the goods of Kileher (I) ; but in that case both the attesting witnesses were able to write, and there were circumstances in the case which called for explanation, and seemed to have influenced the decision. Cur. adv. vttU. Sm C. CRESswELLf now said — The question in this case was, whether the attesting witnesses, who could not writ*?, by holding the pen at the top whilijit another person guided it and wrote their names, had duly attested the will. In Harrison v. Mvin (2), which, in its circumstances is more like the present case than any other I can find, a will had the names of two persons. Crofts and Galor, subscribed as witnesses ; Crofts had written his own name, })\\t Galor, who could neither read nor write, was called as a wit- ness at the trial, and said that Crofts had held his hand "{^nd wriggled it about on the paper," and that the Httestation wliioh ap- (1) 6 Notes of Cases, 15, (2) 3 Q. B.Bep. 117. ' ' PROBAfE AND MATRIMONIAL. 5U peared on the will was so written ; and the Court of QueRn's Beijpli lield that ilie will had been properly attested.. In this case I think each of the witnesses, by holding the pen, was taking some sh^re in the act of writing his name, and I cannot discriminate the qwinttim. I think, therefore, that the subscriplion is good, and that probate of the will siiould be granted (3^. ' Motion granted. (3) See In the goodg of Frith727'Law J. Rep. (N. S.) Prob. & M. 6. Law J. Rep., Pro. & Mat., Vol. 33, p. 25. Probate, "i 1863. V In the goods of sv^KLiTsvi {deceased.) Nov. 10 j - ■ Will — Attestation — Omission of iSignature—1 Vict. c. 26. s. 9. One of the attesting witnesses to a ihilt instead of writing his name, wrote " servant to Mr. 8,'' believing that to be the proper mode of subscribing the wiU : — Held, that this was a sufficient sub- scription, Charles Robert Sperling, late ofStanmore Manor House, Mid- dlesex, died oh the 8th of July 18B3, having made a will, dated March 28, 1863. Beneath the atte.«tation clause was written : — "George W. Harris, solicitor, Halstead. "Servant to Mr, Sperling." It appeared, from the affidavit of George W. Harris, a solicitor, that, on the 28£h of March, hie went to Stanmore Manor House for the put-pose of getting the will executed ; that Thomas Saunders, wlio had for sometime been in attendance on Mr. Sperling, was called into the library, and told that Mr. Sperling was about to execute his will, and that he and Mr. Harris were to sign it as at- testing ' witnesses ; that Mr. Sperling then signed the will in the presei|ice of Mr. Harris and of Saunders; that Mr. Harris signed his name, arid then said to Sauiiders, "Now sigh yoursell here as servant to Mr. Sperling," pointing to the part of the pape/ ihi- Hiediately below his own signature; that Saunders then wrote " Ser- vant to Mr. Sperling;" that Mr. Harris being in a hurry to catch a train folded up the paper without looking at it, and placed it in an iron chest in the deceased's library, and then left. Th<)Hias Saunders, in his affidavit, stated that he \*rote the words "Servant to Mr, Sperling,'' intending such words to be his signa- ture, and believing, from the direction given liim by Mr. Harris, that that was the proper mode of attesting the iVill. 595 tAyv journal gEtoEts. J. W. Chitty moved for probate of the will. — Siiundera, by wri- ting, "Servant t() Mr. Sperling,'' witli the intention tliat these words should be his sigmiture, subscribed the will. It is not necessary in order that there rtiay be a sufficient subscription, under section 9 of the 1 Viet. c. 26, that an attesting witness should subscribe his name — In the good* tf Olivet (X). In that cnse a witness, in- stead of writing his own name, "John Edmunds," under that of the other attesting witness, a solicitor, inadvertently wrote "John Clerk, his clerk." It was held, by Sir J. Dodson, that this vfas a sufficient subscription. Sir J, P. Wilde. — I am of opinion that there has been a sub* stanlial compliance with the requirements of Section 9 of the 1 Vict. c. 26. Without hiying down any . general rule, I am dispos- ed to think that anything written by a -witness with the intention of thereby identifying himself as a person who witnessed the exe- cution of the will is a sufficient attestation and subscription. Probate will, therefore, be granted. Probute granted. (1) 2 Eccl. & Adm. 5?. Law J. Rep., Cases connected with the duties of Magistrates ; Vol 33, p. 63. [CROWN CASE RESERVED.] / •jyj n^ \ THte QUEEN V. WATTS.* ' Depositions, how to he taken — Statute ll ^ 12 Viot. c, 42 «. 17. To render a depomtion of a witness absent through illttess ad- missible in evid-ence on ih-e ttial of a pHsoner for felony, it must have been taken in the presence of the Magistrate at well as qf the prisoner. At the hearing of a charge qf felony the iiitnesses tvere examined and cross-examined by an attorney for the prisoner in the presence qf the Magistrate, and a note was made qf the heads of what, they could each prove ; the witnesses and the prisoner were then taken into another room, and the witnesses Were there, in the absence/ of the Magistrate, exaniitied by a clerk, and their answers taken in ivriiing 'by him, and their signatufei obtained to the ^aper; after which the witnesses and the prisoner were again brqught before the MagistMte, and the evidence so taken tofls read oVer. The prisoner was then captioned by the Magistrate, and having previously mdde a statement, signed it, and the Magistrate then signed the paper :- — 5eld, that this iroWrse of taking the depositions was irregitlaf, and that a deposition so idken \vas inadmissible in evidence. ' ' ,* Coram £!rle, O.J.^ Wightman, J., Williams, J., Martin, B. and Bram- Well, B. 596 Tl)is cHse was stiteii l)y the Deputy Ri'GnrtIt>r of Livprpool. '■ Tlie prisotipr was tried befi.re me, at a Cnurt <>f Qiiiufcer Ses- sion" of the Peiicp holiien in and for tlie borough of Liverpool, on the 25th of May 1863. Hh was indicted for hirceny from his mantel'. It was proved that one of th« witnesses examined before the committinu; Majii-itrate was nnable to aiteiul the trial as a witness by reiKon of illiipss. It was then propi)se(J <>n behalf of the jjroseoution to put in evidence his depo-iiion taken bt»fore tiie coiTimitiing Miigistvate, and for this purpose a wiines* was called, who proved tiiat the deposition, was tsikeh in accordance with the invariable and long'establisiied practice of the Magistrate's Court ; that wlien the prisoner was before the Magistrate Jie was defended by an attorney, who had a full opportunity of cross-exaniining and did cifoss-examiiie the witnesses; ilmt a note of the evidence given before the committing Magistrate, consisting of the natne< of the witnesses and the heads of what each could proVe, was taken, by a clerk to the Magistrates ; that aftierwardis the pviioner and the witnesses were taken into a room, and that there another clerk, who had not been present at the eXiiininaiion before the Maiiis- ' Irate, examined the witnesses from the aforesaid note in the ab- sence of the Magistrate, and there wnJte down the answers, and that the witnesses then signed the paper so written by the said liist-mentioned clerk ; tlmt the prisoner's attorney was not there, though he might have been if he had liked, and that the prisoner was not asked if he would then cross-examine the witnesses, and did not cross-examine them ; that afterwards the prisoner, and the witnesses were again taj^en -before the Magistrate, and the evi- dence so taken and written down by the clerk iii the room in the absence of the Magistrate was read over to them ; that the pri- soner was not then asked if he would : cross-examine the witnesses ; that his attorney was not there, though he taigiht have been if he had liked j that the; Magistrate then cautioned the prisoner, w^o then signed his own statement, and the Magistrate then sigiied the paper so written as last aforesaid. One of the depositions con- tained in the said last-uienfioned paper was the deposition tender^ ed in evidence before me. " It was objected on behalf of the prisoner that such deposition was not taken in accordance with the statute 11 & 12 Vict, c. 42. s. 17, and> was therefore inadmissible; and the following authori- ties were cited: The Queen v» Christopher (1) and Vaudle v. Seymour (2). (1) 1 Den. 0. 0. 536 5 s. c. 19 Law J. Eep. (n.s.) M.C. 103. (2) 1 Q.B. Rep. 8895 a. c, 10 Law J. Eep. {n,s.) Q.B. 243. 697 LAW JOURNAL REPORTS. " I admifted tl>e deposition and the |)iipen and public street and common highway there going, returning, pass- ing and repassing, did unlawfully, wilfully, publicly and indecent- ly expose Ills person and private parts naked, and did continue on the roof of the said dwelling-house and near the dwelling-houses aforesaid, &c. &c., with his person exposed, &c., for the space of twenty minutes, to the great damage and common nuisance of the said £. A. and M. D, and ofall otiier the liege subjects of the Queen then and thep's being, and then and there residing and, dwell- ing, and along and through the open and public street and com- mon highway aforesaid going, returning, passing and repassing, and against the peace. &c. ' j * Coram Brie, 0. J^TWighfinian, J., Williams, J., Martin, B. and Bramwell, B. LAW JOURNAL KEPORTS. " The prisi'Her lived iis a servant at a house N. 4, in Alliei»iiirle Street, Piccnclill\ , and on the 31sfc of July, nhile i^eveial fnmale servants behinginij; to a olub-ii-ouse were going, to be'l, ahoiit. eleven at nijiht, in a room at th^ baek of the hoiis^ N". 11 , in Staffoi'd Street, the prisoner passed along tjie roofs of the houses, and exjiosed himself on that of No, 6, Albetnnrle Street, which was exactly oppo-iie the window of the room where the females were. He was almost entirely naked and exposed his person, They mentioned t^ie circnmstanoe to the other servants, but were scarcely ciediteil. On the followiiit; night the -pri-oner again ap- peared, and exposed himself in a most indecent manner, remaining on the roof for about ten minutes. The head-waiier of the clul) was sent for, and also a policeman, both of whom saw the ex|iosnre, making with five females who were present seven persons, before whom on this occasion the exposure took place. '■ " The house out of which the prisoner canie, as well as that from which the witnesses saw him, were situate in pnblic streets; but that part, of the roofs of the different houses along which the pri- soner walked did not face the public sipeet, and his acts could not be seen by person passing along those street^, but they could be seen from the back windows, not only of houses in Albemarle Street and Stafford Street, but also frgm those of several houaea in Bond Street. " The prisoner's counsel submitted that the roofs of the Imuses did not constitute a public place, and that the exposure in the pro-, serice of the diffrrent persons as described, did not amount to a public ex))osure, so as to make the prisoner guilty of the common law misileineanoui'. " The case was not argued before me, but it was suggested by the counsel on both sides, that it should be reserved for the opinion of the Court of Criminal Appeal and argued there, I consented to that course, being desirous that tlie point should be settled by competent authority ; and I told the jnry that, in my opinion, the place and the exposure were sufficiently publi«5 to biing the acts of the prisoner within the law, if they should be of opinion that ha exposed himself, in fact, indecently, wilfully, and intentionally. " The jury found him guilty. The question for the determina* tion of your Lordships is, whether I was right in so ruling. If I was, the verdict is to stand — otherwise not. " The prisoner, not being able to find bail, is in prison awaiting the decision of your Lordships,'' Bed {Besley with him) for the prisoner,-— The conviction is wrong. To support this indictment the exijostjre should have MAGISTRATE S CASE. 600 l>een proved to liave been in some public place. Tlie place where the prisoner exposed himself was not in a public place, nor could it be seen from any public place, or highway. The backs of the liouses from which alone tlie exposure' could be viewed were not accessible to ihe public. In Sir Charles Sedley's ca/^e (1), the exposure was from a balcony looking into Covent Garden. In The Queen v. JFe66,f2), an exposure to a woman in the passage of a public-house was held insufficient. The Queen v. Orchard fS), decides that exposure in a urinal in a nrarket-plaee is not sufficiently public. The prisoner's cotidnct may have been a pri- vate nnisiiTice to particular persons, but it is net an indictable public nuisance. No connsel appeared for the prosecution. Erle, C.J. — We are all clearly of opinion that it is not necessary to rentier a person- liable to indictment for exposing fiimself in a public place that the place must be a public highwiiy. If he stands in a place, where a great number of persons may be affected by his criminal act, he is liable to indictment. There is, we think, in this case abundant eviilence to support the conviction. The other Judges concurred. Conviction affirmed. (1) 1 Sid. 168. (2) 3 Oox, C.O. 183. (3) Ibid. 248. CHAETER OF THE STRAITS SETTLEMENTS. (prince of ■wales island, SIN.GAi'ORE, AND MALACCA.) Cha/rter passed under the Great Seal for Erecting the Straits Settlements into a separate Colony, and for providing for the Government thereof. Letters Patent, dated ith February, 1867. -, Victoria, by the Grace of God, of the United Kingdom of Great Britain and Irehind, Queen, Defender of the Faith : To all to whom these Presents shall conie, Greeting. Whereas by an Act made and passed in the Twenty-ninth and Thirtieth Year of Our Reign, intituled " An Act to Provide for the Government of the Straits Settlements," it was. Enacted that it should be lawful for Us, by Order to be by Us made with the advice of Our Privy Council, to Declare that thesaid Act should come into Operation at a time to be specified in such Order in Council, and that at such time the Islands and Territories known as the "Straits Settlements," namely, Prince of Wales Island, the 601 STRAITS SETTLEMENTS. ialtind of Singapore, t)ie Town and Fort of Malacca, and iheir De- pendencie'!, should ceuse to be I'iirt of India for I lie purposes tiierpin mentiont'd, aiid riiiifc from and after the coming inio oper- , atiou oi tiie said Act, il sliould be lawful for Us by any Loiters Patent under the Great Seal of Our United Kingdom, or by any InsiructiouH under Our Sign-Mailual and Signet accompanying and referred to in any such Letters-Patent, to Delegate to any ■J'hree or more Persona within the said Setileraents aforesaid, or within any part or Dependency thereof, either in the wkole or in part, and upon, under, and subject to all such Conditions, Provisoes, and Limitations, as by any such Letters- Patent or Insiruclions as aforesaid We should see fit to prescribe, the Power and Authoriiy to Establish ull ?uch Laws, Institutions, and Ordinances, and to Constitute such Courts and Officers, and to Make such Provisions aud Rejiulations for ihe Proceedings in sueh Courts, and for the Administration of Justice, and tor the Raising and Expenditure of the Public Revenue, as might lie deemed necessary lor the Peace, Order, and good Government of Qixr Sul jecis, and Oiher< within Our said Settlements, or -within any 'lerrilories wliich might at any time be part of, or Dependent tipo' Our Principal Secretaries of State, shall become Null ant^/'TOTso soon as the Disallowance thereof shall be Published within Our said Settlements by Au- thority of the Governor. XIV. In these Our Letters-Patent the Term *' Governor'' shall mean the Officer for the time being lawfully Administering the Government of the Straits Settlements. XV. We do hereby Reserve to Ourselves, Our Heirs and Sucr cessors, full Power and Authority from time to time to Revoke, Alter, or Amend this Our Charter as to Us or Them shall seem meet. In Witness, &c. Westminster^ 4th February, 1867> (Signedj C. ROMILLY. THE UNREPEALED ORDINANCES. eo4 liist of the unrepealed Stf aits Settlements Ordinances, from the year 1867 to Ordinance VI of 1877, Abolition of imprisonment for debt, (See Gov. Qaz. for Kules dated 31st December, 1870) .. . Aliens holding and transferring property Aliens, naturalization of ... ... ... ' ,, ,, (Amendment) ... Appeals, (repealed Ord. XXVII of 1867) Appointment of public officers Arms, exportation of t ,, and ammunition, sale of, (Special, in force for 1 year, if prohibited to be notified in a Proclamation) ... Bankruptcy, (See Gov. Saz. for Rules dated 31st Decem- ber; 1870) Births and deaths, registration .. ... ... " Cattle contagious disease Census for 1871, (Special) ... Coin, silver and copper Commissions of Inquiry, appointments by Governor Contagious diseases, (certain sa. amended by III of 1873 and VIIl of 1875) ,, ,, (Amendment.) „„(,.) ... Convicts Undergoing sentences of transportation Coroners' Inquests ... Court suitors' deposits ... ,, „ interest on „ ,, „ transfer of Courts, Supteme, (ss. 5 to 28, 37 to 43 both inclusive re- pealed by V of 1873) (bs. 59 and 69 repealed by V of 1874) * „ „ (repealed V of 1874, & ss. 2, 59, 69 and 93 of V of 1873; — 4 amended ss. 21 and 51 of V of 1873) ... Criminal justice. ... " ... ... „ Procedure,— (this Ord. is not repealed by any Ord,— Sec. 53 of this Ord. repealed sec. 614 Penal Code of 1870 ;— Penal Code of 1871 repealed Penal Code of 1870) ,, ,1 ■•■ '*' "* "*' Crimping ... Crown rents, recovery of, „ suits, „ debts & claims, (rpld. XIX of 1870) Dangerous Societies, (made perpetoal by V of 1872.) ... XXII of 1870. XIII of 1875. VIII of 1867. VII of 1870. IX of 1874. I of 1867. XIII „ XI of 1875. XXI of 1870. XVIII of 1868. XXV of 1867. XI of 1870. IV of 1867. .VIII of 1876. XXni of 1870. III of 1873. VIII of 1875. IV of 1872. II of 1868. IX of 1867. XXIII „ VII of 1873. V of 1868. V of 1873. XVII of 1876. XX of 1870. V of 1870. VI of 1873. Ill of 1877. V of 1869. XV of 1876. XIX of 1869. » It abolished the Courts of Quarter Sessions— gave power instead to two h also re-established the Courts o< Bequests at Penang and Singapore, t ttaa is inserted because it is'often supposed that it is in force. or more Magistrates' g.L. 605 STRAITS SETTLEMENTS. Dangerous Societies, (.to make perpetual XIX of 1869).. Distress for rent, (repealed ss. ,2 to 8 and 29 of Indian (Court of Bequests) Act XXIX of 1866; and paras 3 & 4 of s, 3, of Ord. V, of 1874) ... / ... Distressed Seamen ... ... ... , ... Electric telegraph, exclusive privileges ... Enabling Act, Governmeaf ... ... ... - Exchange Act, postage ... ... ... ..'. ,, ,, treasury ... ... ' Excise, (s. 94 repealed by Ord. XV of 1871) (Amendment— repealed Ord. Ill of 1871) Exportation of Arms ... , ..-. ... - * Extradition, (to form part of Imperial Extradition Acts, 1870 and 1873)... Indian Acts VII of 1854 and I of 1849. Fees for survey of vessels employed as passenger ships ,, for services under the Imperial Merchant Shipping Act Fire, protection of Towns from Foreign seamen, jurisdiction ... ,, recruiting prohibited ... Gaming Houses, (repealed Ord. XIII of 1870) ... Governor's salary and Governinent House furniture ... Government Enabling Act ... ... ... ... ,, Officers Appointment ■Gunpowder & other explosive substances Hackney carriage, (s. 12 repealed by Ord. XXVII of ISJO) ,, ,, (Amendment) Harbours and ports, (s. 27 repealed by III of 1876.) ,, „ ,, (Amendment) Indemnity Act, Penang riot, (Special) ...' Interpretation Act, (ss. 3, 10, 11, & 19, & cL 1 to 3 of s. 21 re- pealed by I of 1868) Interpretation Ordinance, (Amendment) Interest on suitors deposits .>. ... Inventors, granting exclusive privileges to ... Immigration, Chinese, (repealed Ord. X of 1873) ,, Native labourers from India, — (repealed Or^. IX of 1875. For Emigration from Madras, See Indian Act, in Govt. Gtat. of July 20, 1877) (to enforce I of 1876.) ... Juries Exemption Ordinance ... Land Act, registration of deeds, (to amend Indian .Act XVI, of 1839) ,, „ „ of mutations of titles to land, (to amend Indian Act XVI of 1839) Lands, MsJacoa, (to amend Act XXVI of 1861) ... V of 1872. XIV of 1876. XIV of 1869- XIV of 1870. ll of 1867. XVII „ V of 1867. IV of 1870. XV of 1871. XIII of 1867. IV of 1877. IV of 1868. ' III of 1869. X „ I of 1873, III of 1875. IX of 1876. IV of 1873. II of 1867. I „ VIII of 1868. XIX of 1867. XXVII of 1870. VIII of 1872. Ill of 1876. XXII of 1867. XIV I of 1868. XXIII of 1867. XII of 1871. II of 1877. I of 1876. XII VIII of 1870. II of 1871. V of 1875. XI of 1876. ♦ Se« Order of th« Queen injBouncil, llth July 1877, confirming it in QoT. Ga». 1th Bept- 1S77 p. -626. g_I,_ THE UNREPEALED OTtDINANCES. 606 of 1867. of 1877. of 1871: of 1876. of 1870. of 1867. of 1870. of 1875. Legal Tender Act. . . . . . . . . . . iv Loan, Straite Settlements . . . . . . . . I Locomotives on public thoroughfares . . . . . . VIII Malacca Lands . . . . . . . . . . XI Marine Courts of Inquiry . . . . . . . . XXVI Members of Council exempted from serving as jurymen ..- VIII Merchant Seamen Act, (to - extend Indian Merchant Sea- men's Act I of 1859 to ships of the Colony) . . XXVIII Money Order . . . . . . , . . . . XII Municipal, (to amend Ind. Act XXVII of 1856) . . . . II Indian Acts, viz ; XIV of 1856, XXV of 1856, XXVII of 1856 and XVII of 1868. Naval and Victualling Stores .. .. .. .. X of 1867. Native Passenger Ships . . . .' . . . ., VI of 1870. Naturalization of Aliens .. .. .. VIII of 1867. „ (Amendment) .. .. .. VII of 1870. Oaths, pronaissory. . . . . . . . . . . XI of 1869. Passenger ships, regulation of . . .. .. .. XXXI of 1867. „ ,, fees for survey of .. .. .. IV of 1868. „ „ Chinese, (ss. 9 & 10 repealed by Ord. VI of 1874) .. .. .. .. XIV ,, „ Native, (to amehd Indian Adt XXI of 1858.) .. .. .'. . ,, ,, (repealed ss. 10 & 19 of Ind. Act XXI of 1858,— s. 2 of Ind. Act XXV of 1859,— & ss. 9 & 10 of Ord. XIV of ' 1868.) „ Steamers, survey of British, (to be read as part of Chinese Passenger Ships Ord. XlVof 1868 and Ind. Acts 21 of 1858 & 25 of 1859) . . IX Pawnbrokers, (repealed Ord. VII of 1871) .. .. , VII * Penal Code .. .. .. .. .. IV ,, ,, (Amendment) .. .. .. Ill Penang Riots Enquiry Act, (Special) . . . . . . XXI „ Indemnity Act. ( .. ) •• •• .. XXII Fensiona, wliole repealed by I of 1871 except ss. 21 and 22 IX VI of 1870. VI of 1874. Pilots and Pilotage . . . . . . . . . . XII „ (Amendment) . . . . . . . . VIII Police Force . . .. .. .. ..... I Postage Exchange . • . , . . . . ' . . XVII Ports and Harbours, (repealed Ind. Act 22 of 1855, & Sec. 3 of Ind. Apt 41 of 1850) .. .. ^.. VIII * See tbe one published by me, complete. of 1871. of 1872. of 1871. of 1872. of 1867. of 1870. of 1871. of 1868. of 1869. of 1872. of 1867. of 1872. S.L. 607 STHAITS SETfXEMENTS." * Preservation pf the Peace, (perpetual) . . . . . . VI of 1872. (repealed s. 16 of VI of 1872) .. V of 1877. Presbyterian Church . . . . . . . . . . II of 1876" Prisons, .. .. .. .. .. ' .. XIV of 1872, Procedure — See Criminal Procedure Promissory Oaths .. .. .. .. XI of 1869. Prye Bridge and tolls. ProTJnpe Wellesley, (la suspense) .. IV of 1875. Public Officers' appointment ... .. .. .. 1 of 1867- „ Seal .. .. .. ... .. .. IX of 1868. Quarantine, prevention of the spread of contagious diseases . . VII of 1868. Recruiting for foreign service .. .. .. .. HI of 1875. Riots Enquiry Act, Pinang, (Special) . . . . . . XXI of 1867. Savings Banks . . . . . . . . . . VI of 1876. Seal— See Public Seal Stamps, (B. of Exchange liba. from India before and after April 1867) .. .. .. .. .. v VI of 1867. ,, (SoheduleBrepealedby I of 1875.) .. .. VITI of 1873- (Amendment) .. .. ., ., I of 1875. State Prisoners, arrest and detention of .. .. .. IV of 1876. ,, ,, safe detention of Ex Sultan Abdullah at Singapore . . . . . . . . VI of 1877. Steam Vessels, (repealed S. V. Ord. of 1872, and Sees. 21 to 26 of Indian Act XXI of 1858) . . . . . . IX of 1873. ,, Boilers, inspection of, (to be read as part of Indian Mu- nicipal Act XlV of 1856) . . .. .. .. -X of 1876. Store§, Naval and Victualling . . . . . . . . X of 1867 . Summary Jurisdiction, (cl, 12, of s. 19, repealed by Ord. II of 1873) .. .. \ .. .. XIII of 1872. (Amendment) .. .. .. II of 1873. Supreme Court — See Courts Survey of vessels, fees for .i. .. .. ..IV of 1868, Telegraph exclusive privileges . . . ■ . . . XIV of 1870. Transfer of Court Suitors Deposits . . . . " . . VH of 1873, Treasonable offences,— (ss. 1 & 2 amended by I of 1869) ... VI of 1868. (Amendment) .. .. .. I of 1869. Treasury Exchange Act... .. .. .. .. V of 1867. Vaccination .. .. .. .. .. .. XIX of 1868. Volunteer Corps .. .. .. .. .. XV of 1869. Water Rate, Penang . . . . . . . . . . XX of 1868, Witnesses expenses . . . . . . . . . . XVII of 1870, » NOTB.— The first Preservation of the Peace Ord. was XX of 1887, it was passed with a pro- vision thai it was to continue in {orce for 1 year (to 8th August 1868), it was afterwards estteqd. ed to 3Dth June 1870^ with certain amendments, bj YII of 1869, — this Ord, repealed S of 1868 which ext»Bded XX of 1867 to another year. Ord IX of 1869 was passed and Jaken to be read as part of VII of 1869. At the end of June 1870, Ord. XX of 1867 ceased to be in force and was not renewed by another Ord ; III of 1870 was next passed and was to continue in force for 3 years from 80th June 1870 but before the time expired Ord. TI of 1872 was passed and made perpetual. Ord V of 1877 waj next passed to amend Sec. 15 of VIon872. S.L. THE UNREPEALED ORDINANCES. 607 A The Hon'ble Thomas Braddell, Attorney General, Straits Settlements, has kindly favoured me with the following- information, concerning an Imperial , Act for improYing the Administration of Criminal Justice in \the East In- dies, passed on 25tH July 1828. " The Indian Criminal Act, 9 Geo. IV o. 74, generally known as Wynn's " Act, is almost entirely superseded by the Penal Code and certain Ordi- " nances for Procedure, but there are a few Sections of the Act which being " of Imperial effect, it is supposed, will remain in force. Certain sections " of the Act are made applicable to offences under the Penal Code by Section " 38 of Ordinance V of 1870, * but these Sections' have since been superseded " by the Ordinance VI of 1873.* " " The whole Act has been repealed as to India by the Indian Act X of " 1873 except the 7 Sections above referred to which are here gireu — " here Sections 1, 7, 8, 9, 25, 26 and 56, of 9 Geo. IV c. 74." &.L. 25th September, 1877- * Criminal Proeedtire Ordinance. Additional to List. Ordinianees of 1877 pcused since the List was printed. Perak prisoners to undergo sentence of penal servitude in the Colony VII of 1877. Steam Boilers (Amendment — repealed Sec. 7 of S. B. Ord. X of 1876) .., .. .. VIII „ Water Bate, Singapore IX „ Omission in page 605. Debtors Ordinance, (repealed Sec, 35 of the Sup. Court Ord. V of 1868 ; Sec. 13 of Indian Act XXIX of 1866 ; and the first 8 Sees, of Act VII of 1855 — the remainder of the last mentioned Act shall be read with and as applying to this Ord.) , XXII of 1870. Date of Proclamations when each of the Settlements came wider the provisions of the Peace Preservation Ordinance VI of 1872. These orders will remain in force tmtil c^MceUed — see Sec. 7, SiNaAPosB, 24:th December 1872, Vide Gov. Gaz, 3rd January 187?, p. 7. Malacca, 29th September 1876, Vide Got. Gaz, 29th Septeniber 1876, p. 657. Penang, 22nd Jwne 1877, Vide Gov. Gaz, 22nd June 1877, p. 383. 607 B STRAITS SETTLEMENTS. Correction. Page 606, line 12, for " XVII of 1868 " read " XVII of 1863." In the Preface, at page 3, line 6. for " Judge " read "Judge of the Straits Settlements." the style in which the 2nd and 3rd Judges of the Straits are gazetted. The Ordinance No. XVII of 1876, Section 2, enacted a law as follows :— ■ " The present Senior Puisne Judge shall.be a Judge of the Supreme Court " under the provisions of this Ordinance, but shall otherwise hold his office " as heretofore." " All the powers, duties, authorities, and jurisdictibn conferred on the Su- " preme Court, and on any of its Judges, may be exercised and performed by " any Judge of the Court at any Settlement where he may be in the execution " of the duties of his office." Extract from a Minute by the Attoi'nty Qeniral on the fuhject of Masters and Servants Ordinance. Pmang Gazette, 18th Ootober, 187r. " At the time the Penang Association made their representation, the law relating to crimping and enticing labourers from their employers was eon- fined to Indian Immigrants and did not include lahoiirers generally ; since that time the Crimping Ordinance III of 1877 by Section 13 has been passed providing fully on this point as to all labourers in Stores, Docks, Wharves, Factories, Workshorps and husbandry, leaving the Indian ImmigJ-antB as enacted in the Immigration Ordinance 1 of 1876. The Indian Act XIII of 1859 extended to Province Wellesley, see Straits Oovernment Gazette for 1860, page 53 (the Act can be extended to Penang if desired). In it provision is made for breaches of contract by artificers, workmen and labourers, who have received advances for their work, that the Magistrate may order (at the option of the employer) the labourer. 4c., to fulfil the terms of his contract or return the advance, and in default, may sentence the offender to three months' imprisonment with hard labour." " Sections 490, 491, and 492 of the Penal Code provide penalties for breach- es ojf contract for personal service under certain cireumstanoes, (1) during a voyage, (2) helpless persons, and (3) service at a distant place to which the servant is conveyed at the Master's expence. The English Masters and Servants Act, Act 4 of George IV chapter 3^ was held to be ,in force in this Colony by Sir Benson Maxwell in 1859. I believe the Act has been in use ever since ; but am not sure of this." (See Reg. vs. Willans, p. 66. S.L.) "These are the laws in force as to Masters and Servants, and they ap- pear to me to be sufficient as far as . ordinary labourers are concerned. We have no Jaw dealing summarily with domestic servants. The subject has been frequently brought to the notice of the Indian Government, but th»t Government has steadily refused to legislate on this subject." THE UNKBiFEAlKD ORDINANCES. 607 C Gov. Gaz. 9th March, 1860, p. 64. Notification—No. 35. The follot»-iQg is substituted for Notification No, 21 of 4th February 1860, published in the Gazette' of 24th idem. It is hereby notified for general information that with reference to Act 13 of 1859 the Station of Penang includes the whole of Province Wellesley in the Settlement of Prince of Wales'' Island, and that the Police Magistrate of the said Province has power to try all cases coming under the provisions of the said Act. By Order, ' / J. Bi/rn, — Captain, Secretary to the Governor of the Straits Settlement*. Penang, 2nd March, 1860. 26a October, 1877, English Masters akd Sbrvant.i Act. At a Meeting of the Legislative Council held at Singapore, Mit. Waiibr Scott, the member for Penang, put the following question : — " Whether or not the English Master and Servant Act (Act IV of Geo. IV), " is ia force in the Colony as held by Sir Benson Maxwell in 1859, as the " Magistrates in Penang do not appear to recognise it, and the Hon'ble the " Attorney-General gives an undecided opinion in his minute of the 12th " May 1877, on the question cf a Master and Servant Ordinance for these " Settlements." The AttoWey-Gbneeal replied.—" Sir, I find on reference to the revised edition of the Statutes published in 1874, that the English Act relating to Masters and Servants, Act 4, George IV, chapter 34, which I presume is the Act referred to, is printed in the Vol. V, as an Act in force, this colnmn of the Statutes dates from 1874, and the Act is set out in Index published in December 1874 as being in force at the time, but repealed as to Ireland, from which it is to be inferred that it is still in force in England, unless re- pealed since the 1st of December 1874. The Act is not mentioned in the edi- tion of Statutes for 1875 or 1876 ; the edition for 1877 is not out yet. I may add that I remember having read a discussion in Parliament regarding prose- cutions for offences under the Masters and Servants Act, and it was objected that such offences should be treated criminally but merely as civil wrongs for which a civil action lies. When I wrote the minute referred to by the honorable member I had the idea that the Act IV of George IV, chapter 34, had ceased to be in use in the Colony, having been practically superseded by the Indian Act No. 13 of 1859. The decision of Sir Benson Maxwell in the case of the Queen vs. WUlansis sufficient authority for holding that the Act was in force in 1858, and. unlesfe it has been repealed in England during the present year, it is in force now." (»lso see page 126. S,L.) IMPJIEIAL (colonial) ACT. 608 GOVERNMENT NOTIFICATION. No. 188. Thb; following is published for general information. By His Excellency's Command, J. W. W. BIRCH, Colonial Secretary, COLONIAL Secretary's Office, Singapore, llth September, 1874, CIRCULAR. Downing Street, nth July, 1874. " Sir, — I have the honor fo transmit a Copy of an Act, 37 and SB Victoria, cap. 27, wliicli has passed this Session, intituled " An " Act to regulate the sentences imposed by Colonial Courts where " jiii-isdiction to try is conferred by Im|ienal Acts." 2. As you are a ware jurisdiction is given by certain Imperial Acts, as, for instance, 9 George 4, cop. 83, section 4, and 12 and 13 Victoria, cap, 96, lo Colonial Courts to try offfinces 'committed beyond tiie jurisdiciian of iho^e Courts, and the persons convicted are made liable to suffer such pnnisUment as by any law or Uiwa in force at the lime of the passing of such Acts, they would have been liable to if the offence had been coniniitied and tried in England. 3. Difficulties have recently arisen, boih in Victoria and Malta, in deciding what seutences could be passed upon persons tried and convicted in Uie Colonial Courts for offehces committed out of the Colonies, but made triable within them by Imperial Acts; and the Act now transmitted has been passed with a view to pre- vent any such questions arising for the fiiture. 4. The Act provides that such punishment may be inflicted in such cases as ipight havq been inflicted if the offences had been committed within the Colony. 5. The Act also includes cases, if any, where offences, is com- mitted within the local jurisdiction of a Colonial Cnurt, are by Imperial Act made punishable according to the Law of England. 6. Moreover, special provision is made at the end of the third section to meet the case of an offence not punishable by the Law of the Colony iu which the trial takes place; and the Colonial Court is in such case empowered to impose such punishment (other than capital punishment) as shall seem to the Court most 609 STRAITS SETTLEMENTS. nearly to correspond to the punisliiiient to winch such person would have been liable in case such crime or offence had been tried in Etigland. 7. Tliese cases will, probably, be of rare occurrence; but it vfas thouiiht desirable to embrace all possible cases, and to make the legislation upon tiie subject final and complete. 8. The usual steps should be tnken to make the^ provi.^iofts of this Act known in the Colony under your Government. I have, &c., (Signed) CARNARVON. The Officer Administering the Government of the Straits Settlements. f37 and 38 Vict.) Courts (Colonial) Jurisdiction (Ch. 27). Chapter 27. An Act to regulate the Sentences imposed by Colonial Courts where jurisdiction to try is conferred hy Imperial Acts, [30i!A June, 1874.J ■ Whereas by certain Acts of Parliament jurisdiction is conferred on Courts in Her Majesiy's Colonies to try peisons cliarged with certain crimes or offences, and doubts have arisen as to the proper sentences to be imposed upon conviction of such persons ; and it is expedient to remove such doubts : Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and 'J'euiporal, and Commons, in this present Pavliavnent assembled, and by the authority of the same as follows: — 1. This Act may be cited for all purposes as the Courts Short utie. (Coloiiial) Jurisdiction Act, 1874. 2. For the purposes of this Act, the term " Colony " shall not ipclude any places within the United King- "Coionj/"""' "'™ dom, the Isle of Man, or the Channel Islands, but shall include such territories as may for the time being be vested in Her Majesty by virtue of an Act of Parliament for the Government of India, and any plantation, ter- ritory, or soitlenient situate elsewhere within Her Majesty's d6- minions, and subject to the same local government; arid (or the i^iurposes of this Act, all plantations, territories, aiid seitlemeiits IMPERIAL , (colonial) ACT. 610 under a oentral lfij>islaiure shall be Oeenied to be one Colony un- der the same local government. »" 3. When, by virtue of any Act "of Parliament now or hereafter to be passed, a person is tried in a Court Cottffvw^r/r^^mTeHal of anv Colony for any crime or offence corn- Acts, Ooaits empoweied to mitted ui>oii the hlifli seas or elsewhere out pass Sentences as if crimfts r, ■. . . ..^ . » i^i i had been committed^ in the Ot tile territOHal linait^ ot SUchUolOHy and '^^ of tlip local jurisdiction of such Couri, or if co'r.milted within such local jurisdiction made punishable by that Act, such person shall, upon conviction, be liable to such punishment as might have been inflicted upon him if ihe crime or offiMice had been committed within the limits of such Colony and of I he local jurisdictioii of tlie Court, and to no other, anything in any Aci to the contrary noi withstanding. Provided always, that if the crime or offence i* a crime or offence not punishable l)y the law of the Colony in which the trial takes ))lace, the person shall, on conviction, be liable to such punishment {other than capital punislinient) as shall seem to the Court most nearly to correspond to tiie punislmient to which such person would have been liable in case such crime or offence had bcea tried in England. GOVERNMENT NOTIFICATION. No. 227. ' The following Act of Parliameni, passed on the 30th Julyj 1874, is published for general information. By His Excellency's Command, T. BRADDELL, Colonial Secretary's, Ofmce, Acting Colonial Secretary. Singapore, I9th October, 1874. CHAPTER 38. An Act to extend the Jurisdiction of Courts of the Colony of the Straits Settle'tAenis to certain Crimes and Offences committed out of the Colony, - [ 30i!A July, 1874. ] Whereas crimes an Witnesses. ,„ay obtain, at th6 Office of the Clerk of such Court or other Officer as aforesaid, sntn- rnonses to Wihiesses, with or 'tyithoilfc a clause, requiring tlie pro- duction of books, deeds, papers and writihgS in their possession or conttol, and in aiiy sUcli summons aiiy number of nataSS may he inserted. 613 STRAITS SETTLBMENTS. 12. FvTsry person, on wlioin any sucli summons shall hsive been sei'veil, eillifir personally or in sue!) other appearing 'ic""' *"°^^' *°' manner as shall- bo directeil by the general rules or practice of the Court of Requests out of which such snmniong shall issue, and who shall refuse or nejflect, vviihoutvsufficient cause, to appesir or to produce any books, papers, or writings, roqiiiied hy such summons to be produced, and also every person present in any sucii Court, who shall be required to frive evidence, and who shall refuse to be svrorn and "ive evidence, shall foifeit and pay such fine, not exceeding fifty dollar*, as the Commissioners of such Court shall impose on liim, and the whole or any part of such fine in the discretion of the Conimissioners af- ter deducting the cct-J, may be applied towards indemnifying the party injured by such refusal or neglect. 13. This Section is repealed by Section 8 ■qf Debtors Ordinance XXlI (^ 1870. In that, a warrant to arrest a defendant about to quit the Colony will only be issued whenthe debt or demand amounts to | 50 or upwards. The title of this Ordinance is omit- ted in the priMing on page 605, but if is set down on p^age 60iy as " Abolition of Imprisonment for debt." 14. Payment of any fine imposed by any Court of Requests under the authority of this Act may be en - snforcemcut of fines. forced Upon the order of the Commissioners of such Court in like manner as payutent of any debt adjudged in the said Court, and shall be accounted for a« herein provided. 16. Whenever any Court of Requests in the said Settlement shall have made an order for the payment J"gSp^7„nTyo"- of iioney, ll>e amount shall -be recoverable, pertj of debtor. jn case of default or failure of payment there- of forthwith, or at the time or times and in the manner directed, by execution against the body or the goods and chattels of :the person against wiiom such order is made, with- out 'further notice or order, and the Clerk of the said Court, or other Officer as aforesaid, at the request oif the person pro- secuting sudi order, shall issue under the seal of the Court a writ of execution to one of the Bailifls of such Court, which sliall be his warrant to take the body of such person in exe- cution, or to levy, or cause to be levied by distress and saie of the goods and chattels of such person, such sum of money as shall be so ordered^ wheresoever they may be found within the district of the Court, and also the coats of the execution; and all Constables and other Peace Officers within their several jurisdictioBB shall aid in the execution of every such writ. • COUKTS OP REQUESTS ACT. 614 16. If any such Court, shall have made any order for paytnent of any i' seven days, unless the said fine be sooner paid, or inalead of inflicting summary punishment un- der this Act, may cause the offender to be indicied in the Couii; of Judicature it ihe offence be an indictable misdemeanor. 21. If any Offioer or Bailiff of any sqeh Court sliali be assault- ed wiijle in the execution of UU duty, or if li^Tc'T'n TxTcuiSL^Ii any rescue shall be made or attempted to be duty- ' made of any person arrested or floods levied niider process ot any such Court, the pei'soii so offending shall be liable to a fine not exceeding fifty dollars, to be recovered by order of such Court, or before a Magistrate, and the Bailiff of ilie Court, or any Peace Officer in any such case may take the offender into custody (with or «ithiiut warrant) and bring liira before such Court or Magistrate accordingly. 22. If any Bailiff of any such Court, who sliall be employed to execute any warrant of any such Court, giTcUnif &l to"«ecSte sliall, by neglect, or connivance, or omission, warrant, ' JoSH an opportunity of executing such war- rant, then, upon complaint of the parly ag- grieved by reason of such neglect, connivance, or omission (and the f^ct alleged being proved to tlie satisfaction of the Court), the Com mipiimers of such Court shall order the Bailiff to pay ^ such damages as it shall a|)pear thai the plaintiff has sustained thereby, not exceeding in any case the sum of money for which the said execution is issued, and the Bailiff shall be liable tliereto, and upon demand maSe thereof, and on his refusal so lo pay and satisfy the same, ];)ayment thereof shall be enforced by such ways and means as are herein provided for enforcing a judgment recovered in thcsaid Court, without prejudice nevertheless to the execution of the original warrant. 23. If any Clerk, Bailiff, or other Officer of any such Court, acting under coloUr or pretence of the pro- particle'", Miff,t:.'°" ^css of the Said Court shall be charged with extortion or misconduct, or with not duly paying or accounting for any, money levied by him under the au- thority of this Act, the Comniissioners of such Court may enquire into such matter in ii summary way, and for dhat purpose niay COURTS OF KEaUESTS ACT. Buminou and enforce tlie attend'ince of all necessary parties in like manner as tlie attendance of witnesses in any case may be enforced, and may make such order thereupoi) for the repay- ment of any money extorted, or for the dne pa'ymenfc of any money so levied as aforesaid, and for (he payment of such damages and cosis, as they shall think just, and also if they shall think fit, may impose such fine upon the Clerk, Bailiff, or Offioer, not exceeding fifty dollars for eacli offence, as they shall deem adequate, and in default of payment of any money so ordered to be paid, payment of the same may be enforceil by such, ways and means as are herein provided for enforcing a judgment vecovered in tiie said Court. 24. Every Clerk, Bailiff, or other Officer employed in pvitting any of the powers of this Act in execution, taSTgCibe" *""'^' *"■' who shall "ilfully and corruptly exact, take, or accept any fee or reward whatsoever, other than his lawful salary, for any thing done or to be done by virtue of this Act, or on any account whaisoever relative to putting this Act into ejfecution, shall, upon proof thereof before the Court in which such Clerk, Bailiff, or Officer is employed, ar.d in the case of a Clerk, on 'confirmation of tlie finding of the Court by the Governor of tlie said Settlement, be for ever incapable of serving or being employed under this Act in any office of profit or emolu- ment, and shall also be liable for damages as iierein provided. 25. If any claim shall be made to or in respect of any goods or cliattelfi tak«n in exffcution under ihe pro- Jou^txe^So'Mr^rooSr c^ss of any Curt of Bequests under this Act, or in respect of the proceeds or value thereof, by any person not being the party against vhom such process lias issued, the Clerk of such Ci)urt or other Otficei- as aforesaid, upon application of ilie OiSi^er charged wiih ihe execuiinu of such ]»rocess, as well before as after any action brought against such Officer, may issue a sumniQiis, calling before the said Court, as well the party issuing such process as the party making such claim, and thereupon any action whiclr shall have been bi'ought in the Court of Judicature in respect of such claim, shall be stayed, and the Judge of the Court of Judicature, on proof . of the i-s-ue of such summons, and that the goods and chatcels were so taken in execution, may oi-der the parly bringing such aciion to pny the costs of all proceedings had upon such action, after the issue of such Summons out of such Court of Requests; and the Commis- sioners of such Court of Requests shall adjudicate upon such claim, and make such order between the |)artie8 in respect thereof, and of tiie costs of the proceedings as to them @hall seem fit', and 617 STRAITS SETTLKMENTS. sncli orcler ?h;ill Iih eiiforoed in like manner as any order ina'l& in any suii broui^ht in siicli Conrt. ^ 26. If any person shall bring any suit iu any Court of JuiHph- ture in tlie said Settlemenl in rMsp«ct i>f an v «^r^|jL?S:^^° '^ jrriHv:,nc^.commii.e.l by tb« Ci^rh, Bailiff, -r Oificer of jjny Court of R'-quHSis witliin tlie jniisdiction of sjicli Conrl, of Judicature under colour or pretence of I lie inoctfS:* of tli^ said Court of HHq,uests, and ujipn the nial @X tlie ufiif)n no greater (la,maj;es shaH I^h found, for the plaintif]^ tlian the s^ra of t»ohui)(lred and fifty di>llars, no coi^ts sh'aii be awarded to the idaintiff in snch actio))-, uiilpHS tiie, J,udj>e sl)>ill certify in Court, upon the baclc of the reqon), that the action wasi tit to be iimnght in tlie C<)ur,t of Jiidiciture. 27. I.n ill! casics where any conviptinn shnll be had for any offence (•■>)Tiniitled ajiainst lliis Act, tJie f,,rn] Form of coiiTictioi^. of COM vici ion lUfly be ii) thowordsor to tiie efT'ect folio winn (tluit is to say): — Be it remembered tliat on this dav of in the year A. B. is convicted before a Miiiii-trate fur tlip or before a Compii^Rioiier actin"' ntider Act No. XXIX of 1866 of liaviiiic ("state the offenca) and I (oj* we) the said do adjudj>e the said to forfeit and pay for the smne tiie fuiil of [or to be commiited to for the^space of ] Given under lianfl ( ) and seal ( * ) the 'day and yeiif afoiesaid. 28. No order, verdict of judgment, or other prnceedinbablG that the word " of in this Section is a misprit^t for "or," "verdict or judgment ■• being the words employed in 9 and 10 Viijt c. 95, s. 136, and Act JX of 1850. 's. 109.' By Maxwell. COURTS OF REQUESTS A<:T. 618 The following Schedules of Distress Ordinance XlV of 1876 are here inserted as they superseded the ones under this Act. A. Scale of Fees to be levied in Distraints for Rent, Section '6. Sums sued for. Dol. Ot. Dol, Ot. 1 and under 5 dbUk^s 0—25 , 0-2,5 5 „ 10 „ 1—00 .. 0—50 iO ■» 11 20 „ 2—00 1—00 20 30 3— OCi 0) 1—50 30 40- „ 4—00 ' 2— 00 40 50 5—00 > 2—50 ■ 50 . 7g 6-00 >, 3-75 75 > ■)■» 100 ^ .7—50 1 5—00 ipo ?B0 „ 10-00 ^ One dollar for U50 . 500 „ 15-00 H every 20 dol- t ibove 500 „ 15—00 lars or pf^rt o-f 20 dollars. Th& afeov'e scale is intended to infiliide all expense^, excefil in suits where tlie tenant disputes the landlord's claiui, and witnesses have to be subpoenaed, in which case each sabpcena must be pnid foi; at twenty-five cents. Where watcbmeh are kept in chaifte of property disirained, twenfy-ffve cents per day must be paid per man, (The Gowrts of B,ee parties and of their wit- nesses, togethes" with a minute of their evidence, and the decision of the Court thereon shall be entered' in a took to be kept fov that purpose. VII. — Where the debt or demand exceeds the sum of fifteen Dollars, the Court may, upon proof of thfe Plaintiff's claim, and that the Defendant is about' to Withdraw his person from its juris- diction,, issue in the fi'i'st instanVje * warrant for tlie apprehension of the Defendi^nt, and may cottiniit him to gaol until he shall find cdUETS OF KKQUES'IS ACT. 62 'i securiiy for liis iippearaiice in sucli Court, from time to time, until juil«meiit sliall he pronounced upoi) tlie Piiiii)tiff'ri eliiim. {n) VIII. — WliPnever it sliall b? necessary to issue a warrant for tlie appreliensioii of a Defendant before any orrb^r or ilecrree has l)een luatle aijainst him b\ ilie Coun, I lie Plaintiff or some otlier person in his iK'lialf shall malie an affidavii or affirmatioiv in wriiing, verifying his claim or demand and stating the cause of action and Ids belie! that I lie Djefeiidant conceals himself froi», or otlierwise Qvades the .pvocrss* ol &ucli Ci'Urt, or is disposing of his pi-ope);iy and efft'i'ta with intent i() defraud i he Plaintiff or Jiis creditors generally, o:- is aboui to niihdraw liis. person or effects from tlie jurisdiction of su(di Conrti, stiitinsr also iii the a,ffidavit or affiruia- tion his reasons for such belief, whicli affidavit or afBiination sliall be filed of record, and a copy thereof shjill be served on the De^ fendant, and translated to him at the time of executing the war-- rant. Provided always, that the granting of such warrant for any of the reasons abovenamed shall be at tlie discretion of the Court JX. — No execntioii against the bud}', or the ijoods and chattels of the person against whom an order for the payment of money is made shidl issue, within t«entv-four hours from the making of such order, unless the Court shall be satisfied upon sufficient jiroof that such person is ahr)Ut to withdraw his person or effects from the juiisdiction of such Court, or is disposing, or has di~- poseil of his property or effects with intent to flefraud the Flaiiitifl or his creditors generally. X,. — No prrson confined in any prison under a warrant or pro- cess fiom a Court of ^icquests shall be detained in prison for any longer time than the following periods, according to the amount or sum for the payment of which such warraui} or process shall issue, that is to say ; — For any sum not exceeding fifteen Dollars, sixty days ; above fifteen Dollars and ■ not exceeding thirty Dollars, ninety days; ami tor any sum above thirty Dollars, according to the discretion of the Court, tor any period above ninety days, not exceeding in the whole six calendar months. (a.) In Ma::^well's "Practice of the Courts of Requests," page 54, it has the following remarks to Rule VII. " The, repea,tof the Section (13) which, gave the Court tjjese powers does, not affect the 7th Rule which,, independently of the Act, gives the Court au- thority to issue a warrant for the apprehension of the defendant " upon proof of the plaintiff's olaimand that the defendant is about- to withdraw hisperson fifom its jurisdietio,n," ThisRui?, however appeals, to be. negatived, by the Debtor's Ordinance 1870, s. 3, whiteh enacts, that, with the exceptions therein mentioned, no person shall be arrested or imprisoned for making default in payment of a sum of money." 623, STRAITS SETTLEMENTS. XI. — ;Tlie per-ion oi- [lersons ai wlio^e suit any wairanf or pro- cess for' tlie arrest of any [lerrioii shall be issued out of live Court shall, previous to tlie arre.-t being made, deposit with the Clerk or the Offi 50 25 50 25 25 50 25 25 50 25 XX. — The Scale qf Fees, under ihis Rule is stqierseded hy the pne given in the Schedule A to Distress, Ordinance XIV of 1876.—^ Seepage 618. XXI. — Rule 21 is superseded by the following paragraph, taken from ihe Government Gazette Decemher, 20th, 1867, page 463. Execution. Bailiff's poundage to be charged at the rate of 25 cents for the •first 1$^ 5 or less on the amount specified in the Warrant. 50 cents 625 STRAITS SETTLEMENTS. for any amnunt between $ 5 and $ 10, and 25 cents ad.\ PENANtS. 1«7 7. tNDKX. 1328 . , page. Ab Dorahim vs. Newbold. — An order to a person from his supefior officer to seize arid detain any boats or vessels proceeding to places within certain prohibited limits for the purpose of ob- serving a neutrality professed by the Government betvreen two belligerent chiefs, will not authoriie a seizure of a ves- sel and cargo returnine from a place hot within such pro* hibited limits, although she might have gone elsewhere and not assisted eitheir of siioh chiefs 454. Abuse and insulting language — action for damage : — see Eozells is. Che Deiin. AiSt XX of 1837, has ihahged the devolution o^ reAl pi:&^erty ih the Straits from the heir to the executor or administrator : — see Halleemah vs. Bradford, and In the Goods of OaUdef Mohttddeen . Act (Malacca land) XVI of 1839 s. 12 — pirescriptipn — reasohableuess of custom— effect of charter : — see Sahrip vs. Mitchell, ,, to regulate sentences imposed by Colonial Courts — 37 and 38Vict. 0. 27 .. ... 609, ,, to extend jurisdiction of Straits Courts to certain offence* committed out of the Colony 610, Action — cause atoSe abroad-^d'efendant abroad — goods seized by Se^tiestratioh — no jiirisdiclion : — set Khu Poh vs. Wan Mat, ^clhesive Stamp — it 3 Cent one on a Promissory note — not admissa» ble in evidence ; (Stamp Ord'. VIII of 1873 cdncefs, the practice. J — see Koh Buan vs. Teoh Chbon. Adjonrnment-^Magistrate's refusal^-no ground for an appeal -. — see Velloo Puilay vs. Kadier and Ooopay. Adley vs. Eobertson. — Arrest in church — false imprisonment^too hasty — Judgment for plaintiff ""■ Administration granted to a widow where no will existing — revoca- tion — Will admitted to Probate : — see In the Goods of Ab- dullah. „ right of widow to -.—see In the Goods of Khoo Chow Sew. „ Bond ;— see In the Goods of Khoo Chow Sew, „ distribution when two wives ;— s«e In the Goods of Lao Long An, and of Chu Slang Long. Administratrix wlio is also an Executrix conveying land— validity ot same :— see Lim Sun Poh vi. Liin Kih. Aclmirafty jurisdiction— Penal »ei:vitude for offences triable bjr Colo- nial Courts under their— 16 and 17 Vict. e. 99. a. 6. ... 5^. „ jurisdiction under Imperial Coionial Act, 37 and 38 Vict. 4.B7— sehtOncfes ... ... ... — ^®® Adopted child bot entitled to i*herit ifiteState^s estate 79,84 Advocatesaiid AttorhiCB, a.diiiisBi'Oiibf:— see In ihe miati|*r Of Ah-- iimado Bawa. Alteration ift a iffed aftelr eiiBciitidil— Void r-^see Kho dFuaH Oliiftt «*. T^b Giok Lan. Aiitoal*, injui-ies by— d^MeStfc— laaMedge of owner :^««e«'8r»!iuhar vs. Shellumbrum. 629 INDSX. page. Appeal, Act XX of 1837 only refers to tf ansfer of property but not the nature of it — Mahoraedan husband takes no interest of bis wlfe^s property before or after her deaths — see Halleemah ^ vs. Bradford. t, conviction of two offences under on« penalty — mistake incu- rable : — see The Opium Parmer vs. Khoo Boo An. „ conviction may be amended for an informality :— see Peter Duggie «s. P. (Jibbops. Court will not restraint a Magistrate from hearing a case on tile ground that the Slagistrate is biased against the party applying : — see The Opium Farmer vs. Koh Boo Ann. >, Costs, by whom payable ..> ... ... 445. ,j Gambling — house owner for permitting — prnol of guilty knowledge necessary : — see Hajee Mahomed Arsad vs. Dun- lop, and Tan Toh Lee vs. Hat. .,, Gambling — found therein— Police have no authority to search boxes, other than the place where gambling was go- ing on — order of forfeiture quashed: — see Beg vs. Song Sam. ,, Magistrate had jurisdiction under Act XIU of 1859 to order labourers to return to work, for refusing to work before end of term if brought up after end of term : — see Lamb vs. Ponen. ,, , no ground, if Magistrate refused to adjourn a case : — see Velloo PuUay vs. Kadier and Coopay. ,, no ground, if Magistrate admitted evidence in reply, if wit- nesses were called after the prosecution was closed ; — see Gng How csj AbdulrahmaHi not necessary for Spirit Parmer to enter and inspect pre- niiges where liquors are stoted before summoning— -he may sue on the accounts rendered if there was a deficiency: — see Law Seow Huok vs. The Spirit Farmer. ,, struck off, if appellant not filing his case in Court witbin six days after receiving it from the Magistrate : — see_ Ong Pak Ong vs. Tan Boon Teng. ,. to Privy Council— Power of— from the Straits Courts ... 669. Appointments — what officers to take the aqkpjO^ledgments of dee!^. of married women ... ... 260,428. Arms and vessel, seizure ajid detention of— isospicion of piracy : — see Lim Bee vs. Jadee. Arnas'hellam Ohetty vs. Mahomed Nina Merioan and anr. — ^To an action on a' Itortgage Bo^d, defendants pLe»d & F. Assault and arreat :— s^e False Imprisonment. STKAITS tAW 3JEP0ETS. 630 page. Assignment of property by a Mahomedan married woman — husband to join : — see Kader Meydin vs. Shotamah. ,, defective — realty'— volunteer : — see Shotamah vs. Kader Meydin. Attap house — built or renewed in Town : — see Reg vs. D'Oliveiro. Attorney General vs. Kara Kong Gay &o. — Local Excise Act XXIX of 1867 cancels, by implication, all Government Excise Con- tracts between the parties under Indian Act XXX of 1866 — Judgment for the Crown ... 257, " Augustine Grangier," at the suit of the Owner and Master of the "Flora." — If a vessel meets another in distress and renders assistance and is thereby prevented from proceeding on her Voyage and looses anything" by not proceeding an such voyage, the vessel assisted will not be liable to make up such losmnlesa the Captain or person who has the power to do SO; promises to pay it ... 175. Bacon's (Lord) advice to a Judge ... 1. Bastard made legitimate after parents marriage by Scotch \Law ... 84. Baumgarten vt. Kraal. — Where property was seized and sold under an execution from an inferior Court and after seizure but before sale the same property was seized by the Sheriff on a Writ of Sequestration : — Held, that the Sheriff could not maintain an action against the officer of the inferior Court for wrongfully selling more than was sufficient to cover the execution and for not paying over such surplus to him. Property seized under a Writ, whether right or wrong, is in custodia legis and cannot be seized under another Wyit as long as that seizure lasts 429. Benooolen from a Presidency to a Factory subject to Fort William in Bengal ':.. Betel or Seree Eegulation, breach of •■• ••■ ••■ 23,448 Bond, action on surety,— Insurance on a French vessel— loss of ship— ignorance of Master— drifted by tide -.—see Verapa Chatty vs. Ventre. „ action on,— Mahomedan married woman— plea of coverture is no answer -.—see Chnlas and Kachee vs. Kolson. sham— made to defeat creditors -.—see Arnashellum Chetty vs. Mahomed Nina Merican. Boustead and ors. vs. Clarke and ors.— Where the freighter of a vessel purchases goods from the plaintiffs, and they by his order and on his account and risk consign them to the place of destination and agree to take a specified return cargo or failing that, Manila sugars at certain prices on the return of the vessel, or in 5 months— and sugars were shipped by the consignees to the plaintiffs on his account and the price de- bited against him — and in letters from him to the plaintiffs, he only reoogilizes their right to hold them as security for their claims— and they take no steps during the voyage to 106. 6-31 INDEX. page- ^treiit tliem as their own :— Hbld ch^t the freighter must be considered the owner of the sugars, and that they came into the ship owner's hands as his. and that they had therefore a lien upon the .sugars, for the gross amount of freight due to them under the Charter Pany ., 391, Breach of Agreement : — see Contract. British born subject subjected to English Law under the Calcutta Charter and Natives their own; before the 1st Charter (1807) ofPenang was introduced ... 112, Brown and ors. to. Duncan : — A person who fits out an expedition for the soje purpose of seeking and saving property lost, and^ embarks his capital in the undertaking, and employs suita- ble and skilful per^ns for carrying it into execution ,and charters and equips vessels with no other object in view, with po Cfirgo on board, and without any ulterior destination, stands in a very different situatioii from the ordinary pwners of vessgls, which happen in the course of ^their voyT age, to meet ^ vessel iii distress apd repder assistance. 50 per cent on sueli outlay ot advance of papitfil upder such' circumstances 's a fair and reasonable supi for compensatiop 395, ,, vs. Hay, — An agreemept between a person who advances money on an adventure to save property ^nd the salvors of such property, that the latter shopld, in consideration of their receiving a certain allowance from ^lie fqrmer, assign * and transfer to the forpier, all compensation they may be ear titled to for such salvage; cannot be enforped; the law. wilj not bestow the frnitp of labour upon those who have lent no hand to the work. Such an agreement vvill not bie enforced, especially against the owners of the property, who were no parties to it, when in a suit for accounts of the adventure such person attempts to set off against such owners the aniount paid by him to the salvors, ^nd at th^ s^me time, claims the compensation of the salvors £|J5signed and transr ' ferred to him £|,s afpresaid ■•• v. 4Qli Buffalo, cow and horse, injuries by -.—see Farquhar i)?. Shellumbrum, Captains or headmen of natives appointed to administer justice in certain esises .., ... .,', .., :: 7?.95, Oapnter vs. Brown q,nd org. — If A in compliance 'vrith an order frop} B. sends goods for him, but to C, A's agent, and the dealings between A and B, are on terms of credit, b\}t A instrpcts C, his agent, not to deliver the goods b«t on payment of their pripe, and C accordingly detains tjjs goods from B, a^ which he brings an action :— Hei,d thftt !i» A had no right tO detain the goods on account qf bis terws witl> B, be oonJ4 no more give C, his agent, the right to detain the goods m against B, who was a stranger to such instructions an4 whose dealings with A were on entirely different terms. B, on C's refusal to deliver the goods wrote to him saying that if his instructions virere to refuse d^liyecy of the goods till they were paid for, he must hold them at the lislt S'TRAlti! LA\V ilEPOitl'Si 632 of A, his principal, ins he B. " discliliins all further interest in them : " — Heiid, that this letter did iiot amount to a dis^ daimer, but to a mere statement that if the goods were de- liverable only on payment, tliey were not the goods he con- tracted for, and he therefore has no property in thtm, still ■ less any right to the possession of theto ... .;. .;. Cause of action arose abi'oad — defendant abroad — goods seiied by Sequestration — ao jurisdiction i^see KhuPoh ««. Wan Mat; Certiorari, " found therein " — right of Police to take aWay money found in gaming houses — order of forfeiture quashed : — aet Beg vs. Song Sam. Charter, what is a ... .; i. • •• ,, date of 1st ' .; ;. •;■ ,; „ 2nd .;. .;., „ 3rd .i -. ;. 1st was brought by 1st Recorder .; ,, Straits Settlements) 1S67, ..; Charitable land -.—see In the Goods of Caudef Mohuddeen. Child, adopted — not entitled to intestate's estate ,, pledging — unlawful i — see In re Hallemah and Hamiiiah. Choa Cheow Neoh i*s. SpottiswoodBi— Will by a Chinese directing rents and profits of land to be expended in " Sin chew " cere- monies, held voidi as being eontrary to the law against per- petuities, and not & charity. Superstitious uses considered Choa Chong Long's Will— (case was subsequently overruled) Chulas and anr. vs. Kolson binte Seydoo Malim :— Plea of Coverture by a Mahomedan married woman is no answer to an action on her Bond Civil and Criminal law not in existence before the Charter — suits heard and determined according t'o law of nature Ciaridge's (Sir John) charge to the Grand Jury on the opening of the first Sessions of Oyer and Tefminer in 1827 Comtnissionets appointed to admit acknowledgments of deeds of married women i. Conjugal rights — restitution — fto jurisdietiotj to entertain suits amongst Hindoos : — see Vadamalia Pillay »«. Shetthay Amah, ij rights-^restitution — no jurisdiction to entertain suits by a Chinese wife : — See Lim Chjre Peow vs. Wee Boon Tek. Conquered or ceded country — what law supposed to be in force ... Conservancy Act XXVII of 1856 — Action— Limitation — plea in de- fault • — see Song Sam vs. The Municipal Commissioners. Construction of Statutes—arrest of Judgment: — see Beg. its. O — & F — . Oontraet, action to recover a penalty tot non-fulfilment of: — see Oh ' Wee Kee vs. Kuppen Tomby. J, a note signed foi" " 30 picdls of pepper to be supplied within SO days or longer at option of purchasers," meant within a Reasonable time : — see Lofrain Gillespie & Co. vs. Khoo fieilg Team and anr. page. 205; lOS 87,95. 87; ib. 105; 600. 79,84 421; 417, 462. 72. 2. 260,428. loa 633 INDEX. page. Contract, Excise Act — repeal— contract void : — see Attorney General Ds. Kara Kong Gay. , „ a shipping order addressed to the Master of a Steamer and signed by Defendants without the word "Agents:" — Held they are personally liable :— «ee Fredericks andors. vs. Dun- lop & OTB. ,, breach of— labourers or workmen : — see Lamb vs. Ponen. ,, Magistrate has jtirisdiction to convict a labourer for a second absenting upon the same — ... ... ... 66,93. ,, in restraint of trade — Infancy — Lex loci — consideration; — ■ see Schmidt and ors. vs. Spahn. ,, plaintiff sues for money actually expended, not for dam.igeg for non-fulfilment of : — see Syed Noor and anr. vs. Green. Contribution — joint tortfeasors — liability in equity .- — see Knus vs. Hoggin. Conviction may be amended for, an informality ; — see Peter Duggie vs. F. Gibbons. ,, two offences under one penalty — mistake incurable ; — see The Opium Farmer vs. Khoo Bob An. Ooopan Chetty and anr. m. Bain. — ^A suit for specific performance of an agreement by a Principar, must be brought against hith and not against the Agent who made the promise, or at all events he must be made a party to the suit because his interest is above affected. SeMble — An agreement to be bindihg^on the Principal must be in writing. If in such a case the! Agent is only made Defendant, a demurrer lies to the bill. Query— Can an agreement to execute a Policy of Insui-ance on a ship be enforced if the vessel is not sea- worthy P Is it too late in such a case to pray for specific performance after notice of ship being lost P.. . ... ... 170. ,, Chetty and anr. vs. Bain. — If a vessel on which a Policy of Insurance has been effected, is not seaworthy at the begin- ing of the voyage, the Policy never attaches, and no action can be maintained on it even if the vessel be lost, and the person effecting the Insurance had no notice of the vessel not being seaworthy. It ia not material in such a case to enquire from what cause the loss has arisen 179. Costs of appea,l, by whom payable 445. Courts, first Charter of Justice for the Courts of the Incorporated Settlemeijts introduced ... ... 107. of Bequests Act XXIX; of 1866 ,. 611.^ ,, " Bequests— jurisdiction — balance of amount of greater extent ; — see Warne vs. Gaudart. ,, Straits— jurisdiotion — offences committed in the Malayan Peninsula 1., 610 Crimes — in what manner repressed for the first 20 years after Penang was oooupied ... .■,. ... 73, Criminal Case^wife cannot be a witness for or against her hus- band :— see Heg. vs. Lim Ah Weng. STRAWS LAW REPORTS. 634 pago. Damages — action for slander — ^not maintainable without proof of special damage -.^—see Rozells vs. Che Dean. "■ Defective assignment of realty — volunteer : — see Shotamah v$. Eader Meydin. Depositions how to be taken — when , admissible in evidence in the ah>- sence of a witness— (English Case) ... ... 595. Dickens, 1st Judge and Magistrate of Penang 71,10&. Dogs, injuries by : — see Farquhar vs. Shellunibrum. Ejectment — plea of former judgment — adverse possession : — see Ma- homed Jonnoos vs. Saiboo. English Law in the Straits Settlements 66. ,, ^ ,, ,, Penang (Privy Oounflil Case) .. .-. .. .. 569. Erasures and interlineations in an afiSdavit i^see Qoh Un Chong vs. Yap Tong San. ., in ^n executed deed : — see Kho Guan Ohiat vs. Tan Giok Lan. Eviction, meaning of .. .. .. .. .. .. .. 219 ,, leave and license : — see Mahomed Juso »s. Khu Sek Chuan. Evidence in I'eply— jproseeution closed — defence still going on : — see Ong How vs. Abduirahman. Exise Act — contract under a repealed Act :— ^see Attorney General vi. Kain Kong Gay. False Imprisonment — arrest on suspicion of felony — prosecution to commence within three months : — see Mahomed Dris vt. Scott. ,, „ arrest in Church: — see Adley »s. Robertson. „ ,, cruelty in a look-up ::— see Moptoosamy Ds. Robertson. ,, „ deportation: — see Mat Pah Ali and his wife vs. Robertson. ,, ,, flogging a coolie : — see Vellayadan vs. Wilson. „ ,, "by a Police Officer-r-proof of malice necessary : — see Koh Boo An vs. Pungulu Shaik Benan, Farquhar vt. Shellumbrum and two others. — A buffaloe is not feros naturoe but is a domestic animal mansuetoe naturoe. The owner of an animal mansuetoe naturoe is not liiable for an- injury done by it, unless he knew its vicious pro- pensities, and such knowledge must be alledged in the declaration and proved at the trial. The Court will not infer negligence on the part of a defendant by the mere happening of an accident, as that defendants' buffaloe was found in plaintiff's land without a stick on its horns. If animals ordinarily kept in confinement or' control as horses, cows, (but not such as are generally suffered to go at large, like dogs) trespass upon the property of another, the owner is liable for the trespass and the ordinary consequences of the trespass, and it is perfectly immaterial , whether the animal escapes by reason of negligence of the owner or in spite of his most diligent care 222. PatiiMah' anii ors, tu. Daniel Logaih and ;ors.— A Clause prohibit- C^S JNDPX. ing the devisees ar.d legatees from " proceeding to l»w in any "Court or Courts for their said share* " under thepainrofi lasing their legacies, is void, as being repugnant and inoonsistent with the sifts, as property is inseparable frpm the right to institute legal proceedings, and the protec- tion of the law. If a testator gives certain personal property, (naming them) to legatees, and in a subsequent part of his Will he gives the whole of his personal property to his EJ^ecutors upon certain trnsts, such latter part will not pr-evail over the former as being irreoon-^ cilahle with it on the principle that it deqotes a sub^ sequent intention, as this rule only applies on the failure of every attempt to give to the whole such afconstnjction as will render every part of it effective ; and the general terms of the latter shall not be held to control the distinct terms of the former. A, testator having devised 11 pieces of land in P. particularly described in his Will to Trustees, direct- ed that the lands should be called the "Whahkoffof M. N," and he fnrther directed his Trustees out of the rents ^nd profits of the said lands to pay for ever the sum of $ 20 monthly to the managing body of a School in Chulia Street, Penang, also the sum of $60 monthly to. the petitioner T. C. M. and her lavrful issue du^r ring their natural lives, the sum of $ 40 monthly for the maintenance of one of his sons and his wife. The testator then gave the residue of the said devised premises upon trusts as follows : — " to expend for the yearly performance of Kandoories and entertainments for me and in my naxae to commence 'on the anniversary of my decease according to the Mahomedan religion or custom, such Kandoories and entertainments to continue for ten successive days every year, and also in the performance of an annual Kandoorie in the name of all the prophets, and taexpend the same in giving a Eandoorie or feast according to the Mahomedan religion or custom to the poor for ten successive days in every year from the anniversary of my decease, to the extent of three hundred dollars, including the costs of lighting np. the Mosqne or bnrial place of my deceased mother and the Bchnolrooms thereto adjoining. And also to give Eandoories or feasts to the poor as aforesaid, once in every three nioinths to the extent of one hundred dollars, and provided there ghonld remain any surplus monies then the same, is to be expended in pnrohasing clothes for distribution to the poor," — Bbiinst another ifor an offence committed by the latter ' in-a Foreign State mu^t proceed upder the Acts I of 1849 and 7 of 1854 and the information for a warrant to appre- hend such latter person for such offence must comply with theprovisionB of those Acts and must disclose such facts as to bring the case within the Acts, otherwise such person cannot be proceeded against for want of jarisdictioa. If a Magistrate after granting a warrant .afterwards finds he has act^dillegally, by exceeding his jurisdiction, he can order such warr^pt not to Jje proceeded with even if it be issued aQ.dl is at.the time ia thfi hands.of the Police 366. 639 INDEX. p«g8, ttorse or cow, injuriee by r— see FarqUhar vs. ShellUnibrumi House built of infiiiramable iriatcrial within the Iliiiita of the 'town : — see. Reg. vs. D'Oliveiro. Husband and Wife cannot be a witness for or a ' dertook to build a house for drfendant for a specified sum and reoeivfid an advance before" the work is commenced but afterwards broke the cpntraot owing, to defendant's refusal , to make further adyances. An action could not be maih- tained upon the contract — plaintiff sued defendant for what ha is entitled to. tiio Court assumed that from the act of the defendant in the transaction a promise to pay was to be inferred and allojived the plaintiff only hs actual claim ... 196. *ran Boon Soo vs. Choa En SJcng and anr. — Legacies to males and females are all liable to abate alike and in proportion to the amount of their respective legacies, if the assets are insuffi' cient for the payment of all in full. An Executor has not the option, as in the case of debts of eqCial degree, to give one legatee a preference over another, unless the testator's intention to give such 'preference, appears flearly from the will. Legacies which are in their nature general are not entitled to any exemption from abatement on the ground o.f their be- ine^ applied to any particular object or purpose. If an Executor voluntarily pays a legacy in full, and i}.fterwards it is necessary for all the legacies to abate, he will be liable to the unpaid legatees to make up the .amount which he has paid in excess of what svioh legatee was justly entitled to, and an excuse that such payments were "made under an im- pression (which was wrong,) that the testator had shewn a pfeference to the so paid legatees, will not assist them, aa they should not have acted upon it without the previous sanction of the Court, whose direction in siich cases ought always to be squght and would readily be afforded. The legatees who have been paid in full without any claim to a preference are, in the event of the Executor's insolvency, liable to be called upon by the, unsatisfied legatees to re- fund each the amount which he has reoejved in excess of what he was justly entitled to, had a, fair distribution of the actual fund been made... ^an TohLee.Bs. Hat.— Although the, -Gambling Act XIII, of 1870 is very strict, still there cannot be a conviction under it for keeping a gambling house unless proof of guilty knowledge is given. Where the , Magistrate convicted the appellant DBsuoh a charge without proof of such knowledge, and the appellant appealed, the Court refused to quash the convie- 406. 653 i\t>KX. page> tion. but sent the. case back to the Magistrate for such proof ... " ... - ... ... ... ... ... ... 356. Thompson vs. Puah Toh. — The. Court will not grant a new trial sim- ply on the ground that Counsel had not called witnesses whom his- client wished to be examined first, as the Counsel must be allowed his discretion, (unles.s he has act- ed contrary to his client's express instructions, which must be pi-oved in the clearest manner,) and secondly, as by gfatiting a new trial, it will simply be opening a door to fraud and perjury ... ... ... ... .-. ' ■■■ 374. Transfer of Straits Settlements to the Colonial Office ... 42Q, Trespass — breach of neutrality — order of Government : — see Ab Do- rahim vs. Newbold. ,, an action of trespass for mesne profits cannot be sustaitved if the plaintiff has not entered on the premises .- — see Khouse Miah Malim vs. Anamaleh Chetty. breaking 5 feet pathway ... ... ... ... 64. • ,, limitation of fl,ction — Consefvancy.ict — ^continuing tres> pass : — see Sandilands Buttery and ors. yls. The Municipal Oommis.^ioners. ' Use and Occupation of lands situate abroad— rent : — see Pia Oheral ' Buri vs. Syed Abbass. contract — trespass — entry requisite : — see Khouse Miah Malim i>s. Anamaleh Ohetty. Veeramah w.Sawmy. — The Court has no jurisdiction on its _Eccle' siastical side to entertain suits for the restitution of conjugal rights of Hindoos ... ... ... ... ... ... 421. Volunteer — defective assignment of realty; — see Shatomah vs. Ka- der Meydin. Vadamalia Pillay vs. Shetthay Amah. — The Coiirt has no jurisdic-' tion on its Oiyilside to entertain suits for restitution of con- jugal righte amongst Hindoos ... ... 270. Vendor's lien — how lost — ^^disolaimerj — see Gaunter vs. Brown & ors. Vellayadan to. Wilson. — An employer is not justified in taking the law upon himself as to flog and imprison an agricultural la- bourer for absenting from his work without leave. A father may, inflict corporal punishment on his child, so likewise a schoolmaste'r on his scholar, -and a tradesmsn or master standing in loco parentis on his apprentice,, moderately in the way of correction » ... 123. Velloo Pullay vs. Kadier and anr. — The refusal of a Magistrate to ad- journ a case on account of the absence of counsel, is no ground for an fcppeal, although the party, who asked for such a(tjournment, loses his case 277, Verrapa Chetty vs. Ventre. — Action on Bottomry Bond against de- fendant as surety — loss of ship through ignorance of the master and drifting by tide. — HeId, no deviation as it was not a voluntary act. SeMble — The law of .the Flag (French) must prevail in all questions of seawprthiness .>. '261. Vessel and arms-^seizure and detention— suspicion of piracy-^ illicit chandoo : — see Lim Bee w, Jadee, > STRAITS LAW BKVOKUS, 65-i page, Warne ti». .Qaudart. — The Court of Bequests has jvuipdiotion to try a case where the amount claimed is within its jurisdiction, although such amount be the balance of an amount of grenter extent. The words '■ hiatter in dispute." in the Charter and Proclamations relating to the Court of Re- quests, mean the thing claimed and denied, and not any thing which may come incidentally in question ; and has no application at all to the " debts "' which may come in ques- tion, but applies only to the unspecified class of cases of , small amount to which the power of the Court extends ... II. Warrant for an offence committed in a .foreign country — jurisdic- tion ! — see Ho Ghee Sew vs. Nakodah Mahomed. Widow's right to administration to intestate's estate :, — see In the Goods of Abdullah ; and Khoo Chow Sew. Wife cannot be a witness for or , against her hushand in a criminal case; — see Eeg. vs. Lim Ah Weng. Will — Act 25 of 1838 — what a sufficient execution -, — see In the Goods of Galastaun. „ attestation — names written by another, witness holding top ofipen (Bngli.sh case) ... 593, ,, attestation — omission' of signature — 1 Vic. c. 26, s. 9. (Epg- lishcase)..^ ... „. ... ... ... ...' ... 594. ,, construction — gifts of residue to Executors whether abso- lute or in trust — Gifts void for uncertainty — perpetuity — power of appeal to Privy Council ... ... ... .., 569. ,, construction — insufficiency of assets— abatement — prefer- ence — executors liability to pay unpaid legatees : — see Tan Boon Soo vs. Choa En Seng. ,, gifts to Executors in. trust — marriage-r-divorce — legatees — 24 shares — died without issue in testator's lifetime — foi-bid- ding legatees to go to law for their shares — whahkoff land — charity — kandoories or feasts itb testator and the prophets — perpetuity — residue : — see Eatimah vs. Logan. „ legatees- — marriage — presumption — custom — trustees — trust not declared — beneffcial estate — restraint on alienation — power to lease — direction to lend money — power to renew same-^family burying place — Sow Chong house — perpetui- ty : — see Ong Cheng Neo vs. Yeap Cheah Neo. ,, Probate — Administration revoked — will supposed not to exist ; — see In the Goods of Abdullah. ,, Probate to copy — original being lost: — see In the Goods of Shaik Emam, Sinchew is not a charity : — see Choa Cheow Neo vs. Spottis- woode. Witness : — see Appeal ; and Eeg. vs. Lim Ah Weng. Writ of Sequestration — action arose abroad— defendant abroad— jurisdiction : — see Khu Poh vs. Wan Mat. ' of Sequestration— goods in custodia legis'-,— see Baumgarten vs. Kraal. 6f;5 INDEX. Indian Law Reports. page.^ Abetment of false poi'soniition ' ... ... .., 549, ,, of giving fiilse'Bvicletioe — jurisdiction : — .sec-Andy Chetty." of extortion : — see Quoen' m. Meajan and anr. ,, 'omitision to give information : — .see Q. vs. Khadin Sheikh. Absence of prosecutdr ;— .see Q. vs. Bedoor, Gho.se. Accomplice — evidence :^see Q. vs. JJwarka. . Act Xni of 1859 does not apply to domestic servants, but to arfcifi., - cers, workmen, or labourers ... ... ... ... ... 52". Acts done by a British' subject out of British Territories ;- «ee Q. vs. Moulvie Ahmudoolliih. Amends — theft ; — see Q. vs. Gogun Sein and ors. ,, proof of pecuniary loss to prosecutor 539. Andy Chetty. — The prisoner asked a witness to suppress certain facts I in giving his evidence against the prisoner beforO'the Depu^ ty Magistrate on a charge of defamation : — Held that this ^was abetment of givini;; false evidence in a stage of a judicial proceeding and was triable -before Court of Session only ... 521. Animal — negligence with respect to: — see Q. vs. Brojonarain Pubraj. Appeals remaining undecided — further evidence required ... ... 545. Bigamy :— see Q. vs. Emii Beebeo. Breach of Contract : — .seeSadoo Oliuvn Pal. ,, ,, ,, Coolies refusing to work : — see Q. vs. QaubQorah Colcharce and ors. ,, ,, ,, advanced worked off:; — see Lyall- and Co. vs. Bhaboo Sheikh. ■ Breach of Trust— framing charge of ... ... ... ... ... 535. ,, ,, ,, see Misappropria.tion. Charges under the Penal Code ... ... 550. Charge, each head of, to-be complete in itself ... ... 543. Cheating, what amounts to -.—see Q. vs. Meajan arjd anr. ,, Breach of contract :— see -Sadoo Churn Pal. Child, competent ox incompetent to give evidence ... ... ... ' 647. Commitment, annulment of — compromise : — see Q. lis. Salin Sheikh. Compromise after a case had been committed tcf the Sessions : — see Q vs. Salin Sheikh. ^ ' , Compounding Offences ... 533,535. Compensation to prosecutor — proof of pecuniary loss ... ... ... 539.. Contempt: — see Q, vs. Eattua Sahoo. Conviction and sentence on several charges :— see Q. vs. Azgur. ,, under two Sections of the Penal'Code :-^sce Q. vs. Bhoobun Mohun and two ors, ,, former — construction of Section 75 of the Penal Code: — see Q. vs. Harpaul. i' ,1 under two Sections of the Penal Code of offences committed at the same time ... ... ... ... ... ... 539. „ after a previous;^ offence — reference to Sec. 75. P. C. ... 550. INDIAN ijlw reports. 656 , - page. Onmmal Misappropriation : — see Q. vs. Bissessur Eoy. Criminal Trespass . . . . . . . . . , . . . . . _ 498, ,, Land dispute — title to land .. .. 500. Deposition taken in a former trial used against a prisoner in a subse- quent trial : — see Q. vs. Bishonath Pal. Domestic Servants — Act XIII of 1859 does not apply to them ... 527. Dying depositions without proof of belief of approaching death ... 538. Evidence given in a former trial: — see Deposition. ,, of an accomplice : — see Q. vs. Dwarka. Extortion, what amounts to : — see Q. vs. Meajan and anr. False Charge :— sfee Raifee Mahomed vs. ^-bbass Khan, and see Na- boodeep Chifndar Sirkar. ,, ,, need not be made before a Magistrate: — see Q. vs. Subbana Gaundan and ors. framing of 534_ ,, ,, need not have been made in Court .. .. .. 545 ,, Evidence — trial of several prisoners together :^jee Q. vs. Kur- reem &, anr. „ framing of charge of .. 538,540. „ Personation and abetment thereof — framing of Charges of .. 549. Filthy premises ; — see Q. vs. Brojo Lall Mitter. Finding and sentence in case of doubt of which of several charges the accased ig guilty . . . . . . . . . . ' . . 53g_ Fine — recovery — on death of offender .. .. .. .. .. 541 _ ,, default of payment — imprisonment .. .. .. .. 545, Fines inflicted for offences punishable under other Laws tban the Penal Code .. .. 541. Forfeiture of recognizance : — see Kalikant Eoy Chowdhry. Forgery— alteration of a Police Diary ; — see Q. vs. Eughoo Barrick. ,, framing of charge of .. .. .. .. 540. Gang-robbery with grievous hurt .. .. ., 530 Gratification : — see In re Abdool t anr. Grievous hurt, framing of charge of 54O. „ ,, and rioting, framing of charges of 548. Imprisonment — non-payment of fine . . 545. Jnfant child, framing of charge of secret burial of 547_ In re Abdool and anr. — Any officer of the High Court who asks or 9.opepts a present from any person in whose favour judgment is pronounced by the Court, is guilty of a gross breach of duty and a contempt of Court. So also any person who pffprg pr gives such present is guilty of a contempt of 'Court. 493. Kalikant Roy Chow4hry.— There must be a regular judicial trial and legal inquiry befofe an order to forfeit recognizances- can be passed and the evidence taken should be recorded in the presence of the accused or in the presence of an agent of the accused duly authorized to appear in such inquiry . . . . 612. Kapalavay a Saraya.— A settlement of ^ accounts in writing, though not signed by any person, is a " valuable security " within the definition of Section 30 of the Indian Penal Code . . 520. 657 INDEX. page. Kidnapping a minor, framing of charge of . . 548. and theft from a child :' — see Q. vs. Sfaama Sheikh. from lawful guardianship : — Jee Q. i)s. Gunder Sigh, and Q. v$. Gooroodoss Hajbunsee. Lyall and Co. vs. Bhaloo Sheikh. — Act XIII of 1859 relates to fraudulent breaches of contract, and does not apply-where an advance has not only been worked off by a labourer, but an actual balance is due to him .. .. .. .. 525. Magistrate not bound to file any document alluded to in his grounds of commitment .. .. ,. .. .. .. .. 543. , Mahomedan law between Nikai wives and others 533,536. Marriage during life-time of first husband .. 547. Married woman taken for illicit' intercourse : — tee Q, vs. Kumara- sami. Misappropriation -.—see Q. vi. Bissessur Eoy., Mischief: — see Q. vs. Denoo Bundhoo Biewas j. Hurpaul. — Previous Convictions — Construction of Section 75, Penal Code :— Held that Section 75 of the Penal Code only applies to convictions of offences committed after the Code came into operation .. ... .. '.. •• 482. ,, vs. Khadim Sheikh, — An Omission to inform Police that a Crime has been committed does not, under Section 107 of the Penal Code, amount to abetment, unless such omission in- volves a breach of a legal obligation. A private individual is not bound by any law to give information of iiny offence which he has seen committed .. .. ... ... .. 488. ,, vs. Kureem and anr. — The commitment and trial together of several persons who are charged with having given false evidence in the same proceedings, should be avoided. A Court of Session is competent to try separately prisoners who have been committed together ... > .. .. .. 502. ,, Vs. Kumarasami. — Upon an indictment under Section 498 of the Penal Code charging that the prisoner took away one A. who was then and whom he then knew to be the wife of one M. with the intent that he might have illicit intercourse with the said A :■ — Hbld, that there was a taking within the meaning of the Section althon^ the advances and solicita- tions had proceeded from the woman atjd the prisoner had for some time refused to yield to her requesi... .. .. 621. ,, vs. Meajan and anr. — To amount to the offence of extortion, property must be obtained by intentionally putting a person in fear of injury to that person and thereby dishonestly in- ducing him to part with his property. The mere issue of a iHookumnamah (to collect statistical information) by a Po- lice Officer, is no legal ground for a conviction of abetment olF oheatitig or of extortion . . . . . . . . . . 478. ,, vs. Moulvie AhmudooUali. — A person who is admittedly a sub- ject of the British Government is liable to be tried by the Courts of this country for acts done by him whethei: wholly within or wholly without, or partly vrithiti and partly with- out, tbe British Territories in India, prbvided they amoiint togetlier to an offence unde* tlie Peiial Code 474. ,, 9s. Nittar Mutidlfe. — The tearing up of a pbttah ia the destVufe-- tion of a valtiable sedurity within "the nSeiinihg of Section 477 of the Penal Ood« ... ..-. ..■; ..■. ... ... 47^. iXDIAX LAW REPORTS. igBQ page. Qrteen vs. Ramtonoo Sinsh.— Before a Conviction can be had under Section 188 Penal Code, it must be proved that the accused knew that an ordei--had been promulgated by a public ser- vant directing su-Ch accused person to abstain from a cer- tain act ^. 512_ ,, vs. Eughoo Barrick.— The false alteration of a Police Diary by a Head Constable was held to fall under Section 471 Penal Code, as the forgery of a document made h^ a pub- lic servant in his official capacity 504. >, vs. Ruttan.Sahoo.— Under Section 163 of the Code of Criminal Procedure if a Court before which the niFence of contempt under Section 179 Penal Code is committed, considers that a sentence of imprisonment is called for, it should record a statement of the facts constituting the contempt and the statement of the accuse^, and forward the Case to a Ma- gistrate 505. ,, vs. Saliu Sheik, — A comniitmeht onCe made by a Magistrate to the Sessions cannot be annulled by his allowing the pro- secutor to file a compromise. ... ' 473. ., vs. Shama Shesikh.— The offence described in Section 363 of the Penal Code is included in that described in Section 369. the kidnapping and the intention of dishonestly taking pi'operty from the kidnapped child being included in the latter Sectiort 49?. ,, vs. Sheikh Mooneeah. — Where the accused stole property at night belonging to two different persons from the same room of a fiouse, it was held that he could not be sentenced sepa- rately as for two offences of theft ... 503. ,, vs. Subbana Gaandan and ors. — To constitute the off^nCe of preferring a false charge, under Section 211 of the Penal Code, the charge need not be made before ,a Magistrate. Nor need the charge have been fully heard and dismissed : it is enough if it is not pending at the time of the trial ... BlJ>. „ vs. S.urroop Chunder Paul and Heera Lall Paul.— The owner or occupier of land on which an unlawful assembly is held, cannot be conricted under Sefction 154 of the Penal Code, unless there is a finding that the riot was premeditated. Where two. opposite factions Commit a riot, it is irregular to treat both parties as constituting one diilawful assembly and to try them together, in-as-mUCh as they do not have " one common object " within the meaning of Section 141 of the Penal Code. The right of an accused party to cross- examine witnesses is limited to a right to cross-examine the witnesses for the prosecutor or for the Crown called against him. If he wishes to arail himself of evidence which has been given, or which can be given, by a witness called for another of the parties accused, he must call him as his own witness .. ..-. ... ... ... ••• 514. 661 INDKX. page. Eaffee Mabomed vs. Abbas Khan. — Sections 182 and 211 of the Pe^ Dal Code distinguished. The latter held to apply to a case of false charge in which the accused in the present case had appeared before the Police and charged the now complain- ant with having Caused the death of the accused's child by poisoning ,.. ... ... 497. lleeeiving stolen property, charge to set forth knowledge or belief ... 544. Recognizance — forfeiture — procedure. — see Kalikatit Roy Chowdhry. Riot — conviction and sentence on several charges: — see Q- vs. Azgur and ora. „ unlawful assembly — liability of owner Of land : — see Q. vs. Surroop Chunder Paul and anr. . . . . . . . . 514. Rioting with deadly weapons and grievous hurt — charges . . . . 548. Sadoo Churn Pal. — Case in which the majority of the Court held that it was one of Breach of contract, while Seton-Karr. J., was of opinion that the prisoner was rightly convicted of •cheating under Sections 415 and 417 of the Penal Code ... 483. Secret burial of infant child . . ' . . . . . . . . . . .547> Sentence — punishment under 2 Sections of the Penal Code:— see Q. lis.' Bhoohun Mbhun and ors. • State offences — acts done within or without British Jerritory; — see Q. vs Moulvie Ahmudoollah. Theft — amends — illegality of Magistrate's order ; — see Q. vs. Gogan Sein and ors. „ property of two different persons stolen from the same room of a house :— see Q. vs. Sheikh Mooneah. ,;' taking property from a kidnapped child; — see Q. vs. Shama Sheikh, ,, framing of charge of .. .. .. .. ... .. 535; Unlawful assembly, framing of charge of 544j. ,, ,, charges of grievous hurt and rioting ... ..^ MS. 1, ,, riot — liability of owner of land': — see Q. «4. i Surroop Ohunder Paul and anr. Valuable security— tearing a pottah: — see Q. vs. N^ttar Mundle. ,, ,, fraudulent destruction . .. .. ... 537. ,, ,, settlement of accounts not signed: — see Kapa- lavaya Saraya. Whipping: — see Q. vs. Amarut Sheikh. "Withdrawals -of complaints and compounding offences . . . . 533. Witnesses attending before criminal Courts .. .. .. ... 546. Wrongful confinement : — see Q. vs. Amer Daraz-. ,, ,, absence of Prosecutor: — see Q. vs. Bedoor Ghose. ,, loss : — see <3, vs. Denoo Bundhoo Biswas. THE END. •Printgd at the CommercM Press, by Heap Lee & Co., PENANG. 1877.