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CORNELL UNIVERSITY LIBRARY 
 
 3 1924 103 378 935 
 
NOTE. 
 
 In this reprint the errata and addenda 
 have all been noted in the text. It is other= 
 wise a facsimile of the original edition. 
 
A 
 
 SELECTION 
 
 OF 
 
 ORIENTAL CASES 
 
 ■ DECIDED IN 
 
 THE SUPREME COURTS OF TPIE STRAITS' 
 SETTLEMENTS. 
 
 COLLECTED AND ARRANGED 
 
 BY 
 
 ROBERT CARR WOODS, JUNR., ESQ. 
 
 BARRISTER-AT-IAW, 
 AN ADVOCATE AND ATTORNEY OF THE SUPREME COURT. 
 
 " It is more a question of comity than law, and it is difficult to say 
 where to draw the line." 
 
 PINANG. 
 
 PRINTED FOR PRIVATE CIRCULATION, 
 1, NORTHAM RoAD. 
 
 1869. 
 
PINANG. 
 
 Printed by S. Jeremiah. 
 1, NoRTHAM Road. 
 
 Reprinted 1911 
 
 by 
 
 Sweet & AIaxwell, Ltd., 
 3, Chancery Lane, London. 
 
PREFACE. 
 
 This reprint of Judgments is made with a view of 
 collecting for the first time into one small volume 
 the principal Straits' Anglo-Oriental Law Cases, 
 that are to be found widely scattered throughout the 
 Local Journals, and to which access cannot be had 
 but with great difficiilty. It is hoped that this Col- 
 lection may be found useful to the Profession as a 
 Repertorium pointing out the most important excep- 
 tions that have been engrafted on the Law in 
 favor of our Chinese, Mahometan, Hindoo and other 
 native population. A few unreported Decisions and 
 Notes of recent Local Cases have been added as it is 
 considered they may prove interesting or be of some 
 service to the Bar. 
 
 The Judgment in Regina v. Willans is not in- 
 cluded in this Collection as it is already in the hands 
 of the Profession, and is to be foimd in the 3rd. 
 volume of the Journal of the Indian Archipelago, 
 new series. 
 
 It is hoped that this little Manual may be but the 
 harbinger of an " authorized " edition of the Oriental 
 Cases, revised and authenticated by the Jiidges, as 
 such a work of authority would be invaluable to every 
 one concerned in the administration of justice in 
 the Colony, and might be a guide to future Judges 
 in expanding the Common Law to siiit the religions 
 and customs of the natives. 
 
 The omission in our Charters of Justice of any 
 special provisions for the native laws being adminis- 
 tered (as in India) to the Oriental races resident 
 in the colony has naturally created a conflict of Laws, 
 which is in no way alleviated by H. M's. Letters 
 Patent good-naturedly directing the administration 
 of the Laws of England " as far as circumstances, and 
 the religions, manners and ctistoms of the inhabi- 
 tants will admit. ' ' The Courts at present are inclined 
 to allow the native customs to prevail when injustice 
 would follow from strict adherence to our English 
 
Law, but tlie matter may still be considered as a 
 VEXATA Qua:sTio, which may hereafter be finally de- 
 termined in favor of our native subjects more by the 
 force of local precedents than otherwise. 
 
 It is to be regretted that the Government or the 
 Local Legislature have not as yet endeavoured to 
 make regulations for the security and purity of native 
 Marriage and Divorce Registries in this Colony, as 
 the lax practice prevailing here and the Custom of 
 the Kazees of taking their Registry out of the Colony 
 whenever they travel abroad does incalculable injury. 
 
 I beg the indulgence of the Profession for the typo- 
 graphical errors which have crept into the following 
 pages as the revisal was carried on with difficulty 
 during the hours of professional duty and whilst en- 
 gaged in Court. 
 
 PiNANG, / p n w 
 
 1st March, 1869. C K. b. W. 
 
JUDGES. 
 
 Recorders of Prince of Wales' Island. 
 
 Sir Edmund Stanley, Knt 1807-1815 
 
 „ Andrew A. Cooper, „ 1815-1817 
 
 „ Ralph Rice, „ 1817-1823 
 
 „ Francis S. Bailey, „ 1823-1824 
 
 Recorders of P. W. Island, Singapore & Malacca. 
 
 Sir John T. Claridge, Knt 1825-1827 
 
 „ Benjamin H. Malkin, „ 1827-1835 
 
 Edmimd J. Gambier, 
 Wm. Norris, 
 Christ. Rawlinson, 
 Wm. Jeffcott, 
 
 1835-1836 
 1836-1847 
 1847-1850 
 1850-1855 
 
 Recorders of Singapore & Malacca. 
 
 Sir Richard B. Mc'Causland, Knt 1856-1866 
 
 „ P. Benson Maxwell, „ 1866-1867 
 
 Recorders of P. W. Island. 
 
 Sir P. B. Maxwell, Knt 1856-1866 
 
 „ Wm. Hackett, „ 1866-1867 
 
 Chief Justice of the Straits Settlements. 
 Sir P. B. Maxwell, Knt i867— 
 
 Judge of Pinang. 
 Sir Wm. Hackett, Knt. 1867- 
 
ADVOCATES AND ATTORNIES. 
 1869. 
 
 James R. Logan. Pinang. 
 
 Abraham Logan. Singapore. 
 
 Robert Carr Woods. "■••■ „ 
 
 Alex. M. Aitken.* „ 
 
 Francisco E. Pereira.* „ 
 
 John S. Atchison. „ 
 
 Bernard Rodyk. Pinang. 
 
 David Aitken. ,, 
 
 Hon. Thomas Braddell,® (Att. G-en.) Singapore. 
 
 James Gr. Davidson „ 
 
 Wm. G. Campion. „ 
 
 Alex. G. Banmgarten ,, 
 
 Alex. Aug. Baumgarten „ 
 
 Robert Carr Woods, Jr."*' Pinang. 
 
 Edwin Koek. Singapore. 
 
 Danial Logan.,'' (Sol. Gen.) Pinang. 
 
 Horatio Baumgarten Malacca. 
 
 Duncan C. Presgrave Pinang. 
 
 Charles W. Rodyk 
 
 * These Gentlemen are Barristers-at-Law of England. 
 
TABLE OF CASES. 
 
 Page. 
 
 1. In the Goods of Abdullah. Administration. 1 
 
 2. In re Cim Siang Long's Estate. „ Adoption. 11 
 
 3. In re Chong Long's Estate. Will. Sinchew. 13 
 
 4. Nonya Siu v. Oothmansah Merican. Mar- 
 
 riage and Guardian. Cliinese Law 22 
 
 5. Hawah v. Daud. Personalty of Mahomedan 
 
 feme covert is to her separate use 26 
 
 6. Chulas & Kachee v. Kolson. Coverture of 
 
 Mahomedan feme covert is no Plea in bar. 30 
 
 7. In the Goods of Lao Leong An. Administra- 
 
 tion. Distribution when two wives 35 
 
 8. Veeramah v. Sawmy. No Restitution of Con- 
 
 jugal rights amongst Hindoos on the Eccles. 
 side 38 
 
 9. Reg. V. Loon. Restitution of Conjugal rights 
 
 amongst non-Christians on Civil side 39 
 
 10. Vadanialia Pillay v. Shetthay Amah. No 
 
 Restitution of Conjugal rights amongst Hin- 
 doos on the Civil side 41 
 
 11. Abdul Cader v. Shatomah. Mahomedan mar- 
 
 ried woman must acknowledge assignments 
 of her realty in conformity with Indian Act 
 31 of 1854 42 
 
 Appendix I. 
 
 12. Choa Cheow Neo v. Spottiswoode. — WiU. Sin- 
 
 chew. Perpetuity and no Charity 1 
 
Appendix II. 
 
 Page. 
 
 13. Abdul Wahap v. Sultan AUi. Jurisdiction. 1 
 
 14. Veerapa Chitty v. Sultan AUi. ,, „ 
 
 15. Hadjee Hamid v. Tunku Alii. „ ,, 
 
 16. Hong Lip V. Tumongong of Johore. ,, „ 
 
 17. L. Nairne v. Rajah of Quedah. „ „ 
 
 Appendix III. 
 
 18. Virapa Chitty v. Ventre. Marine Insurance. 
 
 Deviation 1 
 
 19. Mootoo Curpen Chitty v. Lee Toh. Chitty 
 
 Insurance Bond no Wager Policy ,, 
 
 20. Abdul Kader v. Shatomah. Acknowledgment 
 
 by married woman of assignments of her 
 realty necessary „ 
 
 21. Maxwell v. Chittyappah Chitty. ^Mortgage. 
 
 Sale of hackney carriage „ 
 
 22. Shedumbrum Chitty v. Jones. Assignment of 
 
 Salary „ 
 
 23. Attorney General v. Kam Kong Gay. Repeal 
 
 of prior Act by implication „ 
 
 24. Tan Kay v. Tan Lat. Practice. Title of 
 
 Court ,, 
 
 25. In the Goods of Meh AUang. Administration. 
 
 Adoption 2 
 
©tiental Cases: 
 
Court of 3uMcature. 
 
 PINANG. 
 
 IN THE GOODS OP ABDULLAH, DECEASED. 
 
 Will of Mahomedan alienating the whole of his property (although 
 
 by the Mahomedan Law he can alienate only one third) is good pro 
 
 tanto. The administration granted by the Court to the Widow 
 
 revoked, and the Will admitted to Probate. 31 March 1835 
 
 Indian Law Commissioners' Report, 1842. 
 
 Morton's Reports, 19. 
 
 Judgment of Sir Benjamin H. Malkin, Knight, 
 Recorder. 
 
 This was an application to set aside the adminis- 
 tration granted to the widow of the deceased, a Ma- 
 hometan, and to admit an alleged Will to probate. 
 There was no dispute as to the execution of the pa- 
 per treated as a Will ; but it was urged on the part 
 of the widow that the Will was inoperative, as not 
 being conformable to the rules of the Mahometan 
 law ; the fact that it was not so conformable is ad- 
 mitted, and the only question is, whether for that 
 reason the Will ought not to be admitted to probate. 
 
 It would be sufficient for the decision of the pre- 
 sent case to observe, that the will is only at vari- 
 ance with the rules of the Mahometan law, inas- 
 much as it professes to pass the whole property, and 
 by that law, the power of the testator to bequeath 
 his property 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, that the administration 
 granted to the widow must be revoked, as having 
 been obtained on the supposition that there existed 
 no Will at all ; and the Will must be admitted to 
 probate (or rather, as I will mention hereafter a 
 course slightly different adopted), as being an au- 
 thentic instrtiment, of some force and validity ; the 
 question, to what extent it Avill be operative, re- 
 maining unaffected by the mere fact of such ad- 
 mission. This result seems too obvious to require 
 any authority to support it ; but such authority, if 
 wanted, will be found in the case of Syde Ally v. 
 
(2) 
 
 Syed Kullee Mulla Khan, Sir T. Strange, Rep II., 180. 
 
 As a general rule, I have been unwilling to ex- 
 press any opinion on points of law not necessarily 
 coming before me for decision. And accordingly, in 
 several cases, wbere tbe same principle as tbat con- 
 tended for in the present case has come inciden- 
 tally in question, I have avoided expressing any 
 opinion upon it ; the parties in some instances ha- 
 ving all wished their own law to be carried into ef- 
 fect, and the only question having been what was its 
 true interpretation, and in others the party insis- 
 ting on the benefit of his own law, having clearly 
 failed to make out a claim, even upon his own prin- 
 ciple. I am not willing however, to avoid declar- 
 ing my opinion in this case ; partly because the ex- 
 pression of it, though not necessary to the dispo- 
 sal of the present application, may prevent the par- 
 ties from having recourse to farther litigation, which 
 otherwise must almost necessarily ensue ; and part- 
 ly because, as the question is not very likely again 
 to be raised before me, I should be u.nwilling to have 
 it supposed, as it easily might, from my having 
 sometimes avoided its determination, that I felt it to 
 be of any considerable doubt. I, indeed, have in 
 substance expressed my opinion upon it before ; 
 and for that reason also, I am the less unwilling 
 now, without absoKite necessity, to declare it. 
 
 I refer to the case of Rodyk and others v. William- 
 son and others (24th May 1834), in which I express- 
 ed my opinion, that I was bound by the uniform 
 course of authority to hold that the introduction 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 provi- 
 sion, and had abrogated any law previously existing. 
 I intimated much doubt, indeed, whether I should 
 have agreed on such a construction of the effect of 
 
 * Vide Judgment in Regina vs. Willans. 1858. Journal of the 
 Indian Archipelago, III. 28,35,49. 
 
(3) 
 
 a charter liad 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 Malacca accor- 
 dingly. 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 
 King's courts at Calcutta, Madras, and Bombay the 
 benefit of their own laws, apply only to persons so 
 resident. The iDulk of the inhabitants of India are 
 otherwise protected. 
 
 It may be worth while, however, before adverting 
 to the terms of the charter, to observe that though 
 the Mahometan law cannot, independently of them, 
 stand on a better footing here than the Dutch 
 law at Malacca, it may very easily stand on a 
 worse. To place it on the same, it will be ne- 
 cessary to prove that it existed, not as the custom of 
 a particular portion of the inhabitants, but as the 
 law of the place, up to the time of the first charter. 
 I believe it would be very difficult to prove the exis- 
 tence of any definite system of law applying to Prince 
 of Wales' Island or Province Wellesley previous to 
 their occupation by the English ; but that law, what- 
 ever it was, would be the only law entitled to the 
 same consideration as the Dutch law at Malacca ; 
 indeed, even that would not in general policy, though 
 it might in strict legal argument ; for there might be 
 much hardship in depriving the settled inhabitants 
 of Malacca of a system which they had long under- 
 stood and enjoyed, but more "■■' in requiring the per- 
 sons who resorted to these new and almost uninha- 
 bited 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 
 
 * ? None.— Ed. 
 
(4) 
 
 substance, disposed of the present question in tlie 
 case of Rodyk v. 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 much preserved to them as those of any other 
 class of inhabitants, except inasmuch as they may 
 be less repugnant to the English law, and therefore 
 less frequently affected by its introduction, and the 
 Dutch law being also, which perhaps the Mahome- 
 tan law might be proved to have been here, (but that 
 would be a matter of evidence), the law of the coun- 
 try before the charter. The latter argument, how- 
 ever, was disposed of in that case ; nor was it there 
 contended that the general words of the charter, 
 saving to the different inhabitants their several re- 
 ligions, manners, and customs, had the operation 
 now ascribed to them. 
 
 Nor, in my opinion, 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 quite unlimited ; it 
 gives to all the inhabitants of these places the full 
 benefit of their own laws, religions, and customs ; 
 for no line is drawn to confine the effect of the 
 words relied on, either to any particular nations, or 
 to any particular rights. The effect contended for 
 therefore goes far beyond the state of the law at Cal- 
 cutta, Madras, or Bombay, where the benefit, if it be 
 one, is confined to Mahometans and Hindoos, and 
 is limited to certain classes of rights and privileges. 
 This is not a very probable operation of a charter 
 made for the administration of law to a new popula- 
 tion, and where therefore the reasons for such a re- 
 servation on the continent of India did not, at least 
 to the same extent, exist. 
 
 I confess I am unable to see any words in the 
 charter which can bear out such a result. The pas- 
 sage relied on with respect to the present question is 
 
(5) 
 
 in page 21 " That the said court of judicature shall 
 have and exercise jurisdiction as an ecclesiastical 
 court, so far as the several religions, manners, and 
 customs of the inhabitants will admit." There are, 
 however, similar passages on other subjects in pp. 
 41,43,47,53 ; these all differ in the minutise of ex- 
 pression, but I think there can be but little doubt 
 that they were all meant to give the same kind of 
 protection. It would be a very dangeroiis 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 impression the char- 
 ter seems to have intended to give a certain degree 
 of protection and indulgence to the various nations 
 resorting here ; not very clearly defined, yet perhaps 
 easily enough applied in particular cases, but not ge- 
 nerally, to sanction or recognise their law. In the 
 words of page 43, respecting the criminal proceedings 
 of the court, " due attention is to be had to the seve- 
 ral religions, manners, and usages of the native in- 
 habitants ; " 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 substan- 
 tial justice." In this last extract " the law " is clear- 
 ly distinct from those native laws which are to be 
 favoured subordinately to it. 
 
 I see no reason to ascribe a different construction 
 to the words giving ecclesiastical jurisdiction. And 
 it is to be observed that in the detailed provisions 
 respecting such jurisdiction no such words are foimd ; 
 they are only inserted in the general description of 
 the jurisdiction of the court ; it might therefore be 
 open to contend that they applied only to other mat- 
 ters of ecclesiastical cognizance not expressly inclu- 
 ded in the subsequent minute directions. But with- 
 out insisting on this, which would probably be too 
 strict a construction, I think there is abundantly 
 
(6) 
 
 enough in these provisions of the charter to show 
 that no such recognition of the different laws of dif- 
 ferent inhabitants could obtain. The court here is 
 to grant probate and administration of the wills and 
 effects of aU the inhabitants, and aU other persons 
 who shall leave property here ; the courts in the pre- 
 sidencies of India have such jurisdiction given them 
 only over the estates of British subjects, and accor- 
 dingly it has been held at Madras (Chalunnal v. 
 Garrow, Sir T. Strange, II. 153, recognised in Syed 
 Ally V. Syed KuUee MuUa Khan, lb. 186,) that no 
 probate or administration 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 Malay nor Hindoo nor Chi- 
 nese law that a party can have no representative cha- 
 racter unless derived from the court of judicature 
 established here under the charter of the King of 
 England, and proceeding according to the law used 
 in the diocese of London. The mere fact, therefore, 
 that administration and probate have always been 
 applied for, seems almost to negative, as far as gene- 
 ral usage and understanding is material, the argu- 
 ment advanced. 
 
 This observation is important, because Mr. Gaunter, 
 the advocate on the part of the widow, relies much on 
 the general practice of the Court as invalidating the 
 WiU, and recognising the national law of the testator. 
 No decisions, however, are cited in detail, and much 
 of the practice referred to might be only like that 
 which has obtained 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 admi- 
 nistrator's account, for instance, might depend on 
 the religious usages of his nation as to burial ; the 
 propriety of his application of property might some- 
 times depend upon a native law or custom of marri- 
 
(7) 
 
 age. And in respect of wills, to one case of which 
 Mr. Caunter adverted rather more particularly than 
 to any other instance, everything as far as the Will 
 is acted on at all, must depend on its construction 
 merely. I should say that the Court oiight very rea- 
 dily to collect from the expression of a Will that the 
 testator intended his property, so far as not particu- 
 larly disposed of, to follow the law to which he was 
 accustomed. Thus, in a Will very recently exhibited 
 before me, I should have no doubt that a direction by 
 a Mahometan, that the property should be distribu- 
 ted "according to the law of God," imported a distri- 
 bution by the Mahometan law of descent. * If such 
 a party disposed of the third part of his property ex- 
 pressly as that which only he should alienate by 
 Will, I should treat it as a clear declaration of his 
 expectation and intention that the rest should follow 
 the course of that law by which, and by which only, 
 his power was so limited. I put plain and easy 
 cases on purpose, but the same principle would very 
 often, in my judgment, have to be applied. But all 
 these would be decisions not on the legality, but on 
 the construction of a particular Will, and such, in 
 the absence of minute information, I should believe 
 to be the character of most or all of the testamen- 
 tary cases referred to. 
 
 On the whole, I should entertain little doubt on 
 the question, had I not the authority of Sir Ralph 
 Rice against me. I cannot, however, but think, 
 that thoiigh his opinion undoubtedly differed in 
 some degree from mine, it must either be inaccu- 
 rately reported in the passages referred to by Mr. 
 Gaunter, or else must have been given without refer- 
 ence at the time to the provisions of the charter un- 
 der which he had then ceased to act for nearly seven 
 years. I come to this conclusion, because I find 
 him drawing a marked distinction between the civil 
 
 * Et vide Judgment in Regina vs. Willans, 1858. 3 .Journal of the 
 Indian Archipelago, N. S. 44. 
 
(8) 
 
 and criminal law, for whicli, even independently of 
 the general principle already adverted to, of putting 
 the same construction on provisions generally simi- 
 lar, I do not find that warrant in the special wording 
 of 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 differing from my own, though corresponding 
 perhaps to a rather wider interpretation of the clauses 
 protecting the natives. But he draws a distinction 
 between the criminal law and that affecting civil 
 rights, with respect to which he says, that the court 
 was bound by the clause in the charter to administer 
 the law to every part of our mixed population accor- 
 ding 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 framing of process, 
 where the passage in page 41, already referred to, is to 
 be found. And in the general description of the juris- 
 diction of the court nothing of the kind is said in the 
 enumeration of the causes of action and parties sub- 
 ject to it, and the words of the clause giving it the 
 same authority as the courts of coramon law and equi- 
 ty in England are only that these powers are to be ex- 
 ercised " as far as circumstances will admit." The 
 distinction therefore between 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 I cannot therefore but think 
 that there must be some error, either in the report 
 of the learned judge's examination, or in his recol- 
 lection 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 ex- 
 pressed. Under these circumstances, I cannot but 
 distrust my own judgment; still, as the case, inde- 
 
(9) 
 
 pendently of this one authority, seems to me a clear 
 one, I must act on my own impression. The ques- 
 tion will probably still be considered doubtful, but I 
 ought not, at all events, to leave it as one where a 
 decided opinion bad been expressed on one side 
 only, wben my own is equally clear on the other. 
 
 It may be desirable to call to notice, that it is the 
 fault of native holders of property if any inconve- 
 nience result from the present decision, supposing 
 it to be established as law. The law to which I con- 
 sider them as subject gives the most unlimited 
 freedom of disposal of property by Will ; and any 
 man therefore who wishes his possessions to 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 general residt is, that the administration 
 granted to the widow must be revoked, the Will of 
 Abdullah being established as a valid instrument. 
 StiU it does not appear to me to amount to a com- 
 plete will, constituting Growk the executor of all 
 his property ; it is only a disposal of part in his fa- 
 vour, and contains nothing to show that he was in- 
 tended to have the general management ; if not, he 
 is not designated as executor, and he can only ob- 
 tain administration with the will annexed in the 
 usual manner, by giving notice and filing a proper 
 petition. The present petition may, however, if he 
 wishes it, be amended to that effect, without payment 
 of costs. But it is necessary to observe that the 
 widow may very probably have a better claim to ad- 
 ministration with the will annexed than he, if she 
 wishes to dispute his right. Where the testator 
 constitutes an executor, the court has nothing to do 
 with the selection ; the Will, if effective at all, is ef- 
 fective in that particular. But where the will ap- 
 points none, and administration is therefore neces- 
 sary, the court has its usual duties to perform, and 
 
(10) 
 
 tlie parties their usual rights to enforce. The fact 
 that the testamentary paper gives a benefit to a par- 
 ticular individual, may, according to the circum- 
 stances of the- case, be a strong reason for either 
 selecting him for the administration, or for exclud- 
 ing him from it. But the regular course of peti- 
 tion and notice must be adopted, to give the parties 
 interested an opportunity of coming in and urging 
 their claims. 
 
 The prayer therefore of Growk's petition is granted, 
 as far as it respects the revocation of the adminis- 
 tration granted to the widow. As far as the grant 
 of any powers to himself is concerned, the petition 
 must be amended. It would be premature to make 
 any order about the costs, while it is yet uncertain 
 who will have the general management of the estate. 
 But I entertain no doubt that the widow will finaDy 
 be entitled to receive the costs of her present oppo- 
 sition out of the estate. The question must at least 
 be considered as one very fit for discussion ; and the 
 estate therefore may properly be charged with the 
 costs incurred, in consequence of the doubtful lega- 
 lity of the course adopted by the testator. 
 
COURT OF JUDICATURE. 
 
 Malacca. 
 In re Chu Siang Long's Estate. 
 
 Adopted children of a Chinese entitled to joint admiaistration of 
 his Estate in preference to his nephew.* 
 
 Pinang Gazette, 20 Feb. 1858. 
 
 Memo by the Senior Sworn Clerk for the infor- 
 mation of the Honorable the Recorder. 
 
 Estate of Chu Siang Long, deceased. 
 
 Letters of Administration ad Colligendum having 
 been granted to the Senior Sworn Clerk for the 
 time being, the Resident Councillor is desirous of 
 ascertaining to whom the assets realized, viz. drs. 
 2441.88 and half, after liquidating all debts up to 
 this date, should be paid ; whether to the natural and 
 adopted daughters of the deceased and to his adopted 
 son jointly or to his lawful nephew, and whether the 
 English or Chinese Law and Custom is to prevail 
 in this instance at Malacca. See Minute Book here- 
 with sent Vol. 5th, Pages 316,317,319 and 320 to- 
 gether with the Papers filed in the above Estate. I 
 am informed that the Parties interested wiU file a 
 Petition on or before Tuesday next touching the dis- 
 tribution of assets. 
 
 Court House, 29th April 1843. 
 
 Saturday. 
 
 I find, on reference to a note made by me on the 
 23rd August last, that I have already in effect deci- 
 ded this question, by giving it as my opinion that 
 Chu Sing Kee and Chu Gan, the adopted son and 
 daughter of deceased, who had applied jointly for 
 Letters of Administration to the Estate, were en- 
 titled to administer in preference to the nephew Hee 
 Toh Sing. For the same reason I think the assets 
 
 * This decision has been subsequently overruled, see Judgment in 
 Eeg. vs. WlUans, 3 Journ. Ind. Archip. 41 where it is stated by the 
 Judge " I then (1858) held that the adopted son of a Chinaman domi- 
 ciled here was not entitled, in that character, to administration, or 
 to a distributive share of his adopted father's land." And see also 
 pages 40,45 and 46 of the same Judgment on the subject, and see in 
 the Goods of Meh Allang, post App. III. — Ed. 
 
(12) 
 
 should be divided between the son and daughters 
 and that the nephew is not entitled to share with 
 them. The ground of my decision is that I take 
 the same view of the Charter as Sir B. Malkin did 
 with regard to the Law to be administered in these 
 Settlements under that instrument, and which cannot 
 be better expressed than in his own words. In his 
 able Judgment in the Goods of Abdullah in March 
 1835 Sir Benjamin observes "In the general ex- 
 pression the Charter seems to have intended to give 
 a certain degree of protection and indulgence to the 
 various nations resorting here, not very clearly de- 
 fined, yet perhaps easily enough applied in particu- 
 lar cases, but not generally to sanction or recognize 
 their law." And in his letter of the 17th July 1837 
 to Mr. Secretary Prinsep he remarks as follows 
 " But with respect to the Law whereby rights are 
 constituted and established, I understand the Gover- 
 nor General to consider that it at present is, and 
 ought in general for the present to continue, the 
 Law of England ; modified indeed by considerations 
 how far some of its particular provisions and enact- 
 ments are suitable to the circtimstances of the Colo- 
 ny, and administered in all cases with large and li- 
 beral regard to the manners, usages and religions 
 of the different nations subject to its operation, but 
 containing no provisions or principles which can- 
 not be based upon that Law, so modified and con- 
 strued." "It wotdd seem very difficult, for instance, 
 to refuse to treat a Hindoo son by adoption as a son 
 and consequently as an heir in the absence of other 
 sons ; or to declare the eldest son of a Mohometan 
 not to be the heir, because his father had two wives 
 at once, and he was the son of second marriage." "* 
 In the 5th Paragraph of the Report made on the 8th 
 February 1842 by the Law Commissioners on the 
 Judicial Establishment of the Straits, they express 
 their concurrence in Sir Malkin's view of the spirit 
 "* See Judgment in the goods of Lao Leong An ( 1867 ) post. 
 
(13) 
 
 in which the law of England should be administered 
 in these Settlements ; and I have myself adhered in 
 practice to the same principles, frequently directing 
 the 2 or 3 widows of a Mahomedan Intestate to 
 rank as one widow, and their several Children as 
 one family, in tlie distribution of the Estate. In 
 one of the Petitions in this case, that of Gan Nio, 
 dated 25th August 1842, the case of Mootoo Vallee 
 is cited to shew that a natural daughter has been con- 
 sidered as legitimate for the purpose of inheritance. 
 I am not aware of that case (which I suppose how- 
 ever, is among tbe Malacca Records), but repeat, for 
 the reason above stated, that the adopted son and 
 daughter are, in my opinion, alone entitled to the 
 Assets.* 
 
 Wm. norris. 
 
 Malacca, 3rd May 1843. 
 
 * See Judgment in Eeg. vs. Willans (1858) 3 Journ. Ind. Archip. 
 47 note b, where the Chinese law is stated to be unfavorable to even 
 legitimate daughters, except on failure of male relatives. — Ed. 
 
 Court of Judicature. 
 
 Singapore. 
 In re Chong Long's Estate. 
 
 Will by a Chinese directing rents and profits of his lands in 
 Singapore to be expended in the performance of " Sinchew " cere- 
 monies, to the memory of himself and his deceased wives, — upheld.* 
 
 Straits Times, 14 July 1857. 
 
 On Thursday the 25th June the Hon'ble Sir Richard 
 McCausland, Recorder of Singapore, gave judgment 
 in a case which has been pending some years in tbe 
 Court, but which from various causes, as the death 
 of some of the parties, the decease of the late Re- 
 corder, caused frequent postponement. The ques- 
 tion at issue was one of the highest importance to 
 
 * This case has been overruled by Choa Neow Neo vs. Spottis- 
 woode, post App. I. 
 
(14) 
 
 tlie whole native conmmnity, involving the appro- 
 priation of the estates of deceased persons to the 
 performance of the peculiar religious observances of 
 the deceased directed by the Will. The suit in 
 question related to the estate of Choa Chong Long, 
 a wealthy Chinese, a native of Malacca, who left a 
 large property, the rents and profits of which he di- 
 rected to be expended in the performance of certain 
 ceremonies called " Sin-chew," to the memory of 
 himself and his deceased wives ; or in other words 
 he directed that ample provision should be made, 
 out of his estate, for the purpose of feeding his own 
 ghost or spirit and the spirits of his deceased wives — 
 an idea universally believed by Chinese, who deem 
 it a disgrace for the spirits of their ancestors to beg 
 of other spirits either food, raiment, money, or other 
 things which they believe to be necessary to the spirit 
 after its departure from the body. These spirits 
 are said to hover near the abode of the living rela- 
 tions, and are fed by the savour of cooked meats, 
 whilst clothes and money are transmitted though 
 the medium of burned papers on which are drawn 
 different articles of clothing, square marks of gold 
 and silver foil, piles of which may be seen burning in 
 our streets almost every day, in front of the Chinese 
 houses and shops, or at the grave-yards. The 
 savour of the viands having been partaken of by the 
 spirits the grosser parts are eaten by those who per- 
 form the ceremony, and various criteria are laid 
 down for determining when the spirit is satiated; 
 if the indications are unfavorable more pigs, ducks, 
 cakes, &c., are prepared. No deity is invoked du- 
 ring the ceremony — the whole object of thefestivity 
 being to satisfy the necessities of the spirit : and the 
 performance of this duty is regarded as the highest 
 evidence of filial duty and obedience. 
 
 We have penned the foregoing explanations for 
 the purpose of making our distant readers acquaint- 
 ed with such particulars as will enable them to un- 
 
(15) 
 
 derstand the learned Recorder's judgment, as also 
 to illustrate to what extent the free toleration of re- 
 ligion is allowed under British rule. 
 
 The Will of the Testator in this case bears date 
 the 24th September in the Year of the Christian 
 Era 1836. It is written in English, and was prepar- 
 ed by some person acquainted with the forms of En- 
 glish Conveyancing, and its Execution is mtnessed 
 by 3 English gentlemen resident at the time at Sin- 
 gapore. 
 
 The Testator declares, that he makes his Will for 
 the " avoidance of all controversies and dispiites of 
 and concerning his wordly substance and property 
 after his decease," and then proceeds to give lega- 
 cies of drs. 500 a piece to each of his 6 children 
 therein named, viz. 2 Sons and 4 Daughters ; and 
 he declares these several sums of money are given 
 to his said sons and daughters in full of all claims, 
 either in Law or in Equity, or by any usage or cus- 
 tom, upon his Estate or Property after his decease 
 in any wise howsoever : and further that none of his 
 sons or daughters already mentioned, nor his son 
 therein after mentioned, should be permitted in any 
 wise, or at any time thereafter, to interfere or inter- 
 meddle with his Estate or Property after his decease ; 
 and the Testator then directs a sum of 15 Dollars 
 per month to be paid to the aftermentioned son, du- 
 ring his life, and a moderate sum for the expense of 
 his funeral, as his said last mentioned son was un- 
 able to earn any subsistance or provide for himself. 
 
 The Will then recites that the Testator was pos- 
 sessed of certain Houses and Immoveable Property 
 at Malacca, and also of certain Houses, Shops, Ba- 
 zaars, and Plots of Ground at Singapore, on one of 
 which plots sitiiate imder Government HiU, and im- 
 mediately adjoining Campong Malacca, he was then 
 erecting a Building for Charitable purposes and for 
 the performance of Religious ceremonies, according 
 to the cnstom of his ancestors, called Sin-Chew, to 
 
(16) 
 
 perpetuate the memories of his departed wives, and 
 also of himself after his decease ; and mentions that 
 he had in addition to his children already named, 
 another son of the age of five years, who was an ob- 
 ject of his especial affection, and for whom he in- 
 tended to make a particular provision ; and directs 
 that all debts due to his Estate should be called in, 
 and all his Moveable Property be converted into mo- 
 ney, and that out of the proceeds thereof as well as 
 out of whatever funds of his might be in the hands 
 of himself or of his Agents or Executors at the time 
 of his decease, the aforesaid legacies shoidd be paid 
 to his 2 Sons and 4 Daughters ; and that after such 
 payment the clear residue thereof, not including his 
 House or Lands in Singapore or Malacca, should be 
 ascertained, and that one-half thereof should be 
 paid to his favorite son absolutely, but in case that 
 son should not live to attain his full age, then that 
 such share or moiety intended for him should be- 
 come applicable to the Charitable purposes after men- 
 tioned, and the other half thereof the Testator di- 
 rected should be invested in the names of his Exe- 
 cutors and Trustees after mentioned either in the 
 Security of the East India Company or in other 
 good and sufficient Security bearing interest, the 
 whole of which said Interest, subject to necessary 
 charges and also to the monthly payment therein 
 after directed to be made, was to be expended in 
 such Sin-Chew or Charity in and to the names of 
 himself and of his wives already mentioned, such 
 Charity to be performed 4 times in each year at the 
 least, and as much oftener as the funds applicable 
 thereto would admit of, at the building so erected by 
 the Testator for such purpose as before mentioned. 
 The Testator then wiUs and bequeaths the whole 
 of his Landed Property, (except one House and 
 Garden in Singapore which he directs to be sold and 
 the proceeds to be subject to the general purpose of 
 his Will), to 3 English gentlemen, their Heirs, Ex- 
 
(17) 
 
 ecutors and Administrators for ever, upon Trust, to 
 receive tlie Rents, Issues and Profits thereof, and 
 thereunto to keep the Premises in repair, and to in- 
 sure the same against fire, and after deducting same 
 and all other necessary expenses, to pay one moiety 
 of the clear residue of such rents, &c., to his favo- 
 rite son half yearly, and not oftener, during his na- 
 tural life ; and the other moiety to be laid out and 
 appropriated in the performance of such Charity as 
 is therein-before directed and mentioned ; and, sub- 
 ject to the monthly payment of the 15 dollars and 
 the deductions above mentioned ; from and after the 
 decease of his favorite son, the whole of the Rents, 
 &c., to be expended in the performance of the same 
 Charity under and subject to the control and ma- 
 nagement of his Executors and Trustees, or any per- 
 son or persons duly delegated by them for that pur- 
 pose. 
 
 The Testator then declares it to be his Will and 
 wish that the Governor of P. W. Island, Singapore, 
 and Malacca, or the Resident or Deputy Resident 
 Coimcillor of Singapore, or one of them, according 
 to seniority, and being willing to act, should be a 
 Trustee or Trustees of his WiU, to see his said Cha- 
 rity duly administered and faithfully carried into 
 effect, according to the mode practised in cases of 
 Native Charities, and Charitable Institutions, at Cal- 
 cutta, Madras, and Bombay, and permanently esta- 
 blished under the orders of the Supreme Court of 
 these Settlements, or of the Supreme Court of Judi- 
 cature of Bengal, if his Executors and Trustees 
 should deem it advisable, or necessary. 
 
 The Testator then directs that his Houses and 
 Land should remain in his own name for ever, ac- 
 cording to the tenor of the original Grants thereof, 
 and then constitutes the 3 English Gentlemen be- 
 fore named, viz. Samuel George Bonham, Richard 
 Fownes Wingrove, and William Spotiswoode, Es- 
 qres., Executors and Trustees of his WiU ; but that 
 
(18) 
 
 in case Bonliani and Wingrove should not be in the 
 Straits at the time of his decease, then that the Go- 
 vernor of the Settlement, or the Resident or Deputy- 
 Resident Councillor, or the Senior Authorities at the 
 Straits or some or one of them, or the professional 
 Judge, Justice or Law authority, at the time of his 
 decease, should be executors and Trustees and to see 
 the same carried fully into effect ; his will and wish 
 being to preserve the funds intended to be applied 
 by him to such Religious and Charitable purposes 
 as aforesaid from being embezzled or made away 
 with by his sons, daughters, and relations, or other- 
 wise diverted from the said purposes, doubting not 
 but that the East India Company and those in au- 
 thority under them would by due enforcement of 
 Testator's Will, encourage wealthy, honest and in- 
 dustrous Chinese and other settlers in the East In- 
 dia Company's territories to follow Testator's exam- 
 ple, and thereby ultimately advance the wealth, 
 prosperity and permanency of their possessions in 
 these parts. 
 
 The Testator died on the 18th December, 1838 
 at Macao, in China, and Probate of his WiU was 
 granted to Mr. Spottiswoode, one of the Executors 
 therein named, on the 11th February, 1841, saving 
 the rights of the others Executors named therein. 
 
 The son to whom the monthly payment of 15 dol- 
 lars was made died in the month of June 1850, and 
 the favorite son died on the 10th July 1855, leaving 
 a widow and an infant son of the age of 2 years and 
 upwards. 
 
 After the death of the Testator various applica- 
 tions were made to the Court from time to time on 
 the part of the heirs * of the Testator to have a share 
 of the Sin-Chew Fund paid to them, in order to en- 
 able them to perform the ceremonies to the memory 
 of their deceased parents ; and on the 4th December 
 1854 a Reference was made to the oflBcer of the 
 
 * Sic. 
 
(19) 
 
 Court to inquire into and report upon the nature of 
 the religious ceremony of the Chinese called Sin- 
 chew, and observances and objects, and whether it 
 partook in any manner of the nature of a Charity, 
 and if so, whether any particiilar Charity consistent 
 with the religion, manners, and cristoms of the Chi- 
 nese, was intended by the Testator in his said Will. 
 
 In obedience to this order a Report was made by 
 the Registrar of the Court, dated 24th August 1855, 
 setting forth the nature of the Religious Ceremony 
 of the Sin-chew, and the evidence on which that 
 Report was made. 
 
 The Report found that the Sin-chew was a reli- 
 gious ceremony of the Chinese in commemoration of 
 the decease of their ancestors ; that it did not par- 
 take of any Charity, and that the word Charity must 
 have been introduced by the writer of the Will un- 
 der some misconception of the Testator's meaning. 
 
 On the return of this Report application was made 
 by Petitions to the Court on its Ecclesiastical side, on 
 behalf of the claims of the Daughters of the Testator 
 and their husbands, and of the widow of the favou- 
 rite son (then late deceased) and his infant child, 
 that the Testator should be declared to have died 
 intestate as to the sums of money and other proper- 
 ty bequeathed by him for the purpose of the Sin-chew. 
 These Petitions were severally heard and supported 
 by able arguments before m.e,'''' by Mr. W. Napier, on 
 behalf of the widow and infant son of the Testator's 
 favorite son, and by Mr. Aitken and Mr. Earl for the 
 daughters of the Testator, and were strenuously and 
 ably resisted by Mr. Woods on behalf of Mr. Spotis- 
 woode, the acting Executor of the Will, by whom 
 the affairs of the Testator have been administered, 
 and the accounts of the Estate have been duly kept, 
 and rendered to the Court from time to time. 
 
 From the Report of the Registrar it is clear that 
 this is not a Bequest to which the Court of Chan- 
 
 * Sir B. B. McCaualand, knt. Recorder of Singapore. — Ed. 
 
(20) 
 
 eery in England would give effect. No words have 
 been used by the Testator which could control the 
 applications of the Fund to the purposes of Religion, 
 (such as that Court would recognize), or for the edu- 
 cation of Youth, or for the benefit of the Poor. Nei- 
 ther are there any Charitable, Beneficial or Public 
 Works designated by the Testator which that Court 
 would carry out. It is, accordingly, strongly pressed 
 on behalf of the daughters of the Testator, and of 
 the widow of his favorite son and her infant child, — 
 parties for whom provision has been made by the 
 Testator, and who are prohibited by the terms of the 
 Win from interfering or intermedding, in any wise, 
 either in the Testator's Estate or Property, after his 
 decease, — this bequest, being for a superstitious use, 
 according to the English Law, should be declared 
 by this Court to be void, and that the next of Kin 
 of the Testator became entitled to the property. 
 
 This proposition appears to be based upon en- 
 tirely too narrow a ground. The application of the 
 principle contended for would prohibit any Testa- 
 mentary appointment being made for the observance 
 and performance of any of those rites and ceremo- 
 nies which are deemed essential to their welfare and 
 happiness, as well during life as after death, by the 
 countless mtdtitudes of Asiatics who are under Bri- 
 tish rule, but living according to their respective re- 
 ligions, manners, usages ; and if pushed to its ex- 
 tent, in the present case, would prevent even the 
 repair or improvement of the building which the Tes- 
 tator had erected for the performance of Religious 
 Ceremonies according to the custom of his ancestors, 
 and in which such ceremonies have been performed 
 with the sanction of this Court, by persons duly de- 
 legated by the Executor for that purpose according 
 the Testator's Will. 
 
 By the Royal Charters of 27th November, 1826 
 and 10th August 1855, this Court is authorized to 
 exercise the same Jurisdiction in Civil and criminal 
 
(21) 
 
 cases, as in exercised by the High Courts of Chan- 
 cery and the Supreme Courts of Common Law res- 
 pectively in England, as far as circumstances will 
 admit ; and by the same authority, this Court has 
 and exercises an Ecclesiastical Jurisdiction, " so far 
 as the several religions, manners, and customs of 
 the Inhabitants of the Settlement will admit." 
 
 The proposition contended for assumes that by 
 this authority, the provisions of the several English 
 Statutes against Bequests to superstitious uses, of 
 Mortmain, and against accumulations of Income, 
 have been respectively transferred to India, as part 
 of the Law of England. 
 
 Now, independently of the exceptions contained 
 in the Statute of Mortmain in favor of the two Un- 
 iversities, and certain other seats of learning ; and 
 of property in Scotland, and of the several excep- 
 tions which have from time to time been engrafted 
 on it ; it has been holden, that as the Statute is 
 Local, it does not extent to prohibit disposition of 
 real Estate, or personal property connected with real 
 Estate, in Ireland (a) or in the West Indies, (b) or 
 in the East Indies (c) or to the Colonies (d). 
 
 Looking therefore to the history of this country, 
 it appears to have been the policy of the framers of 
 the Charter to induce as many persons as possible to 
 become resident in the Settlement, and not inter- 
 fere with the observance of their several religions, 
 manners, and customs, nor with the free disposition 
 of their Houses, Lands, or Moveable Property ; — and 
 considering the grounds of the decisions above re- 
 fered to, and that the Statutes against superstitious 
 uses, and the accumulation of Income are Laws 
 wholly English, and incapable ^- without great incon- 
 gruity of effect, of being transfered, as they stand, 
 into the code of the Country inhabited by people of 
 so many different religions, manners and usages, 
 
 * But see obiter dictum in the Judgment of Reg. vs. Willans (1858) 
 3 Journ. lud. Archip. 38. 
 
(22) 
 
 the Court is of opinion that it is bound — though not 
 entirely without doubt, — to declare this bequest va- 
 lid, and to give effect to those provisions of the 
 Charter which would otherwise be rendered wholly- 
 nugatory and inoperative, and which direct that — 
 " all or any of the powers thereby committed to the 
 " Court shall be executed with an especial attention 
 " to the different religions, manners and usages of 
 " the person who shall be resident or commorant 
 " within its jurisdiction, and accomodating the same 
 "to their several rehgions, manners, and usages, 
 " and to the circumstances of the Country, as far as 
 " the same can consist with the due execution of 
 "Law, and the attainment of substantial justice." 
 
 COURT OF JUDICATURE. 
 
 Prince of Wales' Island. 
 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 guardian 
 for Marriage (Wallee as it is termed in Mahomedan law), considered. 
 
 Pinang Gazette. 
 
 Judgment of Sir P. Benson Maxwell, Knt. 
 Recorder. 
 
 Nonya Siu was married to Lim Bun, left him, and 
 lived afterwards with Hui Sian till his death. In 
 1845 a deed was executed by her and Hui Siau con- 
 veying certain lands and tenements to the defendant, 
 and the chief question in this cause was whether the 
 conveyance was binding on her, as being a married 
 woman at the time when it was made. The marriage 
 to Lim Bun was admitted ; but it was asserted 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 plaintiff alleged that she 
 
(23) 
 
 had been divorced by mutual consent, according to 
 Chinese law ; that the cause of quarrel between her- 
 self 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 the end of that time she married 
 Hui Siau. On the defendant's part evidence was 
 adduced to shew that the cause of quarrel was that 
 the plaintiff had been detected carrying on an intri- 
 g-ue with Hui Siau, and that while she stayed at her 
 sister's Hui Siau lived with her, 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 alle- 
 ging that the two passed as man and wife, while 
 others had always understood that the plaintiff lived 
 with Hui Siau as his mistress (ikot sama dia). Chi- 
 nese witnesses were examined on the subject of the 
 Chinese law ; but the evidence shewed that their in- 
 formation was of the slightest character. Some of 
 them went even so far as to deny that a divorced 
 woman coidd marry again. It is unnecessary, how- 
 ever, to refer further to the evidence, as the Recor- 
 der relied solely on Staunton's translation of the 
 Chinese Penal Code. 
 
 The case was heard at the last December sittings, 
 and the Recorder took time to consider his judg- 
 ment. On a subsequent day the learned Judge, in 
 delivering judgment, said that he considered that 
 the divorce had been clearly established. The ques- 
 tion was whether 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 her first 
 husband's life (Staunton's Penal Code p. 112.) But 
 to render the second union a marriage, there must 
 be a person to give the woman away to the new hus- 
 band and a delivery of marriage presents, otherwise 
 it was considered simply as a case of concubinage. 
 
(24) 
 
 (lb. p. 113). If this rule were in force here, it was 
 plain that the marriage set up could not be sustain- 
 ed, 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 Enghsh law, where a very different degree of 
 liberty and respect was accorded to women than in 
 China or other part of the East. In China a wo- 
 man appeared to be, as in India, in a state of perpe- 
 tual tutelage, and to be either under a general inca- 
 pacity to contract, or to have no right to dispose of 
 her person as she pleased. The necessity of giving 
 away was not so much a part of the ceremony as a 
 consequence of the general law relating to the sta- 
 tus of the woman. But here this must be deter- 
 mined by English, and not by Chinese law. It 
 must be taken, therefore, that the uncle's not giving 
 her away did not make the ceremony a nullity, if in 
 other respects it was a valid marriage. 
 
 The question however, remained, had the plain- 
 tiff ever been married to Hui Siau ; and on this point 
 the evidence was conflicting. The plaintiff said that 
 several persons were present at the marriage ; Nonya 
 Engku, Nonya Luan, her sister Chiah Lian, Chau 
 Su Phan and Chiah Hin. The two latter were dead. 
 Lian denied that she was present. Engku was not 
 called. Tian Tek, who was said to have 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 for the bride, 
 a man who said he carried trays to her house with 
 candles, pigs-feet and fowl in the morning, and as- 
 sisted in laying the table for the feast in the after- 
 noon, and one of the guests who said that he was at 
 the feast. It was not improbable that there was a 
 feast at some time ; but though that might be some 
 evidence of a marriage having taken place, it did 
 not constitute a marriage. On the other hand, 
 Nonya Lian positively denied that she was present. 
 
(25) 
 
 The plaintiff admitted that Nonya Sin, another sister, 
 was not there ; her half sister Nonya Eh Long was 
 also absent ; so that the evidence before the Court 
 failed to shew that any of her relations were present. 
 Again, though he was of opinion that it was not es- 
 sential to the marriage that the woman should have 
 been given away by her uncle, yet the fact of her 
 not having been so given away, according to the 
 usage of her country, had a very material bearing 
 on the question whether there had been any mar- 
 riage de facto. The Chinese were more than any 
 other people attached to their usages, and the ad- 
 mitted absence of the uncle therefore threw great 
 doubt on the question. Besides, looking to all the 
 circumstances, was it likely that there was a mar- 
 riage ? From the evidence, though conflicting, he 
 had no doubt that these was cohabitation before the 
 marriage. The divorce paper did not mention the 
 adultery, but it was natural that it should not. But 
 it was more probable that this was the real cause of 
 the divorce than the indolence of the wife, or her 
 temper, as she alleged, especially as several witness- 
 es had spoken to the fact of the adultery. If there 
 had been a marriage, one would have expected that 
 the family would have taken care that it took place 
 as publicly as possible and with full ceremonies. 
 The whole object of it would have been that the 
 woman's position in life should be rehabilitated, and 
 that the marriage show throw a veil over her pre- 
 vious misconduct. This assumed, indeed, that the 
 woman and her friends were sensitive on the sub- 
 ject of marriage or no marriage. But it appeared 
 clearly in this case — as it had appeared in every other 
 case in which the subject had been mentioned in 
 Court — that the Chinese (of this place at all events) 
 visited with no social ban or degradation, women 
 living in a state of concubinage. Their wives visi- 
 ted them and associated with them on terms of equa- 
 lity. They were addressed as wives (bini). There 
 
(26) 
 
 appeared to be no inferiority in their social status. 
 What object then could there have been for a mar- 
 riage, after living for a year with, the man, as the 
 plaintiff would appear to have done ? None appa- 
 rently, and coupling this with the important fact 
 that the woman had not been given away by her 
 nearest male relative, with the absence of all publi- 
 city, and with the fact that no witnesses had spoken 
 to the marriage but the actor's wife and the man 
 who carried the tray with fowls, &c., while of others 
 said to have been present, some denied it, and some 
 were not called, he (the Recorder) must come to the 
 conclusion that there was no marriage. 
 
 COURT OF JUDICATURE. 
 
 PINANG. 
 
 The Hon. Sir Benson Maxwell, Knt., Recorder. 
 Hawah v. Daud. 
 
 Mahomedan Married Woman's Personalty * is her own separate 
 Property and does not belong to her Mahomedan husband by marital 
 right. The Mahomedan law considered. 9th March, 1865. 
 
 Pinang Gazette. 
 
 The petition in this case alleged that the plantiff, 
 being seised and possessed of real and personal pro- 
 perty, married the defendant some years ago. The 
 latter was without property ; his occupation in life 
 was that of a police peon. He left the police short- 
 ly after his marriage, and until about a year ago liv- 
 ed with his wife, and upon her property. A year 
 ago, he got possession of her title deeds, gold orna- 
 ments and money, divorced her, and turned her out 
 of his house. In his answer, the defendant alleged 
 that the ornaments had been purchased by him, that 
 the money which he had taken was his own and had 
 
 * As to her realty or lands in the Straits see Cader Meydin v. 
 Shatomah (1868), post, and Judgment in Eeg. v. Willans. 3 Journ 
 Ind. Arch. N. S. 45. 46. 
 
(27) 
 
 never been his wife's and h.e denied the divorce and 
 expulsion. The object of the suit was to recover 
 the property taken and for this purpose that the 
 defendant might be declared a trustee for the plain- 
 tiff. 
 
 The Recorder said that he had no doubt upon 
 the facts of the case ; and after examining the con- 
 flicting 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 unne- 
 cessary 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 consideration before this 
 suit. By the law of England, the hixsband on mar- 
 riage became seised of the wife's real estate during 
 the marriage, or for his own life, if a child was born 
 alive. He became, further, upon the marriage, ab- 
 solutely entitled to all her personal effects, and to all 
 the debts owing to her, and other rights, which were 
 reducible, and which he reduced into possession 
 during the marriage. He became bound, on the 
 other hand, to support her during the marriage, that 
 is, during her or his life. He also became bound 
 for her debts contracted before marriage ; but that 
 liability lasted only as long as the marriage ; as soon 
 as the marriage was at an end, his liability was at 
 an end also. Whatever might be thought of this 
 state of law, as regarded the wife, it was at all events, 
 the law of a people which whom the marriage con- 
 tract was once indissoluble, and if dissoluble now, 
 was only so for the greatest breach of it by the wife, 
 or at her express instance, and not by the party, but 
 by a Court of Justice. But according to the Maho- 
 metan law and Mahometan usage, marriage was a 
 contract dissoluble at the will and pleasure of the 
 husband, and dissoluble by himself. He had but to 
 pronounce the word and the marriage was at an end. 
 
(28) 
 
 On the other hand, the Mahometan law threw its 
 protection over the wife, leaving her in full posses- 
 sion of all her property, rights and ability to contract. 
 To call such precarious unions by the same name as 
 our own marriages, was, perhaps to give one name 
 to two very different things (see Lord Brougham's 
 judgment in Warrander v. Warrander 2 CI. & F. 
 448).® But still, that the Mahometan marriage 
 was a good marriage in the eye of our law seemed 
 incontestable ; at all events it could not be contested 
 here, without bastardizing the mass of the popula- 
 tion. And the validity of the divorce was equally 
 incontestable. A resumption of co-habitation with- 
 out re-marriage would be against the Mahometan 
 law and religion, and it could not be enforced by our 
 Courts. The question which then arose was whe- 
 ther the marital rights of a husband over his wife's 
 property were the same in Mahometan marriages as 
 in the indissoluble, or virtually indissoluble marri- 
 ages of Christians. If they were, a Malay, under 
 the combined operation of his own religious law and 
 of the law of the Settlement, was able to strip a 
 woman of all her personal property, and after the 
 birth of a child to keep her real estate, also, for his 
 life, and at the same time to turn her out into the 
 street penniless, absolving himself, by the same 
 step, from liability for her antenuptial debts. If 
 such consequences were the logical result of such a 
 state of law, there were assuredly grounds for paus- 
 ing before holding that the law was so. It seemed 
 to him that it might be that the Mahometan mar- 
 riage was a good marriage as regarded its essential 
 character, sanctioning and legalizing the union of 
 the man and woman, and legitimising their off- 
 spring, and yet not be that species of marriage to 
 which the legal incidents as to property, rights and 
 disability attached. Or it might be that if the hus- 
 band was at liberty to dissolve his marriage, he be- 
 * Et vide Judgment in Reg. v. Willans (1858), supra, 43,44. 
 
(29) 
 
 came impliedly bound, on exercising that power, to 
 restore his wife, as regarded her property and rights, 
 to the position or condition in which she was before 
 the marriage, or (what woixld be the same thing) to 
 place her in the position in which she would be un- 
 der the Mahometan law, upon the divorce. It was 
 not, however, necessary in the present case, to deter- 
 mine whether any of these views were well founded ; 
 for if the property and rights of the Mahometan wife 
 vested in her husband in the same manner as those 
 of a Chi'istian wife, at law, there would yet be good 
 ground for holding that the man in whom such pro- 
 perty and rights become vested by virtue of a con- 
 tract which he was at liberty to rescind at his plea- 
 sure, impliedly undertook to hold them as a trustee 
 for the benefit of his wife, in equity, in the same 
 manner and to the same extent as the Mahometan 
 law gave them, or left them to her, on her entering 
 into the Mahometan contract of marriage. Implied 
 contracts and implied trusts were not strange either 
 at law or in equity. In equity, if one bo^lght and 
 paid for an estate in the name of a stranger, or con- 
 veyed it to him without consideration, the latter 
 held it as a trustee for him, or as the expression was, 
 there was a resulting trust in his favour. When 
 freehold land was purchased by partners for part- 
 nership purposes, though at law they might be joint 
 tenants of it, equity impressed the property with the 
 character of personalty. When a husband died with- 
 out having obtained administration to his wife, her 
 administrator was in equity a trustee for his perso- 
 nal representative. In these and a multitude of other 
 cases, implied trusts were raised to obviate injustice 
 and meet the presumed wishes of the parties, or 
 what would have manifestly been their wishes if the 
 question had occurred to them. The Recorder 
 thought that the same principle might be applied to 
 cases like the present. In any view of the case, 
 however, whether the wife's property remained her 
 
(30) 
 
 own at law, unaffected by the common law rules 
 wliicli gave the husband certain rights over it in 
 Christian marriages, which was perhaps the true 
 view, or whether the husband was under an implied 
 contract or an implied trust, it seemed to him (the 
 Recorder) that the plaintiff was entitled to the relief 
 prayed in her petition. He would therefore order 
 the defendant to deliver up the ornaments and mo- 
 ney to his wife, in the same manner as he (the Re- 
 corder) would have ordered him to do so if they had 
 been settled to her separate use and for her own 
 personal enjoyment, and he should restrain him by 
 injunction from receiving the rents and profits or 
 otherwise intermeddling with the real estate of the 
 plaintiff. 
 
 COURT OF JUDICATURE. 
 
 MALACCA. 
 
 Chulas and Kachee v. Kolson binte Seydoo Malim. 
 
 Plea of Coverture by a Mahomedan married woman is no answer 
 to an action on iier Bond. 
 
 Singapore Daily Times, 20th March, 1867. 
 
 Judgment of Sir P. B. Maxwell, Knt., Recordee. 
 
 In this case, which was tried before me lately at 
 Malacca, the question arose whether to an action on 
 a bond, a plea of coverture, by a Mahometan woman, 
 was an answer to the action, and I took time to con- 
 sider my decision. 
 
 The question how far the general rides of the law 
 of England are applicable to races having religions 
 and social institutions differing from our own is of 
 occasional recurrence in this Court, and it is seldom 
 free from difficulty. It has been repeatedly laid 
 down as the doctrine of our law that its rules are 
 not applicable to such races, when intolerable injus- 
 
(31) 
 
 tice and oppression would be the conseqiience of 
 their application. Thus, in the case of the Advo- 
 cate General of Bengal v. Ranee Surnomoye Dos- 
 see, 2 Moo. N. S. 22, it was held that the law which 
 imposes the penalty of forfeiture of property for sui- 
 cide, was inapplicable to Hindus. The absurd in- 
 justice of punishing a Mahometan for bigamy or 
 polygamy is another and familiar instance of a por- 
 tion of oiir law being inapplicable to a part of our 
 population and therefore not applied to them. If 
 the criminal law may be made to bend in this man- 
 ner to the exigencies of natural justice, the civil law 
 must be at least as flexible, and where our law is 
 wholly unsuited to the condition of the alien races 
 living under it, their own laws or usages must be ap- 
 plied to them on the same principles and with the 
 same limitations, as foreign law is applied by our 
 Courts to foreigners and foreign transactions. They 
 must be regarded as persons having foreign domi- 
 cils and governed for many purposes by this law, 
 and as if they were residing among us temporarily. 
 Having this rule in view, I came to the conclu- 
 sion, in a case of Hawah v. Daud,*' which came before 
 me in Pinang two years ago, that the rule of Eng- 
 lish law which vests in the husband various rights 
 in the property of his wife were inapplicable to a 
 Mahometan Marriage. Considering that by our law 
 a husband is seised of his wife's freeholds diiring the 
 marriage, or during his life, if a child is born alive, 
 that he is not only entitled to enjoy but even to dis- 
 pose of her chattels real, during the coverture, and 
 that he. becomes absolute owner of all her personal 
 property in possession, and of all " in action " which 
 he reduces into possession during the marriage, be- 
 ing liable for her antenuptial debts and engagements 
 only as long as the marriage lasts, it appeared to 
 me impossible to hold that such a state of law could 
 be applied to a marriage dissoluble at the will of the 
 
 * Vide ante page 26. 
 
(32) 
 
 husband, without intolerable injustice to the wife 
 and to others. Our law, transmitted to us from 
 early times and a rude state of society is, indeed, so 
 little suitable to ourselves now that no woman with 
 property can, without great folly leave it, on marry- 
 ing, subject to that law ; and settlements are neces- 
 sarily made to protect her fortune from its operation. 
 But if she is so improvident as to neglect this pre- 
 caution, the contract of marriage is at least, indis- 
 soluble (or virtually so) and she acquires that right 
 of being maintained by her husband during his and 
 her joint lives. The Mahometan woman's contract 
 is wholly different ; it may be dissolved at any mo- 
 ment by her husband, and her right to maintenance 
 goes with it. But on the other hand, her right of 
 property and her powers of contract are unaffected 
 by the marriage ; under Mahometan law she remains 
 in this respect like an English feme sole. We have 
 never questioned the Mahometan husband's right to 
 exercise that power of repudiation which is one of 
 the incidents of • the Mahometan marriage ; why 
 should we question any of the other incidents of 
 that contract ? why should the right of the hiisband 
 be left unaffected by our law, but those of the wife 
 be denied or ignored ? It seems to me that it would 
 be as illogical and unscientific, as it certainly would 
 be oppressive and unjust to give to the husband all the 
 rights both of a Mahometan and of a Christian and 
 at the same time to take fi-om the wife her rights as 
 a Mahometan and impose on her the forfeiture and 
 incapacity which fall by our law on Christian women. 
 If the Mahometan law were to prevail as regards the 
 husband's right of repudiation, but the English law 
 were to prevail in all that regards the property and 
 status of the wife, it would follow that every Maho- 
 metan husband would have it in his power, not only 
 to cast off under his own law, his wife whenever he 
 pleased, but by force of the Christian law to send 
 her into the world stripped of all her personal pro- 
 
(33) 
 
 perty and of her real property too, for tlie rest of his 
 life, if she had the misfortune to bear him a child ; 
 absolving himself by the same act from the obliga- 
 tion of paying her antenuptial creditors with her 
 money. Whether the mischievous consequences of 
 thus attaching to one contract the incidents of ano- 
 ther might not be adequately averted by the means 
 by which many hardships of the common law have 
 been at various times averted at home, viz : by crea- 
 ting an implied trust or an implied contract, is a 
 question which I have not omitted to consider ; but 
 it seems to me that to meet the evil in this way 
 would be to deny that general rule which I mention- 
 ed at the beginning as a recognized part of our law 
 which makes the common law so flexible and so 
 adaptable to the various races subject to it ; and the 
 conclusion to which I have come is that at common 
 law, and without any recourse to equity or to equita- 
 ble doctrines, the rules which vest in the English 
 husband various right in his wife's property do not 
 apply to a Mahometan marriage, but that her pro- 
 perty continues vested in herself in the same way 
 as if the Mahometan were the law of the land. 
 
 The question now before me is whether a Maho- 
 metan married woman is imder any disability to 
 bind herself by a bond. Here again, if the ques- 
 tion were brought within the operation of the princi- 
 ples of Courts of Equity, the woman would be liable 
 as far as her separate property extended to the pay- 
 ment of this bond, and to the performance of her ge- 
 neral engagements ; Hulme, vs. Tenant 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 detenuined, and for the same rea- 
 sons, like that of her rights to property, by the law 
 which governs her contract of marriage, viz : the 
 Mahometan law ; and for these purposes the Maho- 
 metan subjects of the Queen here must be consi- 
 
(34) 
 
 dered as governed by the law of their religion in the 
 same manner as the rights and capacities of a foreign 
 husband and wife are governed by the law of their 
 Matrimonial domicil. A foreign woman could not 
 set up, any more than an infant, her disability to 
 contract unless the law of her own country incapa- 
 citated her from contracting, Male vs. Roberts, 3 Esp. 
 163 ; and if, as is the case, the Mahometan law does 
 not impose on her that disability, her plea of cover- 
 ture is no answer to the action. 
 
 Indeed, it is not necessary in support of this view 
 to seek for analogies in cases to which foreign law is 
 applied on principles of comity. We have at home 
 exceptions recognized by the common law to the 
 married woman's general incapacity to contract. 
 Thus, by custom, in the City of London, when she 
 carries oD. a trade there on her own account, she is 
 competent to bind herself by contracts in that trade ; 
 and if she is impleaded in the City, she pleads as a 
 feme sole, and if condemned, is committed to prison 
 tiU she make satisfaction, and the husband and his 
 goods are not chargeable ; Lavie and another vs. 
 Jane Cox, 3 Burr. 1776. The wife of an alien enemy 
 or of a transported convict is equally competent. 
 I see therefore, no anomaly in holding that a Maho- 
 metan married woman is left unaffected by English 
 law as to her capacity to contract as well as in res- 
 pect of her rights of property, and that she is, like 
 the London married woman subject to her own cus- 
 tom or law, and liable to be sued on her contracts. 
 The incapacity to contract which affects a married 
 woman at common law is founded on the fiction that 
 she and her husband are one person ; but I think 
 that fiction may well be confined to that kind of mar- 
 riage for which it was intended, the Christian and 
 indissoluble marriage. To extend it to the Maho- 
 metan marriage would be to apply it to something 
 different, and to establish but a weak foundation for 
 a law absurdly unjust and intolerably oppressive. 
 
(35) 
 
 I am therefore of opinion that this plea is no answer 
 to the action. 
 
 This decision is not inconsistent with holding, as 
 I have held, that for the purpose of conveyance of 
 land, the deed of a Mahometan as well as of a Chris- 
 tian woman is not operative unless acknowledged 
 as required by the Indian Act of 1855, correspon- 
 ding 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 rela- 
 ting to land, the lex loci regit actum ; Story Conf. 
 L. ss. 363, 435.* Nor, for similar reasons, is it in- 
 consistent with the decision by which it was esta- 
 blished that the English Statute of Distributions ap- 
 plies to all persons of whatever religion or race. Nor 
 does it seem inconsistent with the application of our 
 own rules in questions of guardianship. Biit even if 
 it were otherwise, it must be borne in mind that in 
 applying foreign law to particular cases, Courts 
 must be governed more by considerations of public 
 policy and convenience than of strict logical consis- 
 tency, and it is not therefore necessary to pursue 
 this part of the subject further. For the reasons 
 stated I am of opinion that the plea of coverture in 
 this action is no answer to it, and that there must 
 be judgment for the plaintiff. 
 
 * And See Cader Meydin v. Shatomah, post. 
 
 COURT OF JUDICATURE. 
 
 SINGAPORE. 
 
 In the Goods of Lao Leong An. 
 
 Administration granted to the first wife of a Chinese. The second 
 wife entitled to an equal share of the Intestate's property. The law 
 of China considered. 
 
 Singapore Daily Times, — 1867. 
 
 Judgment of the Hon'ble. Sir P. B. Maxwell, Knt. 
 Recorder. 
 
 In this matter, two petitions were filed praying 
 
(36) 
 
 for letters of administration : one by the first, and 
 the other by the second wife of the intestate, a Chi- 
 nese inhabitant of this Settlement. I see no suflfi- 
 cient reason for refusing the application of the first 
 wife, and letters of administration will therefore be 
 granted to her. But as it was much urged, in resist- 
 ing the claim of the second wife, that the condition 
 of the latter was not that of a wife but merely of a 
 concubine, I think it right, with the view of saving 
 the parties the expense and suffering of a litigation, 
 to say that I had to consider this question some 
 years ago in Pinang, and that I was of opinion that 
 a second or inferior Chinese wife was to all intents 
 and purposes a lawful spouse and was entitled to 
 share with the first or superior wife in the property 
 of her deceased husband ; and it may be as weU if I 
 state now the grounds of my opinion. It may seem 
 difficult to apply the English statute of distributions 
 where poligamy is a recognised institution ; but this 
 difficulty was long ago solved in this Settlement* by 
 holding that where a Mahometan died intestate leav- 
 ing two or more wives, they were entitled to share 
 equally am.ong themselves the share which the statute 
 of distributions allots to the widow of a deceased per- 
 son. In the case of Mahometans, however, all the 
 wives are equal. Chinese polygamy differs in this 
 respect, and the first question for determination is 
 whether the second wife can be regarded as a lawful 
 spouse at all. The first wife unquestionably holds 
 higher rank in the household ; she addresses her hus- 
 band in terms of equality, while the inferior wives 
 address both him and her as their superiors. The 
 first wife if usually chosen by the husband's parents 
 of a family of equal station, and is espoused with as 
 much ceremony and splendour as the parties can 
 afford ; while the inferior wives are generally of his 
 own choice made without regard to family connec- 
 tion. But that they are wives not concubines seems 
 
 * Vide ante pages 13 and 35. 
 
(37) 
 
 to me clear from tlie fact that certain forms of espous- 
 al are always performed, and that, besides, their 
 children inherit in default of issue of the principal 
 wife, and that throughout the Penal Code of Chi- 
 na they are treated as wives to all intents and pur- 
 poses as well at the first. Thus, to make a first-wife 
 marriage during the period of mourning for parents, 
 is punishable with 100 blows ; to make a second-wife 
 marriage in the same period is punishable with 80 
 blows. So, to marry while parents are in prison 
 for a capital ofEence is punishable whether it be a 
 first-wife or a second-wife marriage, but in the lat- 
 ter case by 20 blows less than in the former. Incest 
 is punishable in both cases, but with 20 blows less 
 in the case of the inferior marriage. Sects. 106 — 
 109. The law of divorce applies equally to inferior 
 wives. They may be divorced for the same causes as 
 the first wife and for none other ; and all infringe- 
 ments of this branch of the law are punished with a 
 similar reduction of two degrees, or twenty blows, in 
 the case of the inferior marriage. A man who sells 
 his first or superior wife is liable to 100 blows 
 and perpetual banishment ; he who sells his inferior 
 wife is liable to 80 blows and two years banishment. 
 Sect. 275. He who connives at, or compels his 
 wife's adultery, is punishable but with one degree of 
 greater severity when she is the first, than when 
 she is an inferior wife. If the first wife strikes her 
 husband, she is punished with 100 blows. If the 
 inferior wife strikes him or his first wife, she is lia- 
 ble to a punishment one degree more severe, viz : 
 110 blows. If the husband wounds either, he is 
 punishable, but with one degree of less severity when 
 she is an inferior, than when she is a first wife. 
 
 It may be true as was contended, that in China 
 the inferior wives have no share in the estate and 
 effects of their deceased husband. But this is im- 
 material for the purpose of the present question. If 
 it were otherwise, the first wife would not find it 
 
(38) 
 
 easy, any more than the second, to establish her 
 right to letters of administration. The intestate 
 was domiciled in this Settlement, and his personal 
 estate must therefore be distributed according to the 
 law of the Settlement. He had, besides, real estate 
 here, and this, independently of his domicil, must 
 devolve according to the lex loci, that is, in the same 
 way as chattel property, according to the construc- 
 tion, long established, of the Act of 1837. The 
 rights of his wives therefore must be determined 
 by our law, and not by that of China. 
 
 And here comes the second question for deter- 
 mination, viz : as to the relative rights of the first 
 and inferior wives, inter se, in dividing the share 
 which our law allots to the widow. They are not 
 on a footing of equ,ality like Mahometan wives ; but 
 our law, to which polygamy is not only foreign but 
 repugnant, furnishes no rule for determining in what 
 proportion wives of higher and lower rank shall share 
 the widow's share, and I am unable to see any ade- 
 quate grounds for any other division than an equal 
 one. 
 
 COURT OF JUDICATURE. 
 singapore. 
 
 Before the Hon'ble Sir W. Hackett, Knt., 
 
 Acting Chief Justice. 
 
 Veeramah v. Sawmy. 
 
 The Court has no jurisdiction on its Ecclesiastical side to entertain 
 suits for the restitution of conjugal rights of Hindoos. (August, 1867) 
 
 This was a libel instituted by a Hindoo wife 
 against her BQndoo husband on the Ecclesiastical 
 side of the Court, for restitution of conjugal rights. 
 The Defendant protested against the supposed juris- 
 diction to the effect that " this Court ought not to 
 " have or take further cognizance of this suit be- 
 
(39) 
 
 " cause he saith. that this Court is incompetent to 
 " take cognizance of or proceed in the suit or to ad- 
 " minister towards and upon the plaintiff the Eccle- 
 " siastical Law as the same at the date of the Let- 
 " ters Patent establishing this Court may be used 
 " and exercised in the Diocese of London, in Great 
 " Britain." 
 
 Protest allowed.'* 
 
 *Et Vide Perozeboye v. Aderaer Cursetjee, 10 Moore P. C. C. 374.— Ed. 
 
 COURT OF JUDICATURE. 
 
 PINANG. 
 
 Before Sir P. B. Maxwell, Knt. Recorder. 
 
 Reg. V. Loon : in the Matter of Khu Lak Neoh. 
 
 The Court has jurisdiction on its civil j side to entertain suits for 
 the restitution of conjugal rights amongst non-Christians, even on 
 Habeas Corpus. 
 
 Pinang Gazette, 25th June, 1864. 
 
 In this case a woman was brought up by habeas 
 corpus, on the application of her husband, who 
 claimed that she should be ordered to return to him. 
 
 The woman resisted the application, alleging that 
 she had not been married to him. Mr. Aitken ap- 
 peared for her. Her mother denied the marriage, 
 but said that she had received 30 dollars from the 
 man as a consideration for cohabitation with her 
 daughter ; and that he had lived with her about six 
 weeks. 
 
 After hearing evidence on both sides, in addition 
 to the affidavits filed. 
 
 The Recorder held that the marriage had been 
 proved, and ordered that the wife should return to 
 her husband. In delivering judgment, he said that 
 he should take that opportunity, as it was the first 
 
 j But see Vadamalia Pillay v. Shetthay Awah, post ; also ex parte 
 Sandilands and Reg. v. Leggatt, (cited in next page) as to Habeas 
 Corpus. — Ed. 
 
(40) 
 
 case of the kind in which, any real contest had oc- 
 curred, to explain upon what grounds the Court 
 acted in cases like the present, in order that there 
 might be no misapprehension on the subject. Where 
 the parties concerned in a question of restitution of 
 conjugal rights were Christians, the Court exercised 
 the Ecclesiastical jurisdiction with which it was in- 
 vested by the Charter ; and it was incumbent on the 
 parties to proceed on what was called the Ecclesi- 
 astical side of the Court. The Civil Court at home 
 refused to interfere in such cases, because whether 
 the husband had a right to compel his wife to return 
 to him, was a question belonging solely to the Eccle- 
 siastical Court, and one on which a Civil Court was 
 not competent to decide. Reg. v. Leggett, 18 Q. B. 
 781. S. C. Nom. Exp. Sandilands, 21 L. J. Q. B. 
 342 ; and this Court would of course be bound by 
 that authority in similar cases. But the Ecclesias- 
 tical jurisdiction of this Court in causes matrimonial 
 was confined to Christians, and was not applicable 
 to persons of other religions. This had been esta- 
 blished a few years ago by the Privy Council in Cur- 
 setjee v. Perozeboye, (10 Moo. P.C. 375.) reversing 
 the decision of the Supreme Court of Bombay. In 
 coming to this conclusion, however, the Privy Coun- 
 cil said that they " would much regret if there were 
 no Court and no law whereby a remedy could be 
 administered to the evils which must be incidental 
 to married life" among non-Christians; and they 
 added " such remedies, we conceive, the Supreme 
 Court on the civil side might administer, or at least 
 remedies as nearly approaching to them as circum- 
 stances would allow. Proceedings might be con- 
 ducted on the civil side with such adaptation to the 
 circumstances of the case as justice might require." 
 It was obvious therefore that it was the duty of the 
 Court, in its civil side, to act upon this suggestion,"* 
 
 * But see the more recent ease of Hyde v. Hyde and Woodmansee, 
 35 L. J. P. & D. (1866).— Ed. 
 
(41) 
 
 and that the decision in Exp. Sandilands was no 
 authority where the parties were excluded from the 
 Ecclesiastical Court. The only question, then, was, 
 in what form these applications for the restitution 
 of conjugal rights among non-Christians, should be 
 brought before the Court. The present course had 
 been usually adopted here in conformity with the 
 practice which, he believed, prevailed at Madras, and 
 although he was not insensible to the defectiveness 
 of that course, he thought that a proceeding by 
 petition against the wife directly would be prefer- 
 able, and he did not think that any inconvenience or 
 injtistice would be done in the present case by follow- 
 ing the usual practice.* 
 
 *See Sir P. B. Maxwell's Straits Magistrates, 144. — Ed. 
 
 SUPREME COURT. 
 
 PINANG. 
 
 Before The Honorable Sir Wm. Hackett, Knt. 
 
 Jddge. 
 
 Vadamalia Pillay v. Shetthay Amah. 
 
 This Court has no Jurisdiction on its civil side to entertain suits 
 for restitution of conjugal rights amongst Hindoos. 
 
 February, 1869. 
 
 This was a suit instituted on the civil side of the 
 Court by a Hindoo husband against his Hindoo wife 
 for restitution of conjugal rights. The woman plead- 
 ed cruelty and violent assault. There was no evidence 
 as to the duties of husband and wife according to 
 Hindoo law.f 
 
 His Honour the Judge held that the Court had no 
 Jurisdiction in such cases, and referred to Hyde v. 
 Hyde and Woodmansee, 35 L. J. P. & M. 57. 
 
 I And see 1 and 2 Strange's Hindu law, as to its being a criminal 
 offence by that law. — Ed. 
 
(42) 
 COURT OF JUDICATURE. 
 
 PINANG. 
 
 Sir Wm. Hackett, Knt., Judge. 
 
 Cader Mydin, Administrator of Hossansah. 
 
 V. 
 
 Shatomah. 
 
 A Mahomedan Married Woman must acknowledge by Deed assign- 
 ments of her realty situate in tlie Colony in conformity with Indian 
 Act XXXI of 1854. Husband must join in transfer or his absence 
 be accounted for. 13th July, 1868. 
 
 This was an action of Ejectment in whicli Judg- 
 ment had been given for the Plaintiff. The matter 
 was re-argaied last year and the .original Judgment 
 affirmed. The question was whether an assignment 
 by a Mahomedan married woman of her realty in 
 Pinang unacknowledged by Deed in conformity with 
 Act No. 31 of 1854, and without the concurrence of 
 her husband, was a valid conveyance. 
 
 D. Logan, Solicitor General, for the Plaintiff. 
 
 B. Rodyk for the Defendant. 
 
 Rodyk contended that as the Court had decided in 
 Hawah v. Daud-'-' that Mahomedan married women 
 were entitled to their own property to their sole 
 and separate use, it necessarily followed that the in- 
 cidents appertaining thereto must also be granted 
 to them. He cited 
 
 Taylor v. Meads, 34 L. J. Ch. 203. 
 
 Adams v. Gamble, 11 Irish Ch. Rep. 269. 
 
 Lechmere v. Brotheridge, 32 L. J. Ch. 577. 
 
 Haynes' Outlines of Equity. 2 Ed. 228. 
 Logan contended that the lex situs,-the law of the 
 land,-must govern all such questions as to realty, and 
 cited Story's Conflict of Laws. 
 
 His Honor the Judge held that every married wo- 
 man, whatever her creed or race, must conform to 
 the Act, and in conveying lands situate in this Co- 
 lony they must obey the law of the land : that the 
 natives wives are bound by the same law in such 
 
 * Vide ante page 26. 
 
(43) 
 
 matters as other married women and that it would 
 be contrary to public policy to allow of any such de- 
 parture from the rvde as had been contended for."* 
 If the husband were absent the wife should apply to 
 the Court, who would see that justice was done. 
 
 * See story's Confl. Laws, § 431,463. 
 
APPENDIX. 
 
SUPREME COURT. 
 
 SINGAPORE. 
 
 Choa Cheow Neo 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 perpetuities, and not a Charity.* Superstitious uses con- 
 sidered. Straits Observer, 19 Feb. 1869. 
 
 Judgment of Sir P. B. Maxwell, Knt., 
 Chief Justice. 
 
 In tliis case the testator, Choa Chong Long, a 
 person born and domiciled in Singapore, but of Chi- 
 nese descent, by his Will, in the English language, 
 after bequeathing legacies of 500 dollars apiece to 
 each of two sons and lonr daughters, and making 
 provision for another son, and after reciting that 
 he was erecting a building for charitable purposes, 
 and for the performance of religious ceremonies, ac- 
 cording to the custom of his ancestors, called Sin 
 Chew, to perpetuate the memories of his deputed 
 (departed ?) wives, as also of himself, after his de- 
 cease, devised certain houses and land in Singapore 
 and Malacca, and also his residuary estate, to trus- 
 tees, upon trust to apply the rents and profits, after 
 providing for repairs and insurance, " in the perform- 
 ance of such Sin Chew or Charity, in and to the 
 names (manes ?) of myself and my said wives here- 
 inbefore named and mentioned, to be performed 
 four times in each and every year at the least, and as 
 much oftener as the funds applicable thereto will 
 admit." The will contains also a direction to the 
 trustees to see that the " Charity " is faithfully car- 
 ried into effect according to the mode practised in 
 cases of Charities in the Indian Presidency towns ; 
 it requires that the lands devised shall be held and 
 continued in the testator's own name for ever, accord- 
 ing to the term of the original grants ; and it de- 
 clares that the testator's wish is to preserve the 
 funds so intended to be applied to such religions 
 and charitable purposes as aforesaid, from being 
 
 * This case overrules in re Chong Long's Estate, ante page 13. — Ekl. 
 
(2) 
 
 embezzled or made away or interfered with by his 
 sons, daughters or relations, or otherwise diverted 
 from the purposes contemplated, not doubting that 
 the East India Company and those in authority un- 
 der them, woiild by due enforcement of its provisions, 
 encourage wealthy, industrious and honest Chinese 
 and other settlers in the Company's territories, to 
 follow his example and thereby ultimately advance 
 the wealth, prosperity, and permanency of its pos- 
 sessions in these parts. 
 
 The testator died about thirty years ago, leaving 
 the two sons and four daughters to whom he had gi- 
 ven the pecuniary legacies mentioned, and who, or 
 whose representatives, are the plaintiffs in this suit, 
 and leaving the other son already referred to, whom 
 he describes as an object of his especial affection, 
 but who is said by the plaintiffs to be illegitimate. 
 The personal representative of this son is a defen- 
 dant in this suit, but is oiit of the jurisdiction, and 
 has not appeared or pleaded. The other defendant 
 is the representative of the testator. 
 
 After the death of the testator, several applications 
 were made to this Court, on its Equity and Ecclesi- 
 astical sides of the Court, by some of the plaintiffs 
 or next of kin under whom some of them claim, the 
 general result of which seems to be that a receiver 
 was appointed, that it was ordered that the sum of 
 drs. 280 a year should be set apart out of the rents 
 for the performance of the ceremony mentioned, and 
 that the residue of the rents and profits should be 
 paid into the Treasury to the credit of the Sin Chew 
 fund. The fund thus accumulated amounts now to 
 upwards of drs. 33,500. These varioiis proceedings 
 were set up by the answer as a bar to this suit, but 
 I held at the hearing that they had not that opera- 
 tion, whether regard were had to their ex parte cha- 
 racter, or to the side of the Court in which some of 
 them had been taken. It is therefore incumbent on 
 me to determine the question raised by the suit. 
 
(3) 
 
 The petition prays that it may be declared that the 
 devise for the Sin Chew is void, and that the testa- 
 tor died intestate as to the property devised for that 
 purpose, and consequently that it goes to the next 
 of kin. 
 
 Several Chinese men of learning have been exa- 
 mined for the purpose of ascertaining what are the 
 nature and object of this devise, and the substance 
 of their evidence is as follows : — The word Sin Chew 
 is composed of Sin, which means a spirit, soul or 
 ghost, and Chew, which means ruler ; and the com- 
 posite word means the spirit ruler, or spiritual head 
 of the house. When a man dies, his name, with 
 the dates of his birth and death, is engraved on a 
 tablet ; this is enclosed in an outer casing, on which 
 a new name, which is now for the first time given 
 to him, and the names of his children, are engraved. 
 This tablet is kept either in the house of the wor- 
 shipper, or in that which has been set apart for the 
 Sin Chew. It is sacred, and can be touched only 
 by the male descendants or nearest male relatives of 
 the deceased, who alone may look upon the name on 
 the enclosed tablet. It is the representation of the 
 deceased. At certain periods, viz., on the anniver- 
 sary of his death, and once in each of the four sea- 
 sons, his son or sons, or if he has none, his nearest 
 male relative, but never his daughters or other fe- 
 males, go to the place where the tablet is, and lay on 
 a table in front of it a qiiantity of food, such as pigs, 
 goats, ducks, fowl, fish, sweetmeats, fruit, tea and 
 arrack. They light joss-sticks, fire crackers, biirn 
 small squares of thin brown paper in the centre of 
 each of which is about a square inch of gold or sil- 
 ver tinsel, they bow their hands three times, kneel, 
 touch the ground with their foreheads, and call on 
 the Sin Chew by his new name to appear and par- 
 take of the food provided for him. The food remains 
 on the table for one or two or even three hours, 
 during which time the spirit feeds on its ethereal 
 
(4) 
 
 savour ; and to ascertain whether it is satiated or sa- 
 tisfied, two pitis (Chinese coins) or two pieces of 
 bamboo are thrown on the table or on the ground in 
 front of it, and if they both turn up with the same 
 face, the offering is considered insufficient, and 
 more food is laid on the table. After the lapse of a 
 sufficient time to allow the spirit to partake of it, the 
 same test is again resorted to, and so, until the coins 
 or bamboos, by turning up different faces, shew that 
 the spirit has had enough. The food is then re- 
 moved, and eaten or otherwise disposed of by the re- 
 latives, but there is no distribution of it in charity or 
 among the poor. Indeed the Chinese have a repug- 
 nance to food which has been offered in this way, 
 except when they are members of the family. The 
 papers which are burnt supply the spirit with mo- 
 ney and clothing, the gold and silver tinsel turning 
 into precious metal. No prayers are offered to the 
 spirit ; the persons who makes the offering of food 
 asks for nothing whatever. The primary object of 
 the ceremony is to show respect and reverence to the 
 deceased, to preserve his memory in this world, and 
 to supply his wants in the other. Its performance 
 is agreeable to God, the supreme all-seeing, all- 
 knowing, and invisible being, who assists and pros- 
 pers those who are regular in this duty ; and its neg- 
 lect entails disgrace on him whose duty it is to per- 
 form it, and poverty and starvation on the neglected 
 spirit, which then leaves its abode (either the grave 
 or the house where the tablet rests) and wanders 
 about, an outcast, begging of the more fortunate spi- 
 rits and haunting and tormenting his negligent des- 
 cendant, and mankind generally. To avert the lat- 
 ter evil, the wealthier Chinese make, in the seventh 
 month, every year, a general public offering, or sa- 
 crifice, called Kee-too or Poh-toh for the benefit of 
 all poor spirits. 
 
 The question is whether this devise or bequest is 
 valid. 
 
(5) 
 
 No difficulty arises in respect of the 9 Geo. 2 c. 36, 
 commonly 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 charitable. 
 It was admitted, however, by Mr. Woods, who con- 
 tended for the validity of the devise, that it did not 
 fall under the legal destination of charitable ; and it 
 seems to me that it would have been difficidt to es- 
 tablish that it did. The term charity receives, in 
 questions of this kind, a peculiar but wide meaning ; 
 and although tlie Statute of Charitable Uses may 
 not be law here, I think that it may be laid down 
 that not only the various objects mentioned in its 
 preamble — such as gifts and devises for poor people, 
 for sick and maimed soldiers and sailors, for schools, 
 education and learning, for the repair of churches, 
 bridges, and other public works, and for other pur- 
 poses which it is unnecessary to enumerate — but al- 
 so, as in England, all objects having any analogy to 
 such uses, would be regarded as charitable. Lord 
 Cranworth said in the case of the University of Lon- 
 don V. Yarrow, 26 L. J. Ch. 430, that every object 
 beneficial to the community is a charity in the legal 
 sense of the term ; it is wide enough, at all events, 
 to comprise gifts for the support and diffusion among 
 men of every kind of religion, provided it be not im- 
 moral or cruel, or otherwise against public policy. 
 It was held, for instance, by Lord RomiUy, that a 
 legacy to print and propagate the writings of Johanna 
 Southcote was a good charity, as, however foolish 
 they might be deemed by most persons, they were 
 neither immoral nor irreligious, and were designed by 
 the testator to confer a benefit on the community, 
 Thornton v. Howe, 31. L. J. Ch. 767 ; and I do not 
 doubt that the validity of a bequest for the mainte- 
 nance or propagation of any Oriental creed, or for 
 building a temple or mosque, or for setting up or 
 adorning an idol, as in an Indian case mentioned by 
 
(6) 
 
 Mr. Woods, would be determined in ttiis Court on the 
 same principle, and with the widest regard to the 
 religious opinions and feeling of the various Eastern 
 races established here. I make these remarks, not 
 because they are necessary to the decision of this 
 case, but to guard against my present judgment be- 
 ing misunderstood as questioning the validity of any 
 Eastern charity. In the case before me, however, 
 the devise is plainly not charitable ; it has not any 
 charitable object whatever, whether general or spe- 
 cial, in the sense of a benefit to any living being. 
 Its object is solely the benefit of the testator him- 
 self ; and although the descendants are supposed 
 incidently to derive from the performance of the Sin 
 Chew ceremony the advantage of pleasing God and 
 escaping the danger of being haunted, those advan- 
 tages are obviously not the object of the testator, nor 
 if they were, would they be of such a character as to 
 bring the devise within the designation of charitable, 
 as used in our Courts in reference to such subjects. 
 But if the devise is not a charity, on what ground 
 can it be supported ? It is clear that in Englond it 
 would be void. In West v. Shuttleworth, 2 M. and 
 K. 684, Lord Cottenham held that bequests to Ro- 
 man Catholic priests and chapels, in order that the 
 testatrix and her deceased husband might have the 
 benefit of their prayers and masses, were void, and 
 the same question has been since decided in the 
 same way in Heath v. Chapman, 23 L. J. Ch. 947, 
 and Bhmdell's Trusts in 31 L. J. Ch. 52. As Lord 
 Cottenham observed, there was nothing of charity 
 in their object ; they were not intended for the bene- 
 fit 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 because superstitious ; but as Sir W. Grant 
 observed in Cary v. Abbot, 7 Ves. 495, there is no 
 statute making superstitious uses or bequests void 
 
(7) 
 
 generally. Tlie statute of 1 Ed. 6 c. 14 relates only 
 to superstitious uses of a particular description then 
 existing, and tlie 23 Hen. 8 c. 10, which was in- 
 tended to guard against the loss suffered by feudal 
 superiors through alienations in mortmain, rather 
 than to check the spread of superstition, relates only 
 to assurances of land to churches, chapels, and cor- 
 porate or quasi corporate bodies, for longer terms 
 than twenty years. Besides, when West v. Shuttle- 
 worth was decided, the dogmas and practices of the 
 Roman Catholic religion had ceased to be siipersti- 
 tious in the eye of the law. The 2 & 3 W. 3 c. 115, 
 had placed it on the same footing as other forms of 
 Christianity dissenting from the established one, in 
 respect of their schools, places of worship, and cha- 
 rities ; and a bequest for the repair of a Roman Ca- 
 tholic chapel, or the propogation of the Roman Ca- 
 tholic religion, was as valid as one for repairing a 
 Protestant Parish Church, or spreading the Protes- 
 tant faith, De Windt v. De Windt, 23 L. J. Ch. 776, 
 Bradshaw v. Tasker, 2 M. & K. 221. Lord Cotten- 
 ham, indeed, referring to some early authorities col- 
 lected in Duke on Charitable Uses, observed that the 
 Act of Ed. 6 had been considered as establishing that 
 legacies to priests to pray for the soul of the donor 
 were within the superstitious uses intended to be sup- 
 pressed by that statute ; but the effect of his decision 
 was that they did not fall within that Act ; for if they 
 had, the illegal legacies would have been forfeited 
 to the Crown, instead of being, as they were, held 
 distributable among the next of kin. But, however, 
 this may be, it seems to me that all such legacies, 
 whether they be desig-nated superstitious or other- 
 wise are void upon another ground, viz., that not 
 being for a public or quasi public benefit, they at- 
 tempt to create a perpetuity. On this ground, a le- 
 gacy to keep in repair the testator's tomb has been 
 repeatedly held void, Rickards v. Robson, 31 L. J. 
 Ch. 897, Lloyd v. Lloyd, 21 L. J. Ch. 598, Fowler v. 
 
(8) 
 
 Fowler, 33 L. J. Cli. 674, Hoare v. Osborne, 35 L. 
 J. Ch. 345. On the same ground, a devise of and 
 to the trustees of a library established and kept up 
 for purchasing and preserving books for the subscri- 
 bers, was held void, Carne v. Long, 29 L. J. Ch. 503 ; 
 and Lord Campbell intimated in the case of Thom- 
 son V. Shakespeare, Id. 278, that a bequest of money 
 to erect and keep up a museum at or near Shakes- 
 peare's house, as a monument to the poet's memory 
 would be void, " as a perpetuity, not being a charity." 
 These words, indeed comprise the law on the sub- 
 ject. The law of England, as I understand it, does 
 not allow the owner of property, whether real or per- 
 sonal, to dispose of it for all future ages as he de- 
 sires, except in one case, and that is when his object 
 is of some general benefit to man, or charitable, in 
 the legal sense of the word. He may not settle ei- 
 ther money or land on his children or descendants 
 or other persons except for the limited period of 
 lives in being and twenty one years beyond ; still 
 less may he devote his property in perpetuity of his 
 own supposed private benefit, or for any other pur- 
 pose not charitable. On this ground alone, and not 
 because the law condemns as unsound the theologi- 
 cal dogma which such a legacy implies, (for the acts 
 of 23 Hen. 8 and 1. Ed. 6. are not in my opinion, 
 law in these Settlements,) I should consider a be- 
 quest for masses for departed souls, void, — and the 
 devise in this case void, unless the law of these Set- 
 tlements differs in this respect from the law of Eng- 
 land. It remains to consider this question. 
 
 In this Colony, so much of the law of England as 
 was in existence when it was imported here, and as 
 is of general (and not merely local) policy, and 
 adapted to the condition and wants of the inhabi- 
 tants, is the law of the land ; and further, that law 
 is subject, in its application to the various alien ra- 
 ces established here, to such modifications as are 
 necessary to prevent it from operating unjustly and 
 
(9) 
 
 oppressively on them. Thus in questions of mar- 
 riage and divorce, it would be impossible to apply our 
 law to Mahometans, Hindoos, and Buddhists, with- 
 out the most absurd and intolerable consequences, 
 and it is therefore held inapplicable to them. Test- 
 ed by these principles, is the rule of English law 
 which prohibits perpetuities either of local policy, 
 unsuited to an infant Settlement, or inapplicable by 
 reasons of the harshness of its operation, to people 
 of Oriental races and creeds ? The rule is not found- 
 ed by any Statute, but is a rule of the common law, 
 and it seems to me to be one of a general and funda- 
 mental character, of great economical importance, 
 and as well fitted for a young and small community 
 as a great State, for both are interested in keeping 
 property, whether real or personal, as completely as 
 possible an object of commerce, and a productive 
 instrument of the community at large. I am, there- 
 fore, of opinion that in this Colony it is not lawful 
 to tie up property and take it out of circulation for 
 • all ages, for any purpose not of any real or imagi- 
 nary advantage to any portion of the community, 
 and if the rule against perpetuities be law here, it 
 might suffice to add that as the property in question 
 in this present case is chiefly if not wholly real, the 
 rule must apply to it invariably, whatever may be 
 the creed, race, or nationality of its owner, on the 
 ground mentioned in Story Conf. L. sect. 440, that 
 it is out of the question to subject property of that 
 nature to any but the local law, and thus introduce 
 in OUT own jurisprudence the innumerable diversi- 
 ties of foreign laws. But waiving this point, if it be 
 said that such a restriction on the power of impress- 
 ing on property the will of its present owner in per- 
 petuam, is unjust or oppressive to the natives of the 
 East, I should desire some proof or illustration of 
 such an effect. There is I believe, nothing in Chi- 
 nese law, or customs — certainly, I have had no evi- 
 dence of it — which requires the owner of property to 
 
(10) 
 
 dispose of any part of it for the use of his own soul 
 after death. It has not even been sheA^m that such 
 a devise would be vahd in China, or indeed that the 
 power of testamentary disposition is known there at 
 all. No similar devise appears to have been ever 
 brought under the cognizance of the Court of these 
 Settlements, though one of them, Pinang,! has been 
 under British rule and inhabited by Chinese for up- 
 wards of eighty years ; and surely if a devise in fee 
 for the use of the testator's soul was dictated by 
 some imperative religious obligation, the question 
 now before me would have been raised and decided 
 long ago. Certainly it would require very strong 
 evidence to establish that it was regarded as a duty, 
 in any religion, to disregard the claims of natural 
 affection, and, as in this case, to dispose of the bulk 
 of one's property in providing for the supposed bene- 
 fit and comfort of his own soul, while he left his sons 
 and daughters almost wholly unprovided for. As 
 there is no such evidence, I am unable to see any 
 reason for holding that the rule against perpetuities 
 is less applicable to property in the hands of a Chi- 
 nese and a Buddhist than to property in the hands 
 of an Englishman and a Christian ijl and I think that 
 the former has no power to devise or bequeath pro- 
 perty to be devoted in Scecula sseculorum to any pur- 
 pose not charitable. 
 
 For these reasons, I think this devise void, and 
 that the property is distributable among the testa- 
 tor's next of kin living at his death. 
 
 I Sinchcw is a custom well known in Pinang and practised there 
 amongst the Chinese, but upon a very limited scale. — Ed. 
 
 :j: Sed qu., see Kistomchunder Seal v. Hooromooney Dassee, Bourke's 
 Calcutta Cases, 290-91. (citing 1 Boulnois' Reports) which seems to 
 decide that if the Hindoo Law contains no rule against perpetuities 
 then the English rule does not apply to Hindoo devises. Refer as to 
 the subject of endowment of idols to Goberdhum Bysack v. Shamchand 
 Bysack, and Sibchunder Doss v. Sibkissen Bannerjee, cited in Bourke's 
 Rep. 282.~Bd. 
 
APPENDIX II. 
 
 COURT OF JUDICATURE. 
 
 JURISDICTION. 
 
 Notes of Cases. 
 
 I. Sultan of Johore. 
 
 1. Abdul Wahap bin Mabamat AUi v. Sultan 
 AUi. Malacca, 4th May, 1843. Sir Wm. Norris, Knt. 
 Recorder. Plea to the Jurisdiction overruled. 
 
 2. Veerapa Cbitty v. Sultan AUi. Singapore, 
 22nd May, 1854. Sir Wm. Jeffcott, Knt. Recorder. 
 Plea overruled. 
 
 3. Hadjee Hamid bin sembrum v. Tunku AUi. 
 Singapore, 1st May, 1855. Sir Wm. Jeffcott, Knt. 
 Recorder. Plea overruled. 
 
 II. TUMONGONG OF JOHORE. 
 
 Koh Hong Lip v. Dyang Ibrahim Maharajah. 
 Singapore, 20th Oct. 1858. Sir R. B. McCausland, 
 Knt. Recorder. Action for assault, false imprison- 
 ment, pecuniary mulct, &c. Plea overruled. 
 
 III. Rajah of Quedah. 
 
 Lawrence Nairne v. Rajah of Quedah and Wan 
 Ismail. Equity Suit. Pinang, 2nd March, 1861. 
 Sir P. B. Maxvi^ell, Knt. Recorder. Plea allowed. 
 
APPENDIX III. 
 
 COURT OF JUDICATURE. 
 
 PINANG. 
 NOTES OF CASES, 1868. 
 
 1. Virapa Chitty v. J. J. Ventre. — Action on 
 Surety Bond made at Pinang as to Marine Insu- 
 rance on a French vessel, on a voyage from Pinang 
 to Singapore, &c. Loss of ship (Southward of the 
 Carrimon Islands) through ignorance of (Certifi- 
 cated) Master and drifting by tide or current. Held 
 no deviation. Phynn v. Royal Exch. Ass. Co. 7 T. R. 
 505, and Tait v. Levi, 14 East, 481 coramented on. 
 Semble, the Law of the Flag (French) should prevail. 
 Judgment for Defendant. 
 
 2. Mootoo Curpen Chitty v. Lee Toh. — The ordi- 
 nary printed " Chitty-Insurance " Bond (insurance 
 on goods, but ship and goods must both be totally 
 lost by foundering) held not void as a wager Policy. 
 Judgment for Plaintiff. 
 
 3. Abdul Kader v. Shatomah. — Mahomedan mar- 
 ried woman must acknowledge her assignments of her 
 Realty in the Straits, by deed jointly with her hus- 
 band, in accordance with Indian Act XXXI of 1854. 
 Judg-ment for Plaintiff in Ejectment. 
 
 4. W. E. Maxwell, Administrator, v. Chitty- 
 appah Chitty. — Mortgage of Hackney carriage, but no 
 agreement for sale. Sale by mortgagee upheld. 
 Judgment for defendant. 
 
 5. Shedumbruni Chitty v. Jones. — Assignment 
 of Salary by Deputy Sheriff held illegal. 
 
 6. Attorney General v. Kam Kong Gay, &c. 
 (Opium Farmers of Pinang). — Local Excise Act 
 XXIX of 1867 cancels, by implication, all Govern- 
 ment Excise Contracts between the parties under 
 Indian Act XXX of 1866. Judgment for the Crown. 
 
 7. Tan Kay v. Tan Lat. Action in Supreme Court. 
 Writ of Ne exeat regno entitled by mistake as issuing 
 out of the lately abolished Court of Judicature, held 
 void, and Bail Bond, &c., ordered to be cancelled. 
 
(2) 
 
 8. In tlie Goods of Meh Allang. Administration 
 to adopted daughter refused and granted to the next 
 of kin. 
 
 The End. 
 
nm: