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dj«£ 
 
 HEARD AND DETERMINED 
 
 IN 
 
 HER MAJESTY'S SUPREME COURT 
 
 OF THE 
 
 tpite -j&etttpqrtte 
 
 1808-1884. 
 
 EDITED AND REPORTED 
 [WITH A JUDICTAL-HISTORICAL PREFACE PROM 1786 TO 1885.] 
 
 BY 
 
 JAMES WILLIAM NORTON KYSHE, ESQ., 
 
 ACTING EEGISTEAE OP THE SAID COUET IN MALACCA. 
 -o>*;o. 
 
 Law is beneficence acting by rule. 
 
 Burke. 
 
 IN THREE VOLUMES. 
 
 VOL. I. 
 CIVIL CASES. 
 
 Copyright. 
 
 SINGAPORE : 
 Peinted at the "Singapoee and Steaits Peinting Office." 
 
 1885. 
 
TO 
 
 HIS HONOR 
 
 Sir THOMAS SIDGREAVES, Knt.. 
 
 Chief Justice of the Straits Settlements, §c, fyc., S(c. 
 
 Cjiis Jfflorfe 
 
 IS, WITH PERMISSION, 
 EESPECTFULLY DEDICATED 
 
 BY 
 
 THE AUTHOR. 
 
PREFACE. 
 
 [JUDICIAL— iflSTORIOAL] 
 1786—1885. 
 
 A GREAT drawback, and indeed considerable inconvenience has 
 heretofore been experienced, owing to the want of a com- 
 plete, and above all, reliable reporb of all the important and 
 binding ca?e.9 adjudicated upon in the Superior Court of thia 
 Colony.* The utility of a work like the present in its objects, 
 need not therefore be insisted upon. As far back as August 1858, 
 one of the most able of the late learned Eecorders in the Straits, 
 " regretted that the Recorders did not preserve their judgments 
 "by publishing them."f In 1869, in a short pamphlet-form, 
 appeared some few cases, styled Oriental, Gases, compiled by an 
 Attorney of the Court, Mr. E. Carr "Woods, jr., and in 1877, a 
 large collection of mostly early cases, was also printed and pub- 
 lished,J but apart from these collections, made up of decisions 
 which had mostly appeared in the public press from time to time, 
 no regular reporting of cases from the Court Records, has ever 
 existed. Throughout these Volumes will now appear for the first 
 time, a very large number of cases that have never before 
 appeared iu print, and which have been cast from the earliest 
 records, the majority of which have been extracted from a volu- 
 minous mass of varied Court Records, and the Note Books — as 
 still exist, — -of the different Recorders and Judges of the Colony, 
 
 _ * " It is often very difficult to determine whether or no a decision has ceased to be 
 a binding authority : our judges in the present day seldom expressly overrule a 
 previous decision ; they comment on it, distinguish it, explain it away, and then 
 leave it with its lustre tarnished, but still apparently a binding authority, should 
 identically the same facts recur." Odgers, Digest of the Law of Libel and Slander, 
 1881, page vi. 
 
 t " Upon a question on which the cose3 deeided by the Superior Courts at 
 
 home, cannot give much assistance, since its determination depends in great measure 
 on local circumstances, I think it is to be regretted that the Eecorders did not preserve 
 
 their judgments by publishing them This absence of published judgments is, as 
 
 I have j ust said, to be regretted, because much uncertainty will continue to hang over 
 the Administration of Justice in the Settlement. Bach Recorder must begin de novo, and 
 solve for himself, as best he may, the question whether this or that Statute is in force 
 here ; and the law will fluctuate according as he unconsciously departs from the views 
 of his predecessors, and as his views, again are, in similar unconsciousness, departed 
 from by his successors." Sir Benson Maxwell, Journal Indian, Archipelago, vol. iii., 
 part i., p. 59. 
 
 % Straits Law Beports, compiled by S. Leicester, Chief Clerk to the Magistrates 
 of Police, 1877. 
 
ii PREFACE. . 
 
 to which I have had unlimited access, and which now, after over 
 three years painstaking care and patience, and when other avoca- 
 tions would permit, I have succeeded in putting together. Any 
 attempt at a work of this kind, would have been of little value, 
 without a careful examination of each case, as filed in the Regis- 
 trar's Office, with the notes of the Judges, as well as with the 
 Minute Books of the Registrars, and this, wherever possible, has 
 been invariably done, and it is on the authority of those records, that 
 the majority of the cases re/ported herein, are now given. 
 
 The plan adopted by me, is that followed at home, and my care 
 throughout, has been to condense matters in a manner as concise 
 as could consistently be done. The arguments of Counsel, and 
 the judgments, wherever practicable, are stated in full, and with 
 the greatest regard to accuracy; and I have been particularly 
 anxious in reporting the decisions of the Judges, to follow", as 
 nearly as possible, the very words of the Court in expressing its 
 opinion, as borne out by the notes. Cases of a similar nature, 
 or points raised in one -case, and already decided in another, 
 or matters having any connection whatever, will all be found 
 connected, by annotations and foot-notes, — this I trust, will 
 further add to. the utility and usefulness of the work. 
 
 Having thus far explained the purport of this work, — and in 
 conjunction with it, as coining within the range of its' immediate 
 scope, — it will not be thought out of place for me to give here, an 
 historical account of the Administration of Justice in this Colony, 
 from the time of its first establishment in 1786, when Prince of 
 Wales' Island [ so named by Captain Light, an officer of the 
 Bengal Government, *on taking over the Settlement, and by which 
 name it is still officially known] , or Penang, as it is called after its 
 original native name, was first ceded to the East India Company 
 by the Rajah of Quedah.f But before proceeding any further, 
 I think it but right, that I should guard myself against any sup- 
 position that I am the first to have ever touched upon this or 
 any matter in connection with the history of these parts, for 
 several writers, and that long before my time, have ably dwelt 
 upon portions of what will appear herein, but having had at my 
 disposal, — apart from researches made from divers authors and 
 records, — documents of a most authentic and unquestionable 
 nature, this Judicial-Historical Preface has been almost entirely 
 founded thereon, — which documents are to be found in the 
 Registry of the Supreme Court in Penang, — for owing to the 
 constitution of the Government in olden days, that office formed 
 a depositary of some of the most valuable public documents, 
 especially, built as is the Penang branch of the Supreme Court, 
 upon the very first Court of Justice established in the Colony. 
 
 * Previously a " Navigating Merchant." Journal Indian Archvpelaao vol iii 
 1849, p. 600. v V , ; 
 
 + This is more properly spelt KUah, but for the sake of uniformity, the word 
 being spelt as above in the different oases reported, it is here retained. 
 
CHAPTER I. 
 
 CONTENTS. 
 
 1786—1800. 
 
 Foundation of Penang — Captain Light, first Superintendent — Difficulties regarding 
 Administration of Justice— Lord Cornwallis' despatch— Trial by Court-Martial— Native 
 headmen — Charge against one John Sudds for Murder — Attorney-General Burroughs' 
 opinj^n on the case — Captain Light's despatch — Thomas Pigou, Magistrate — Lord 
 Teignmouth's reply to Captain Light — forwards some written proclamations and 
 regulations— Captain Light's death — Pigou temporarily succeeds him — Philip Man- 
 ington, Magistrate — his arrival — he assumes the reins of the Government — Doubts - 
 regarding date of Captain Light's death — Quedah — Penang and its cession — Maniugton 
 proceeds to India where, he. dies —Pigou and one Beanland temporarily succeed him — 
 Arrival of Major McDonald as Superintendent — Committee appointed by him — Their 
 report and recommendation — Major McDonald's despatch — Europeans — Native head- 
 men — their powers — Government Establishment — Cause Book — Court papers— George 
 Gaunter, Magistrate — Philip Manington, Jr., " 2nd Assistant" — Magistrate and 2nd 
 Assistant take bench in turn — Superintendent no power to carry out sentence of death 
 — Decisions of Magistrates submitted to him before being carried out — Case of adul- 
 tery : Aphoe and Kehim — Sentence — Departure of Major McDonald — Caunter acts for 
 him — Duke of Wellington's Memorandum on Pulo Penang — his- recommendations 
 regarding the Administration of Justice — Native taws followed — illustration — -Divorce 
 case Inche Lebedrecha, tried by Manington — Death of Major McDonald — Native laws 
 and usages. 
 
 Penang was the first British Settlement in the Straits of Light. 
 Malacca. When first taken possession of, the place was practi- ll78 TT^q 4 
 cally uninhabited, there being but a few itinerant fishermen living 
 on it. * It might naturally be supposed therefore, that the Island, 
 on being taken over, became de facto an English Settlement, and 
 that consequently our own laws prevailed, although it was long 
 after, that this was really acknowledged, f Captain Light, the first 
 Governor, or Superintendent, as the head of the Government 
 was then styled, experienced no end of difficulty in providing for 
 the establishment of a Court of Justice. The first time he touched 
 upon the point, was on his return to Bengal, after his successful 
 mission to the King of Quedah, — [he having previously been <~le- 
 puted to find an emporium for our trade in these seas], — in a letter 
 dated 6th April, 1786, to the Governor-General of India in Coun- 
 cil, wherein he stated that people would come from different 
 specified places, and that it would be necessary, inter alia " to 
 establish a police for their protection. "J In 1786, after the Island 
 
 * Opinions differ about this, the Charter of 25th March 1807, however says 
 " wholly uninhabited." 
 
 t See Begina v. Willans, Magistrates-' Appeals, vol. iii. of these Reports. 
 
 1 This is slightly touched upon by Mr. Phillips, in § 7 of his Minute on 
 the Landed Tenures of Prince of Wales' Island. [See Papers and Correspond- 
 ence—Land Revenue Administration, lately published by Hon ble W. E. Maxwell, 
 1884, p. 2.] 
 
iv PREFACE. C° H1P - J - 
 
 Light. had been taken over on the 11th of August of that year,* Captain 
 .. — Light again addressed Lord Cornwallis on the subject. In answer 
 ' to his representations, he was informed by order of the Governor- 
 General in Council, dated 26th January, 1788, that the "Council 
 " did not think themselves at liberty to make any permanent regu- 
 " lations for the Police at Prince of Wales' Island, without express 
 " authority from Europe," and " until that authority arrives," the 
 order went on to say, " it must remain with you, [the Superin- 
 " tendent of the Island], to preserve good order in the Settlement 
 " as well as you can, by imprisonment or other common punish- 
 " ments, sofarasthe inhabitants not Britishsubjeds, are concerned ; 
 " and excepting in cases of murder : in cases of this kind, the 
 " Governor-General in Council, is compelled to determine on the 
 " least exceptionable means of punishing them, and with this view, 
 " you are authorized to assemble a Court-Martial consisting of 
 " not less than five members, to be composed of Officers of the 
 " Army, and of the most respectable inhabitants to try and judge 
 " all persons, not British subjects, charged with murder, — their 
 " authority however, not to extend to carrying the sentence into 
 " execution without the approval of it by the Commander-in-Chief, 
 " and during this reference, the parties are to remain in a state of 
 " confinement measured in its degree of strictness. by the circum- 
 " stances under which they are accused." The population in- 
 creased gradually, and some of the natives claimed the adminis- 
 tration of their own laws. The expediency of committing the 
 Administration of Justice in each class to a head-man, was there- 
 fore decided upon,f and Captain Light in a letter dated 30th 
 July, 1792, after touching upon this subject, and setting out the 
 condition and prospects of the Island, informed the Governor- 
 General that he had appointed " Hakims or notaries to keep 
 " Registers of Marriages, Births, Slaves, Sales of Lands andHouses, 
 " which, however imperfect, would by degrees become regular and 
 "prevent much litigation." 
 
 In 1793, the records disclose a very serious case against a 
 European named John Sudds, who was charged with the murder 
 of one Smithers. The matter was duly enquired into, on the 2nd 
 July, 1793, at Port Cornwallis, by two military officers,! appointed 
 for that purpose by Captain Light, and the man found guilty of the 
 offence. The prisoner was detained in custody until the 30th Sep- 
 tember, 1793, when he was sent to Calcutta for trial, but there 
 discharged soon after, there being primarily no jurisdiction to 
 deal with him. The Attorney-General of Calcutta [Sir W.Burroughs, 
 Bt.], who had been referred to for his opinion of the case, in a letter 
 dated 26th September, 1793, informed the Secretary to the Govern- 
 ment of India, that apart from the irregularity of the whole of the 
 proceedings, there was no evidence to support the charge and 
 
 * For Proclamation, seo Fatimah Sf ors. v. Logan fy ors., infrd, p 259 
 t Captain light passed certain Regulations for the guidance of Native Chiefs 
 which were refrained in 1800, by Sir George Leith, Lieut.-Gov.., seo infrci, chap. 2. ' 
 J One of them Lieut. Norman Macalister, Colonel and Governor at" the Proclama- 
 tion of the first Charter in 1808. 
 
ttw-inob.] JUDICIAL-HISTORICAL. V 
 
 " no law by which the well meant directions given to the Superin- Light. 
 "tendentof Prince of Wales' Island conld be supported, as far ^0^704 
 " as they related to the trial or punishment of murder or any other 
 " crimes at that island "* 
 
 On the 25th January, 1794, Captain Light again addressed 
 the Board of Directors as to the state and different requirements 
 of the Island, and said that " from the present populousness of 
 " the Settlement, and the daily increase of the inhabitants, circum- 
 " stances repeatedly occur to shew the necessity of establishing a 
 " more regular form of government than exists at present, under 
 " the sole administration of one person. From the great number 
 " of strangers constantly coming and going, a strict police is 
 " essentially requisite. From the great diversity of inhabitants, 
 " differing in religion, laws, language and customs, a constant 
 " and patient attention to their various complaints must be 
 
 " afforded " He then recommended the separation of the 
 
 judicial from the executive office, and went on to say : " To 
 " endeavour to subject these people to our strict military 
 " law and discipline, will soon depopulate the island of all the most 
 " wealthy and useful inhabitants. A mild, and at the same time an 
 " active government, is necessary. The inhabitants must at all 
 " times have recourse with the Chief, and as they are composed of 
 "many different nations, they are jealous of each other and will 
 " not submit their cause to the decision of one whom they think 
 " is a partial administrator. The Administration of Justice will 
 " therefore for some years continue to be a troublesome and f atigu- 
 " ing office, which makes it necessary that the person who is to exe- 
 " cute the duties of it should be acquainted with persons and cir- 
 " cumstances before he enters upon it," and ended by asking for " a 
 " regular form for administering justice," as necessary "both for the 
 " peace and welfare of the society, and for the honor of the nation 
 "who have granted them protection. "f The records at this time 
 shew that a Mr. Thomas Pigou, styled " Assistant to Captain 
 Light," acted as a Magistrate in the Island, though it is unknown 
 by what law he was guided. Captain Light's recommendations 
 seem to have met but with little consideration. On the 1st of 
 August, 1794, Lord Teignmouth, then Governor-General in Coun- 
 cil, informed him, that he did not then think himself authorized to 
 establish formal and regular Courts for the trial and punishment 
 of offenders, but in conformity with Lord Cornwallis' opinion, re- 
 corded on the 26th January, 1788, he, Lord Teignmouth, had 
 passed certain Begulations for preserving the peace of the Island. 
 Some written proclamations and regulations, were thereupon 
 sent to Captain Light, and these, until the proclamation of the first 
 Charter in 1808, were supposed to constitute the lex loci, but as 
 a fact, whether found impracticable or otherwise, seem to have been 
 but very rarely acted upon. A Mr. Philip Manington, was also 
 about this time, appointed Magistrate in the Island, by the Govern- 
 
 * See Jour. Ind. Arch, vol. 5, p. 5. This case is also alluded to by Sir Benson 
 Maxwell, in Reg. v. Willans, Magistrates' Appeals, vol. iii. of these Reports, 
 t Jour. Ind. Arch., vol. 5, 1851, p. 1. 
 
Yi 
 
 PREFACE. 
 
 [Chap. I. 
 
 Piaoui 
 1794. 
 
 Maninqton. 
 1794-1795. 
 
 Beanland. 
 1896 
 
 McDonald. 
 1796-1797. 
 
 ment of India. He arrived here in November 1794,* Captain Light 
 had died about a month previously. Some time before, and after 
 Captain Light's death,! Mr. Pigou, his assistant, acted for a short 
 time as Superintendent, until the arrival as above-mentioned, of 
 Mr. Manington, who, at once, assumed the reins of the Government 
 of the Island, but " was obliged in a few months, owing to the 
 "bad state of his health, to resign, and proceeded to Bengal, 
 " where he died." J He was temporarily succeeded by Mr. Pigou, 
 and from January 1796 by a "Mr. John Beanland," until the 
 arrival on the 14th May, 1796, of Major Forbes Ross McDonald, an 
 officer of the Bengal Government, who had been appointed to re- 
 place Captain Light. On his arrival, Major McDonald,- appointed a 
 Committee to enquire into and report upon matters connected with 
 the local administration. This Committee, in its report, made 
 certain allusions to " the absence of a Court of Law, and the suh- 
 
 * Exact date not found. 
 
 f The exact date of the death of Captain Light, [whose Will is to be found 
 among the records of the Court, and which destroys the fiction that he had married 
 a daughter of the King of Quedah,1T] seems to have been doubted by many ,§ but the 
 following extract of a letter, t a c °Py of which is among the records of the Court], 
 from two of his Executors, to a co-Executor, announcing his death, oloarly gives 
 the correct date : 
 
 Prince oj? Wales' Island, 
 21st October, 1794. 
 
 "To 
 
 WILLIAM FAIRLIE, Esq., 
 
 Calcutta. 
 Deab Sib, 
 
 It is with great concern we have to advise you of the distressing loss we 
 have experienced in the death of our worthy friend Mr. Light, who departed this 
 life this morning at one o'clock, after an illness of a pretty long duration, but which 
 in the latter part of it, made a very rapid progress, 
 
 This event, distressing as it would have been at any time, is peculiarly so just 
 at this moment for a variety of reasons, all which must strike you very forcibly 
 without our particularizing them 
 
 [Sd.] J. SCOTT, 
 
 [ „ ] THOMAS PIGOU." 
 
 *i " Captain Light had assisted the above prince [King of Quedah] in quelling 
 some troubles in his dominions, who in return, bestowed on him a princess of his 
 
 blood in marriage, together with this island as her dowry this, however, is 
 
 certain, that the Island of Palo Peenang, which was given with her in dowry, he, as 
 subject of Great Britain, took possession of in the name of his Britannick Majesty, 
 for the use of the English East-India Company." A short account of the Prince 
 of Wales's Island or Pulo Peenang , Elisha Trapaud, Esqre. , Captain in the Engineer 
 Corps, Madras Establishment, London, 1788, p.p. 9/15, — but see early treaties! ! 
 
 §"1793. — Captain Light died about the latter part of this year" — Jour. Ind. 
 Arch., Vol. 3, 1849, p. 614,— again— " This Gentleman [Francis Light] died during 
 
 theyearl794, butthereisno record of the event to be found "and again 
 
 '* the date of Captain Light's death, and the name of his immediate successor, are 
 not discoverable from the records." Jour. Ind. Arch., 1851, Vol. 5, No. 1. p. 6. The 
 Ecclesiastical papers connected with Light's estate, only shew that he died in the 
 month of October, 1794, without specifying any date— [Martinha Rosells alias 
 Timmer v. W. E. Phillips S; ors., — claim of restoration of certain lands under the 
 Will of Francis Light, deceased, 30th March, 1811. " Tiie defendant W. E. P. saith 
 that the said Francis Light departed this life sometime on or about the 24t4 day 
 of October 1794 ]" 
 
 X A short account of the Settlement of Prince of Wales Island. Sir Geo Leith 
 Bt., Lieut.-Governor, london, 1804, p, 7,- 
 
irse-isoo] JUDICIAL—HISTORICAL. vii 
 
 "jectionof the inhabitants to trial by Court- Martial, which had ^E ?^! 0, 
 
 "deterred numerous people from settling here, that pend- 1796 - 1797 - 
 
 " ing the appointment of such a Court, a Magistrate be appointed, 
 " a man of accommodating manners, mild temper and ex- 
 perience." In July 1796, in forwarding this report to the Gov- 
 ernment of India, Major McDonald remarked as follows, in re- 
 gard to that portion referring to the Administration of Justice. 
 
 " Each language, in imitation of those under the Dutch Government, have 
 had a Captain or head-man appointed over it, to administer justice in all cases not 
 requiring an appeal to higher powers, to keep registers and regulate the Police of 
 their districts. The men whom I found in office, have to a man proved unworthy 
 of their trust. I long hesitated to make any alterations, judging it preferable to 
 deprive myself of the assistance which that class of police officers might afford, 
 than to hazard a nomination which from ignorance, self-interest or favor, might 
 recommend to the prejudice of the general good " 
 
 The Europeans had, apparently, at this period, become very 
 obstreperous, no power was vested in the Government, nnder the 
 Eegnlations of 1 794 over the property of British subjects,* and 
 the latter in other matters only acquiesced in such decisions of the 
 Superintendent or Magistrate, as met with their own views. f 
 
 Major McDonald, in his despatch, went on to say : 
 
 " But I have derived a benefit from the sacrifice, in a great measure 
 
 balancing its inconvenience I have made myself acquainted with the people, 
 
 their modes and sentiments. I am persuaded I have gained their confidence, 
 although I may perhaps owe much of that to the fiery ordeal through which I have 
 persevered, not seldom in -their defence, administered to me by the European set- 
 tlers, who affected to hold in contempt such feeble and as they argued, not believed, 
 
 upstart control To the Europeans alone, to their interested motives, to their 
 
 spirit of insubordination must be attributed the general laxity of every depart- 
 ment, for where could vigour, where could with propriety any restrictive regula- 
 tion operate, while the most conspicuous part of the community not only holds itself 
 
 sanctioned, bnt preaches up publicly a crusade against all Government 
 
 Police we have none, at least no regulation which deserves that epithet — various 
 regulations have been made from time to time, as urgency in particular cases dic- 
 tated, but they have all shared the same fate, neglect where every member of the 
 community is not bound by the same law, where to carry into effect a necessary 
 arrangement, a mandate is issued to one class, while a request hazards a contemp- 
 tuous reception from the other " 
 
 Major McDonald continued in practice the same system as 
 that inaugurated by his predecessor, in appointing head-men to 
 each class and framing regulations, in the shape of instructions, 
 for the Administration of Justice and other purposes. The 
 powers of the native head-men, or captains as they were styled, 
 were however limited ; their civil jurisdiction not exceeding de- 
 mands over ten dollars, the more serious or important cases being 
 adjudicated by the regular magistracy. At this time, the Govern- 
 ment establishment consisted principally of 3 officials styled 
 "Superintendent," "Magistrate," and "2nd Assistant." The 
 first Cause Book now on record, bearing date 3rd January 1797, 
 
 * Ftnwick v. Q. Counter, 28th Sept., 1808, [not reported] — and see time of Sir 
 George Leith, Bt.,— 1800-1803 and his " account of the Settlement," infrci. Chap. 2. 
 
 tSee §§.89 & 93 of Governor Dundas' despatch of 12th Nov., 1805, and 
 §.7 of Mr. Dickens' letter of 21st Dec. 1806 to Mr, Baffles, regarding one Douglas — 
 Chap. 3, infra,. 
 
PREFACE. 
 
 [0«A*. I. 
 
 McDonald. 
 1796-1797. 
 
 Catjntee. 
 1797-1800, 
 
 [and which is still in good preservation, and contains a transcript 
 of the papers in the cases heard, — a system which was carried out 
 until the foundation of the Court of Judicature in 1808], gives 
 . Major McDonald as the Superintendent, a Mr. George Caunter 
 as Magistrate, and Mr. Philip Manington [apparently a son of the 
 first-named Manington*] as " 2nd Assistant." The records no- 
 where shew when or hy whom Mr. Caiinter was appointed, or 
 when he arrived in Penang. The Magistrate and 2nd Assistant 
 took the bench in turn, and never sat together, except in capital 
 cases, when the Superintendent also sat, as President. The 
 Superintendent had however, as before stated,f no power to carry 
 out a sentence of death, without the previous sanction of the 
 Governor-General of India being obtained, all the proceedings in 
 such cases, being sent to him.| , 
 
 In accordance with a Regulation passed by the Government 
 of India, dated 31st August, 1794, the decisions of the Magis- 
 trates, were submitted to the Superintendent before they could be 
 acted upon, and this system appears to have been followed out 
 till the establishment of the Court of Judicature in 1808. The 
 decision when approved of, was carried out by the Magistrate 
 who passed the order. 
 
 The following will illustrate the nature of punishments 
 awarded in those days for criminal offences. 
 
 Before George Caunter, Magistrate. 
 
 27th April 1797, 
 
 Aphoe, a Chinaman, and Kehhn, a Chinese woman, for adultery. 
 
 Sentence. 
 
 To have their heads shaved, and stand twice in the Pillory from the hour of 
 4 to 6 in the evening, and the man to be imprisoned, until an opportunity offers of 
 sending him off the Island. 
 
 GEORGE CATJNTEE. 
 Approved. 
 F. E. McDONALD. 
 
 Major McDonald left for India on the 8th of September, 
 1797, when he was succeeded by Mr. Caunter as acting Superin- 
 tendent, Mr. Manington succeeding Mr. Caunter as " Magistrate." 
 
 It was about this period, that the Duke of Wellington, then 
 Colonel Wellesley, drew up his famous " Memorandum on Pulo 
 " Penang," || when in command of the 33 rd. Regiment, which formed 
 part of an expedition destined for the capture of Manila, and 
 which met in Penang in September, 1797. After expressing his 
 
 * " The son of the Superintendent Manington"— Papers and Correspondence, 
 Land .Revenue Admin,, 1823 — 1837, [published 1884] p. 29. 
 
 t Lord CornwalhV Despatoh to Captain Light, 26th Jan. 1788, ante p. IV. 
 
 J As to the result of this in subsequent years, see § 92 of Governor Dundas' 
 despatch of 12th November, 1805, infra— Chap. 3. See also Sir Georee Leith's 
 Account o/ the Settlement, 1800-1803— infra, Ch. 2. 
 
 || "The Wellington despatches" [Supplementary Despatches], Vol. I., p, 25. 
 
1786-isoo.] JUDICIAL— HISTORICAL. ix 
 
 opinion as to the importance of Penang as a military station, Cauntbr. 
 and " therefore a most desirable place to retain," and making *797— 1800. 
 suggestions as to "the means of paying for its defence," 
 Colonel Wellesley concluded with " a few remarks for the 
 "measures to be adopted for the police of the Island and 
 " for the security of its property." As will be seen, his re- 
 commendations embodied suggestions already made and partly 
 carried out by Captain Light and Major McDonald. He 
 said : 
 
 " As the inhabitants consist of people of different nations and of dif • 
 " ferent Provinces of those nations, it is advisable to leave them under the 
 "direction of the head-man of each Province, and to interfere as little as 
 " possible in the regulations which may be established by each for the govern- 
 " ment of his own countryman. It may, however, be necessary in order to in- 
 "sure the general tranquillity, to have one European Magistrate, who might 
 " be at the head of the magistracy of the Island. He should inform himself 
 " of the methods of proc3eding, and of the laws which bind the Chinese and the 
 " Malays, and in cases where either or both are parties, according to the laws of 
 " universal and natwal justice."* 
 
 As an illustration of how native laws were followed in early 
 days, the following decision of Mr. Manington, in an application 
 for divorce, is here given : 
 
 18th October 1797. 
 Before Philip Manington, Esquire, 
 
 Acting Magistrate. 
 In the matter of Inche Lebedrecha. 
 
 Inohe Lebedrecha sues for a divorce from her husband. She relates that 
 about five -years ago when she lived at Hassahan, her husband Lebby Byun, 
 left her to go to Eumbow, near Malacca, since which he has never returned, 
 or had she ever heard of him until about a year ago, when she was in- 
 formed, that her husband had married another woman at Eumbow, — on which 
 she came here, and has been here resident on the Island two months. She now has 
 no subsistence to live upon, and therefore sues for a divorce that she may be enabled 
 
 * See § §. 16 & 17 of the Instructions to Sir George Leith, Bt., 15th Maroh, 
 1800, infra— Gh. 2, and time of Dickens, J. # M., 1801-1308— infra. 
 
PREFACE. Oap. i- 
 
 1797—1800. DECISION. 
 
 It seems from enquiry of the different Chiefs and Priests, that the Malay 
 Laws- say, if the husband leaves his wife, and leaves her no means of 
 getting a maintenance during her absence, or that he should not return to 
 her or she not hearing any tidings of him in the expiration of one year, that 
 then she can marry again, it is therefore decreed that should the husband 
 not return, during the space of twelve months, from this date, she be divorced and 
 may marry again. 
 
 Approved. P, MANINGTON, 
 
 G. CATJNTER, Acting Magistrate. 
 
 The Records of the Court do not shew that Major McDonald 
 returned to the Island again, although he is supposed to have 
 done so late in 1798, returning to India early in 1799, where 
 he died shortly afterwards. According to the Court Books, 
 Mr. Caunter appears to have acted as Superintendent, and 
 Mr. Manington as Magistrate, until the arrival of Sir George 
 Leith, the first Lieutenant-Governor, under the new ar- 
 rangement in 1800. During Mr. Caunter's superintendent- 
 ship, nothing seems to have happened, and up to the end 
 of the century, — as indeed up to the proclamation of the 
 first Charter of Justice in 1808, — each class received full 
 recognition and protection, according to its own laws and 
 usages — in other instances, the law of nature practically supersed- 
 ing any other. 
 
CHAPTER II. 
 
 CONTENTS. 
 
 1800-1805. 
 
 Change of Government — Arrival of Sir George Leith, Bt., as Lieutenant-Gover- 
 nor — his instructions — Caunter, Pirst Assistant — Sir George Leith reports his arrival — 
 Mr. John Dickens, a Barrister, appointed Judge and Magistrate — the reason for his 
 appointment — first Appeal Case — Mr. Dickens' Instructions — Sir George Leith's com- 
 plaint against Europeans — Arrival of Mr. Dickens — Caunter and Manington — date of 
 their decease — Mr. Dickens finds out the anomaly of his position — his suggestions — 
 British subjects — Sir George Leith's departure for India on leave — Mr. Secretary 
 Phillips acts for him — Difference between Mr. Phillips and Mr. Dickens regarding Spice 
 Regulation — Mr. Dickens declines to adopt the Regulation — Dismissal by Mr. Dickens 
 of case for breach of the Regulation against, one Carni, who is however sentenoed by 
 Mr. Phillips— Angry correspondence — Return of Sir George Leith — Dispute between 
 him and Mr. Dickens — latter complains of interference with the discharge of his duties — 
 illustration — case against Hough for theft — he is acquitted by Mr. Dickens but 
 sentenced by the Lieutenant-Governor — Correspondence — Second illustration — Case 
 inserted as illustrative of early decisions — case of Palangee v. Tye Ang and In the goods 
 of Ethergee — Mr. Dickens' decision reversed and estate administered by Lieutenant- 
 Governor — Case against Hoong Pah for perjury — Summary jurisdiction — sentence — 
 Serious discussion between Mr. Dickens and Lieutenant-Governor regarding case of 
 Oauder v. Ibrahim — Native Captains — their jurisdiction — Instructions — Mr. Dickens 
 addresses the Government of India — He recapitulates his grievances, and occurrences 
 during his tenure of offioe — no apparent result — Mr. Dickens and Regulations drafted 
 by him— Sir George Leith's "Account of the Settlement"— want of laws — Natives — 
 Europeans — Imprisonment no deterrent to Asiatics — Malays — In framing Regulations, 
 native manners and customs to be consulted — Sir George Leith's departure-he is 
 succeeded by Mr. Robert Parquhar — Mr. Phillips continues as Secretary — Mr. Par- 
 quhar addresses the Government of India regarding the administration of Justice — 
 Lord Wellesley's reply— Codes framed. 
 
 After the death of Major McDonald, the Government of India Leith. 
 changed the form of the local Government, as before alluded 'to,, 1800-1803. 
 and Sir George Leith, Bt., arrived here on the 19th April, 1800, as 
 Lieutenant-Governor. 
 
 The following in an extract from his instructions, dated 15th 
 March 1800, under heading 
 
 " The Administration of Civil and Criminal Justice. 
 
 Sec. 15. The Right Honorable the Governor-General in Council, having recon- 
 sidered the circumstances which have hitherto prevented the establishment of regular 
 Courte of Justice at Prince of "Wales' Island, entertains no doubt of its being equally the 
 right and the duty of the British Government in India to provide for the administration 
 of Justice to the native inhabitants of that Island. 
 
 16. The laws of the different people and tribes of which the inhabitants 
 consist, tempered by such parts of the British law, as are of universal application, 
 being founded on the principles of natural justice, shall constitute the rules of 
 decision in the Courts. 
 
 Vj Tou will accordingly proceed to frame Regulations for the administration 
 of Justice to the native inhabitants, founded on the above principles. 
 
 18. The regulations should define the constitution and powers of the Courts, 
 the cases in which an appeal is to be allowed to you in the first instance and in the 
 
xii 
 
 PREFACE. C CaAr ' «• 
 
 Leith. last resort to the Governor-General in Council, and they should also specify the fees, 
 
 1800-1803. which circumstances may admit of your establishing, on the amount of the money, 
 
 or the value of the property for which suitj may be instituted, with a view of 
 
 defraying the expenses of the Court, including the salary to be allowed to the 
 
 Judge and Magistrate before whom causes are to be tried in the first instance. 
 
 19. As the Code of regulations for the administration of Justice in Bengal may 
 be of material assistance to you, in framing regulations for the administration of 
 Justice at Prince of Wales' Island, a copy of that Code is now sent to you. 
 
 20. With regard to Europeans, residing in-the island, they should be required 
 to render themselves amenable to the same Courts as the native in civil cases, and 
 also in those criminal case3, in which the party injured can be compensated by 
 damage's. 
 
 21. You will furnish a draft of the covenants which you would recommend 
 that Europeans should be required to execute, with a view to the application of the 
 above principles. 
 
 22. Until the regulations which you are now required to prepare shall have 
 been confirmed by the Governor-General in Council, you are to consider the regula- 
 tions at present in force, as the rules for your guidance with regard to the adminis- 
 tration of Justice. 
 
 23. Europeans guilty of murder or other crimes of enormity,- should, for the 
 present, be sent under custody to Fort William."* 
 
 Sir George Leith was also informed that " Mr. Caunter, the 
 first Assistant," was "to be the first Assistant under his [Sir 
 "George Leith's] Secretary." In a letter dated 10th May, 1800, 
 addressed to the Chief Secretary to the Government of India, Sir 
 George Leith announces his arrival in the Island and his assump- 
 tion of duties, and in reference to the administration of Justice, 
 he says : " I am now using all my endeavours to forwai'd to His 
 "Lordship in Council, a plan for the administration of Civil and 
 " Criminal Justice," and on the 14th of August, 1800, the Governor- 
 General in Council informed Sir George Leith that Mr. Dickens, 
 an English Barrister, had been appointed Judge and Magistrate of 
 Penang. The reason for this appointment is given in the follow- 
 ing extract from a despatch to the Board of Directors, dated 2nd 
 September, 1800. 
 
 *' Sec. 26. The Governor-General in Council, in his letter of the 1st March 
 last, acquainted your Honorable Court that he had appointed Sir George Leith 
 to be Lieutenant-Governor of Prince of Wales' Island. 
 
 27. His Lordship's instructions to Sir George Leith are recorded in our pro- 
 ceedings of the 20th March last. 
 
 28. The increasing importance of the Settlement of Prince of Wales' Island, 
 its distance from the seat of the Supreme Authority in India, and the factious and 
 disorderly conduct of some of the European inhabitants of the Island, rendered it 
 indispensably necessary that its local administration should be established in a 
 respectable footing. 
 
 29. His Lordship in Council therefore judged it necessary to substitute tie 
 special designation of Lieutenant-Governor for that of Superintendent and to an- 
 nex to the office the extended powers detailed in the above-mentioned instructions. 
 
 36. With a view also of providing more effectually for the administration of 
 Justice on the Island, the Governor-General in Council has appointed Mr Dickens 
 to" be Judge and Magistrate of the Island. This gentleman has practised'for seve- 
 ral years, as a Barrister in the Supreme Court of Judicature at Fort William with 
 considerable reputation, and he is fully qualified for the discharge of the judicial 
 duties of the Island, which are now become laborious and important. 
 
 * Jowr. Ind- Arch,, March 1851, p. 157. 
 
ism-mob.] JUDICIAL— HISTORICAL. xiii 
 
 87. The Governor-General in Council has not yet determined on the allow. LbitB, 
 
 anoe to be granted to Mr. Dickens, His Lordship purposes to take a future oppor- 1800-1808. 
 
 tunity of addressing your Honorable Court on this point as well as on the subject 
 
 of the constitution of the Court of Judicature, which he proposes to establish at Prince Dickens, 
 of Walts' Island." J. & M. 
 
 The first and only appeal case by a private individual, before 
 the proclamation of the Charter, and which was apparently allow- 
 ed under section 18 of the foregoing instructions, is to be met with 
 at this time in the records. The appeal arose out of a land-case 
 wherein one Salleh and Oosrnan Neena were plaintiffs and one 
 Loung Pokier Gandar, defendant. The case was originally heard 
 before Mr. Caunter on the 2nd September, 18th and 21st October, 
 1800, judgment being given in favour of the plaintiffs, and con- 
 firmed by the Lieutenant-Governor, who " could not help remark- 
 " ing upon the very improper means which appeared to have been 
 " used to deter Rajah Palawan from delivering his evidence in 
 " Court, and also upon the information which the defendant de- 
 " clared he received, that no European was allowed to give evidence 
 " in causes where natives only were concerned, by which means 
 " the cause was not only delayed some days, but an attempt made 
 " to impress on the minds of the native inhabitants that the same 
 " degree of justice would not be administered to them as to every 
 " other inhabitant, a doctrine as unfounded as injurious to the 
 " British Government." The defendant having obtained leave by 
 petition to the Lieutenant-Governor, on the 10th November, 1800, 
 appealed against the decision to the Governor-General of India in 
 Council. The following note on the case, made nearly three years 
 after, shews the result : 
 
 " This Decree confirmed by His Excellency the Governor-General in Council, 
 as notified in Mr. Secretary Philpot's letter to the Lieutenant-Governor, dated the 
 31st March, 1803. 
 
 W. B. PHILLIPS, 
 
 Secretary to the Lieut.-Qovernor." 
 23rd May, 1803. 
 
 Mr. Dickens did not assume duties till some time after his 
 appointment. In April, 1801, Sir George Leith was apprised by 
 a letter from the Secretary to the Government of India of Mr. 
 Dickens' departure, and that he, Mr. Dickens, had been instructed 
 " to continue to act upon the principles of the existing laws and 
 "regulations of the Settlement until further orders." 
 
 Sir George Leith in May, 1801, complains to the Government 
 of the attitude assumed by the Europeans, and recommends the 
 banishment of one of them from the Island, he adds : " I am 
 " compelled to make this reference, and should I be honored with 
 " the approbation of His Excellency in Council in this instance, I 
 " hope it will put a stop to that litigious and turbulent conduct 
 " which has and still continues to influence the actions of many 
 " members of this Settlement." 
 
 Mr. Dickens arrived on the 7th of August, 1801. He took 
 the bench for the first time on the 27th of that month, up to which 
 period both Mr. Caunter and Mr. Manington, appear to have acted 
 
xiv 
 
 PREFACE. 
 
 [oh« a. 
 
 iRnn ITH ' as "Magistrate" and "Assistant" respectively.* Not long how- 
 1800-1803. everj a £ ter ^jg ^j-j^ ]y[ r Di c ]j en g found out the anomaly of his 
 
 Diokens, position. In a letter dated 1st October, 1801, he addresses the 
 J. & M. Lieutenant-G-overnor as follows : 
 
 " Since my arrival at this Settlement, I have inspected the public records, and 
 find the laws and regulations for the administration of Justice contained in a letter 
 dated the 1st August, 1794, from the Governor-General in Council, addressed to 
 
 Mr. Light, the then Superintendent of the Island ...I confess that I 
 
 oannot readily conceive it to have been the intention of His Excellency the Most 
 Hoble the Governor-General in Council, to appoint me Judge and Magistrate of 
 this Settlement, and at the same time to withhold from me judicial and magiste- 
 rial authority, and I am also fully aware of my inability to render, the Government 
 or the public much service, under the existing regulations, which I lament were 
 not made known to me prior to my departure from Calcutta. But I will cheerfully 
 exert myself in performing my share of the public business, so as to lessen the pub- 
 lic inconvenience as much as the personal labours of an individual can effect it, and 
 when it is considered that the current business of the Court of Adaulet is managed 
 through the medium of Portuguese, Chinese, Malay and Siamese interpretation, that 
 the proceedings of every case, criminal and civil, are reduced into writing, that 
 there is not a single officer attached to the Court, but the Pro rost or Gaoler, f that 
 the Judge and Magistrate has neither Register, Clerk nor assistant of any kind, and 
 that the business civil and criminal is considerable, independent of the Police, it 
 will be apparent that little of it can be well performed, that much of it must be 
 delayed, and that until the aforesaid regulations are entirely abolished, justice can- 
 not be effectually administered to the inhabitants- of this populous island. To es- 
 tablish a regular Court of Justice for this Settlement, is a work that may easily be 
 effected, and I hope will not any longer be delayed." 
 
 Mr. Dickens then complains of the want of authority over 
 British subjects, " having been under the necessity of declining 
 " all interference in complaints against them of either a civil or 
 
 " criminal nature, as the power given to the Lieutenant-Gov- 
 
 "ernor [of demanding of British subjects to account with their 
 " creditors, and in certain cases of summoning them, &c, &c.,] 
 " was not such a power as could be delegated to him." He also 
 lays great stress on the inadequacy of the Police, and proceeds to 
 make suggestions as regards these. The only reply Mr. Dickens 
 got to his letter was, that it had been forwarded to India. Mr. 
 Dickens however did not rest satisfied, and in a letter dated 25th 
 October, 1801, he again urged the necessity of laws being immedi- 
 ately 'enacted, and asked that he " or some other person should 
 " be empowered as ordinary, to take possession of the real and 
 " personal property of persons dying intestate in the Island, or 
 "where they left, executors and those were absent- from the 
 
 "Settlement, great frauds being said to prevail, and the 
 
 " creditors of persons dying intestate, finding it impossible to 
 " obtain payment of their debts, from the assets of the deceased." 
 Correspondence regarding the state of the law continued with 
 
 * According to the Court records— Ecclesiastical Side — Mr. Manington died in 
 Penang on the 13th June, 1806, and was then " Paymaster of the Hon'ble Co."— 
 Mr. George Caunter;died in April, 1812, and up to 1811, the Court papers mention 
 him as " Police Magistrate." 
 
 t This official was also " Sheriff, Gaoler, Coroner, Constable, Bailiff, and Officer 
 of Police," and in addition to the foregoing [with the exception of the Gaolership in 
 1807, when one William Russell was appointed in that capacity], the records from 1S05 
 to the proclamation of the Charter also shew him as " Clerk of the Crown for the trial of 
 all persons committed for capital offences" [Clerk of the Crown ?] and lastly as Acting 
 Register. 
 
1800-1805.] JUDICIAL'-HISTORIOAL. xv 
 
 indomitable energy on the part of Mr. Dickens, until the Leith. 
 departure of Sir George Leith for India on leave of absence on 1800 ' 1803 - 
 the 2nd December, 1802. Prior to the departure of the Lieuten- d ICK ei*s, 
 ant-Governor however, in a letter dated 20th November, 1802, J. & M. 
 Mr. Dickens requested him "to represent to the Governor- 
 " General in Council, the many inconveniences sustained by the 
 " inhabitants of Prince of Wales' Island from the want of all 
 " civil laws, and especially from the want of laws regulating the 
 " descent and alienation of land, and directing the administration 
 " and distribution of the effects of persons dying intestate in the 
 '.'Island, and leaving property there situate....!...." As above 
 stated, Sir George Leith left for India on the 2nd of December, 
 1802, being replaced during his absence by Mr. W. E. Phillips, Phillips, 
 the Secretary to the Government. After Sir George Leith's ^j^™^" 
 departure, Mr. Dickens seems to have administered justice as he dec. 1802— 
 had found himself compelled to do heretofore, that is to say Mat, 1803. 
 "according to his instructions" and on the principles of English 
 law, where he considered them universal and applicable. 
 
 During Mr. Phillips' short administration, the records disclose 
 altercations between him and Mr. Dickens on the subject of the 
 dismissal of a case [The Government v. Garni, 5th April, 1803] 
 brought before him on a certain Regulation, dated 18th December, 
 1802,* passed by Mr. Phillips, and which Mr. Dickens had 
 previously refused to adopt, considering the measure "unjust, 
 " unreasonable and repugnant to the laws of the realm of England," 
 apart from considering also that the Acting Lieutenant-Governor 
 had no authority to pass such a Regulation, f but which case 
 however, Mr. Dickens only dismissed on the sole ground that the 
 evidence did not support the charge, without going into the 
 subject of .the Regulation at all. On the case being sent to the 
 Acting Lieutenant-Governor, the latter sent for Mr. Manington 
 his ^second-assistant," who had already been examined by 
 Mr. Dickens as a witness in the case, and after further examining 
 him, reversed the Judge's decision, and sentenced the prisoner to 
 four months' hard labour. This matter will be found referred to 
 further on, by Mr. Dickens, in a letter addressed by him to the 
 Government of India, on the 21st June, 1803. J 
 
 * " Regulation for the registering of spice-plants, for the better security of the 
 planters, and in order to aid in the detection of such ill-minded persons as may steal 
 clove or nutmeg plants and transplant them in their own ground." 
 
 t On this point see further, time of Sir Benjamin. Malkin, E., 1833-35, infra.. 
 Chap. 5. 
 
 t The following are extracts from the correspondence that arose on this 
 subject : 
 
 SERVICE. 
 
 To 
 
 W. E. PHILLIPS, Esq., 
 
 Acting Lieutenant-Governor of Prince of Wales's Island and 
 
 its Dependencies, 
 Sib, 
 
 1. I have received the proceedings in the case of the Government versus 
 Carni, [which I yesterday transmitted to you] and which have been now returned 
 to me, with an annexed sheet, containing an examination of Philip Manington, Esq., 
 taken upon oath by you, as Acting Lieutenant-Governor, at the Government-House, 
 
xyi PREFACE. L Chap - II. 
 
 l^ith, On the 12th of May, 1803, Sir George Leith returned to Pe- 
 
 1800-1803. . rrom thia m o m ent a regular guerre de plume broke out 
 
 Di™ between the Judge and Magistrate, and the Lieutenant-Governor. 
 
 J IT Angry correspondence passed between them, Mr. Dickens com- 
 plaining of the interference of the Lieutenant-Governor with the 
 independent discharge of his duties —the Lieutenant-Governor 
 only assenting to such decisions as met with his own views and 
 reversing all those with which he disagreed, and substituting his 
 own. The following will illustrate one of those cases, tried on the 
 21st May, 1803 : 
 
 John Brown, Provost, " on behalf of the Government," charged 
 and dated the 7th of April, 1803, that is to say, to-morrow, to questions there put 
 
 to him by you. ...» c «. 
 
 2. That is, in fact, a secret and private examination of one of the persons, 
 who was yesterday sworn in open' Court, at the trial of the said Carni, to give 
 evidence of all he knew respecting the subject matter, then before the Court 
 
 3. The aforesaid annexed sheet containing also a judgment given by you in 
 this case, I feel it my duty, therefore, to declare, that I am of opinion you do not 
 possess in your character of Acting Lieutenant-Governor of this Island, under the 
 Regulation of the 31st August, 1794, or under any commission or authority which 
 I am cognizant has been to you given, by the Governor-General in Council, any 
 legal power of examining at the Government House, any witnesses in any cause 
 who had been previously examined by me in the same cause, as judge sitting in 
 the Court of Adaulet, in the presence of the accused. I am of opinion that you 
 could not legally, thus prop up the testimony given by any witnesses in open 
 Court, that you could not legally, thus deprive the accused, of his benefit of cross- 
 examining any such witnesses. 
 
 4. The Regulation of the 31st August, 1794, after denning the powers of the 
 Judge thus qualify those powers : "No sentence to be carried into execution 
 without the approbation of the Superintendent for the time being." These words 
 give you no power as Acting Lieutenant-Governor, as I conceive, of altering 
 the sentence of the Judge, much less of a criminal offence, a man who 
 had been tried and acquitted by him, as Judge in a regular legal coutse- of pro- 
 ceeding. 
 
 5. It appears to me, that you have united in your own person, legislative 
 powers, by enacting of your sole authority, as a law, binding [if it could bind] me as 
 Judge, the regulation passed by you of the 18th December, 1802, judicial powers 
 by the secret examination taken, and positive judgment given, in a cause wherein, 
 the Government, that is, yourself, representing the Government, is a party, and 
 executive powers by carrying that judgment into execution, yourself, You have in 
 a manner said — So I order, my will shall be the Law. It is not for me to say, what 
 are the limits of your powers as Acting Lieutenant-Governor of Prince of Wales' 
 Island, but permit me respectfully to decline, taking any part in carrying your 
 judgment against Carni into execution. I still think that he was innocent, of the 
 crime, of which he was accused,* and that a man should not be convicted, until his 
 guilt is proved. The escape of a delinquent of that or any other description can 
 never do so much harm, as must arise, from the infraction of a rule, upon which the 
 purity of public justice depends 
 
 I have the honor with all due consideration to be, 
 Sir, 
 Your humble servant, 
 
 JOHN DICKENS, 
 Judge and Magistrate, $c. 
 Coubt op Adatjlet, 
 
 George Town, 
 The 6th of April, 1803. 
 
 Mr. Phillips replied 
 
 * " Carni, a gardener in the service of Philip Manington, Esq., for stealing &c. 
 247 nutmeg plants, the property of the Hon'ble the United Company, &c" ' 
 
1800-1808.] JUDICIAL— HISTORICAL. xvii 
 
 one Hoiiqh, a Chinaman-, with stealing certain carpenter's tools, Leith, 
 
 -i-» 1 ft Tin TRfVl 
 
 " the personal goods and property of whom, the said John Brown XB ' 
 
 " has been informed, were late the personal goods and property of Dickens, 
 " one Lowing Hang, deceased, and which said goods were fraudn- J. & M. 
 " lently taken and carried away from the late dwelling-house of 
 " the said Lowing Hang, deceased, on the 19th instant, against the 
 " peace, &c." To the charge, the prisoner pleaded not guilty, and 
 in his defence, denied he had stolen the tools and asserted that 
 the deceased was his relative. Mr. Dickens delivered the follow- 
 ing judgment: 
 
 " Under the circumstances in which this Island is placed of not having any 
 laws transmitting the property of a person dying here [leaving property"] to any 
 certain description of persons, either kindred by consanguinity, affinity or other- 
 wise, it is impossible for the Judge to say who is the owner of the carpenter's tools, 
 the subject of the present prosecution. And it is an axiom of general law in the 
 civilized parts of the world, that no theft can be committed unless there be some 
 property in the thing taken and owner thereof. These carpenters' tools may indeed 
 be called the property of a person unknown, and a prosecution may be carried on 
 for taking them, without the intervention of the owner, as in the case of wreck, 
 warf or stray, being taken away by others, before they have been seized by those 
 who have a right thereto. But by the laws of England such taking would not be 
 felony, and would only be punished by fine. It is difficult in this case to determine 
 in whose custody these carpenters' tools were after Loung Hang's death, so as to cre- 
 ate a special property therein, and a dead man can have no property, and there is 
 no law of succession continuing the property in chattels after Loung Hang's dere- 
 liction of them by his death, to convict the prisoner of the charge of stealing these, 
 tools. 
 
 It appears to the Judge, property therein must be proved in somebody, but no 
 evidence being given to this effect, the Judge must, if English law furnishes the 
 rule, presume it in the prisoner from the plea of not guilty, and he is accordingly 
 acquitted of this charge. 
 
 JOHN DICKENS, 
 
 Judge and Magistrate." 
 
 This decision was, as usual, forwarded by the Judge and Ma- 
 gistrate to the Lieutenant-Governor who, disagreeing with it, sub- 
 stituted the following : 
 
 " It appears to me, that the prisoner, having first denied any knowledge of the 
 
 as follows : 
 
 To 
 
 JOHN DICKENS, Esq., 
 
 Judge and Magistrate, &c, &c. 
 Sib, 
 
 I have the honor to acknowledge the receipt of your letber to me of yesterday 
 evening, but with due respect to your judgment, must decline entering into any 
 discussion on the duties of the station I have at present the honor to hold, or upon 
 the mode I may think proper to adopt in carrying them into execution. 
 
 I have therefore only to observe,'that as the Supreme Government directed you 
 to " act under the existing Laws and Eegulations of the Island, until further orders," 
 and as you declined to enforce a regulation which I deemed myself authorized to 
 frame, and expedient to promulgate for the welfare of this Settlement, I was under 
 the necessity of using the authority vested in me, and of enforcing the Regulation ; 
 for which I am answerable to £he Governor-General in Council alone. 
 
 I have, &c, 
 W. E. PHILLIPS, 
 
 Acting Lieutenant-Governor. 
 
 POBT COENWALLIS, 
 
 Prince of Wales' Island, 
 The ?th April, 1803. 
 
xviii 
 
 PREFACE. 
 
 [Chap. II. 
 
 Leith, carpenters' tools, and then bringing three saws and delivering them to the prose* 
 1800-1803. cutor, is a clear proof that he did know where the tools had been deposited, and 
 
 that he was conscious in his own mind he had not any right to them, otherwise it is 
 
 Dickens, not likely that he would have delivered them without asserting his claim to them 
 J. & M. at that time or at all events when first upon his defence. I do therefore think he 
 is guilty of stealing the said carpenters' tools, and do accordingly adjudge.him to be 
 imprisoned two months in gaol, and put upon the works for that period. 
 The tools to be delivered to the prosecutor. 
 
 GEO. LEITH, 
 
 Lieutenant-Governor." 
 
 Greatly irritated at this decision of the Lieutenant-Governor, 
 Mr. Dickens, on the receipt of the papers, immediately wrote him 
 the following letter : 
 
 COUET OF AdATJLKT, 
 
 George Town, 
 May the 22nd, 1803. 
 
 •To 
 
 Sib, 
 
 Sib GEORGE LEITH, Babt. 
 
 Lieutenant-Governor of Prince of Wales' Island, 
 
 I have received the proceedings in the case of the Government v. Hough, which 
 I yesterday transmitted to you, and on perusing the same, I find that you have 
 convicted the said Hough of larceny, who had been by me acquitted in a regular 
 course of trial of that offence. 
 
 By the regulation of the 31st of August, 1794, the Superintendent for the time 
 being can arrest the execution of the sentence of the Magistrate, and can order a new 
 trial, but no j udicial power is given to the Superintendent, to convict a person acquitted 
 by the Magistrate by virtue of the said regulation, and I know not of any greater. 
 
 The sentence you have given, appears to me unwarranted by any power to you 
 given, with which I am acquainted, and totally inconsistent with any principle of civil 
 and criminal justice : I therefore hold it my sacred duty to represent to you, in the 
 strictest manner, the sense I entertain of this act, leaving you to order the execution of 
 your own sentence, in any manner you are pleased to direct, for I cannot in any man- 
 ner be instrumental to the punishment of a man whom I have found innocent. 
 
 After your perusal of this letter, in the event of your being pleased to order the 
 execution of your own'sentence, I have enclosed an attested copy of the proceedings in 
 this case, which I request you will transmit with due vigilance, with a copy of this let- 
 ter, to be laid before his Excellency, the Most Noble the Governor-General in Council, 
 by the Vigilant now under despatch ; since in my opinion justice will be deeply wound- 
 ed by your act. But let me again further beg leave to state, that the owner of the 
 goods apparently dying without a "Will, and without any heir or representative, and 
 there being no Ordinary on this Island, to whom the goods could be said pro tempore, 
 to belong, and the goods not being found in the possession of any one, — the prisoner was 
 tried for stealing the goods of a person unknown, and guiding myself by those general 
 principles, of the criminal law of England, which are not local but universal, and found- 
 ed on reasons everywhere applicable, I have decided this case according to what lord 
 Chief Baron Gilbert did in a case before him. He said : " An indictment might be 
 '' good for stealing the goods of a person unknown, but a property must be proved in 
 " somebody at the trial, otherwise it shall be presumed that the property was in the 
 " prisoner by his pleading not guilty to the indictment, for a man shall not be found 
 " guilty of felony, and hanged upon presumption." 
 
 My situation as Judge and Magistrate of this Settlement, having given me frequent 
 opportunities to observe the manifold inconveniences arising from the want of an Ordi- 
 nary at this place, on the 20th November, 1802, understanding you were going to Port 
 William, I addressed you on the service, and requested you would represent these incon- 
 veniences to His Exoellency, amongst others which I then pointed out 
 
 As since your return, you have not done me the honor of making any communica- 
 tion on this or any other of the many subjects respecting the administration of Justice 
 which m my opinion greatly call for regulation, I am under a necessity of acquainting 
 you, for the ^formation of His Excellency the Most Noble the Governor-tieneral in 
 Council, that.as i Have done so I shall continue to decide in criminal oases, upon the 
 general principles of .English Criminal Law, and the law of evidence received n English 
 Courts of Law, and if it is intended that I should deoide by any other law ™ if « i» 
 His Excellency's pleasure that your decisions should be according to Martial LW or 
 Secundem Arbxt, and severally those given by me, according to the general principles of 
 
1800-1805.] JUDICIAL— HISTORICAL. xht 
 
 the law of England, I hope to be honored with His Excellency's directions therein, that Lbith, 
 
 I may not hereafter decide any case contrary to your judgment or without being previ- 1800-1803. 
 ously instructed therein. — — 
 
 I have, &c, &., Dickens, 
 
 JOHN DICKENS, J- & M. 
 Judge and Magistrate. 
 
 In answer to the above, Mr. Dickens got the following curt 
 
 reply : 
 
 Pout Cobnwallis, 
 The 22nd Way, 1803. 
 To 
 
 JOHN DICKENS, Esq , 
 
 Judge and Magistrate, 
 
 &c, &c. 
 
 Sib, 
 
 I am directed by the Lieutenant-Governor to acknowledge his receipt of your letter 
 to him of this date. 
 
 I am, Sir, 
 Tour obedient servant, 
 W. E. PHILLIPS, 
 Secretary to the Lieutenant-Governor. 
 
 The following is also another illustration of the cases on re- 
 cord, where Mr. Dickens complained of interference by the Lieu- 
 ten an t-Grovernor with the discharge of his duties. The case, apart 
 from this circumstance, and its interesting nature, is also inserted 
 as illustrative of some of the early decisions given in the Colony. 
 Court of Adaulet. 
 2nd June, 1803. 
 Palangee v. Tye Ang 
 and 
 In the goods of Ethergee, deceased. 
 
 Palangee, by his bill of complaint, claimed the sum of 605 
 Spanish dollars from the defendant in virtue of a nuncupative 
 "Will of -the deceased, and alleged he was the cousin of the said 
 Ethergee, and had been specially requested by the testator to re- 
 ceive the aforesaid sum from the defendant Tye Ang, and appro- 
 priate the same to his [Palangee's] use. The defendant admitted 
 his indebtedness to the deceased, but denied all knowledge of the 
 plaintiff, and expressed his willingness to pay the money to the 
 Lieutenant-Governor, on his getting a receipt therefor, and on his 
 being indemnified against any future claims. 
 
 Mr. Dickens delivered the following judgment : 
 
 The complainant Palangee by his bill of complaint, alledging himself to be the re- 
 presentative of one Ethergee [who died on this island] claims and sots up a right to de- 
 mand and receive from the defendant Tye Ang, the sum of six hundred and five dollars 
 as due to the estate of Ethergee. 
 
 The defendant admits that he is indebted to the amount stated, to the estate of 
 Ethergee, but denies that the complainant is the legal representative of Ethergee, and 
 avers that the said complainant is not by any law in force at Prince of Wales' Island, 
 authorized to receive the assets of Ethergee, and that the said complainant cannot by his 
 receipt discharge the defendant from the said debt, if claimed hereafter by a legal repre- 
 sentative of Ethergee. 
 
 The facts proved in the cause, are the death of Ethergee at Prince of Wales' Island, 
 and that he made a nuncupative Will an hour before his death, which happened about a 
 mouth and fifteeudaysago, and in his own bouse in the house of One witness named 
 
xx 
 
 PREFACE. 
 
 [Chap. II. 
 
 Leith, Coorjee, and of the complainant, by which Will he gave his property to his brother at 
 1800-1803. Bombay, — and that thedeceased left a daughter at Surat is stated in the complainant's 
 
 . ' bill of complaint. The allegation in the Bill, that the complainant is the cousin of 
 
 Dickens, Ethergee is not substantiated by any evidence, but Coorjee deposes that the deceased de- 
 J. & St. sired the complainant to collect his debts and effects. Upon these facts, the Judge and 
 Magistrate is called upon to give a judicial opinion [under the Begulation of the 1st 
 August, 1794, by which the Judge and Magistrate is directed to hear and try actions of 
 debt, and all suits of a civil nature — and also under the instructions given to the Judge 
 and Magistrate to act upon the principles of the existing laws and regulations of this 
 island]— Whether the complainant can compel the defendant to pay the debt owing 
 by him, to the deceased's legal representatives, to the complainant in this cause : The 
 Judge and Magistrate thus situated, finds it necessary, to premise some material obser- 
 vations, before he delivers his judicial opinion in this cause, that the reason of that 
 judicial opinion may not be misunderstood. 
 
 1st. After the strictest enquiry for the existing laws and regulations of this island 
 upon the principles of which the Judge and Magistrate has been as aforesaid, directed 
 to frame his judgment, the Judge and Magistrate has ascertained, that Prince of Wales' 
 Island prior to its cession to the British Government was under the dominion of a Chief 
 who governed it in an arbitrary manner, and not by any fixed laws, and it does not 
 appear to the Judge and Magistrate that since the said cession, any code of civil mu- 
 nicipal law has been enacted by due and competent authority as the law of this island 
 for the government of the Judge and Magistrate in pronouncing a judicial opinion in 
 this cause. And it is certain that the Judge cannot find one single civil or municipal • 
 law so enacted, and the municipal laws of any other country, merely as such, cannot 
 have any legal force at Prince of Wales' Island. 
 
 2nd. The only law then that appears to be in force at Prince of Wales' Island, is 
 " The Law of Nature" — for Municipal law, or Civil law, by which the society at Prince 
 of Wales' Island may be governed, however much wanted, has hitherto escaped the 
 research, and has not been produced by the industry which the Judge and Magistrate 
 has been enabled to apply for its attainment. And the Judge "and Magistrate trusts 
 that that industry, however unsuccessful, has not been unobserved by the Supreme 
 power which rules this island. 
 
 3rd. But the law of nature is silent,- and gives no precepts respecting Wills, and 
 testaments, or rights of succession, or of inheritance. It affords no light upon these sub- 
 jects, or respecting the forms and precautions necessary to be observed in granting pro- 
 bates of Wills and Letters of Administration to intestates effects. These things are mere 
 creatures of civil or municipal law — when any of these things therefore, become the 
 subject of judicial controversy before the Court of Adaulet for this island, where is the 
 Judge and Magistrate to look for information ? He has no resource, but in his own 
 unassisted reason — Sed melius eit judicare secundum leges et literat quam ex proprid 
 scienti'% et scntenliti. 
 
 4th. It is true that Wills and testaments, rights of succession and inheri- 
 tance in most of the civilized countries of the world are regulated by the Civil and 
 Municipal law of each country — but then nothing varies more than the rights of 
 inheritance or succession, and the forms and precautions observed in granting pro- 
 bates of Wills and letters of administration to intestates' effects under different 
 national, and even under different provincial establishments. It is hence apparent 
 also that it is the power of the Civil, Municipal law, and that alone, which regu- 
 lates the succession to property ; and the different ceremonies requisite to make a 
 testament valid, and for granting probate thereof, as well as for granting letters of 
 administration to the effects of persons dying intestate, depend in civilized coun- 
 tries upon the Civil, Municipal, law alone, and not upon the unassisted reason of 
 the Judge. 
 
 5th. As all claim to the property of a deceased person therefore, must be 
 futile, if it is not founded on the positive Municipal or Civil law of the place, where 
 the property is placed, the " lexrei sitai," for the law of nature is silent thereon 
 and as Prince of Wales' Island is absolutely without any positive Municipal or 
 Civil law, and as the positive Municipal or Civil law of any other country cannot as 
 such have the force of law at Prince of Wales' Island, and if it could, as the posi- 
 tive Municipal or Civil laws of different countries greatly vary- What in this case 
 is the duty of the Judge and Magistrate— Where is he to find a Eule of decision P 
 Where a principle of selection ? 
 
 6th. It appears to the Judge and Magistrate, thut thus situated it is his pri- 
 mary duty to prevent injustice, cautiously to administer the sacred office commit- 
 ted to his charge, and to seek in the absence of positive Municipal Law and pre 
 cise instruction, some fair principle, wherever he may find it, which mav serve the 
 justice of the case, and if the Judge and Magistrate errs, it will be remembered 
 
1800-1805] JUDICIAL— HISTORICAL. xxi 
 
 " Humanum est errare," the duties lie has to perform are likely to embarrass a much Leith, 
 wiser person than he can pretend to be, and he has the consolation, that his errors 1800-1803, 
 
 are not without remedy, they can be rectified by the best informed and the highest 
 
 authority in India. " Dickens, 
 
 7th. To prevent tumults, and the good order of this island, from being dis- J- & M, 
 turbed, which must happen if cases of this nature were not decided by judicial 
 authority, since a variety of persons would contend about the. possession of property 
 left derelict by the death of its owner, the Judge an! Magistrate [without the assist- 
 ance of any Civil or Municipal law] has thoughthimself called upon to give a judi- 
 cial opinion in this case, although perhaps, it may, by higher authority, be thought 
 a case not within the Judge and Magistrate's jurisdiction. 
 
 8th. The Judge and Magistrate, who was taken from the English bar, where 
 he had the honor of being, by His Excellency the Most Noble the Governor-Gen- 
 eral, placed in this office, very naturally looks to the general principles of the law of 
 England, and whenever [by fair analogy, and considering the difference of circum- 
 stances of men and things at Prince of Wales' Island, compared to those in Eng- 
 land] the principles of either the Common or Statute Law of England can be 
 made subservient to the decision of cases brought before him, the Judge and Ma- 
 gistrate in the absence of positive Municipal, or Civil law means to avail himself of 
 that help which his knowlege of the laws of England may furnish in deciding such 
 cases. 
 
 9th. The Statute of Frauds and perjuries, that is to say, the 29th Charles 2, 
 Chapter 3, sections 19 and 20, furnishes a rule, of which the principle seems appli- 
 cable to the decision of this case. That Statute enacts : " That no nuncupative 
 " Will shall be good, where the estate bequeathed exceeds the value of £ sterling 30, 
 " if it is not proved by the oaths of three witnesses at the least — that were present 
 " at the making thereof — nor unless it be proved that the Testator at the time of 
 " pronouncing the same did bid the persons present, or some of them, — bear witness, 
 *' that such was his Will, or to that effect — nor shall it be proved till process hath 
 "first issued to call in the widow or next-of-kin to contest it if they think proper." 
 
 It is the opinion therefore of the Judge and Magistrate, - [as the complainant 
 has not proved himself akin to Ethergee, who has left a daughter at Surat, and a 
 brother at Bombay, nor offered any reasons why he should be entrusted with the 
 administration of the estate, even if he had proved himself akin to the deceased, 
 without giving good security that he will not embezzle the effects,, as is practised 
 in the Courts where testamentary causes are decided in the other parts of the BrU 
 tish Dominions, and as he has not in his bill offered to give that security, and as 
 the Nuncupative Will is not proved by the oaths of three witnesses who were pre- 
 sent at the making thereof] that the complainant's bill of complaint should be 
 dismissed, and the defendant released from further attendance on this Court. 
 
 John dickens, 
 
 Judge and Magistrate. 
 
 This decision was reversed by the Lieutenant-Governor, who re- 
 marked as follows : 
 
 Bt the LIETJTENANT-GOVEENOE. 
 June 3rd, 1803- 
 The defendant Tye Ang having admitted that he is truly indebted to the estate 
 of the deceased Ethergee, in the sum of Spanish Dollars six hundred and five 
 [605], and further that he is willing to pay the above-mentioned sum into the hands 
 of the Lieutenant-Governor of this island, on his having a receipt granted for the 
 same j and on his being indemnified by the said Lieutenant-Governor against any 
 claim that may hereafter be made on the part and behalf of any of the heirs or re- 
 presentatives of the said Ethergee, or of any other person or persons who may be 
 legally entitled to demand the same in a due course of Law : Therefore in order to 
 prevent any loss or detriment to the kin or heirs or representatives of the aforesaid 
 Ethergee, deceased, the Lieutenant-Governor is willing, in the meanwhile, 
 and until some person lawfully authorized shall appear hereupon to receive 
 from the defendant Tye Ang on the part and behalf of the said kin or 
 heirs or representatives, the said sum of Spanish Dollars six hundred and 
 five [605] into the Hon'ble Company's Treasury at this Island, and to grant 
 the defendant a receipt as required for the same ; and the defendant is therefore 
 ordered and directed to pay the above-mentioned sum into the Hon'ble Company's 
 Treasury on or before the 15th day of this present June 1803, when copy of this 
 decree, signed by the Lieutenant-Governor, shall be delivered to the defendant 
 Tye Ang as a certificate thereof, to serve as a receipt for the same, and an indemnity 
 
XX11 
 
 PREFACE. 
 
 [chap. It. 
 
 Leith, 
 1800-1803. 
 
 Dickens, 
 
 J. &M. 
 
 against all claims thereafter to be made upon or against the said Tye Ang. or his 
 heirs or representatives for paying the said sum of six hundred and five Spanish 
 Dollars as hereby required. 
 
 GEORGE LEITH, 
 
 Lieutenant- Governor. 
 
 This decree of the Lieutenant-Governor, was carried out in 
 opposition to the decision of Mr. Dickens, and the estate admi- 
 nistered by him. It may not he considered tedious to cite one 
 further case as illustrative of the nature of sentences passed at 
 this period for criminal offences ; the more so, as jurisdiction in 
 cases of perjury, seems to have been exercised very summarily, — 
 the prisoner being brought up immediately on the conclusion of 
 the case wherein perjury was said to have been committed, and 
 sentenced : 
 
 4th June, 1803. 
 
 The prisoner [Hoong Pah] was charged with having falsely 
 sworn on the above day, in a case wherein one Mabahayjo,s the plain- 
 tiff, and one Ghee Ghoo, the defendant, that he had seen the plaintiff 
 " put her mark to a cerbain paper-writing," in " the presence of 
 " Tiquo, Captain of the Chinese, whereas in truth and in fact, 
 " Tiquo, the Captain of the Chinese, was not present, &c, Ac." 
 
 Sentence : 
 
 Hoong Pah is convicted of the offence of wilful and corrupt perjury, and is 
 sentenced to be set in the Pillory opposite to the Captain China's house in George 
 Town, on Monday next, at 5 o'clock p. m., and to remain in the said Pillory for one 
 hour, and to have a paper put upon his head, written in the Chinese language and 
 character, ' for swearing falsely before the Judge,' and after he is taken from the 
 Pillory, the said Hoong Pah is to be publicly whipped, and to receive fifty lashes 
 in the usual manner, and on the 7th day of September next, the said Hoong Pah is 
 to receive another fifty lashes in the usual manner, and on the 8th day of December 
 next, the said Hoong Pah is to receive another fifty lashes in the usual manner, till 
 which last-mentioned day, the said Hoong Pah is to he imprisoned and put to 
 labour on the public works, and after that day he' is to be discharged, and the said 
 Hoong Pah is hereby for ever rendered incapable of being admitted as a witness, 
 in any case before the said Judge and Magistrate. 
 
 JOHN DICKENS, 
 
 Judge and Magistrate. 
 
 Unlike other decisions and sentences, no annotation of the 
 Lieutenant-Governor appears in this case, beyond the following 
 note by the Provost : 
 
 " On account of the bad state of health of the prisoner, the Lieut- Governor 
 has been pleased to respite the execution of the sentence till further orders. 
 
 June, the 6th, 1803. 
 
 J. BROWN, 
 
 Provost. 
 
 At this period, a serious discussion took place between the 
 Judge and the Lieutenant-Governor. The case wherein this arose, 
 was that of one Cauder v. Ibrahim, and wherein, a native Captain 
 had exceeded his jurisdiction, according to the' Lieutenant-Gover- 
 nor's "Instructions," dated 1st May, 1800, by dealing with a de- 
 mand exceeding $10, which case came judicially before Mr. 
 Dickens, who animadverted strongly upon it, as well as on the 
 
1800-1805.] 
 
 JUDICIAL-HISTORICAL. 
 
 powers granted to native Captains in such cases [a.] Angry cor- 
 respondence again ensued, the Lieutenant-Governor informing Mr. 
 
 [o.] As these " Native Captains" administered justice for such a number of 
 years after the foundation of the Colony, and as a matter of fact, formed part of an 
 institution recognised and controlled by the then Government, it will not be 
 thought out of place to give here a copy of the more recent Rules [redrafted on 
 those of 1794] under which they were guided, the more so, as the question of invest- 
 ing Native Chiefs and Village head-men, with certain powers over their own sect, 
 was but recently under the consideration of the Government. The following there- 
 fore cannot but prove interesting, and is taken from the Court Records : — 
 
 Instructions for Native Captains.* 
 
 Art. 1st. You are hereby appointed Captain of all People under the denomination 
 of in Pulo Pinang. 
 
 2nd. You are to keep good order among your People, to see that they behave 
 quietly and peaceably in their Habitations, as you will be answerable for 
 the same, and you will be protected and supported by Government in the 
 duty of your office. 
 
 3rd. You are to hold a Court at your own house twice a week on the days pre- 
 ceding the Cutcherry days. 
 
 4th. You are to try all petty causes, between people of your own tribe, Buch 
 as people quarrelling, fighting, or abusing each other, and all religious or 
 family disputes, you are to determine agreeably to the Laws of your own 
 Religion. 
 
 5th. In all cases of debt under ten Dollars, your decision shall be final. 
 
 6th. In all cases of debt, if the demand is for more than ten Dollars, and 
 either of the parties not satisfied with your decision, they may appeal to 
 the magistrate, after acquainting you with their intention so to do, and 
 you are to inform the Magistrate thereof, who will give them a hearing 
 the second Court day following. 
 
 7th. In all causes of appeal, the complainant is to deposit in the Magistrate's 
 Court, [or give security] one Court day previous to that on which the 
 cause is to be tried, five per cent, on the demand, if under five hundred 
 dollars, if above five hundred dollars as far as one thousand dollars, 
 four per cent., and all above one thousand dollars, three per cent. 
 
 8th. The money so collected to be kept in the Magistrate's office towards 
 defraying the expenses of paying the officers belonging to the same. 
 
 9th. On a cause being decided, the person who is cast is to pay the amount 
 of the deposit. 
 
 10th. You are to have two men to sit with you in your Court, and all disputes 
 are to be decided by the majority of voices. 
 
 11th. In order to prevent all causes of jealousy or discontent among your 
 People, the men for this office, are to be chosen as directed in the following 
 articles. 
 
 12th. On the first day of every month, you are to give in the names of twelve 
 creditable House-keepers to the Magistrate, and they are to be summoned ; 
 their names to be written on twelve pieces of paper and put in a box, and 
 the names of the first eight that are drawn out, those men are to sit with 
 you in your Court. One month, two of them sitting every week, and in 
 case any one is sick and cannot attend, one of the four whose names were 
 not drawn, is to attend in his place. 
 
 13th. The names of the eight men so chosen, to be published by beat of Gong, 
 and none of them to be exchanged but by consent of the Magistrate, who, 
 in case of emergency, will appoint one of the four whose names were not 
 drawn to act. , 
 
 14th. In case of any person appointed as above directed, refusing to attend 
 
 * " Chooliah and Malay." The " Instructions for the Elders of Chinese inhabit- 
 ants of Prince of Wales' Island," also, on record, differ but slightly. It would 
 appear that these instructions were originally written in the different native lan- 
 guages and that the Court copies of the " Instructions" were but mere translations) 
 
 judging from the following" On the 7th August 1801, Mr. Swain was 
 
 " so obliging as to translate for my private use, the instructions given by you to the 
 " Captain Malay, and I beg leave to add, that there was no English copy of your ins- 
 
 " tractions to the Native Captains, anywhere to be found "Mr, Dickens to 
 
 Sir Oeorge Leith, 13th June, 1803. 
 
 Leith, 
 1800-1803. 
 
 Dickens, 
 J. &M. 
 
XXIV 
 
 PREFACE. [ch»p.ll. 
 
 Lbith, Dickens that his remarks were improper and unbecoming, that he 
 
 1800-1803. was prepared to take upon himself the administration of Justice, 
 
 Dl ~ S; and of his intention to submit the papers in the matter to the 
 
 J. &M.' without shewing sufficient reason, he will be fined, the first time fire 
 
 dollars, the second time ten dollars and forfeit the protection of the Court 
 
 for six months, the third time he will he confined in the common Jail for 
 
 one month. ... L ■ j. 
 
 15th If the parties in dispute are of two different tribes, you are to appoint 
 two men of each tribe in dispute, and they may choose another person for 
 an Umpire, a majority of these five to determine, in all disputes under ten 
 dollars If above ten dollars and the parties are not satisfied with the 
 decision, they may appeal to the Magistrate, as directed in the seventh 
 
 16th. In case one of the parties complains to his Captain, that he thinks him- 
 self injured by the decision of the five People as above directed; the Cap- 
 tains of the two parties are to make the same known to the Magistrate, 
 who will order two men out of the eight of each caste that are in dispute to 
 sit with the Captain of the third caste, and the decision of the majority of 
 these five to be final. 
 
 17th. Yon are to keep Eegister of all Marriages, Births, and Deaths among 
 the people of your tribe,— for which purpose you are allowed a writer, and 
 you are to bring such Registers, and shew them to the Lieutenant-Gover- 
 nor every three months, on the first day of the month. 
 
 18th. Upon the arrival of any people of your tribe in the island, you are to 
 make the necessary enquiries about them and inform the Governor thereof, 
 and if any stranger comes to lodge in any man's house, if it be only for a 
 night, the landlord of the house is to give in to his Captain or those acting 
 under him, in writing the name and occupation of such person, as he [the 
 landlord] must be made answerable for the behaviour of such person. 
 
 19th. You are to attend the Magistrate's Court on Court days, and to bring 
 with you a Lebbie* who is qualified to administer oaths to such people as 
 may have occasion to swear in Court, and in case of any disturbances, dis- 
 contents or combinations among your people, you are to make the same ( 
 known to the Governor, and you are to see the prices of Eice, Paddy, &c, 
 settled, and to examine the weights and measures among the people of 
 your tribe.f 
 
 [Signed] GEO. LEITH, 
 
 Lieutenant-Governor. 
 
 Written by Order of the Lieutenant-Governor, Thursday, 1st May, 1800, 
 
 [Signed] "W. E. PHILLIPS, 
 
 Secy, to the Lieut.-Govemor. 
 
 * An order of Priesthood. 
 
 t This last Article was amended by the Lieutenant-Governor on the 3rd June, 
 1803, as follows :— 
 
 " In consequence of the increase of business at the Cutcherries of the Native 
 Captains, the Lieutenant-Governor is pleased to cancel that part of the 19th Article 
 of the Regulations for their guidance ; which orders them personally to attend the 
 Magistrate's Court, and to direct, that in future their Deputies only, with a person 
 qualified to administer oaths, attend the Judge and Magistrate on Court days. 
 
 By Order of the Lieutenant-Governor, 
 
 W. E. PHILLIPS, 
 
 Secretary. 
 
 FOET CoENWALLIS, 
 
 3rd June, 1803. 
 
 On the receipt of this " amended article," Mr. Dickens wrote the following : 
 
 Geobge Town, the 4th June, 1803, 
 To 
 
 Sib GEOEGE LEITH, Baronet, 
 
 Lieut. -Governor of Prince of Wales' Island. 
 Sib, 
 
 1. Upon my return from Court, I received a letter signed W. E. Phillips, 
 Secretary to the Lieutenant-Governor, stating the directions of the Lieutenant- 
 
1800-1805 •] 
 
 JUDICIAL— HISTORICAL. 
 
 xx* 
 
 Governor-General in Council [a.J Mr. Dickens thereupon, ob- 
 tained permission from the Lieutenant-Governor, and addressed 
 the Government of India. No apology is here offered for insert- 
 ing Mr. Dickens' letter in full, as it . sets out entirely the state of 
 the law, and the condition of the Settlement of Penang, from its 
 earliest days. Some of the cases that had formed the subject of 
 controversy between Mr. Dickens and the local Government, and 
 which have been hereinbefore noticed, as well as the case that 
 gave rise to the letter, [Gauder v. Ibrahim] will be found set out 
 in the following : 
 
 Service. 
 
 Prince or Wales' Island, 
 
 Court of Adaulkt, 
 George Town, 21st June, 1803. 
 To 
 
 JOHN LUMSDEN, Esq., 
 
 Chief Secretary to Government, 
 
 Fort William. 
 Sib, 
 
 1 . It is with the express permission of the Lieutenant-Governor of this Island, 
 that I now have the honor of addressing this letter to you, and for the purpose of its 
 contents being submitted to the consideration of his Excellency the Most Noble the 
 Governor-General in Council. 
 
 2. The Lieutenant-Governor who has assured me tint he will transmit this my re- 
 presentation will probably remark thereon, but if the Lieutenant-Governor should deny 
 the facts as stated by me, I must beg of you to lay before his Excellency in Council my 
 request that I may be allowed to substantiate by evidence any facts stated by me in 
 this letter which may be contested by the Lieutenant-Governor. 
 
 3. I find it necessary to premise that his Excellency in Council, on the 23rd Juno, 
 1800, appointed me Judge and Magistrate of this island, honouring 1113 at the same time 
 by recording that I had practised with considerable reputation at the bar, and that I was 
 
 Leith. 
 1800-1803. 
 
 DlCKENS, 
 
 J. & M. 
 
 Governor, that he had thought proper to alter the regulations existing when I 
 arrived at this place respecting the attendance of the native Captains at the Magis- 
 trate's Court, and that for reasons assigned in a paper enclosed, viz., in consequence 
 of increase of business at the Cutcherries. 
 
 2. I request that you will be pleased to signify this alteration in the existing 
 Regulations to His Excellency the Most Noble the Governor-General in Council, as 
 I was directed to act upon the principle of the existing regulations, and of course 
 to act with the assistance of the native Captains of which I am now about to be 
 deprived. 
 
 I have the honor, &c., 
 
 JOHN DICKENS, 
 
 Judge and Magistrate. 
 
 [Mr. Phillips, on the 6th June, by direction of the Lieutenant-Governor, merely 
 acknowledged receipt of this letter.] 
 
 [a] *' I beg leave to say, that my letter to you was not written with 
 
 any design whatever to convey disrespect to you, on the contrary, it was written 
 with an intention of observing all the respect due to the high station you fill, but 
 at the same time to uphold the respect due to the high station with which I also 
 have been honored. And with the utmost sincerity do I return you my thanks for 
 the communication there made of your intention of laying that letter before His 
 
 Excellency the Most Noble the Governor-General in Council I am pleased to 
 
 find that as " Assistant to the Lieutenant-Governor" [Mr. Dickens' predecessor,] 
 that gentleman executed the duties of that 'office in obeying the Lieutenant-Gover- 
 nor's orders, but I cannot admit that it is the duty of the Judge and Magistrate 
 implicitly to obey the orders of the Lieutenant-Governor where they appear to him 
 
 to contravene the existing laws and regulations of this Island " [Extract from 
 
 Mr. Dkke.ru' letter of 17 tn Jun«, 1803, to Sir Geo. Leith { Bt., in reference to ooom.] 
 
xxn PREFACE. Wh»p. n- 
 
 Lmth. fully qualified for the discharge of the judicial duties of this island now become labori- 
 1800-1803. ous and important— that at his Excellency's desire, personally communicated to me, I 
 
 prepared some observations which, on the 1st October 1800, I humbly submitted for the 
 
 Bickbnp, oonsideration of his Excellency in Council with a view to the enacting of certain regu- 
 J. & M. lations for the administration of Civil and Criminal Jurisprudence, and for the 
 establishment of Courts of Civil and Criminal jurisdiction and of an efficient 
 Polioe at Prince of Wales' Island— that on the 22nd January 1801, 1 humbly submit- 
 ted for the oonsideration of his Excellency in Council some additional observations on, 
 the same subject*— that on the 30th April 1801, I was directed to proceed to this Settle- 
 ment by the first favourable opportunity, and on my arrival here, to enter upon the 
 discharge of the duties of the offioe to which I had been appointed, and to continue to 
 act upon the principles of the existing laws and regulations of this island until further 
 orders— that on the 27th t August 1S01, I arrived at this Settlement— that neither 
 upon my first arrival, or at any time since, did the Lieutenant-Governor by word of 
 mouth or in writing, communicate to me or converse with me about the duties of the 
 office of Judge and Magistrate, except that I was soon after my arrival, told by the 
 Lieutenant-Governor's Secretary, that the whole of the Police establishment was under 
 the immediate orders of the Lieutenant-Governor himself, and that neither that estab- 
 lishment, nor the native Captains were under the orders of the Magistrate. 
 
 4. The Gentleman who officiated as Magistrate at the time of my arrival, was 
 the first Assistant of the Lieutenant-Governor, and it was his duty as an assistant 
 to the Lieutenant-Governor to carry the Lieutenant-Governor's orders into effect, 
 but I was not appointed an assistant to the Lieutenant-Governor, and no doubt 
 because the wisdom of His Excellency in Council foresaw that the best security for 
 the impartial administration of justice in an island where the government is often 
 virtually interested in the decisions of the Judge, was the independency of the 
 Judge. In my letter therefore to the Lieutenant-Governor hereinafter mentioned, 
 I expressed my surprise that magisterial authority was withheld from the Magis- 
 trate, but as regulations for the island were daily expected from his Excellency in 
 Council, at that time I acquiesced without representing the circumstance of the 
 Police establishment [from the lime of my arriv al] being separated from the autho- 
 rity of the Magistrate, and of the native Captains being then made independent of 
 the Magistrate. It is now however my duty to state expressly for the information of 
 his Excellency in Council that from the time of my arrival here in August 1801 to 
 this date, — although I was appointed Magistrate of the island by the authority of 
 his Excellency in Council, I have not been allowed to perform the functions of a 
 Magistrate by the immediate interference of the Lieutenant-Governor and his 
 Secretary, and. that the name of Magistrate has alone appertained to me. 
 
 5. The Lieutenant-Governor did not furnish me with any copies of any exist- 
 ing laws or regulations. The Gentleman who acted as Magistrate, on my arrival, 
 gave me no material information of any kind relating to the duties of my office, and 
 the only papers which can in any respect be supposed to be the existing laws and 
 regulations of the island are the following documents — " A letter of the Governor- 
 " General in Council, dated 1st August 1794, addressed to Mr. Light, some procla- 
 " mations, advertisements, and regulations respecting the Polioe, the convicts, the 
 ■" bazaar, the management of cattle, the articles under which the revenue is formed, 
 " and the registering of mortgages with perhaps some less important articles that 
 " I do not now recollect." These are written in a book which was delivered to me 
 by the former Magistrate at the time of my arrival, and these are the papers which 
 can be supposed the existing laws and regulations of the island, which, from the 
 time of my arrival until this day [except the Lieutenant-Governor's instructions to 
 the native Captains] have been by any one communicated to me either directly or 
 indirectly, and I have not been able npon my own researches to discover any other 
 existing laws or regulations of this island. 
 
 6. His Excellency in Council has been heretofore informed, that Prince of 
 Wales' Island prior to its cession in 1785 was under the dominion of a chief who 
 governed arbitrarily and not by fixed laws. It is now my painful duty to state that 
 it has so continued to be governed without fixed laws, for upon the hour of my 
 arrival on this island, there were not any civil or criminal laws then in existence, 
 and there are not now any municipal, civil or criminal laws in force on this island. 
 
 • These most interesting documents, will be found published at length in the April 
 number of the Journal of Indian Archipelago, 1851, p.p. 193-208. 
 
 t This is evidently a mistako, although taken from Mr. Dickens' own manusormt 
 for the records and some of Mr Dickens' own letters shew that he arrived here on the 
 7th, e. j. see foot-note under heading Instruction* for Native Captains, ante p xxiii. 
 
mo-1801.] JUDICIAL-HISTORICAL. xnii 
 
 The law of nature is the only law declaring crimes and respecting property, which Leith. 
 to my knowledge, at this day exists at Prince of "Wales' Island,— and as Judge, it 1800-1808. 
 
 is the only law which I can apply to criminal or civil suits brought in judgment 
 
 before me — but as the law of nature gives me no precepts respecting the right of Dickens, 
 
 disposing of property by wills and testaments, the rights of succession, and inherit- J. & M. 
 
 ance, and the forms and precautions necessary to be observed in granting probates 
 
 of wills and letters of administration to intestates effects or respecting many other 
 
 things which are the subject of positive law, I have often been much embarrassed 
 
 in the execution of my duty as Judge in the Court of justice in which I preside, 
 
 and many cases there are in which I am utterly unable to exercise jurisdiction. 
 
 7. The cultivation of this island, the increase of its commerce, and of its popula- 
 tion, has made it necessary that fixed laws of property as well as laws declaring what 
 acts are crimes, should be promulgated by due authority. The inhabitants before my 
 arrival had, I am told, their causes more quickly decided, and summary hearings no 
 doubt, have their advantages, but my judgments until confirmed are not valid. Formal 
 and plenary proceedings are therefore now necessary, not only to protect the liberty and 
 property of the people, but also to protect the character of the Judge, who must shew 
 on the face of his judicial proceedings the whole subject-matter of his decisions. This 
 creates to me incalculable labor and some delays, and it has been one of the causes of 
 my addressing his Excellency in Council, and the Lieutenant-Governor of this island, 
 with a view to the enacting of a Code of Criminal and Civil Municipal Law. 
 
 8. Thus, on the 31st August, 1S01, 1 addressed a letter to the Lieutenant-Governor, 
 a copy of which letter I had heretofore the honor of transmitting to his Excellency in 
 Council, and I now beg leave to refer thereto for further particulars. Thus, on the25th 
 October, 1801, 1 represented to his Excellency in Council that to prevent disturbance and 
 tumult, a positive law was immediately requisite, declaring the rights of succession and 
 inheritance ; the law of wills, and the mode of granting probateB of wills and letters of 
 administration to the effects of persons dying intestate. And that it was necessary 
 that the Magistrate or some other person should be empowered as Ordinary to take 
 possession of the real and personal property of persons dying intestate on the Island, or 
 where they left executors who were absent, and to hold the same in usum jus hdbentis, 
 till a proper person appeared to administer the estate, not only because great frauds in 
 this respect were said to prevail, but because the creditors of the deceased could not 
 obtain payment of their just debts, no one appearing to administer, and no one being 
 authorized to act in the premises. And thus again, I ventured to address his Excellency 
 in Council on the 1st and 23rd January — on the 6th and 13th February, and on the 1st 
 March, 1802, and I now beg leave for further particulars to refer to the said letters, and 
 their several and respective enclosures, which are I believe, Sir, on record in the Office 
 of the Chief Secretary to the Government at Fort William. 
 
 9. On the 6th May, 1802, 1 had the honor of receiving a letter, dated 28th January, 
 1802, signed C. K. Crommeliu, Secretary to the General Public Department, informing 
 me by the directions of the Vice-President in Council, that all my letters should be 
 addressed to the Lieut. -Governor, on whom it would depend, if he should deem it proper, 
 to transmit them to Government, with such observations as he might judge it to he 
 necessary to submit, respecting them. 
 
 10. On the 7th May, 1802, the Lieutenant-Governor requested my attendance 
 at the Government House, and there communicated to me the contents of a letter 
 addressed to the Lieutenant-Governor by the directions of the Hon'ble the then 
 Vice-President in Council, and dated the* February 1802, and signed C. E. 
 Crommelin, Secretary, by which letter the Lieutenant-Governor was desired with 
 the least possible delay, and with the assistance of the Judge and Magistrate, to pre- 
 pare and transmit for the approval and. confirmation of his Excellency in Council 
 [and without waiting for the completion of the whole code thereby required] 
 Drafts of such laws and regulations, as most urgently required legal provision ; 
 even on this occasion, the Lieutenant-Governor did not honor me with any commu- 
 nication of his sentiments, but preserved such a solemn silence on the subject 
 referred to our mutual labors, by the letter of Mr. Secretary Cronimelin, that I con- 
 fess I was at that time greatly surprised. Yet as Mr. Secretary Crommelin's letter 
 to me had informed me, that no communication was to be made to his Excellency 
 in Council, but what the Lieutenant-Governor deemed proper, I contented myself 
 with drawing " A Regulation for the punishment of certain crimes and misdemeanors 
 " therein mentioned, and which should or might be committed at any time after 
 " the due promulgation of that regulation by any person or persons therein parti- 
 " cularly mentioned, and described at Prince of Wales' Island, the islands and terri- 
 *' tory thereto subordinate, and the high seas within the limits and jurisdiction 
 
 * Date left blank in Court copy. 
 
Mviii PREFACE. [ch«p.n. 
 
 Leith. "thereof." And another ''Regulation for the establishment of an efficient Police 
 1800—1808. " at Prince of Wales* Island, the islands and territory thereto subordinate. And 
 
 as the Lieutenant-Governor did not make any voluntary communication of his 
 
 Dickens, sentiments on the subject mentioned in Mr. Crommelin's letter, the Judge and 
 J. & M. Magistrate, did not think it either respectful to the Lieutenant-Governor, or fit for 
 the Judge and Magistrate to intrude upon the Lieutenant-Governor [when the 
 Judge and Magistrate was at the Government House] his unrequired sentiments on 
 the subject; but on the 1st June, 1802, I addressed a letter to the Lieutenant- 
 Governor conveying at large my sentiments on the Civil Code required by Mr. 
 Crommelin's letter, and transmitting at the same time the drafts of the two aforesaid 
 regulations, and requesting that the Lietenant -Governor would transmit a copy of 
 my letter of the 1st June, 1802, and the drafts of the aforesaid two regulations 
 if he deemed it proper so to do to his Excellency in Council. In my letter of the 
 1st June, 1802, having detailed at large my ideas on the subject, I then also requested 
 that the Lieutenant-Governor would furnish me with his specific instructions for the 
 Civil Code, or that he would generally refer the subject for the decision of his Ex- 
 cellency in Council, as to the principles upon which it was to be framed. To that 
 letter of the 1st June, 1S02, the Lieutenant-Governor did not deem it proper to 
 return me any answer. No, not even an acknowledgment of its receipt, and to this 
 hour, I am ignorant whether he has or has not transmitted it or the aforesaid regu- 
 lations to his Excellency in Council, the Lieutenant-Governor having ever since 
 that time preserved an alium silentium on this subject. 
 
 11. When the Lieutenant-Governor was about to return to. Fort William, that 
 is on the 20th November, 1802, again I addressed to him a public letter represent- 
 ing at large the inconveniences resulting to the society here settled from the want 
 of fixed Civil laws, and praying that the Lieutenant-Governor would be pleased to 
 lay these inconvenienccsbefore his Excellency in Council, I am at this day ignorant 
 whether the Lieutenant-Governor has complied with the wishes of the people and 
 my request ; on this subject also he has preserved an altum silentium. 
 
 12. I now come to the time when Mr. Phillips, Secretary to the Lieutenant- 
 Governor, took charge of this Government. The Lieutenant-Governor left this 
 island on the 2nd December, 1802 ; — and the late acting LieutenantGovemoron 
 the 18th December, 1802, of his own authority, promulgated a regulation * 
 which, on the 2nd April, 1803, he required of me.as Judge and Magistrate of this 
 island to receive in the Court of Adaulet, and to act therein in a criminal case 
 wherein a man of the name of Carni was charged with theft. Previous to the pro- 
 mulgation of this regulation, that is to say, on the 14th December, 1802, I was con- 
 sulted by the late acting Lieutenant-Governor on the subject of passing such a 
 regulation, and I then gave my opinion that the late acting Lieutenant-Governor 
 had not any legal power to promulgate any such regulation as law, previous to its 
 being approved and confirmed by His Excellency in Council ; and on the 3rd April, 
 1808, 1 had occasion to repeat that opinion in a public letter that, day written by 
 me to the late acting Lieutenant-Governor. On the 5th April, 1803 the said Carni 
 was tried before me as Judge in the Criminal Court, and acquitted of the said charge 
 alleged against him, because no evidence whatever was produced against him 
 which, upon the general principles of evidence received in the Courts of England, 
 and on the Continent of Europe could justify a verdict of guilty. The late acting 
 Lieutenant-Governor, after Carni had been tried and acquitted before me as afore- 
 said, sent for Mr. Manington, his second assistant, and examined him at the Gov- 
 ernment House in the absence of Carni, and then, upon the second assistant's 
 deposition, found Carni guilty of offending against the said regulation of the 18th 
 December, 1802, and sentenced Carni to 4 months' imprisonment and hard labor on 
 the public works, and the late acting Lieutenant-Governor actually carried that 
 sentence into execution. As the late acting Lieutenant-Governor heretofore, has 
 informed me that he would transmit the proceedings in the case of Carni and the 
 correspondence between us on that subject to his Excellency in Council, it is only 
 necessary for me now to remark that I refused to receive the late acting Lieutenant- 
 Governor s regulation of the 18th December, 1802, as «, law in the Criminal Court 
 of Justice in which I sat as Judge— first— because it had not been approved and 
 confirmed by his Excellency in Council, and secondly, because it appeared to me 
 unjust, unreasonable, and repugnant to the laws of the realm of England. 
 
 13. On the 21st April 1803, the late acting Lieutenant-Governor addressed to 
 me a public letter stating that in order to prevent delay in the prosecution of 
 revenue causes [at present unavoidable as it was there said! in the- Adaulet 
 from the multiplicity of business brought before that Court, the late actine Lieute- 
 nant-Governor had thought it expedient to insert a clause in the regulations for the 
 
 * ante p. 15. 
 
1100-1808.] 
 
 JUDICIAL-HISTORICAL. 
 
 ZXlZ 
 
 farms of the approaching official year signifying that all such causes would in future 
 be heard by the first Civil Assistant, or such other officer of Government as the 
 Lieutenant-Governor might nominate for tha.t purpose, whose proceedings would 
 be submitted to the Lieutenant-Governor for his sanction or disapproval, and on 
 that occasion I thought it my duty to state in reply, * that the clause referred to, 
 appeared to me likely to affect the dignity and efficiency of the Office of Judge and 
 Magistrate, and the purity of the administration of justice in this island, — and I 
 now desire to state for the information of his Excellency in Council, that there were 
 no caust-s at that time in arrear in the Court of Adaulet, that I had never complained 
 to the late acting Lieutenant-Governor of want of leisure to hear revenue causes ; 
 and that from circumstances I am induced to think the reason assigned, that is to 
 prevent delay, was merely ostensible. I beg leave also to submit to his Excellency 
 in Council, my opinion on the spirit of this clause, which seems contrary to the 
 principle on which approved writers state, all revenue laws should be framed, — 
 which is, that juBtice-should be the primary,- and revenue only the secondary object 
 of such laws. To effect this, the Judge should be as independent as possible, of 
 both the parties to a revenue cause, — but in a question between a farmer of the 
 revenue, and a subject of the Government, the farmer of the revenue always repre- 
 sents, that if he is not supported in his prosecution of abuses, he will be unable to 
 pay his rent, and, although the farmer of the revenue is the nominal complainant, 
 it generally happens in point of fact .that the interest of the Government is involved 
 in the cause. Ijcannot therefore think that justice was likely to be better adminis- 
 tered in revenue causes, by an assistant to the Lieutenant-Governor [whom I do 
 not mean in any manner to disparage] than by a Judge who would act indepen- 
 dently of the orders of the Lieutenant-Governor. 
 
 14. I now come to the period when the Lieutenant-Governor returned to this 
 island, on the 12th May, 1803, and I had flattered myself that he would have returned 
 with a code of laws and regulations. When I was disappointed in this hope, Istill 
 ventured to think that from his known access to his Excellency the Most Noble the 
 Marquis Wellesley, I should at least have received some communication from the 
 Lieutenant-Governor, making it easier for me to proceed in the laborious task of 
 deciding in the Court of Adaulet, such causes as are the subject of positive law, and 
 not of the law of nature, but again I was disappointed. I testified the greatest res- 
 pect to the Lieutenant-Governor on his return to this island on the 12th May last, 
 but it was impossible for me not to observe the marked coolness with which, upon 
 my first visit of ceremony, I was received by the Lieutenant-Governor. I lamented 
 the cause, for I supposed the late acting Lieutenant-Governor previous to the Lieu- 
 tenant-Governor's disembarkation, had communicated our correspondence in the 
 case of Carni, and to this communication, I imputed my cold reception by the Lieu- 
 tenant-Governor, but whatever my private feelings were, I did not suffer any other 
 consideration than that of public Juty to influence my public conduct as 
 Judge. Soon afterwards, on the 21st May, the case of Hough occurred. 
 Hough was accused of theft, and tried before me, and acquitted for the 
 same reasons as Carni was acquitted, — the charge not being proved. And 
 the Lieutenant-Governor did in Hough's case, what the late acting Lieuten- 
 ant-Governor had done in the case of Carni. I therefore thought it my duty 
 to request the Lieutenant-Governor to lay before his Excellency in Council, a copy 
 of the proceedings in Hough's case. But as the Lieutenant-Governor did not deem 
 it proper to communicate to me, whether or not he would, according to my request, 
 transmit the proceedings to his Excellency in Council, I am ignorant of his inten- 
 tions therein. I further beg leave to state for the information of his Excellency in 
 Council that, on the 2nd June, 1803, the case of Palangee v. Tye Angf, came before 
 me in the Court of Adaulet', and the plaintiff's bill wasdismissed, but the Lieutenant 
 Governor afterwards, directed the defendant to pay a sum of money into the Treasury, 
 and actually administered to the effects of one Ethergee, deceased, named in the 
 plaintiff's bill, without any communication with the Judge on the subject, the Secre- 
 tary of the Lieutenant-Governor giving his directions immediately to the Provost. 
 
 15. On the 7th June, 1803, the cause of Cauder v. Ibrahim % came on before 
 me, in the Court of Adaulet, and the proceedings in this cause, with the correspond- 
 ence between the Lieutenant-Governor and the Judge and Magistrate, [as I under- 
 stand,] by the Lieutenant-Governor will be herewith transmitted. In this case, it 
 will appear, that a question incidentally arose on a paper promulgated on the 1st 
 May, 1800, by the Lieutenant-Governor, which paper was entitled " Instructions to 
 
 * Letter dated 22nd April, 1803, duly recorded, but not here given, 
 t Buprd. p. 19. 
 X See p. 22. 
 
 Leith. 
 1800—1803, 
 
 Dickens, 
 
 J. &M. 
 
XXX 
 
 PREFACE. 
 
 [Chap. II. 
 
 Lmth. the Native Captains—," and it will appear that the Lieutenant-Governor thought 
 1800—1803. proper after a period in the cause, to depart from the accustomed mode of deliver- 
 
 ing judicial opinions, and directed his Secretary to write to me a letter, in which 
 
 Dickens, I am addressed rather as if I was an assistant to the Lieutenant-Governor, and 
 
 J. & M. subject to his orders, than as Judge and Magistrate of this island, and in which 
 I am questioned as if I had committed some fault by omitting some act, which I 
 ought to have done, and which seems to have been some act supposed necessary to 
 give effect to the Lieutenant-Governor's instructions to the native Captains,— but 
 on this head, I beg leave to refer to the letters themselves, which will shew jthe 
 facts. By Mr. Secretary Phillips' letter, dated the 14th June 1803, the Lieutenant- 
 Governor has charged the Judge and Magistrate, in discussing this incidental 
 question [originally raised in the cause of Cauder v. Ibrahim, and revived in the 
 correspondence] with making improper, and unbecoming observations, and, by 
 Mr. Secretary Phillips' letter, dated the 17th June, the Lieutenant-Governor has 
 charged the Judge and Magistrate with writing to the Lieutenant-Governor with 
 an evident design of conveying disrespect to him, and the Lieutenant-Governor has 
 therein declared his intention of submitting the proceedings in the case of Cauder 
 v. Ibrahim, and the correspondence on the incidental question which thereon arose, 
 to his Excellency in Council. It is therefore, that I now request, that you will 
 assure his Excellency in Council, that I am absolutely incapable, of such weak, 
 unmanly, and unbecoming conduct as that imputed to me, that is to say of inten- 
 tionally writing in my official character of Judge, anything unbecoming, improper, 
 and disrespectful to the Lieutenant-Governor ; that I feel assured his Excellency 
 in Council will consider my language, though manly and firm, yet to be decent and 
 respectful, and such as became the Judge and Magistrate to write on that occasion. 
 Permit me to add that I felt myself bound by every sense of duty and gratitude to 
 his Excellency in Council [who had done me the high honor of appointing me to the 
 office of Judge and Magistrate, and of recording to my credit the reason of this 
 appointment] to resist every indignity offered to the office of Judge and Magistrate. 
 And I beg you to assure his Excellency in Council, if I have erroneously viewed 
 this subject by being placed too near it, that I have only to answer for the imper- 
 fection of my language, for my intention certainly never was to write anything dis- 
 respectful to the Lieutenant-Governor ; and I trust the conduct I have observed 
 since my appointment to the office of Judge and Magistrate will repel this accusa- 
 tion. On this head, I appeal to the Lieutenant-Governor himself, and I am not 
 afraid the Lieutenant-Governor can object to me, misconduct of any kind, — if he can, 
 I do not on this occasion, implore his forbearance, but I greatly lament, that the 
 necessary effect of the treatment I have received, may be to bring my jurisdiction 
 into contempt, and to throw suspicion on my character. 
 
 16. I beg of you to assure his Excellency in Council, that nothing less than 
 an occasion in which the welfare of thiB society, and my own character are involved, 
 would have led me to take up so much of his time, as must be consumed in hear- 
 ing the contents of this letter, — but on the letter itself, this apology must rest, if 
 its contents have not the importance which I have annexed to them, I confess I am 
 without any other apology. 
 
 I have, &c, 
 
 JOHN DICKENS; 
 
 Judge § Magistrate. 
 
 Nothing in the records can be found to shew what steps were 
 taken in consequence of Mr. Dickens' letter to the Government of 
 India, but no doubt, it hastened the new arrangements which 
 were made in 1805, for the Government of the Island. The re- 
 cords however, contain endless correspondence between Mr.Dickens, 
 the Lieutenant-Governor and the Government of India, in con- 
 nection with the state of the law, in regard to which, Mr. Dickens 
 seems to have been determined to bring about an improvement. 
 He prepared and submitted regulations, which were forwarded to 
 the authorities in India, and by the latter returned to Penang for 
 further information or otherwise — time thus went on without amy 
 change being effected, and some of the draft regulations are still 
 to be found amongst the records of the Court in Penang. 
 
1800-isoj.] JUDICIAL— HISTORICAL. xxxi 
 
 The following, written by Sir George Leith in 1804, shortly Lkith. 
 after his relinquishment of duties in Penang, apart from shewing 180 ~~ 18 03 - 
 the state of the law during his tenure of office, especially in its Dickens, 
 application to Europeans, goes in support of what has already J. &• M. 
 appeared herein, and moreover, most forcibly shews, what, to this 
 day is a fact, how little imprisonment acts as a deterrent to Asia- 
 tics generally: 
 
 " The total want of an efficient Code of Civil and Criminal Laws, has long 
 been severely felt at this Settlement. In the great variety of people who compose 
 its population, it must be supposed, that numbers will readily embrace the op- 
 portunity here unfortunately presented to them, of practising the most nefarious 
 acts, when they are sensible, no power exists to coerce or restrain them. This 
 observation applies particularly to all those who are not included under the 
 general, but indefinite expression of natives, as no European can be imprisoned 
 for debt, nor even sued for it ; while on the other hand, he has the power of 
 recovering any money which may be due to him from any native : that is, every 
 man who is not considered as an European ; and the consequences naturally to be 
 expected from such a state of things, have been but too often experienced. No 
 difficulty has ever occurred in settling, even by the present defective Eegulations, 
 every dispute of a civil nature, wherein natives only were concerned, or where- 
 they were only defendants ; but then, there is no redress for them against the 
 many usurious and shameful practices which some Europeans are but too ready to 
 employ ; nor can one European recover against another, in the Court established 
 here, even upon the clearest and most undisputed plea. 
 
 The want of a Criminal Code has been also a serious evil to the community at 
 large : many persons are now, and have been for a long time , confined in Jail, 
 charged with Capital Crimes, without the means of bringing them to trial. * 
 Most of these above alluded to, are confined for murder, and a very large majority 
 of them, upon their own confession ; and the rest have been confined upon such strong 
 presumptive evidence, as rendered it impossible to liberate them ; and enormities 
 have been committed but too often, which are too shocking to mention ; and there 
 is too much reason to fear that these will frequently be renewed, unless due means 
 are provided for the punishment of such crimes in the manner they deserve ; and 
 that as soon after their commission as a due attention to Justice will admit. 
 
 Imprisonment for any length of time, however dreadful the idea is to an European, 
 is by no means considered by the natives of Asia in general, in the same light, and 
 least of all perhaps by a Malay, who, while he is fed, and permitted to sleep undis- 
 turbed, cares very little for the loss of his liberty. Most of the murderers are Malays. 
 
 The Lieutenant-Governor was ordered in his Instructions, to frame a Code of 
 Laws for the future government of the Island : He accordingly transmitted a 
 draft of some Eegulations, for the better administration of justice in Civil causes, 
 and in Criminal ones, where compensation could -be made by damages. 
 The subject of Criminal Law relating to Capital Offences, was not entered upon. 
 The great and important political events, and the variety of pressing business 
 which constantly occupy the attention of the Supreme Government, have hitherto 
 prevented these Eegulations from being promulgated. The Code was drawn up 
 with every possible degree of care and attention, and with the most anxious 
 solicitude, to offer a remedy for the many evils which now exist. Defective as the 
 proposed Eegulations undoutedly were, it was nevertheless hoped they might do 
 some good, and serve till a more perfect Code could be framed. 
 
 In making Eegulations for the interior Government of Prince of Wales' Island, 
 the most particular attention should be paid to its situation ; to the People who 
 compose it3 population ; their Habits, Manners, Customs and Prejudices, should be 
 consulted + ; everything which relates to their Eeligious ceremonies j domestic dis- 
 putes, and recovery of debts among each other to a certain amount, ought to be 
 left to themselves, but under fixed and well defined Eules and Eegulations, which 
 should be made as public as possible, to prevent a deviation from them. The great 
 division of the natives, as at present, should each' have a Captain, whp becomes more 
 
 * A system which lasted till the proclamation of the Charter — see § 92 of 
 Governor Dundas' Despatch, 12th November, 1805, infra. 
 
 t See different Charters— also see § 69 of despatch of Court of Directors, Chap. 
 Ui. infrdi. 
 
xxsu 
 
 PREFACE. 
 
 [Ohap. Ir. 
 
 FabQTTHAB 
 1804—1805. 
 
 Dickens, 
 J. &M. 
 
 immediately responsible for their conduct ; the beneficial effects of such an Esta- 
 blishment are too well-known to require to be particularly enumerated ...."« 
 
 Sir George Leith was succeeded by Mr.' Robert Farquhar as 
 Lieutenant-Governor on the 1st of January, 1804. Sir George 
 Leith signed the Court Books for the last time on the 31st 
 December, 1803. Mr. W. B. Phillips continued as Secretary to 
 the Government. In a letter to the Governor-General, dated 16th 
 April, 1804, Mr. Farquhar alluded to the want of reform in the 
 administration of justice, he said: — 
 
 " § 9. With respect to the internal economy of the Government, I feel it my 
 " duty to submit to your Excellency's attention, the great and increasing diffi. 
 " culties that this island labors under, from its remaining without any regular 
 *' Courts of Jurisdiction. The state- of the Police is so lax and inefficient that 
 " neither persons nor property are secure, and crimes and misdemeanors are daily 
 " committed with impunity, from the want of adequate powers on the spot to 
 " punish delinquents according to their deserts. As Your Excellency however is 
 " fully informed of the evil consequences resulting to this Settlement from the 
 '' want of a code of regulations to enforce the observance of laws, and a respect 
 " for the peace of society, and as several plans have already been submitted to Tour 
 " Excellency's consideration, I shall not again intrude further than to respectfully 
 " solicit the early transmission of Your Excellency's orders on this subject." 
 
 and on the 27th September, 1804, Mr. Farquhar received a 
 letter from Lord Wellesley, to the effect that " a code of regula- 
 " tions for the administration of civil and criminal justice, and 
 " for the establishment of an efficient Police at Prince of Wales' 
 " Island, had been under the consideration of the Governor-Gene- 
 " ralin Council for some time, and that the Governor-General in 
 " Council proposed at an early period to pass them into laws for 
 " the general government of the Settlement." Codes were framed, 
 but nothing however came of them, all being re-submitted for the 
 ultimate decision of the Governor-General: 
 
 CHAPTER III. 
 
 CONTENTS. 
 
 DUNDAS. 
 
 1805—1807. 
 
 1805—1808. 
 
 Penang made a separate Presidency — Arrival of first Governor, Mr. Phillip 
 Dundas, and Council— Despatch of Court of Directors on Administration of Justice 
 
 — Mr. Dickens' memoir— Despatch of Governor Dnndas, and Council Sentences of 
 
 death not carried out— lengthy detention of prisoners — Ordinary created— native 
 
 laws and usages— illustration case— Eamalinga Putty v. Mootee Samee illustration 
 
 of similar case before Mr. Justice Ford— Mr, Dickens' complaint to Mr Raffles 
 regarding a European named Douglas— lays stress on the want of jurisdiction over 
 British subjects— Governor discontinues system of personal correspondence with 
 Judge and Magistrate— letters and cases signed and countersigned by Mr Raffles 
 as Assistant or Acting Secretary— other duties of Mr. Dickens— Court of Judicature 
 —Mr. Dickens' Court closed— extract from his last Court Book— his departure. 
 
 In 1805, the Government of India determined upon forming 
 Penang into a separate Presidency, and in September of that year 
 the first Governor, Mr. Phillip Dundas, and Council arrived. The 
 first Council was held on the 20fch of that month. The following 
 
 * A short account of the Settlement, Ifc, of Prince of Wales' Island in the Straits 
 of Malacca. Sir George Leith, Bart, Major 17th Foot, and late Lieutenant-Gorer- 
 nor. London, 1804. 
 
1800—: 
 
 JUDICIAL— HISTORICAL. 
 
 xxxm 
 
 is an extract from the despatch of the Court of Directors 
 lishing the new Government, under heading 
 
 estab- 
 
 Administeation of Justice. 
 
 Dundas. 
 1805—1807. 
 
 Dickens, 
 J. &M. 
 
 § 63. The administration of justice being a very important part of the arrange- 
 ment required for the better government of Prince of Wales' Island, we have pre- 
 sented an humble petition to his Majesty that he will be graciously pleased to grant 
 a Charter for the administration of justice in Prince of Wales' Island, by erecting 
 the Governor and Council with the assistance of a Recorder, into a Supreme Court 
 of Judicature. 
 
 69. When we consider that at the time we took possession of Prince of Wales' 
 Island, it was uninhabited, our right to prescribe the system of laws which we may 
 deem most eligible for the government thereof, cannot be controverted, since none 
 of its inhabitants who have repaired to the island, can claim any prescriptive right, 
 founded on ancient usage, to the establishment of any particular system of laws' or 
 form of judicial proceedings. The establishing, as far as may be possible, of one 
 regular system of laws for the various descriptions of inhabitants, with a proper 
 attention to their respective customs and manners, * seems to be the moat politic 
 mode that can be adopted under the present circumstances of the island, you will 
 therefore, transmit to us, from time to time, such regulations and laws as you may 
 think proper to issue for the internal government of the island. 
 
 On the 22nd October, 1805, Mr. Dickens addressed a "Memoir 
 with respect to the enactment of laws, Civil and Criminal, 
 and the establishment of Civil and Criminal Courts of Justice," 
 and at the same time transmitted drafts of four regulations to the 
 Governor in Council. At the end of his memoir, Mr, Dickens 
 says: "As a Charter of Justice, granted by the King for Prince 
 " of Wales' Island, is expected to arrive.bef ore the close of this year, 
 " Mr. Dickens is aware, that the four regulations accompanying 
 "this memoir may be useless. Mr. Dickens however respectfully 
 " submits them, and the facts stated in this memoir, as a proof that 
 " for five years and upwards, his endeavours have been constantly 
 " exerted to fulfil the duties of his station as Judge and Magistrate 
 " of Prince of Wales' Island." 
 
 In their first despatch to the Court of Directors, dated 12th 
 November, 1805, the Governor and Council of the Presidency, made 
 the following allusion to the administration of j ustice, which, it 
 will be seen, sets out the state of the law at the latter end of 
 
 1805. 
 
 Administration of Justice. 
 
 § 87. We look with impatience for the arrival of His Majesty's charter for the 
 administration of justice at this Presidency. The Charter is so indispensably 
 necessary, that without it, we venture to predict that the prosperity of this Settle- 
 ment cannot be permanent. It will be deserted by all orderly, and will become 
 an asylum for the flagitious and the enemies of government and law. 
 
 88. If unfortunately the granting of this charter should by any circumstances 
 be delayed, we shall deem it our duty to exert the authority vested in us for restrain- 
 ing the turt'ulentand punishing the disobedient of theEuropean part of our inhabit- 
 ants, in any case where the exertion of primary authority may appear to. us requi- 
 site. 
 
 89. The only power we found on the island, bearing the appearance of a regu- 
 lar administration of justice was lodged in the office of the Judge and Magistrate, 
 who, in conformity to certain regulations established under the authority of the 
 
 * See the different Charters : "The Eaid Court shall have and exercise juris- 
 " diction as an Ecclesiastical Court, so far as the several Religions, Manners and 
 
 "Customs of the inhabitants will admit " and "make Rales and Orders 
 
 " with an especial attention to the different Religions, Manners and Usages of the 
 " persona who shall be resident or cormorant within its jurisdiction " 
 
XXXI? 
 
 PREFACE. 
 
 [Chap. lit 
 
 Dundas. Government General, by whom he was appointed, decides or rather gives his opinion 
 1805-1807. on all suits where the parties, or at least the defendants, are not Europeans — this 
 
 . opinion became a sentence on being confirmed by the Lieutenant-Governor, who 
 
 Dickehs, also had the power of reversing and altering the same if he thought proper. 
 J. & M. 90. Petty thefts, assaults, and in general all crimes, not amounting to felony, 
 
 are tried in the same manner, and the convicted punished under the sentence. 
 
 91. To prevent the total cessation of everything in the form of an administra- 
 tion of justice, we have for the present authorized the Judge and Magistrate, Mr. 
 Dickens, to continue in office with the same allowance he has heretofore received, 
 amounting to Rupees 2,000 per mensem, under the regulations and instructions he 
 has heretofore acted upon, submitting his opinion to us for our confirmation or 
 otherwise. 
 
 92. In all cases of accusation amounting to felony, the accused are tried 
 under the above regulations, by a Court consisting of the Governor, the Judge and 
 Magistrate, and a third person summoned by them, who report their opinion to the 
 Government General. The accused, if found guilty, are committed to close confine- 
 ment. We can only be induced to bring cases of this nature to trial, in the hope 
 that the party accused may be found innocent, and consequently liberated, as it 
 appears that the Government General in no one instance since the institution of 
 this Court, if such it can be called, have passed an order for execution on the sen- 
 tences referred to them, or even taken any notice thereof, from which circumstance 
 there now remains in gaol, 21 convicted murderers likely never to be punished.* 
 
 9a. The above relates only to such cases'where natives are the parties, while 
 the more turbulent European remains on the island free from all restraint, with 
 power of committing every act of injustice and irregularity towards his neighbour, 
 and i he most peaceable native, having set at defiance all authority as not legally 
 established on the island." 
 
 On the 27th December, 1805, the Governor and Council passed 
 
 * An examination of the records shews this to have been really the case and 
 the system apparently lasted till the proclamation of the Charter, for at a Session 
 of Oyer and Terminer held on the 10th October, 1809, 13 prisoners [2 of whom were 
 women] were "returned upon the Calendar to have been committed on charges of 
 "murder, since the year 1797 by former authorities which exercised jurisdiction 
 
 " here, antecedent to his Majesty's Charter The Court remanded the 
 
 several prisoners, and declined to pass any sentence before Tribunals which were 
 not legally authorized to try them," and see the following, which relates to one 
 of the women-prisoners, who had been 12 years in custody without any apparent 
 charge against her. * ' rl 
 
 " 9th December, 1809. 
 
 Present : 
 
 The Honorable Sib Edmond Stanley, Knt., Recorder,. 
 
 The King against Mai. 
 
 tietitTo^^pZS 1 F* br ?^ Y^j 8 ^ and sett0 the-Bar,when the several 
 petitions presented by her, and which laid over for consideration were reid towthpr 
 with the report of the Registrar and Clerk of the Crown f of therlTex?. no charge 
 of any kind or description against the prisoner in the Crown Office and the recofd 
 
 CerinrnltTpltVfW^^f, 17 , 97 '^ 6 ^ 6 Forbes Ro^^TDonald ft f 
 and PMHn " Mant^Z ° e 2™ es ' ^land, George Caunter, Esquire, Magistrate, 
 ana ±-nnip Mamngton, Esquire, second-assistant to the said Superintendent 
 
 bt^SSHIv : -f flt — stfswsfi 
 
 in tim^t^^^S^^^^ int ° -recognizance, herself 
 ance hereafter in this CourMf iZZ \1, * 5 J e T' and also for her a PP ear " 
 
 Majesty's pardon." ' ™ d neoessai 7> ^d when required, to plead his 
 
 serl^X^^TotZ^Z^ th ? re <^ on the 4th June, 1810, when 
 
 of their being discharged frorc S'^ 8 ! 1 ™ out ° f *»* island, upon the terms 
 
 the Government ^fbuTthe CoMt d»P^ n H ^ •° nment ' whioh offer ™ a^pted by 
 
 no charges before the Court Zl£ s ?Zi™ aW 7 ^ T th T oaBe . there bein ^ 
 E., mfra, gainst thorn, On this subject, see also, time of Stanley 
 
1*06—1808-3 
 
 Wdicial-hIstorical. 
 
 xxxv 
 
 a " Begulation creating and establishing an Ordinary," and from 
 that date,- Mr. Dickens acted in that capacity, the books and 
 records of the Court, bearing his signature as such up to the 
 opening of the Court of Judicature in 1808. 
 
 Native laws and usages seem also to have been given full 
 effect up to this period. The following case, tried a few days 
 before the establishment of the new Government, gives such an 
 instance, nor is any apology offered for citing ib, as it is only 
 given as an illustration of similar privileges, which are up to the 
 present day granted by the Supreme Court to natives, when they 
 apply for same in Civil cases, viz., of being allowed to go to some 
 sacred spot or place to take an oath in justification of their claim 
 or conduct. 
 
 Couet or Adaulet. 
 
 12(h September, 1805. 
 
 Eamalinga Putty v. Moo tee Samee. 
 
 Claims $ 54 as Ms share in a lime-kiln and for partnership accounts. 
 
 The defendant after having been sworn on water and vegetables, denies the 
 claim. 
 
 The plaintiff appears to me either stupid or knavish, and I find it impossible 
 to make myself understood by him, or he from some secret purpose declines answer- 
 ing the questions proposed to him for the purpose of elucidating his ca3e. The 
 plaintiff at last proposed to go to the kramat * and there to swear to the truth of 
 the balance really due to plaintiff, and the defendant consenting to this, I think the 
 Chooliah interpreter should go with them, and there compromise the matter 
 between plaintiff and defendant. 
 
 JOHN DICKENS, 
 
 Approved. 
 
 Judge Sr Magistrate, [o.] 
 
 R. T. FAEQUHAR, 
 Lieut -Governor. 
 
 On the 21st December, 1806, Mr. Dickens writes an amusing 
 letter to "Thomas Baffles, Esquire, Acting Secretary to Govern- 
 " ment," for the information of the Governor and Council, com- 
 plaining of the treatment he had received early that morning from 
 a European, a Mr. Douglas, who had accosted him whilst out 
 
 * A shrine. 
 
 [a.] The following is one of the instances alluded to above, and of recent 
 date. The case is taken ver. et lit. from the loarned Judge's book in Penang. 
 
 [Before Mr. Justice For3.] 
 April 13, 1*83. 
 ^ Lint Guan Teet v. Yew Boh No § anir, 
 
 I Action on a Promissory Note. 
 Execution denied. 
 Thomas, for Plaintiff. 
 Defendant in person. 
 
 By consent of both parties, if plaintiff goes to swear according to Chinese 
 custom by cutting off head of a cock, and burning jos.s sticks before the temple in 
 Pitt Street, he shall have verdict, if plaintiff refuses to do so, there will be verdict 
 for defendants. 
 
 The Interpreter of the Court directed to accompany the parties. 
 Arrangement tumbles through, priest of temple declining, to allow. 
 
 April 18th. 
 •Verdict by consent for $150. 
 
 DUNDAS. 
 
 1805-1807. 
 
 Dickens, 
 J. &M. 
 
XXXVI 
 
 PREFACE. 
 
 [chap- III. 
 
 DtTNDAS. 
 
 1805-1807. 
 
 Dickens, 
 J. <fc M. 
 
 driving, arid "required an explanation and satisfaction of him ' 
 in regard to a case tried by him the day previous, and in which 
 he, Douglas, had appeared as defendant. After relating cer- 
 tain facts in regard to Douglas, Mr. Dickens concludes his letter 
 by expressing regret at the. want of authority over British 
 subjects. The following is an extract from the letter in 
 question : 
 
 George Town, 
 
 To 
 
 21si December 1806, 
 9 o'clock A.M. 
 
 THOMAS BAFFLES, ESQTJIKE, 
 
 Acting Secretary to Government. 
 
 Sir, 
 
 It is with real concern that I am again obliged to request that you will re- 
 present to the Hon'ble the Governor and Council, that this morning Mr. Douglas, 
 an inhabitant of this island, was guilty of a wanton outrage on me, in my public 
 character, as Judge and Magistrate, for the judicial conduct which, in obedience to 
 the orders of the Honourable Board, it has fallen to be my duty to observe towards 
 him in the various suits lately preferred by and against him in the Court of Justice 
 over whioh I preside. 
 
 2nd 
 
 3rd. Mr. Douglas heretofore took the liberty of addressing a letter to me in 
 my official capacity, on the cover of which I wrote that all official applications 
 should be made in person, or by attorney constituted in writing, and affixed to this 
 writing. the seal of the Court. Notwithstanding this notice, the day before yester- 
 day, Mr. Douglas directed a letter to me, omitting on the direction my official 
 character, which letter enclosed an extract of a letter from Mr. Acting Secretary 
 Baffles to him, conveying a reprimand, and called on me to state, why such a 
 reprimand had-been given him by the Honourable the Governor and Council. 1 
 did not reply to this letter, but yesterday in open Court, where Mr. Douglas 
 appeared as a defendant to a suit instituted against him, I addressed myself to him, 
 and observed, that the proceedings on which the Honourable Board had exercised 
 their judgment were those signed by himself, all which he had heard, read. And 
 that I knew not by what right he presumed to call on me to explain why the 
 Honourable Board reprimanded him, and that I was surprized he .should take the 
 liberty of writing to me a letter on such'a subject, after I had stated to him that 
 1 did not receive any letter on official business, and that it was extremely improper 
 in him to address a letter directed to me as a private individual on a public 
 judicial subject. 
 
 4th. I also stated to Mr. Douglas,' that he must be aware that he had sworn 
 before me, that he believed Varshay died without a "Will, and that his affidavit was 
 on record, when it afterwards appeared that at the time he, Douglas, made the affi- 
 davit, he had a Will of Varshay's in his possession, and which he afterwards pro- 
 duced, on which "Will, there was endorsed in the English language and character, 
 two endorsements— one in pencil " Varsey's Will," the other in ink, " Supposed 
 Will of Varsey Mahomed." * - ** 
 
 5th. Mr Douglas thought proper to declare in open Court, that he did not come 
 thereto be reprimanded by me. Upon which I observed to him, that if he wished it, 
 I would make a minute on the proceedings of these circumstances, and submit my 
 couduct therein to the judgment of the Hon'ble the Governor and Council, as he 
 was i not 'Subject to my ordinary jurisdiction. Mr Douglas, not appearing to wish 
 that I should enter such a minute, it did not appear on the proceedings of yester- 
 
 t C J h -ir A l ittle 1 before 7 o'clock a. ni., of this day, near to the new Convict lines, 
 I met Mr. Douglas, on horse-back, being myself in a carriage. Mr. Douglas 
 
 •This affidavit is on record and the following extract from it goes in support 
 of the above letter : " The petition of James Douglas, Esquire, sheweth that Var- 
 "shay Mahomed, late of Prince of Wales' Island, merchant snwZ™!' T ++1 
 "first day of November, 1806, departed his Hfe atsea wlthou?a> Wfll &c '• 
 
 In the lands and Goods of Varshay Mahomed, deceased, 6th December 180o""r»ot 
 
1805-1808] JUDICIAL— HISTORICAL. xxxvii 
 
 addressed himself to me, requiring an explanation and satisfaction for my conduct Dundas. 
 
 to him in Court. I told him I was surprized at his daring to interrogate me in that 1805 — 1807. 
 
 manner, and that I would not permit him, or any man, to expect that I would ex- 
 
 plain to him my official conduct as Judge, upon which he threatened me, saying Dickens, 
 
 "he would have ample satisfaction," and swearing "he would have my blood." J. 4 M. 
 Human nature is frail, and I confess that I was wrong in my reply. I told him, 
 " he was a scoundrel," and that he had now an opportunity, " and that if he had 
 the spirit to do it — " why did he not now take his revenge ?" His answer was, " he 
 had no pistols, but if he had he would." 
 
 7th. Having narrated these facts, and apologized for the momentary irrita- 
 tion occasioned by the wanton attack made on me by such a person, I can only 
 repeat, that this event furnishes another instance of the injurious effects resulting 
 from the Honourable the Governor and Council.compelling me to examine into com- 
 plaints against British subjects, whose respect and obedience to my judicial opinion 
 I not only cannot command, but who think themielves authorized to resent as a 
 private personal injury, the judicial duties I perform in obedience to the injunc- 
 tions of the Honourable the Governor and Council. * 
 
 I have, &c, 
 JOHN DICKENS, 
 
 Judge $[ Magistrate, 
 
 There is nothing on record, to shew that Mr. Dickens received 
 an answer to his letter, doubtless because the authorities them- 
 selves were powerless to act, 
 
 Under the new Government of 1805, the Governor discontinu- 
 ed the system of personally corresponding with or countersigning 
 or remarking upon the decisions of the Judge and Magistrate, and 
 the correspondence and cases all bear the signature of Thomas 
 Baffles, either as "Assistant," or "Acting Secretary," with the an- 
 notation "Approved," or " by order of the Governor and Council." 
 From this period the Court papers also bear the impression of a 
 seal, with the words "The Seal of the Judge of the Court of 
 " Prince of Wales' Island." The records, from a very early period, 
 also shew that Mr. Dickens, apart from local codes or regulations, 
 was also consulted by the authorities on matters of local import- 
 ance. 
 
 Among other duties performed by the Judge and Magistrate, 
 he- had, by a Proclamation of the Lieutenant-Governor, dated 21st 
 ^ September, 1801, and another of the Governor, dated 15th March, 
 • 1806, to take acknowledgments of all conveyances and mortgages 
 of lands, these being subsequently registered in a " Eegister of 
 " Transfers," kept in accordance with the proclamations. Some of 
 these Eegisters are still to be found among the records of the 
 Court. Mr. Dickens' career, closed with the opening of the Court 
 of Judicature, which, it will be remembered, wa3 first mooted by 
 the Government of India in their despatch to the Board of Direc- 
 tors, dated2nd September, 1800. f The following is taken from 
 
 * The 2nd para, of this letter mentions another matter not immediately conneetcd 
 with Douglas, and the same not being traceable in the records, the para, is here left "out. 
 The above letter will however be found published in. extenio in the Journal Indian 
 Archipelago, October 1852, vol, vi., p, 632. 
 
 twite JJ. xiii, « 
 
xxrnii 
 
 Preface. 
 
 [chap, III. 
 
 Dundas. 
 1805—1907. 
 
 DlCKKNS, 
 
 J. &M. 
 
 Mr Dickens' last Court Book : 
 
 " 31st May, 180S. 
 The Court met pursuant to its last adjournment, and the Judge and Magis- 
 trate having received information from the Governor and Council, that Sir Edmond 
 Stanley Knight, Recorder of Prince of Wales' Island, had arrived at that place, 
 bringing witE him his Majesty's Letters Patent, establishing a Court of Judicature 
 for Prince of Wales' Island, and that the said Court would this day be opened 
 and proclaimed, and that on such opening, this Court would be abolished, this 
 Court therefore, is now declared to have ceased and determined for ever. 
 
 JOHN DICKENS, 
 Judge $[ Magistrate. 
 
 Mr. Dickens shortly after this left for India, and with him 
 ended the most lawless period of the Settlement of Penang, and 
 greatly through his untiring energy and exertion must be attri- 
 buted the hastening of the grant of the first Charter. 
 
 CHAPTER IV. 
 
 CONTENTS. 
 
 First Charter of Justice. 
 1808—1826. 
 
 SIE EDMOND STANLEY. 
 1808-1816. 
 
 Letters Patent establishing Court of Judicature — Judges of the Court — Sir 
 Edmond Stanley, first Recorder — Judges styled ' My Lord' — Extract from first Cause 
 Book — Sheriff appointed— First sitting of the Court — First case heard — Court officers 
 appointed — Mr. [afterwards Sir Thomas Stamford] Baffles appointed first Registrar — 
 Court establishment— Mr. John Hewitt, first law agent of the Court — he is afterwards 
 appointed Registrar — Accountant-Generalship of the Court held by ' Paymaster of 
 Hon'ble Co.* — Succession of Registrars until appointment of Mr. John Kerr— Commis- 
 sioner appointed to take affidavits — Thomas Kekewich— application to be admitted as 
 an Attorney of the Court— Orders of Court regarding admission of law agents-— Cuth- 
 bert Fenwick— no distinction between the two branches of the profession — Mr. McQuoid, 
 Sheriff, fined for non-attendance — tables of fees translated in native languages and cir- 
 culated by beat of gong— Court business not heavy at first— Court of Quarter Sessions- 
 extract from first Q. S. book — Judges at Quarter Sessions styled " Magistrates"— cases 
 heard, trivial— sittings of Court of Q. S.— First Court of Assizes — First Calendar heavy- 
 murder cases— petition of prisoners sentenced before establishment of Court— they are 
 conditionally pardoned— Grand Jurors— presentments— their prerogatives— Sessions of 
 Assize Court— Rules of Court printed— conduct of Europeans— Cuthbert Fenwick 
 
 arraigned before Court of Quarter Sessions for challenging Sheriff to fiolit a duel the 
 
 sentence— Court of Requests established— First Commissioners— Appeals from Court 
 of Requests— Thomas Raffles as plaintiff in Farm cased— misunderstanding 
 between Government and Recorder about appointment of Peace Officers— Sir 
 Edmond Stanley refuses to appoint them— his reasons— Discussions between Executive 
 and Recorders— Sittings of Court heretofore held at " Government House " in Fort 
 Cornwallis-Court removes to Mr. Dickens' late house-notes regarding present Court- 
 House in Penang-Guard-arrest of one Montgomery, a state-prisoner, on a Civil 
 writ— Discussion between Registrar, Mr. Hewitt and Governor Macalister on the use of 
 the Seal of the Court and the arrest of Montgomery-consequent Order of Court 
 thereon-proceedmgs in Court-Cuthbert Fenwick, a special agent of the Court imcri- 
 sonedfor pontempt-he prays for us release-the condition of the gaol— lenethv aeten 
 toon of pnsonera-great disorder at Court of Quarter Sessions, high-constables T wishing 
 
1808— I82ej JUDICIAL-HISTORICAL. xxxix 
 
 to resign — the circumstances of the case related — Sir Edmond Stanley leaves the hench 
 — he informs the Governor of the disorder — Governor asks for a copy of the proceedings 
 — Court sits as a Court of King's Bench to enquire into the disorder — parties attached — 
 sentences passed — papers read by delinquents — Order of Court setting out apologies — 
 local dissensions between Recorder and European inhabitants — a letter is delivered to 
 him as he rises from the bench — he communicates same to Lay Judges — letters criticises 
 conduct of Sir Edmond Stanley regarding his remarks in re. Baird v. Baretto — Re- 
 corder's opinion on the letter and the repeated attacks on him — he receives a letter con- 
 taining " scandalous and malicious libel" in reference to alleged remarks of his regard- 
 ing conduct of one Robert Scott — case Inche Meyden v. Scott — the letter — Order of 
 Court thereon — attachment issued against Scott — Thomas Kekewich, Registrar and 
 Clerk of the Crown asks for leave to file a Criminal Information against him — Scott 
 apologises — Recorder's note regarding libel against the Court and himself — he orders 
 two extracts from documents concerning himself to be registered in Court Books— 
 Marriage-licenses — Recorder as Ordinary — Order of Court granting such licenses — 
 Practice and fee in such cases — last license issued by the Court — Appeals from Court of 
 Judicature — First appeal on record since establishment of Court — Difference between 
 Recorder and Lay Judges regarding trial of Mr. James Cousens, Accountant-General of 
 the Court for embezzling suitors' monies — Mr. Buff, Law agent of the Hon'ble Co. files 
 a Nolle Prosequi — Accountant-Generalship separated from Treasury — Recorder's note 
 regarding Mr. Ibbetson, the High-Sheriff — his departure — his services. 
 
 SIR GEORGE COOPER. 
 1817. 
 
 Sir George. Cooper succeeds Sir Edmond Stanley — remains in Penang but a 
 few months — important cases tried by him — dismissal of petition by Charles 
 McKinnon, " Principal Surgeon of Hon'ble Co./' regarding alleged libel on him 
 in Governor Pe trie's Will. 
 
 SIR RALPH RICE. 
 
 1817—1824. 
 
 His arrival — admission of Robert Terraneau as first Notary-Public or Convey- 
 ancer — entry in Court Book — present practice of admission of Conveyancers 
 — Sir. Ralph Rice proceeds to China on leave — his duties are carried 
 on by the lay Judges — embarrassment of local authorities regarding landed 
 tenures — no Crown law adviser — Sir Ralph Rice frequently consulted — his opinions 
 embodied in'a work by Mr. W. E. Phillips — Mr. John Macalister, a Lay Judge and 
 a Magistrate and Justice of the Peace, challenges Major Coombs, Town-Major, to 
 fight a duel — he is required to furnish security for his good behaviour — he protests 
 — his behaviour — he enters into a recognizance which is accepted — Court refers 
 the matter to India, — reasons — case cited — Mr. Macalister appeals — he is censured— 
 opinion of learned Counsel on the case — J. B. Bosanquet, R. Gifford, J. S. Copley 
 and Advocate-General of Bengal — Judges of the Court may be arrested and 
 imprisoned — Sir Ralph Rice inaugurates a system of pleadings— first of only two 
 libel cases heard criminally before a Jury in Penang — one John Anderson arraign- 
 ei for libelling a Captain Luke — Second libel case in 1873 — Sir Ralph Rice appoint- 
 ed puisne judge in Bombay — his departure. , 
 
 SIR FRANCIS BAYLEY. 
 1824.. 
 
 Succeeds Sir Ralph Rice — dies two months after his arrival, 
 1324—1826. 
 
 _ Order of Court consequent on death of Sir Francis Bayley — Lay Judges take 
 » the bench in turn until assumption of duties by Sir John Claridge under 2nd 
 
 Charter — Sir John Claridge arrives a year before proclamation of Charter — he acts 
 
 as assessor to lay Judges, 
 
xl PREFACE. [chap. IV. 
 
 IstChabteb. The Letters Patent establishing the Court of Judicature in 
 
 Sta — Penang, are dated 25th March, 1807. By the Charter, the Court 
 
 tanlbt . cong } s f. e( j £ « ^ e Governor, 3 Counsellors and a Eecorder" as 
 
 1808—1816. Judges, the Eecorder taking precedence next to the Governor. 
 
 The first Eecorder under the Charter was Sir Edmond Stanley,*, 
 
 the Judges of the Court [as at present] being addressed as " My 
 
 Lord," or " Your Lordship." The Court opened the first time on 
 
 the 31st May, 1808. The following is an extract from the first 
 
 Court Book : 
 
 Tuesday, the 31st May, 1803. 
 
 This day at 10 o'clock, the Honorable the Governor and Members of Council f 
 having assembled, in order to receive Sir Edmond Stanley, Knight, Eecorder of the 
 Court of Judicature established for Prince of Wales' Island, proceeded with Sir 
 Edmond Stanley, to the Hall of the Government House J [for the present appro- 
 priated as the Court House] and having severally taken their seits on the Bench, 
 His Majesty's Letters Patent bearing date the twenty-fifth day of March, one 
 thousand eight hundred and seven were publicly read. 
 
 The Eecorder then administered the Oaths prescribed to be taken by the 
 Governor, and tendered the declaration against Transubstantiation which were 
 duly taken and subscribed, and the Eecorder and the other Judges of the said 
 Court, having afterwards taken the like oaths, and exhibited similar declarations. 
 
 James Caruegy, Esquire, appointed by the Honorable the Governor and 
 Council, first Sheriff of Prince of Wales' Island and duly sworn into that Office 
 before the Governor, Published and Proclaimed the Charter, and the Supreme 
 Court of Judicature, of Prince of Wales' Island. 
 
 The Eecorder having then delivered over to the Honorable the Governor, His 
 Majesty's Letters Patent establishing the Court of Judicature, to be deposited 
 among the Eecords of the Island, the Court adjourned till Friday the 3rd of next 
 month." 
 
 On the 3rd of June, the Court sat for the first time, the 
 Governor alone taking the Bench with the Eecorder. The first 
 case heard, was an Ecclesiastical one, where Letters of Adminis- 
 tration were asked for in the Goods of one Andrew Cartwright, 
 deceased. 
 
 The Court after this date, and on its different sittings, pro- 
 ceeded to appoint its several officers, — rules and orders were passed, 
 tables of fees fixed, and English pleadings, in both law and equity 
 introduced and followed. 
 
 The first Eegistrar appointed, was Mr. Thomas Eaflles, after- 
 wards Sir Thomas Stamford Eaffles, the founder of Singapore. 
 The following is an Extract from the Court Eecords in reference 
 to his appointment. 
 
 " Friday, the 10th June, 1808. 
 
 This day the Court opened at ten o'clock. 
 
 Present : 
 
 The Eecorder. 
 
 Thomas Eaffles, Esquire, is appointed occasional Eegistrar under the Charter 
 
 •"And we do hereby constitute and appoint our trusty and well-beloved Sir 
 Edmond Stanley Kmght ; to be the First Eecorder of Prince of Wales' Island, in 
 Manner aforesaid, the said Sir Edmond Stanley, Knight, being a Barrister in Ire- 
 land, of five years standing and upwards." First Charter, p. 9. 
 
 t " Colonel Norman Macalister, Governor, W. S. Pearson W P Pt,iTn™ „„,i 
 J. J. Erskine, Counsellors." ' Pearson, W. E. Philhps, and 
 
 J Fort Cornwallis. 
 
1808-1826.] JUDICIAL-HISTORICAL, adi 
 
 till further orders, and is sworn into that office, untar^i legal man who is expected, 1st Chabteb. 
 
 shall arrive to fill it." 
 
 » Stanley E. 
 
 Mr. Baffles however, did not hold his post long, for on the 
 
 25th July 1808, the records shew that " Thomas Baffles, Esquire, 1808 - 1816 - 
 the Acting Begistrar, having gone to sea in consequence of ill- 
 health, Mr. William Young, having heen nominated by him to act . 
 in his absence in that capacity, is accordingly admitted so to do 
 until further orders." At this period, the Establishment of the 
 Court consisted of the following : 
 
 William Toung, Acting Registrar. 
 
 -<J- * William Kobinson, Accountant-General, [a.] 
 
 James Carnegy, High-Sheriff. 
 
 Andrew Burchet Bone, ... Deputy Sheriff. 
 
 On the 24th of August however, further changes were made, 
 a Mr. William Stuart, becoming Acting Begistrar, and Messrs 
 William Toung and John William Bolls, Sworn Clerks. The 
 High-Sheriff was annually appointed by the Governor, and the 
 former appointed his own Deputy. 
 
 The first Law-Agent of the Court, admitted under the Charter, 
 was a Mr. John Hewitt, an English Solicitor. The following 
 taken from the Court Books, refers to his admission : 
 
 "Friday, the 4th November, 1808. 
 Court Opened. 
 The Hon'ble the Be.corder. 
 
 Mr. John Hewitt, having produced a testimonial of his admission as an Attorney 
 in the Court of King's Bench in Trinity Term 1800, — having practised in India for 
 nearly a year and a half, and having taken the requisite oaths, he is admitted an 
 Attorney of this Court, pursuant to His Majesty's Charter, subject to the Order of 
 the Court." 
 
 On the 26th January, 1809, this gentleman was appointed. 
 Begistrar of the Court, on the recommendation of the Advocate- 
 General of Madras, and the records of the Court further shew, 
 : ; that he had previously acted as Clerk of the Crown in England, 
 *«f and he was practically the first permanently appointed Begistrar 
 of the Court. Mr. Hewitt did not however continue long in office, 
 and from his time there appears to have been a regular succession 
 of Begistrars until the appointment of Mr. Archibald Duff, as such, 
 by the Government of Bengal [in. succession to Mr. William Benge] 
 on the 28th January, 1814, and who resigned office, and "left the 
 Island" on the 5th August, 1818, being succeeded by Mr. Alex- 
 ander John. Kerr, on the 10th of August, 1818, who held office for 
 
 [a.] Mr. Bobinson was also " Paymaster of the Hon'ble Co." The post of Ac- 
 countant-General of the Court was held by the " Paymaster," until the. 16th De- 
 cember 1815, when, in consequence of certain irregularities committed by Mr. James 
 Cousens, then styled " Sub-Treasurer and Accountant-General of the Court," the 
 Court passed an Order separating the two offices, Mr. Kenneth Murchison, becom- 
 ing provisionally Accountant-General, until the appointment on the 8th April, 1810, 
 of Mr. William Sartorius in that capacity. The Court records do -not shew when 
 the two appointments were re-united as at present. 
 
xlii PREFACE. LChap. IV; 
 
 1st Chabtbb. upwards of 38 years, retiring in June, 1856. Mr. Duff, was the 
 
 -r, first "Commissioner appointed to take Affidavits and to do such 
 
 Stanley, R. flirttier acts as are re quired by the Charter," in virtue of a Coin- 
 1808—1816. mission under the Seal of the Court, as at present ; the usual oath 
 being administered to him on the 7th March, 1814 * Up to the 
 time of Mr. Hewitt's appointment as Registrar, he had been the 
 only one admitted to practice as an Attorney, by the Court, but 
 on the 15th August, 1809, in consequence .of an application having 
 been made for admission, as such, by a Mr. Thomas Kekewich, 
 the Court before granting it, " was desirous of ascertaining what 
 number of Advocates was necessary," and on the 27th of September, 
 1809, passed the first Order regarding the admission of "Agents 
 generally and specially." By this order, no one was "to be per- 
 mitted to appear or act as an Advocate, Solicitor, Attorney, Proctor 
 or Agent of the said Court, unless such person had been previously 
 permitted or licensed by the Court to act as Agent, either gene- 
 rally, or specially for the particular occasion and any license 
 
 or permission to act generally, or specially might be vacated or 
 withdrawn at the pleasure of the Court." No provision seems to 
 have been made as to the number of Agents to be admitted, -as 
 was apparently at first intended, nor were the individuals thus to 
 be admitted, required to possess any particular qualification. 
 Under this Order, three licenses were granted, but between its 
 date of promulgation, and the 1st August, 1810, the Court had 
 reason to recall one of them, and thereupon passed an order abro- 
 gating the previous one, and inhibiting the admission of General 
 Agents, and while reciting the absence of professional men, and 
 the practice theretofore of " admitting of unqualified persons," 
 declared, that great irregularities had occurred, and " the Court 
 had judicial knowledge that its former indulgence had been grossly 
 abused," f and provided that excepting " professional men 
 admitted in any of the Courts of Great Britain or Ireland, or 
 licensed by the United Company of Merchants," Special Agents 
 alone would be allowed to appear on behalf of suitors, in certain 
 cases, if approved of by the Court before hand ; in all other cases, 
 the Registrar, Clerks and Interpreters, being required to help the 
 suitors, and " if necessary, examine the witnesses in Court." This 
 order remained in force until the 20th August, 1817, when two 
 applications were made by non-professional men, for admission as 
 Agents of the Court, and the above order of 1810, evidently being 
 found impracticable, the Court " ordered that as there were at 
 present no regular Attornies or Solicitors of the Court, to conduct 
 the affairs and business of the Suitors, the prayer of the petitions- 
 be granted." This order practically rescinded the order of 1st' 
 August, 1810, and the practice thus introduced would appear to 
 have been carried out until the 20th December, 1839, when " Gene- 
 
 laioi S r?S e °* J he reoo ^ s bear %» signature of Mr. Kekewich [Registrar in 1811- 
 1812] as _ Registrar and Commissioner," but his appointment by the Court as 
 Commissioner cannot be found, but for many years after the proclamation of the 
 hrst Charter, Affidavits were sworn before the Recorders. 
 
 tt Jrt. See i n *i e a "°, ds °f ThomM Kekewich, deceased, Ecclesiastioal Cases, Vol. 
 II. of these Reports, and In re Cuthbert Fenwick, time of Stanley R., mfrA, 
 
1808-1826.] JUDICIAL-HISTORICAL. xliii 
 
 ral Agents" were again discontinued by a " resolution" come to IstChabteb. 
 by Sir "William Norris, and " Special Agents" alone admitted. stahmy e. 
 
 On the 21st January, 1852, by a further Order, all those 
 
 admitted to practice, subsequent to that date [excepting profes- 1803— 1816. 
 sional men admitted at home], were required to pass examinations, 
 and were then admitted to act as " General Agents." The ad- 
 mission of "Advocates and Solicitors" of the Court, is now regulated 
 by Order, dated 12th August, 1874, and Ordinances 3 and 5 of 1878. 
 From the very earliest period, the Law Agents of the Court, would 
 appear to have acted in the double capacity of Solicitor and Barris- 
 ter, and continue so to the present day, without any distinction 
 whatever between the two branches of the profession. 
 
 In the early days, the Court seems to have acted with some 
 severity against its officers, for on the 13th February, 1809, there 
 is an entry in the Court Book, of Mr. Thomas McQuoid, the High 
 Sheriff for that year, being fined §20 " for non-attendance." On 
 the 17fch January, 1809, the Court ordered that the different tables 
 of fees .be translated in the different native languages, and circu- 
 lated amongst the heads of the sects of each tribe, " for the use 
 and information of the lower and inferior classes of people, and 
 by beat of Gong." The business of the Court, however, does not 
 seem to have been very heavy, some few cases only being tried at 
 long intervals of each other, and the Recorder sitting alone the 
 greater part of the time. 
 
 The first Court of Quarter Sessions, constituted under the 
 Charter, was held on the 11th June, 1808, the Recorder presiding, 
 arid one of the Councillors, Mr. W. E. Phillips, sitting with him. 
 The following entry appears in the first Book of that Court. 
 
 11th June, 1808. 
 
 The Court of Judicature sat at Quarter Sessions, at which the Recorder presided 
 and William Edward Phillips, Esquire, one of the Councillors, sat to enquire of, hear and 
 determine all "breaches of the Peace, Quarrels, Controversies, Crimes and Misdemea- 
 nors whatsoever, except Treason and Felony, pursuant to His Majesty's Charter of 
 Justice. 
 
 As will be seen therefore, the Court of Judicature formed the 
 Court of Quarter Sessions, and whilst sitting in the latter Court, 
 the records shew that the Judges were there styled " Magistrates," 
 the term "Bench of Magistrates" frequently occurring. The cases 
 tried at this Court were very trivial, but nevertheless the Court 
 sat frequently, doubtless due to the paucity of Civil Cases. In 1813, 
 the business of the Court having considerably increased, Sir 
 Edmond Stanley issued an Order, that the Court of Quarter Ses- 
 sions would only sit four times a year, which was cai'ried out until 
 the second Charter in 1827, the days fixed being 9th January, 
 29th March, 15th July and 15th October of each year. 
 
 The first Court of Assizes or Session of Oyer and Terminer, 
 as it was called, was held on the 5th September, 1808. " The 
 Hon'ble Norman Macalister, Governor, Hon'ble Sir E. Stanley, 
 Knt., Recorder, Henry Shepherd Pearson, William Edward 
 Phillips and John James Erskine, Councillors" being present at 
 the opening of the Session. The first Calendar, — and indeed as it 
 
sliv PREFACE. [chap, iv. 
 
 Ist-Ghabteb. has been ever since in the Settlement of Penang,— shews a very 
 " — ' long list of cases, there being no less than 6 for murder, the prison- 
 
 . ' ' ers on these latter charges being all found guilty, and sentenced to 
 
 1808—1816. death. At this Session a petition was presented to the Court by 
 a number of prisoners who had been " sentenced by the late 
 Authorities on the Island since the year 1806," asking " that 
 their cases be considered and the proceedings revised," or their 
 " sentences varied" in such manner as the Court would deem 
 proper, they engaging, if necessary, to leave the Island not to 
 return again. This petition was granted, in some cases the sen- 
 tences being remitted, and the prisoners " allowed to leave the 
 Island on the terms offered by them in open Court and agreeably 
 to the prayer of their petition," and in other instances "under, 
 the circumstances of the punishment already inflicted, it being 
 considered for the advantage of the public," they were " dis- 
 charged, and the remainder of the sentences remitted, security 
 being given for good and peaceable behaviour." 
 
 According to the Charter, the Grand Jury were allowed to 
 make presentments upon any subject they deemed fit, and as 
 would appear from the records, until a very late period, not un- 
 frequently availed themselves of the privilege ; for besides sending 
 up cases for trial, they not only made suggestions, which in many 
 instances were carried out in regard to measures contemplated or 
 passed by the Government, but also visited the different public 
 institutions, roads, &c. On the 2nd May, 1814, the Court, " in 
 consequence of the provisions of Act 53, Geo. Ill," passed an 
 Order that four Sessions of Oyer and Terminer, be held annually, 
 fixing the Sessions as follows : 6th March, 6th June, 6th September 
 and 2nd December, any of those days happening to fall on a Sun- 
 day, the Session to commence on the day subsequent, which order 
 remained in force till the 2nd Charter. By this same Order, the 
 Court directed "that the Rules of practice of the Court be 
 printed." 
 
 Shortly after his arrival, Sir Bdmond Stanley found it neces- 
 sary to deal with a firm hand with some of the Europeans, who 
 even at this period, seemed to have set at defiance all authority. 
 The first case dealt with against them, was that of Cuthbert 
 Fenwick, * who was arraigned before the Court of Quarter 
 Sessions, on the 22nd December, 1808, for " having challenged Mr. 
 Thomas McQuoid, to fight a duel when in the execution of his 
 duty as High-Sheriff." , For this offence, Mr. Fenwick was fined 
 |40 and ordered to give security for his future good behaviour 
 tor the space of one year. 
 
 * *• ^ tk 6 20& erf May, 1809, a proclamation was issued, consti- ' 
 tutmg the Court of Requests, under the Charter, the first Com- 
 missioners appointed being Messrs George Gaunter, Thomas 
 Raffles, and John Curson Lawrence. Mr. Raffles however, acted 
 as Commissioner -of the Court of Requests only till the 17th 
 December, 1810. J 
 
 * Kee List of Agents, first Charter. 
 
1808-1826.] JUDICIAI*-HIST0RICAL. xlv 
 
 Appeals from the Court of Bequests, seem to have been very IstChabteb. 
 frequent at this period,* and the name of Thomas Baffles also fre- g TANLET jj # 
 
 quently appears in the Court Becords as plaintiff in his capacity ' 
 
 of Secretary to the Government, against individuals for breaches 1808— 1816. 
 of Farm conventions. 
 
 The Becords shew that a few months after his arrival, a 
 misunderstanding occurred between the Government and the 
 Becorder. The first quarrel that arose, was the refusal by Sir 
 Edmond Stanley to have anything to do with the appointment of 
 Peace Officers — High and Petit Constables, in the different 
 districts, declaring that " this was a matter of local Begulation, 
 and of which, the local Magistracy could best judge of, that he 
 would not interfere either in the nominations of the persons Ihey 
 might wish to make, or in the expenses which they might think 
 
 necessary to incur and with which he was unacquainted , 
 
 but that he would merely explain to them the nature of the legal 
 establishment which the Charter had in view and pointed out, — ■ 
 and also the legal duties of High and Petit constables, and the 
 
 oaths which it would be necessary for them to take , and 
 
 he was not aware of any power in the Charter given to the Court, 
 to appoint any other Justice of the Peace, but those that were 
 named in.it "t 
 
 Discussions on this and other subjects, continued between 
 the Executive and the Becorder, to a greater or lesser extent, but 
 as these dissensions continued under a train of Eecorders, it is 
 not here proposed to go into them in detail. 
 
 Up to this date, the Court had been silting in the " Govern- 
 ment House" % and 011 the 16th October, 1809, removed " to the 
 late house of Mr. Dickens," as the Court-House [the present one 
 in Penang] was not " ready for the reception of the Court, not- 
 withstanding the letter written by the Secretary to the Begistrar, 
 dated 31st August, 1809." § 
 
 In consequence of a Civil "Writ having been issued against 
 
 * See further on this subject, time of Sir John Olaridge, R., infrcl. 
 fl t *-.*. the Judges of the Court of Judicature — see first Charter, p. 15. 
 p J In " Fort-Oornwallis," [as gathered from the records.] 
 
 § The Court must have removed^ its present building in Penang shortly after this date. 
 On record is to be found, a receipt signed " John Hewitt, Registrar, and dated 7th March 
 1810, for different articles, — furniture, &c„ " for the use of the Court of Judicature, and 
 offices attached, ordered to be supplied by order of the Hon'ble the Governor and Coun- 
 cil." Some of the papers on record would also go to shew, that in Penang, the Recorders, 
 up .to Sir John Claridge, "resided in chambers adjoining the Court." 
 
 In reference to the Penang Court-House, the following also appears in the records : 
 "It appearing by letter dated 27th November, 1815, and 2nd December, 1815, that it is 
 wished by Government that the Court-House should be tiled and repaired, the Term 
 
 being over, the Recorder being uninformed how long such work might take, 
 
 the Becorder is willing to sit in the Hall of the Registrar's Office, until the work 
 
 is finished." Recorder's Note, 29th February, 1816.: In connection with this matter, it 
 may here be stated, that the Court-House was in charge of a Military Guard from the 
 time it first opened, until the 28th March, 1825, when the same was withdrawn, and 
 replaced by 1 Jemadar, 2 Sontabardars and 5 Peons, borne on the Registrar's Establish- 
 ment. Shortly after this, further changes took place, a " Sepoy Guard " being" put in 
 charge of the Court, until withdrawn on the 21st May, 1842, owing to a " reduction in 
 the garrison of the island," and replaced by 4 Chokedars, now reduced to 2 policemen. 
 [On this subject, see further — time of Sir Benson Maxwell, as Recorder.] 
 
xlvi 
 
 PREFACE. 
 
 [Chap.:?. 
 
 IstChabteb. one Montgomery, a " State prisoner," the Governor, Colonel 
 
 — _ Macalister, on the 17th November, 1809, sent for the Eegistrar, 
 
 Stanley b. ^ Hewitt, and after having made enquiries as to the arrest of 
 
 1803—1816. the man, and commented upon the use and custody of the Seal of 
 
 the Court, — a matter, as will be seen hereafter, forming the 
 
 subject of further discussion between the Government and one of 
 
 the Eecorders in 1858, * — gave certain directions to the Eegistrar 
 
 " as to the mode of issuing Civil 'Writs." Mr. Hewitt thereupon 
 
 communicated with the Eecorder regarding the order given him, 
 
 being " at a loss to know how and in what manner to issue Civil 
 
 Writs in future," At the opening of the Court next morning, 
 
 Mr. Hewitt read the following affidavit which he had previously 
 
 sworn to, relative to what had passed between him and the 
 
 Governor : 
 
 " I received a chit from Colonel Macalister, requesting my attendance on hiin for 
 a short time. I accordingly immediately waited on him, and was asked by him, if any 
 one and who applied to me for a writ against Mr. Montgomery. I told him, Mr. 
 Hutton did. He then asked me if I knew that Mr. Montgomery was a State Prisoner. 
 I told him, I did not, and could make oath of it. He then said, it was a most impertH 
 nent step for Mr. Hutton to take, that he [the Governor] had that confidence in me, as 
 to give me the Seal, and that if I would look into the Charter, he [the Governor! ought 
 to have the custody of it. I then told him, I would mention it to the Eecorder. The 
 Governor said, Why mention it to the Recorder ? and requested me for the future, that 
 the seal be not put to any writ in his name, without I made enquiry into the situation 
 of the person against whom the writ issued. The Governor also asked me, if Mr. Hut- 
 ton had made an affidavit of the debt, and requested me to ascertain it. I told him Lhad 
 no doubt of it ; and that a petition had been filed, and the usual order of the Eecorder 
 had been made for the issuing of the Writ. 
 
 JOHN HEWITT, 
 
 Sworn before me, this 
 18th of November, 1809, in Court, 
 
 B. STANLEY. 
 
 Registrars 
 
 N. B.— The Honorable the Governor never gave me the Seal, the same has always 
 been in the custody of the Court. 
 
 JOHN HEWITT, 
 
 Registrar. 
 
 Sworn before me, this 
 
 18th of November, 1809, in Court, 
 
 E. STANLEY. 
 
 The Eecorder immediately upon this, passed an Order that 
 the Eegistrar was to issue writs " where writs ought to issue, and to 
 seal the same as required by the Charter and by Law, and that if 
 any question should afterwards arise, relative to the execution 
 thereof, or in what cases a party in custody for a criminal offence 
 ought to be charged or detained in a civil suit, that application be 
 made to the Court, and if the Court be not sitting, to the Judge 
 at his Chambers, where the matter would be disposed of according 
 to law." 
 
 i time o£ Sir Benson Maxwell, K., infra. 
 
t808-i82e.i JUDICIAL— HISTORICAL. xlvii 
 
 This subject was again discussed in Court on the 20th IstChambr. 
 November, 1809, when the Governor declared that " the pro- g TANLBY r, 
 
 ceedings in the Court on Saturday last were reported to him 
 
 to have been of such a nature as to demand from him as its 1808— 1816. 
 President, some investigation. He deemed such a measure, not 
 only expedient, but absolutely necessary to the good government 
 of the Settlement." Duly recorded are the minutes of the enquiry 
 made in the matter, at the close of which " the Hon'ble the 
 
 Governor expressed himself satisfied and also declared in 
 
 open Court, in the presence of the Grand Jury, that the arrest of 
 the said John Montgomery as a State Prisoner, was a secret mea- 
 sure adopted by himself of his own sole authority as Governor, 
 and that the same was not known to his Council or to any other 
 person." 
 
 The Court, on the 22nd May, 1810, read " the affidavit of 
 John Hewitt, the Eegistrar and Clerk of the Crown relative to a 
 contempt committed by Cuthbert Fenwick* in composing and 
 publishing under color of a petition for certain native prisoners, a 
 false, contemptuous and scandalous libel, reflecting upon the 
 administration of Justice and the public conduct of the Grand 
 Jury and Magistrates, which was produced by him and read in 
 Court on the 14th May," and at the request of Mr. Hewitt 
 "granted an attachment against him and ordered him to be com- 
 mitted to Gaol for his said contempt, for one month." 
 
 On the 26th May, Mr. Fenwick petitioned the Court praying 
 to be released, and on the 29th May, 1810, " upon reading the 
 petition of Cuthbert Fenwick, expressing his contrition and sorrow 
 for his offence, his ill-health and the crowded state of the Gaol §, 
 and praying to be liberated, which petition was verified by affida- 
 vit, it was ordered by the Court that the remainder of the impri- 
 sonment be, under the circumstances, taken off and remitted, and 
 that the prisoner be accordingly discharged from the attachment 
 and relieved from further confinement." 
 
 On the 10th July, 1810, the Court became the seat of very 
 great disorder. Whilst sitting alone in Quarter Sessions on that 
 day, the Eecorder was suddenly interrupted by the High-Con- 
 stables of the Island, who wished to resign their posts. The fol- 
 
 * Vide List of agents, &., 1st Charter. 
 
 § The following will shew the state and condition of the Gaol at the time in 
 question: 
 
 Session of Oyee and Terminer. 
 
 9th October, 1809. 
 
 " The Gaoler, "William Russell, being called by the Court, and sworn as 
 
 to the state of the Gaol, and the prisoners in his custody, deposed, that one hundred and 
 
 forty-seven prisoners were mustered this morning in the Common Gaol that 
 
 among the prisoners are several who have lain in the said Gaol for upwards of thirteen 
 years, thirteen in all — eleven men and two women +, undercharges of murder .... that 
 one hundred persons, according to his belief, is the utmost that the Gaol can safely con- 
 tain, and one hundred and thirty-five persons is the average number mustered every 
 day. That the Gaol itself is confined, and low and shut out from air, and contains very 
 
 little space for the prisoners to move or stir about and although the Gaol is quite 
 
 crowded, yet the prisoners keep their health tolerably well at present." 
 
 t See foot-note ante p. 34. 
 
xlviii PREFACE. [Chap.ir. 
 
 IstChartbb. lowing extracts from the Court records, will however, apeak for 
 
 „ themselves. The case is here given at some length, in order to 
 
 Stanley, b. ^ & mQre ^^ v i ew f ^he circumstances that gave rise to it, 
 
 1808-1816. as well as to shew the attitude of the better class of Europeans 
 even at this date. 
 
 ** While the Court was proceeding with the trials of the different Criminal Ca- 
 ses, which were set down for this day, Mr, John Dunbar, who appeared in Court 
 with some other persons frequently attempted to interrupt the proceedings by ad- 
 dressing some words to the Court, during the trials, which the Court endeavoured 
 to avoid ; he at length pressed himself upon the Court, by informing the Recorder 
 on the Bench, "that he was determined not to act any longer as a High-Constable 
 in the Districts of Glugore and James Town [Byan Lepas,] to which he had been 
 appointed, having served for one year, and that he had communicated such his inten- 
 tionsto the Governor and Council," in which declaration he was joinedby Mr. Thomas 
 McGee, Mr. Jeremiah McCarthy, and also Mr. David Brown, the Sheriff, who 
 are also High-Constables The Recorder observed " that as the appoint- 
 ment of Constables was a local matter, he had left it entirely with the Governor 
 and Council * as the local magistrates who had nominated those persons at the Quar- 
 ter Sessions pursuant to their own wishes, and voluntary offers and 
 
 that he must decline intermeddling in it" * , upon which Mr. John Dunbar, 
 
 [joined by Mr. Jeremiah McCarthy, Mr. Thomas McGee, and Mr, David Brown] 
 in a very menacing and contemptuous manner, lifting up his hands, and sometimes 
 laughing in the face of the Court, persevered in stating, " that he and the others 
 were determined not to act, and that they would not act, the Court might fine them, 
 — that they did not mind, nor would they continue to act any longer as High Con- 
 stables, and further that they could not be compelled to do so without their consent." 
 
 "Whereupon the Recorder expressed his surprise at this unexpected conduct 
 of the party, and that no communication had been previously made with him, and 
 he mentioned that if any person were appointed by the local Justices of the Peace 
 at Sessions as High-Constables, under the local circumstances of the Island, and 
 the difficulty of procuring fit European inhabitants in the remote Districts for that 
 purpose, that they were strictly compellable by the Charter to act in those offices . . ." 
 
 " Mr. John Dunbar then, in a very insulting tone, declared in the face of the 
 Court, that he would tell the reason why he and the others refused to act, namely — 
 that suits and actions were brought in this Court against him and others [here ho 
 observed, and animadverted upon the case of a native against Mr. John Deans for 
 an assault by beating and kicking him, so that he was obliged to continue in the 
 Hospital for several days under surgical assistance, and which had this day been 
 tried in Court], and that while this Court is conducted as it is, and matters allowed 
 to go on as they are, it was dangerous and a disgrace to continue any longer as 
 High-Constable under this Court ; and that the native Petit or Police Constables 
 would or ought also to resign their offices." 
 
 " Upon being asked by the Court, what he meant by such expressions, he ex- 
 plained himself by saying that Perjury and subornation of Perjury and false evi- 
 dences were adduced in this Court, and that for his part, as he received no salary 
 from the Government [observing very flippantly and jocularly that the Recorder 
 received a salary of 1,0U0 Spanish Dollars a month] he made up his mind, and 
 would not submit— But he denied that it was the law of England to appoint and 
 compel Constables to act against their own will, and threatened in a very haughty 
 tone of. voice, that he would appeal the question," and threw out insinuations and 
 reflections equally bold and contemptuous." 
 
 " Mr. Jeremiah McCarthy then rose up and in a contemptuous manner and tone, 
 said '* that as for him, he was not afraid of the Law," beating his hands on the 
 rail of the Court. Mr. David Brown, the High- Sheriff, instead of maintaining order 
 and decorum in the Court, which he was commanded to do by the Recorder, [the 
 Court now appearing to have become turbulent, and in a state of riot and 'disorder, 
 crowded by a vast concourse of the Native inhabitants], left his chair, warmly joined 
 Messrs Dunbar, McGee and McCarthy, and in a highly disrespectful and insulting 
 manner, told the Recorder, holding up his hands very contemptuously towards the 
 Court, " that he also would not act, and that he would appeal from any fine or 
 decision, the Recorder may make, and that such was not the law." 
 
 " The Recorder commanded the Sheriff to keep order and respect in the Court, 
 and to sit down in his place as Sheriff, which he declined, and would not do, in- 
 
 * See ante p. 45, 
 
1808-1826.] JUDICIAL— HISTORICAL. xlik 
 
 sisting " that he had a right to be heard and would be heard." The Civil Power IstC&arter. 
 
 having altogether deserted the Court, and it appearing to the Recorder, that it was 
 
 a premeditated attack upon the Court, and that the application in respect to Con- Stanley, R. 
 
 stables was only made use of as a color and pretence, and at all events unnecessarily 
 
 forced on the Court, for decision, while the matter was under the consideration of 1808 — 1816. 
 the Hon'ble the Governor and Council; and the conduct of the parties, and the 
 circumstances which occurred, furnishing a fair presumption, that their real object, 
 was to insult the Recorder and the Court, and to degrade it in the eyes of the 
 native subjects and others ; and in fact, to intimidate the Recorder by parties and 
 by threats, in the face of the Court, from doing his public duty, and administering 
 the law to the natives in some actions which had depended, and were depending, or 
 which may hereafter arise against the individuals who composed their party, and 
 others their friends, and also to endeavour to embarrass the Court, and the adminis- 
 tration of Justice, under color of declining to act as High-Constables in the 
 remote districts, where there was a scarcity of European inhabitants, and where 
 they had always the effective aid of the native Police Constables, who were paid 
 salaries for doing the actual duty, which rendered the duty of the European High 
 Constables [to whom it was only intended to give a kind of controul over the 
 native Constables, and to prevent any abuse of power by them] little more than 
 nominal ; and the Court being reduced to a complete state of disorder and confusion 
 [a similar instance of which had scarcely before accrued], and the proceedings of 
 the Court being thus disturbed, the Recorder thought it prudent under those 
 circumstances, to adjourn the Court to Tuesday the 31st instant, and to decline at 
 that moment taking any final determination, upon a matter which came by 
 surprise upon him, and in so contemptuous and suspicious a form." 
 
 Immediately after this, the Recorder informed the Governor, 
 of what had happened in Court, and after having asked for a 
 copy of the proceedings, the Governor, Mr. C. A, Bruce, by letter, 
 dated 16th July, 1810, informed the Recorder that " the dignity 
 " of the Court would at all times command the consideration of 
 " Government, and that it was his intention and the intention of 
 " such of the members of Government, as could be present, to appear 
 " as Judges on the Bench on Tuesday, when he requested that the 
 "late High-Constables may be directed to attend. In thepunish- 
 " ments legally due to the high offences recorded on the proceed- 
 " ings, the Court would be directed by the legal wisdom of the 
 " Recorder. In the enforcement of these punishments, and oil the 
 " repression and punishment of any of the smallest disrespect to the 
 " Court, all the power of Government would be exerted that the 
 " nature or necessity of the case niay require." On the 17th July 
 1810, the Court accordingly met by special appointment, and com- 
 posed of the " Hon'ble Charles Andrew Bruce, Governor, Sir Ed- 
 " mond Stanley, Recorder, and William Edward Phillips, Es- 
 " quire," " sat as a Court of King's Bench," for the purpose of 
 enquiring into the disorder mentioned, when all the parties were 
 attached, with the exception of Mr. Thomas McGee, " the cir- 
 " cumstance of his being with the party in Court, being only al- 
 " leged against him." 
 
 The following shews the sentences passed : 
 
 " The Court having taken into consideration all the circumstances of 
 
 the case, and the public declarations made by the respective parties, charged with 
 the high contempts against the Court and the Laws, and their offering to make 
 atonement for their offences, by public apologies ; and, considering that in this 
 Settlement, which has existed so long without Laws to repress irregularities, that 
 upon the establishment of a new jurisdiction, and Court of Justice, it is possible 
 that the parties oharged may not have exactly known the nature, extent or danger- 
 ous consequences of such offences, are disposed on this occasion, to adopt the 
 
1 PREFACE. t° ha P- IV - 
 
 1st Charter most lenient punishment, that the necessity o£ supporting the dignity of the Court, 
 _ and authority of the Laws will admit of, in hopes that .their moderation upon the 
 
 Stanley R present occasion may produce the desired effect, and prevent the repetition of such 
 a _, outrages in future, and that the Court may not be driven to the necessity of 
 1808—1816 exercising the extensive power with which the law has armed it, for the preserv- 
 ation of due and equal administration of Justice, and the security of peace and 
 good order, 
 
 "Under such circumstances, the Court proceeded to pronounce the following 
 sentences upon the said John Dunbar, David Brown, and Jeremiah McCarthy, to 
 wit: 
 
 " That the said John Dunbar do pay a fine of 300 Spanish dollars to the 
 Government, to be paid by Tiim or levied in the usual way by the Sheriff, — that he 
 do stand at the Bar of this Court, and read a paper containing a public apology for 
 his contemptuous, disrespectful, and contumelious conduct in Court, on the 10th 
 July, 1810, to be afterwards filed and entered upon the public records of this Court; 
 and that he do afterwards enter into a recognizance with two sufficient securities 
 for his good and peaceable behaviour for the term of 3 years, himself in 500 Spanish 
 dollars, and 2 sureties in 250 Spanish dollars each, and upon the terms thereof that 
 he be discharged." 
 
 The order against Mr. Jeremiah McCarthy and Mr. David 
 Brown, begins by saying, that as they had both " expressed their 
 contrition, and having publicly declared that they did not 
 understand the nature of the offence they had committed," — or the 
 latter " the extent of his duties, through ignorance," — and were 
 sorry for it, the Court fined them. 20 and 200 Spanish dollars 
 respectively, and that they also do " read a paper containing a 
 public apology in Court " 
 
 The following was the paper read by Mr. Dunbar : 
 
 "Whereas I, John Dunbar, late High-Constable in this Island, did on the 10th 
 day of July, 1810, while the Court was sitting, and in the face of the said Court, 
 when the Hon'ble Sir Edmond Stanley, Knight, Recorder, presided there on the 
 Bench, address myself to his Lordship in a very contemptuous, disrespectful and 
 intemperate manner, reflecting upon the administration of Justice, and the 
 proceedings of this Court, and whereas, I confess and do acknowledge that I have 
 acted in a very gross and improper manner ; and I did then use gestures and 
 language highly unbecoming and unjustifiable towards the Hon'ble the Eecorder 
 before the Court then sitting, which conduct, I must acknowledge to be subversive 
 of the Peace of this Settlement, disrespectful to the office of the Hon'ble the 
 Recorder, to our most gracious Sovereign, and to this Hon'ble Court ; and also 
 subversive of the Rules which obtain wherever civilized society is known, I dp 
 acknowledge that I was actuated by improper heat and passion on that occasion; 
 and that I regret and humbly ask pardon of his Lordship and of the Court for 
 the indignity offered both to him and the Court : and I offer this public atonement 
 in justice to the injury done the public peace in having insulted the authorities 
 established for its preservation. Signed. John. Dunbar." [a] 
 
 The order of the Court, after setting out the several apologies, 
 concludes as follows : 
 
 " The Court, in consideration of the said public atonement to the Laws, and 
 the authority of this Court, and for the reasons hereinbefore mentioned, are 
 induced to comply with the prayer of the several parties contained in their respec- 
 tive apologies, to remit any additional punishment which the Laws might warrant 
 m such a case, and therefore do discharge them in this instance 
 And the Court declared, that having observed a disposition ' of 'late ' in ' many 
 instances, to shew a contempt of the Laws, and to prevent the free and equal 
 administration of Justice, that they are resolved in future, [after the Law has 
 been so fully and publicly explained] to punish such offences by whomsoever 
 committed, with the utmost seventy of the Law." 
 
 [a.] The papers read by the other parties, differ, but slightly from the one 
 given, and relate to the acts committed by each individual. ' 
 
leoB-iSM.] JUDICIAL— HISTORICAL. H 
 
 Between this period, and 1814, the records disclose nothing 1st Chaemb. 
 special, beyond local dissensions between the Recorder and some of gTANLBTj jj; 
 
 the European inhabitants, — one letter signed by two individuals, 
 
 Merchants of Penang, dated 20th June, 1811, and "which was 1808-1816. 
 
 delivered to the Recorder by his peon, on Thursday, the 20th June, 
 
 about 4 o'clock, immediately upon his rising from the bench and 
 
 just as he got inside the door of his chamber," was communicated 
 
 by him to the Lay Judges at the rising of the Court at a Session 
 
 of Oyer and Terminer, on the 22nd June, 1811. This letter 
 
 informed Sir Edmond Stanley, in consequence of " insinuations 
 
 thrown out by him, both from the bench and in private," in regard 
 
 to the conduct of the individuals in question in the case of John 
 
 Baird v. Bwetto* that "had any imputation of an injurious 
 
 " nature and reflecting upon them been thrown out by private 
 
 " persons, the means of obtaining redress were too obvious to be 
 
 "mentioned, but the dignified position, he, the Recorder, filled in the 
 
 " Island, only admitted of their expressing their surprise that such 
 
 " observations should have been made by a Judge, particularly 
 
 "from the Bench " Duly registered is the Recorder's 
 
 opinion that he believed " it was in consequence of those circum- 
 " stances, [i.e., the action taken by him in the case above alluded 
 " to] that he received the above-mentioned letter, which, he con- 
 " sidered a threat held out to him, and if not, a challenge or an 
 " endeavour to provoke a challenge, at least it contained a written 
 " and a very heavy censure upon him for doing nothing more than 
 "his public duty.' . . . .and that it was difficult to hope that the 
 " Recorder would be able to persevere in dispensing justice equally 
 " and effectually in a place where so many repeated attacks had 
 
 " been made on the Court from different quarters and where 
 
 " he was liable to such attacks on his rising from the bench at a 
 " very late hour, and after going through the fatigues and labours 
 "of very arduous public duties. After stating those circum- 
 
 " stances, the Session adjourned " On the 10th of August, 
 
 1812, a few days after the Recorder had received a letter contain- 
 ing "scandalous and malicious libel" in reference to a case [a] 
 
 *Not reported. 
 
 [a.] " In the Cotjet of Judicature of Peince of Wales' Island. 
 Monday, 27th July, 1812. 
 
 In the Cause of Inche Meyden and others, Creditors of James Scott, deceased, 
 
 against 
 
 William Scott, Executor and Trustee of the said James Scott, &c. 
 
 i . 
 
 Bead the Order of the 2nd July, 1811, and the Sheriff's return and the 
 
 Eeports of the Acting Registrar, of 31st August 1811, .... relative to the debts of the 
 late James Scott, and the inventories filed by William, Eobert, and Christiana Scott, 
 and the orders of the 24th and 25th February, 1812, whereby it was ordered that the 
 demurrers put in by the several securities were overruled, and that the bonds passed, 
 should remain as a security against the several Administrators, should it appear here- 
 after that any Wastes or Devastavits have been committed .... the Registrar having 
 reported that the parties have not since filed any further account .... and upon read- 
 ing the affidavit of A-nthony Dragon, dated 17th July, 1812, of the hand- writing of 
 Eobert Scott, in two letters, addressed to Sir Edmond Stanley, marked A. and B., 
 
Ui PREFACE. Coh»p.iv. 
 
 IbtChabteb. pending before him, he caused the following documents to be regis- 
 Stanlby, R. which letter A) amQng Qther thingg) contains the following : 
 1808—1816. Samarang, 
 
 May, 28th, 1812. 
 To Sir Edmond Staniey, Kt. 
 
 Prince of Wales' Island. 
 Sir, 
 
 1st. From your general conduct, I was not surprised at hearing from my friends 
 at Penang, that you had expressed yourself in the following manner, from the hench, 
 viz. : that your mind was tainted with suspicions regarding my conduct that you could 
 never get rid of ; that I was a young man, that you had seen once or twice at your house, 
 and whom you had scarcely any knowledge of, but from the splendid equipage and style 
 I had lived in, without any visible income, you had no doubt, but that I had helped 
 myself largely from the rents and profits of the Estate. I will not now say anything 
 against your character, as your words have proved you to the world, a man of no 
 veracity. How you could assert such a falsehood in the presence of gentlemen, who 
 knew that I was very often at your house but by invitation, and that you must have 
 known something about me during two or three years acquaintance, is astonishing. 
 You must be a very shallow observer indeed, that after meeting me for the above period, 
 twice or thrice a week, you could not know something of me. For my own part, I very 
 well studied your character, and am sorry to say, I have not been mistaken. 
 
 2nd. Few people indeed, ever sought your company, and I can assure you, I never 
 did, nor had the title of Sir Edmond Stanley, Kt., any weight in my wishing to have 
 the Hon'ble Recorder, as my acquaintance. 
 
 3rd. "With respect to your violent attack upon my character, you must account to 
 me hereafter, for I hope that period is not far distant, when I trust to meet you as a 
 man publicly, and not as an assassin stabbing at my character, when you knew I could 
 not defend myself. I was two years in Penang, after giving up the administration of 
 Mr. Scott's Estate, why did you not then make the attack you have since done. Hold- 
 ing your conduct in the utmost contempt, 
 
 I remain, Sir, 
 
 Your most obedient servant, 
 
 ROBERT SCOTT. 
 
 It is ordered that an attachment do issue against the said R. Scott, for his violent 
 and daring contempt in composing and sending that letter, and it is reserved-for further 
 consideration whether the proper officer of the Court should not file a •riminal inform- 
 ation for the scandalous and malicious libel hereinbefore stated, and whether a Civil 
 action to recover damages for the defamation and slander contained in the said letter 
 should not be brought : " The means I had of keeping up splendid equipage and style 
 are best known to myself, and I think you demean yourself very much in mentioning 
 it, but perhaps, comparing the style you lived in yourself from that of others, you 
 thought a young man keeping a buggy with two horses, the high-road to ruin and indi- 
 cative of fraud. i 
 
 Petition of Thomas Kekewioh, Acting Registrar and Clerk of the Crown, praying 
 leave to file a Criminal Information against Robert Scott " for the gross, scandalous 
 and malicious libel contained in the above recited letter, on the Hon'ble the Reoorder 
 of this Court, and that a "Writ of Proclamation may be directed to the Sheriff, com- 
 manding the said Robert Scott to appear and answer the contempt committed by him, 
 —the Sheriff h iving returned the attachment that issued for that purpose, that the 
 said Robert Scott was not to be found in his Bailiwick," filed, August 12. 
 
 Attachment against Robert Scott, dated 30th July, 1812, "returned 1st Ausmsi 
 1812, read, 5 ' 
 
 Tide Letter of Apology of Robert Scott, dated 2ltth October, 1812, received 21st 
 May, 1813. 
 
 Friday, 2Srd April 1813. 
 " The Recorder feels it proper to reserve to himself the right of proceeding in 
 future against suoh persons as may have been .concerned in the late Criminal proceedings 
 inthe unjust libel against the Court and himself, by such modes and remedies as he 
 may be advised to take, andas the honor of the Court and vindication of his own reputa- 
 tion may require, -see In the goods of Thomas Kekewioh, deceased. Ecclesiastical 
 Cases, vol, II. of those Reports. 
 
UN-UN.] JUDICIAL-HISTORICAL, liii 
 
 tered in the Court- Book i 
 
 IstChartkb. 
 
 Extract from the General Letter of the Hon'ble the Court of Director*, 
 
 to Prince of Wales' Island, under date 4th January, 1811. Stanley, E. 
 
 " Para 10. We cannot conclude this subject, without expressing our acknow- 
 ledgments to Sir Edmond Stanley, not only for the manner in which he appears 
 most assiduously to perform the duties incumbent upon him, as Recorder in Court, 
 but for the readiness with which he has assisted in forming the Establishment of 
 the Police, and Court of Bequests, and the attention he has shewn to economy in 
 everything which has come under his consideration." 
 
 Extract from the General Letter of the Hon'ble the Court of Directors, 
 
 dated East India House, London, 4th April, 1807, to Prince of 
 
 Wales' Island. 
 
 " Sir Edmond Stanley, who heretofore held the high office of His Majesty's 
 Prime- Serjeant at law in Ireland,' is appointed to be first Eecorder of Prince of 
 "Wales' Island. 
 
 His Majesty's anxiety that the Court should have every assistance which legal 
 abilities can render it, is manifested by the selection of a lawyer, who held so dis- 
 tinguished a rank as Sir Edmond Stanley in his Service in Ireland, to fill the office 
 of Eecorder, and we direct every attention due to his high station and personal 
 merits shall be paid to him." 
 
 On the 21st July* 1814, the Court granted the first. " license 
 to marry." These licenses were granted out of the Ecclesiasti- 
 cal side of the Court, on presentation of a memorial, and were 
 presumably granted by the Eecorder in his capacity of Ordinary. 
 Each Order of Court, granting such licenses, was duly registered. 
 The first of these, runs as follows : 
 
 " Petition of James Cousens, Esquire, for license to marry Eliza Hall, daughter 
 of John Hall, Esquire, and of the said John Hall, read, — 
 
 Ordered the prayer of the said petition .be complied, and that a license do issue 
 to Wm. Edward Phillips, authorizing him to celebrate the said marriage pursuant 
 to law." 
 
 The practice however, was generally resorted to, " in the 
 absence of the Chaplain from the Settlement, or of any autho- 
 rized clergyman of the, Church of England." The last license 
 granted by the Court, in Penang, bears date 15th June, 1855. By 
 an Order of Court, dated 5th August, 1829, the fee for " filing 
 petition for marriage license," was fixed at $2, and for a " license 
 for celebrating marriage under Seal of the Court," at $20. 
 
 Appeals from decisions of the Court of Judicature, were made 
 under the provisions of the Charter, to the King in Council [Privy 
 Council] . The first one on record from the opening of the Court, 
 is on the Civil Side, and is that of Cundapha Shatteerv. John Dun- 
 bar, dated 5th May, 1 814, wherein judgment was entered up for 
 the plaintiff for $10,478.60$, and appeal granted " on condition 
 of the defendant depositing the amount of judgment in the Trea- 
 sury, and furnishing security by Bond to the plaintiff for $2,000 
 for costs of appeal." 
 
 On the 20th January, 1816, a difference arose in]Court between 
 the Recorder and the lay Judges on the propriety of proceeding 
 with the trial of Mr. James Cousens, the sub-Treasurer and Ac- 
 countant- General of the Court, who was charged inter alia with 
 embezzling suitors' monies, " Mr. Duff, the Law Officer of the 
 
 1806—1816. 
 
Uv 
 
 PREFACE. 
 
 [Chop,. IV. 
 
 IstChabteb. Honorable Company," eventually filed a Nolle Prosequi against 
 Stan ~ r Mr. Cousens, and he was discharged from custody. As before 
 
 ' " stated, on the discovery of the irregularities, the post of Account* 
 
 1808—1316. ant-General' was separated entirely from the Treasury* 
 
 The records do not shew anything of further consequence in 
 Sir Edmond Stanley's time [a.]. Shoi*tly before his departure, he 
 recorded the following : 
 
 14th November, 1816. 
 
 The Recorder thinks it proper to record in the Court Books that Mr. Eobert 
 Ibbetson, the High-Sheriff of Prince of Wales' Island, and the Paymaster of 
 Government, has never, since his appointment to the office of High-Sheriff, honored 
 his Majesty's Court with his presence, either on the first days of the opening of the 
 Terms or the Sittings after or on any day during the Terms or Sittings, since his 
 appointment, nor has he ever been present on any occasion at any part of the pro. 
 oeedings of the Court, nor has the Recorder of Prince of Wales' Island ever seen 
 him in Court or elsewhere since his appointment to the office of High-Sheriff." 
 
 Cooper, R. 
 1317. 
 
 Sir Edmond Stanley was succeeded by Sir George Andrew 
 Cooper, who remained here but a few months [6.] Beyond a few 
 then important cases tried by him, one of them relating to the 
 dismissal of a petition by " Charles McKinnon, Esquire, f praying 
 that part of the Will and Testament of, the Hon'ble William 
 
 * ante p. 41, 
 
 [a] The following extracts contain an interesting account of the services, &c, 
 of the first Recorder : 
 
 " Sir BdmondStanley was born in November, 1760 — became a student of Trinity 
 College, Dublin, in 1776 and was there elected to a scholarship. Called to the Irish 
 bar on the first day of Michaelmas Term 1782, and went the Connaught Circuit — 
 appointed King's Counsel and a Bencher of the Honorable Society of King's Inns 
 in Dublin. In May; 1790,. returned 'to the Irish Parliament for the borough of 
 Augher, in the County of Tyrone, and subsequently for Lanesborough, which place 
 he continued to represent till the legislative union abolished the Hibernian House 
 of Representatives ; entered the House of Commons soon after he became a King's 
 Counsel and remained a member of that body for about seven years ; dignity of 
 King's third Sergeant conferred on him in five years from the period of obtaining 
 his silk gown. Frequently employed in the trials of offenders during the Irish 
 rebellion of 1798, and specially sent to Cork in that year where he performed duties 
 assigned to him at great personal risk, receiving the thanks of Government, &c, 
 became Prime Sergeant in 1800, and soon after received the additional appointment 
 of Commissioner of public accounts. In April, 1807, appointed Recorder of Prince 
 of Wales' Island, being the first who filled that office under the new Charter of 
 Justice, which had been issued for the purpose of establishing there a Court of 
 
 British Judicature. On that occasion, he received the honour of Knighthood , 
 
 In 1816 appointed one of the Judges of the Supreme Courtat Madras, and eventually 
 Chief-Justice of that Court till the year 1825j when he retired on pension and 
 
 returned to Europe In the discharge of his judicial functions at Penang, 
 
 he had a task of no ordinary difficulty. The state of society to which he was bound 
 to become an instrument of reform, was then marked by almost every crime that 
 can be committed against public order, or against person, habitation or property. 
 But the successor of Sir Edmond gives a very different account of the condition of 
 the Island, and from this the inference is obvious, that during the few years which 
 he presided, his wise and rigorous administration of Justice had been attended 
 
 with the most salutary results died at Richmond, Surrey, 28th April 1848." 
 
 [London Asiatic Journal, June, 1843.] 
 
 [&.] The dates of assumption and relinquishment of duties by the different 
 Recorders, as well as the mutations between them, are not given in this preface 
 but will be found set out in the list of Recorders and Judges, infra. ' 
 
 j + T a o, "a P ri f oi P^ Sur & eon t0 **• H <>n- Co."-[i» the Goods of William Petrie, 
 deceased, 23rd July, 1817, not reported.] ' ■ ' 
 
1608-1826.] JUDICIAL— HISTORICAL. 1* 
 
 Petrie, Esquire, [the late Governor who had died in October, 181 6 J, 1st Chaster. 
 
 containing libellous and scandalous expressions against Lim, the said coofeb, E. 
 
 Charles McKinnon, be ordered to be expunged from the said Will, — '- 
 
 and that Prqbate of the said Will be stayed," there is nothing to 1S17. 
 - be found, requiring particular notice. 
 
 Sir George Cooper was replaced by Sir Ralph Rice, who Rice, R. 
 
 arrived here in November, 1817. Shortly after his arrival, he - — 
 
 admitted the first Notary Public or Conveyancer to practice. The 1817— 1824 ' 
 following entry is to be found in the Court Book, in reference to 
 this appointment : — 
 
 15th December, 1S17. 
 
 Petition of Robert Terraneau to be appointed a Notary Public. 
 
 Upon reading the entry in the Minute Book of Mr. Thomas Stacfchouse, * ap- 
 pointed as a Notary Public, and Burn's Ecclesiastical Law, respecting the appoint-- 
 ment of Notaries, 
 
 Ordered that Mr. Robert Terraneau * be appointed Notary Public for this 
 Island, and the usual oaths be forthwith administered to him, which was accord- 
 ingly administered." 
 
 By Ordinance 5 of 1873, section 38, Conveyancers were requir- 
 ed to pass an examination prior to admission and enrolment, and by 
 the same Ordinance, all unlicensed individuals were prohibited 
 under a penalty from acting as Conveyancers. These admissions 
 are now governed by Ordinance 5 of 1878, section 23. 
 
 On the 26th October, 1819, Sir Ralph Rice proceeded to China, 
 on account of ill-health, and returned to Penan g on the 23rd 
 February, 1820, his duties in the meantime having been carried on 
 by the Governor, Colonel Bannerman, and Councillors. 
 
 The records in Sir Ralph Rice's time, disclose nothing special, 
 beyond embarrassments evinced by the local authorities in regard 
 to the landed tenures of the Island, and regarding which, in the 
 absence of any Crown Law Adviser, he was frequently oonsulted 
 by the Government. Some of his opinions are to be found em- 
 bodied in a valuable work by Mr. W. E. Phillips, the then Gover- 
 nor, a manuscript of which, is amongst the records of the Court [a]-. 
 
 On the 12th November, 1821, a matter of an extraordinary, 
 and of a somewhat important nature, occurred in reference to one 
 of the Councillors, Mr. John Macalister, who being also a Judge 
 of the Court, as well as a Magistrate and Justice of the Peace, was 
 called upon to furnish security to keep the peace for having chal- 
 lenged a Major Coombs, [whom, " the statement of the case," 
 signed " W. E. Phillips, Governor, Ralph Rice, Recorder, and 
 " J. J. Erskine, Councillor," styles " Town Major, and a very res- 
 " pectable man "] f to fight a duel. Mr. Macalister furnished 
 security, but not without having first protested on the ground 
 
 * Vide List of Law Agents, &o. 1st Charter. 
 
 [a.] Since published by the Hon'ble W. E. Maxwell, Comi;. of Lands, S. S. 
 [1884]. 
 
 t "Was previously aide-de-camp to Governor Petrie. [In the Goods of William 
 Petrie, deceased, 23rd July, 1817, not reported.] 
 
lvf PREFACE. [chap. iv. 
 
 1st Charter, that " he also was a Magistrate . and conducted 
 
 ~ " himself in an insulting, violent manner" before the other Magis- 
 
 1_ ' trates who were also Justices of the Peace, and before whom he 
 
 1817—1824. had been summoned by letter to attend. The records shew, that 
 after entering into a recognizance in $6,000, to be of good behavi- 
 our for two years, Mr. Macalister apologised for his conduct, 
 which was accepted as " satisfactory and adequate to the vindi- 
 " cation of the honor and character of the Magistracy." 
 but the Court left " the Judicial decision and determination of 
 the case, to the higher authorities elsewhere, Mr. Maca- 
 lister's situation in the Court and Government, wholly exempting 
 him from trial for a misdemeanor in this Court, according 
 to the provisions of the Charter." The matter was thereupon re-. 
 ferred to the Governor-General of India, to whom Mr. Macalister 
 appealed as well," and a " case stated for the East India Com- 
 pany." Mr. Macalister was eventually severely censured, and 
 duly recorded are to be found the opinions of "J. B. 
 Bosanquet, R. Gifford, Attorney-General, J. S. Copley, Solicitor- 
 General," dated Lincoln's Inn, 10th February and 20th March, 
 1823 respectively, as well as the opinion of the Advocate-General 
 of Bengal, who had all been referred to, " that one of the Judges 
 " of the Court of Prince of Wales' Island, may be arrested and 
 "imprisoned there by Warrant of the other Judges, for refusing 
 " to find securities to keep the peace, upon certain occasions as 
 " that mentioned in the case namely, an alleged intention to fight 
 " a duel, such a proceeding being necessary not merelyio prevent 
 " the commission of a misdemeanor, but of a felony in which he 
 " would be liable to be tried by the Court." 
 
 Sir Ralph Rice inaugurated a system of pleadings, which was 
 a wide departure from the English pleadings introduced by Sir 
 Edmond Stanley, — these consisted of a simple form which was 
 mostly by way of petition. The records disclose in his time, the 
 first of the only two libel cases heard in Penang criminally before 
 a Jury, a Mr. John Anderson, on the 30th September, 1823, being 
 arraigned for libelling a Captain Luke, and sentenced to twb 
 months' imprisonment and to enter into a recognizance to keep the 
 peace. The other case was that of one Mootoo Oodian, who was 
 tried under the Penal Code in May, 1873. Sir Ralph Rice left 
 for Bombay, where he had been appointed a puisne-iudge in 
 August, 1824. ' ■ 
 
 Batlet, E. Sir Francis Souper Bayley, appointed successor to Sir Ralph 
 
 1824. Elce * ass umed duties on the 26th August, 1824, but died within 
 two months after his arrival. 
 
 Kcok- t ? n , th l 2 l th ? ct °Jf 'J 82 i the G°™rnor Mr. Robert Fuller- , 
 
 [ La!] n° n ' t0 -t the b , en °^ W1 ^ Mr - WiUiam ^'"strong Clubley, Senior 
 
 Councillor, and ordered « that the office of Recorder having now 
 
 become vacant by the demise of the Hon'ble Sir Francis Souper 
 
 Bayley, _ Knt., Recorder of Prince of Wales' Island and its de- 
 
 < pendencies, and m accordance with the provisions of the Charter, 
 
 the Court do « proceed on business of the Term and perform all 
 
 "its other functions, aud moreover adjourn from time to time as 
 
isos-isaf] JUDICIAL— HISTORICAL. lvii 
 
 " it shall see fit, as prescribed by the said Charter." This order 1825—1826. 
 was carried out for nearly three years, the Governor and Council- ™ r ECO b- 
 lors taking the bench in turn, until the assumption of duties by dee.] 
 Sir John Thomas Claridge, the first Recorder under the 2nd 
 Charter, in August 1827. Sir John Claridge however, arrived in 
 Penang, a year befoi'e the Charter under which he derived his 
 authority, had reached the Straits. In the meantime, as herein- 
 after mentioned, he acted as a sort of assessor to the lay Judges. 
 
 CHAPTER V. 
 
 CONTENTS. 
 
 ','/.S€Bfti. 
 
 Second Charter of Justice. 
 1827—1855. 
 
 SIR JOHN THOMAS CLARIDGE. 
 1827—1829. 
 
 1830-1832. 
 No Recorder. 
 
 Singapore and Malacca annexed to Penang — New Charter of Justice granted on 
 petition of East India Company — Court of Judicature of Prince of "Wales' Island, Sin- 
 gapore and Malacca — Administration of Justice in Singapore before being annexed to 
 Penang — Malacca — Dutch law — Captain Alexander Hamilton's account of Dutch Court 
 of Justice — the new Charter — Governor and Councillors continue as Judges, and Re- 
 corders to make Penang their head-quarters — Charter reaches Penang in August, 1827 
 — Sir John Thomas Claridge, the Recorder under it, arrives in July, 1826— the reason 
 — usual formalities gone into on receipt of Charter — Rules and Orders of Court — Court- 
 hours — Tables of fees — first Commissions of the Peace — none issued under first 
 Charter — Judges thereunder were also Justices of the Peace — Commissions relate 
 to the three Settlements — names of Justices appointed for the three Settlements — 
 Registrar informed two names originally forwarded not to be inserted in the 
 Commission — reasons — names of further Justices — in early days appointments of 
 Justices not merely nominal — similar appointments from time to time duly record- 
 ed — present appointments how regulated — Governor and Councillors take the 
 bench but a few days after proclamation of Charter — Governor asks Registrar 
 whether Governor or other Judges at any time assumed interference over business 
 of the Court — the reply — Governor and Councillors discontinue sitting with 
 Recorder — the latter protests — his reasons — Government takes no notice — Corres- 
 pondence — violent minute3 — no Court Establishment formed — Recorder expresses 
 surprise at Governor not attending Court as promised — adjourns the Court-proposes 
 meeting of Judges respecting Court establishment — records his refusal to conduat 
 Court business — reasons — his minute is forwarded to the Governor, who explains- 
 his absence — Charter only required one Judge — Recorder fully competent to 
 propose any list of Establishment — records abound with, dispute — disclose great 
 irascibility of temper — sad state of affairs — worse than before grant of first Charter 
 
Iviii PREFACE. [> a P- v - 
 
 —disputes no longer of great moment, particulars not set out— all referred to 
 Board of Directors— Sir John Claridge eventually recalled— charges against him— 
 ground for his recall— he records the reasons which induced him not to proceed on 
 Circuit—Governor's refutation of Recorder's minute— Governor proceeds on Circuit 
 to Singapore and Malacca— with Mr. Murchison, holds first Court of Assizes at 
 Sino-apore— the indictments and their nature— sentences of death— observations of 
 the°Court in passing sentence— Governor informs Grand Jury no Admiralty 
 jurisdiction— parties accused of piracy discharged— Prom Singapore, Mr. Fullerton 
 proceeds to Malacca— disposes of Criminal business there— his return to Penang— 
 difference in Court between Judges about an application for a writ of Habeas Corpus 
 to bring up body of one Charles Maitland— Recorder's remarks— further discussion 
 —Sir John Claridge leaves for Calcutta— reason— his return from Calcutta— he 
 proceeds on Circuit— his return to Penang— fresh discussions— asks that present- 
 ment of Grand Jury at Singapore be forwarded to Bengal— Governor's reply- 
 charge of Sir John Claridge to Grand Jury at Singapore— Correspondence— Sir 
 John Claridge goes on Circuit to Singapore and Malacca— Governor leaves Penang 
 for Singapore day after Recorder— on his arrival, informs Recorder that he has 
 been recalled— Recorder proposes to continue his functions— arrears— Governor's 
 re ply_Strong correspondence— Sir John Claridge proceeds to India — thence to 
 England — he is examined on the charges against him — Counsel — he is recalled— 
 some of the charges against him discarded— The Order-in-Council recalling him— 
 During dissensions in Penang, Governor Fullerton recommends abolition of Court of 
 Judicature— as a contrast, Sir Benjamin Malkin, a subsequent Recorder, questions 
 the necessity for a Governor — Governor Fullerton's recommendations — Remarks of 
 Sir "William Norris, a subsequent Recorder, thereon— Resident Councillors conduct 
 business of the Court after departure of Sir John Claridge— Straits Settlements 
 cease to be a separate Presidency — erroneous opinion of local authorities as to the 
 effect of the change — Court of Judicature held abolished — Government Notification 
 — appointments — change of government — letter to Registrar — entry in Court-Book 
 — establishments of the Court continue in existence — Governor asks how many and 
 what servants of the Court could be dispensed with— result — after close of Court 
 of Judicature, an illegal Courb sets itself up in Singapore— letter from Registrar to 
 Mr. Martin, his Senior Sworn Clerk at Singapore — the reply — he is taken to task 
 by the Registrar — the " self — constituted Court" closes — Mr. Fullerton leaves for 
 Singapore — thence to England — result of erroneous opinion of local authorities 
 that change of Government had abrogated powers of the Court — many months 
 elapse ere it is discovered that Mr. Fullerton was mistaken in his views — Board of 
 Directors so inform the Government of India — it is deemed expedient to continue 
 old Charter — doubts removed as to powers of Resident Councillors under the 
 Charter — appointments — Government Notification — Correspondence that passed 
 regarding abrogation of powers of Court and mischievous discussions between Sir 
 John Claridge and Government — where embodied — Report of Indian Law Com- 
 missioners — Judicial power restored — Court re-opens — Governor Ibbetson — Court 
 establishment although reduced, had continued to exist — entry in Court-Book on 
 re-opening of Court — Mr. Kerr resumes duties as Registrar — Mr. Kenneth 
 Murchison is sworn as a Lay Judge — Registrar — Court Establishment — previous 
 Rules of Practice observed— Court from an early period experiences great difficulty 
 about Chinese Interpreters— Government communicated with on the subject — Mr. 
 Fullerton and the Select Committee of ' Supra Cargoes at Canton — letter signed 
 W. H. C. Plowden, Charles Millett and W. Davis, in reply— Dr. Morrison, Chinese 
 Interpreter— Establishment founded by him in the Straits of Malacca— trustworthy 
 and efficient Interpreters for the Courts of Judicature in the Straits — Mr. Kerr's 
 note— Dr. Morrison's opinion of the practicability of supplying efficient Chinese 
 Interpreters for the Court of Judicature— his letter— history repeats itself— 
 difficulty experienced at the present time in obtaining suitable Interpreters- 
 Student Interpreters— Dr. Morrison's plan— business of the Court at Singapore- 
 Mr. Martin, Senior Sworn Clerk— his report to the Registrar at Penanc—applica- 
 tion of Mr. Read for A. L. Johnston & Co., for letters of Administration to Captain 
 Flint's Estate— not so many cases in Singapore as before— Sheriff 'summoning 
 public meetings— inhabitants ask Sheriff to Convene meeting to protest against 
 increased rate of Court fees— he refuses— presentment of Grand Jury thereon— 
 Fees of Court and the Grand Jury— grievance reiterated in Sir Wm. Norris' time 
 —no material change as a result-present Courts of Requests established in Sir 
 ? o" C T la " d Se, s ^e- The proclamation-appeals from Court of Requests-order 
 of Sir John. Claridge-practice before granting appeal— Sir John Claridge never 
 n F 1 ni e ^ 1 ° yed !"^ erthe <^*- PfllUMnent moved in his behalf-last time by 
 Mr Gladstone-he is opposed by Sir J. CHobhouse and Lord J. Eussell-motioa 
 withdrawn. 
 
1827-1855] JUDICIAL— HISTORICAL, lix 
 
 SIB BENJAMIN HEATH MALKIN. 
 1833—1835. 
 
 Sir Benjamin Malkin appointed Recorder in the room of Sir John Claridge — 
 his arrival — he does not find snch heavy arrears as he had anticipated — the reason — 
 which he afterwards recorded — only a few important oases reserved for him — refer- 
 ence to his decisions — his opinion of the Charter — Parliament provides for an en- 
 quiry into Courts of Justice in territories of India — the Statute — the Indian Law 
 Commissioners — their Report — reference to the Straits — Impracticable schemes 
 propounded — suggestions — Lord Auckland suggests abolition of .Recorder's Court — 
 his recommendation — none of the suggestions ever carried out — Legislature of 
 India vested with Legislative powers — the Statute — Indian Acts — Through Sir 
 Benjamin Malkin's exertions, although after his time, Act XX. of 1837, is passed — 
 . Sir Wm. Norris, a subsequent Recorder, confirms the fact— Indian and local enact- 
 ments — Regulations— great doubts as to the validity of those passed here — one 
 regulation still in force — Mr. Dickens — Correspondence between him and Mr. 
 Phillips regarding these Regulations — correspondence must have been unknown to 
 the different Recorders who also questioned the validity of the Regulations — Corres- 
 pondence set out — Grand Jurors complain again about high-rate of Court-fees — 
 Scale of fees still in existence — Suggestions of Sir Benjamin Malkin before leaving 
 the Straits — Report of Indian Law Commissioners — Sir Benjamin Malkin depre- 
 cates idea of abolishing professional Judgeship — his departure for India. 
 
 SIR EDWARD JOHN GAMBIER. 
 1835—1836. 
 
 Succeeds Sir Benjamin Malkin — His arrival — does not remain long in office — 
 appointed to a Judgeship in Madras — discountenances pleadings inaugurated by Sir 
 Ralph Rice and modified by Sir Benjamin Malkin — Grand Jurors andpetty cases — 
 Quarter-Sessions — summary jurisdiction— Grand-Jurors congratulate Recorder 
 on his advancement — they deprecate the constant removal of the Recorders after a 
 short tenure of office to another part of India. 
 
 SIR WILLIAM NORRIS. 
 1836—1847. 
 
 Sir. Edward Gambier succeeded by Sir William Norris — previously Chief-Jus- 
 tice of Ceylon^-his assumption of duties — Admiralty jurisdiction — the Statute — 
 Letters Patent proclaimed — Registrar of the Court appointed Registrar on its Ad- 
 miralty jurisdiction — the Sheriff appointed Marshal — Deputy-Sheriff appointed 
 Deputy Marshal — Admiralty fees — Sir William Jeffcott, a subsequent Recorder 
 points out to Governor Butterworth absence of authorized table of fees — Governor 
 writes to India — result — fees of office kept by Registrars — Admiralty fees received 
 until present day by Judges, Registrars, and Marshals — Admiralty jurisdiction 
 granted after the lapse of many years — repeated representations by authorities and 
 Grand Juries — papers on the subject from Mr. Dickens— authorities previously 
 powerless — prisoners charged with piracy released — others sent to Calcutta — 
 no result— Grand-Jury— minor offences — Quarter-Sessions — inconvenience felt by 
 public generally— Grand* and Petit Juries— time occupied in examination of trivial 
 offences— Recorder's time trespassed on — Court of Requests— jurisdiction could be 
 extended — only important cases, civil or criminal should be tried by Recorder— 
 Grand-Jurors deprecate change contemplated of witholding the Charter of the 
 Court— English Court of Judicature necessary— Report of Indian Law Commis- 
 sioners— Grand-Jurors reiterate their grievance— time of the Jury taken up with 
 
k PREFACE, [Chap. V. 
 
 small oases — Province Wellesley planters — panel roll — Jury question still a 
 difficult one in Penang— amusing correspondence between Oqurt and some inhabit- 
 ants of Penang— Mr. Carnegy, an agent of the Court, made to apologise within 24 
 hours in consequence of anonymous letters in Pinang Gazette — reflections on judi- 
 cial character and proceedings of the Eecorder — Recorder taken to task by two 
 merchants of Penang, for alleged remarks on them whilst delivering, judgment in 
 a case wherein they had been heard as witnesses — Recorder personally answers their 
 letter — warns them of the consequences they had run — Sir William Norris extends 
 to Malacca, Rules and Orders of Court in force in Penang and Singapore — He also 
 inaugurates present system of swearing native witnesses — previous manner of being 
 sworn — extraordinary application granted by Sir William Norris — Queen v. Bonna- 
 dieufor manslaughter — French subject —trial by a jury de mediatate lingua granted — 
 prisoner tried and acquitted— Charters nowhere authorized such a Jury — now 
 strictly prohibited — By the laws of the Colony, aliens not excluded from the jury — 
 records disclose more forcibly feelings existing before Sir Wm. Norris' time between 
 Government and the bench — Sir Wm. Norris frequently laid stress on defective 
 system of constitution of Court in its connection with the Executive — functions 
 continually clashed — his recommendations — he expresses himself in strong terms to 
 Grand-Jurors on the subject — Court could never work so well until freed from 
 all connection with executive — same anomalous system had been successively aban- 
 doned with great advantage in India and Ceylon — expresses himself in a similar 
 manner to Government — his opinion on the Report of Indian Law Commissioners — 
 suggests complete separation of Judicial and Executive branches— At Singapore 
 lay Judge scarcely likely to thwart or interfere with general business of the Court — 
 unhappydisputesbetweenMr.PullertonandSir JohnClaridge — proposed withdrawal 
 of Governor's judicial functions sufficient guarrantee — casting vote should be 
 reserved to professional Judge— questions regarding respective powers of profes- 
 sional and lay Judges — right of the former to sit on appeal on the decisions of the 
 
 latter — Admiralty Case, the Iron Queen, tried by Mr. Church — Resident Councillor 
 
 facts gf the case — Captain lodged in Jail — he petitions the Recorder on his arrival 
 on circuit — complains against Resident Councillor — decision as regards costs — his 
 reasons for resisting the claim — Sir Wm. Norris considers order of Resident Coun- 
 
 cillor as to costs unjust — grants a Rule — Resident Councillor protests — his protest 
 
 Sir Wm. Norris notwithstanding, has the rule argued before him — makes rule 
 absolute — reverses order of Resident Councillor as to costs — holds that he, as pro- 
 fessional Judge, had power to set his lay brethren right when they had erred his 
 
 grounds— Resident Councillor protests against remarks of Recorder — orders his 
 minute to be filed— Recorder objects— it is withdrawn — case in question not reported 
 —bears no longer on any point— when published — Mr. Church's remarks on 
 Report of Indian Law Commissioners — what he considered a great calamity con- 
 cerning proposed powers to Recorders going on circuit— his observations— thinks a 
 lay Judge more competent to judge correctly on matters of fact than a professional 
 Judge— his opinion of the native character — in a state of moral degradation deli- 
 berate falsehood— notwithstanding differences between Recorder and Executive, he 
 acts as Law Adviser to the Government— Mr. Wm. Caunter, Law Agent to the 
 Company— Mr. Balhetchet— relinquishment of his post as Law Agent to the 
 Company— date not found— was alternately a Government official and a law ageni^- 
 af ter relinquishment of duties by Mr. Balhetchet, Company no law agent— Mr Buff 
 Registrar in 1814 also acted as Law Officer of the Honorable Company—his appoint- 
 ment as such however, not found— nor mention made of hi3 having been a profes- 
 sional man-Mr. Buff, as Law Officer of the Company, held not to bi in the position 
 of the Attorney or Solicitor-General— no power to file a Nolle Prosequi to an indict- 
 ment-Kmg -v. China Toh-Recorders demurred against system of Company having 
 no law agents-unjust to themselves and parties before thern-anomalous position- 
 illustration-cases East India Company v. Scott, andEdwardsD. East India Companv 
 -system apparently lasted till witbiri a few years before transfer— Mr Thomas 
 Braddell, Crown Counsel at Singapore in January, 1864,-Mr. Baniel Logan, Crown 
 Prosecutor in April 1865-piior to this.-Company retained special a^lts-Inco^ 
 vemence felt by authorities themselyes-Governor Blundell appoints certain oS 
 to represent Company-officials ; desig nated-the majority of these do not appear in 
 Court records-scarcity of local Regulations-felt by Sir Wm. Norris-his reSs- 
 mconvemence as felt by present Government in regard to Ordinances^ Wm 
 Norris addresses Government regarding Act vestinl ar.Tmint™ n+ 1* T n ,. „ 
 and Peace Officers in Executive-right viwi^ttto^SS 
 tionmSirEdmond Stanley's tune-hie refusal to have anything to do wUh these 
 appointments-cause of early dissension between him and the authorities-Sir Wm 
 Norns' doubts as to the legality of the contemplated measure-complairfs of £anYof 
 courtesy towards him-his letter-the reply-the effect of the measure, the Tubject 
 
1M7-18B5.] JUDICIAL-HISTORICAL. lxi 
 
 of further discussion — Sir Wm. Norris only Recorder who remained in office a long 
 number of years — his predecessors transferred to India after short tenure of office 
 —presentment of Grand- Jury on the subject to Sir Edward Gambier— Sir Benjamin 
 Malkin advocated the abolition of the system — Straits very little apprenticeship for 
 India — Sir Wm. Norris concurs with his predecessors, Sir John Claridge and Sir 
 Benjamin Malkin, on the subject — Sir Wm. Norris 5 departure-r-his services. 
 
 SIR CHRISTOPHER RAWLINSON. 
 1847—1850. 
 
 Sir Christopher Rawlinson previously Recorder of Portsmouth — his arrival — Dur- 
 ing interval between departure of Sir "William Norris and arrival of Sir Christopher 
 Rawlinson, Governor appoints Mr. Salmond, Resident Councillor of Malacca, a Lay 
 Judge there — power vested in Governor by Charter — Mr. Salmond proceeds to the Court- 
 House to take the oaths of office — Being ill he remains in his carriage — Mr. Lewis, 
 Accountant-General, requests the Senior Sworn Clerk to have the Court opened and 
 Mr. Salmond afterwards sworn as a Judge of the Court in his carriage — the Clerk objects 
 — Mr. Lewis insists — the oath is administered to Mr. Salmond in his carriage, the Clerk 
 previously objecting to the course adopted — the Clerk reports the matter to the Regis- 
 trar — the latter communicates with the Governor — result— power of authorizing Resi- 
 dent Councillors in each Settlement to sit in absence of Recorder — Charter — each authority ' 
 forwarded to the Registrar and filed — the system inaugurated by Sir Benj amin Malkin — 
 doubts at one time raised as to the legality of holding a Court at any one of the Settlements 
 without presence of Recorder — doubts overruled by Sir Benjamin Malkin— extract from 
 his letter on the subject — assumption of duties by Sir Christopher Rawlinson — Pun- 
 ghulus — native headmen — Malay custom — Indian enactments — term not met with in 
 early local Regulations — question raised in Malacca — Punghulus as Constables — case 
 referred to professional Judge— Quarter Sessions — Punghulu oath in Malayan character 
 — copy of translation of oath — question raised not brought before Recorder— Punghu- 
 lus invested with powers of Police Offioer or Constable — Peace Officers — jurisdiction 
 for the relief of Insolvent Debtors conferred on the Court — Statute — Recorder sole 
 Commissioner or Judge — Court Rules, Orders and Tables of Fees — jurisdiction conferred 
 constitutes a quasi distinct branch of the Court of Judicature — Seal — devise — inscription 
 — Grand Jury recommend that witnesses be paid for attendance at' Criminal Sessions — 
 nothing comes of the recommendation — present allowance to witnesses — Straits Settle- 
 ments cease to be subordinate to Port William — placed in direct correspondence with 
 India — Sir Christopher Rawlinson and prison discipline — High-Sheriff nothing to say 
 in the matter — reasons — High- Sheriffship next to useless — should be abolished — Recorder 
 recommends appointment of Inspector of Prisons — reforms afterwards, carried out — 
 before leaving the Straits, he advocates trial by jury in matters of fact — one of the 
 great defects he had found in the Court — no power to call jurymen to aid him in decid- 
 ing on facts. 
 
 SIR WILLIAM JEFFCOTT. 
 1850-1855. 
 
 His arrival — several important cases decided in his time -Rules and Orders of 
 Court — admission of Advocates and Solicitors — Letter from Governor Butterworth to 
 Recorder — bears testimony to kind courtesy which marked Recorder's intercourse with 
 authorities — records disclose nothing deserving special mention — presentments of Grand 
 Jury — frequent occurrence of Sessions — severe tax on Jurymen — those from the 
 Province — death of Sir Wm. Jeffcott — the second Recorder who dies in office since Sir 
 Francis Bayley — at the time of his death, Sir Wm. Jeffcott appointed Recorder of Sin- 
 gapore under third Charter — his services. 
 
 In. 1825, by Act 6, Geo. IV, c. 85, s. 21, Singapore and Ma- 2nd Chab- 
 lacca [380 and 260 miles distant from Penang respectively] were tee. 
 annexed to Penang, as one Presidency, and a new Charter dated c^^T- E 
 
 27th November, 1826, on the petition of the Bast India Company, ' 
 
 was granted by the Crown, which created the united " Court of 1827—1829. 
 
kii PREFACE. [Chap.?. 
 
 2nd Chab- Judicature of Prince of Wales' Island, Singapore and Malacca." 
 
 TEB - Before being annexed to Penang, " during the first seven years of 
 
 ClabidgeR. its existence, Singapore was a residency administered by-asub- 
 
 ordinate officer, directly responsible for all his acts to the Supreme 
 
 1827—1829. G. overnmei it of India. This officer, with the aid of two assist- 
 ants and two or three Clerks, discharged the whole Civil duties 
 of the Settlement, including the administration of Justice, Police, 
 the Pay Department, Civil and Military* . . . . " Malacca 
 was, of course, ruled by Dutch Law before being taken over by 
 the East India Compay f 
 
 The new Charter was, to a great extent, but a repetition of 
 the previous one, having for its main object, the extension of the 
 jurisdiction of the Court over Singapore and Malacca. J The 
 Governor and Councillors continued to be Judges under it, and 
 the Eecorders also, to make Penang their head-quarters. § 
 
 The 2nd Charter only reached Penang in August, 1827, al- 
 though Sir John Thomas Claridge, the first Eecorder under it, 
 had arrived in July, 1826. This would appear to have been " owing 
 
 to negligence in some office at home, during that period, 
 
 Sir John Claridge offered his services, and they were generally 
 accepted," as before stated, " as a sort of assessor to the Lay 
 Judges of the Court." || On the receipt of the Charter, the usual 
 formalities were gone into of proclaiming the Charter, making 
 Eules and Orders of Court, — Court hours being fixed from 10 a. ni. 
 to 3 p.m., settling Tables of Pees, and other matters connected 
 with the working of the Court, — some of which tables of fees, 
 although partly amended since the new constitution of the Court, 
 are still in force at the present day. 
 
 On the 18th October, 1827, Commissions of the Peace were 
 issuedforthe first time,none having been issued under the first Char- 
 ter, the Judges of the. Court thereunder, having been also Justices 
 of the Peace. If The Commissions related to the three Settle- 
 ments, and the following are those who were first appointed " to ' 
 act as Justices of the Peace for the three Settlements," the same 
 being " duly recorded : " Messrs. Kenneth Murchison, John Ander- 
 son, Thomas Church, William Elphinstone Pullerton, Patrick 
 Ogilvie Carnegy, Charles William Henry Wright, Eichard Gaun- 
 ter, Edward Presgrave, John Pattullo, William Thomas Lewis, 
 Samuel George Bonham, Alexander Laurie Johnstone, Christopher 
 
 * Journal of an Embassy to the Courts of Siam and CocMn-China— Crawfurd, pp. 
 556, 7. 
 
 + " I will pass by their [the Butch] Court of Justice, because it hardly deserves the 
 Name, since Strangers are excluded from the Common Laws of Humanity wherein I 
 am able to give many Instances, but I voluntarily pass by Particularities."- A new account 
 oftheEastIndies-[Cb.i>,ptev38, Quedah and the other Maritime Countries and 
 Islands, as far as Malacca]— Captain Alexander Hamilton, p. 81, London, 1744. 
 
 % See Ong Cheng Neo v. Teap Cheah Neo & ore., infra, p. 343. 
 
 § Vide reasons of Sir Benjamin Malkin for residing in Penang— Ch VI nrocla- 
 mation of 3rd Charter. '' * . 
 
 || Eeport of Indian Law Commissioners, 1842, p. 114, 
 Courtdeflned"*" 45 "* *"* ° Ul ' W ' P ' 15 ' Marginal note : "Jurisdiction of the 
 
1827-1855.] JUDICIAL— HISTORICAL. lriii 
 
 Eidoubt Eead, John Argyle Maxwell and Hugh Syme." On the 2nd Chak- 
 3rd December, 1827, by letter from " John Anderson, Secretary ^^ 
 to the Government," the Registrar was informed, that " it was clmhdqe E. 
 
 not cousidered desirable that the names of Messrs. John Anderson 
 
 and.W. E Fullerton, should be inserted in the new Commission, 1827—1829. 
 about to be prepared, as the public duties of those gentlemen would 
 render their regular attendance as justices impracticable, and that the 
 following gentlemen had been directed to attend the Court to take 
 the prescribed oaths as Justices of the Peace for Prince of Wales' 
 Island, Singapore and Malacca, viz., Messrs A. M. Bond, E. F. 
 Wingrove, E. J. Cuthbertson and William Anderson," thereby 
 implying that in those days, these appointments were not merely 
 nominal, as they became in many instances in future years. 
 
 From this date, the records shew similar appointments made 
 from time to time, all being duly recorded. Appointments of 
 Justices of the Peace, are now regulated by Ordinance 3 of 1878, 
 s. s. 55, 56 and 59, their powers being defined under Ordinance 20 
 of 1870. 
 
 The Governor, Mr. Eobert Fullerton, and the Councillors, 
 sat with- the Recorder, but a few days after the Proclamation of 
 the Charter, which took place on the 9th of August, and on the 
 2nd of October, a minute is recorded that the Governor had en- 
 quired from the Registrar " whether at any time the Governor or 
 any member of Council as Judges, assumed any direct interfer- 
 ence over the transaction of the business of the Court, the Ee- 
 corder being present." Having received a reply that there was 
 nothing on record on the point, the Governor and Councillors dis- 
 continued to sit with the Eecorder. The latter immediately 
 entered a protest against the course adopted by the Governor in 
 not sitting with him, and " refused to take on himself the con- 
 " duct of the Court business independently of his colleagues," 
 because 1st, he was not bound by the Charter to conduct the 
 business of the Court, 2nd, that the Charter directed the Court to 
 consist of the Governor, Eecorder and Eesident Counsellors at 
 each Station, and spoke of the Court collectively, 3rd. that he 
 refused to make a precedent to bind any future Eecorder, 4th, 
 that the Government had made no provision for the payment of 
 his Clerk's salary, 5th, that there was no Court Establishment 
 formed — or to what extend, if formed, aid would be afforded by 
 the East India Company, and 6th, that when he saw a " full, effi- 
 cient and respectable Court Establishment of Clerks, Interpreters, 
 &c, formed," he was willing and prepared, if his colleagues desir- 
 ed it, to take on himself the sole conduct of the business of the 
 Court, " in the full belief that it was for the public benefit that 
 " he should do so" and that his other colleagues had other duties 
 to attend to. 
 
 The Government took no notice of this minute, and neither 
 the'Governor, nor any of the other lay Judges again attended 
 the Court. Correspondence followed on this and other subjects, 
 violent minutes being recorded, and no Court Establishment 
 formed. The Eecorder, on the 10th October, 1827, recorded his 
 
kiv PREFACE. Cchap. v. 
 
 2nd Chab- surprise at the Governor not having attended on that day, as he 
 
 TEB - had promised to do, and adjourned the Court to the following day, 
 
 Claeidge R. " proposing at the same time," a meeting of the Judges respect- 
 
 ing the Court Establishment, and recording his refusal to con- 
 
 1827—1829. ,juct y ie c 01 j r t business, unless supported by officers in whom he 
 could place confidence. In answer to this minute, which was duly 
 forwarded to the Governor, the latter explained his absence, and 
 excused himself on the plea that he had " mentioned it only as 
 the day on which it might probably be convenient for him to 
 attend, that the Charter required the presence of only one 
 Judge, and that the Recorder- was therefore fully competent to 
 propose any list of Establishment he might see fit." From this 
 day a regular schism broke out between the Recorder and the 
 other Judges. The Records abound with the disputes that took 
 place between the Executive and the Court at that time, — dis- 
 playing great irascibility of temper, and a very sad state of affairs, 
 — and certainly worse than had ever happened before or after the 
 grant of the first Charter of Justice. It will easily be conceived 
 however, as before stated, that in this preface, and moreover at 
 this period, the matter being no longer of any moment, it is not 
 desirable, especially in this case, that the particulars in connection 
 with these disputes, should be set out, however much they may 
 have happened under a previous Government, — but suffice it to 
 •say that those under notice were all referred to the Board of 
 Directors, eventually ending in the re-call of Sir John Claridge 
 from the office of Recorder. * The charges against him were six 
 in number, and shortly as follows : 
 
 First, his refusal to execute the duties of his office of Recorder in the manner observ- 
 ed by his predecessors,- until the Government guaranteed the payment of 
 salaries to the officers of his Court, upon an increased scale. 
 
 Second, his refusal to administer the oaths to Mr. Murchison, the Resident Coun- 
 cillor of Singapore, when duly appointed, in order to qualify himself as a 
 Judge of the Court. 
 
 Third, his refusal to proceed to Singapore and Malacca for the purpose of holdino- 
 Sessions for the trial of criminals at those Settlements, unless the Govern^ 
 ment would pay the circuit expenses. 
 
 Fourth, his exertion of authority, in repealing individually a standing Order of 
 Court, which had been passed by a majority of the Judges. 
 
 Fifth, his unbecoming conduct towards his colleague, the Resident Councillor of 
 Malacca, f 
 
 Sixth, his having made use of his judicial station, to hold up the administration of 
 Government with reference to the judicial establishment, to public 
 odium. J 
 
 * Apart from Court Records, the different matters in connection with Sir John 
 Claridge's recall, will be formed treated at length, in an article that appeared on 
 the subject, supposed to have been written by an official in the " India Office" 
 at home,— in the February number of the home " Asiatic Journal," for 1832. 
 
 t This consisted in an alleged affront to Mr. Garling, the Resident Councillor 
 of Malacca, whilst sitting on the bench as the Recorder's colleague. It would 
 appear that " a man unacquainted with the rules and process of the Court, addressed 
 a petition respecting some rights of fishery" to Mr. Garling, who at once handed it 
 over to the Recorder— the latter addressing the Interpreter of the Court thereupon 
 exclaimed : " Symons, declare openly in Court, that if the people have any points 
 m dispute, they have no business to go to Mr. Garling," which caused the latter to 
 quit the bench and decline sitting with the Recorder again. 
 
 J Remarks made by the learned Recorder in his charge to the Grand Jury at 
 Singapore, on the 16th February, 1829. . 
 
istf-ifes] JtJDICiAL— HISTORICAL. ixv 
 
 As will be seen hereafter, the third charge constituted the 2nd Chak- 
 ground for the recall of Sir John Claridge. la a long minute, TEB ' 
 dated 19th March, 1828, "that his cdlleagues may be made ac- Claridge, E. 
 
 quainted with the reasons which induced him to abide by a 
 
 resolution exposing him to the imputation of want of public 1827— 1829 - 
 spirit and disregard of the best interests of the inhabitants of 
 this Settlement, and that his successors may know the truth, he 
 resolved to place among the minutes of the Court, the reasons 
 which obliged him to remain at Penang during the approaching 
 Circuit ....," and after repeating the terms on which office had 
 been conferred on him, declared inter alia, the refusal of the local 
 Government to guarantee or pay his Circuit expenses, and also 
 that he would have " sacrificed all pecuniary and personal consi- 
 derations, and proceeded at once to the other Stations, defraying 
 all expenses from his own pocket," had it not been for " the 
 direct insult offered to the Recorder by the G-overnment, in 
 proposing such a ship as the Speke [a sailing ship carrying 
 Sepoys] as a conveyance for him and suite, while the Governor 
 himself was accommodated in the Company's frigate Hastings 
 which was sent to this place for the express purpose of carrying 
 the Governor and Recorder on Circuit." The Governor's refuta- 
 tion of this minute follows shortly after, and as " the Recorder 
 still declined to proceed to Singapore and Malacca," Mr. Fullerton 
 proceeded to the former Settlement, and there on the 22nd May, 
 1828, with Mr. Kenneth Murchison, Resident Councillor, held the 
 first Court or Session of Oyer and Terminer, since the Procla- 
 mation of the Charter, and consequently the first Court of the kind 
 ever assembled in Singapore. At this first Session, 27 Indictments 
 were presented to the Grand- Jury, of which 6 were found for 
 murder, 2 being against the same individual, 1 for manslaughter 
 and the rest for cases of assault and offences against property. 
 In two of the murder cases, the culprits were sentenced to death 
 and executed : the first [and therefore the first since the establish- 
 ment of the Court], on the 2nd June, 1828. On the occasion of 
 passing sentence of death on the first prisoner, the Court informed 
 liiin that this " being the first time a Court of Oyer and Terminer 
 had been held at Singapore, the Court would willingly have 
 mitigated the sentence had there been any extenuating circum- 
 stances, but that they could see none"." At this. Session, the 
 Governor in his charge to the Grand-Jury, told them that " two 
 persons accused of piracy must now be discharged for want of 
 Admiralty jurisdiction, a defect already noticed, and which it was 
 -expected would in due course be amended." From Singapore, 
 Mr. Fullerbon proceeded to Malacca, where he opened the Assizes 
 for the first time in that Settlement on the 16th June, 1828, and 
 . after disposing of the Criminal business there, returned to Penang. 
 
 On the 13th August, 1828, a difference occurred in Court 
 between the Judges, in the matter of an application by Counsel 
 for a writ of Habeas Corpus to bring up the body of one Charles 
 Maitland, on the ground of his illegal detention by the Military 
 Authorities. After reading the affidavits in the matter and hear- 
 ing Counsel, the Recorder decided that " a Habeas Corpus ought to 
 
. lxvi PREFACE. [chap. v. 
 
 2nd Char- issue."* The Governor in a long judgment setting out his rea- 
 TBR - sons, declined to entertain the motion, the other lay Judge Mr. 
 
 Clabidge e Ibbetson, concurring with him. "The motion was accordingly 
 ' ' refused by a majority," the Recorder remarking that " the 
 
 1827-1829. « Governor and Mr. Ibbetson appeared to have written their 
 " opinions before they came in, and that Mr. Ibbetson had probably 
 " seen the Governor's opinion before he came into Court, as his 
 " own opinion agreed with it." This note of the Eecprder's formed 
 the subject of further discussion. The records shew that Sir John 
 Claridge left for Calcutta on the 13fch October, 1828, " for the 
 purpose of laying before the Judges of the Supreme Court, a full 
 and true statement of all that had passed between the Government 
 in Council of this Settlement and himself, and of having an inter- 
 view with the Governor-General," but shew no results. Sir John 
 Claridge resumed duties on the 22nd December, 1828, on his 
 return from Calcutta. 
 
 "Orders having been given for providing a suitable vessel 
 [H. C. Ship Fifeskire] for the "accommodation of the Honorable the 
 Recorder and the Court Establishment on the approaching circuit, 
 and every necessary preparation being in progress at the other 
 Stations," Sir John Claridge proceeded on circuit, arriving at Sin- 
 gapore on the 28th January, 1829. After despatching both the 
 Civil and Criminal business there, he called at Malacca and from 
 thence returned to Penang. The records from this period, as 
 before, disclose nothing but fresh discussions between the Exe- 
 cutive and the Recorder, the latter immediately on his return, ask- 
 ing the concurrence of the Governor as President of the Court, 
 that the recommendation of the Grand-Jury at Singapore " that 
 the professional Judge should visit that Settlement at least four 
 times a year, aud that a steam-vessel be placed at his disposal," 
 be forwarded-to the Government of Bengal with as little delay as 
 possible, the Governor in reply stating that " he concurred as far 
 as regarded the request of the Grand Jury to submit to Govern- 
 ment, a copy of his, [the Recorder's] charge," — which charge — 
 the subject of one of the grounds of complaint against him after- 
 wards — t contained animadversions of Sir John Claridge on the 
 fact of his not having been provided with a steam-vessel when he 
 had been given to understand before leaving England that one 
 would be placed at his disposal, — and other allusions generally, in 
 regard to the Court Establishment and expenses. Correspondence 
 of an animated character again followed on this and other mat- 
 ters, all being "ordered to be entered among the minute's of the 
 Court." 
 
 Before his recall however, and unaware of same, Sir John 
 Claridge left for Singapore by the EL C. Ship Kellie Castle, and 
 arrived at that Settlement on the 4th September, 1829, for the 
 purpose of holding a Session of Oyer and Terminer, and afterwards 
 
 * Caso not reported, but regarding interference, &c, of Lay Judges, see 
 time of Norris, B.- ° 
 
 t See Charge sixth, ante p. lxiv. 
 
185T-1B55.] JUDICIAL— HISTORICAL. kvii 
 
 proceeding to Malacca, for a similar purpose, when the Governor, 2nd Chab- 
 who had left Penang for Singapore the day after the Eecorder, TEB ; 
 arriving at the latter Settlement on the 5th, at once forwarded to Claridge, E, 
 
 Sir John Claridge " copy of a letter now received from the Right 
 
 Honorable Sir George Murray, one of His Majesty's Principal 1827—1829. 
 Secretaries of State, transmitting an Order of His Majesty in 
 Council, signifying the pleasure of His Majesty [to Sir John 
 Claridge] for his repairing forthwith to England in order that the 
 subject matter of a memorial and petition of the Court of 
 Directors of the East India Company, complaining of the conduct 
 of Sir John Claridge, Recorder of Prince of Wales' Island, &., may 
 be fully investigated," which letter reached the Governor, shortly 
 before his departure from Penang. 
 
 On receipt of this letter, the Recorder informed Mr. Fullerton 
 that since his arrival in Singapore, he had " discovered that the 
 arrears of business both Civil and Criminal were unusually heavy 
 and important," and proposed to continue the execution of his 
 functions till the 1st November provided Government furnished 
 him with a ship to carry him to " North Island" [?] to await the 
 arrival of H. C. Ship Lady Melville, and thus enable him to, 
 dispose of all cases pending both at Malacca and Singapore. 
 The Governor, by letter dated 5th September and headed " H. C. 
 Yacht Nereide, Singapore Roads," replied that his [Sir John 
 Claridge's] recall necessarily involved an immediate suspension of 
 his functions, and he was therefore compelled to decline his 
 acquiescence in the proposition which his letter conveyed. This 
 led to further strong correspondence, the Registrar being eventual- 
 ly requested to place same, both by the Governor and Recorder, 
 on the records of the Court. 
 
 Sir John Claridge however, did not proceed home. forthwith, 
 as directed, but left Singapore on the 9th September for India — 
 for what purpose the records do not shew, — leaving Calcutta on 
 the 4th July, 1830, for England. On his arrival, he was examined 
 upon the different charges brought against him, being repre- 
 sented also by Counsel, the result as before stated, ending in 
 his recall. The following Order in Council shews that some of 
 the charges were totally discarded, no reference being even made 
 to them : 
 
 " December 15, 1831. 
 
 " The Lords of the Committee * to whom the petition of the Court of Direc- 
 tors of the East India Company, complaining of the conduct of Sir John Thomas 
 Claridge, Eecorder of Prince of Wales' Island, and praying his removal from office, 
 was referred by your Majesty, having since his return to England, resumed the 
 consideration thereof, and having also duly considered the representation made by 
 Sir J. T. Claridge himself, and heard counsel f in support of the allegations con- 
 
 * " The Lord Chancellor, The Lord President, The Lord Chief Justice of 
 England, The Lord Chief Justice of the Court of Common Pleas, The Pre- 
 sident of -the Board of Control for the Affairs of India, The Earl of Carlisle, The 
 Duke of Eichmond, Mr. Wynn.— " 
 
 + Mr, Sergeant Spankie on the part of the East India Co., and D,". Lushington 
 for Sir J. T. Claridge. 
 
kviii PREFACE. tohapV. 
 
 2hd Chae- tained in the respective petitions, have agreed to report to your Majesty their 
 Tek. humble opinion — that, although Sir J. T. Claridge cannot he justified in the 
 
 measures to which he had recourse, either for the purpose of enforcing the allow- 
 
 Clabidge, B. ance by the Governor of those charges and expenses which the said Sir. J. T. 
 
 Claridge thought necessary for the establishment of his Court on a proper footing, 
 
 1827 — 1829. or for enforcing payment of the expenses of his circuit, which he, the said Sir J. T. 
 
 Claridge, had reason to expect t> have received, yet their Lordships are inclined to 
 think the local Government not wholly justified in refusing to allow what the 
 former Recorder and Sir J. T. Claridge thought a just and necessary measure of 
 expenditure with respect to the Courts of Justice; and that a delay, much to be 
 regretted, occurred on the part of the East India Company, either to authorize the 
 payment of the circuit expenses, or to bring that question to an early decision. 
 Their Lordships are of opinion, that this case may be attributed principally to such 
 refusal and delay ; and that under these circumstances, the conduct of Sir J. T, 
 Claridge proceeded from a mistaken view of the line of his duty, and not from any 
 , corrupt or impropfr motive. Whilst, therefore, the irritation which has taken 
 place between the local Government and the Eecorder, prevents the Lords of the 
 Council from recommending to your Majesty to continue Sir J. T. Claridge in the 
 exercise of that office, it appears to their Lordships that no imputation rests on the 
 capacity or integrity of Sir J. T. Claridge in the exercise of his Judicial functions, 
 so as to preclude your Majesty from employing him in your service in some other 
 judicial situation. And their Lordships are further of opinion that the Eight Hon. 
 Viscount Goderich, one of your Majesty's Principal Secretaries of State, should 
 receive your Majesty's pleasure for signifying to Sir J. T. Claridge his removal from 
 his seat as Eecorder of Prince of Wales' Island. 
 
 " His Majesty, having taken the said report into consideration, was pleased, by 
 and with the advice of his Privy Council, to approve thereof, and to order, as it is 
 hereby ordered, that Viscount Goderich, * one of his Majesty's Principal Secre- 
 taries of State,— do receive His Majesty's pleasure, touching the removal of Sir John 
 Thomas Claridge from his office of Eecorder of Prince of Wales' Island. 
 
 " C. Geeville." * 
 
 Whilst dissensions were going on between the Eecorder 
 and the Governor, the latter Mr. Fullerton, on the 1st February, 
 1829, recommended to the Board of Directors, the entire abolition 
 of the Court of Judicature [a], that the administration of Justice 
 
 be entrusted to certain officialSj and that " if the ad- 
 
 " ministration of Justice entirely by civil public servants be objected 
 " to, there could be no difficulty in attaching five merchants, set- 
 " tiers, as assessors, on the same principle as a Mayor's Court, 
 "the Eesident as Mayor, the others as Aldermen, and the 
 " Governor and Council holding only, as formerly at Madras and 
 "Bombay, the Courts of Oyer and Terminer. Any one of the 
 " modes here proposed would be preferable to the present, which is 
 " more expensive and worse adapted than any system which could be 
 "devised [6]." 
 
 [Cotjbt sus- After the departure of Sir John Claridge, the Eesident Coun- 
 
 PENDED.] 
 
 1830- 1832. * Clerk of the Council. 
 
 \) \* a co " tr + as , t *° th T is ' Sir 1 Bjfjamin Malkin, Eecorder, in a letter to Gov- 
 Murchison, dated 7th July, 1835, questioned the necessity for a Governor 
 here at all, and remarked that in the present administration of these Settlements, 
 everything being finally referred to Calcutta, and decided there, it may become a 
 question whether the office of Governor is one of any utility, and whether the Chief 
 th?B^G^umt? . 6 . mlg " n0t n ° W beneficiall y communicate at once with 
 [b.] In the paper containing _ this recommendation of Governor Pullerton, 
 %^^™lZ^JZ*l^^*« Bi ' W ™*- Morris, Eecorder 
 
 [a.] 
 ernor 
 
 iystem.' 
 
MT-uii.] JUDICIAL-HISTORICAL. Wx 
 
 cillors in each Settlement, conducted the business of the Court, 2nd Chab. 
 until the 30th June, 1830, when in consequence of the Straits ^"j 
 Settlements, ceasing to form a separate Presidency, having been Claridge, r. 
 made subordinate to the Government of Port William in Bengal, - — 
 and the titles of the different officials who were also Judges under 18 2 <— 1 829. 
 the Charter, being changed and consequently different from those [Coubtsus- 
 expressed in it, the local G-overnment were of opinion — erroneously pbndbd.] 
 as will afterwards be seen, — that the abolition of the presidency 1830—1832; 
 and the consequent change of their titles, abolished the Court of 
 Judicature. The Notification announcing the change of Govern- 
 ment was the following: 
 
 Notification. 
 
 Whereas the Settlements of Prince of Wales' Island, Singapore and Malacca, 
 having from this day, ceased to form a separate Government, and having become 
 Settlements subordinate to the Presidency of Fort William, according to the orders 
 of the Honorable Court of Directors, and the Supreme Government, to be managed 
 by a Deputy Resident, at each Settlement, subject to the general superinteudence 
 and control of a Resident or Commis-iioner, notice is hereby given that all official 
 References and Reports are henceforward to be submitted in the first instance to 
 the Deputy Resident, respectively in charge of each Settlement. 
 
 By Order, 
 30th Jwne, 1830. [Signed ] J. PATTULLO, 
 
 Secretary to Govt, [a] 
 
 The change of Government was notified to the Court by the 
 following letter : 
 
 To 
 
 James Loch, Esq., 
 
 Acting Registrar of the Court of Judicature of 
 
 Prince of Wales' Island, Singapore and Malacca. [6] 
 Sie, 
 
 I am directed by the Hon'ble the Governor in Council to report to you 
 for the information of the Judges of the Court, that in consequence of the form of 
 administration of the Settlements of Prince of Wales' Island, Singapore and Ma- 
 lacca, having been changed from that of a separate Government to Residencies 
 subordinate to the Presidency of Bengal, the offices of Governor and Resident 
 Councillor of these Settlemeats respectively, cease this day. 
 
 I am, Sir, 
 Fort Cornwallis, Yours most obedt. servant, 
 
 30th June, 1830. J. PATTULLO, 
 
 Secretary to Govt. 
 
 The following Minute was thereupon duly entered in the 
 
 [a] By a subsequent Notification dated July 1st, 1830, the following appoint- 
 ments were published . 
 
 R. Fullerton, Esq., to be Comer, for the affairs of the Settlements of 
 
 P. W. Island, Singapore and Malacca. 
 R. Ibbetson, „ Deputy Resident at P. W. Island, 
 
 S. Garling, „ „ „ at Malacca. 
 
 K. Murchison, „ ,, „ at Singapore. 
 
 [6] Mr. Kerr, the Registrar, was then absent in England on leave, Mr. 
 Loch was the. Registrar's." Senior Sworn Clerk" at Singapore. 
 
lxt PREFACE, •[oh»p.v, 
 
 2nd Char. Court Book in Penang : 
 
 q E R " The Court on an attentive consideration of the above Letter, is of opinion that 
 
 ' the discontinuance of the offices by virtue of which the Judges hold their places, 
 
 , Qgwiooq necessarily withdraws the Judges of the Court, and renders the future issue of its 
 
 ' * tW3- process impossible, It is therefore resolved, that the Court do adjourn sine die, and 
 
 TCoTjRT sns '* * s or( * erecl taat tne Registrar do place in safe custody, the Eecords and Muni- 
 pukdedI * ments °' tae Court until called for by a regular and competent legal authority : 
 1 830—1832 and Jt is furtner ordered that the Registrar do transmit copies of these proceedings 
 to Singapore and Malacca. 
 
 Court adjourns sine die." 
 
 On the 7th August, 1880, rip to which date, the whole 
 establishment of the Court in the three Settlements had continued 
 in existence, without having any work to perform, Mr. Fullerton, 
 signing himself as " Chief Commissioner for the affairs of P. W. 
 Island, Singapore and Malacca," requested the Registrar " to 
 acquaint him if any, and how many of the servants of the Court 
 could be dispensed with at this Station, Singapore and Malacca, 
 without causing inconvenience hereafter from the difficulty of 
 obtaining persons of the same description equally well calculated 
 to perform the duties, as those at present attached to the depart- 
 ment," the result being that only the services of " such inter- 
 preters whose dismissal might hereafter be attended with 
 inconvenience" were retained, and the dismissal in the three 
 Settlements on the 31st August, 1830, of such " administrators of 
 oaths, native writers, peons, and convict sweepers" as were not 
 wanted. It would appear that shortly after the close of the Court 
 of Judicature, an illegal Court set itself up in Singapore, and the 
 following letter from the Acting Registrar to his Senior Sworn 
 Clerk at that Settlement, as well as the correspondence that 
 ensued on the subject, will speak for themselves : 
 
 Registrar's Office, 
 Prince of Wales' Island, 
 
 To 19<A October, 1830. 
 
 A. Martin, Esquire, 
 
 Senior Clerk to the Registrar of the Court of Judicature, Singapore. 
 Sib, 
 
 I learn that you have accepted the office of Clerk to a tribunal which has 
 erected itself at Singapore, professing to remedy the inconvenience caused by the 
 suspension of the functions of the Court of Judicature of these Stations. The end 
 in view is suoh as every one must approve, but nevertheless, this self -constituted 
 Court is illegal, and the appearance of parties, the attendance of witnesses, and 
 the execution of its decrees can only be insured by acts of illegal violence, the 
 possible consequences of which, it is unnecessary to point out or dwell on. His 
 Majesty^ Court of Judicature was established to see the laws respected, and its 
 officers cannot with propriety become Agents in the daily and systematic breach of 
 them. It is necessary therefore that you choose between your new office and that 
 
 which you hold , " 
 
 I am, &c, &c. 
 
 JAMES LOCH, 
 
 Acting Registrar. 
 
 In reply to the foregoing letter, the Clerk, on the 22nd 
 October, informed the Acting Registrar that " Mr. Murchison 
 having asked him if he had any objections to conduct the business 
 of the Court about to be established .,....., he thought it 
 
1827-U66.] JUDICIAL— HISTORICAL. kxi 
 
 imperative on him to do so, receiving a salary from the Government 2nd Chab- 
 without any employment, but now seeing his error, he intended to TEB- 
 keep clear of all such proceedings, and had given over every clabidge, K. 
 document and the fees collected since the opening of the Court to < — 
 Mr. Bonham, the acting Resident." 1827—1829. 
 
 The following is an Extract from the acting Registrar's letter, [Court sub- 
 dated 28th October 1830, in reply to the foregoing : 1830-1832. 
 
 tt 
 
 "With regard to your considering it " imperative" on you to become Clerk to 
 any Court which might establish itself at Singapore, on the ground of *' receiv- 
 ing a salary from Government; monthly -without any employment," it is necessary 
 to observe that the Registrar is appointed by the Court and, with those under him, 
 is paid by the Court so far as the fees extend, the Bast India Company only engag- 
 ing to make up the difference. Eut the Company [sic] has voluntarily rendered 
 the Court inactive, and with much incovenience to others, has brought this upon 
 itself, that by closing the source of fees, it has lately had to pay the whole expense 
 of the Registrar's establishment instead of paying as formerly, only an unimpor- 
 tant portion of it. The servants of the Court are not to blame for inactivity thus 
 forced on them, nor should those complain of not receiving an equivalent, who, by 
 their own act, have taken the power of rendering an equivalent away " 
 
 The letter ends by taking the Clerk to task for his act, and 
 informing him that Mr. Fullerton was leaving Penang for Singa- 
 pore on the 30th October. This " self-constituted Court" nearly 
 immediately after this closed. 
 
 As stated, Mr. Fullerton left for Singapore on the 30th 
 October, and from thence proceeded to England, being replaced 
 by Mr. Ibbetson as Commissioner for the affairs of the Settle- 
 ments. In consequence of the opinion entertained by the local 
 Government, that the change in the Government bad abrogated 
 the powers of the Court, it may easily be imagined what the 
 consequences were; — the administration of Justice had entirely 
 collapsed and a regular crisis ensued, — great agitation taking 
 place both in Penang and Singapore, public meetings being held 
 and petitions sent home to both Houses of Parliament. Matters 
 thus went on, prisoners committed for trial being confined for 
 months in Gaol, and a complete stagnation of business arising 
 from want of confidence generally, there being no Court to 
 enforce payment [beyond the ordinary jurisdiction of the Court 
 of Requests, which then did not exceed $32 in amount], or to 
 prevent departure from the Colony, — all of which doubtless, had 
 induced Mr. Murchison to open a Court as above stated in Singa- 
 pore, with a. view to " remedy the inconvenience," in ignorance 
 of the illegality of the measure. 
 
 Unfortunately many months had elapsed, before it was 
 discovered that " Mr. Fullerton was mistaken in supposing that 
 the alteration in the Government could cause the Charter to become 
 inoperative [a]," and in a despatch dated 27th July, 1831, [6.], 
 the Board of Directors so addressed the Government of 
 India, at the same time informing them that it had been deemed 
 
 
 see Gaunter v. E. I. Co., infrh, p. 12. 
 
 see Report of Indian Law Commimioners, 1842/ p. 48. 
 
lxxii Preface. fcM P . v. 
 
 2nd Char- expedient to continue the Charter of 1826 [which Mr. Fullerton 
 
 ™" had recommended to do away with], and " in order that all doubt 
 
 Claeidob.E. " may he removed regarding the powers, under that Charter, of 
 
 — " the Eesident and Deputy Residents, — for the purpose of adminis- 
 
 1827-1829. « tering Justice uuder His Majesty's Charter," the. Eesident at 
 
 [Court sus- Singapore was to be styled Governor or President of the united 
 fended.] Settlements, and the first assistant to the Resident at Singa- 
 
 1830—1832. p 0re an( j ^k e p e p U ty Residents at the other Settlements, as 
 Resident — Councillors respectively. This information however, 
 did not reach the Straits Government till the 30th of March 1832, 
 when a Notification to that effect was duly published. Some of 
 • the correspondence that passed in reference to the erroneous 
 impressions of the local Government, regarding the abrogation of 
 their powers, and suggestions that were made in consequence 
 thereof, in order to prevent the recurrence of such a state of 
 affairs, as well as " of the mischievous discussions which took 
 place between the late Recorder and the Government," is to be 
 found embodied in the " Special Reports of the Indian Ldw 
 Commissioners, 1842," hereinafter mentioned. Judicial power 
 having now been restored, the Court reopened for the first time in 
 Penang, under the presidency of the newly appointed Governor 
 [of Prince of Wales' Island, Sinpapore". and Malacca], Mr. 
 Ibbetson, — who had become, as previously stated, Commissioner, 
 &c, on the departure of Mr. Fullerton, — on the 9th of June, 1«32, 
 having closed as before mentioned, on the 30th June, 1830, during 
 the whole of which period, the Court Establishment, although 
 greatly reduced, had continued to exist. 
 
 The following entry appears in the Court Records : 
 
 "In the Court of Judicature of Prince of Wales' Island, Singapore 
 
 and Malacca. 
 
 rrince of Wales' Island, Saturday 9th June, 1832. 
 
 The Honorable the Governor or President, by virtue of the power vested iu him by 
 His Majesty's Charter of Justice, authorizes the Court to sit and act in the absence of 
 the Recorder, the granting of such authority is hereby noticed and recorded. 
 
 Court opens accordingly. 
 
 Present : 
 
 The Hon'ble Robebt Ibbetson, Esqb., Governor. 
 
 Mr. Kerr is permitted to resume the duties of his office as Registrar and Clerk of 
 the Crown as heretofore; 
 
 The usual oath required by the Charter, is administered to and taken by the Hon'ble 
 Kenneth Murchison, Esquire, Resident-Councillor, and the administering and taking 
 thereof is hereby recorded. ° 
 
 The Registrar informs the Court what additional Establishment, which the Govern- 
 ment is bound to furnish, and winch was temporarily dispensed with, in consequence of 
 the absence of the Judges, is now again required. 
 
 The Court thereupon directs the Registrar to apply to Government in tne usual 
 way. 
 
 The Court desires the Registrar to observe the existing Rules of Practice till further 
 Orders. 
 
 In connection with the administration of Justice, and with 
 
1827—1868] JUDICIAL— HISTORICAL. kxiii 
 
 Sir John Claridge's time, it would appear that the Court had from 2nd Chab- 
 an early period, experienced great difficulty in obtaining suitable E 
 
 Chinese Interpreters . The Government was communicated with Clamdge r. 
 on the subject, and Mr. Fullerton, the then Governor, on the 18th - — 
 June, 1828,. applied to the " Select Committee of Supra Cargoes" 1827-1829. 
 at Canton, for assistance and advice in the matter, and the follow- [Court Bus- 
 ing Extracts, will be read with interest even up to this day : pended.] 
 
 6 ' tf J 1830—1832. 
 
 Macao, 
 12f7i August, 1828. 
 The Hon'ble Robert Fuller/ton, 
 &c. &c. 
 
 Hon'ble Sie, 
 
 2. It is with much regret we hare to state that while we entertain every wish 
 to comply with the request contained in the communication above referred to, we 
 are unable to recommend any plan which promises hopes of succeeding in the desired 
 object of employing the natives of this country in the situation of Interpreters. 
 
 3. Two obstacles present themselves to the accomplishment of this purpose, 
 which are, in our opinion, insuperable. 
 
 The first consists in the venal and dishonest character of the Chinese, which 
 it is lamentable to observe, pervades all ranks and classes of the people, almost 
 without distinction, and which alone must always prove a sufficient obstacle to 
 their employment in the highly responsible character of Interpreters. 
 
 4. The second objection which offers itself to our notice, arises from the 
 variety of dialects spoken by the inhabitants of the different provinces who compose 
 the Emigrants to the Straits, the greater part of whom are strangers to the dialect 
 of Canton, the natives of which province alone are acquainted in any manner, with 
 the English language, the knowledge possessed however by these persons, is per- 
 fectly inadequate to interpret the explanations and evidence upon general subjects, 
 which must occur in a Court of Justice, and consists merely in the acquaintance of 
 a few set phrases and Mercantile terms. 
 
 This letter, signed " W. H. C. Plowden, Charles Millett, and 
 W. Davis," then goes on to state that "being desirous of obtain- 
 ing the most satisfactory information upon the point, which ap- 
 peared closely connected with the administration of Justice," the 
 gentlemen named had " requested their Chinese Interpreter, Dr. 
 Morrison, whose extensive knowledge of the Chinese language, 
 was too well known to require farther observation, to furnish them 
 with his opinion upon the possibility of providing native interpre- 
 ters," and concludes by calling attention "to the establishment 
 founded by Dr. Morrison in the Straits of Malacca, for the in- 
 struction, either of Europeans in the Chinese language, or recipro- 
 cally that of Chinese in the literature of Europe, as the most pro- 
 bable source from whence trustworthy and efficient Interpreters for 
 the Courts of Judicature in the Straits might be derived," and ex- 
 pressing a hope that " Chinese educated under the tuition afforded 
 by that Institution, would imbibe a share of those principles of inte- 
 grity whichare essential to persons placed in confidential situations."* 
 
 * Note by Mr. Kerr, the Registrar, in reference to the words in italics in above let- • 
 ter : " These gentlemen in China, seem to be impressed with a due sense of the value 
 of Interpretation — not so our Straits authorities, until in 'their own person, they feel 
 the inconvenience." 
 
lxxlv PREFACE. [chap. v. 
 
 2ndChab- The following was Dr. Morrison's opinion on the subject: 
 
 TEB. 
 
 Clabidge R ^° THE P EESIDENT > & c ' i Select Committee, 
 
 &c. &c. &c. 
 
 1827—1829. Gentlemen, 
 
 [Cottet sus- Being requested to report my " opinion of the practicability of supplying efficient 
 
 penbed.1 "Chinese Interpreters for the Court of Judicature established at Penang and its 
 
 1830—1832. " dependencies," after a careful perusal of the Letters seut on by that Government, I 
 have to reply that agreeing with the sentiments of Mr. Kidd, Principal of the Anglo- 
 Chinese College, on the qualifications requisite to perform the duty of a Chinese Inter- 
 preter to the said Court, I am not aware that any such persons can be procured in Can- 
 ton. The Linguists, as they are commonly called at Canton, do not understand the 
 Fukien Dialect, which Mr. Kidd represents as so generally necessary in the Straits. As 
 to mere knowledge, I suppose some of the senior students of the Anglo-Chinese College 
 are better qualified than any other natives, but in respeot of integrity, I fear all natives 
 are much to be doubted in important cases, and require the oheok of European knowledge. 
 
 I remain, &o., 
 
 ROBERT MORRISON. 
 14ft July, 1828. 
 
 and history here repeats itself, for our own Government till this 
 day, experiences the greatest difficulty in obtaining suitable Inter- 
 preters, and a plan much the same as that suggested by the 
 " Select Committee, &c," and Dr. Morrison, lias been adopted in 
 regard to student interpreters. The business of the Court in 
 Singapore at this period, does not appear to have been very great, 
 for in a report to the Kegis'trar in Penang, dated 21st November, 
 1828, his Senior Sworn Clerk, Mr. A. Martin,— after asking for 
 instructions in regard to an application made by " Mr. Bead, on 
 behalf of Messrs. A. L. Johnston. & Co., for letters of administra- 
 tion to the Estate of the late Captain Flint, E. N., as creditors of 
 the Estate, and as having been agents of the deceased to the period 
 of his death," and whose Will was said to be forthcoming, — stated 
 " we have not so many cases as before " [sic] * 
 
 The practice heretofore existing of the Sheriff summoning pub- 
 lic meetings at the request of the community, is to be found men- 
 tioned only in Sir John Claridge's time. Several inhabitants of 
 Penang had written, to the Sheriff in November, 1827, in 
 consequence of the fees of Court having been raised, asking him 
 to convene a meeting for the purpose of protesting against the 
 " late greatly increased rate" of such fees, which request, the 
 Sheriff refused to comply with "not considering himself bound to 
 call a meeting of the nature solicited without the order of 
 Government and of the Court." The following is an extract from 
 a presentment presented to the Eecorder by the Grand-Jury on 
 the 1st December, 1827, on the subject, and wherein the custom 
 in question will be found mentioned. After laying stress on the 
 refusal of the Sheriff, the Grand-Jury proceeded as follows : 
 
 " J ? he c? ra .« d i Jur ^ preB, J methat custom, if not Law, has made it imperative 
 upon the Sheriff to call, at the request of the community, any public meeting to 
 which there can be no legal objection; but as at the presidencies of India, the 
 
 * The Court of Judicature only opened on the 9th August, 1827 ! 
 
i847-i85s] Judicial— historical. Lav 
 
 Sheriff cannot call or allow of any public meeting without previously obtaining the 2nd Char- 
 sanotion of the Governor in Council, the Grand-Jury consider that the late Sheriff teb. 
 
 had no legitimate cause of himself to debar the community from exercising one of 
 
 the greatest privileges they possess, that of legally expressing in public assembly, Clabidoe E. 
 
 any grievance, and do respectfully present to this Court, that such conduct on the 
 
 part of the late Sheriff was unjustifiable and oppressive." * 1827 — 1829. 
 
 [Coubt sus- 
 And in regard to the question of fees, the Grand-Jury added pended.] 
 that they did " not now present the late increase of fees, anti- 1830—1832. 
 cipating that the public would ere long express their opinion 
 relative thereto." On the 3rd April, 1828, the Grand- Jury re- 
 iterate 1 their grievance, at the exorbitant rate of fees claimed by 
 the Court. As hereinafter shewn, these fees formed the subject 
 of representation on various occasions, the last in Sir William 
 Norris' time, without however bringing any material change as a 
 result. 
 
 Before closing with Sir John Claridge's time, it may be 
 interesting to note, that it was during his tenure of office as Re- 
 corder, that the present Courts of Requests in the different Settle- 
 ments, under Proclamation, dated 2nd December, 1828, were esta- 
 blished. This proclamation, although abrogated materially, 
 nevertheless forms the basis of those Courts in the different Settle- 
 ments up to the present day, having been re-enacted by Act 29 of 
 1866. t After the establishment of the Court of Requests in' 
 Penang, appeals were " so numerous as to average from five to 
 ten every week, owing to the facility with which they were 
 granted ; a dissatisfied party had only to express his wish, and 
 pay down his three dollars, which was the fee, and he obtained 
 his appeal in less than half an hour, with which he ran over to the 
 Court of Judicature to get it filed, and a day fixed forbearing. 
 Sir John Claridge, finding that he had to affirm almost every 
 decision of the Commissioner, pnssed an Order requiring an affi- 
 davit of the grounds for appealing, and the transmission of the 
 Commissioner's record of the proceedings before him, for consider- 
 ation, previous to granting any appeal,"J which practice obbdns 
 virtually up to this day under section 10 of the Appeals Ordi- 
 nance 12 of 1879.§ * ' 
 
 * On this subject see further, time of McOausland and Maxwell , E. E. in/Vch 
 
 + Revived after different enactments for the last time, by s. s. 53 & 54 of Ord. 
 3 of 1S78, read in conjunction with sec. 7 of Ord. 17 of 1876, since repealed. 
 
 J Report Ind. Law Comers., 1842, p. 203. 
 
 § Sir John Claridge, after his recall, was never again . employed under the 
 Crown. Parliament was Beveral times moved in his behalf, the" last time as late as 
 the 25th July, 1843, when Mr. W. E. Gladstone, in the House of Commons " moved 
 an address to the Crown relative to the case of Sir J. T. Claridge, removed from 
 the office of Recorder of Prince of Wales' Island, and praying, in conformity with 
 the recommendation contained in the Order in Council in reference to hi.? case, that 
 he may receive an appointment in her Majesty's service, of such a class as to her 
 Majesty may seem meet. 
 
 " Sir J. C. Hobhouse and Lord J. Eussell opposed the motion, on the ground 
 that it involved a direct interference with the prerogative of the Crown, and after 
 some discussion, several hon . members spe iking in its favour, the motion was with- 
 drawn." London Home News, 7th August, 1848. 
 
kxvi PKEFACE. [chap. v. 
 
 2nd Chab- gi r Benjamin Heath Malkin, " late Fellow of Trinity College, 
 
 TEB - Cambridge, M. A.," was appointed " Recorder of Prince of Wales' 
 
 Malkin E. " Island, in the room of Sir John Thomas Claridge, removed by 
 " Order of the King in Council," and he arrived in Penang on the 
 
 1833—1835. 12th February, 1833. On his arrival, after such a state of affairs, 
 as had happened after the recall of his predecessor, Sir Benjamin 
 Malkin however, as he himself afterwards recorded, did not find 
 such heavy arrears as he had anticipated, the Governor and Resi- 
 dent Councillors in the different Settlements, having, on the re- 
 opening of the Court in 1832, disposed of most of the cases, a few 
 important ones only having been reserved by them till the appoint- 
 ment of a Recorder [a], — a reference to such of Sir Benjamin Mal- 
 kin's decisions as are reported throughout this work as still of im- 
 portance, will give one an idea of their nature and intricacy. Sir 
 Benjamin Malkin not unfrequently commented on the Charter, 
 giving it as his opinion that it had been loosely and inaccurately 
 framed [&.] 
 
 In 1833, Parliament provided for an enquiry into the juris- 
 diction, powers and rules of the Courts of Justice in the Territories 
 of India, [3 & 4 Wm. IV., c. 85, s. s. 53, 54,] ; the Commissioners 
 under same, and as required by the Statute, being designated 
 The Indian Law Commissioners. Their Report, dated as late 
 as the 8th February, 1842, and ordered to be published by the 
 House of Commons on the 30th May, 1843, contains 226 long 
 pages of printed matter in reference to the Straits alone, and em- 
 bodies endless correspondence and suggestions by Straits and 
 Indian officials, as well as by the Commissioners themselves, in 
 reference to this Colony, — impracticable schemes being propound- 
 ed, nearly all differing in substance, and some having for their 
 immediate object, the dispensation of professional Judges. Lord 
 Auckland, the Governor-General of India, suggested the entire 
 abolition of the Recorder's Court, and the entire re-construction 
 of the Judicial system in lieu of " the present inefficient and cost- 
 ly system," and that there should be "one Magistrate and as- 
 sistant at each of the three Settlements, exercising both Civil and 
 Criminal jurisdiction ; — one Resident for the three Settlements 
 with appellate jurisdiction from the Magistrates' Courts, and 
 holding his Court at each Settlement alternately, and that the 
 Resident should be authorized to reserve such Civil or Criminal 
 cases as he might think proper for trial before one of the Judges 
 of the Supreme Court of Calcutta or Madras, who should once a 
 
 [a.] " I found no heavy arrear of business awaiting me, as I had expected ; a very- 
 few causes indeed there were .... It is true that the Court had been for several 
 months re-opened, hut Mr. Ibbetson who had despatched a great deal of Criminal busi- 
 ness, had, as far as he could, postponed all Civil business for my arrival. " 
 Sir B. Malkin to Govt, of India, 10th Sept. 1837. 
 
 [6.] '* I have Often had occasion to advert to the very loose manner in which the 
 Charter constituting the Court of Judicature is framed ....," and again " The same 
 Charter [i. e. of 1S07 to Prince of Wales' Island] with very few modifications, though 
 many might have been beneficially introduced to suit the altered circumstances of the 
 Settlements, was granted to Prince of Wales' Island, Singapore and Malacca . • 
 The whole Charter is in many respects so ill-devised an instrument, as applied to' the 
 present jurisdiction of the Court, that difficulties must always arise in considering it " 
 Sir Benj. MalHn, Eeport of Ind. Law Comers., 1843, pp. 78, 119, 120. 
 
1827-1855.] JUDICIAL— HISTORICAL. lxxvii 
 
 year, or oftener, make a circuit in the three Settlements." Suffice 2nd Chab- 
 it however to say, that none of the suggestions were ever carried TEBl 
 out, and that matters remained in statu quo. Malkin R. 
 
 It was during the tenure of office of Sir Benjamin Malkin, 1833 _ 18g5 
 that the Legislature of India, having been vested with Legislative 
 powers [3 & 4 Wm, IV., c. 85, s.s. 43 et sej.], passed enactments 
 called the " Indian Acts" a great many of which, passed express- 
 ly for the Straits Settlements or purposely extended to the Ter- 
 ritories under the Government of India generally, are still in 
 force here. It may also be mentioned, that it was greatly due to 
 Sir Benjamin Malkin's exertions, though passed after his time, 
 that Act XX. of 1837, relating to the devolution of property of 
 deceased persons, as chattels real, was enacted, [a] Prior to 
 1834, all Indian and local enactments were called Regulations, and 
 great doubts existed as to the validity of those passed here, for a 
 considerable period. [6] 
 
 At the closing of the Penang Session of Oyer and Terminer, 
 on the 9th April, 1834, the Grand Jurors in their presentment, 
 complained to the Recorder, as they had previously done to Sir 
 
 [a] " These Settlements are mainly indebted to Sir Benjamin Malkin for the 
 
 recent Act No. XX. of 1837 " Norris R.,— 30th November, 1837, [Charge 
 
 to Penang Grand Jury]. 
 
 [6] One of those Regulations is still in force here, although recently amend- 
 ed by the local Government, but that one had however been previously submitted 
 to and approved by the Governor-Generalof India in Council. [Regulation III., A.D. 
 1833 — Registration of Imports and Exports... amended by G. N. 28th December, 
 1883]. Accerding to some of the correspondence on record, which passed betweenlMr. 
 Pickens and the then Acting Lieutenant-Governor, in reference to the case of Carni 
 [ante p. xv.], on the subject of a Regulation passed by Mr. Phillips, which 
 Mr. Dickens considered ultra vires, it would appear that the power of framing Regu- 
 lations was vested in the Governor -General of India by 13 Geo. III., c- 63, s. 36. 
 [1773]. The following is an Extract from one of Mr. Dickens' letters to Mr. 
 Phillips on the subject, dated 9th April, 1803, [which letter must have been un- 
 known to the different Recorders who also questioned the validity of those Regu- 
 lations, including Sir Benjamin Malkin, who treated the subject at some length in 
 one of his letters above alluded to, before his departure from Penang] — the preced- 
 ing paragraphs of the letter, it will be seen, refer generally to the question, and to 
 Mr. Dickens' mode of action : " 2. Perhaps it may be necessary, to avoid misconcep- 
 " tion of the principles, upon which I have acted, as Judge and Magistrate, since 
 " my arrival at this Settlement, on the 7th of August, 1801, that I should state the 
 " reasons upon which I have acted, and shall continue to act, upon some Revenue 
 " and Police Regulations, passed by the Lieutenant-Governor, prior to the 7th of 
 " May, 1802 ; After this period, by the positive directions of the Vice-President in 
 " Council, that day communicated to me, by Sir George Leith, every Regulation 
 " for the good order, and civil government of this Island, which the Lieutenant- 
 " Governor might propose, prior to its being carried into execution, as a law, was 
 " to receive the approbation, and confirmation of His Excellency the Most Noble 
 " the Governor-General in Council, at Port William in Bengal." 
 
 " 3. If it is permitted me, to compare small things with great, then let me say 
 " that I framed a lino of conduct for myself, as Judge and Magistrate [of an Island 
 " which does not possess any civil or criminal laws] in analogy to the priuciples 
 " contained in an Act of Parliament, which takes into its purview, a state of society, 
 " not very unlike that which exists now at Prince of Wales' Island. „ 
 
 " 4. I allude to the 13th of Geo 3rd, Chap. 63, s. 36 ; which gives the Governor- 
 " General in Council, at Port William in Bengal, lawful authority from time to 
 " time, to make and issue such Regulations, for the good order, and civil govern- 
 " ment of the Settlement at Port William, and places subordinate, or to be subor- 
 " dinate thereto, as shall be deemed just, and reasonable, such regulations not being 
 
lxxviii 
 
 PREFACE. 
 
 [Chap. V. 
 
 2nd Char- John Claridge,* of the high-rate of fees charged by the Court, and 
 TEB " that " in touching upon the subject of the fees of Court, they 
 
 Malkin R. begged to do so with the greatest respect. They were however of 
 opinion that the expenses of legal proceedings were generally sus- 
 
 1833—1835. ceptible of reduction, particularly as regards the percentage levied 
 as Court charges on filing petitions and affidavits, and on the 
 - amount of judgment, which in many cases operated to such a 
 degree as to prevent Suitors from coming into Court. In laying 
 this matter before his Lordship, the Grand Jury were aware of the 
 difficulty and delicacy of the subject, and had only been induced to 
 represent it in consequence of these expenses pressing so heavily 
 upon the community," and on this subject, the records again shew, 
 that the Grand Jurors on the 29th November, 1837, informed the 
 then Eecorder, Sir "William Norris, that "they bad received 
 numerous complaints in respect of the high rate of Court fees, 
 and begged respectfully to present them for revision, considering 
 their present rate as a prohibition of Justice to the poor, and a 
 most unreasonable charge." The scale of fees passed, as before 
 stated, in the time of Sir John Claridge, continues in existence 
 with very slight modifications, to the present time. 
 
 Sir Benjamin Malkin, before leaving the Straits in 1835, 
 addressed several letters to the local Government, containing sug- 
 gestions " which he conceived likely to prove useful to the legis- 
 lative authorities in the preparation' of new regulations, and in 
 framing a new Charter of Justice of the Settlements." Some of 
 these, of no importance at this date, are to be found in the Court 
 records as well as embodied in the Report of the Indian Law Com- 
 missioners, before alluded to. f Sir Benjamin Malkin greatly 
 deprecated the idea of abolishing the professional judgeship, and 
 among other instances, instanced cases of Insurance and Inter- 
 national Law, as peculiarly requiring the presence of a professional 
 Judge. He left for India in June, 1835. 
 
 Gammer K. " sir Edward Gambier, appointed to succeed Sir Benjamin 
 Malkin, arrived in Penang on the 26th June, 1835, but did not 
 
 1835—1836. however, remain here long, being appointed in September, 1836, to 
 a Puisne Judgeship in Madras. The only matter requiring notice 
 
 " repugnant to the Laws of the realm ; And to impose, and levy, reasonable fines 
 " and forfeitures, for the breach of such regulations; But nevertheless such Regu- 
 lations shall not be valid, or of any force and effect, until duly registered, and 
 '■ published in the Supreme Court of Judicature, with the consent, and approbation 
 " of the said Court ; And the Governor-General in Council is to transmit copies of 
 " the said Regulations, to one of His Majesty's principal Secretaries of State. 
 
 " 5. = Thus,. I have acted in analogy to the principles of that Statute, in carry- 
 " ing into execution as Judge and Magistrate, some Revenue and Police Regula- 
 " tions, enacted andpublished by the Lieutenant-Governor of this Island ;... prior to 
 " the 7th May, 1802, I was left to the exercise of a sound discretion, I had neither 
 " laws nor precedents, to assist. my judgment, and these Revenue and Police Regu- 
 *' lations did not appear to me either unjust or. unreasonable, in the existing of men 
 " and things on this Island ; and I perceived nothing in the said Revenue and Po- 
 " lice Regulations, repugnant to the laws of the realm of England." 
 
 * ante p. lxxv. 
 
 t Extract of one of which letters is published in "Papers and Correspondence 
 Land Revenue Administration," 1884. ' 
 
1SST-16B5.] 
 
 JUDICIAL-HISTORICAL. 
 
 lxziz 
 
 in the latter'a time is, in regard to pleadings, — he entirely dis- 2nd Chab. 
 
 countenanced the system of pleadings which had been inaugurated ; 
 
 by Sir Ralph Rice, and.which had been already greatly modified gambiub B. 
 by Sir Benjamin Malkin. * — 
 
 J J . 1835—1836. 
 
 At the August Session of Assizes, 1836, the Grand Jurors laid 
 great stress on the fact of the Calendar being increased by " many 
 petty cases which had, up to a late period, been decided by the Magis- 
 trates in Quarter Sessions, some Criminals thereby receiving a 
 greater measure of punishment, inasmuch as they were frequently 
 incarcerated for several months previous to their trial for an 
 offence to which such imprisonment alone — was more than dis- 
 proportionate, the principle being lost sight of that ' the more 
 immediately after a crime a punishment is inflicted, the more just 
 and useful it will be' " and after commenting upon several other 
 local matters, concluded their presentment by " offering to the 
 " Honorable the Recorder their congratulations on his advance- 
 " ment to the Madras Bench, but at the same time, the Grand- 
 " Jury could not but express their regret, that no sooner had a 
 „" Recorder resided long enough in these Settlements to enable 
 " him to become acquainted with the manners and customs of the 
 ' ' various population, than he was removed to another part of India 
 " —a system which they considered to be highly prejudicial to 
 the interests of the community." f 
 
 Sir Edward Gambier, was succeeded by Sir William Norris, Nobbis E. 
 who had previously been Chief Justice of Ceylon. He assumed 
 dutie3 on the 29th September, 1836. The Court was granted 
 Admiralty Jurisdiction shortly after his arrival [6 & 7 Wm. IV., c. 
 53] — Letters Patent for carrying out the Act, dated 25th February, 
 1837, being duly proclaimed in open Court, on the 23rd October of 
 that year, the Registrar of the Court being also appointed Regis- 
 trar on its Admiralty Jurisdiction, and the Sheriff as Marshal, 
 the Sheriff however, on his appointment every year, appointing his 
 Deputy as Deputy Marshal of the Vice-Admiralty Court as well. 
 
 The Records do not shew how and what fees were claimed 
 under the Act, for Sir William Jeffcott, a subsequent Recorder, on 
 the 30th January, 1855, wrote to the then Governor, Colonel 
 Butterworth, regarding the absence of any authorized table of fees 
 for the Admiralty Courtj the Governor informing him in reply on 
 the 27th February, 1855, that he had forwarded his letter to India, 
 " pointing out this very anomalous state of affairs." On the 10th 
 of August, 1855/ the then Governor E. A. Blundell, received a 
 reply from the Secretary to the Government of India, informing 
 him " that the Honorable the President in Council, did not see 
 why Admiralty fees, past or future, should go to the officers of the 
 Court, when all other fees go to Government. On the other hand, 
 the officers,His Honor in Council conceived, should be fairly reinu- 
 neratedfor Admiralty work, unless itwas apartofthe understanding 
 when they were appointed, that they were to do all the work of the 
 
 1838-1847. 
 
 * Report Ind. Law Comers., 1842, p. 208. 
 
 t On this subject see further, end of time of Norris, B. infrS,, 
 
kit PREFACE. [chap. v. 
 
 2nd Chae- Court on their present salaries. Unless this were the case, His 
 1^1 Honor in Council, was of opinion, that the average of fees should 
 
 Nobbis B. he struck, and extra salaries allowed to the officers accordingly," 
 • — and the Governor was further .requested " to submit for sanction 
 
 183G— 184,7. j n t h e usua i form the amount which he would propose that each 
 officer should receive as additional salary." Prom a letter of the 
 Registrar on record, dated 17th June, 1856, to the "Resident 
 Councillor of Prince of Wales' Island," it would appear that " all 
 Admiralty fees as were received by the Registrar at this Station, 
 were not kept separate and withheld from the Treasury as was 
 the case at Singapore, but were mixed up and sent into the Trea- 
 sury from month to month, as they were collected, with the fees 
 received on "all the other sides of the Court in which fees are 
 allowed to be taken." The records shew nothing further on this 
 point, but as will be seen hereafter, on the Proclamation of the 3rd 
 Charter in March, 1856, till April, 1861, all fees of office were kept 
 by the Registrars,* and Admiralty fees are received until the pre- 
 sent day by the Judges, Registrars and Marshals. 
 
 Admiralty Jurisdiction was thus given to the Court after 
 the lapse of very many years, and after repeated representations 
 both by the authorities and the Grand Jury, papers from Mr, 
 Dickens bearing date 8th November, 1803, being also on record 
 on the subject, the result having been that previous to the grant of 
 Jurisdiction, the authorities had been powerless to act, the records 
 shewing, number of prisoners charged with piracy, released for 
 want of authority to deal with them, and in other cases, some 
 few being sent to Calcutta for trial in the very early days, without 
 these however, shewing any result whatever, t 
 
 In their presentment to the Recorder on the 29th March, 1837, 
 the Grand Jury " concurred with the Recorder in considering that 
 " minor offences should be disposed of summarily before Quarter 
 " Sessions. Not only was there much inconvenience felt by the 
 " public generally, and the Grand and Petit Juries, by having'their 
 " time so long occupied in the examination of trivial offences, but 
 "also his Lordship's time unnecessarily trespassed on and his 
 
 " attention taken from more important duties , that the . 
 
 " Jurisdiction of the Court of Requests might be beneficially 
 " extended to a larger amount, with power of appeal to the 
 " Supreme Court, and generally that the ends of Justice and the 
 " dignity of the Law would best be maintained by having only 
 " important causes, whether Civil or Criminal, tried by the Recorder 
 " while a salutary controul should constantly be exercised over the 
 " inferior Courts." The Grand Jurors then proceeded to depre- 
 cate the " change which they had been given to understand was 
 " in contemplation, of withholding the Charter of the Court, and 
 " substituting in its place a, Company's Charter, being deeply im- 
 " pressed with the necessity and propriety of having an English 
 
 * On this subject, see further, time of McCausland and Maxwell, E. E., Ch. vi. 
 
 t Vide, Be*, v. Noquedah Mong & ors„ Criminal Rulings, Vol. II, of these 
 Reports, 
 
18$7-1855.3 JUDICIAL— HISTORICAL. kxxi 
 
 " Court of Judicature presided over by a professional Judge, to 2nd Chab- 
 " guard the interests, and protect the liberties of so large a popula- TEB - 
 "tion and extensive a trade." This apprehension of the Grand- .nobhis, E. 
 
 Jurors, doubtless arose in consequence of some of the recommend- 
 
 ations contained in the Eeport of the Indian Law Commissioners, 1836—1847. 
 as mentioned in the time of Sir Benjamin Malkin, 
 
 At the June and December Assizes, 1845, the records shew 
 that the Grand Jurors again moved in the question of the Jury, 
 and "the fact that all the Province Wellesley planters had been 
 "exempted from the Panel Roll, a practice opened to several 
 " objections. The immunity thus granted to so large a portion of 
 " our small community, made it necessary that the names of each 
 "individual member of the different mercantile firms should be 
 
 " placed upon the Panel Roll the Jurors were put to 
 
 " very great inconvenience, and prosecutors and witnesses as well 
 " as accused parties themselves suffered very great hardship, by 
 " having p<?tty cases brought up before the Court instead of their 
 "being disposed of by the Magistrates in Quarter Sessions. 
 " This was a matter that had been repeatedly represented by. 
 "former Grand Juries, and the Grand Jury respectfully solicited' 
 " the Court would be pleased to bring to the notice of the proper 
 " authority, the urgent necessity of a reform in this point." 
 The Jury question is one not without great difficulty, in Penang, 
 even to this day. 
 
 The records of 1838, shew -some amusing correspondence 
 between the Court and some of the inhabitants of Penang, one 
 letter dated 25th May, 1838, being addressed to an Agent of the 
 Court, Mr. Carnegy, by the Registrar, at the request of the 
 Recorder, calling upon him as one of the managing Committee of 
 a local newspaper, the Pinang Gazette, in consequence of. two 
 anonymous letters that had appeared therein " reflecting upon 
 the judicial character and proceedings of the Recorder," to 
 apologize within 6 hours to the latter for the publication of the 
 " calumnies," or to suffer his name to be erased from the Rolls of 
 the Court, under the powers vested in the Recorder under the 
 Charter, " without assigning any reason whatever." Mr, Carnegy 
 immediately apologised disclaiming any knowledge or participation 
 in the publication of the letters and his intention of giving up- all 
 interest in the paper. Another letter, dated 25th June, 1838, is 
 from two Merchants of Penang who, having heard that Sir 
 William Norris, whilst delivering judgment in a case wherein 
 they had been called as witnesses, had said that they had evinced 
 in their evidence " that want of candour characteristic of British 
 Merchants," inform the Registrar that they could not "permit 
 such opinions to be expressed without refutation," and proceed 
 to take the Recorder to task, — the latter personally answering 
 their letter on the.6th July, 1838, and informing them " that their 
 proceedings implied a lamentable want of consideration on their 
 part," and warning them of the consequences they had run, for he 
 could not believe that " the letter was written with a deliberate 
 intention to insult the Court of Judicature, and to brave the 
 
IrvYii PREFACE. tChap.V. 
 
 2nd Chab- consequences to which in that case they would have rendered 
 
 TEB - themselves liable." 
 Nobbis, E. j n 1840, Sir William Norris extended to Malacca, some of 
 
 1S36— 1847. ^ e Rules and Orders of Court in force both in Penang and Singa- 
 pore. It was also in that year, that he inaugurated the present 
 system of swearing native witnesses under Act 5 of 1840 [a], they 
 having previously been sworn in a " manner and form most bind- 
 ing upon their consciences," i. e., according to their several reli- 
 gions and customs. [6] 
 
 On the 23rd June, 1845, Sir William Norris granted an extra- 
 ordinary application, and the only one of its nature to be met with 
 in the records in Penang: " The Grand Inquest having returned a 
 true Bill in the cause of the Queen versus Joseph Donnadieu for man- 
 slaughter, whereunto the said Joseph Donnadieu said he would plead 
 Not Guilty, he the said Joseph Donnadieu further said he was an 
 alien, and was born in Marseilles in parts of Prance, under the allegi- 
 ance of the King of the French, and he prayed the writ of Our Lady 
 the Queen to cause to come Tiere certain aliens who together with 
 certain Jurors now " on the Panel would form a Jury of half 
 aliens and half natives to try the issue of the said plea according 
 to the form of the Statute in such case made and provided, and it 
 was granted to him to be tried by a Jury, de -mediatate lingnce." 
 The prisoner was tried by the Jury allowed him, and acquitted on 
 the 25th June, 1845. The Charters no where authorized such a 
 Jury, and now, by Section 31 of Ordinance 6 of 1873, it is strictly 
 prohibited. By the laws of the Colony, aliens are not excluded 
 from the Jury. * 
 
 Some of the records during this Recorder's long tenure of 
 office, disclose more forcibly the feeling that had existed before 
 his time in regard to the relations between the Government and 
 the Bench. Sir William Norris, following in the wake of his pre- 
 decessors, frequently laid stress on the defective system of the 
 constitution of the Court, in its connection with the Executive, 
 whereby their relative functions continually clashed, and recom- 
 mended " the complete separation of the Judicial and Executive 
 branches." He expressed himself in very strong terms on the 
 subject, a few months after his arrival in a charge to the Grand- 
 Jury, on the 30th November, 1837, telling them that "their senti- 
 " ments with regard to the incongruous union of Judicial with 
 " Executive functions were entirely his own. This had from 
 " the commencement been the greatest difficulty with which the 
 " Court of Judicature had had to contend, the most formidable 
 
 " obstacle to its unity, celerity and efficiency of operation 
 
 " He had never concealed his settled conviction [and it was the 
 
 [a] See In re Native Witnesses, Penang Assizes. Criminal Rulings, Vol. II. of 
 these Reports. 
 
 [6] See Charters as well as case tried by Mr. Dickens in 1805, Bamalinga Putty 
 V. Mootee Samee, ante p. xxxv. 
 
 * SeeReginn v. Khoo Ghee Boon, Criminal Rulings, Vol. II. of these Reports. 
 
1836—1847. 
 
 1827-1855.] JUDICIAL- HISTORICAL. lmHi 
 
 " conviction of all his predecessors] that the constitution of this 2nd 0h ab- 
 
 " Court was essentially defective, and that it never could work so ' 
 
 " well as it should do, until freed from all connection with the Nobbis, E. 
 " Executive authorities. The same anomalous system had" been 
 " successively abandoned at all the Presidencies and in Ceylon, 
 " much to the advantage of the respective Governments, the 
 " Judges and people, and it was high time, that it should be 
 
 " abandoned here also ," and nearly five years after on 
 
 the same subject, in a letter dated 12th September, 1842, to the 
 local Government, who had requested his opinion on the Report 
 of the Indian Law Commissioners, he thus wrote : 
 
 " The greatest improvement on the present system, and that' which would 
 
 be at once the most efficient and the most acceptable to all classes would be 
 
 a complete separation of the Judicial and Executive branches At Singa- 
 pore, or wherever the fixed residence of the professional Judge may be, experience 
 sufficiently proves that the Lay Judge will scarcely ever be likely to thwart or 
 interfere with the general business of the Court. The unhappy disputes between 
 Mr. Fullerton and Sir John Claridge furnish, it is true, an instance to the contrary ; 
 but the proposed withdrawal of the Governor's Judicial functions for the future, 
 is a sufficient guarantee, with the casting vote, which should still be reserved to 
 the professional Judge, against the recurrence of similar difficulties." * 
 
 In connection with this matter, it may here be stated, that 
 questions not unfrequently arose as to the respective powers of the 
 professional and lay Judges, and of the right of the former to sit 
 on appeal on the decisions of the latter, — a marked instance of this 
 occurring in the case of the Iron Queen, on the Admiralty side of 
 the Court, whicli had been heard and determined in Singapore, on 
 the 17th September, 1846, in the absence of the Eecorder, by Mr. 
 Thomas Church, the Resident-Councillor at that Settlement, and 
 who was one of the Lay Judges of the Court, The Resident 
 Councillor had passed a decree for the possession of the vessel to 
 be given to the owner's agent, and condemned the Captain of the 
 vessel in costs, which costs not having been paid, the Captain was 
 arrested and lodged in Jail, under the process of the Court. On 
 the arrival of Sir William Norris on circuit, on the 26th November, 
 1846, the Captain presented him with a petition complaining 
 against that portion of the Resident-Councillor's order as condemn- 
 ed him in costs, and pointed out that his resistance of the claim 
 by the Agent, was due to his doubts of .the bond fides of the power 
 of Attorney under which the Agent claimed to act, as he [the 
 captain] had received no instructions from the owners to give up 
 the ship or leave his post. Sir William Norris, being satisfied 
 with the correctness of this statement, and considering the order 
 of the Resident-Councillor as, to costs, unjust, granted a Rule call- 
 ing on the owners to shew cause why the order of the Resident 
 Councillor regarding the costs should not be reviewed and set 
 aside. The Resident-Councillor, thereupon, filed a protest to the 
 granting of the Rule, and stated that he. would be " greatly 
 " wanting in regard for his own public character, and the position 
 " he held as a Judge of the Court, did he countenance or concur 
 
 * Sep. Ind. Law. Comers., 1842, p.p. 222, 3.— See also by way of illustration, In re 
 Charles Maitland, 13th August, 1828, mentioned in the time of Claridge, E., ante p. Lsv. 
 
lrxxiv PREFACE. [dap- ▼■ 
 
 «nd Chab- « in the novel, and unprecedented proceeding of the Recorder,— 
 TEB « he had held that the Master could have enter- 
 
 Nobbis E. " tained no just douht as to the genuineness of the power of Attor- 
 — - ' " ney, and undertook the judicial business of deciding the case, 
 
 1836—1847. « no t from choice, but as matter of duty. That the point was 
 " dependent entirely on matters of fact, — and from his age, ex- 
 " perience and situation, he was as capable of deciding, as his 
 " colleague, the Eecorder, on a question of fact such as this, — 
 " particularly — as he happened to have heard the case, and had had 
 " the witness before him. That under the Charter, the Court,— 
 " composed of the three Judges, one professional and two lay,— 
 " alone could review his decision, but there was no warrant for 
 " the interposition of one of the Judges in the acts of another, 
 " in cases similar to the present." Sir "William Norris, notwith- 
 standing the protest of Mr. Church, had the Rule argued before 
 him on the 1st December ; and on the 19th January following, 
 1847, delivered judgment, making the Rule absolute, and revers- 
 ing the order of the Resident-Councillor as to costs, holding that 
 he, as professional Judge, had power under the Charter, to set his 
 lay brethren right when they had erred, considering that "the 
 "Lay Judges were, by the Charter, nominated as such solely vir- 
 " tute officii as the chief Executive Authorities of the Settlements, 
 " whose offices required knowledge, experience, and abilities of 
 " various kinds, diplomatic, military or commercial, but neither 
 " necessarily nor probably, implied the possession of any judicial 
 " qualifications or experience whatsoever." On the 2nd Febru- 
 ary, 1847, the Resident-Councillor placed a minute on the files of 
 the Court, protesting against the remarks -of the Recorder, and 
 fearing " lest silence would be construed into an acquiescence in 
 the doctrines advanced by the Recorder, as to the relative posi- 
 tion of the Judges, under his Majesty's Letters Patent, of 27th 
 November, 1826," and after touching on the expediency of making 
 the Recorder an Appellate Judge, recorded his opinion that the 
 Recorder possessed no such power, and as one of the Judges of 
 the Court, ordered his minute to be filed in Court, attached to the 
 order of the Recorder, as a protest thereto. The Recorder, having 
 subsequently objected to this minute remaining on the files of the 
 Court, it was withdrawn by the Resident-Councillor [a], 
 
 Notwithstanding the differences that existed between the 
 
 [o] The case in question is not reported in this work, as hearing no longer on 
 any point whatsoever ; the constitution of the Court having materially changed. It 
 was published in a pamphlet form, shortly after the issue of the case in 1847. In con- 
 nection with the view taken by Mr. Church in this matter, it may here be said, that he 
 had a few years before, expressed himself in a somewhat similar manner. In his remarks, 
 dated 24th September, 1842, on the Eeport of the Indian Law Commissioners,— who 
 had recommended " a Court in each Settlement, presided over by the Chief local 
 authority, with a Eecorder going on Circuit with power to call up any cases which he 
 considered to be proper subjects for adjudication by himself,"— Mr. Church observed 
 " that should this be persevered in, a greater calamity could scarcely befal the Straits 
 " Settlements ; the incontrovertible consequence would be to encourage extensive liti- 
 " gation, prove dilatory, and of necessity be attended with considerable expense to 
 " parties, evils which scarcely exist under the present system. If every case, however 
 " simple, whioh is heard and decided by the superior lay judge is open to appeal to the 
 " professional judge, and that learned person is allowed to exercise the speoial powers 
 
1827-1835.] 
 
 JUDIOIAL-HISTORIOAL. 
 
 lxxxv 
 
 Recorder and the Executive, the records shew that he, from the 
 time of his arrival, — in the example of several of his predecessors, 
 — acted as Law Adviser to the local Government, who, from the 
 time of the discontinuation from office of Mr. W. Caunter, as their 
 Law A gent, in 1830, — and the relinguishment of that office also 
 hy Mr. Balhetchet [a] shortly after his appointment on the 25th 
 February, 1834, in succession to Mr. Caunter, had no legal repre- 
 sentative \¥\, a system against which some of the Recorders, not 
 only demurred against, but pronounced as unjust both to them- 
 selves and the parties who appeared before them, as placing them 
 in a most anomalous position. A reference to the case of East 
 India Go. v. Scott [c], and Edwards v. East India Go. [d.], will 
 forcibly show the mind of the Recorder on the subject. This sys- 
 tem apparently lasted till within a few years before the transfer 
 of the Colony from India, in 1867, the records shewing that Mr. 
 Thomas Braddell, [afterwards Attorney-General in 1867], was ap- 
 pointed " Crown Counsel at Singapore" in January, 1864, and 
 Mr. Daniel Logan, [Solicitor-General in 1867J, as " Crown Prose- 
 cutor" in April, 1865. Prior to this, in the more important ac- 
 tions either instituted by or against them, the Company retained 
 Special Agents, and in most of the cases, they were not represent- 
 ed at all. The inconvenience must have been felt by the authori- 
 ties themselves, for by a letter dated 3rd June, 1843, the then 
 Governor, Mr. E. A. Blundell, appointed, — doubtless in a way as 
 a remedy for the evil, — several officials to represent them "in all 
 actions in Her Majesty's Court, wherein the interests of the East 
 
 India Company or their Government may be concerned, 
 
 and as the Resident-Councillor may consider most convenient and 
 proper on the occasion," these officials being " Mr. W. T. Lewis, 
 
 2ND CHAR- 
 TEE. 
 
 Norms, E. 
 1836—1847. 
 
 " accorded to him, there will be no end of litigation it will tend to bring 
 
 " the executive officers holding judicial appointments into contempt I have no 
 
 " hesitation in saying, that I conceive a lay judge, who, from a long residence in the 
 " country, intimate knowledge of the language and manners of all classes of 
 " natives, will be found generally more competent to judge correctly in matters of 
 '* fact than a professional judge who has spent the best years of his life among Europeans 
 
 " and prone to believe everything because it is sworn to " And the following 
 
 " was his opinion of the native character " My own experience enables me to 
 
 " say the Chinese and others are in a state of moral degradation almost beyond concep- 
 tion. I witness daily, nay hourly, instances of natives uttering the most deliberate 
 " falsehoods on the most trifling occasions ; and what will they not fabricate when their 
 " personal interest is concerned ?...." I. L. Co. Rep., p. 214. 
 
 [o]. The exact date of Mr. Balhetchet's relinquishment of the post cannot be 
 found, but from the records, he appears to have been alternately a Government official 
 and a Law Agent. 
 
 [6]. See William Caunter v. East India, Co., infra, p. 12. It would also appear 
 from the records, although it may well be that he was originally appointed to hold the 
 two appointments simultaneously, that during the tenure of office of " Registrar," by 
 Mr. Duff, he also acted as "Law Officer to the Hon'ble Co.," his name appearing in the 
 latter capacity as early as December, 1814, but no trace can be found of his letter of 
 appointment as such, nor is mention made in his appointment of Registrar, of his 
 having been a professional man. Mr. Duff, although " Law Officer of the Hon'ble 
 Co.," was held by Stanley, R., not to be in the position of the Attorney or Solicitor- 
 General, and therefore could not enter a Nolle Prosequi to an indictment. [King v. 
 China Toh, 3rd Dec. 1814, not reported.] See however King v. Cousens, alluded to in 
 page liii supra. 
 
 [c]. Infra, p. 63. 
 
 [d]. Magistrates' Appeals, Vol. III. of these Reports. 
 
IxxxtI PREFACE. [ctapv. 
 
 2nd Chab- Assistant-Resident, Lieutenant Ferrier, Superintendent of Pro- 
 
 T5SB - vince Wellesley, Mr. G. F. Gottlieb, Harbour-Master, and Mr. K 
 
 No^rs R M. Mclntyre, Assistant in the Land Department," the latter how- 
 
 « — ' ' ever in land matters only, — a similar letter, dated 28th January, 
 
 1836-1847. 1848, authorized "Mr. H. Nelson, Assistant-Resident of Prince 
 
 of Wales' Island," to act in a similar capacity, and even in regard 
 
 to the majority of these, it may here he said, that their names do 
 
 not appear at all in the Court Records. 
 
 A scarcity of copies of local Regulations or enactments, 
 concerning which the Recorders were called upon to pronounce, 
 seems also to have been felt during Sir William Norris' time [a], 
 indeed as felt, although to a lesser degree by our own Government, 
 in regard to the local Ordinances. A short time before his 
 departure, Sir William Norris, in a letter dated 24th October, 
 1846, ' addressed the Governor-General of India, regarding 
 the promulgation of Act III. of 1847, vesting the appoint- 
 ment of Constables and Peace Officers, in the Executive, a right 
 which, by the Charter, had been vested in and hitherto exercised 
 by the Court, — although it will be remembered, that the refusal of 
 Sir Edmond Stanley, to have anything to do with these appoint- 
 ments, had been the cause of early dissension between him and the 
 local authorities. Sir William Norris doubted of the legality of the 
 contemplated measure, considering it at conflict with the Charter, 
 and complained of the want of courtesy shewn him in his not having 
 been consulted, before the framing of the Act. The following 
 extract from his letter, apart from this circumstance, will prove 
 interesting as bearing on a point mentioned in connection with his 
 time : 
 
 " I deem it also the more incumbent upon me to bring the 
 
 circumstance, with all due respect, to the notice of the Supreme Government, 
 because, having already tendered to her Majesty, the resignation of my Office, I 
 feel that my successor might justly complain, were I to pass over in silence, a mode 
 of proceeding which however unimportant to myself personally on the eve of my 
 retirement, can scarcely, I submit, be regarded as consistent with the courtesy 
 hitherto generally accorded by the Local Authorities to the Office which I have 
 had the honor to hold for the last ten years ; during which period, I may add, these 
 Authorities have freely sought what has been as freely afforded, my professional 
 advice on all needful occasions of which surely, the measure in question, directly 
 affecting as it does the Court of which I am the responsible head, was one." 
 
 In answer to his representations, the Indian Government by 
 letter, dated 19th December, 1846, expressed regret at Sir William 
 Norris not having been consulted, and attributed the fact to 
 oversight, but at the same time informed him that his objections 
 had, prior to the receipt of his letter been maturely considered, 
 and that they were clearly of opinion that the proposed measure 
 
 [a] " The scarcity of all the Government Regulations, and the 
 
 difficulty of obtaining a complete copy, [I have none myself, that of the Court is 
 imperfect, and I was obliged to borrow one for the occasion] has long formed a 
 
 subject of a just complaint The very limited number of copies would 
 
 be a hardship even were they models of perspicuity and precision, but the hardship 
 is increased by the acknowledged difficulties and obscurities with which they 
 abound." Sir Wm. Norris. See Edwards v. East India Co., Magistrates' Appeals, 
 Vol. III. of these Reports, ' 5 w t> 
 
1836—1847. 
 
 1827-1855.] JUDICIAL— HISTORICAL. lxsxvii 
 
 was not at conflict with the Charter, giving out their reasons. 2nd Char- 
 
 The effect of this measure, as will be seen further on, again form- TEB 
 
 ed the subject of discussion between two of the later Recorders, Nobbis, R. 
 on the promulgation of the third Charter in 1855. 
 
 Sir William Norris, was the only Recorder who remained in 
 office continuously for a long number of years, nearly all his 
 predecessors, with the exception of Sir Edmond Stanley and Sir 
 Ralph Rice, who were here eight and seven years respectively, 
 Being transferred to some other Indian presidency after a compara- 
 tively short tenure of office. Papers are to be found, — apart from 
 the presentment of the Grand-Jury to Sir B. J. G-ambier on the 
 subject, in August 1836, — where mention is made of that fact, 
 and Sir Benjamin Malkin, who had himself been transferred to 
 India, subsequently advocated the abolition of the system of 
 translation, giving it as his opinion, that there " was no good 
 reason for its continuance, for the Straits furnished very little 
 apprenticeship for the continent of India," * an opiuion in which 
 Sir William Norris " entirely concurred." f 
 
 Sir William Norris left Penang on the 9th June, 1847 [a] Rawmnson, 
 and was succeeded by Sir Christopher Rawlinson, "Recorder of * E \ a *;n 
 Portsmouth," on the 4th of August of the same year. During 
 the interval between the departure of Sir William Norris, and the 
 arrival of Sir Christopher Rawlinson, Mr. Salmond, the Resident- 
 Councillor of Malacca, who had just resumed duties after leave of 
 absence, was appointed by the Governor, Colonel Butterworth, 
 under the powers vested in him by the Charter, as a Lay Judge 
 of the Court at that Settlement, to sit in the absence of the 
 Recorder. Mr. Salmond, on the 10th June, 1847, accordingly 
 proceeded to the Court-House to take the oaths of office, but 
 being ill at the time, remained in his carriage. Mr. Lewis, the 
 " Accountant-General" of the Court in Penang, and who had been 
 acting for Mr. Salmond, thereupon requested the Senior Sworn 
 Clerk in charge, Mr. B. Rodyk, to have the Court opened, and Mr. 
 Salmond afterwards sworn as a Judge of the Court in his carriage. 
 This, the Clerk objected to, but being pressed by Mr. Lewis,' he 
 opened the Court in the usual form, and then, in company with 
 Mr. Lewis, " proceeded downstairs to the Government Treasury at 
 the Stadt House, and administered to the said J. W. Salmond, 
 
 * Rep. Ind. Law Comers., 1842, p. 114. 
 
 t "I entirely concur with my predecessors Sir John Claridge and Sir Benjamin 
 Malkin, in thinking that a Judge in these Settlements should never be transferred to 
 the Indian Bench. These Judges both wrote to the home authorities strongly deprecat- 
 ing the practice, and Sir Benjamin's promotion was not of his own seeking. How far 
 the decisions of these questions might affect my own private interests, I cannot tell, but 
 I have felt it my duty to express my opinion thus publicly without reference to my own 
 individual claims." Norris, R., charge to Penang Grand Jury, 30th Nov. 1837. 
 
 [a] " Sir "William Norris was admitted to the bar by the Hon. Society of the 
 Middle Temple in 1827, and two years afterwards proceeded to India, where he practised 
 with considerable success. In 1835, he was appointed Chief-Justice of Ceylon, having 
 previously acted as a puisne Judge there, and in 1836, he received the appointment of 
 Recorder of Prince of "Wales' Island, &c„ retired on pension in 1847 — died at Ashurst 
 Lodge, Sunningdale, 7th September, 1859." London Globe, Septi 10, 1859, 
 
ixxxviii PREFACE. Cohap. V. 
 
 2nd Chab- Esquire, the usual oaths in his palanquin carriage, opposite the said 
 TEB - Treasury door, after having previously and respectfully stated his 
 
 Eawlinson, objections against the legality and formality of the ' oaths so 
 
 E. ' administered." Mr. Rodyk immediately afterwards reported the. 
 
 " — ' matter to the Registrar in Penang, who [the Recordership being 
 
 1847—1850. Taoan y j communicated with the Governor, pointing out that the 
 oaths were nugatory. Colonel Butterworth in a letter dated 22nd 
 June, 1847, signified to Mr. Salmond bis disapprobation of the 
 course adopted by him, remarking that such irregularity could 
 not be permitted, and that " he thought it imperative that he 
 should be sworn in as Judge of Her Majesty's Court of Judicature 
 in open Court," and required him " to proceed to Singapore by the 
 earliest opportunity, and there be sworn in." This was accord- 
 ingly done by Mr. Salmond, and the papers in connection with 
 the matter afterwards forwarded by the Governor to the Registrar 
 to be filed in the Court Records. 
 
 As stated above, the power of authorizing the Resident-Coun- 
 cillors in each Settlement, to sit in the absence of the Recorder, 
 was vested in the Governor by the Charter, each authority granted 
 being duly forwarded to the Registrar in Penang and registered. 
 This system was inaugurated in Sir Benjamin Malkin's time. It 
 would appear that doubts had been at one time raised, as to the 
 ■ legality of holding a Court at any one of the Settlements without 
 the presence of the Recorder, but they were overruled by Sir 
 Benjamin Malkin as shewn by the following extract from one of 
 his letters to the Government of India, dated 16th September, 
 1837:— 
 
 " I found the Court in operation at all the Settlements and felt that it was not 
 exceeding its power, except indeed that the necessary preliminary of a regular 
 authority by the Governor so to act, had 'been omitted. This however was sup- 
 plied for the future ; and as far as ratification could supply the want of previous 
 authority, for the past also, and no one ever raised the question whether that rati- 
 fication would be advisable. The only difficulty that I have heard suggested on 
 this subject was, that it seemed contrary to the notion of a single Court that it 
 should be holding concurrent sittings in different places' at the same time, and 
 that on this ground an Act of Parliament had been required in England to enable 
 the Quarter Sessions to hear Appeals and Criminal Cases at the same time in 
 
 different rooms. The argument is not without force , but I thought the 
 
 provisions of the 13 th page of the Charter too decidedly contemplated the occur -" 
 renee of such proceedings to make me hesitate about upholding them, even if I 
 might have felt that there was doubt enough to prevent me from recommending 
 such a course, if hitherto unpractised. To procure its abandonment on any ground 
 of illegality, would have been to declare void all the proceedings had under it j and 
 this of course I could not do, without being satisfied that they were so, which was 
 not my opinion." 
 
 Sir Christopher Rawlinson assumed duties in August, 1847. 
 It is in his time, that Punghulus or " Native head-men," are 
 first-mentioned in the records. These native head-men, appointed 
 under a purely Malay custom, necessarily no where appear in any 
 of the Indian enactments connected with these Settlements nor 
 has the term been met with under any denomination whatever in 
 any of the early local Regulations, unless they can, in some degree, 
 be associated with the Native Captains of the early days.* In 
 
 * ante #. xxiii. 
 
18W-1855.] JUDICIAL— HISTORICAL. . lxxxix 
 
 Malacca, " a question having been raised whether Punghulus 2OT> T ^ AB * 
 
 ought to be considered as Constables, it was determined to refer \ 
 
 the case to the professional Judge, as they had been sometimes Rawlinson, 
 sworn in at the Quarter Sessions, and it would be dangerous to B - 
 the life of a Peace Officer in which capacity he acts, should it not ig47_i850. 
 be recognized." The papers were sent to the Kegistrar from 
 Malacca on the 10th July, 1847, together with a " copy of the 
 oath written in the Malayan character taken by the Punghulus 
 occasionally, in open Court of Quarter Session,"* but the ques- 
 tion does not appear to have been brought before the Eecorder. 
 By Ordinance 1 of 1872, s. 1, the Governor may invest any 
 Punglmlu with the powers of a Police Officer or Constable, every 
 Punghulu so invested, being subject to the several provisions of the 
 Ordinance relating to the duties of Peace Officers. 
 
 In Sir Christopher Rawlinson's time, jurisdiction was con- 
 ferred on the Court, by 12 Vict., c. 21, for the relief of Insolvent 
 Debtors, the Recorder being the sole "Commissioner " or Judge 
 of the Insolvent Court. Rules, Orders and Tables of fees, in con- 
 nection therewith, were duly passed on the 6th November, 1848, 
 and confirmed by an Order of her Majesty in Council, dated 29th 
 June, 1849 ; the jurisdiction thus conferred, constituted a quasi 
 distinct branch of the Court of Judicature, the seal bearing the 
 device of the Royal Arms, and the inscription : " Court for the 
 Relief of Insolvent Debtors." 
 
 In their presentment to the Recorder, at a Session of Oyer and 
 Terminer held in July, 1849, the Grand-Jury recommended " that 
 witnesses attending the Court of Judicature during the Criminal 
 Sessions should be paid for the time they were absent from their 
 work," but nothing came of the recommendation. Compensation 
 to witnesses was first fixed by the Order in Council, dated 2nd 
 May, 1872, since amended by Order dated 24th November, 1881. 
 
 It was also during this Recorder's tenure of office, that the 
 Straits Settlements ceased to be subordinate to the Presidency of 
 Port William in Bengal, and were placed in direct correspondence 
 with the Government of India. f 
 
 Sir Christopher Rawlinson frequently laid stress on the 
 defective system of prison discipline, and stated that although the 
 High-Sheriff was nominally the person charged with the control 
 and superintendence of the Gaols, yet, owing to his being annually 
 
 * The following is * copy of the translation of the oath on record, forwarded 
 with the above : 
 
 "I affirm before God Almighty, that I Punghulu of promise to 
 
 do all that is right and just with a clean heart, towards the English Government, 
 and that I shall follow and obey all Company's order ; if any person or persons are 
 going to create any disturbance or row, in my district, that I shall be obliged to 
 inform the Chief Authority in Malacca, or his deputy, or whoever acts or receives 
 power from him ; and that I rely with confidence in the decisions of the English 
 Company ; and I also promise to improve the country by cultivation, and to 
 advance the welfare of the inhabitants : this is my faithful undertaking with the 
 Government of the English Company. 
 
 Written at Malacca " 
 
 + Proc. 1st Aug. 1851, Calcutta Gazette, p. 899, Index to Laws S. S., Pt. II., p. 2, 
 
xo 
 
 PREFACE. C«*P- *V 
 
 2nd Chab- appointed and other circumstances, he had very little to say in the 
 TER - matter and was next to useless — he recommended that the High- 
 
 Rawmnson, Sheriffship be abolished and the appointment of an Inspector of 
 
 E. ' Prisons, — reforms carried out several years after, as will herein- 
 
 - — after be seen.* Before leaving the Straits, he also advocated the 
 
 1847—1850. g y gtem o: [! tria j by j urT i n ma tters of fact, and remarked " that 
 
 one of the great defects he had found in the Court was, that in 
 civil matters involving the fortunes and happiness of individuals, 
 he had not had the power of calling to his aid some five or six 
 gentlemen as Jurymen, to assist him in deciding on facts." 
 
 Jeitcottj B. Sir Christopher Rawlinson was succeeded by Sir William 
 
 1850^1855 Jeffcott, wno arrived in Penang, on the 2nd February, 1850, but 
 apart from several important cases decided during his time, the 
 passing of several Rules and Orders of Court, including that of 
 the 21st January, 1852, before alluded to, regarding the admission 
 of Advocates and Solicitors of the Court, and a letter dated 24th 
 November, 1851, from Governor Butterworth, who was about to 
 go on leave, informing the Recorder that "he could not resign the 
 Government into other hands, without bearing testimony to the 
 kind courtesy which marked his Honor's intercourse with the 
 authorities, during the period he had held the high and honorable 
 
 office of Recorder ," the records disclose nothing 
 
 deserving special mention beyond presentments of the Grand-Jury 
 in July, 1854 and June, 1855, complaining as in the time of Sir 
 William Norris, that " the frequent occurrence of the Sessions 
 rendered the duty a severe tax on the time of those whose attend- 
 ance was required as Jurymen, and more particularly on those 
 residing in the Province, some of them at a distance of 25 
 miles." 
 
 Sir William Jeffcott died in office on the 22nd October, 1855, 
 being the second Recorder, since the time of Sir Francis Bayley, 
 whose death had occurred in Penang. At the time of his death, 
 Sir William Jeffcott had been appointed first Recorder of Singa- 
 pore, under the new Charter of the Court, f as hereinafter men- 
 tioned, [a] 
 
 * Tide, time of Sir Benson Maxwell. E., infrd. pp. xcvii., xoviii. 
 •f- Tide third Charter, p. 8. 
 
 [a] " Sir William Jeffcott was born in Ireland in 1800— was of the Irish Bar 
 and went the Munster circuit. In 1842, he emigrated to Australia ; before leaving 
 Ireland, he was presented by the bar and Solicitors, with handsome jieces of plate 
 in testimony of their high sense of his merits— While in Australia, he officiated as 
 a Judge of the Supreme Court at Port Phillip— he returned to Ireland andresum- 
 ed practice at the bar, and held a legal appointment under the Attorney- General 
 of Ireland. In 1840 appointed Eecorder of Prince of Wales' Island, &c " 
 
U27-1866.J JUDICIAL— HISTORICAL. 
 
 CHAPTER VI. 
 
 CONTENTS. 
 
 Third Charter of Justice. 
 1855—1867. 
 
 SIE RICHAED BOLTON McCAUSLAND. 
 
 1856—1866. 
 
 SIE PETEE BENSON MAXWELL. 
 1856—1867. 
 
 SIE WILLIAM HACKETT. 
 
 1866— 18G7. 
 
 Great dissatisfaction in Singapore — only one professional Judge for the Settle- 
 ments — decisions of the lay Judges give cause for complaint — evidence of Mr. Commis- 
 sioner Young on the subject — Roporb of Indian Law Commissioners — Comment on 
 a decision of Mr. Bonham in Singapore in the absence of the Recorder — remark 
 thereon by Indian Law Commissioners — case of Robert Jack v. James Pasley — 
 lengthened periods during which Reco^ !ers visited Singapore and Malacca —all made 
 Penan;,' their head-quarters — Sir Benjamin Malkin's reasons for living in Penang — 
 Report of Indian Law Commissioners — never more than two circuits in a year — In 1836 
 only one circuit — Long stay of Recorder in Singapore, an accident — Sir Benjamin 
 Malkin never more than six weeks at Singapore — Recorders went on circuit princi- 
 pally to hold Court of Oyer and Terminer — Cases reserved for them by lay Judges — 
 the increase of their judicial duties interfered with their more legitimate ones — In 
 Penang, the Recorders when in office, sole judges — Lay Judges sat with them occa- 
 sionally at opening of Criminal Sessions — Sir Benson Maxwell — assistance from 
 lay Judges — third Charter of Justice — ratified by Statute — preamble — reasons for 
 grant — population and commerce of Singapore increased — professional resident 
 judge required — difference between the new Charter and the previous one — designa- 
 tion of the Court — Governor and Resident Councillors continue as Judges — jurisdic- 
 tion of the Court at Singapore extended to Malacca — that of Prince of Wales' 
 Island to Province Wellesley — Charter proclaimed at Singapore — Recorders appoint- 
 ed — Sir Richard Bolton McCausland— Sir Peter Benson Maxwell — the latter takes 
 the oaths of office in Penang — assumption of his duties — appointments, under pre- 
 vious Charter cease -to exist — Charter required two Registrars — Judges authorized 
 to appoint one at each division — Mr. Alexander John Kerr — Registrar of the Set- 
 tlements — exercised control over Senior Sworn Clerks at Singapore and Malacca — he 
 is offered one of the Registrarships — he declines — he retires on pension — his ser- 
 vices—opinions on record about him — was not a professional — held in great repute 
 as a lawyer — records abound with papers and legal opinions of his — frequently con- 
 sulted by Executive — duties of the Registrar — fees — small amount of business in 
 early days — Government paid Registrar's and Clerks' salaries — fees paid into Trea- 
 sury — Mr. Kerr declines taking office on account of salary offered him — reason — 
 newly appointed Registrars — Mr. A. Rodyk and Mr. H. C. Caldwell— previously 
 
xcii PREFACE. . [Chap.Yi. 
 
 Senior Sworn Clerks to Registrar— the salary offered them inadequate— they draw 
 the fees and pay their clerks — arrangement sanctioned — Letters Patent — fees 
 received by Registrars, Sheriffs and Coroners— paid into Treasury— salaries allowed 
 on increased scale— duties of Registrars under more recent enactments— Recorders- 
 comment upon new Charter— their comments— the new Charter and appointment 
 of Constables and Peace Officers — appointments vested in the Court— prerogative 
 before withdrawn by Act— Charter also provides for inspection of roads and bridges— 
 already provided for— Assessment Committee— Acts— Sir Benson Maxwell of opinion 
 Charter supersedes Act regarding appointment of Constables— Sir R. McCausland 
 differs— Governor makes the appointments -Rule Nisi moved for in Singapore by 
 Justices of the Peace— Quo Warranto— Sir R. McCausland holds Act not repealed' 
 by Charter — appointments valid — Police Act passed — matter drops — Sir B, Maxwell 
 considers Order of Court creating Sealership and fees payable, illegal— no con- 
 nection with the Court— his proposals— Governor declines to adopt course sug- 
 gested — Sealer necessary — Sir R. McCausland — although sealership illegal, 
 sanction of Crown or Legislature to abolish necessary — correspondence — Mr. 
 Blundell suggests reference to India— Sir B. Maxwell's reply — matter referred 
 to India — sealership abolished— Seals entrusted to Registrars— fees abolished— 
 Mr. Blundell draws up Order of Court— Sir R. MacCausland signs same — 
 Governor asks Sir B. Maxwell to sign ,it — Recorder's reply — appointment of 
 Sealer not confined to any Settlement — packets of signet — Sealer's agent — 
 signets indented for.— present seal of the Court — the custody thereof — device — 
 exergue— Registrar's seal — former seals— title of. the Court — the Sheriffship — High 
 Sheriff annually appointed by Governor — the former appointed their own Deputies— 
 their salary — High-Sheriffs receive the fees — Salary continued under 2nd Charter — 
 Order of Court — Under- Sheriffs receive one-half of Sheriff's fees — Mr, Salmond, 
 Sheriff in 1833, keeps all the fees— precedent adopted by his successors — TJnder- 
 Sheriffs all the work to do — security — Sir B. Maxwell of opinion High- Sheriffship 
 a sinecure — proposes its abolition — animated discussion — Sir R. McCausland — 
 Governor declines carrying out change — refers matter to India — Order — fees paid 
 into Treasury — Sheriff and officers allowed Salaries — Letters Patent — Registrars 
 and Sheriffs become Executive Officers— title of High-Sheriff dropped — the Sheriff 
 — Sir B. Maxwell again moves in Sheriff question — proposes abolition of High- 
 Sheriffship presumably Sheriff — recommends a high bailiff for each Settlement— 
 his suggestions — present position of Sheriff — 2nd Charter — Sheriff entrusted with 
 charge of Gaols — change how effected — Sheriffs delegate their powers — result of 
 change — Mr. Trebeck, TTnder-Sheriff — resigns — reasons — the Prison staff — Sheriff 
 when relieved of the duty — Government takes charge of Prisons — Sheriff summon- 
 ing public meetings — custom when died out — votes at election of Municipal Com- 
 missioners — Sir B. Maxwell — serious embroilment— with Governor Blundell — mal- 
 practices of police — actions against them — Mr. Robertson, Deputy Commissioner of 
 Police — illegal detention of one Meh, a Malay woman — circumstances regarding 
 her arrest — -Police accused of kidnapping and _ deporting the woman to Quedah — 
 their allegation — Recorder disbelieves the story — lays the case before the Governor 
 — his reply — Recorder sifts the matter personally — corresponds with the Rajah of 
 Quedah — obtains the release of the woman — result — angry correspondence — Recor- 
 der and Governor address Government of India — result — Sir B. Maxwell frequently 
 consulted by authorities — provisions of Municipal Act and Chinese Secret Societies 
 — his papers thereon — a white-man hanged for the second time in Penang — first' 
 case — thesecondcase — Europeans sentencedto death in early days — transportation- 
 power of transportation — places where transported — first transportation case — system 
 till when lasted — practice had allbut diedout in the Straits — few cases against Euro- 
 peans — Governor and Sir "William Jeffcott — correspondence — European convicts not 
 to be sent to British Colonies — erection of European prison — Law of transportation — 
 Royal Order in Council — transportation to Western Australia instead of New South 
 Wales— penal servitude substituted for transportation — Europeans and Americans. 
 — Order of Governor- General of India in Council — niode of imprisonment — last 
 transportation case in Penang — transportation when done away with — long stand- 
 ing custom done away with by Sir Benson Maxwell — Sheriff and his staff — the 
 wooden rods or silver sticks or staves — Jemadars and Sontabardars — Recorders 
 received at entrance of Court and conducted to the bench — practice supposed to 
 have originated in India — Judges how received now — the silver staves when im- 
 ported — of a peculiar make — mentioned in early records — Mr. Dickens' Court and 
 list of muniments — when staves last noticed — one of the oldest institutions of the 
 Court — correspondence on record — reduction in Recorder's staff — Sir Benson 
 Maxwell's Jemadar— Military Guard on Recorder's house — Salute — Sepoy Guard 
 at Sir Benson Maxwell's house — when dispensed with — Sir R. McCausland 
 remained in Singapore from Ijime of appointment— the Penang records about him— 
 
1858-1867.] JUDICIAL— HISTORICAL. xciii 
 
 his departure for England — he is succeeded by Sir B. Maxwell — the latter by Sir 
 "Win. Hackett — Governor and Resident-Councillors as Judges of the Court — adminis- 
 tration of Justice — Singapore and Malacca — Penang always enjoyed presence of a 
 Recorder — after the transfer the Governor ceases to be a Judge — the Resident-Coun- 
 cillors also, by implication — Ordinances. 
 
 At this period, it is stated that great dissatisfaction prevailed, 3rd Chab- 
 especially in Singapore, owing to there being but one professional TEE - 
 Judge for the three Settlements, — the decisions of the Lay 
 Judges giving cause for complaint, [a] as well as the lengthened 
 periods during which the Recorders, — who had all, as before 
 stated, made Penang their head-quarters [6] , — visited Singapore 
 and Malacca, they going on circuit generally to those Settlements, 
 but twice a year, [c] and that principally to hold a Court of Oyer 
 and Terminer, and to dispose of such cases as had been reserved 
 for them by the lay Judges, whose judicial duties also, had so 
 much increased, as to greatly interfere with their other more 
 legitimate duties. It may here be said however, that in Penang, 
 the records shew, that whenever in office, the Eecorders had practi- 
 
 [a.l On this subject, see the following extract from the ■ evidence of Mr, Young, 
 " Commissioner employed by Government to make enquiries into the condition of the 
 Settlements in the Straits," given before the Indian Law Commissioners, and which is 
 a comment upon a decision delivered by Mr. Bonham in Singapore in the absence of 
 the Recorder : 
 
 " I will give as an illustration of the necessity of a professional Judge, a case 
 " which occurred while I was in the Straits. 
 
 " The indorsee of a bill of lading, in which freight was expressed to have been 
 " paid in London, brought an action against the captain to recover the goods, he having 
 " refused to deliver them on the ground that the freight had not in fact been paid. 
 "After the merits of the case had been investigated, the defendant objected that the 
 " plaintiff had no sufficient interest in the goods to maintain the action. No Recorder 
 " was present, and the unprofessional Judge decided that the objection was fatal, though 
 " the merits of the case were clearly with the plaintiff. It is generally understood 
 " that this decision is wrong in point of law." And the Indian Law Commissioners 
 added : " a strong instance in support of his [Mr.- Young's] opinion." B. I. Law 
 Comers, pp. 139, § 23 & 150. The decision in question [Robert Jack v. James Pasley, 
 April, 1838], is not here given, but is reported at length by the Commissioners in their 
 Report, p. 228. 
 
 [6.] Sir Benjamin Malkin, gave the following as his reason for living in Penang : 
 " Indeed the most difficult and complicated cases in point of evidence have generally 
 arisen in Penang, where the earlier occupation of the island has given more opportunity 
 for the creation of complicated family relations, and doubtful and imperfect derivative 
 titles. It was partly from the accident of my visiting Penang first, partly at the 
 suggestion of the officers of the government who wished me to have my own house, 
 where they had no public buildings available for my occupation, and would therefore 
 have hid to incur expense in procuring me accommodation if I only visited that place 
 on circuit, that I fixed my principal residence there ; but I felt fully convinced after- 
 wards, that partly for the considerations I have mentioned, partly for temporary and 
 occasional reasons, which it is not necessary to discuss, it was the place in which it was 
 most desirable, for the general administration of justice in the Straits, that I should 
 spend the longest time. And the same would I apprehend, be the case with my 
 successors to the present time. Had I considered the services of the Recorder desirable, 
 as is suggested with reference chiefly to the European portion of the population, of 
 course, Singapore ought to have been my principal residence j but I entirely deny the 
 existeace of any such reason : as Europeans I never considered them entitled to any 
 preference." I. L. Co. Rep. p. 112. 
 
 [c] "More than two circuits in a year, never have been made, last year [1836] 
 there was but one circuit made, and though the Recorder staid a long time in Singa- 
 pore, that was an accident." Rep. Ind. Law Comers. 1842, p. 105. "I was never 
 more than 6 weeks at Singapore on any single circuit." Malkin R., id. p. 110, 
 
XC1V 
 
 PBEFACE, [Chap. vi. 
 
 3rd Char- cally always been the sole Judges, the lay Judges only sitting with 
 TEB - them occasionally at the opening of the Criminal Sessions.' [a] 
 
 M'Causland, Q n tj ie application of the East India Company, a third Charter 
 
 1856—1866. °f Justice dated 12th August, 1855, was granted, and duly ratified 
 
 by Act 18 & 19 Vict., c. 93, s. 4, the preamble to which recites 
 
 Maxwell, E. th e re asons for the granting of the Charter, viz., " that the popu- 
 
 1856—1867. 2 a ft on an( j commei . ce of Singapore having greatly increased, made 
 it desirable that there should be a professional Judge for that 
 Station." This was about the only difference that existed between 
 the Charter and the previous one, the new one granting a resident 
 Eecorderfor Prince of Wales' Island, and another for Singapore. [6] 
 The Court continued under its designation of " Court of Judi- 
 cature of Prince of Wales' Island, Singapore and Malacca," 
 the Governor and Resident-Councillors at each Settlement being 
 also Judges of the Court. By an Order of the local Government, 
 dated 9th May, 1856, in accordance with the provisions of the , 
 Charter, the jurisdiction of the Court at Singapore, was extended 
 to Malacca, and that of the Court at Prince of Wales' Island, to 
 Province Wellesley. The Charter was duly proclaimed in Singa- 
 pore, on the 22nd March, 1856, Sir Richard Bolton McCausland, 
 " of the Irish Bar" * and Sir Peter Benson Maxwell, " of the English 
 Bar," t being the Recorders appointed to Singapore and 
 Prince of Wales' Island respectively, the first named Recorder 
 in the room of Sir William Jeffcott, who, as before stated, 
 had died shortly after the issue of the new Charter. Sir 
 Benson Maxwell took the oaths of office on the 20th March in 
 Penang, and assumed duties on the 4th of April, " the Letters 
 Patent reconstituting the Court of Judicature having been pro- 
 claimed in open Court at Singapore on the 22nd day of March" 
 as before stated. On the proclamation of the Charter, all the 
 appointments held under the previous one ceased to exist. The 
 Charter, dividing the Court into two divisions, requiredthe appoint- 
 ment of two Registrars, and authorized the Judges to appoint one 
 at each division. Mr. Alexander John Kerr, who had, as before 
 stated, been appointed Registrar in 1818, and who, shortly after 
 the proclamation of the 2nd Charter in 1827, had become " Regis- 
 trar of the Court of Judicature of Prince of Wales' Island, Singa- 
 pore and Malacca," [as designated by the Charter], exercising 
 control over the Registries at the two last named Settlements, 
 where there were each a "Senior Sworn Clerk," in charge, taking 
 orders direct from him, — was offered one of the Registrarships, 
 but declined taking office, and retired on a pension after nearly 
 38 years' serviee._ Many are the opinions of the highest officials 
 on record, testifying to the estimation in which this gentleman 
 
 [a.] In the Court copy of the Report of the Indian Law Commissioners, setting 
 out certain recommendations of Governor Bonham in 1842, in regard to the Lay 
 Judges, is to be found the following note in the hand-writing of Sir Benson Maxwell ■ 
 " I never reoeived a day's assistance from the Lay Judges. P. B. M." 
 
 [6.] See Ong Cheng Neo v. Yeap CheahNeo S; ors, infra, p. 343, 
 
 * "Was Secretary to his uncle, Lord Plunkett." 
 
 t " Called in 1841, and went the Home Circuit— was one of the Dnfce of New- 
 castle's Scutari Hospital Commissioners." 
 
1855-1867.] JUDICIAL— HISTORICAL, xcv 
 
 •was held. * Mr. Kerr, although not a professional, was held in 3b d Chab- 
 great repute as a lawyer, and the records abound with papers and TEB " 
 legal opinions of his, drawn up at the request of the Executive, M'Caubland. 
 by whom he was frequently consulted. The different Charters E. 
 
 laid down, that the Eegistrar, — whose duties under that title, have 1856 ~ 1866, 
 from the first Charter, included those of Master in Chancery, maxwell, E. 
 Clerk of the Crown and of the Peace, Taxing Officer, &c, — should 1856—1867. 
 be paid by fees, but the comparatively small amount of business 
 in early days, not admitting of this, in October, 1827, the Govern- 
 ment undertook,. — as had prevailed under the first Charter, — to 
 pay the Eegistrar and his Clerks fixed salaries, the fees appertain- 
 ing to the office, being paid into the Treasury. Mr. Kerr declined 
 taking office under the new arrangement owing to the salary 
 offered him, the Eegistrarships being fixed at 700 Eupees each per 
 mensem, being less than half of what he had been drawing as 
 Eegistrar of the three Settlements, viz., 17,556 Eupees per annwm. 
 The newly appointed Eegistrars at Penang and Singapore, Messrs 
 A. Eodyk and H. C. Caldwell, previously Senior Sworn Clerks to the 
 Eegistrar at those Stations, also declined accepting the salary offered 
 them, as inadequate, and preferred drawing the fees of office allowed 
 them by the Charter, undertaking to pay their own clerks, an arrange- 
 ment which the East India Company sanctioned until the 1st 
 April, 1861, when in accordance with Letters Patent, dated 28th 
 November, 1860, all fees received by the Eegistrars, Sheriffs and 
 Coroners were directed to be paid into the Treasury, and salaries 
 allowed on an increased scale. The Eegistrars, under more recent 
 enactments, in addition to the functions already mentioned, per- 
 form several other semi-ministerial and semi-judicial duties in the 
 absence of a Judge from the Settlement. 
 
 Soon after assuming duties, the Eecorders commented upon 
 the Charter, and declared that it did not appear to them to have 
 received greater attention than the previous one. The new Charter 
 provided for the appointment of Constables and Peace Officers by 
 the Court, — a prerogative, it will be remembered, which had been 
 withdrawn from it in 1847, by Act 3 of that year, — and for the 
 inspection of roads, bridges, &c, which had passed over to an 
 Assessment Committee, under Acts 12 of 1839 and 12 of 1840. Sir 
 Benson Maxwell was of opinion that the Charter had superseded 
 the Act, which vested the appointment of Constables in the Exe- 
 cutive, Sir Eichard McCausland being of a different opinion. In 
 the meantime however, the Governor proceeded to make the ap- 
 pointments as heretofore, when a Eule Nisiw&a moved for and ob- 
 tained in Singapore, by the Justices of the Peace, against one of the 
 Constables, calling upon him to shew cause why a Quo Warranto 
 should not be filed against him. Sir Eichard McCausland, in a long 
 judgment dated 2 1st July, 1856, setting out his reasons, again held 
 that the Act III. of 1847, had not been repealed by the Charter of 
 1855, and that the appointment of the Constable was perfectly valid. 
 Considerable doubts existed as to the soundness of this decision, 
 
 * See also, Beport on the a&mmistration of the Straits Settlements, 1855-1856, 
 §21. 
 
xevi PREFACE. [ohap. vr. 
 
 3rd Char- but the new Police Act XIII. of 1856, coming into force, the inat- 
 TEB - ter dropped. Soon after this, Sir Benson Maxwell proposed to 
 
 M'Caubland rescind an order of Court, dated 4th October, 1827, creating 
 
 E. ' a Sealership to the Court, and directing certain fees to be paid 
 
 1856—1866. therefor. He considered the appointment illegal and void, as not 
 
 Maxwell e. heing created by the Charter, and having no legal connection 
 1856—1867. whatever with the Court, and proposed that the Eegistrars or their 
 clerks should take possession of the Seal, and the practice of 
 levying fees at once discontinued. Mr. Blundell, the Governor, 
 declined to adopt the course suggested, considering that a Sealer 
 was necessary, but that he thought the 'Seal should be abolished 
 and Stamps used. Sir Richard McCausland stated as his opinion 
 that although the Sealership might be illegal, yet he consider- 
 ed it would be necessary to obi ain the sanction of either the Crown 
 or Legislature or both to discontinue it, before Sir Benson Max- 
 well's suggestions could be adopted. Correspondence continued 
 on the subject, until at last Mr. Blundell suggested that the cor- 
 respondence should be sent to India, Sir Benson Maxwell inform- 
 ing him that " the transmission of the correspondence to India 
 was no reason for the perpetuation of the illegal practice of claim- 
 ing Sealer's fees, — that the duty of regulating the fees of the 
 Court officers, rested wholly with the Governor and the two Recor^ 
 ders, and they could not get rid of the responsibility which 
 rested upon them by refusing to act without instructions from the 
 Government, for the Charter gave the latter no power or authority 
 over those questions." The whole correspondence was however 
 forwarded to the Government of India, who eventually, entirely 
 agreed with the view taken by Sir Benson Maxwell. The opinion 
 of the Advocate-General of Bengal, dated 1st December, 1858, 
 was duly transmitted to Mr. Blundell, by letter dated 5th January, 
 1859, from the Secretary to the Government of India, requesting 
 that the " sinecure office" be forthwith abolished, and that the Seals 
 be entrusted to the several Registrars or their Deputies, and that 
 no fees be demanded for affixing seals to documents."* On the' 
 receipt of this letter, Mr. Blundell drew up the following Order 
 of Court, abolishing the Sealership, [which had been held for some 
 years by Mr. W. W. Willans,] and after obtaining Sir Richard 
 McCausland's signature to same, by letter dated 4th February, 
 1859, forwarded the Order to Sir Benson Maxwell "trusting that 
 he would approve of and adopt it." The following was the Order 
 in question: 
 
 In the Court of Judicature of Prince of Wales' Island, 
 Singapore and Malacca. 
 
 Wednesday, the 2nd day of February, 1859. 
 General Order. 
 It is this day ordered that the Table of Fees, settled the 4th day of October, 
 
 * By the Order of Court, dated 4th October, 182V, " a fee of $1 " was allowed 
 " every time the seal was affixed to any Process during the Court hours vim from 
 10 a. M., to 3 f. m., and $2 after office hours," > •> 
 
1855-1867.] JUDICIAL— HISTORICAL, xcvii 
 
 1827, be altered, by omitting therefrom the Sealer's fees. 3bd Char- 
 ter. 
 181.1 E. A. BLTJNDELL, 
 
 [Sd.] E. B. McOAUSLAND, M'Cadsland, 
 
 [8<2.] P. BENSON MAXWELL. K. 
 
 1856— 1S66. 
 
 On receiving the aforementioned letter, containing the Order, Maxwell, R. 
 Sir Benson Maxwell, wrote the following letter to Mr. Blundell : 1856—1867- 
 
 ReCOEDEE'S GhAMBEHS. 
 
 Penano, 
 February 9, 1859. 
 To 
 
 The Governor oi- the Stkaitb, 
 
 Hon'ble Hie, 
 
 I return herewith the Order of February 2nd, with my signature. I have no 
 objection to it, for it is the Order which I proposed to make a3 long ago as March, 
 1857, and again in JJjceuibsr of the came year, but for the reasons I stated in my 
 letter of the 18th February, 185S, I consider it now unnecessary. 
 
 I have, &c., 
 
 [Stl.] P. BENSON MAXWELL. 
 
 The appointment of " Sealer," was not confined to any particu- 
 lar Settlement, and correspondence is to be found where " packets- 
 of signet" were forwarded to the Registrar in Penang, by the 
 Sealer or "Sealer's Agent," in whichever Settlement situated. 
 As will be seen therefore, these " signets" had to be indented for 
 in the regular way. By Section 32 of Ordinance 3 of 1878, the 
 Seal of the Court [in triplicate] is ordered "to be kept in the 
 custody of the Registrar or Deputy Registrar at each Settlement," 
 and as laid down by Section 33, bears a device of the Royal Arms 
 of the United Kingdom, and the Exergue "The Seal of the 
 Supreme Com-t of the Straits Settlements," the Seal of the Regis- 
 trar bearing the sain ? device with the inscription "Registrar of 
 H. M Supreme Cour'<-., Settlement of ," according to the 
 
 Station. The former Seals, bore the same device and inscriptions, 
 — being Courts founded by Royal Charter, — the title of the Court 
 only, — Court of Judicature— differing from the present one, as 
 hereinafter mentioned. 
 
 Another matter arosesome time after the Sealership question 
 had been brought forward by Sir Benson Maxwell, and related to 
 the Sheriffship. From the time of the first Charter in 1808, the 
 Governors annually appointed the High-Sheriffs, the latter ap- 
 pointing their own Under-Sheriffs or Deputies, who were allowed 
 a monthly salary of " §100 or 210 sicca rupees" by the Govern- 
 ment, the Hi^h-Sheriffs receiving the fees. On the proclamation 
 of the 2nd Charter in 1827, the salary was continued by the Gov- 
 ernment, and by an Order of Court dated 27th October, 1827, the 
 Under-Sheriffs were also allowed to receive in excess of their 
 salary, one-half of the fees granted the Sheriffs. This arrange- 
 ment continued in force until 1832, when on being appointed 
 Sheriff for that year, Mr. Salinond kept all the fees, a precedent 
 which was adopted by nearly all his successors, — the Under- 
 
xcviii PREFACE. [chap. vi. 
 
 3rd Char- Sheriffs, besides having, all the work to do, furnished security to 
 TEB - the Sheriffs for the discharge of their duties. Sir Benson Maxwell 
 
 M'Cattsland, was of opinion that the High-Sheriff ship was a complete sinecure, 
 
 E. and as had done Sir Christopher Rawlinson,* proposed its aboli- 
 
 1856— 1860, tion. Considerable and animated discussion again ensued upon 
 
 Maxwell E. this point between the two Eecorders and Mr. ' Blundell, — -the 
 1856—1867. latter and Sir R. McCausland differing in opinion with Sir Benson 
 Maxwell. The Governor again declined carrying out any change 
 without the previous sanction of the Indian Government to whom 
 he referred the matter, when in September, 1859, the fees attach- 
 ed to the Sheriffship were ordered to be paid into the Treasury 
 and the Sheriff and his officers allowed salaries. This arrange- 
 ment was further carried out under the Letters Patent of November 
 1860, when the Registrars and Sheriffs strictly became Executive 
 Officers. The Title of High-Sheriff seems to have been dropped 
 from this time, and after the transfer of the Colony, by Ordinance 
 30 of 1867, Section 20, the High-Sheriff is spoken of as Sheriff of 
 the Colony. In 1868, the records shew that Sir Benson Maxwell 
 again moved in the question of the Sheriffship. He proposed the 
 abolition of the High-Sheriff ship [presumably the Sheriff of the 
 Colony], and recommended " the appointment of a High Bailiff for 
 each Settlement, and in the same manner as the subordinate officers 
 of the Court," — he considered the Colony " had no need of the 
 services of Vice-Comes, the Deputy of the Earl of the County, 
 but a few officers to execute the process of Court," f and suggested 
 that the County Court Act 8 & 9 Vict., c. 95, s.s. 31 & 33, furnish- 
 ed suitable provisions, which could be adopted. This suggestion 
 however, was not carried out in its integrity, but the office of 
 High-Sheriff was practically merged into that of a Sheriff for each 
 Settlement under Section 22 of Ord. 5 of 1868, and these offices 
 continue in existence up to the present time, though under more 
 recent enactments. 
 
 Shortly after the proclamation of the 2nd Charter, the Sheriff 
 was entrusted with the charge of the Civil and Criminal Gaols of 
 the Colony, such powers being in turn delegated by them to their 
 Under-Sheriffs. This change was effected by a letter dated 25th 
 October 1827, from " Mr. John Anderson, Secretary to the Govern- 
 ment," to the different Resident-Councillors in each Settlement, 
 —and communicated to the Registrar — requesting them " to 
 deliver over the Jail and prisoners to the Deputy Sheriffs when 
 called by them to do so, and that lists of prisoners be immediate- 
 ly framed." The immediate result of this change in Penang 
 was, that on the 2nd February, 1828, the Under-Sheriff for that 
 year, Mr. C. Trebeck, J " found it necessary to resign the office, 
 which it was impossible for him to execute to the extent which it 
 was now thought necessary." 
 
 The Deputy Sheriffs were allowed an " European Gaoler and 
 
 * ante p. xc. 
 
 t Govt. Gazette, 1868, p. 77. 
 
 J See List of Agents, #c, infrel 
 
law-war.] JUDICIAL— HISTORICAL. xck 
 
 a staff of peons" in each Settlement, and this system continued 3bd Chae- 
 in force, until the passing of Ordinance 14 of 1872,— carried into ^ 
 effect at the latter end of 1873, — when the Government took over m'Causland, 
 the entire charge of the G aols, the Sheriffs heing relieved of that duty. R. 
 
 The custom mentioned in the time of Sir John Claridge, of 
 
 the Sheriff summoning public meetings* seems to have died out, ^f^^fh?' 
 —except as to his taking votes at the election of Municipal 
 Commissioners, under Act 27 of 1856, sec. 9, — on the Sheriff 
 becoming an Executive officer. 
 
 A serious embroilment occurred in 1859, between the Re- 
 corder of Prince of Wales' Island, Sir Benson Maxwell, and the 
 Governor Mr. Blundell, in regard .to certain malpractices of the 
 Police as had come out in evidence before him, in the course of 
 several actions that had been brought against them [a], and prin- 
 cipally against the head of that Department, Mr. Robertson, the 
 Deputy Commissioner of Police, in Penang. One of the cases 
 arose in connection with one Meh, a Malay woman, who had been 
 taken into custody by the Police, in connection with a gang rob- 
 bery in Province Wellesley, and who after having been illegally 
 detained by them for sometime, were accused of having kidnapped 
 and deported the woman to Quedah, they afterwards, in the course 
 of an enquiry into another case before the Recorder, alleging that 
 she had been deported at the request of the Rajab of that place. 
 The Recorder disbelieved this story, and laid the whole case before 
 the Governor, who, replied that he was of opinion that the 
 charge brought against the Police, and especially against 
 Mr. Robertson, was without foundation. The Recorder however 
 was determined to sift the matter, and personally corresponded 
 with the Rajab of Quedah on the subject, and through his own 
 exertions, obtained the release of the woman after a detention of 
 six months in that territory. The result of this case and other 
 matters in connection with it, led to angry correspondence between 
 the Recorder and the Governor, resulting in both addressing the 
 Government of India. The records shew that Mr. Blundell was 
 entirely acquitted of the charges brought against him by the Re- 
 corder, Mr. Robertson " severely reprimanded and cautioned as to 
 his future conduct," and the Recorder informed that " her 
 Majesty's Government while giving him full credit for the 
 motives by which he was actuated," requested him to " abstain 
 from all interference with matters not falling within his pro- 
 vince as the Chief Judicial Authority of the Settlement." 
 
 From 1857 to 1860, Sir Benson Maxwell seems to have been 
 frequently consulted by the local authorities as to the provisions 
 of the Municipal Act 27 of 1856, and on the subject of Chinese 
 Secret Societies, in reference to which, he drew up lengthy papers 
 containing suggestions regarding same. 
 
 It was in Sir Benson Maxwell's time, as Recorder, that a 
 
 * ante p. lxxiv. 
 
 [a.] Some of these cases, still bearing on points of law, are reported in this 
 work — see Che Him & ors. v. Robertson k on, infra, p. 131. 
 
PREFACE. £chap.vt. 
 
 Sbd Chae- white man was, for the second time, hanged in Penang, the first 
 TEB- case having occurred on the 24lh November, 1809, when a Eurc- 
 M'Catjsland, pean named Thomas Courtney, a gunner of Artillery, was hanged 
 B. for the murder of a fellow-gunner named Thomas Shields, whom 
 
 1856—1866. jj e gjjQ-k (j ea( j on the 19^ October, 1809, whilst relieving him from 
 Maxwell, R. guard at Fort Cornwallis. * Duly recorded is to be found a long 
 1856—1367. letter from the prisoner addressed to the Recorder, imploring for 
 mercy, and giving out a statement of the whole of his rather ad- 
 venturous career. 
 
 The second case alluded to, was that of a seaman named 
 Phillip Carter, who along with 17 others, were arraigned on the 
 4th August, 1858, for mutiny and the murder of one Nathan 
 Williams, the Chief Mate of the American ship Golden State, in 
 the harbour of Penang, on the 19th July, 1858. Three of the men 
 were found guilty, and sentenced to death, the rest being dis- 
 charged, Carter suffering the last penalty of the law on the 11th 
 August, 1858, and the sentence against the two others, as shewn 
 by the Calendar, commuted to penal servitude for life. These 
 two cases are the only ones of the kind in Penang, as regards 
 Europeans, and Americans. 
 
 The records shew several Europeans sentenced to death in 
 the early days of the Colony, for offences then so punishable, and 
 the sentences subsequently commuted to transportation. The 
 power of transportation was originally rested in the Court by the 
 first Charter, and subsequently under Act 53 Geo. III., c. 155, 
 s. 121. Europeans sentenced to transportation were sent to Botany 
 Bay, New South Wales, and Natives to Fort Marlborough [Ben- 
 coolen] , the presidency of Bengal, Tenasserim, Amboyna and lastly 
 in 1858 to the Andaman Islands. 
 
 The first case of transportation on record, as regards Europeans, 
 is that one of Patrick Deans, who was sentenced on the 14th 
 April, .1809, to be transported to Botany Bay for five years for 
 larceny. The system of transportation of Europeans lasted, at 
 least as regards India, — for in the Straits, the practice had all but 
 died out., owing to the few serious cases dealt with against Euro- 
 peans,— until the year 1854, when on the 24th November of that 
 year, the then Recorder, Sir William Jeffcott, was informed by 
 - the Governor, — who also transmitted correspondence on the sub- 
 ject between the Home Government and the Government of India, 
 — " that her Majesty did not consent to European convicts sen- 
 tenced to transportation by the Civil Authorities in India, being 
 
 " sent to any of the British Colonies ," and that arrange- 
 
 " ments were about to be made for the erection of a Prison, where 
 " Europeans sentenced by any of the several Courts may be kept 
 "in confinement, and that the Law relating to transportation, as 
 " regards British subjects would be referred to the Legislative 
 " Council." In the meantime, the Royal Order in Council, dated 
 6th June 1855, was passed, authorizing transportation of British 
 
 t See Rex v. Courtney, Criminal Rulings, Vol. II, of these Reports. 
 
1858-1867.] JUDICIAL— HISTORICAL. ci 
 
 subjects to "Western Australia, instead of New South Wales, 3bd Chab- 
 until the passing of Indian Act 24 of 1855, substituting penal ™ - 
 servitude for transportation a3 regards Europeans and Americans, M'Catjsland 
 and the Order of the Governor-General of India in Council, dated _ E. 
 21st January, 1859, under the aforesaid Act, as to the mode 18d6 ~ :I866 - 
 of imprisonment. * The last transportation case to he met maxwell, k. 
 with in the Penang records in regard to Europeans is dated 1856—1867. 
 27th April, 1838, when Sir William Norris sentenced one George 
 Grace, an artilleryman " convicted by confession of cutting and 
 wounding with intent to do some grievous bodily harm," to be 
 transported to New South Wales for 14 years. Transportation 
 was done away with by the Penal Code, and Ordinance 3 of 
 1872, s. 7. 
 
 During Sir Benson Maxwell's tenure of office as Eecorder of 
 Penang, he did away with a very long standing custom, that had 
 prevailed from the proclamation of the first Charter in 1 808. Ifc 
 had been the practice at the opening of the Court every day, for 
 the High-Sheriff or his Deputy, along with his staff, each carrying 
 a long wooden-rod painted white and black, the white carried by 
 the Sheriff or Deputy, and the black ones by the Bailiffs, accom- 
 panied by " one Jemadar and 2 Sontabadars," and of the 
 three last named, two holding each a silver-plated dragon-head 
 staff or stick, and one a long silver-plated stick, to receive the 
 Eecorder at the entrance of the Court and to conduct him to the 
 Bench, remaining standing until the Court had been proclaimed. 
 The Jemadar and Sontabadars in addition to two peons, formed 
 part of the Eecorder's Establishment. On assuming duties in 
 Penang, after the proclamation of the Charter in Singapore, Sir 
 Benson Maxwell discontinued the. practice above alluded to, sup- 
 posed to have originated in India, and the Judges ever since are 
 received by their own immediate staff, but still conducted to the 
 Bench by their peons, holding the staves and stick mentioned, and 
 standing as the Court is being formally opened. These staves, 
 at least those in Penang, of a peculiar Indian make, date from 
 early this century, and were doubtless imported at or shortly after 
 the proclamation of the first Charter, for in a " list of furniture 
 attached to the Court House" amongst the records of 1810, the 
 staves and stick are to be found mentioned. In a list of " Muni- 
 ments, Eecords, &c, of the Court of the Judge and Magistrate" 
 [Mr. Dickens], on record, no mention is made of them, and* 
 they are noticed for the last time on the 3rd November, 1855, 
 after the death of Sir William Jeffcott, when the Eegistrar in- 
 formed the Eesident-Councillor, that " in consequence of the 
 office of Eecorder being vacant, the Jemadar and Sontabadars 
 with the silver sticks carried by them, had been requested to 
 )lace themselves at his disposal, as they formed no part of his 
 jthe Eegistrar's] department." These staves or sticks may there- 
 fore be looked upon as one of the oldest institutions of the Court, 
 and correspondence on record would imply that the custom 
 
 * see Calcutta Gazette, 1859, p. 208, or Index to the Laws of the Straits Settle- 
 ments, Pt- II., p. 57. 
 
oil PREFACE. [chap, vii, 
 
 Sed Char- mentioned above, was done away with by Sir Benson Maxwell for 
 
 I economy sake. The Government of India had recommended a 
 
 M'Causland, reduction in the Recorder's staff, including the two sontabadars, 
 
 E - whereupon the two peons and Jemadar alone weie left to the 
 
 ~ Recorder, the Jemadar having his title changed to that of head- 
 
 Maxwbll, e. peon. Sir Benson Maxwell's Jemadar, was an old Bengali named 
 
 1856 — 1867. Imami, who had served under almost all the Penang Recorders, 
 
 and professed to remember Sir Edmond Stanley, the first 
 
 Recorder. When Sir Benson Maxwell retired in 1871, Imami 
 
 went to Bangkok where he died. 
 
 The Recorders under the Indian Government, had a military 
 guard on their house, and were allowed a salute of thirteen guns 
 on leaving or arriving at the Settlement. Sir Benson Maxwell 
 was the last Recorder who had these privileges. When he lived 
 at Suffolk House, in Penang, there was a sepoy guard always at 
 his house, but when he moved to the Hill [where he resided for 8 
 years] this was dispensed with. 
 Maxwell.r. Sir Richard MeCausland remained in Singapore from the 
 
 l — 13 67. ^ me f jjis appointment, and of him the records in Penang, shew 
 Hackett, E. nothing beyond what has already appeared herein. He left- for 
 1856—1867.' England in August 1866, when he was succeeded by Sir Benson 
 Maxwell as Recorder of Singapore, Sir William Hackett, previous- 
 ly Chief-Justice of the Gold Coast Colony, succeeding Sir Benson 
 Maxwell as Recorder of Prince of Wales' Island. 
 
 The Governor and Resident-Councillors, although nominallv 
 Judges of the Court, had, at this time, all but ceased to take part 
 in the administration of Justice as regards Singapore and Malacca, 
 for, as before stated, Penang had always enjoyed the presence of 
 a Recorder. After the transfer, by Ordinance 8 of 1867, s. 1., 
 the Governor ceased to be a Judge of the Court, and by 
 Ordinances 30 of 1867, and 5 of 1868 [s.s. 1, 4—8], the' Resident 
 Councillors also so ceased by implication. 
 
 CHAPTER VII 
 
 CONTENTS. 
 
 The Transfer. 
 1867— 188S. 
 
 The formal transfer of the Colony from India is effected-the Statute-Letters 
 Patent -the transfer smee when mooted— date of transfer— Government Notifica- 
 tion-Officers of Court of Judicature under Letters Patent, to holdtheirappor^^^ 
 under new Government— Recorder of Singapore styled Chief -Justice, S ,S.— Recorder 
 of Penang, designated Judge of Penang— Chief -Justice gazetted member of 
 the Legislative Council— Law Officers of the Crown— Attorney-General— Solicitor- 
 
1867-1885] JUDICIAL— HISTORICAL. ciii 
 
 General — Mr. Thomas Braddell — Mr. Daniel Logan— Admiralty jurisdiction of the 
 Court — assimilated to other similar Courts — Statute — Vice-Admiralty Court of the 
 S. S. — procedure — Order of Queen in Council — Governor — title of "Vice-Admiral — 
 Chief -Justice, Judge, V. A. C — appointments of Deputy Judges, Registrars, Mar- 
 shals and Surrogates — Court of Judicature abolished — Supreme Court of the 
 Straits Settlements — Charter ceases to have any operation — Sir Benson Maxwell 
 and Sir William Hackett continue to hold office — Insolvent Court abolished — Bank- 
 ruptcy jurisdiction — Sir Benson Maxwell retires — Sir Thomas Sidg-reaves succeeds 
 him — his services — great changes in the constitution of the several Courts of the 
 Colony — Civil' and Criminal — Supreme Court abolished — reconstituted under four 
 Judges — hovr styled— residence — Sir Thomas Sidgreaves and Sir William Hackett — 
 continue to hold office— Mr. Snowden — Mr. Justice Phillippo — Senior and Junior 
 Puisne Judges— Mr. Justice Ford — -his' services — Sir William Hackett relieved by 
 Mr. Justice Ford — never four Judges at one time in the Colony — jurisdiction of 
 Court of Requests — modification — Malacca and Province Welle3ley — Ordinances — 
 Supreme Court divided into two Sides — plea and summary — jurisdiction— division 
 of the work of the Court — Deputy Registrarships created — Summary side of the 
 Court — Criminal jurisdiction — Magistrates' Courts — Coroners' Courts — jurisdiction 
 and procedure — definition — jurisdiction and powers of Magistrates' Courts — Coro- 
 ners' Courts as now regulated — further Criminal Court — Court of Quarter-Sessions 
 — created originally by first Charter — when ceased to exist — Magistrates autho- 
 rized to dispose of cases within their jurisdiction — when Court resuscitated — 
 Senior and Junior Puisne Judges — jurisdiction of the Court — when again abolished 
 — jurisdiction conferred on two Magistrates— Court of Oyer and Terminer — Grand 
 Jury abolished— Special and Common Jury — prisoners tried upon a formal commit- 
 ment — appeals from decisions of Supreme Court — King or Queen in Council— Court 
 of Appeal constituted — abolished by effect of subsequent legislation — when revived 
 — practice and procedure — number of Judges reduced to three— Chief Justice and 
 Puisne Judges — Mr. Justice Phillips — Mr. Justice Wood — his services— Supreme 
 Court again reconstituted — position and status of Judges and Court officers — the 
 Court further reconstituted — Judicature Acts and Rules — Equity and plea sides 
 of the Court abolished — branches of law fused — English Rules of practice and 
 procedure introduced — present guide to practice and procedure in Civil Cases — 
 Summary Side abolished — Deputy -Registrar and staff incorporated with Registrar's 
 Department. 
 
 In 1867, by Act 29 & 30 Vict., c. 115, and by Letters Patent, The teans- 
 dated 28th December, 1866, the formal transfer of the Colony FEK " 
 from the Indian Government was effected, — a subject which had 
 been mooted by the Colony as far back as 1858. On the transfer, 
 which took place on the 1st April, 1867, and by Government Noti- 
 fication of the same date, " all officers of the Court of Judicature, 
 
 holding appointments under Letters Patent dated 10th 
 
 August, 1855, continued to hold their appointments under the 
 Government of the Straits Settlements under the aforesaid Letters 
 Patent." By this Notification,* it was also announced that her 
 Majesty had been pleased to approve of the Eecorder of Singa- 
 pore being styled Chief-Justice of the Straits Settlements, and 
 the Eecorder of Penang designated Judge of Penang. By further 
 Notification of the same date, the Chief -Justice, in pursuance of 
 her Majesty's Order, was Gazetted an ex-officio member of the 
 Legislative Council, which position he still holds. In the same 
 year, the Law Officers of the Crown were duly appointed, and 
 styled Attorney-General and Solicitor-General of the Straits Set- 
 tlements, the latter stationed in Penang, the posts being held by 
 Messrs. Thomas Braddell and Daniel Logan as before mentioned, 
 the latter of whom is still in office and the former retired. 
 
 The Admiralty Jurisdiction of the Court was also in this year 
 » See also Ordinance 3 of 1867, s. 4. 
 
civ 
 
 PREFACE. [cWvii, 
 
 Supreme extended and assimilated to similar Courts existing in other Bri- 
 Cotjrt. tigll D om i n i onSj - b y 30 & 31 Yiet., c. 45, under the designation of 
 Maxwell, tue Vice-Admiralty Court of the Straits Settlements, which still 
 C. J. exists ; the procedure thereof being now regulated by Order of the 
 18G8-1871. Q ueen in Council, dated 23rd August, 1883. Under the Statute 
 Hackett J. mentioned, read in conjunction with 26 Vict., c. 24, the Governor 
 1S68— 1875." of the Colony, derives his title of " Vice-Admiral," the Chief- 
 Justice being styled " Judge;" by the latter are appointed the 
 Deputy Judges, Eegistrars, Marshals and Surrogates of the 
 Court. 
 
 By Ordinance 5 of 1868, the Court of Judicature of Prince of 
 "Wales' Island, Singapore and Malacca was abolished, and the 
 Court reconstituted under the title of the Supreme Court of the 
 Straits Settlements. By the same Ordinance, the Charter or 
 Letters Patent of 1855 ceased, [except as to such of its provisions 
 as were not inconsistent with the Ordinance] to have any operation 
 in the Colony. Sir Benson Maxwell and Sir William Hackett, 
 continued to hold office in the Colony, a.s Chief Justice of the 
 Straits Settlements and Judge of Penang respectively under Sec- 
 tion 6 of the Ordinance mentioned. 
 
 In 1870, the Insolvent Court, — mentioned in the time of Sir 
 Christopher Rawlinson, and which from that time had been in 
 existence, — was abolished, and Bankruptcy Jurisdiction conferred 
 on the Supreme Court by Ordinance 21 of 1870, which is still in 
 force. 
 
 Sidgreaves, Sir Benson Maxwell retired in July, 1871, and was succeeded 
 
 C ' J< by the present Chief-Justice Sir Thomas Sidgreayes [a], and in 
 the following year, great changes in the constitution of the several 
 Courts of the Colony, both Civil and Criminal, were introduced. 
 By Ordinance 5 of 1873, the Supreme Court, as constituted under 
 • Ordinance, 5 of 1868, was abolished, and the Court reconstituted 
 under four Judges styled Chief- Justice, Judge of Penang, Senior 
 and Junior Puisne Judges, — the Chief -Justice and Senior Puisne 
 Judge being required to reside in Singapore, and the Judge of 
 Penang and Junior Puisne Judge, in Penang. Sir Thomas 
 Sidgreaves and Sir William Hackett, continued to hold their respec- 
 tive offices, until the coming into operatiou of the aforesaid Ordi- 
 Snowden, J. n£mce 5 of 1873 > when Mr. Snowden, then Senior Magistrate of 
 Phillippo,J. Sin g a P ore > and Mr - Justice Phillippo, previously a Puisne Judge 
 ' of the Supreme Court of British Guiana, became Senior and 
 Junior Puisne Judges respectively, f Mr. Snowden however, re- ' 
 mained in office but a very short time, being transferred to Hong 
 Kong as Puisne Judge, and was replaced by Mr, Justice Phillippo, 
 
 .[a] "Sidgreaves, Sir Thomas, Knight Bach. [1873], B. A., of the London 
 University,— Called to the bar, Inner Temple, June, 1857; member of the northern 
 circuit j appointed Chief-Justice of the Sfcraita Settlements in Seutembpr 1S71 "— 
 Colonig.1 Office List, 1885. F e-uw-r, ±o/±. 
 
 t G. 1ST: 13th Feb. 1874. 
 
1807-1885.] JUDICIAL— HISTORICAL. cv 
 
 who, in his turn was succeeded by Mr. Justice Ford* as Junior Sotbeme 
 Puisne Judge.f Sir William Hackett was absent at this time, UBT ' 
 
 and was relieved by Mr. Justice Ford in Penang, and as a Sidgbeaves, 
 matter of fact, there never were four Judges at one time in the C. J. 
 Colony. FoM >> J - 
 
 By the same Ordinance, the jurisdiction of the Court of 
 Requests was reduced to suits not exceeding ten dollars, but tbis 
 was somewhat modified as regards Malacca and Province Welles- 
 ley, by Ordinances 4 and 5 of 1871. Consequent upon this change 
 in the Court of Eequests, tbe Supreme Court was divided into two 
 Sides, — plea and summary, — tbe latter having jurisdiction over 
 suits exceeding $10 to fJSOO, and as regards Malacca and Province 
 Wellesley, from $50 to §500. In order to carry out the work of 
 the Supreme Court, as thus divided, the Office of Deputy Registrar 
 was created at Singapore and Penang, to take charge of the Sum- 
 mai-y Side of the Court in those Settlements. 
 
 As regards Criminal Jurisdiction, the Magistrates' Courts, and 
 " Coroners' Courts," remained much the same, except that as 
 regards the former, their jurisdiction and procedure were more 
 clearly defined by Ordinance 13 of 1872, which latter Ordinance 
 is now the principal one defining the jurisdiction and powers of 
 Magistrates' Courts. The Coroners' Courts are now regulated by 
 Ordinance 7 of 1884. 
 
 By Ordinance 5 of 1873, a further Criminal Court called the 
 Court of Quarter Sessions was constituted. This Court, created 
 originally by the Charter of 1807, continued in existence for very 
 many years, but in point of practice ceased to exist, on the coming 
 into force of Act XIII. of 1856, which authorized Magistrates to 
 dispose of cases coming within their jurisdiction. It was again 
 resuscitated by the aforesaid Ordinance 5 of 1873, and presided 
 over by the Senior and Puisne Judges in Singapore and Penang 
 respectively. The jurisdiction of (his Court was more clearly 
 defined by Ordinance 13 of 1872, but by Ordinance 17 of 1876, it 
 was again abolished, and its jurisdiction [limited however to one- 
 half of its powers of fine and imprisonment], conferred on two 
 Magistrates. 
 
 In the same year, the practice and procedure of the Court of 
 Oyer and Terminer was modified by Ordinance 6 of 1873, which 
 also did away with the Grand Jury, a " Special," and " Common" 
 
 * " Ford, Theodore Thomas— Called to the Bar, Mid'Jle Temple, 26th Jan. 1366. 
 Appointed Junior Puisne Judge, Supreme Court, Straits Settlements, March 1874 j 
 Presiding Judge of the Penang division of that Court until 17th July, 1S74; Acting 
 Judge of Penang from 17th July, 1S7-1, to April, 1S76, when ho resigned and returned 
 to England. Re-appointed Senior Puisne Judge, November 1S76; Acting Chief- 
 Justice from December, 1876, to February, 137d, and from 21st September, 1S83, to 
 January, 1585." — Colonial Office LUt, &c. 
 
 t Further changes subsequently took plaae amongst the Judges, but these are 
 left outpace list of ltecorders & Judges, infrti,. 
 
CV1 
 
 Preface. 
 
 [Chap/vTI. 
 
 Supreme Jury being substituted instead, and prisoners tried by them after 
 Court. a f orma i commitment by the Magistrates. 
 
 SiDGEEAVEs, p rior to ^ yea] ^ A p peals from ^g decisions of tbe Supreme 
 
 Court, lay direct to the King or Queen in Council [Privy Council], 
 but by tbe above Ordinance 5 of 1873, a Court of Appeal was con- 
 stituted. It was however, abolished by effect of subsequent legis- 
 lation [a], but again revived by Ordinance 5 of 1878. The prac- 
 tice andprocedure of the Court of Appeal, is now governed by 
 Ordinance 12 of 1879, as amended by Ordinance 3 of 1883. 
 
 As before stated, there never were four Judges of the Supreme 
 Court, present in the Colony at any one time, and Sir William 
 Hackett, having been appointed Chief-Justice of Fiji, the aforesaid 
 Ordinance 17 of 1876 was passed, by which the number of Judges 
 was reduced to three, consisting of the Chief-Justice and two 
 Puisne Judges as at present, and of the latter, Mr. Justice Phillips, 
 a Judge of the Supreme Court of Natal, teinpoi*arily appointed to 
 this Colony in June, 1877, being relieved by Mr. Justice Wood, in 
 September following. [2>] 
 
 By Ordinance 5 of 1878, the Supreme Court was further recon- 
 stituted, but the position and status of the Judges and Officers of 
 the Court, were left by that Ordinance much the same, as they 
 had been under Ordinance 5 of 1873 [modified by Ordinance 17 of 
 1876], and lately by Ordinance 15 of 1885, the Court has again 
 been further reconstituted as consisting of four Puisne Judges. 
 Following the Judicature Acts and Rules at home, the Equity and 
 Plea Sides of the Court were abolished and the two branches of 
 law fused, and English Rules of practice and procedure introduced 
 by Ordinances 4 and 5 of 1878. These conjointly with Ordinance 
 8 of 1880, constitute the present guide to the practice and pro- 
 cedure of the Court in Civil cases. By Ordinance 3 of 1878, 
 read in conjunction with Ordinance 6 of 1878, the Summary Side 
 of the Court was abolished, and the Deputy Registrar and his 
 staff became incorporated with the Registrar's Department. 
 
 Phillips, J. 
 
 Wood, J. 
 
 [a] Sec Vernon Allen v. Meera Pullay & ors. infra, p. 394. 
 
 [6] Wood, Thomas Lett.— Educated at Westminster School, and Trinity Col- 
 lege, Cambridge; graduated M. A., 184G; practised as a special pleader from 1845 
 to 1851 ; was called to the bar of the Inner Temple, IS 51 ; acted as Attorney-Gene- 
 ral of Vancouver Island, from 1864 to 1866,. when that Colony was incorporated 
 with British Columbia; afterwards as Solicitor-General of British Columbia, until 
 the abolition of that office in 1S67 ; was a member of the Legislative Council of 
 British Columbia from 1866 to 1870 ; Chief -Justice, Bermuda, 1871 ; Judge of the 
 Supreme Court, Straits Settlements, Aug. 187!?," Colonial Office List, 1885. 
 
JUDICIAL— HISTORICAL, era 
 
 I have now, I believe, in this preface, touched upon every im- 
 portant fact as could be gathered from the records, in connection 
 with the administration of Jus Lice in the Colony, from its found- 
 ation, as well as on the different changes and reforms introduced 
 in the constitution of the Supreme Court, — and that of Courts of 
 inferior jurisdiction, — although the latter incidentally,— at all 
 stages. Statistics, it will be seen, have purposely been left out as 
 having no connection with this preface, and as regards the differ- 
 ent decisions of the learned Recorders and Judges, immediately 
 affecting or concerning" the Colony, or the different enactments 
 passed during their time, it will also be observed, that no special 
 allusion has been made in reference to them, — rthe latter fully 
 appearing in the Index to the Laws of the Straits Settlements, 
 [Part II., of which has scarcely been affected by subsequent 
 legislation, since its appearance], and the former preferring to 
 allow the work to speak for itself and thus shorten this already 
 long notice. 
 
 That omissions and imperfections will be found, not only in 
 this preface, especially considering the sometimes scanty and 
 limited records travelled over, — as well as in the work itself, the 
 principal matter here, is more than probable, and very likely more 
 than I shall get the credit for, but it is needless for me to add, 
 that I have spared neither time, nor trouble or expense, to make 
 it as perfect as the limited time at my disposal would allow me, 
 or the following up and tracing of the thousands of varied, com- 
 plicated and scattered documents, all requiring repeated references 
 and constant researches would permit. In the execution of this 
 voluntary task, I have been prompted solely by an anxious desire 
 to fulfil a duty, — which I felt all the more able to undertake by 
 the opportunities I enjoyed in my official position, of a ready 
 access to the records of the Court in Penang, — in supplying a 
 want, as stated at the beginning of these pages, so long generally 
 felt in this Colony, and thus save loss of time to many ' in their 
 researches, it being well known, that cases and points of a similar 
 nature, before argued and decided, have not unfrequently arisen 
 and been argued over de novo, in ignorance of the fact of their 
 having previously been dealt with in either one or other of the sis- 
 ter Settlements, or in the Settlement itself where the case or point 
 arose afresh, instances of which will appear in this work. In my 
 own experience, I have on endless occasions, heard Counsel, — and 
 that sometimes in support of their own argument, — allude to 
 certain " holdings ,of the Court" or of the Judge himself whom 
 they were addressing, without being able to substantiate their 
 ipse dixit in any manner or form whatever, in some instances 
 even after the case cited ? — if remembered, — had been hunted 
 
Cviii PREFACE. 
 
 for, thus placing all parties in an awkward position, [a] 
 And here I may say, that another and great ohject of 
 mine, in bringing out this work, has been to enable me 
 on its publication, to connect it with a fresh edition of my 
 Index to the Laws of this Colony, in inserting therein such 
 Imperial Statutes as have been held applicable or otherwise to 
 the Straits Settlements, as well as to refer therein, to the different 
 constructions and rulings placed upon such Statutes, Acts and 
 Ordinances as are still in force in the Colony, for it will at once 
 be apparent, that in the matter of an Index, without a record of 
 cases containing animadversions on the local laws, to refer to, 
 especially when they are of such a mixed character as they are in 
 •this Colony, no such Index can be looked upon as complete or 
 free from imperfections. 
 
 In regard to the Penang cases, I make bold to say, that every 
 one of those worth reporting, and as are to he found or can be 
 made out amongst the Records in the Penang branch of the Supreme. ■ 
 Court, from the date of the first Charter in 1808, to the present day, 
 are included in this worh. Many cases of great importance and 
 interest in days gone by, — some of which have been reproduced in 
 the Collections before alluded to — are to be found amongst the 
 records [although written judgments formed no part of the 
 Eecords until the passing of Ordinance 5 of 1878, sec. 342] y — but 
 such cases having no bearing whatever at the present time, have 
 been omitted. 
 
 The Singapore and Malacca cases, it will be found, are not so 
 numerous as those of Penang, but here an explanation is necessary, 
 for it must not be forgotten, that I have only had heretofore 
 access to the records of the Penang branch of the Court, apart 
 from the fact that it was only in 1855, that Singapore enjoyed the 
 benefit of a residential Judge with jurisdiction over Malacca, the 
 earlier decisions delivered in those Settlements being therefore 
 few and far between, and only delivered by the Professional 
 Judges while on Circuit. But again, such of the decisions deli- 
 vered in those Settlements as appear in this work, have received 
 equal attention, — and only those of any importance or bearing 
 now-a-days have been reproduced, some of which have undergone 
 considerable alteration, or in other words have been completely 
 recast, having been originally but newspaper reports, containing 
 
 [a] See the following : 
 
 [Befobe Me. Baeon Htjddlestone.] 
 
 ANANONTMOtrsCASE.-Mr. Finlay.Q. C, in arguing some matters of law, 
 referred to a case which, he said, had been decided lately, but had not been re- 
 port.«l j so that he could not quoto.it in the usual way.-Mr. Baron Huddlcstone siid 
 that he recalled to his mind that years ago Mr. Wakefield, in one of the Chancery 
 Courts, referred to what he described as an anonymous case; and the matter for 
 the time passed off When Mr Bethel], however, erne to reply, he said, « I have 
 to inform your Lordship that that case has bed over-ruled in the House of Lords." 
 Thereupon Mr. Wakefield, somewhat losing his temper, retorted, " There never 
 was such a case. In a similar way the case now adverted to might, perhaps, be 
 called "An anonymous case," and Mr. Eeid might answer it by sayino-, « It has 
 been over-ruled m the House of Lords." The [LonSon] Standard, 4th July 1885 
 
JUDICIAL-HISTORICAL. eix 
 
 extraneous matters. A few of the early Singapore and Malacca 
 cases, I have come across in my researches in the Penang Eecords 
 having evidently heen brought over by the Court on return from 
 Circuit, For the others, — apart from those obtained by me from 
 the Court records and other sources, I am greatly indebted to the 
 courtesy of their Honors, Sir Thomas Sidgreaves, Chief-Justice, 
 and Mr. Justice Wood, as well as to the Solicitor-General, Mr. 
 Daniel Logan, and other members of the Bar, to whom I can 
 only return my grateful thanks but without however feeling my 
 labours sanctioned by their assistance and communications ; es- 
 pecially Mr. Justice Wood, who not only placed all the Note- 
 Books of the different Recorders and Judges as are still to be 
 found in his office, at my disposal, but has also revised every 
 manuscript of the judgments in his numerous cases published 
 throughout this work, thereby enhancing its value, besides afford- 
 ing me as well, valuable suggestions which I have carried out. 
 To His Honor the Chief Justice I am also greatly indebted 
 for a similar favour, in going over all his cases, during his 
 recent stay in Penang, especially at a time when he could ill- 
 afford any leisure for such a purpose, and with his Honor's direct 
 permission, this work is now most respectfully inscribed to him. 
 
 But to no one, am I under more obligation, than to Mr. R. G. 
 Van Someren, Advocate and Solicitor of the Supreme Court. 
 Not being a professional myself, and consequently for want of 
 self-confidence, I could not trust to my own experience, and great- 
 ly through the assistance I have received from him, have I been 
 enabled thus to bring this work to, what I hope will prove to be, 
 a successful issue. The manuscript of every case appearing in 
 this work, has been gone over by him, and only after consultation 
 with him, is every case herein appearing, published. To that 
 gentleman therefore, I take this opportunity of offering my most 
 geatef ul acknowledgments, for the work passing under the eye of 
 one so familiar with our laws and procedure, enables me to present 
 it with some degree of confidence. 
 
 Owing to the great bulk of this work, and the number and 
 varied nature of the cases, an analytical classification has been 
 found impossible, and I have therefore deemed it advisable to 
 publish the cases separately. Thus, this Volume consists of Cases 
 purely of a Civil nature, Volume IT., lo. of Criminal Rulings ; 2o. 
 Admiralty ; 3o. Bankruptcy ; 4o. Ecclesiastical, and j5o. Habeas 
 Corpus Cases; and Volume III., entirely of Appeals from the deci- 
 sions of Magistrates, all with a complete and searching Index, and 
 a Table of the names of the Cases cited and reported. 
 
 Decisions of the Privy Council on local cases appealed against, 
 and those of the full Court of Appeal in similar cases, follow such 
 cases in regular order, including decisions of the Court of Appeal 
 in 1885 in cases originally decided in 1884 or earlier years. 
 
 A List of the cases cited in this work, as well as a list of the 
 cases reported and of the Recorders and Judges of the Colony 
 from the date of the first Charter, with the dates of their assump- 
 
e* PREFACE. 
 
 tion and relinquishment of duties, and a List of the Agents, 
 General and Special, Solicitors and Advocates of the Court from 
 its earliest days are also herein given. 
 
 With this notice, and general outline of the nature and 
 contents of the work, I heg to submit it to the candour of the 
 public, the bar, and officials alike, for whose service it is intended, 
 and I do so without presumptuous confidence, but at the same 
 time without affecting to conceal my expectation that the labour 
 I have employed in preparing these Volumes, will be found by 
 those who use them, to shorten their own toil in searching for 
 authorities in point upon most of the questions coming before our 
 Supreme Court and Courts of Inferior Jurisdiction, as well as 
 tracing, by means of this Preface, — its immediate purport, — the 
 origin of some of the early as well as modern institutions of the 
 Court, a matter of no small moment in regard to some case3 at 
 times [a], and I trust my efforts in that direction will not prove 
 to have been unavailing. 
 
 In conclusion, it is but proper that I should observe, that the 
 manuscript of this work wa3 not only completed, but more than 
 two-thirds of it had gone through the press when I was transfer- 
 red to this Settlement. The work was therefore too far advanced 
 to enable me, for present purposes without greatly delaying its 
 publication, to go over the records of the Court in its division 
 here, where doubtless most valuable information is to be obtained 
 from the records. 
 
 J. W. N. K. 
 
 Malacca, S. S. 
 30th November, 1885. 
 
 } 
 
 [a.] By way of illustration, see Reg. v. Willans, and Reg. v. Kuch Sin Loi, 
 Magistrates' Appeals, Vol. III. of these Reports. 
 
Cxi 
 
 List of Recorders and Judges' of the Straits Settlements, from the first 
 Charter granted to Prince of Wales' Island [Penang.] * 
 
 1st. CHARTER. 
 
 Court of Judicature op Prince op Wales' Island. 
 
 [Letters Patent, 25th March, 1807.] 
 
 Name of Recorders. 
 
 Date of Assump- 
 tion of Office. 
 
 Date last sat. 
 
 1. Sir Edmond Stanley 
 
 2. Sir George Andrew Cooper 
 
 3. Sir Ralph Rice ... 
 
 4. Sir Francis Souper Bayley 
 
 3rd June 1808 ... 
 4th Feb. 1817 ... 
 25th Nov. 1817 ... 
 26th Aug. 1824 ... 
 
 8th Nov. 1816 [a.] 
 22nd „ 1817 [6.] 
 25th Aug. 1824 [c] 
 7th Oct. 1824 [<£] 
 
 [a.] Resigned on the 14th November, on being appointed a Judge of the Supreme Court at 
 Madras, where he afterwards became Chief-Justice. 
 [6.] Promoted Chief-Justice of Bombay. 
 [«.] Transferred to Bombay as a Puisne-Judge. 
 [<!.] This Recorder, only sat 9 times, and died in Penang on 20th October, 1824. 
 
 2nd. CHARTER. 
 Court op Judicature op Prince op Wales' Island, Singapore and Malacca. 
 
 [Letters Patent, 27th November, 1826.] 
 
 Name of Recorders. 
 
 Date of Assump- 
 tion of Office. 
 
 Date last sat. 
 
 1. Sir John Thomas Claridge 
 
 2. Sir Benjamin Heath Malkin 
 
 3. Sir Edward John Gambier 
 4 Sir William Norris 
 
 5. Sir Christopher Rawlinson 
 
 6. Sir William Jeppcott 
 
 9th Aug. 1827 
 13th Feb. 1833 
 29th June 1835 
 29th Sept. 1836 
 14th Aug. 1847 
 14th Feb. 1850 
 
 24th Aug. 1829 [a.] 
 29th June 1835 [6.] 
 28th Sept. 1836 [c] 
 8th May 1847 [d.] 
 14th Feb. 1850 [e.J 
 6th October 1855 ["/.] 
 
 [a.] Recalled from office — see Preface, tifc, p. Ixvii. 
 
 [6.] Transferred to Calcutta as Chief-Justice. 
 
 [c] Appointed 2nd Puisne-Judge of Madras., and in 1842 became Chief- Justice there. [First 
 Report — Indian Territories, 1853, p. 243.] 
 
 [d.] Retired on pension. 
 V [«.] Promoted Chief-Justice of Madras, in the room of Sir Ed. Gambler, retired. 
 
 [/.] Died in Penang, 22nd October, 1855. 
 
 * The information given in these lists is taken from Court Records. 
 
CX11 
 
 List of Recorders and Judges of the Straits Settlements, from the first 
 Charter granted to Prince of Wales' Island, [Penang] continued. 
 
 3rd. CHARTER, [a. J 
 
 Court of Judicature op Prince of Wales' Island, Singapore and Malacca. 
 
 Letters Patent, 12th August, 1855. 
 
 Name of Recokdeks. 
 
 Date of Assump- 
 tion op Office. 
 
 Date last sat. 
 
 1. Sir Richard Bolton McCausland . . . 
 
 2. Sir Peter Benson Maxwell 
 
 3. Sir "William Hack ett 
 
 22nd March 1856 
 4th April „ 
 25th Aug. 
 
 25th Aug. 1866 [6.] 
 
 W 
 
 W 
 
 [a.] By this Charter, 2 Recorders were appointed. Sir Richard McCausland to Singapore, 
 and Sir Benson Maxwell to Prince of Wales' Island — vide Preface, &c, p. xciv. 
 
 [6.] Retired on pension. 
 
 [c] Succeeded Sir Richard McCausland as Recorder of Singapore, and on the transfer, be- 
 came Chief -Justice of the Straits Settlements — vide Preface, &c, p. cii. 
 
 [d.] Succeeded Sir Benson Maxwell as Recorder of Prince of Wales' Island, and on the 
 transfer, became Judge of Penang — vide Preface, 4c, p, cii. 
 
 The Supreme Court op the Straits Settlements, [a.] 
 [Constituted under Ordinance 5 of 1868, &c] 
 
 Name of Judges. 
 
 Date of Assump- 
 tion of Office. 
 
 Date of Relinquish- 
 ment of Duties. 
 
 1. Sir Peter Benson Maxwell, c.j. ... 
 
 2. Sir William Hackett. 
 
 see 3rd Charter 
 aboye & note [<?.] 
 thereto, 
 do. do. \_d.2 
 
 Retired, 26th July, 1871. 
 March, 1875* [&.] 
 
 3. Sir Thomas Sidgreates, c. j. 
 
 5th Jan. 1872. 
 
 [«•] 
 
 4. Francis Snowden... 
 
 13th Feb. 1874. 
 
 March 1874* [d] 
 
 5. George Phillippo 
 
 13th „ 
 
 August 1876* [c] 
 
 6. Theodore Thomas Ford ... 
 
 15th April „ 
 
 ["/■] 
 
 7. Henry Lushington Phillips, cm.g. 
 
 30th June, 1877. 
 
 17th Sept. 1877 Q/.J 
 
 8. Thomas Lett Wood 
 
 10th Sept. „ 
 
 [*.] 
 
 [a.] Acting appointments not included in this list. 
 
 * Exact date not traceable in Penang Court Records. 
 
 >.] Appointed Chief -Justice of Fiji— had acted as Chief -Justice of the Colony 
 
 c.] Vide Preface,. &C', p. civ. ' 
 
 'd.'] Appointed Puisne-Judge of Hong-Kong. 
 
 ~e.~] Transferred to Hong-Kong as Attorney-General. 
 
 /•] Vide Preface, &c, p. cv. 
 
 ■ g A T^ s ™ nly * a te: ?P orar y ? ud S e > ^d returned to Natal— vide Preface, &o., P. cvi. 
 
 h.} Vide Preface, &c., p, cvi. r 
 
csiii 
 
 List of Law Agents — Special and General — and Advocates and Attornies, 
 admitted to practice in the Straits Settlements, from the first Charter 
 to Prince of Wales' Island, [Penang.] [a .J 
 
 1st CHARTER [6.] 
 [ 25th March, 1807. ] 
 
 Name. 
 
 Date 
 
 of 
 
 Admission. 
 
 Special 
 
 OB 
 
 General 
 Aqent. 
 
 Remarks. 
 
 John Hewitt 
 Thomas Kekewich 
 
 C ttthbbrt Fenwick 
 John Grant Willson ... 
 Thomas Stackhouse . . . 
 
 Thos. Corbet Grimwood 
 Nathaniel Bacon .., 
 Robert Terraneatt . . . 
 
 4th Nov. 1808 
 18th Oct. 1809 
 
 23rd Oct. 1809 
 
 24th Feb. 1810 
 
 8th Feb. 1817 
 
 4th Aug. 1817 
 20th Aug. 1817 
 20th Aug, 1817 
 
 General 
 Special 
 
 Do. 
 
 Do. 
 
 General 
 
 Special 
 
 General 
 
 Do. 
 
 Attorney of the Court of King's 
 Bench, [c] 
 
 Disbarred 22nd June, 1810, and 
 re-instated, 30th August of 
 same year " on petitioning 
 for and obtaining a full par- 
 don" — was for some time 
 Clerk to Sir Edmond Stanley, 
 R., and Registrar of the 
 Court, [i.] 
 
 [See Preface, &c, p. xlvii.] 
 
 Attorney of the Court of King's 
 Bench, [e.] 
 
 The date here given only relates 
 to that on which this Agent 
 was disbarred, the date of his 
 admission not being' trace- 
 able. [/.] 
 
 Had previously acted as Sub- 
 Sheriff and also as Registrar 
 — practised also under 2nd 
 Charter; date of admission 
 thereunder : 8th Oct., 1827. 
 
 was " Secretary " to Sir Ralph 
 Rice, R, in 1821. 
 
 [a.] No Eoll of Agents under the first Charter exists, and the information herein given, is ob- 
 tained from searches in Court Records. 
 
 [6.] 
 Reports. 
 
 w 
 
 See Preface, &c, p. xlii. 
 
 Only practised up to the 2Gth January, 1809. when he was appointed Registrar. 
 
 See In the Goods of Thomas Kekewich, deceased, Ecclesiastical Cases, Vol. II. of these 
 
 Came out with and as " Secretary " to Sir George Cooper, R., and practised but a very short 
 time after admission, subsequently leaving with the same Recorder for India. 
 
 [/.] Disbarred " upon the application of Mr. Duff " [the Registrar] for " improper conduct in 
 Court on former occasions, and particularly for having given false and prevaricating evidenoe in this 
 cause"— Bhaik Mahomed, Allie v. Mahomed hebbey— Appeal Case, 4th August, 1817. [not reported,] 
 
CX1V 
 
 List of Law Agents^-Special and General,-and Advocates and Attomies, 
 
 Prince of Wales' Island, 
 2nd CHAR 
 [S7tA Novem 
 
 
 
 Settlement wheeein 
 admitted.^ 
 
 Name. 
 
 Date oe 
 Admission. 
 
 Pkince 
 
 op Wales' 
 
 Island. 
 
 Singapore, 
 
 Charles Trebeck 
 
 4th October 1827 
 
 P. of W. I. 
 
 
 "William Caunter 
 
 15th March 1828 
 
 Do. 
 
 
 Vetetjtius Lawes 
 
 4th August 1829 
 
 Do. 
 
 
 "William Balhetchet J 
 
 24th December 1832 
 
 Do. 
 
 
 William Kapler 
 
 18th February 1833 
 
 
 Singapore 
 
 James Fairlie Carnegy 
 
 9th March 1833 
 
 P. of W. I. 
 
 
 Thomas Rider Baldwin 
 
 9th November 1837 
 
 Do. 
 
 
 James Richardson Logan 
 
 Abraham Logan 
 
 25th January 1842 
 29th April 1842 
 
 Do. 
 Do. 
 
 
 Henry William Lewis 
 
 27th November 1843 
 
 Do. 
 
 
 Robert Rtttherfurd 
 
 5th September 1844 
 
 Do. 
 
 
 ♦Christian Battmgarten 
 
 12th February 1846 
 
 
 Singapore 
 
 John Philip de Mctrat 
 
 6th December 1848 
 
 P. of W". I. 
 
 
 John Cad man Heap... 
 
 28th April 1849 
 
 
 Singapore 
 
 ', George Mathew Kienitz 
 
 15th June 1849 
 
 P. of W. I. 
 
 
 Robert Carr "Woods, Sen 
 
 21st September 1849 
 
 
 Singapore 
 
 John Edward Branson 
 
 6th March 1852 
 
 P. of W". I. 
 
 
 Alexander Mitirhead Aitken ... 
 
 4th August 1852 
 
 
 Singapore 
 
 t List of Agents admitted in Singapore, furnished by the Registrar of that Settlement, In Ma- 
 lacca no roll of agents exists, if any ever admitted in the Settlement. 
 
 J See Preface, &c, p. lixxv. 
 
 * This asterisk refers to those still in practice, irrespective of the Settlement wherein practising, 
 members of the Bar being entitled to practice in any of the Settlements, 
 
cxv 
 
 admitted to practice in the Straits Settlements, from the first Charter to 
 [Penang] continued. — 
 TEE. 
 her, 1826.] 
 
 Special § 
 
 on 
 General. 
 
 Remarks, [a.] 
 
 General 
 
 Do. 
 
 Do. 
 
 Do. 
 
 Do. 
 Do. 
 Do. 
 
 Special 
 Do. 
 
 Do. 
 
 Dx 
 
 Do. 
 Do. 
 Do. 
 
 Do. 
 Do. 
 Do. 
 Do. 
 
 Disbarred, 20th August, 1829 — previously an Attorney of the Supreme Court 
 of Calcutta. [6. J 
 
 Previously clerk to Sir John Claridge, and in April 182S, appointed Law 
 Agent to the B. I. Co. [c] 
 
 Attorney of H. M. Courts at Westminster also an Attorney of the Supreme 
 Court of Calcutta. 
 
 Previously a Merchant — was for some time Law Agent to the E. I. Co., a 
 Government Official, and a Law Agent alternately. 
 
 Previously a Merchant. 
 
 Do. 
 
 Attorney of H. M. Courts at Westminster, had practised as an Attorney 
 at Madras. 
 
 > Had been Law Students at the University of Edinburgh. 
 
 Disbai-red in 1844, on account of pecuniary difficulties, and on being impri- 
 soned for debt. 
 
 Previously articled clerk in " Bells & Eutherfurd," Writers to H. M. Signet, 
 Edinburgh, and was an Attorney of the Supreme Court of Madras. 
 
 Had previously practised as a Special Agent and a Notary in Penang. 
 
 Previously a Merchant. 
 
 Admittted an Attorney of H. M. Courts at Westminster on 16th June 
 1843. 
 
 Was a Proctor of the " District Courts" of Ceylon. 
 
 Afterwards called to the Bar at Gray's Inn, 6th June 1833. 
 
 Was an Attorney of the Supreme Court of Madras. 
 
 Afterwards called to the Bar at the Middle Temple, Hilary Term, 1864. 
 
 [a.] Information supplemented in this column obtained from Court Eeoords. 
 [6.] See Ishmahel Laxamana v. East India Co., and In re Trebeck, p. 4. 
 [c. ] See Caunter v. East India Co., p. 12, and Preface, &e., p. Ixxxv. 
 § See Preface, &c, p. xlii. 
 
CXV1 
 
 List of Law Agents — Special and General — and Advocates and Attornies, 
 
 Prince of Wales' Island, 
 
 3ed CHAR 
 
 ~[12Wi An 
 
 Name. 
 
 Date of 
 
 Admission. 
 
 Settlement wherein 
 admitted. 
 
 Prince of 
 Wales' 
 Island. 
 
 Singapore. 
 
 Joseph Coenish Helmore 
 
 21st October 1856 
 
 
 Singapore 
 
 Francisco Evaeisto Peeeiea 
 
 14th February 1857 
 
 
 Do. 
 
 John .Simons Atchison 
 
 23rd May 1859 
 
 
 Do. 
 
 Alexander Allan 
 
 23rd February 1860 
 
 P. of W. I. 
 
 
 ♦Bernard Rodyk 
 
 8th May 1860 
 
 Do. 
 
 
 Datid Aitken 
 
 13th March 1860 
 
 Do. 
 
 
 Thomas Beaddell, c.m.g.,[ 1882] f ... 
 
 4th February 1861 
 
 Do. 
 
 
 *James Guthrie Davidson 
 
 1st July 1861 
 
 
 Singapore 
 
 William Gilbert Campion 
 
 12th November 1861 
 
 P. of W. I. 
 
 
 Alexandee Baumgaeten 
 
 26th April 1862 
 
 
 Singapore 
 
 EDWAED AUGUSTUS Edgeeton 
 
 24th October 1862 
 
 
 Do. 
 
 Heney Jeiteed Taeeant 
 
 8th December 1862 
 
 
 Do. 
 
 Alexandee Augustus Baumgarten 
 
 28th September 1863 
 
 
 Do. 
 
 Robeet Caer "Woods, Jr., 
 
 28th September 1863 
 
 
 Do. 
 
 *Edwin Koek 
 
 23rd December 1864 
 
 
 Do. 
 
 *Daniel Logan f 
 
 4th April 1864 
 
 P. of W. I. 
 
 
 Horatio Augustus Baumgaeten . . . 
 
 27th June 1864 
 
 
 Singapore 
 
 Peter Benson Maxwell, Jr., 
 
 7th March 1866 
 
 P. of W. I. 
 
 
 Hon. Charles Bushe Plunket . . . 
 
 28th September 1866 
 
 Do. 
 
 
 Duncan Cleek Presgeave 
 
 3rd July 1867 
 
 Do. 
 
 
 Charles Williamson Rodyk 
 Hon. William Edwaed Maxwell, 
 c. m. g., [1885.] 
 
 8th January 1868 
 27th February 1868 
 
 Do. 
 Do. 
 
 
 [a.] See Preface, &c, page ^cliii. 
 
 f See Preface, &c, y. lxxxv. 
 
 * This asterisk refers to those still in practice. 
 
admitted to practice in the Straits Settlements from the first Charter to 
 [Pekang.J continued : — 
 TER [a.] 
 gust, 1855.] 
 
 Remarks. [&.] 
 
 Attorney of H. M. Courts at "Westminster, 24th November 1855. 
 
 Of Gray's Inn, 9th June 1865. 
 
 Admitted Easter Term, 1855, as Attorney of H. M. Courts at Westminster. 
 
 A Scotch Solicitor — called 25th November, 1859. 
 
 Was Senior Sworn Clerk to the Registrar, and admitted after examination. 
 
 Was Clerk to Sir Benson Maxwell. 
 
 [tired.] 
 Called at Gray's Inn, 10th June 1859 — became Attorney- General of the Colony in 1867 [re- 
 
 An Agent and Solicitor of the Supreme Court of Scotland. 
 
 Previously, an Attorney of the Supreme Court of Bengal. 
 
 Admitted locally. 
 
 Was an Attorney of the Supreme Court of New York — disbarred in Penang on the 13th 
 October, 1865, for mal-practices. 
 
 Of the Middle Temple, 11th June 1862. 
 
 Admitted locally. 
 
 Afterwards called at Gray's Inn, 9th June 1865. 
 
 Passed locally. 
 
 Of the Middle Temple — called 17th November 1862, was Crown Prosecutor in 1864, and 
 became Solicitor-General, P., on the transfer in 1867. 
 
 Admitted locally. 
 
 Was Senior Sworn Clerk to the Registrar, and acting Assistant Resident Councillor, Penang. 
 
 Of King's Inns, Ireland — called 1 6th February 1866 — was Registrar of the Court in Penang. 
 
 Was Secretary to Municipal Commissioners — admitted after examination. 
 
 Passed locally by examination. 
 
 Admitted after examination — was Senior Sworn Clerk to the Registrar and Chief Clerk 
 of the Insolvent Court — now Commissioner of Lands, S. S., and M. L. C, was called 
 to the Bar at the Inner Temple, 26th January 1881. 
 
 [6.] Information in this column obtained from Court Eecords. 
 
List of Law Agents — Special and General, — and Advocates and Attornies, 
 
 of Wales' Island, 
 
 The Supreme Court oe 
 [Ordinance 5 of 
 
 Name. 
 
 Date of 
 Admission. 
 
 Settlement whebein 
 admitted. 
 
 Prince 
 
 of Wales' 
 
 Island. 
 
 Singapore. 
 
 * Isaac Swinburne Bond, m. a. 
 
 31st July 1869 
 
 P. of W. I. 
 
 
 * Jonas Daniel Vaughan 
 
 1st September 1869 
 
 
 Singapore 
 
 Douglas Cooper 
 
 27th September 1869 
 
 
 Do. 
 
 *Ch. Keith Elphinstonb Woods... 
 
 7th January 1870 
 
 P. of W. I. 
 
 
 Charles Eugene Velge • 
 
 12th October 1871 
 
 
 Singapore 
 
 * Frederick John Caunter Ross . , . 
 
 22nd December 1871 
 
 P. of W. I. 
 
 
 Francis Worge Duke 
 
 11th November 1872 
 
 P. of W. I. 
 
 
 * Felix Henry Gottlieb 
 
 24th February 1873 
 
 
 Singapore 
 
 Lewis Herbert Woods 
 
 4th March 1873 
 
 
 Do. 
 
 * Robert Garling Van Someren . . . 
 
 1st May 1873 
 
 P. of W. I. 
 
 
 * ALEXANDER LeATHES DONALDSON 
 
 9th June 1873 
 
 
 Singapore 
 
 * Edward Faithful Thomas 
 
 24th November 1873 
 
 
 Do. 
 
 * John Burkinshaw 
 
 6th November 1874 
 
 
 Do. 
 
 Arthur Edward Clarke 
 
 4th June 1875 
 
 
 Do. 
 
 Chas. James Tennant Dunlop . . . 
 
 14th June 1875 
 
 
 Do. 
 
 Harry Cleveland Yaughan 
 
 31st August 1875 
 
 
 Do. 
 
 Sydney Strong 
 
 14th October 1875 
 
 
 Do. 
 
 * Gregory Anthony 
 
 18th December 1876 
 
 P. of W. I. 
 
 
 [a.j By Ordinance 5 of 1878, the membra of the Bar are styled "Advocates and 
 Solioitprs." 
 
 * This asterisk refers to those still in practice. 
 
0X1Z 
 
 admitted to practice in the Straits Settlements, from the first Charter to Prince 
 [Penang] continued. 
 
 THE StBAITS'SbTTLEMEHTS. 
 
 j 
 
 1868^^-c] [a.] 
 
 Remarks. [6.] 
 
 Of the Inner Temple, called 26th January, 1867. Is a Member of the Legislative Coun. 
 cil since 21st August, 1877. 
 
 Of the Middle Temple— 7th June 1869. 
 
 Attorney of H. M. Courts at "Westminster — admitted Michaelmas Term, 1853. 
 
 Passed locally. 
 
 Middle Temple, 17th November, 1870 — is Registrar of the Court in Singapore. 
 
 Of the Middle Temple, 1st May, 1871. 
 
 Of Lincoln's Inn, 7th June, 1858. 
 
 Middle Temple, 17th November, 1871. Was previously a Government Servant — retired 
 as " acting senior Magistrate of Penang" in 1881. 
 
 Admitted locally. 
 
 Passed locally. 
 
 Attorney of H. M. Courts at Westminster — admitted 31st January, 1865. 
 
 Do. Do. —admitted 24th November, 1860. 
 
 Do. Do. —admitted 25th November, 1863. • 
 
 Of the Inner Temple, 26th January, 1871. 
 Of Lincoln's Inn, 17th November, 1874. 
 Of Lincoln's Inn, 7th June, 1875. 
 Of Gray's Inn, 10th June, 1867. 
 Passed locally. 
 
 [6.J Information given in this column, supplemented from Court Records. 
 
ore 
 
 List of Law Agents — Special and General — and Advocates and Atlomiet, 
 
 Prince of Wales' Island 
 
 The StrPEEME Couet op 
 
 [Admissions under Ordinance 5 
 
 Name. 
 
 Date of Admission. 
 
 Settlement whebein 
 admitted. 
 
 Prince of 
 Wales' 
 Island. 
 
 SlNGAPOBE. 
 
 # Edwa ed William Peesgeave 
 
 15th November 1878 
 
 P. of W. I. 
 
 
 * Joaquim Paesick Joaquim 
 
 22nd 
 
 
 Singapore 
 
 * Waltee Clutton 
 
 23rd June 1879 
 
 ... 
 
 Do. 
 
 * Edward James Nauson, b. a. 
 
 3rd July 1879 
 
 
 Do. 
 
 * Thomas Heebeet Kershaw, ba. ... 
 
 30th Sept: 1879 
 
 P. of W. I. 
 
 ... 
 
 * Thomas de M. L. Beaddell 
 
 5th January 1880 
 
 
 Singapore 
 
 * Chaeles Burton Buckley 
 
 19th April 1880 
 
 
 Do. 
 
 *Aethue Oheistophee Oapel 
 
 19th Nov. 1880 
 
 P. of W. I. 
 
 
 * Alpeed Henry Dbew, m. a. 
 
 24th October 1881 
 
 
 Singapore 
 
 John Augustus Haewood 
 
 24th April 1882 
 
 
 Do. 
 
 * Robeet W. G. L. Beaddell 
 
 22nd January 1883 
 
 
 Do. 
 
 * Reginald A. P. Hogan ... 
 
 19th February 1883 
 
 P. of W. I. 
 
 
 # Chaeles Gbant Logan ... 
 
 27th April 1883 
 
 Do. 
 
 
 * GEOBGE H S. GOTTLIEB ... 
 
 25th June 1883 
 
 Do. 
 
 
 * Geeald Osmond Vaughan 
 
 7th September 1883 
 
 
 Singapore 
 
 * Hon. John Winpield Bonsee, m. a. 
 
 12th November 1883 
 
 
 Do. 
 
 "Wm. Chaeles Mactaggaet 
 
 4th February 1884 
 
 
 Do. 
 
 * This asterisk refers to those members of the Bar still in practice. 
 
 Members of the Home Bar in the Colony, 
 
 Name. 
 
 Wood, His Hon. Thos. Lett 
 
 Sidgeeaves, His Hon. Sir Thomas, Knt. 
 Fo ed, His Hon. Theqdoee Thomas ... 
 Skinner, The Hon'ble Allan Maclean 
 Fawkes, Archibald Waltee 
 
 When called, &c. 
 
 Of the Inner Temple, 13th June, 1851 
 „ Middle Temple, 6th June, 1857 
 „ do. 26th January 1866 
 
 Of Lincoln's Inn, 11th June 1867 
 Of the Inner Temple, 27th January 1879 
 
cxxi 
 
 admitted to practice in the Straits Settlements, from the first Charter to 
 [Pekakg] continued: — 
 
 the Steaits Settlements. 
 
 °f 1868, &c, continued.] 
 
 Eemaeks. 
 
 Of the Middle Temple, 3rd July, 1878. 
 
 Do. Do. , 15th May, 1878. 
 
 Solicitor of the Supreme Court of Judicature in England— admitted 11th April, 1876. 
 
 Do. Do. 16th November, 1877. 
 
 Of the Inner Temple, 25th April, 1877. 
 
 Do. Do, , 25th June, 1879. 
 
 Admitted locally after examination. 
 Of Lincoln's Inn— 21st April, 1880. 
 
 Solicitor of the Supreme Court of Judicature in England, 2nd May, 1881. 
 Of the Middle Temple, 6th June, 1871 — is Registrar of the Court in Penang. 
 Of the Inner Temple, 9th May, 1882. 
 Of the Middle Temple, 21st June, 1882. 
 
 Do. Do. , 26th Jan. 1883. 
 
 Do. Do. , 26th Jan. 1883. 
 
 do. do. , 6th June 1883. 
 
 Of Lincoln's Inn, 18th November, 1872, — is Her Majesty's Attorney-General for the 
 Straits Settlements. 
 
 Of the Inner Temple, 26th Jan. 1883. 
 
 not included in above List. 
 
 Remarks. 
 
 Puisne-Judge, S.S., see List of Recorders, &c, Infra. 
 
 Chief- Justice, S.S., ... do. 
 
 Puisne- Judge, S.S., ... do. 
 
 Colonial Treasurer & Member of Executive and Legislative Councils, S. S. 
 
 Is Registrar of the S. Court, &c.,in Malacca. 
 
A TABLE 
 
 OF THE 
 
 NAMES OF THE CASES REPORTED 
 
 rsr THIS VOLUME. 
 
 PAGE. 
 
 Abdulrahimu. Drahman and anor. 171 
 Abdul Bahnian alias Kaffree, 
 
 Narainan Chetty v. 431 
 
 Abdul Wahab v. Sultan of 
 
 Jobore - - - - 298 
 
 Aboobakarsah v. Abamad Jel- 
 
 laloodin- - 513 
 
 .Adagappa Chetty, Shedum- 
 
 brum Cbetty v. - - - 663 
 Adoomeb Katah v. Lebby Dain 438 
 Abamad Jellaloodin, Abooba- 
 karsab v. - - 513 
 Allagappah Cbetty and anor. v. 
 Tunku Allum bin Sultan Al- 
 lie Iskander Sbab - - 520 
 Allah Peecbay v. Yeap Hup- 
 ' Keat - " - - - - 556 
 Allee v. Saman and anor. - 480 
 Allen v. Meera Pullay and ors. 394 
 Ameeran v. Cbe Meb alias Is- 
 mail 429 
 
 Anthony, Attorney-General v. - 473 
 
 ■ and ors., L i m M a h 
 
 Yong v. - - - 454, 475 
 Arbitration of Opium Farm- 
 ers, In re - 497 
 Armoogum Cbetty v. Lee Cheng 
 
 Tee and anor. - 181 
 Arnashellum Chetty In re - 553 
 Ashton v. Bauer - - - 164 
 Athean, Mungootee Meera Ni- 
 na v. - 355 
 Attorney-General v. De Wind 303 
 — . v. Gregory 
 
 Anthony 
 
 dul Cader 
 
 ■v. Hajee Ab- 
 
 - . 473 
 616 
 
 Attorney-General v. 
 ree Soonderee 
 
 B. 
 
 Tbirpoo- 
 
 PAGE. 
 
 377 
 
 Bassett, Kamoo v. - - - 1 
 Bauer, Ashton v. - - - 164 
 Behn, Meyer & Co., Smith v. - 101 
 Behr ; Max, Syed Mahomed Al- 
 
 sagoff v. - - 637 
 
 Bemben v. Curpen Keecbee - 313 
 Boey Ah Wah, Mahomed- 
 
 Ghouse v. - - - - ' 555 
 Bond, In re - - - - 222 
 Boon Bong Neoh and ors., Oh 
 
 Wee Kee v.- - - - 544 
 Boon Tek and Co., Van Someren v. 427 
 Brown and Co., Scott, Sinclair 
 
 and Co.. v. - 85 
 
 Brown, East India Co. v. - 3 
 
 v. Herriot 43 
 
 , Ibbetson v. - - 119 
 
 v. Kam Eongay - 73 
 
 -, Lim Mah Peng v. - 170 
 
 v. Municipal Commis- 
 
 sicmers, P. - - - -^ 75 
 Buchanan v. Kirby - - - 230 
 Burn, Collins v. ... 186 
 
 C. 
 
 Capel & anor., Shagapah Chet- 
 ty v. 512 
 
 Cargill v. Carmichael and anor. 603 
 
 Carmicbael and anor., Cargill v. 603 
 
 Caunter v. East India Co. - 12 
 
 Challis v. Cramer - - - 227 
 Chan Guan Takv. Chin Kim 
 
 Fat and anor. - - - 274 
 
TABLE OF CASES REPORTED. 
 
 PAGE. 
 
 Chartered Bank of India, &c, 
 Wee Kow v. 167 
 
 Chartered Mercantile Bank, &c, 
 v. D'Eodas - - 173 
 
 _ v , 
 
 Letchman Chetty and anor. - 455 
 Chasseriau v. Mathieu and Co. - 117 
 Cheah Hit and ors., Mah 
 
 KeowD. - - - - 321 
 Cheah Oon Heap v. Choak Kong 
 
 What - - - - 393 
 
 Cheah Tek Soon, Penang Foun- 
 dry Co. v. 559 
 Cheah Tek Thye v. Hassan 
 
 Kudus .... 654 
 
 Che Him v. Robertson and anor. 131 
 
 v. and ors. 131 
 
 Che Meh alias Ismail, Amee- 
 
 ran v. - - - - - 429 
 Cheo Ah Mo and ors, Lee Ah 
 
 Yimv. - - - - 388 
 
 Chettyapah Chetty, Maxwell v. 201 
 Chin Guan Tak and ors. v. Chin 
 
 Seah Pow - - - - 586 
 Chin Kim Fat and anor., Chan 
 
 Guan Tak v. - - - 274 
 
 Chin Seah Pow, Chin Guan Tak 
 
 and ors. v. - 586 
 
 Choa Choon Neoh v. Spottis- 
 
 woode - 216 
 
 Choak Kong What, Cheah Oon 
 
 Heap v. ... . 393 
 Clutton v. MeGillevray - - 619" 
 Cohen, Hin Lee and Co., v. 542 
 , Shaik Ebrahim bin Al- 
 
 lee v. - - - - - 242 
 Collins v. Burn ... 186 
 
 Coomarapah Chetty v. K a n g 
 
 Oon Lock ... 314 
 
 Cramer, Challis v. - - 227 
 
 Curpen Keechee, Bemben v. - 313 
 Currier v. Lee Pee Chuan and 
 
 ors. - - . 417 
 
 D. 
 
 D'Almeida v. Gray - 109 
 
 Davidson v. Ord - - - 205 
 
 De Mornay, Veitcb v. 418 
 
 De Souza, Moraiss v. - - 27 
 
 De Wind, Attorney-General v. 303 
 
 PAGE. 
 
 Drahman, Abdulrahim v. - 171 
 
 D'Eodas, Chartered Mercantile 
 Bank, &c. v. - - - 173 
 
 E. 
 
 Eastern Extension Australasian, " 
 &c, Telegraph Co., Oh Yean 
 
 Heng v. - - - - 364 
 
 East India Co. v. Brown 3 
 
 , Caunter v. - 12 
 
 , Ishmahel Laxa- 
 
 mana v. - - 4 
 
 v. Low - - 73 
 
 v. Scott 51 
 
 Ebrahim v. Shaik Ally and ors. 672 
 
 Edwards v. Westerhout - - 31 
 
 F. 
 
 Fateemah, Shaik Lebby v. - 324 
 Fatimah and ors. v. Logan and 
 
 ors. - 255 
 Fraser and Co., Lim Sim 
 
 Kay v. - 380 
 
 Fruchard v. Schmidt and ors. - 360 
 
 G. 
 
 Galastaun, Mclntyre v. - - 67 
 Gan Guat Chuan and ors. v. Kho 
 
 SuCheang - - - 222 
 
 Golam Kader v. Shagapah 
 
 Chetty - - - - 512 
 v. Wanchee 
 
 Incheh Thyboo and anor - 611 
 Golam Mydin et Uxor, Hussain 
 
 Saiboo v. - - - - 347 
 Gottlieb v. Hervey - - 500,505 
 
 v. Leicester - - 509 
 
 Gray, D'Almeida v. - - 109 
 
 Guthrie and Co. v. S h e e n a 
 
 Mohamed Abdul Kader - 553 
 
 H. 
 
 Hadj ee Abdul Kader, Kader 
 Mydin and ors. v. 489 
 
 Hajee Abdul Cader, Attorney- 
 General v. . _ - 617 
 
 Hajee Abdullah, Jamaludin v. - 503 
 
TABLE OF CASES REPORTED. 
 
 PAGE. 
 
 Hajee Abdullah andors. v. Khoo 
 
 Tean Tek and anor. - - 500 
 Haji Mahomed Ariff, — Mymoo- 
 
 nah v. - 353 
 
 Hall and Co. Wm,, N. o o r s a h 
 
 Bawasah Merican v. - 640 
 
 Hansen, Wyndham v. 618 
 
 Hashitn v- Eobertson - - 131 
 Hashim Nina Merican v. Khati- 
 
 jah Bee and ors. - - 635 
 
 Hassan Kudus, Cheah Tek 
 
 Thjev. - - - - 654 
 Heoh Ah Tan, Logan v. - - 514 
 Herm. Jebsen and Co., Vulcan 
 
 Match Co. v. - ' - - 650 
 Herriot, Brown and ors. v. - 43 
 Hervey, Gottlieb v. - 500, 505 
 s — , .Tan Hoon Cheang and 
 
 ors. v. - 652 
 
 Hin Lee and Co. v. Cohen - 542 
 Hodgson and Co., Martin, Dyce 
 
 and Co. v. - - - - 190 
 Hong Keat, Tan Kee v. - - 63 
 Hooglandt v. Mahomed Isup and 
 
 ors. - - 184 
 
 Hussain Saiboo v. Golam Mydin 
 
 etUxor - 347 
 
 Ibbetson v. Brown - - 119 
 
 Inche Nap Pendek and ors., 
 
 Kysheu. - - - 602,624 
 Ishmahel Laxamana v. East 
 
 India Co. 4 
 
 Ismail, Che Meh alias, — Amee- 
 
 ran v. - . _ _ 429 
 
 Jaharrah, Shaik Madar v. - 385 
 
 Jamaludin v. Hajee Abdullah - 503 
 Jebsen and Co. Herm, — Vulcan, 
 
 Match Co. v. - - - 650 
 
 Jemalah ^.Mahomed Ali and ors. 386 
 Johore, Sultan of, Abdul 
 
 Wahab v. - - - - 298 
 
 Jones, Shellumbrum Chetty v. 204 
 
 K. 
 
 Kadapah Chetty and anor., 
 Vellian v. - - - - 638 
 
 PAGE. 
 
 Kader Bee and anor. v. Kader 
 
 Mustan and ors. - 432 
 
 Kader Mustan and ors., Kader 
 
 Bee v. - - . - - 432 
 Kader Mydin and ors. v. Hadjee 
 
 AbdulKader - - - 489 
 KafEree — Abdul .Rahman alias, 
 
 Narainan Chetty v. - - 431 
 Kam Beng Chan, See Bong Lim 
 
 and anor. v. - - - - 472 
 Kam Kongay and anor,, 
 
 Brown v. - - - 73 
 
 Kam Kong Gay and anor., Keve- 
 
 ly and Co. v. 32 
 
 Kamoo v. Bassett 1 
 
 Kana Shaik Ibrahim, MahomedV' 
 
 Mustan and anor. v. - \582 
 
 Kang Oon Lock, Coomarapah > l 
 
 Chetty v. - - - - 314 
 Kedah vide Quedah. 
 Khatijah Bee aud ors., Hashim 
 
 Nina Merican v. - - 635 
 
 Khay Thye and anor., Khoo 
 
 Yah Hong v. 647 
 
 Kho Chin Jah and anor v. Lim 
 
 Tow and ors. 22 
 
 Kho Su Cheang, Gan G u a t 
 
 Chuan and ors. v. - - 222 
 
 Khoo Bean Teen and ors., 
 
 Meyappa Chetty v. - 510 
 
 Khoo Hock Leong and ors., 
 
 Pakeer Mahomed v. - 430 
 , Yahayah 
 
 Merican v. - - - 466 
 
 Khoo Joo Heem v. Khoo Joo 
 
 Lam ----- 596 
 Khoo Joo Lam, Khoo Joo 
 
 Heem v. - 596 
 
 Khoo Kee v. Laigre and ors. - 571 
 Khoo Seok Haing v. Khoo Wee 
 
 Team and anor. - - 633 
 
 Khoo Tean Tek and anor., 
 
 Hajee Abdullah and ors. v. - 500 
 and or s ., 
 
 / 
 
 Tunkoo Mooda Nyak Malim v. 453 
 Khoo Tiang Bee et Uxor v. Tau 
 
 Beng Gwat - - - - 413 
 Khoo Wee Team and anor., 
 
 Khoo Seok Haing v. - - 633 
 Khoo Yah Hong v. Khay Thye 
 
 and anor. - - - - - 647 
 
TABLE OE CASES REPORTED. 
 
 PAGE. 
 
 Kirby, Buchanan v. - - 230 
 
 Ko Bo An v. Shaik Beenan •, <Ho 
 Kwah Chan Chew v. Wee Eng 
 
 Suk - - - " " 519 
 Kyshe v. Inche Nap P e n d e k 
 
 Won. .- - - 602» 624 
 
 L. 
 
 Laigre and ors., Khoo Kee u. - 571 
 Lebby Dam,— Adoomeh K a- 
 
 kah v.- - 438 
 
 Lee Ah. Yimu. Cheo Ah Mo and 
 
 ors. - - " 388 
 
 Lee Cheng Tee and an or., Ar-- 
 
 moogum Chetty v. - 181 
 
 Lee Kou Koi v. Kobertson - 131 
 
 _I v. Mahomed 
 
 Hassan - - - 161 
 
 Lee Pee Chuan and ors., Cur- 
 rier v. - - 417 
 Leicester, Gottlieb v. 509 
 Letchman Chetty and a n o r . , 
 Chartered Mercan- 
 tile Bank, &c. v. - 455 
 
 . — , v. Narainan 
 
 Chetty - 467 
 
 , Tan Kok 
 
 Seng v. - - I 62 
 
 Lim Cheong and ors. v. Tunku 
 
 Muda Choot Latiff and ors. 235 
 Lim Choon Gek, Lim Khay 
 Chuan v. 534 
 
 Lim Chye Peow v. Wee Boon 
 Tek - - - 236 
 
 Lim Guan Teet v. Shaik Aha- 
 mad Bashaib and anor. 536 
 
 v. Tunku 
 
 Akobe - - - 539 
 
 Lim Hong and anor., Mooroo- 
 
 gapah Chetty v. - 354 
 
 Lim Khay Chuan v. Lim Choon 
 
 PAGE. 
 
 Lim Swee Choe and anor., Vera- 
 
 pah Chetty v. - 378 
 
 Lim Sim Kay v. Fraser and Co. 380 
 Lim Teet and ors., Lim Pek 
 
 Tee v. - - 479 
 Lim Tow and ors., Kho Chin 
 
 Jan and anor. v. - - - 22 
 
 Logan v. Heoh Ah Tan - 514 
 
 Miles v. 80 
 
 ■ and ors., Patimah and 
 
 ors v. - 255 
 
 Low, East India Co. v. - 73 
 
 M. 
 
 Mah Keow v. Cheah Hit and ors. 321 
 
 Mahomed Ali and ors., Jemalahv. 386 
 
 Mahomed Ally v.- Scully - - 254 
 
 Ghouse v. Boey Ah Wah 555 
 
 . v. Babia - 214 
 
 Hassan, Lee Kon Koi v. 131 
 
 Gek 
 
 - b 
 
 34 
 
 Liin Mah Peng «. Brown - 170 
 
 Lim Mah Yong v. Anthony and 
 
 ors. - - 454, 475 
 
 Lim Pek Tee v. Lim Teet and 
 
 ors. ----- 479 
 Lira Poh, Palaniapah Chetty v. 548 
 Lim Seang, Tunku Muda Choot 
 
 Latiffiw. - - - 234 
 
 Isnp and ors., Hoog- 
 landt v. - _ - - 184 
 
 Joonoos v. Saiboo - 242 
 
 ■ Mustan and- anor. v. 
 
 Kana Shaik Ibrahim - - 582 
 Markwald and Co. v. McAlister 
 
 and Company - 667 
 
 Martin, Dyce, and Co. v. Hodg- 
 son and Co. - 190 
 Mat Toh Din, Teemah v. - 432 
 Mathieu and Co., Ohasseriau v. 1.17 
 Maxwell v. Chettyapah Chetty 201 
 Mayandee Chetty v. Sultan 
 
 Meracayar - - - . 350 1 
 
 McAlister and Co., Markwald 
 
 and Co. v. - - - - 667 
 McGillevray, Glutton v. - 619 
 
 McGregor and anor. v. Tanjong 
 
 PagarDock Co., Ld. - - 461 
 Mclntyre v. Galastaun - - 67 
 
 and . ors., Rahman 
 
 Chetty v. - - - - 476 
 Meera Pullay and ors., Allen "v. 394 
 Meh Keechee and anor., Pah 
 
 Jusoh v. - - - - 601 
 
 Meyappa Chetty v. Khoo Bean 
 
 ■ Teen and ors. - 510 
 
 Miles v. Logan - - 80 
 
 MooroOgapah Chetty v. Lim 
 
 Hong and anor. - 354 
 
TABLE OF OASES REPORTED. 
 
 PAGE. 
 
 Moraiss v. DeSouza - - 27 
 
 Mornay De, Veitch v. - - 418 
 MungooteeMeeraNinai>.Athean 355 
 Municipal Commissioners P., 
 
 Brown v. - - 75 
 
 • ■ S., 
 
 Paterson v. - 561 
 
 P., 
 
 Tan Kim Keng v - 470, 478 
 
 P. 
 
 v. Tolson- - 272, 277 
 
 P., 
 
 Vermont?;. - - 587 
 Mushroodin Merican Noordin v. 
 
 ShaikEusoof - - - 390 
 Mustan Bee and ors. v. Shina 
 
 Tomby and auor. - 580 
 
 Mymoonah v. Hajee . Mahomed 
 Ariff 353 
 
 N. 
 
 Nairne v. Rajah of Quedah and 
 
 another - - - 145 
 
 v. TunkuMudaHussain 325 
 
 1 , Tunku Oosman v. - 325 
 
 Nakodah Mahomed Cassim, Sul- 
 tan Omar Akamoden v. - 37 
 Narainan Chetty v. Abdul Eah- 
 
 man alias Kaffree - 431 
 
 , Letchman Chetty v. 467 
 
 Narainen Chetty, Eamsamy v. 471 
 
 Nelligan v. Wemyss and anor. 629 
 
 Neoh Chin Tek and ors. v. Tan 
 
 Beow - - - - - 392 
 Noma Cheah Yew v. Othman - 
 
 saw Merican - - - 160 
 Nborsah Bawasah Merican v. 
 William Hall and Co. - - 640 
 
 O. 
 
 Oh "Wee Kee v. Boon Bong Neoh 
 and ors. - 544 
 
 Oh Yean Heng v. Eastern Aus- 
 tralasian, &c, Telegraph Co. - 364 
 
 Ong Cheng Neo v. Yeap Cheah 
 Neo and ors. . -' - 326 
 
 Opium Farmers, — In re arbitra- 
 tion of, 497 
 
 Qrd, Davidson v. - - - 205 J 
 
 PAGE. 
 
 Othmansaw Merican, Nonia 
 
 Cheah Yew v. - - - 160 
 
 Pah Jusoh v. Meh Keechee and 
 
 anor. ----- 601 
 Pakeer Mahomed v. Khoo Hock 
 
 Leong and ors. - - - 430 
 Palaniapah Chetty v. Lim Poh - 548 
 Paterson v. Municipal Commis- 
 sioners, S. - - - - 561 
 Penang, In re Sheriff of, - 426 
 Penang Foundry Co. v. Cheah 
 
 Tek Soon - - - - 559 
 Pillay, Eungasamy v. - - 168 
 Pootoo v. Valee Uta Taven and 
 
 anor. 622 
 
 Prye Eiver Dock Co., Ld., Ver- 
 mont and ors. v. - 658 
 
 Q. 
 
 Quedah, Eajah of, and anor., 
 
 Nairn e v. - - - - 145 
 
 E. 
 
 Eabia, Mahomed Ghouse v. - 214 
 Eahman Chetty v. Mclntyre & 
 
 ors. ----- 476 
 Eajah of Quedah and anor., 
 
 Nairnet). - 145 
 
 Eamsamy v. Narainen Chetty- 471 
 Eautenberg, Schmidt and Co., 
 
 Yeo Leng Tow and Co. v. - 491 
 Eevely and Co. v. Kam Kong 
 
 Gay and anor. 32 
 
 Eobertson, Hashim v. 131 
 
 Lee Kou Koi v. - 131 
 
 and anor., CheHimv. 131 
 
 ors., Che Him v. 131 
 
 Eungasamy v. Pillay - - 168 
 
 S. 
 
 Saiboo, Mahomed Joonoos v. - 242 
 
 Salmah and anor. v. Soolong - 421 
 
 Saman and anor., Allee v. - 480 
 
 Schmidt and ors., Fruchard v. 360 
 
 Scott, East India Co. v. - 51 
 
TABLE OF CASES REPORTED. 
 
 PAGE. 
 
 Scott, Sinclair and Co. v. Brown 
 
 and Comppiny - - 85 
 , Syed Abbas bin Hus- 
 sein Aideed v. - - 64 
 Scully, Mahomed Ally v. - 254 
 See Bong Lim and anor. v. Kara 
 
 Beng Chan - - - 472 
 
 Shagapah Chetty v. Capel and 
 
 anor. - 512 
 
 , Golam Kader v. - 512 
 
 , Shedurnbrum 
 
 Chetty v. - - - - 467 
 ShaikAhamadBashaib & anor., 
 Lira Guan Teet v. - - 536 
 
 Ally and ors., Ebrahim v. 672 
 
 Beeuaa, Ko Bo An v. - 273 
 
 Ebrahimbin Allee v. Cohen 242 
 
 Eusoof, Mushroodin Meri- 
 
 can Noordin v. - 390 
 
 Lebby v. Fateemah - 324 
 
 Madar v. Jaharrah - 385 
 
 Shedurnbrum Chetty v. Adagap- 
 pa Chetty - 
 — — v. Shaga- 
 
 PAGE, 
 
 T. 
 
 663 
 
 pah Chetty ... 467 
 
 Sheena Mohamed Abdul Kader, 
 
 Cuthrie and Co. v. 553 
 
 Shellumbrum Chetty v. Jones - 204 
 Sheriff of Penang, In re - 426 
 
 Shina Tomby and anor., Mustan 
 
 Bee and ors. v. - 580 
 
 Smith v. Behn, Meyer and Co.- 101 
 Soolong, Salmah and anor. v.- 421 
 " Spottiswoode, Choa C h o o 
 
 Neohv. - - - - 216 
 Sultan of Johore, Abdul Wa- 
 
 hab v. - 298 
 
 Sultan Meracayar, Mayandee 
 
 Chetty v. - - - 350 
 
 • Omar Akamoden v. Na- 
 
 kodah Mahomed Cassim - 37 
 SyedAbbas bin Husseia Aideed 
 
 v. Scott and anor. 64 
 
 Ali bin Omar Al Junied 
 
 and ors., Syed Awal bin 
 Omar Shatrie v. -438 
 
 ■ Awal bin Omar Shatrie 
 
 v. Syed Ali bin Omar Al 
 Junied and ors. - 438 
 
 Mahomed Alsagoff v. 
 
 Max Behr - - - 637 
 
 Tan Beng Gwat, Khoo Tiang 
 
 Bee et Uxor v. - - 413- 
 Beow, Neoh Chin Tek and 
 
 ors. v. - 392 
 Hoon Cheang and ors., 
 
 Hervey v. - - - - 652 
 Tanjong Pagar Dock Co., Ld., 
 
 Mc Gregor and anor. v. - 461 
 Tan Kee v. Hong Keat - - 6£ 
 Kim Keng v. Municipal 
 
 Commissioners, P. - 470, 478 
 Kok Seng v. Letchman 
 
 Chetty - - - - 162 
 
 Tye and anor. v. Union 
 
 Insurance Society of Canton- 482 
 
 Teemah v. Mat Toh Din - - 432 
 
 Thirpooree Soonderee, Attorney- 
 General v. - - - - 377 
 
 Tolson, Municipal Commis- 
 sioners P. v. - - 272, 277 
 
 Tunkoo Mooda Nyak Malim v. 
 Khoo Tean Tek and ors. - 453 
 
 Tunku Akobe, Lim Guan Teet v. 539 . 
 
 Allum biu Sultan Allie 
 
 Iskander Shah, Al 1 a g a pah 
 Chetty and anor. v. 520 
 
 Muda Choot Latiff v. 
 
 Lim Seaug - 234 
 
 and ors., Lim 
 
 Cheong and ors. v. - 235 
 
 Muda Hussain, 
 
 Nairne v.- - 325 
 
 Oosman v. Nairne - 325 
 
 Trebeck, In re - . - 4 
 
 U. 
 
 Union Insurance Society o f 
 Canton, Tan Tye and anor. v. 482 
 
 V. 
 
 Valee Uta Taven and anor, 
 
 Pootoo v. - 622 
 
 Van Someren v. Boon Tek and 
 Co. 427 
 
 " , In re 363 
 
 Veitch v. De Mornay - - 418 
 Vellian v. Kadapah Chetty and 
 anor. - 
 
TABLE OF CASES REPORTED. 
 
 Ventre, Verappa Chetty v. 
 
 Verapah Chetty v. Lim Swee 
 Choe and anor. - 
 
 Verappa Chetty v. Ventre 
 
 Vermont v. Municipal Commis- 
 sioners P. - 
 
 arid ors v. Prye River 
 
 Dock Co. Ld. - - 
 
 Vulcan Match Co. v. Herm. 
 Jebsen and Co. 
 
 PAGE. 
 
 174 
 
 378 
 174 
 
 587 
 
 658 
 
 650 
 
 W. 
 
 Wanchee Incheh Thyboo and 
 
 anor. v. Golam Kader - - 611 
 WeeBoonTek,LiinChyePeow«. 236 
 
 Eng Suk, Kwah Chan 
 
 Chew v. . - - - 519 
 
 Wee Kow v. Chartered Bank of 
 
 India, &c. - 
 Wemyss and anor., Nelligan v. 
 Westerhout, Edwards v. - 
 Wind De, Attorney-General v. 
 Wyndham v. Hansen 
 
 PAGE. 
 
 167 
 629 
 31 
 303 
 618 
 
 Yahayah Merican v. Khoo Hock 
 Leong and ors. - - . — 
 
 Yeap Cheah Neo and ors., Ong 
 Cheng Neo v. 
 
 Hup Keat, Allah Peechay v. 
 
 Yeo Leng Tow and Co. v. Eau- 
 tenberg, Schmidt and Co. 
 
 466 
 
 326 
 556 
 
 491 
 
TABLE OF CASES CITED. 
 
 A. 
 
 Ranee 
 
 e Rail- 
 Sur- 
 
 Abdullah, In the Goods of 
 
 Abraham v. The Queen 
 
 Ackerly v. Parkinson 
 
 Adams i). Lancashire and Yorkshir 
 
 "way Company 
 Advocate-General v. Dum Moker 
 of Bengal v, 
 
 nomoye Dossee 
 Agassiz v. Palmer 
 Aldridge v. Johnson 
 Alexander v. Jones . 
 Alstons. Underhill . 
 Alton v. Harrison . . 
 
 v. Midland Railway Co. 
 
 Andrews v. Marris. 
 Anonymous 
 
 Arbuthnot v. Norton . 
 
 Ardaseer Oursetjee v. Perozeboye 
 
 Arnell v. Bean 
 
 Arnold v. Hamel 
 
 Ashby v. James 
 
 Atkinson v. Bell 
 
 v. Denby 
 
 Attack v. Bramwell . 
 
 Atterbury v. Wallis . 
 
 Attorney-General v. Bishop of Chester 
 
 • v. Heelis . 
 
 — i v. Magdalene College 
 
 v. St. Catherine's Hall 
 
 • v. Stewart 
 
 • v. Tancred 
 
 Auster v. Holland 
 
 Austin v. Manchester, &c, Railway 
 
 Co 
 
 v. Mills: 
 
 Avery v. Bowden 
 
 1 B. L. R. App. Cr. 17. 
 
 3 M. & S. 411 . 
 
 4 L. R. C. P. 739 
 Perry's Or. Cases, 526 . 
 
 2 Moo. P. C. C. [N. S.], 22 
 
 '{ 
 
 PAGE 
 
 . 27 
 . 316 
 . 211 
 
 . 662 
 
 . 378 
 
 262, 316 
 
 . 276 
 167 
 
 1 D. & L. 18, s. c. 5 M. & Gr. 697 
 7 E. & B. 885, «. c. 26 L. J. Q. B. 296 
 35 L. J. Ex. [ST. S.J 78 . . 510 
 
 2 Dowl. 26 . . .277 
 4 L. R. Ch. App. 622 . . . 357 
 34 L. J. C. P. [N. S.] 292 . . 674 
 7 Dowl. 712 . . . 326 
 
 3 Leon. 194 . . . 250 
 
 I Dowl. 300 . . . .326 
 10 Jur. [O. S.] 145 . . . 205 
 10 Moo. P. C. 375 . . . 236 
 8Bing. 87 . . . .107 
 9 Ex. 404, s. c. 23 L. J. Ex. 137 . 133 
 
 II M. &"W.542. . . . 215 
 8B. &C. 277 . . . 166,560 
 6 H. & N. 778, 7 H. & N. 934 . . 163 
 32 L. J. Q. B. 146 . . . 201 
 25 L. J. Ch. [N. S.] 792, s. c. 8 
 
 G. M. &. G. 454 
 
 1 Brown C. C. 444 
 
 2 S. & St. 76 
 6 H. L. C. 189 
 
 Jac. 381 
 2 Mer. 143 
 Ambler 351 
 10 Jur. 786, 
 
 s. c. 15 L. 
 
 10 C. B. 454, s. c. 21 L. 
 
 23 L. J. Ex. [N. S.l 40. 
 26 L. J. Q. B. [N. S.] 3 
 
 De 
 
 574, 621 
 . 378 
 . 291 
 . 295 
 . 334 
 218, 317, 344 
 . 378 
 J. Q. B. 229 . 222 
 
 J. C. P. 179 . 192 
 
 471 
 518 
 
TABLE OF CASES CITED. 
 
 B. 
 
 PAGE 
 
 Bailey v. Owen 
 
 Bain v. Whitehaven Railway Co. 
 
 Baker v. Denning 
 
 v. Holpzaflel . 
 
 — v. Rye . 
 
 Bankhead's Trust, In re 
 Banvick v. Reid 
 Barraclough v. Johnson 
 Barret v. Blake 
 BaiTs v. Fewkes 
 
 v. Jackson 
 
 Baynes v. Forrest 
 
 Beal v. South Devon Railway 
 
 Bealey v. Stuart 
 
 Beatson v. Skene 
 
 Beauehamp [Earl] v. Winn 
 
 Beaumont v. Oliveira 
 
 Beaui-ain v. Scott 
 
 Becke v. Smith 
 
 Beckley v. Newland . 
 
 Beechey v. Sides 
 
 Begbie v. Levi 
 
 Behn v. Burness 
 
 Bellamys. Sabine 
 Belle v. Thompson 
 Bennett v. Brumfitt . 
 Bishop v. Pentland . 
 Bluet v. Osborne 
 Blundell's Trust, In re 
 Booth v. Clive 
 
 •— v. Howard 
 
 Borough of Bathurst v. Macpherson 
 
 Borrell v. Haigh 
 
 Borries v. Hutchinson 
 
 Boson v. Sandford . 
 
 Bottom] ey v. Nevill 
 
 Bourne v. Gatliffe 
 
 Boursot v. Savage 
 
 Bousfield, ex-parte 
 
 Bowen v. Bramidge 
 
 Boys v. Morgan 
 
 Brace v. Duchess of Marlborough 
 Bradford v. Belfield 
 Bradshaw v. Tasker 
 
 v. Vaughton 
 
 Breadalbane Case, The 
 
 Breese v. Jerdein 
 
 Brewer v. Sparrow 
 Brierly v. Kendall 
 Brigge v. Jones 
 
 v. Penny 
 
 Broad v. Thomas 
 Brodrick v. Scale 
 Brokenshire v. Morgan 
 Brotherton v. Hatt 
 
 9 W. R. 128 . 
 
 
 
 478 
 
 3 H. L. 1 
 
 
 
 266 
 
 8 Ad. & El. 94 . 
 
 
 
 537 
 
 4 Taunt, 45 
 
 
 
 75 
 
 2 L. J. Ex. [N. S.] 169. 
 
 
 
 207 
 
 2 K.& J. 560 . 
 
 
 t 
 
 161 
 
 1H. Black. 627. 
 
 
 
 204 
 
 8 Ad. &E1. 99 . 
 
 
 
 284 
 
 2 Ball & B. 357 . 
 
 
 
 357 
 
 33 L. J. Ch. [N. S.] 4S4 
 
 
 
 331 
 
 1 T. & C. C. C. 585, s. c. 14 
 
 L. J. CL 
 
 
 par. s.] 433. . 
 
 
 
 665 
 
 2 Str. 892 
 
 
 
 276 
 
 5H. &N.875 . 
 
 
 
 428 
 
 31 L. J. Ex. [N. S.] 281 
 
 
 
 352 
 
 29 L. J. Ex. [N. S.] 430, s. c. 5 H 
 
 iAKSJ-vaJ's 
 
 6L. R.E. &'I.App.223 
 
 
 
 600 
 
 4 L. R. Ch. App. 309 . 
 
 
 
 220 
 
 3 Camp. 388 ' . 
 
 
 
 207 
 
 2M. &W. 191. 
 
 
 
 104 
 
 2 P. Wms. 182 . 
 
 
 
 517 
 
 9 B. & C. 806 . 
 
 
 
 133 
 
 1 C. &. J. 180 . 
 
 
 
 318 
 
 31 L. J. Q. B. [N. S.] 73, s. c. 
 Q. B. [N. S.J 204 . 
 
 32 L 
 
 .J. 
 
 
 
 
 352 
 
 26 L. J. Ch. [N. S.l 797 
 
 
 
 389 
 
 2 Chit. 194 . . 
 
 
 
 534 
 
 3 L. R. C. P. 28. 
 
 
 
 538 
 
 7 B. & C. 219 . 
 
 
 
 175 
 
 1 Stark. 384 . 
 
 
 
 25 
 
 31 L. J. Ch. [N. S.] 52. 
 
 
 
 219 
 
 10 C.B. 827, s. c. 2L. M.&P 
 
 '283 
 
 
 132 
 
 5 Dowl. 438 
 
 
 
 319 
 
 4 L. R. App. C. 256 . 
 
 
 
 562 
 
 2 Jur. 229 
 
 
 
 267 
 
 34 L. J. C. P. [N. S.l 169 
 
 
 
 496 
 
 3 Leo. 258 
 
 
 
 193 
 
 5 B. & C. 210 . 
 
 
 
 469 
 
 7 M. & Gr. 850, s. c. 11 CI. & I 
 
 '.45 
 
 
 288 
 
 2L. R. Eq. 134 . ' 
 
 
 
 573 
 
 9 Dowl. 616, s.c. 10 L. J. Q. B. 
 
 [N. 
 
 S.] 
 
 
 361 
 
 
 
 363 
 
 6 C. & P. 140 . 
 
 
 
 357 
 
 3 M. & Cr. 661, s. c. 7 L. J. Ch 
 
 'pr.s.i 
 
 
 247 . 
 
 
 
 547 
 
 2 P. Wms. 491 
 
 
 
 356 
 
 2 Sim. 264 
 
 
 
 234 
 
 2 M. & K. 221 
 
 
 
 220 
 
 30 L. J. C. P. [N. S.l 93, s. c 
 
 9 C. J 
 
 
 [N. S.] 103 . 
 
 
 
 255 
 
 1 L. R. S. & Div. App. 182 
 
 
 
 382 
 
 4 Q. B. 585, s. c. 12 L. J. Q. B. 
 
 [N. 
 
 S.j 
 
 
 234 . . . 
 
 
 470 
 
 ,478 
 
 7 B. & C. 310 . 
 
 
 
 666 
 
 17 Q. B. 937 . 
 
 
 
 201 
 
 10 L. R. Eq. 92 
 
 
 
 621 
 
 21 L.J. Ch. [N.S.] 265 
 
 
 
 331 
 
 7 Bing. 99 
 
 
 
 362 
 
 6 L. R. C. P. 98 
 
 
 , 
 
 511 
 
 9 M. & W. Ill 
 
 
 
 247 
 
 2 Vern. 574 
 
 
 , 
 
 571 
 
TABLE OF CASES CITED. 
 
 Brown v. Edgington 
 
 v. Hodgson 
 
 'v. Raindle 
 
 v. Qtuiow 
 
 Brunsden v. Humphrey 
 
 Bryant v. Wagner . 
 
 Buckland v. Johnson 
 
 Buckle v. Bristow 
 
 Bunney v. Pointz 
 
 Burder v. Veley 
 
 Bur dick v. Garrick 
 
 Burley v. Bethune 
 
 Burling v. Harley 
 
 Burrows v. Marsh Gas Co. 
 
 Busk v. Royal Exchange Gas Co. 
 
 2 M.&Gr. 279. 
 
 4 Taunt. 189 . 
 
 3 Ves. 256 
 Ambler 619 
 
 11 L. R. Q. B. Div. 712 
 7 Dowl. 676 . 
 23 L. J. C.P. [N. S.] 204 
 10 Jur. [N. S.] 1095 
 
 4 B. &Ad. 568. 
 
 12 Ad. & El. 233 
 
 5 L. R. Ch. App. 233 
 
 5 Taunt. 580 . 
 
 27 L. J. Ex. [N. S.] 258 
 5 L. R. Ex. 67 . 
 2 B. &. Aid. 73 
 
 Page. 
 
 . 669 
 
 . 674 
 
 . 246 
 
 . 75 
 
 . 664 
 
 . 602 
 
 . 248 
 
 . 341 
 
 . 115 
 
 . 224 
 
 . 386 
 
 . 274 
 
 . 133 
 
 . "662 
 
 . 175 
 
 Caimcross v. Lorimer 
 
 Caldwell v. Pagham Harbour Co. 
 
 Calvin's case 
 
 Campbell v. Campbell 
 
 Cann v. Clipperton . 
 
 Carne v. Long 
 
 Cary v. Abbot 
 
 v. Stephenson . 
 
 Castle v. Playford 
 
 Cauder Mohuddeen, In the goods of 
 
 Cave v. Cave 
 
 Chambers v. Barnard 
 
 Chapman v. Brown . 
 
 Charnley v. Winstanley 
 
 Chetham o. Lord Audley 
 
 Chitty v. Parker 
 
 Christie v. Griggs 
 
 ■ v. Lewis 
 
 Christ's College, Cambridge . 
 City of Berne v. Bank of England 
 Clarke v. Palmer 
 
 v. Percival 
 
 Clay v. Tates 
 Cobbett v. Oldfield . 
 Cockerell v. Dickens . 
 Cockran v. Retberg . 
 Cocks v. Brewer 
 Cockshott v. Bennett. 
 Coggst). Bernard 
 Colegrave v. Dias Santos 
 Collette v. Goode 
 Collins v. Barrow 
 
 v. Cave 
 
 ■ v. Porbes 
 
 'Colombian Government v. Rothschild 
 Cook v. Leonard 
 
 v. Pritchard 
 
 v. Rogers 
 
 Cooke v. Turner 
 
 v, Wilton 
 
 Cooper v. Phibbs 
 
 Corporation of Gloucester v. Wood 
 
 .38 
 
 7 Jur. [N. S ] 149 . 
 
 2 L. R. Ch. -Div. 221 
 
 7 Rep. 10 
 
 11 L. J. [N. S.] Ch. 382 
 Simon 168 
 ' 10 A. & E. 582 
 
 29 L. J. Ch. [N. S.] 503 
 De Gex P. & J. 75 
 ' 7 Ves. 490 
 
 2 Salk 421 
 
 7 L. R. Ex. 98, 5 L. R 
 
 Straits L. R. 281 
 
 15 L. R. Ch. Div 639 
 9 Dowl. 55? 
 
 6 Ves. 404 
 
 5 East 266 
 4 Ves. 72 
 
 4 Bro. Ch. C 
 2 Camp. 79 
 .2 B. & B. 410 
 •1 W. Bl. 90 
 
 9 Ves. 347 
 
 21 L. R. Ch. Div. 124 
 
 2 B. & Ad. 660 
 
 1 H. & S. 73. 
 
 16 M. & W. 469 
 3 Moore's P.O. 
 
 3 Esp. 121 
 11 M. & W. 51 
 
 2 T. R. 763 
 
 1 Sm. L. 0. 196 
 
 2 B. & C. 76 
 
 7 L. R. Ch. Div 
 1 M. & R. 112 
 27 L. J. Ex. [N. 
 
 3 T. R. 316 
 
 1 Sim. 94 
 
 6 B. & C. 351 
 
 5 M. & Gr. 329 
 
 7 Bing. 438 
 14 Sim. 493, s. c. - 
 30 L.J. Oh. [N. S.]467 
 
 2 L. R. E. & I App. 149 
 
 3 Hare 148 
 
 Ex. 165 
 
 s. c. 13 
 
 s. c. 2 
 
 220, 
 
 C. 98 
 
 842 
 S.] 146 
 
 15 M. & W. 727 
 
 201, 
 
 . 517 
 . 502 
 . 147 
 
 . 612 
 207,214 
 
 336,344 
 
 . 219 
 
 . 386 
 
 .■ 468 
 
 . 616 
 
 . 621 
 
 . 276 
 
 . 270 
 
 . 366 
 
 . 612 
 
 . 490 
 
 . 193 
 
 . 114 
 
 . 290 
 
 . 541 
 
 . 621 
 
 . 351 
 
 . 560 
 
 275, 519 
 
 . 357 
 
 . 183 
 
 . 277 
 71, 321 
 
 428, 674 
 
 . 46 
 
 . 513 
 
 . 74 
 
 . 665 
 
 . 164 
 
 . 38 
 
 . 133 
 
 . 108 
 
 . 105 
 
 . 263 
 
 . 356' 
 
 . 60) 
 
 . 331 
 
TABLE OF CASES CITED. 
 
 •Courtney v. Taylor 
 
 Cox v. Rolt 
 •Cragg, ex-parte 
 
 Craven v. Brady 
 ■Cremidi v. Parker 
 
 ■Crofts v. Beale 
 
 ■Crosby v. Crouch 
 
 ■Cross v. Pagliano 
 
 Crozer v. Pilling 
 
 Curlewis v. Earl of Mornington 
 
 
 P«GE. 
 
 7 Sc. N. R. 749, s. c. 6 M. & G. 851 
 
 . 352 
 
 2Wils.-253 
 
 . 513 
 
 6 Dowl. 256 . 
 
 . 363 
 
 4 L. R. Ch. App. 296 . 
 
 . 366 
 
 11 Moore's P. C. C. [NVS.] 79 
 
 . 150 
 
 11 C. B. 172, s. c. 20 L. J. C. P. 
 
 
 [U.S.] 186 . 
 
 . 539 
 
 11 East 256 
 
 . 104. 
 
 6 L. R. Ex. 9 . 
 
 . 361 
 
 4 B. & C. 26 . 
 
 . 274 
 
 27 L. J. Q. B. [N. S.] 269 
 
 . 38t> 
 
 D. 
 
 Dalyell v. Tyrer 
 
 Danford v. McAnulty 
 Dann v. Spurrier 
 Darvill v. Terry 
 Davis v. Capper 
 
 v. Duncan 
 
 v. Garret 
 
 De Haber v. Queen of Portugal 
 
 Dempster v. Purnell . 
 
 Denn %. Diamond 
 
 Denston v. Ashton 
 
 Dent v. Dent 
 
 De Windt v. De Windt 
 
 Dickeson v. Hilliard . 
 
 Dodd v. Burchall 
 
 Doe v. Pitcher 
 
 • v. "Wellsman 
 
 v. Wright 
 
 Doe 4 Abdy v. Stevens. 
 
 • -Ambler v. Woodbridge 
 
 Batten v. Murless 
 
 ■ -Booley v. Roberts 
 
 Colclough v. Hulse 
 
 Hemmings v. Durnford 
 
 -Higginbotham v. Barton 
 
 -Hindly v. Rickarby 
 -Hornby v. Glenn 
 -Knott v. Lawton 
 -Martin v. Watts 
 -Morris v. Williams 
 -Norfolk v. Hawke' 
 -Parker v. Gregory 
 -Pitt v. Laming 
 -Roffey v. Harbrow 
 -Sbeppard v. Allen 
 -Smith v. Pike . 
 -Souter v. Hall 
 
 -Spencer v. Godwin 
 -Williams v. Lloyd 
 -Wood v. Wood 
 
 Dolder v. Bank of England 
 
 v. Lord Huntingfield 
 
 Donald v. Suckling . 
 Doyle v. Anderson 
 -v. Kaufman 
 
 Drake v. Symes 
 
 1 E. B. & E. 899, s. c. 28, L. J. 
 52 . 
 
 6 L. R. Q. B. 645, s. c. 8 App. 
 
 7 Ves. 231 
 
 30 L. J. Ex. [N S.l 355 
 10 B. &C. 28 . 
 
 9 L. R. C. P. 396 
 
 6 Bing 716 
 
 20 L. J. Q. B. [N. S.l 488 
 
 3 M. & G. 375 . 
 4B.&C. 245 . 
 
 4 L. R. Q. B. 590 
 
 1 L. R. Pro. & Div. 125, 366 
 23 L. J. Ch. [N.S.] 776 
 
 9 L. R. Ex. 79 . 
 
 31 L. J. Ex. [U.S.] 364 
 6 Taunt. 359 
 18 L. J. Ex. [N.S.] 277, s. c. 2 
 
 10 Ad. & E. 763 
 3B. &Ad. 299 . 
 
 9 B. & C. 376 . 
 
 6 M. & S. 110 . 
 
 11 Ad. & El. 1000 
 3B. &C. 757 . 
 
 2 Cr. & J. 667 . 
 11 Ad. & E. 307 
 
 5 Esp. 4 . 
 
 1 Ad. & E. 49 . 
 4 Bing. K C. 455 
 
 7 T. R. 83. 
 
 6 B. & C. 41 . 
 
 2 East 48 L 
 
 2 Ad. & E. 14 . 
 4 Camp. 73 
 
 3 Ad. & E. 68 . 
 
 3 Taunt. 78 
 3B. &Ad. 738 . 
 2 Dowl & Ry. 38 
 
 4 M. & S. 265 . 
 
 5 Bing. K C. 741 
 
 I B. & Aid. 518 
 
 II Ves. 284 
 
 10 Ves. 283 
 
 1 L. R. Q. B. 585 
 
 2 Dowl 596 
 
 3 L. R. Q. B. Div. 7 & 340 
 30 L. J. Ch. [N.S.] 358 . 
 
 Q. B. [N.S.] 
 
 232 
 
 C.456 .' 653 
 
 . 516 
 
 . 359 
 
 . 135 
 
 . 420 
 
 . 175 
 
 . 152 
 
 . 319 
 
 . 224 
 
 . 326 
 
 . 205 
 
 . 220 
 
 . 420 
 
 . 325 
 
 . 336 
 
 Exch. 368, 243 
 
 . 245 
 
 . 374 
 
 . 36S 
 
 . 365 
 
 . 634 
 
 . 625 
 
 . 374 
 
 . 429 
 
 . 365 
 
 . 516 
 
 . 635 
 
 . 637 
 
 . 365 
 
 . 366 
 
 . 625 
 
 . 371 
 
 . 625 
 
 . 368 
 
 . 625 
 
 . 625 
 
 . 373 
 
 . 516 
 
 . 635 
 
 . 541 
 
 . 541 
 
 . 201 
 
 . 326 
 
 . 476 
 
 . 222 
 
TABLE OF CASES CITED. 
 
 Duchess of Kingston's case . 
 
 Duke of Brunswick v. King of Hanover 
 
 Sutherland », Tunstall Local Board 
 
 of Health . 
 Dumas, ex-parte 
 Dumpor's case 
 
 Dulton v. Powles 
 
 2Sm. L. C. 642. 
 6 Beav. 1. 2 H. L. 
 
 C. 1 
 
 21 W. R. 244 . 
 
 lAtk. 231 .... 164- 
 
 lSm. L. C. 43. . . .371 
 
 30 . L. J. Q. B. [N. S.] 169, 31 L. J. Q. 
 B. [N. S.] 191. . . .674- 
 
 page. 
 . 24* 
 . 149- 
 
 . 502: 
 
 E. 
 
 Earle v. Oliver 
 East India Co. .-o. Vincent 
 Eastmure v. Laws 
 Eastwood v. Kenyon 
 Edgecombe v. Stranger 
 Edinondson v. Nuttall 
 Edwards v. Dignam 
 
 v. Etlierington 
 
 Egei-ton v. Brownlaw 
 Elliott v. Kendrick 
 
 Ellis v. Selby 
 
 v. Turner 
 
 Elmore v. Stone 
 
 Elphinstone v. Bedreechund 
 
 Elwes v. Maw 
 
 Emerson v. Heelis 
 
 Emery v. Mucklow 
 
 Emperor of Brazil v. Robinson 
 
 Espin v. Pemberton 
 
 Estwick v. Cailland . 
 European Bank, Re , 
 Evans v. Jones 
 
 2 Ex. 71 . • • 321 
 
 2Atkyns82 . . .515 
 
 5 Bing. N. C. 444 . . . 244. 
 
 11 Ad. & El. 438 .. . 537 
 
 1 Jur. [O. S.] 400 574 
 
 34 L. J. C. P. [N. S.] 102 . 201 & 234 
 
 2 Dowl. 642 ... 535 
 R. & M. 268, s. c. 9 D. & R. 117 . 74 
 
 4 H. L. C. 1, s. c. 23 L. J. Ch. 348 . 240 
 
 12 Ad. & E. 597 . . . 326- 
 1 Myl. & Cr. 286, s. c. 5 L.J. Ch. [N.S.] 
 
 214 . . .340 
 
 8 T. R. 531 . . . . 193 
 
 1 Taunt 458 . . . .37 
 lKnapp329,n . . . .532 
 
 3 East 38 . . . .46 
 
 2 Taunt. 38. . . . . 543 
 10 Bing. 23, s. c. 2 Dowl. 735 . 222 
 
 5 Dowl. 522 . . . .541 
 28 L. J. Ch. [N. S.] 311, s. c. 3 De Gex 
 
 & J. 547 . . . 574, 621 
 
 5 T. R. 420 ... 65- 
 
 5 L. R. Ch. Ap. 358 . . . 621 
 
 2 Coll. Ch. Cases 516 . . . 547 
 
 F. 
 
 Pagan, In re 
 Faith v. East India Co 
 Parder v. Kikerley 
 Penner v. Agutter 
 Penny v. Ewestace 
 Ferrand v. Milligan 
 Flamant, ex-parte 
 Plarty v. Odium 
 Fletcher, ex-parte , 
 Flight v. Booth 
 
 v. Reed 
 
 Flory v. Denny 
 Forbes v. Eden 
 Fouldes v. Willoughby 
 Fowler v. Fowler 
 
 v. Garlike 
 
 Fragano v. Long 
 Frampton v. Coulson 
 Franklin v. Neate 
 Eraser v. Thompson 
 French v. French 
 Frost r. Knight 
 Fuller v. Bennet 
 
 5 C. B. 436 . 
 
 . 276: 
 
 4 B. & Aid. 630 
 
 . 11& 
 
 2 M. & G. 760, s. c. 3 Sc. N. R. 13S 
 
 . 277 
 
 1 M. & K. 120 
 
 . 586: 
 
 4 M. & S. 58 
 
 . 635- 
 
 7 Q. B. 730 
 
 . 289' 
 
 1 Simon FN. S.l 260 . 
 
 . 547 
 
 3 T. R. 681 
 
 . 204 
 
 2 Mont. Bank. Cases, 454 
 
 . 349 1 
 
 1 Bing. N. C. 370 
 
 . 658: 
 
 32 L. J. Ex. [N. S.] 265 
 
 . 321 
 
 7 Ex. 581, s. c. 21 L. J. Ex. 223 
 
 . 201 
 
 1 L. R. Sc. & Div. App. 568 . 
 
 . 504- 
 
 8-M. &W. 540 
 
 . 233 
 
 33 L. J. Oh. [N. S.l 674 
 
 . 220 
 
 2 Russ. & My. 232 
 
 . 331 
 
 4 B. & C. 219 
 
 . 166 
 
 1 Wil. 33 
 
 . 536 
 
 13 M. & W. 481 
 
 . 201 
 
 4DeG. &J. 659 
 
 . 358 
 
 2 M. & Gr. 644 
 
 . 539 
 
 41 L. J. Ex. [N. S.l 78 
 
 . 351 
 
 2 Hare 394 
 
 . 571 
 
TABLE OF CASES CITED. 
 
 G. 
 
 <rainsford v. Griffiths 
 ■Gambles v. Ocean Marine Insurance Co. 
 Garrard v. Tuck 
 Gavin v. Hadden 
 Geary v. Physic 
 Geaves, ex-parte 
 Gelen v. Hall 
 George i>. Surrey 
 - Gerasimo, The 
 Gibbs v. Rumsey 
 Goatleyr. Emmark 
 Godts v. Rose 
 Goldient v. Beagin 
 Goodale's case 
 Goodricke v. Taylor 
 Goodright v. Davies 
 Gosling v. Veley 
 Graham v. Campbell 
 
 v. Peat 
 
 Grant v. Maddox 
 Gray v. Cox 
 
 v. Haig 
 
 v. Pullen 
 
 Green v. Home 
 Greenslade v. Tapscott 
 Gregg v. Wells 
 Gregory v. Christie 
 Griffin v. Hoskyns 
 
 v. "Weatherly 
 
 Grill v. The General Iron Screw Collier 
 Company 
 
 Gndgen v. Bessit 
 
 1 Saund. 58 
 
 1 L. R. Ex. Div. 8, 141 
 
 18 L. J. C. P. [N. S.l 338 
 
 3 L. R. P. C. 707 
 5 B. & C. 234 
 
 25 L. J. Bank. [N. S.l 53 
 
 2 H. & N. 379 
 Moo. & Mai. 516 
 
 11 Moore P. C. C. [K S.l 79 
 
 2 Ves. & B. 294 . 
 
 24 L. J.[K S.l C. P. 38 
 
 17 C. B. 229 
 
 11 Jur. [O. S.] 544 
 
 Dyer 14 
 
 2DeG. J. &S. 135 
 
 Cowp. 803 
 
 4 H. L. C. 727 
 7 L. R. Ch. Div. 490 
 1 East 244 
 15 M. & W. 737 
 4 B. & C. 108 
 20 Beav. 219 
 
 34 L. J. Q. B. [N. S.] 265 
 1 Salk. 197 
 1 Or. M. & R. 55 
 10 A. & E. 90 
 
 3 Doug. 419 
 1H.&E 95 
 3 L. R. Q. B. 753 
 
 ■ 1 L. R. C. P. 600 
 
 6E.&B. 986, s.c. 26 L 
 36 
 
 J. Q. B. [N.S.] 
 
 H. 
 
 Halbird v. Anderson 
 Hall v. Byron 
 
 v. Doe de Surtees 
 
 Halliday v. Holgate . 
 Handley v. Franchi . 
 Hanson v. Shackelton 
 Hardwright v. Badham 
 Hargreaves v. Rothwell 
 Harman v. Richards. 
 Harris v. Birch 
 Harrison v. Harrison 
 
 v. James 
 
 Hart ». Mills 
 Hartshorn v. Sledden 
 Harvey v. Wood 
 Hawah v. Daud 
 Hazeldine v. Grove 
 Heald v. Carey 
 Heane v. Rogers 
 Heath v. Chapman 
 Hedleya. Barlow 
 
 ■ v. Bates 
 
 Helyear v. Hawke 
 
 £ T. R. 235 
 
 4L. R. Ch. Div. 667 
 
 5 B. & Aid. 687 
 
 3 L. R. Ex. 299 
 2 L. R. Ex. 34 
 
 4 Dowl. 48. 
 11 Price 383 
 
 1 Keen 154 
 
 22 L. J. Ch. [N.S.] 1066 
 9 M. & W- 591 
 9 Price 89 
 
 31 L. J. Ex. [N.S.] 248 
 15 M. & W. 85 
 
 2 Bos. & P. 582. 
 
 5 Madd. 459 
 Straits L. R. 253 
 
 3 Q. B. 997 
 
 11 C.B. 977, s.c. 21 L.J. 
 93. &C. 577 . 
 
 23 L. J. Ch. [N.S.] 947 
 
 4 Fos. & Fin. 224 
 
 13 L. R. Ch. Div. 498 
 
 5 Esp. 72 
 
 C.P.[N.S.]97 
 
TABLE OF CASES CITED. 
 
 Henning v. Samuel . 
 Henwood v. Harrison 
 Herman, The 
 Hewitt v. Loosemore 
 Higgins, ex-parte 
 Hill v. Barclay 
 Hinton v. Dibbin 
 
 Hoare v. Osborne 
 
 Hochster v. De Latour 
 
 Hodson v. Sliarpe 
 
 Holdsworth v. Wise . 
 
 Hole v. Sittingbourne and Sheemess 
 
 Railway Co. 
 Holgate v. Slight 
 Holland v. Cole 
 Hope v. Carnegie 
 Hopkins v. Salembier 
 Hormajee v. Droye . 
 Horn v. Thornborough 
 Houlden v. Fasson 
 
 v. Smith 
 
 Howe v. Palmer 
 Howlett v. Tarte 
 Howley v. Knight 
 Hitber v. Steiner 
 Hnghes v. Buckland . 
 
 v. Hughes 
 
 Hume v. Druyff 
 Hyde v. Hyde 
 v. "Watts 
 
 2 Dowl. 766 
 
 7 L. R. C. P. 606 
 
 4 Rob. 228 
 
 9 Hare 449 
 
 27 L. J. Q. B. [U.S.] 27 
 
 18 Ves. 56 
 
 2 Q. B. 646 
 
 35 L. J. Ch. [N.S.] 345, s.c. 1 L. 
 
 22 L. J. Q. B. [N.S.] 455 
 
 10 East 350 
 
 7 B. & C. 794 . 
 
 PAGE. 
 
 . 534 
 . 420 
 . 154 
 . 621 
 . 277 
 . 367 
 . 192. 
 
 R. Eq. 585. 
 
 220, 336, 346- 
 . 351 
 . 75 
 . 175 
 
 30 L. J. Ex. [N.S.] 81 . . . 564 
 
 21 L. J. Q. B. [N.S.] 74 . . 474 
 
 1 H. & C. 67 . . ■ .356 
 4 L. R. Ch. Ap. 264 . . .619 
 5M. &W. 423 . . . .540 
 Mort. rind.] Rep. 197 . . . 248 
 3 Exch. 846 . . . . 132 - 
 6 Bing. 236 . . . 276- 
 14 Q. B. 841 . . . . 207 
 3B. &A.321 . . . .35 
 
 31 L. J. C.P. [N.S.] 146 . . 247 
 
 14 Q. B. 240, s. c. 19 L. J. Q. B, [N.S.] 3 481 
 
 2 Bing. N. C. 202 . . 539 
 
 15 M. & W. 346 . . . 1S2 
 15 M. & "W. 701 . . . 4» 
 8L. R.Ex. 214 . . .355 
 1 L. R. Pro. & Div. 130 . . 236 
 13 L. J. Ex. [N.S.] 41 . . 319- 
 
 Inchbald v. Robinson 
 Ionides v. Pender 
 
 v. Universal Marine Association 
 
 Irons V-. Smallpiece . 
 
 4 L. R. Ch. App. 388 . 
 9 L. R. Q; B. 531 
 32 L. J. C. P. [N.S.] 170 
 2 B. & Aid. 551 . 
 
 466 
 482 
 175 
 201 
 
 J. 
 
 Jack v. Mclntyre 
 
 Jackson v. Metropolitan Railway Co. 
 
 v. Thomason 
 
 James v. Irving 
 
 v. Pierce 
 
 Jarvis v. Dean 
 Jeffreys v. Conner 
 Jell v. Douglas 
 Jennings v. Moore 
 
 Jewan Doss Sahoo v. Shah Kaburooddeen 
 
 Johnson v. Mills 
 
 v. Mcholls . 
 
 Johnston v. Stear 
 Jones v. Ashburnham 
 v. Bright 
 
 *. Mills 
 
 -v. Smith 
 
 Josling v. Kingsford 
 
 12 CI. & Pin. 151 
 3 L. R. App. C. 193 . 
 31 L. J. Q. B. [N. S.l 11 
 10 Beav. 276 
 
 2 Liv. 132, s. c. 1 Yent. 269 
 
 3 Bing 447 
 
 28 Beav. 328 . 
 
 4 B. & Aid. 374 
 2 Vern. 609 
 
 325 
 662 
 107 
 547 
 174 
 270 
 547 
 235 
 573 
 
 6 W. R. P. C. 3, s. c. 2 Moore Ind. App. 
 390 ... 324 
 
 3 L. R. C. P. 22 . . . 558 
 1 C. B. 251, s. c. 14 L. J. C. P. rN". S.l 
 
 151 . . . . 539 
 
 33L.J. C.-P. [N.S.]130 . . 201 
 
 4 East 455 . . . .539 
 1 Dawson & Lloyd 304 '. ' 24 
 10 C. B. [N. S.] 788, s. c. 31 L. J. C. P. 
 
 [N.S.]66 . . " . 629 
 1 Hare 43, s. c. 11 L. J. Ch. [N. S.l 83, 
 
 and 12 L. J. Ch. [N. S.l 381 . 356, 573 
 32 L. J. C. P. [N. S.l 94 . .670 
 
TABLE OF CASES CITED. 
 
 K. 
 
 PAGE 
 
 Kemp v. Neville 
 Kennedy v. Green 
 Kettlewell v. Watson 
 Keyworth v. Hill 
 Kine v. Evershed 
 King v. Hoare 
 
 v. Inhabitants of Birmingham 
 
 v. Leake 
 
 v. Bossett 
 
 Kinlock v. Craig 
 
 — ; v. Secretary of State for India 
 
 Kirby v. Simpson 
 Kitchen v. Campbell 
 
 Knight v. Bulkeley . 
 
 v. Fergusson 
 
 Kymer v. Suwercropp 
 
 Lakshranaiyan v. Sivasamy Roy 
 
 Lall Mohun Haldar v. Mahadeb Battee 
 
 Lambe v. Eames 
 
 Lamond v. Biffe 
 
 Lamplough v. Braithwait 
 
 Langton v. Higgins . 
 
 Laugher v. Pointer . 
 
 Layard,i>. Maude 
 
 Leek v. Maestaer 
 
 Lee v. Griffin 
 
 v. Bisdon 
 
 v. Stevenson 
 
 v. Willock 
 
 Lefoy v. Flood 
 
 Le Neve v. Tie Neve . 
 
 v. Mile End New Town [Vestry] 
 
 Lenthal v. Lentbal 
 Levy v. Green 
 
 v. Moyland 
 
 Lewis v. Jones 
 
 v. Morris 
 
 L'Fit v. L'Batt 
 
 Lim Ah Yong v. Khoo Khay Chan 
 
 Limbrey v. Gurr 
 
 Lim Chye Peow v. Wee Boon Tek 
 
 Limpus v. London General Omnibus Co. 
 
 Lfan Sim Poh v. Lim Kin 
 
 Linford v. Fitzroy 
 
 Lloyd v. Attwood 
 
 — : — v. Guibert 
 
 — ■ — v. Lee 
 
 Lloyd v. Lloyd 
 
 Lockwood v. Nash 
 
 J.ong v. Collier 
 
 v. Crossley 
 
 Lovelace v. Curry 
 Lowther v. Carlton 
 Lyde v. Bussell 
 
 . 10 C. B. [N. S.] 523 . 
 
 
 
 . 213 
 
 . 3 M. & K. 699 
 
 
 
 . 621 
 
 . 21 L. E. Ch. Div. 685 . 
 
 
 
 573, 621 
 
 . 3. B. & Aid. 695 
 
 
 
 . 233 
 
 . 10 Q. B. 143 
 
 
 
 133, 213 
 
 . 14 L. J. Ex. [N. S.] 29 
 
 
 
 . 276 
 
 . 8 B. & C. 29 . 
 
 
 
 . 474 
 
 . 5B. &Ad. 469 . 
 
 
 
 . 292 
 
 . 2 T. & J. 33 
 
 
 
 . 357 
 
 . 3 T. B. 119, 783 
 
 
 
 . 164 
 
 . 7 App. Cases 619 
 
 
 
 . 532 
 
 . 10 Ex. 358, s. e. 23 L. J. M 
 
 C. 
 
 165, !■;:'. ■:■! 
 
 . 3Wils.304 
 
 
 
 . 243 
 
 ( 4 Jur. [N. S.] 527, s. c. 5 Jur 
 
 [N. ;■: .; 
 
 ■{ 817, 
 
 
 
 . 205 
 
 . 5 M. & W. 389 . 
 
 
 . 107 
 
 . 1 Camp. 109 
 
 
 . 100 
 
 L. 
 
 
 
 . 4 Mad. H. C. Bep. 216 
 . 9 W. B. [Indian] 193 
 
 
 . 454 
 
 
 . 454 
 
 . 10 L. B. Eq. 267, 6 L. B. Ch 
 
 .App 
 
 597. 475 
 
 . 3Q. B. 910 
 
 
 . 541 
 
 . 1 Sm. L C. 147 
 
 
 . 537 
 
 . 28 L. J. Ex. [N. S.] 252 
 
 
 . 166 
 
 . 5 B. & C. 547 . 
 
 
 . 232 
 
 . 4 L. It. Eq. 397 
 
 
 . 621 
 
 . 1 Camp. 138 
 
 
 . 197 
 
 f 1 B. & S. 272, s. c. 30 L.J. 
 •1 252 
 
 Q.B. 
 
 [N. S.] - 
 
 
 . 560 
 
 . 7 Taunt. 188 . 
 
 
 . 47 
 
 f E. B. & E. 512, s. c. 27 
 
 • I [N. S.] 263 . 
 
 L.J. 
 
 Q.B. 
 
 
 . 278 
 
 . 6 Yes. 605 
 
 
 . 586 
 
 . 4 L. J. Ch. Bep. 1 
 
 
 . 332 
 
 . 2 Wh. & T. 70, s. e. 3 Atk. 
 
 648. 
 
 356, 572 
 
 r 8 E. & B 1054, s. c. 27 L. J. 
 
 Q. B. 
 
 ■ J. [N. S.] 208 . 
 . 2 Liv. 109 
 
 
 . 294 
 
 
 . 174 
 
 . 27 L. J. Q. B. [N. S.] Ill 
 . 19 L. J. C. P. jN. y.]308 
 
 
 
 . 119 
 
 
 
 . 207 
 
 . 4 B. & C. 506 . 
 
 
 
 . 71 
 
 . 2 C. & M. 712 . 
 
 
 
 . 274 
 
 . 1 P. Wms. 526 . 
 
 
 
 . 455 
 
 . Straits L. B. 384 
 
 
 
 . 612 
 
 . 6 Madd. 151 . 
 
 
 
 . 270 
 
 . Straits L. B. 282 
 
 
 
 . 385 
 
 . 32 L. J. Ex. 34 . 
 
 
 
 . 193 
 
 . Straits L. B. 239 
 
 
 
 . 612 
 
 . 13 Q. B. 240 . 
 
 
 
 . 211 
 
 . 3 De G. & J. 614 
 
 
 
 . 574 
 
 . 1L. B.Q. B. 115 
 
 
 
 . 179 
 
 . IStr. 94 
 
 
 
 . 321 
 
 . 21 L. J. Ch. [N. S.] 596 
 
 
 
 . 220 
 
 . 18 C. B. 536 . 
 
 
 
 . 319 
 
 . 4 Burs. 269 
 
 
 
 . 127 
 
 . 13 L. B. Ch. Div. 388 . 
 
 
 
 . 625 
 
 ., 7T. E. 631 
 
 
 
 . 470 
 
 . 2 Atkyns 241 . 
 
 
 
 . 574 
 
 . 1 B. & Ad. 394 . 
 
 
 
 . 48 
 
TABLE OF OASES CITED. 
 M. 
 
 Mace v. Cadell 
 
 Macintosh, v. Haydon 
 
 Maclaren v. Stainton 
 
 Madoo Wissenauth v. Ballo Gunnasett 
 
 Mahomed Killubdass v. Vans Kennedy 
 
 Mainprice v. Westley 
 
 Manley v. Boycot 
 Manning v. Fitzgerald 
 
 • v. Taylor 
 
 Marsh v. Lee . 
 
 Martins v. Upcher. . 
 
 Mazzetti v. JoufEroy . 
 Mason v. Birkenhead Improvement Com- 
 missioners 
 v. Polhill 
 
 Mathin v. Crompa 
 Matthews v. Bag'shaw 
 
 v. Gooday . 
 
 Mayor of Lyons v. East India Co. 
 Mazetti v. Williams . 
 McCarthy v. Goold . 
 McConnell v. Johnston 
 McDougal v. Robertson 
 Mclntyre v. Belcher . 
 Meller v. Woods 
 Mellish v. Richardson 
 Meredith v. Heneage . 
 Mersey Dock Trustees v. Gibbs 
 Metcalfe v. Rycroft . 
 Micklethwait, In re . 
 Midland Counties Railway u.Oswin 
 Miles v. Gorton 
 Mills v. Farmer 
 Mitchell v. Jenkins 
 Mogg v. Baker 
 
 Mohindronauth Mitter v. Kysolauth 
 nerjee 
 
 Monil y. Lawson 
 
 Montefiore v. Browne . 
 Morant v. Chamberlin 
 
 Morgan v. Boys 
 
 Brundrett 
 
 v. Hughes 
 
 Jones 
 
 v. Thomas . 
 
 Morice v. Bishop of Durham-. 
 
 Morris v. Davies 
 
 Moule v. Cooper 
 
 Mountford v. Scott 
 
 Muhammad Ibrahim v. Gulam Ahm 
 
 Munden v. Duke of Brunswick 
 
 Munro v. Butt 
 
 Murray v. East India Co. 
 
 v. Mackenzie 
 
 Musgrave v. Dashwood 
 
 Ban- 
 
 ed 
 
 Cowp. 233 
 
 1 Ry. & Moo. 362 
 
 29 L. J. Ch. [N.S.] 401 
 
 Morton's [Ind.] Rep. 149 
 
 Perry's Oriental Cases 167 
 
 c. 34 L. J. Q. B. [N. S.1 
 
 .543 
 . 352 
 . 325 
 . 635 
 . 356 
 B. [N. S.] 
 
 470, 478 
 276 
 
 6 B. & S. 420, s. 
 
 229 
 22 L. J. Q. B. [ST. S.] 265 
 29 L.J. Ex. [N. S.] 24 
 1 L. R. Ex. 235 
 1 Wh. & T. L. C. 494 : 
 
 3 Q. B. 662, s. c. 11 L. J. Q 
 291 
 
 1 Dowl. 41 
 6 H. & N. 72, s. c. 29 L. J. Ex. [N. S.] 
 
 407 . . . . . 
 
 2 Dowl. 61 ... 
 
 1 Ld. Raymond, 340 
 14 Beav. 23 ... . 
 31 L. J.Ch. [N. S.l 282. 
 
 2 Moore P. C. C. 472 . 
 1 B. & Ad. 423 
 1 Ball. & B. 389 
 1 East 431 
 
 4 Bing. 441 
 32 L. J. C. P. [N\ S.] 254 
 
 5 L. J. Ch. [N. S.] 109 . 
 1 C. & F. 224, s. c. 9 Bing. 125 
 1 Sim. 542 . 
 1 L. R. Eng. & Ir.' Ap. 93 
 
 6 M. & S. 75 . 
 ] 1 Ex. 452 
 
 1 CoU. 74 
 
 2 Or. & Mee. 504 
 1 Meriv. 55 
 5 B. & Ad. 588 . 
 
 3 M. & W. 195 . 
 
 PAGE 
 . 164 
 
 . 536 
 . 476 
 . 41 
 204 
 
 470 
 
 . 326 
 
 . 235 
 
 . 611 
 
 . 348 
 
 316, 344 
 
 . 463 
 
 . 532 
 
 . 326 
 
 . 319 
 
 . 377 
 
 . 349 
 
 . 357 
 
 . 332 
 
 . 562 
 
 . 235 
 
 . 225 
 
 . 547 
 
 . 115 
 
 . 378 
 
 . 274 
 
 . 106 
 
 . 316 
 
 2 Eq. Ca. Abrid. 167, s. c. 4 Viner's Ab. 
 500 490 
 
 7 H. L. 241, s.c. 4 Jur. [N\ S.l 1201 . 573 
 6 H. & K 541, s. c. 30 L. J. Ex. 299 .294 
 
 3 My. & Cr. 661, s. c. 7 L. J. Ch. [N. S.l 
 247 . . . . . 547 
 
 f 1 Coryton's [Indian] Rep. 1 
 
 { 
 
 5 B. & Ad. 289 . 
 
 2 T. R. 225 
 1 Bro. P. C. 32 . 
 22 L. J. Ex. [K S.l 152. 
 10 Yes. 522 
 5 CI. & Fin. 163 . 
 1 Ld. Raymond 1477 
 
 3 Madd. 34, s. c. 1 Tur. 
 
 1 Bom. H. C. Rep. 236 
 10 Q. B. 656 
 8 E. & B. 738, s. c. 4 Jur 
 5 B. & Aid. 204. 
 10 L. R. C. P. 625 
 
 2 Vern. 63 
 
 . 106 
 
 . 211 
 
 . 351 
 
 . 172 
 
 340, 377 
 
 . 329 
 
 . 75 
 
 & Rus. 274 . 574 
 
 . 421 
 
 152, 301, 541 
 
 [N. S.] 1231 168 
 
 . 386 
 
 . 511 
 
 . 246 
 
TABLE OF CASES CITED. 
 
 N. 
 
 Nagapah Chitty v. Rachummah 
 Uapean v. Doe 
 ITazer v. Wade 
 Nelson v. Couch 
 
 v. Stocker 
 
 Mew "World v. King 
 ftitrophosphate Co. 
 
 St. Katherine Dock Co. 
 Norton v. Ellam 
 
 v. Powell 
 
 Uuttall v. Bracewell . 
 
 v. London and 
 
 
 PAGE 
 
 1 Strange's [Indian] Rep. 152 
 
 . 40 
 
 . 2 Sm. L. C. 476 
 
 . 625 
 
 . 31 L. J. Q. B. 5 
 
 . 478 
 
 . 15 B. [ST. S.l 99 
 
 . 28 L. J. Qh: [N. S.] 760 
 
 . 664 
 
 . 323 
 
 . 16 Howard 469 
 
 . 192 
 
 • | 9L.R, Ch. Div. 503 . 
 '. 2M.&W. 461 . 
 
 . 662 
 
 . 536 
 
 . 4M. &G. 42 . 
 
 . 319 
 
 . 2 L. R. Ex. 1 . 
 
 . 479 
 
 o. 
 
 Oakely v. Pasheller 
 
 . 10 Bligh. 548, s. c. 4. CI. & Fin. 207 . 458 
 
 Ogden v. G-rahain 
 
 . 31 L. J. Q. B. [N. S.] 26 . . 352 
 
 Oldfield v. Cobbett 
 
 3Beav. 432 . . .602 
 
 Ong Cheng Neo v. Yeap Cheah Neoh 
 
 Straits L. R. 314, s. c. 6, L.R.P.C. 381 634 
 
 Oriental Financial Corporation v. Over- 
 end, Gurney & Co. 
 
 ] 7 L. R. Ch. App. 152 . . . 458 
 
 Osprey, The 
 
 36 L. J. Adm. 10 154 
 
 Oursell, ex-parte . 
 
 lAmbl. 297 . . .164 
 
 Outram v. Moorewood 
 
 3 East. 346 ... 243 
 P. 
 
 5D. &L. 475 . . .276 
 
 Page, In re . 
 
 Palmer v. Flower 
 
 13 L. R. Eq.250 . . .547 
 
 ., ■p„ n j.i 
 
 2 Bing. 185 . . . 350, 469 
 2Salk. 597 . ... 276 
 
 ^^^^^^^^ u. rrdtu . . . . 
 Panton v. Hall . . . . 
 
 Paradise v. Sheppard 
 
 1 Dick. 136 . . . .602 
 
 Par doe v. Terret . 
 
 r 5 M. & G. 291, s. c. 12 L. J. C. P. [N.S.] 
 I 143 . . . 275,519 
 
 Parker v. Housefield . 
 
 f 2M.&K. 419, s. c. 4, L. J. C. P. [N.S.] 
 i 57 .... 349 
 
 24 L. J. Ch. [N". S.l 47 . . 602 
 
 Parkinson v. Chambers 
 
 
 2 East 314 ... 25 
 f 1 C. B. [N. S.l 399, s. c. 26, L. J. C. P. 
 
 5 [N. S.] 36 ... 324 
 
 Parry v. Jones .... 
 
 Parton v. Williams .... 
 
 3B. &Ald. 330 . . .133 
 
 Partriche v. Powlet .... 
 
 2Atk. 54. . . .246 
 
 Pasley v. Freeman .... 
 
 3 T. R. 51 . . . ' 24 
 
 Paul v. Birch .... 
 
 2 Atk. 621 ... 115 
 
 Payne v. Wilson .... 
 
 7 B. & C. 423 . . . 539 
 
 Peai-se v. Robins ; . . . 
 
 26 L. J. Ex. [N. S.] 183 . 467, 636 
 
 Pierce v. Corf '. . . . 
 
 9 L. R. Q. B. 210 " . . . 543 
 
 Pennant's case .... 
 
 3 Co. 63 . . . 376 
 
 Perkins v. Adcock .... 
 
 14 M. &. W. 808 ... 326 
 
 Perry Herrick v. Attwood . 
 
 f 25 Beav. 205, s. c. 27, L. J. Ch. [N.S.] 
 [ 121 . . . . 621 
 
 Perryman v. Lister 
 
 4 L. R. Eng. & Ir. App. 521 . . 631 
 
 Petrie v. Lamont 
 
 Car&M. 93 . . .234 
 
 Philadelphia and Reading Railway Co. 
 v. Derby 
 
 | 14 Howard 468 . . .194 
 
 Phillipo v. Munnings 
 
 2 My. &Cr. 309 . . 438 
 
 Phillips v. Bridge 
 
 9 L. R. 0. P. 48 . . 374 
 
 '<• v. Pearce 
 
 5B. &C. 433 . . . 431 
 
 
 31 L. J. Ch. [N. S.l 321 . . 323 
 33 L. J. Ex. TN. S.l 7 . . 276 
 
 • v. Ward 
 
TABLE OF OASES CITED. 
 
 Phyn v. Royal Exchange Assurance Co. 
 Pickard v. Bretz 
 
 v. Marriage 
 
 v. Sears 
 
 v. Smith 
 
 Pollard, In re 
 v. Smale 
 
 Powles v. Hider 
 
 Poynter v. Houston 
 Prickett v. Gratrex 
 Pratt v. Keith 
 
 7 T. R. 505 
 
 5 H. & N. 9. 
 
 1 L. R. Ex. Div. 364 
 
 6 A & E. 469 . 
 10 0. B. [N. S.] 47o 
 
 2 L. R. P. 0. 106 
 
 2 L. R. P. 0. 106 
 
 6 E. & B. 207, s.c. 25 L 
 331 
 
 3 Mer. 297 
 
 8 Q. B. 1020 . 
 
 33 L.J. Oh. [KS.1 528 
 
 PAGE 
 . 175 
 
 . 511 
 . 511 
 . 130 
 . 564 
 . 207 
 . 207 
 J. Q. B. [N. S.] 
 
 193, 208 
 . 586 
 . 213 
 . 353 
 
 Q. 
 
 Quarman v. Burnett 
 
 6M. & "W.499 
 
 233 
 
 E. 
 
 Rabbeth v. Squire 
 
 Radhabhai v. Shama 
 
 Radley v. London and North- Western 
 Railway Co. 
 
 Raja Jevra Das v. Richardson 
 
 Ramasami Padeiyatchi v. Virasami Padie 
 yatchi .... 
 
 Ram Narrain v. Nursiah 
 
 Randall v. Newson ■. 
 
 Rashleigh v. South-Eastern Railway Co. 
 
 Read v. Rann 
 
 • — — v. Steadman 
 
 Readhead v. The Midland Railway Oo. 
 
 Reeves v. Capper 
 
 Reg. v. Buchanan 
 
 v. East Mark 
 
 v. Elrington. 
 
 ■ v. London and South-Western Rail- 
 way Co. .... 
 
 v. Petrie 
 
 v. Renton 
 
 v. Silvester. 
 
 Rennie v. Robinson . 
 
 ' — v. Young 
 
 Rex. v. Adames 
 
 v. Chaplin 
 
 v. Oreevey 
 
 v. Paulkener 
 
 v. Hull Dock Oo. 
 
 v. Inhabitants of Eatington 
 
 v. Joddrell 
 
 v . Lsake 
 
 v. Lister 
 
 v. Lord Abingdon 
 
 v. Mary Mead 
 
 v. Sheriff of Middlesex 
 
 v. Tomlinson 
 
 1 v. Topham 
 
 • v. Trustees of Bridgewater 
 
 v. Whitnash 
 
 24 L. J. Ch. [N.S.] 203 . . 475 
 
 4 Bom. H. C. Rep. App. C. 155 388, 625 
 
 9 L. R. Ex. 71, on app. 10 L. R. Ex. 100 & . 
 further app. 1 L. R. App. cases 754, 461,661 
 
 2 Mad. H. O. Rep. 84 . . . 392 
 
 3 Mad. H. C. Rep. 272 ." 623 
 
 2 Strange's [Indian] Rep. 289 . 40 
 
 2 L. R. Q. B. Div. 102 ' . 668 
 
 10 0. B. 612 . . . 352 
 
 10 B. & 0. 438 . . . . 362 
 26Beav. 495 . . . 544,547 
 2 L. R. Q. B. 412 . . 193, 669 
 
 5 Bing. N. 0. 136 . . 201 
 8 Q. B. 883 . . . . 475 
 
 11 Q. B. 877 . . . . 288 
 
 255 
 
 31 L. J. M. C. [N.S.] 14 
 
 1 Q. B. 558 
 
 4"E. & B. 737 
 
 2 Ex. 216 
 
 33 L. J. M. O. [N.S.] 79 
 1 Bing. 147 
 2De.G.&J. 136, s.c. 27, L. J. 
 
 753 . 
 4 B. & Ad. 403 
 1 B. & Ad. 926 
 
 1 M. & Sel. 273 
 
 2 Mont. & Ayr 
 [BT.S.] 308 
 
 3 B. & C. 516 
 
 4 T. R. 177 
 1 B. & Ad. 403 
 
 5 B. & Ad. 469 
 1 Str. 478 
 1 Esp. 226 
 
 1 Burr. 542, s.c. 4. C. & P. 535 
 
 2 Dowl. 5 
 9 B. & C. 163 
 12 East. 546 
 9 B. & 0. 68 
 7 B. & C. 596 
 
 311, s 
 
 Oh. [N. 
 
 c. 4, L 
 
 78 
 
 289 
 173 
 317 
 429 
 £.]- 
 516 
 62 
 61 
 85 
 Exch. 
 207 
 61, 78, 589 
 475 
 62 
 292 
 239 
 81,85 
 239 
 276 
 62 
 . 589 
 62- 78 
 . 319 
 
TABLE OF CASES CITED. 
 
 TIT 
 
 Rex. v. "Wollee 
 
 • v. Wright . . 
 
 Rhodes v. Muswell Hill Land Co. 
 
 v. Swethurst 
 
 Rice v. Rice . 
 
 Richard v. Rohson . 
 
 Richardson v. Moore 
 
 Rickard v. Robson . 
 -«. Roberts v. Holmes 
 \ v. Mariett . 
 
 Robinson v. Davison 
 
 v. Pett 
 
 Robson v. Drammond 
 
 Rodyk v. Williamson 
 
 Roe d Dingley v. Sales 
 
 Gregson v. Harrison 
 
 Holland v. Hart 
 
 Rolt v. Cox . 
 
 Ross v. Johnson 
 
 Routledge v. Hislop . 
 
 Rudow v. Great Britain Assurance Co. 
 
 Rumball v. Ball 
 
 Russell v. Russell 
 
 Ruston v. Robin 
 
 Ryder v. Wombwell 
 
 Mort. Ind. Rep. 221 . 
 
 3 B. & Ad. 681 . 
 
 30 L. J. [N.S.] Ch. 509 
 
 4 M. & W. 42, s. c. 6 M. & W. 351 
 23 L. J. Ch. [U.S.] 289 
 
 31 Beav. '244 . 
 27 Beav. 629 . 
 
 31 L. J. Ch. [N. S.] 897 
 6 Scott N. R. 730 
 2 Saund. 182 
 
 1 Bro. C. C. 63 
 
 2 Wh. & T. L. C. 206, s.c.3P.Wms. 
 2B. &Ad. 303 
 
 [Malacca case^-not reported.] 
 
 1M. AS. 297 . 
 
 2T. R 425 
 
 6 L. R. Ch. App. 678 . 
 
 2Wils. 253 ... 
 
 5 Burr. 2827 . 
 
 29 L. J. M. C. [N S.l 90 
 17 L. R. Ch. Div. 600 . 
 10 Mod. 38 
 IMoU. 525 
 
 49L.J.-Ch. [N. S.] 262 
 4 L. E. Ex. 32, 38 
 
 249 
 
 PAGE 
 
 . 248 
 . 294 
 . 263 
 . 537 
 . 621 
 . 336 
 . 547 
 220, 346 
 . 534 
 . 73 
 . 356 
 611 
 235 
 27 
 366 
 368 
 621 
 513 
 192 
 314 
 648 
 536 
 347 
 625 
 518 
 
 Sadler v. Dixon 
 
 Saffron Walden Society v. Rayner 
 Saltmarsh v. Barrett 
 Sampson v. Easterby 
 Sanders v. Pope 
 Sandilands, ex-parte 
 Sandiman v. Breach . 
 Saville v. Campion -. . 
 Sc'arfe v. Morgan 
 Schiebel v. Eairbain . 
 Schneider v. Lezardi . 
 Scott v. Stansfield 
 Scratton v. Brown 
 Semple v. London and Birmingham Rail- 
 way Co. 
 Seymour v. Greenwood 
 Shepherd v.. Hills 
 
 —j — : v. Lloyd 
 
 Shoolbool Koolal v. Domun . 
 Short u. Frank 
 Shrewsbury v. Gould 
 
 Simpson v. Nicholls . 
 
 Pinclair v. Wilson 
 
 Siner v. Great Western Railway Co 
 
 Sish v. Hopkins 
 
 Skipwith v. Green 
 
 Smith v. Baker 
 
 . v. Cologan 
 
 v. Cuff 
 
 v. Eggington . 
 
 v. Harwich 
 
 v. Hodson 
 
 — * — v. London and South- Western Bail, 
 way Co. . 
 
 8M. &W. 89". . 
 
 14 L. R. Ch. Div. 406 . 
 
 30 L. J. Ch. (N. 8.) 853 
 
 9 B. &C. 505 . 
 
 12 Yes. 282 
 
 21 L. J. Q. B. [N. S.J 342 
 
 7 B. & C. 96 
 
 2 B. & Aid. 503 . 
 4M. &W. 270 . 
 
 1 R. & P. 388 . 
 
 9 Beav. 431 
 
 3 L. R. Ex. 220 . 
 4B. &C. 485 . 
 
 ■ 9 Sim. 209 
 
 ' 30 L. J. Ex. [N. S.] 189 
 11 Ex. 55, s. c. 25 L. J. [N. S. 
 
 2 T. & J. 490 . 
 
 10 W. R. [Indian] 253 . 
 
 3 Jui-. [O. S.] 341 
 2B. &Ad. 487 . 
 
 ; 3 M. & W. 240, 5 M. &W. 702 
 
 ' 24 L. J. Ch. [N. S.537 
 3 L. R. Ex. 150, s. c. 4 L. R. Ex. 117 
 Ambler 793 
 
 1 Stra. 610 
 8 L. R. C. P. 350 
 2T. R. 189 n. . 
 
 6 M. & S. 160 . 
 
 7 A. & E. 167 . 
 26 L. J. C. P. [N. S.] 257 
 
 2 Sm. L. C. Ill 
 
 ' 5 L. R. C. P. 98, s.c. 6 L. R. C. P. 14 
 
 Ex.6 
 
 [note] 
 
 318, 
 
 175 
 572 
 331 
 352 
 367 
 236 
 319 
 114 
 319 
 274 
 502 
 211 
 325 
 
 501 
 
 194 
 474 
 356 
 454 
 355 
 352 
 
 319 
 164 
 662 
 357 
 325 
 666 
 666 
 163 
 274 
 352 
 «66 
 
 661 
 
TABLE OF OASES CITED. 
 
 Smith v. Scott 
 
 • v. Wilson 
 
 Snow v. Teed . 
 Solomon v. Lawson 
 Sorrell v. Carpenter 
 Spaight v. Cowne 
 Spencer's case 
 Spencer v . Parry 
 Stafford [Earl of] v. Buckley 
 Steele, ex-parte 
 Stein v. Yalkenhuys< 
 Stephen v. Coster 
 Stephens v. Badcock 
 Stephenson v: Hart 
 Stevens v. Copp 
 Stevenson v. Blakelock 
 Stirling v. Maitland 
 Stubb v. Sayers 
 Sturgis v. Darell 
 Surrey Canal Co. v. Hall 
 Sutcliffe v. Booth 
 Sutton v. Sutton 
 Sweeting v. Sweeting 
 Syeds v. Hay . 
 Sykes v. Sykes 
 
 4 Taunt. 126 
 
 
 JTJXUHiv 
 
 . 175 
 
 3 B. & Ad. 728 . 
 
 
 . 183 
 
 9 L. R. Eq. 622 . 
 
 
 . 475. 
 
 15 L. J. Q. B. [N. S.] 
 
 253 
 
 . 419 
 
 2 P. Wms. 482 . 
 
 
 . 356 
 
 1 H. & M. 359 . 
 
 
 . 574 
 
 1 Sm. L. C. 43 . 
 
 
 . 369 
 
 3 Ad. & E. 331 . 
 
 
 . 674 
 
 2 Ves. Sen. 170 . 
 
 
 . 532 
 
 33 L. J. Q. B. [N. S.] 
 27 L. J. Q. B. [N. S.] 
 
 326 
 
 . 363 
 
 236 
 
 . 541 
 
 1 Wm. Bl. 413 
 
 
 . 228 
 
 3 B & Aid. 354 . 
 
 
 . 164 
 
 4 Bing. 476 
 
 
 . 192 
 
 4 L. R. Ex. 20 . 
 
 
 . 368 
 
 I'M. & Sel. 535 . 
 
 
 . 115 
 
 5 B. & S. S40 . 
 
 
 . 367 
 
 2 Keen 255 
 
 
 . 331 
 
 6 H. & N. 120 . 
 
 
 . 386 
 
 1 M. & G. 392 . 
 
 
 . 292 
 
 32 L. J. Q. B. [N. S.] 
 
 136 
 
 . 479 
 
 1 Tidd's Prac. 446 
 
 
 . 326 
 
 33 L. J. [N. S.] Ch. 211 
 
 544, 547 
 
 4 T. R. 260 
 
 
 . 228 
 
 4 L. R. C. P. 645 
 
 
 . 326 
 
 T. 
 
 Tait v. Levi 
 
 Tanner v. Scovell 
 
 Taraknath Mookhopadhya v. Collector 
 
 of Hooghly 
 Tasker v. Shepherd . 
 Tatern v. Chaplin 
 Tayler v. Dowlen 
 Taylor v. Barclay 
 
 v. Best 
 
 v. Caldwell 
 
 v. Forbes 
 
 v. Phillips 
 
 Tebbs, ex-parte 
 Tempest v. Fitzgerald 
 Tharp v. Macdonald 
 
 Tharpe v. Stallwood 
 
 Thebbut v. Holt 
 
 Thomson v. Royal Exchange Assurance Co 
 
 v. Shakespear 
 
 Thompson v. Cartwright 
 
 v. Powles . 
 
 v. Pritchard 
 
 v. Shakespear 
 
 Thornber v. Wilson . 
 Thornton v. Hargreaves 
 
 v. Howe 
 
 v. Meux 
 
 Tichborne v. Mostyn 
 
 Tirwahier Kirnstnappa Mudali, deceased, 
 
 In re 
 Titi v. Pow . . 
 
 Tooke v. Hollingworth 
 Topham v. Constantine 
 
 14 East 481 
 14 M. &.W. 28 
 
 4 Beng. L. R. Oiv. 37 . 
 
 30 L. J. Ex. [N.S.] 207 
 
 2 H. Bl. 133 
 
 4 L, R. Ch. Ap. 697 
 
 2 Sim. 213, s. c. 7 L. J. Ch. [N.S.] 65 
 23 L. J. C. P. [N.S.] 89 . 
 
 32 L. J. Q. B. [ISr.S.] 161 
 11 East 315 . 
 
 3 East 155 
 9 Dowl. 151 
 3 B. & A. 680 . 
 3 L. R. Pro. Div. 76 
 5M. &G.760, s. C.12L 
 
 241 . 
 1 Car. & P. 282 . 
 1 M. & S. 30 
 29 L. J. Ch. [N.S.I 278 
 
 33 Beav. 178, s.c. 33 L.J 
 
 . 175 
 232, 674 
 
 . 214 
 
 . 377 
 . 366 
 . 649 
 541 
 300 
 352 
 519 
 317 
 363 
 36 
 649 
 
 2 Sim. 194 
 
 3 M. & S. 410 . 
 1 De Gex, P. & J. 399 
 24 L. J. [N.S.] Ch. 667 
 
 7 East 544 
 
 31 L. J. Ch. [N.S.] 767 
 M & Mai. 43 . 
 
 8 L. R. 0. P. 29 
 
 1 Mad. H. C. Rep. O. 0. 
 
 1 Hare 405 
 5 T. R. 215 
 1 Taun. 135 
 
 J. C. P. [N.S.] 
 
 . 534 
 
 . 274 
 
 . 468 
 
 •220, 336 
 
 Ch. [N.S.] 234 
 
 .622 
 
 . 541 
 
 . 324 
 
 . 344 
 
 . 377 
 
 . 104 
 
 . 219 
 
 . 109 
 
 . 601 
 
 60 . .8 
 
 349 
 164 
 357 
 
TABLE OF CASES CITED. 
 
 xxi 
 
 Townsend v. Wilson 
 
 Trustees of British. Museum v. White 
 
 Rugby Charity v. Merryweather 
 
 Tuffnel v. Page 
 Tutou v. Sanoner 
 Tweedale v. Tweedale 
 Twyne's Case 
 Tylee v. Webb 
 
 United Ports Insurance Co. v. Hill 
 University of London v. Yarrow 
 
 Vallejo v. Wheller . 
 Vane's [Sir Harry] Case 
 Varley v. Coppard 
 Vavasor v. Baile 
 Venkata Subha v. Giri Ammal 
 Vesey v. Jansen 
 
 Vestry of St. Pancras v. Batterburg 
 
 Vice v. Anson 
 
 Vint v. Padgett 
 
 Viset Girt v. Attorney- General 
 
 IB. & Aid. 608 
 2 S. & S. 594 
 11 East 375 
 2 Aik. 37 
 3H.&N. 280 
 23 Beav. 341 
 1 Sim. L. C. 1 
 6 Beav. 552 
 
 TL 
 
 5 L. R. Q. B. 395 
 
 26 L. J. Ch. [N. S.] 430 
 
 V. 
 
 Cowp. 143 
 
 6 How. St. Trials, 119 . 
 
 7 L. R. C. P. 505 
 
 1 Salt 52 
 
 2 Mad. H. C. Rep. 113. 
 
 1 S. & St. 69 . 
 
 2 C. B. [N. S.] 477, s. c. 26 L. 
 246 . 
 
 2 Car. & P. 21 . 
 
 28 L. J. Ch. [ST. S.] 21 
 
 6 Dow. 136 . 
 
 PAGE. 
 
 . 234 
 
 . 220 
 279, 292 
 
 . 291 
 
 . 511 
 
 . 571 
 
 . 357 
 
 . 574 
 
 326 
 219 
 
 J. C. P. 
 
 114 
 152 
 365 
 276 
 454 
 331 
 
 474 
 255 
 357 
 291 
 
 W. 
 
 Waddington v. Oliver 
 Wadsworth v. Queen of Spai 
 Wainman v. Field 
 Wake v. Harrop 
 Waldo v. Caley 
 Walker v. Brewster . 
 
 v. Dixon 
 
 v. Maitland . 
 
 Walmesley v. Walmesley 
 Ward v. Broomhead . 
 Ward's Trust, In re . 
 Ware v. Cuinberlege . 
 v. Egremont . 
 
 Warlow v. Harrison . 
 
 Warrick v. Warrick . 
 Way v. Modigliani 
 Webb v. Ward 
 Wedge v. Berkeley . 
 
 Wellbeloved v. Jones 
 
 Wells v. Foster 
 
 West v. Dobb 
 
 ; v. Shuttleworth . 
 
 Whitehead v. Hughes 
 Whittaker v. Jackson 
 Whittome v. Lamb 
 Wfllcock v. Terrell 
 Williams v. Arkle 
 
 v. Clough 
 
 v. Earle 
 
 2 N. R 61 
 
 17 Q. B. 171, 215 
 
 Kay 507 
 
 6 H. & 1ST. 768 . 
 16 Ves. 206 
 5 L. R. Eq. 25 . 
 
 2 Stark. 281, s. c. 9 B. & C. 387 
 5 B. & Aid. 171 
 
 3 J. & L. 556 . 
 
 7 Ex. 726 
 
 7 L. R Ch. App. 727 
 20 Beav. 503 . 
 
 4 De G. M, & G. 473 
 28 L. J. Q. B. [N. S.] 18, s. c. 29 L. J. 
 
 Q. B. [N. S.] 14 
 
 3 Atkyns, 291 . 
 2 T. R. 30 
 
 7 T. R. 296 
 6A.&E. 663 . 
 
 1 Sim. & St. 40, s, c. 1 L. J. 
 11 
 
 8 M. & W. 149 . 
 
 4 L. R. Q. B. 634, s. c. 5 L 
 460 . 
 
 2M. &K. 684 . 
 
 2 Dowl. 258 
 33 L. J. Ex. [N.S.] 181 
 12 M. & W. 813 
 
 3 L. R. Ex. Div. 323 
 7 L. R. Eng. & Ir. App. 606 
 1 Ad. & E. 376 . 
 3 L. R Q. B. 739 
 
 Ch 
 
 R 
 
 24 
 541 
 547 
 381 
 490 
 466 
 
 24 
 175 
 586 
 174 
 547 
 490 
 573 
 
 543 
 . 574 
 . 469 
 . 326 
 . 133 
 
 psr. s.] 
 
 . 490 
 
 205, 532 
 . Q. B. 
 
 369, 374 
 . 219 
 . 222 
 
 243, 245 
 . 475 
 . 532 
 . 340 
 . 276 
 
 365, 368 
 
TABLE OF CASES CITED. 
 
 Williams v. Jones 
 
 v. Paul 
 
 v. Russell 
 
 ■ v. Williams 
 
 Wilkinson v. Verity 
 Willis v. Gipps 
 Wilson v. Brett 
 
 v. Foore 
 
 v. Poulter 
 
 Windham v. Clere 
 Winter v. Anson 
 
 v. limes 
 
 Wood v. Veal 
 
 Wood gate v. Ridoubt 
 
 Woodyer v. Hadden . 
 
 Wooldridge v. Boydell 
 
 Woonkur Pershad Rustobee v. Phool 
 
 Koomarie Beebee . 
 Wordsworth v. Queen of Spain 
 Worsley v. Earl of Scarborough 
 Worthington, In re . 
 Wyllie v. Pollen 
 
 Yates v. Sherrington . 
 Young v. G-atien 
 
 Y. 
 
 
 PAGE 1 v 
 
 13 East 439 
 
 . 539- 
 
 6 Bing. 653 
 
 . 318 
 
 1 C. B. 429 
 
 . 352. 
 
 2 L. R. Oh. App. 294 . 
 
 . 600 
 
 6 L. R. C. P. 206 
 
 . ?51 
 
 5 Moo. P. C. C. 379 . 
 
 , . 504 
 
 11 M. &W. 113. 
 
 . 192 
 
 Bull. N. P. 336 . 
 
 . 513. 
 
 2 Str. 859 
 
 . 666 
 
 Cro. Eliz. 13 
 
 .. 211 
 
 3 Russell, 488 . 
 
 . 574 
 
 4 M. & Cr. 101 . 
 
 . 586- 
 
 6 B. & Aid. 454 . 
 
 . 288- 
 
 4 F. & P. 202 . 
 
 . 607 
 
 5 Taunt 125 
 
 . 279- 
 
 1 Doug. 16 
 
 . 469> 
 
 7 W. R. [Indian] 67 . 
 
 . 484 
 
 20 L. J. Q. B. [N. S.] 488 
 
 . 152 
 
 3 Atkyns 392 . 
 
 . 574 
 
 5 C. B. 511 
 
 276, 519- 
 
 32 L. J. Ch. [N. S.] 782 
 
 572, 621 
 
 11 M. & W. 42 ; s.c. 12 M. & W. 855 . 242 
 
 2 M. & S. 603 . 
 
 . 519- 
 
ixin 
 
 ADDENDA ET CORRIGENDA. 
 
 Page. 
 
 iv. 
 
 VI. 
 
 vi. 
 
 xvii. 
 
 xxxvi. 
 
 lii. 
 
 lxii. 
 
 lxiv. 
 
 lxxix. 
 
 lxxxvi. 
 
 o. 
 
 cix. 
 
 1 
 
 11 
 
 11 
 
 12 
 
 12 
 
 13 
 
 33 
 
 38 
 
 38 
 
 41 
 
 51 
 
 63 
 
 75 
 
 103 
 
 119 
 
 133 
 
 216 
 
 222 
 
 224 
 
 247 
 
 308 
 
 385 
 
 509 
 
 512 
 
 5S7 
 
 COO 
 606 
 618 
 633 
 656 
 
 6S5 
 
 694 
 
 1 Sir John Claridge. 
 
 Line 23 ; after " accused" — insert an asterisk and at the bottom of the page add the fol- 
 lowing foot-note : Vide Jour. Ind. Arch., "Vol. 4, 1850, p. 643, and do., Vol. 5, 1S51, 
 p. 255. 
 marginal entry— for " 1896" read " 1796." 
 foot-note ; last line but one — for " 24t4" read " 24th." 
 
 last line ; for " in the house of One witness" read " in the presence of One witness." 
 foot-note; 4th line — for " departed his life" read "departed this life." 
 last line ; for " those Eeports" read " these Reports." 
 line 10 ; for " Compay" read " Company." 
 
 first foot-note ; line 2— for " will be formed" read " will be found." 
 first line; for "in the latter's time" read "in his time." 
 line 22 ; for "doubted of the legality" read "doubted the legality." 
 „ 31 ; for " is that one of" read " is that of one." 
 „ 32 ; for " geateful" read " grateful." 
 „ 5 ; [Kamoo v. Basiett~\ — in opening statement : after the words " pleaded not guilty" 
 
 add " and justified his acts as Commanding Officer of the Regiment." 
 „ 18 ; [Kamoo v. BasseW] after the words " former case,against the defendant" add foot- 
 note " Shaik Dassee v. /. J. Bassett, 20th September 1808 — action for the recovery 
 " of damages for severe ill-treatment, &c, — not reported." 
 „ 6 ; for " prejuniary" read " pecuniary." 
 „ 29, 30, 33 ; for " Patullo" read " Pattullo." 
 ,, 16 ; for "practise" read "practice." 
 foot-note [a.]— for " Sir Thomas Claridge" read 
 line 41 ; for " paintiff" read " plaintiff." 
 ' on" read " or." 
 
 ' contihance" read " continuance." 
 <C. 23" read "C. 3." 
 ' appears" read " appear." 
 ' judgement" read " judgment." 
 'moths" read "months." 
 marginal note.— bottom of the page— for " 18S2" read " 1842." 
 line 41 ; [Tan Kee v. Hong Keat~\ — for " It appear" read "It appeared." 
 ,, 12; head-note in Brown v. Municipal Commissioners — for "means" read "mean.' 
 „ 49 ; dele inverted commas. 
 
 „ 5 ; bead-note in Ibbetson v. Brown, for " is" read 
 last line but one — for " bon" read " bond." 
 marginal note — Choa Choon Neohy. Spottiswoode— for ' 
 foot-note [6.]— for " 178" read " 1878." 
 line 19 ; for "demonstrates" read "demonstrate." 
 
 „ 11 ; for " Teher" read " There." 
 foot-note [a. J— for " 1844" read " 1884." 
 Shaik Madar v. Jaharrah — insert year " 1875" under 
 line 3 ; head-note — Gottlieb v. Leicester — for "had had" read "has had." 
 ,, 26 ; Golam Kader v. Shagapah Chetty — for " in the point" read "on the point." 
 14; head-note — Vermont v. Municipal Commissioners — for "suppositious" read " sup- 
 posititious," 
 last line, but one — for "Prvy" read "Privy." 
 last line — for " unture" read " untrue." 
 
 line 2; opening statement — Wyndham v. Hansen — for " emyloyment" read "employment." 
 marginal note — for " Pood" read " Ford." 
 
 3rd column ; " parchaser " read " purchaser," and 4th column ; for " .purchaser" read " pur- 
 chase." ' 
 line 15, 33 ; 2nd column of Index— heading — Caveat Emptor. No. 2 — for " implied war- 
 rant" read " implied warranty." 
 „ 35 ; for " devided " read "divided." 
 
 46 ; 
 
 40; 
 
 6; 
 
 i; 
 5; 
 
 34; 
 
 "are.' 
 
 ' January 19" read " February 10.' 
 
 ' March 5.' 
 
 Note. — For correct quotation and spelling of " cases cited" in this ivorjc, 
 vide " Table of -Gases Cited." — supra. 
 
ABBREVIATIONS. 
 
 " Ag." stands for 
 " C. J." 
 
 " Acting." 
 
 " Chief Justice." 
 
 " E. I Co. 
 
 " East India Company." 
 
 "G.N." 
 
 " Government Notice or Notification." 
 
 " J." 
 
 "J. tM." 
 
 " Jour. Ind. Arch.'' „ 
 
 "Judge." 
 
 " Judge and Magistrate." 
 
 " Journal of the Indian Archipelago." 
 
 " Jim." or "jr." „ 
 
 " Junior." 
 
 '•M." 
 
 " Malacca." 
 
 " P." 
 
 " Penang." 
 " Recorder." 
 
 " K, I. L. Co." 
 
 " Senr." or " Sr." 
 
 " Eeport of the Indian Law Commissioners.'' 
 " Senior," 
 
 " S." 
 " S. S-" 
 
 " Singapore " 
 
 " Straits Settlements," 
 
CASES 
 
 HEAED AND DETERMINED 
 
 IN 
 
 HER MAJESTY'S SUPREME COURT 
 
 OF THE 
 
 STRAITS SETTLEMENTS, 
 
 1808—1884. 
 
 YOLUME I. 
 
 [Civil Cases.] 
 KAMOO v. THOMAS TURNER BASSETT. 
 
 A "Khidmiggur," or table-servant, to a Military officer stationed at the Settlement Penanq. 
 
 in time of peace, is not a " camp-follower," and is not subject to military law, nor ■ 
 
 liable to be tried by Court-martial. - Stanley, E., 
 
 No man is subject to military jurisdiction, but an officer, soldier, or sepoy, or some 1808. 
 
 one connected with the army ; nor is any offence cognizable by the military tribunal, 
 
 or within its jurisdiction, but some act which is a breach of military duty or a neglect of November 25. 
 
 military discipline : and no military person is liable to punishment for breach of military 
 
 law or discipline, except in consequence of a trial, and the sentence of a Court-martial. 
 
 By the Charter of 1807, not only was the English Criminal law extended to this 
 Colony, but civil injuries are to be redressed according to English law ; and that even 
 as regards offences or wrongs') committed or done, before the Charter, [a] 
 
 This was an action of assault, battery and false imprisonment, 
 in which the plaintiff complained of an assault, on the 13th of 
 November, 1807, and false imprisonment from that period to the 
 28th January, 1808 ; and laid his damages at 600 dollars. 
 
 The defendant pleaded not guilty. 
 
 It appeared that the plaintiff, who was a native of Bengal, 
 engaged himself at Calcutta, in June, 1806, to serve the defend- 
 ant, who was Lieutenant-Colonel of the 20th Regiment, Bengal 
 Native Infantry, as a " Khidmiggur," or table-servant, in Pe- 
 nang, at $6 per month; "that in the course of that year, the 
 " plaintiff received very severe treatment from the defendant, 
 " being at various times inflicted punishments by no means pro- 
 " portionate to any offence he could have committed, sometimes 
 " receiving 20 and at other times 30 and 40 lashes, besides being 
 " ordered into confinement." 
 
 On the 20th July, 1807, the plaintiff received 20 strokes with 
 a rattan by order of the defendant, whereupon he complained to 
 [a] See Reg. v. Willans, Magistrates' Appeals, Vol. III. of these Eeports. 
 
9 
 
 CIVIL OASES. 
 
 Kamoo 
 
 V. 
 
 Bassett, 
 
 Starlet, R. tlie Police Magistrate, who at that time, exercised jurisdiction 
 180s " in the island, under certain Regulations of the Govern or-in- 
 Council : " the Magistrate having informed Colonel Bassett of the 
 " circumstance, the latter despatched a sepoy who seized the 
 " plaintiff, and brought him before the defendant, who 
 " then ordered the plaintiff into confinement, without any trial 
 " or crime being alleged against him, having previously inflicted 
 " on him twenty stripes more with a rattan ; that on the said 13th 
 " November, 1807, the defendant ordered the plaintiff to be - 
 "brought into the Grand Parade, and there without any trial by 
 " Court-Martial or otherwise, and in the presence of the whole 
 " Battalion of Sepoys and Officers, after two sepoys had received 
 " corporal punishment, under the sentence of a Court-Martial, 
 " ordered the plaintiff to be tied up to a stake, and to receive 100 
 " lashes with a cat-of-nine-tails," on the plea that plaintiff had 
 " traduced his character, by representing him as a bad master; 
 "that having inflicted this cruel punishment, the plaintiff was 
 " ordered into confinement in the Sepoy Guard, where he remained 
 "for the further space of two months and a half, and afterwards 
 " released from defendant's service [a] ." 
 The parties appeared in person. 
 
 Car. Adv. Vult. 
 
 December 7. Stanley R. I am clearly of opinion that the plain- 
 tiff is entitled to a verdict. This is an act which cannot be justified 
 by the Mutiny Act of 27 Geo. II., or the articles of war framed under 
 it ; nor yet by the native articles of war, which had been selected 
 in the year 1796, under the directions of Sir R. Abercrombie, when 
 he was Commander-in-Chief, and promulgated by the Governor- 
 General in Council, and which I believe, is the code by which the 
 native troops are considered to be now governed. The defendant's 
 acts were contrary to the usage of the army, and are repugnant to 
 every principle of justice. No man is subject to military jurisdic- 
 tion, but an officer, soldier or sepoy; nor is any offence cognizable 
 by the_ military tribunal, or within its jurisdiction, but some act 
 which is a breach of military duty, or a neglect of military discipline 
 [b], and in no case can any person be subject' to military punish- 
 ment, except in consequence of atrial, and the sentence of a 
 Court-martial. The defendant, however, has undertaken to be 
 accuser and judge in his own cause, and inflicted military punish- 
 ment, expressly contrary to the articles of war. It is true this was 
 done before the Charter of Justice had been promulgated here, 
 and before this Court had been established ; but yet the Charter 
 extends in terms to civil injuries which have been sustained, as 
 well as to crimes that have been .committed before the Charter ; 
 and as punishments have been, in certain cases, inflicted for the 
 latter, I am unable to say that civil remedies should not also be 
 had for the former, although under certain limitations, where 
 they were lately done, before the Charter was proclaimed. The 
 
 lxJ-IIx. Th , e P\ e -% dings h ««>in *hew that the old English practice was adopted„and ' 
 that the plaintiff gave as " pledges to prosecute— John Doe and Richard Roe.* 
 [I>J See In re Madden, Habeas Corpus cases, Vo\. II. of these Reports 
 
STRAITS SETTLEMENTS. 
 
 KiMOO 
 
 v. 
 Bassett. 
 
 object of the Charter is to protect the Natives from oppression STA1 JgoJ' R) 
 and injustice, and I shall always consider it my duty, to guard their 1 
 persons, liberties and properties, with the same watchful care as I 
 should the best European or British Subjects; but as the case hap- 
 pened before the Chnrter, and the law might not be so generally 
 known, I shall not give as large damages in this case, as I should 
 have done for a similar injury, if it had been recently committed, 
 or since the establishment and introduction of the British Laws. 
 In apportioning damages, I must also take into consideration, all 
 the circumstances of mitigation as well as aggravation, the state 
 of society here, and the description of persons, of whom many of 
 the inferior classes are formed, and also the pecuniary circum- 
 stances of the defendant, which are represented as being far from 
 affluent. Moderate damages would, I think, have all the effect 
 of making the law known, and of preventing similar practices in 
 future, but if such outrage upon the laws should ever occur again, 
 I shall think it my duty to give very large damages indeed. In 
 a former case against the defendant of a trivial nature compared 
 to the present, I assessed the damages at 20 dollars ; in the 
 present, I shall give 150 dollars, which, though small, I trust will 
 have the effect of preventing the repetition of such practices as 
 these in future. The plaintiff, I am clear, cannot be considei'ed 
 under the description of a camp-follower, as the army was in 
 cantonment in time of peace ; and the offence, if any, was only 
 cognizable by the Civil Magistrate, and the Civil Judicature which 
 then existed here— but, even if he is to be considered as falling 
 under that description of persons, who were subject to Military 
 Law, he should have been tried by a Court-martial, before such 
 a public punishment was inflicted upon him ; and the act itself 
 having been ordered by an officer who was acting as judge in his 
 own cause, for a supposed injury done to himself, was most 
 unjustifiable. 
 
 Verdict for plaintiff } $150 with costs. 
 
 EAST INDIA COMPANY v. D. BROWN. 
 
 A person in possession of land, is liable to the Crown for quit rent accrued during 
 the time of his predecessors in title. 
 
 The possession of receipts for quit rent for a later period than that claimed, raises a 
 presumption in law that the previous rents had been satisfied,- which presumption, 
 unless rebutted, is sufficient to debar the Crown from recovering such previous rents. 
 
 Action to recover Re. 1.56 pice, for 6 years quit rent from 1st 
 January, 1809, to 1st January, 1815, alleged to be payable on 
 lands situate at "Soonghy Cluan," containing 1 orlong and 6 
 jumbas, comprised in Grant No. 1036, at 26 pice per orlong per 
 annum. Plea: never- indebted. Issue thereon. 
 
 This action was commenced on the 16th September, 1818, on 
 the " Revenue Side" of the Court, and was brought to test the 
 claims of the East India Company to arrears of quit rent, due 
 during a time when the lands were held by the defendant's pre- 
 decessors in title. From the evidence, it appeared that the lands 
 
 Penang. 
 
 Rice, E., 
 1819. 
 
 September 22. 
 
V. 
 
 Beown. 
 
 4 CIVIL OASES, 
 
 Rice, R., in question were granted on 1st August, 1803, by the East India 
 
 1818 - Company to one Chay Peng in fee, and by him on 6th March, 1807, 
 
 East India conveyed to one James Scott in fee, and on 1st March, 1815, was, 
 
 Company under an order of Court dated 12th February, 1812, sold and 
 conveyed by the Sheriff to the defendant in fee. The defendant 
 produced two receipts for quit rent for 1816 and 1817, under the 
 signature of John Hall, the Deputy Collector of Customs, who 
 was dead at the date of this trial. The defendant from the date 
 of his purchase in 1815, remained in possession of the land up to 
 date, his predecessors in title were shewn to have been in posses- 
 sion, the whole of the previous years. Certain letters and Govern- 
 ment proclamations were also put in, in evidence, but nothing 
 turned on them. 
 
 The parties appeared in person. 
 
 Rice, R. entertained no doubt that the defendant, being 
 in possession of the land, was liable for arrears of quit rent, even 
 although they had accrued during the time of his predecessors 
 in title, but held that the receipts for quit rent at a later period 
 than that claimed in this action, being in the possession of the 
 defendant, it raised a presumption in law that all previous quit 
 rents on the land had been paid, and the plaintiffs not being able 
 to rebut that presumption, judgment should be for the defen- 
 dant, [a] 
 
 [a] Allusion is made to this case in Papers and Correspondence, Land Revenue 
 Administration, S, S., 1823-37,— published by Hon'ble W. E. Maxwell, 1S84.-— p. 50. 
 
 ISHMAHEL LAXAMANA v. EAST INDIA COMPANY. 
 In re Tkebeck. 
 
 Penang. _ "Where a Solicitor in his pleadings stated, that the plaintiff [his client] submitted 
 
 himself to the Civil Jurisdiction of this Honourable Court. 
 
 Claridge,R., Held, that he had been guilty of a gross insult to the Court, and he was summarily 
 1829. struck off the roll of Law Agents, [a] 
 
 August 20. 
 
 This was an action brought by the above named " Laxamana 
 or Admiral" of the then ex-Rajah of Qnedah, as his Agent and 
 Attorney, against the East India Company, to recover $10,000 
 for damages, and money had and received by the defendants for 
 the use of the said ex-Rajah. It appeared that on the 21st 
 November, 1809, the Rajah of Quedah, through his Laxamana, 
 deposited in the Government Local Treasury, the sum of $5,000, 
 to be kept until the arrival in this Settlement of the Laxamana, 
 that the latter never again arrived in Penang, and was murdered 
 in 1822, during the Siamese invasion of Quedah, which 
 
 [a] This case is reported not as deciding any principle of law, but partly as 
 matter of history of an extraordinary Order of Court, and partly as having some bear- 
 ing on the cased Naibsk tv. Rajah of Quedah, [infra] on the subject of the recog- 
 nition of the latter by the Government. See also Reg. v. Tunkoo Mahomed Saad 
 and Oes., Criminal Rulings, Vol. II. of these Reports, 
 
STRAITS SETTLEMENTS. 
 
 began in 1821. The Rajah of Quedah [and family] in con- 
 sequence of this invasion, sought refuge in this Island, and 
 subsequently died at Malacca, where he had been taken to as 
 hereinafter mentioned. His son, the heir apparent to the throne 
 of Quedah, the plaintiff's principal, being considerably distressed 
 in his precuniary circumstances, applied to the Local Government 
 for the money to be repaid to him, but this was not granted ; it 
 would appear from the statement in the petition, that the sum 
 so deposited had been made use of by the defendants. In conse- 
 quence of this refusal on the part of the Local Government, the 
 ex-Rajah or Heir apparent, caused this suit to be instituted 
 on the 1st August, 1829, through his Laxamana, who, it was 
 alleged, was the Heir of the deceased Laxamana, and " according 
 to the laws, religion, manners, and customs of the Kingdom of 
 Quedah," was the successor of his deceased father, and entitled to 
 receive the said sum. The above named Charles Trebeck, a 
 solicitor of the Court, acted as the Law Agent of the Rajah and 
 Laxamana in this suit. 
 
 In 1800, the East India Company [the defendants], through 
 the then Lieutenant-Governor of Penang, Sir George Leith, 
 Baronet, entered into a Treaty with the Rajah of Qnedah, [the 
 father of the plaintiff's principal,] which being translated was 
 as follows : — 
 
 Translation of a Treaty of Peace, Friendship and Alliance, 
 entered into between Sir George Leith, Baronet, Lieutenant-Governor 
 of Prince of Wales' Island, on the part of the British Government and 
 the King of Quedah, Heaoodeen. 
 
 [Seal of Heaoodeen, 
 SULTAN MOODA, 
 Son of Ma-Alum Shah, King of Quedah. J 
 
 " In the real - of the Ilejirat of the Prophet, (the peace of the most high God be 
 " upon him,) one thousand two hundred and fifteen, the year Ha, on the twelfth day of 
 " the mouth Maharrum, Wednesday. "Whereas this day this writing sheweth that Sir 
 " George Leith, Baronet, Lieutenant Governor of Pulo Pinang, [on the part of the 
 " English Company,] has agreed on and concluded a Treaty with 
 " His Majesty, the Eajah Mooda of Pnrlis and Quedah, and all the 
 " officers of the State and Chiefs of the two countries, and to be on 
 " friendly terms by Sea and Land as Ion-,' as the Sun and Moon 
 " retain their motion and splendour : the articles of which Treaty 
 " are as follows : — 
 
 " Article 1st. — The English Company are to pay annually to His Majesty of 
 " Purlis and Quedah, ten thousand dollars as long as the English shall continue iu pos- 
 " session of Pulo Pinang and the country on the opposite coast hereinafter mentioned. 
 
 " Abticle 2nd. — His Majesty agrees to give to the English Company for ever, all 
 " that part of the Sea Coast, that is between Kwala Krian and the Biver side of Kwala 
 " Mooda, and measuring inland from the sea-side sixty orlongs, the whole length 
 " aboveinentioned, to be measured by people appointed by His Majesty and the Company's 
 " people. The English Company are to protect this Coast from all enemies, robbers and 
 " pirates, that may attack it by sen, from north or south. 
 
 " Article 3rd. — IPs Majesty agrees that all kinds of provisions wanted for Pulo 
 " Pinang, the ships of war, and Company's ships may be bought at Purlis and Quedah 
 " without impediment, or being subject to any duty or custom ; and all boats going 
 " from Pulo Pinang to Purlis and Quedah for the purpose of purchasing provisions are 
 " to be furnished with proper pass-ports for that purpose to prevent impositions. 
 
 " Article 4th. — All slaves running away from Purlis and Quedah to Pulo Pinang 
 " or from Pulo Pinang to Purlis and Quedali shall be returned to their owners, 
 
 Claridge, E. 
 1829. 
 
 Ishmahel 
 
 Laxamana 
 
 v. 
 
 E. I. Co. 
 
 In re 
 Trebeck. 
 
 [Seal of Biu- 
 dsihara Paduka 
 Sri M^l i i Raja 
 of Quedah. 1 
 
 [Seal of Wan 
 Nga Abdullah.] 
 
6 
 
 CIVIL CASfiS. 
 
 Clabidge, E. " Article 5th.— All debtors running from their creditors from Purlis and Quedah 
 1829. " to Pub Pinang or from Pulo Pinang to Purlis and Quedah, if they do not pay their 
 
 " debts, their persons shall be delivered up to their creditors. 
 
 Ishmahel " Article 6th.— His Majesty shall not permit Europeans of any other nation to 
 
 IiAXAMANA " settle in anv part of his dominions. 
 
 v. " Article 7th. — The Company are not to receive any such people as may be 
 
 E. I. Co. " proved to have committed rebellion or high treason against His Majesty. 
 
 In re " Article 8th. — All persons guilty of murder, running from Purlis and Quedah 
 
 Thebeck. " to Pulo Pinang or from Pulo Pinang to Purlis and Quedah, shall be apprehended and 
 " returned in bonds. 
 
 " Article 9th.— All persons stealing chops (forgery) to be given up likewise. 
 " Article 10th, — All those who are or may become enemies to the Company, 
 " His Majesty shall not assist with provisions., 
 
 " Article 11th— All persons belonging to His Majesty bringing the produce of 
 " the countries down the rivers, are not to be molested or impeded by the Company's 
 " people. 
 
 " Article 12th. — Such articles as His Majesty may stand in need of from Piilo 
 " Pinang are to be procured by the Company's Agents, and the amount to be deducted 
 " from the gratuity. 
 
 " Article 13th. — As soon as possible after the ratification of this Treaty, the 
 " arrears of gratuity now due, agreeable to the former Treaty and agreement, to His 
 " Majesty of Purlis and Quedah, are to be paid off. 
 
 " Article 14th. — On the ratification of this Treaty, all former Treaties and 
 " agreements between the two Governments to be null and void. 
 
 " These fourteen articles being settled and concluded, between His Majesty and the 
 " English Company, the countries of Purlis and Quedah and Pulo Pinang shall be as 
 " one Country, and whoever shall depart or deviate from any part of this agreement, 
 " may the Almighty punish and destroy him ; he shall not prosper. 
 
 " This was done and completed, and two Treaties of the same tenor and date inter- 
 " changeably given between His Majesty and the Governor of Pulo Pinang, and sealed 
 " with the seals of the State Officers immediately officiating under His Majesty, in order 
 " to prevent disputes hereafter." 
 
 In 1821, as stated, Quedah was invaded by the Siamese, the 
 Eajah had come over to Penang with his family, including his 
 Heir apparent, the Plaintiff's principal, for refuge, at the sugges- 
 tion of the local Government. On the 20th June, 1826, after the 
 Siamese had made themselves masters of Quedah, a treaty was 
 concluded by Major Burney, for and on behalf of the East India 
 Company, and the King of Siam, by which the East India Com- 
 pany recognized the rights of Siam. over Quedah. By this Treaty 
 the ex-Rajah of Quedali is styled the " former Governor of Que- 
 dah" and by Article 13 it is provided among other things that — 
 
 "The English engage with the Siamese . . .not to permit the former 
 " Governor of Quedah, or any 6f his followers, to attack, disturb or inj ure -in any manner, 
 " the Territory of Quedah or any other Territory subject to Siam. The English 
 " engage that they will make arrangements for the former Governor of Quedah, 
 " to go and live in some other country, and not at Prince of Wales' Island, or 
 " Prye, or in Perak, Salangore, or any Burmese Territory. If the English do not 
 " let the former Governor of Quedah go and live in some other country as here engaged, 
 '• the Siamese may continue to levy an export duty upon paddy and rice in Quedah!" 
 
 Immediately on the conclusion of this Treaty, the ex-Rajah and 
 his family, including the Heir apparent aforesaid, who were still 
 refugees in Penang, were detained by the East India Company 
 as State prisoners, and subsequently removed to Malacca, where 
 the ex-Rajah remained a State prisoner till his death, as aforesaid. 
 It was whilst the Heir apparent was so detained in Malacca, that 
 he commenced the present proceedings in this Court against the 
 East India Company through his Laxamana. Mr. Trebeck it 
 appears, was a Solicitor and Advocate of the Calcutta High Court 
 
STRAITS SETTLEMENTS. 
 
 1 
 
 E. I. Co. 
 
 In re 
 Tkebeck. 
 
 and had been so, for a period of foi'ty-three years. On the 4th Claeidge,R., 
 
 October, 1827, he was admitted as a General Agent of this Court, J 
 
 and in fact was the first lawyer enrolled by the Court under the Ishmahel 
 second Charter. By the provisions of the Charter of 1826, it is Laxamana 
 enacted, that the Court had authority " at its pleasure, either 
 " assigning a lieason, or without assigning any Reason whatever, 
 " to withdraw or vacate any Permission " or License which shall, 
 " at any time, be granted to any Person or Persons to act, gene- 
 " rally or specially, as the Agent or Agents of any suitors orparti- 
 " cular Suitor of the said Court." It was then the practice of the 
 Court, for the plaintiff to state in his Petition of Complaint, that 
 he "submitted himself to the jurisdiction of the Court in the parti- 
 cular ease in hand. In the present occasion, the plaintiff's Peti- 
 tion of Complaint, as drawn up by Mr. Trebeck, began by stating : 
 " Your petitioner is an inhabitant of Prince of Wales' Island 
 " aforesaid, and, in respect of the matter hereinafter complained 
 " of, submits himself to be subject to the civil jurisdiction of this 
 " Honorable Court." The defendants on the 8th August, merely, 
 pleaded the Statute of Limitations [six years] in answer to the 
 action. On the case coming on for hearing "before the Court 
 this day, 
 
 Trebeck, the plaintiff's Agent, rose to open the case on behalf 
 of his client, but 
 
 Claridge R, called on the Agent for the defendants, and asked 
 whether he had observed any particular averment in the first 
 clause of the Petition, as he the Recorder, thought it was his 
 duty as the Company's Agent to have done so. 
 
 Cannier', for the defendants, stated that he had not observed 
 anything particular in the clause. 
 
 Glaridye R, said, he was surprised at that, for. he considered 
 the clause as passing the grossest insult upon the Court and its 
 jurisdiction. That he would not sit there and permit such state- 
 ments to be made ; and that he should call rypon the Agent of the 
 plaintiff to state, if he could, any justification for such conduct. 
 Anything more insulting than the clause in question could not be 
 conceived, when it was known that every inhabitant of this 
 Island, whosoever he might be, was subject to the jurisdiction of 
 the Court; and that-he could net and would not listen to any 
 petition framed in such highly, givss and insulting language to 
 His Majesty's Court. He, thereupon called upon Mr. Trebeck to 
 justify himself, and stated that unless the Court was fully satisfied, 
 the most serious consequences would ensue to him. 
 
 Trebeck. May it please Your Lordship. I am called upon 
 in this stage of the case, and before I am suffered to open my 
 client's case, to justify my professional conduct. This I am fully 
 prepared to do, premising, that neither my client, nor his prin- 
 cipal, the unfortunate King of Queduh, nor myself, could have 
 had the most distant motive or wish to state any facts which 
 could in the least be offensive to the Court ; nor ought any 
 matters stated in a petition, with a view to avoid legal objections, 
 be construed to be offensive, where no offence could possibly be 
 meant. My Lord, the statement in the petition was made by me 
 
CIVIL CASES. 
 
 Claridge, E. as the professional adviser of the plaintiff and his principal, and 
 
 1829 
 
 ishmahel 
 
 Laxamana 
 
 V. 
 
 E. I. Co. 
 In re 
 
 Tkebeck. 
 
 I shall endeavour to shew that the wording was true, proper and 
 justifiable. I know, my Lord, that the defendants having pleaded 
 the Statute of Limitations in such a case as the present, will 
 drive me at all points ;. but at all points am I ready to meet them. 
 I know, that one of the points that they may endeavour to make 
 is, that I have not obtained Administration from the Ecclesias- 
 tical side of this Court. I am ready to meet them on that point 
 and say that my client is a subject of the King of Quedah, 
 and I am at a loss to know how the Patent of the King of 
 England establishing a Christian Ecclesiastical Court here, 
 can extend itself over the Mahomedan subjects of the King 
 of Quedah. But, I shall be prepared in due time, to meet that 
 part of the case. It was for the express purpose of avoiding the 
 plaintiff' submitting himself to the Eccleciastical jurisdiction of 
 this Coutt, that I inserted the general expression in the jurisdic- 
 tion clause complained of, and stated that he submitted himself 
 to the Civil not Ecclesiastical jurisdiction of the Court, knowing 
 that considerable doubts exist as to the extent of the Ecclesias- 
 tical jurisdiction of this Court, and the power to compel natives 
 to take out administration, [a] I hope that this cause will not 
 require me to go farther into that subject. As the legal adviser 
 of the Plaintiff, I, from caution, not from disrespect, inserted the 
 words I have done, and had! not done so, I think I should not 
 have done my duty to an unfortunate man, who, through the 
 means of the plaintiff, is calling for that which, if he is not 
 deprived of, may prevent the cruel state of want to which he has 
 been driven, for these two years past. 
 
 Glaridge E, (addressing himself to Mr. Patullo). Mr. 
 Patullo, you, I believe, are Secretary to the Government ; do you 
 know whether the Government of this Island, recognizes any 
 person to be King of Quedah ? 
 
 Mr. Patullo. " No, my Lord, I believe not." 
 
 Glaridge E. Then do not let us hear anything more as to the 
 King of Quedah. 
 
 Trebeck. This is certainly the first time I have heard that 
 the Government here does not recognize there is a King of 
 Quedah ! Have they forgotten the man who for these last two 
 years has been reduced to penury, who sought British protection, 
 and at one time found it ? They have forgotten the son of the 
 Grantor of this Island, and they have now [with what justifi- 
 cation is but known to themselves] forgotten to pay my client the 
 tribute under which this very Island is holden. My Lord, I know 
 of no act whatever which has been done either by the present 
 King of Quedah, or by his late father, by which either of them 
 have, in any wise forfeited, or on their part relinquished, the 
 sovereignty of the Kingdom of Quedah; and it would be best 
 not to enquire too narrowly into that subject. My client is in 
 fact and in truth, King of Quedah ; and this Island is within his 
 
 [a] On this, see Re Tirwabier JHrnstnappa Mu^ali, deceased, I Mad, JI. C. Rep. 
 Q. G'.» p. 60. * 
 
STRAITS SETTLEMENTS. 
 
 9 
 
 Kingdom, and tributary to him, were justice done to him. 
 prepared, if necessary, to shew, that his seeking protection here, 
 according to the Laws of Nations, so far from being a relinquish- 
 ment, of Sovereignty, is a confirmation of his Sovereign rights, 
 as from the protecting party. I know not what arrangements 
 were made at the time of the King of Quedah taking refuge in 
 this Island, but I do know that he submitted to some reduc- 
 tion in the tribute ; and that certain salaries were paid to his officers 
 who were driven away by the Siamese invasion : and I know that 
 my client was appointed to the office of Laxamana, and continued 
 to receive the salary of that office, from the Defendant Company, 
 and did receive it regularly for many years, and until the Gov- 
 ernment of this country, chose to stop that salary, on the com- 
 mencement of this action. I suggest, therefore, in point of law, 
 whether there may not be a sort of concurrent jurisdiction of 
 this Court ; and that the establishment of this Court did not 
 vary the Sovereign . right of the King of Quedah. "Why the 
 treaties with the King of Quedah are not to be made pub- 
 licly known, when the people are supposed and expected to 
 obey them, I know not ; but this I do know, that those which 
 have met the public eye did not grant to the King of England, 
 the Company, or to any other power, the Sovereignty of this 
 Island; nor did it more than particularly grant the power of 
 trying for certain offences. Shall, then, the United Company of 
 themselves set up and pretend that they have even the shadow of 
 Sovereignty ? The doing so would be but little short of Treason : 
 for if any Sovereignty was relinquished by the King of Quedah, 
 it could only have been to His Gracious Majesty the King of 
 England, and not to the Company. The United Company cannot 
 Kse or exercise actual Sovereignty in any part of India. They 
 ba\e power ; but that can only be such power as the law has 
 given them. No such power exists in this Island. But, my 
 Lord, this has drawn me into matter rather beyond that imme- 
 diately connected with the previous question, of whether I may 
 be permitted to open the Plaintiff's case or not ; and I do trust 
 that I have fully stated, why I have thought it my duty to be 
 guarded in the first clause of the petition, and had I not been so, 
 I should have been derelict in my duty to my employers. 
 
 Claridge E, said, that he was not satisfied with the explana- 
 tion that the plaintiff's Agent had given ; and that he could not 
 sit there and hear the jurisdiction of the Court questioned, and 
 it was impossible for any Judge to have listened to such language 
 as had that day been addressed to the Court, without feeling 
 obliged to mark his disapprobation of it in the strongest 
 manner. The Agent must take the consequences of having not 
 only stated such matter in the petition, but of the declarations 
 which he had thought necessary to make, of matters of a most 
 dangerous tendency ; and calling upon the Registrar of the 
 Court, directed him to strike Mr. Trebeck's name off the Eoll of 
 Law Agents. 
 
 Trebeck hereupon rose and stated the great injury which 
 would be sustained'by his clients and himself} by the proceedings 
 
 I am Claridge.R., 
 
 1829. 
 
 IsHMAHEL 
 
 Laxamana 
 
 v. 
 E. I. Co. 
 
 In re 
 Teebeck. 
 
io 
 
 CIVIL CASES. 
 
 1829. 
 
 ishmahel 
 
 Laxamana 
 
 V. 
 
 E. I. Co. 
 
 In re 
 Trebeck. 
 
 Clabidge, e, which had been adopted. He appealed to the learned Eecorder, 
 i " '"' as a Judge, as a Barrister and as an Englishman, to whom free- 
 dom of speech was a privilege, whether in his performance of his 
 duty to the best of his abilities, unmarked by any professional 
 frauds, without any blame upon his professional conduct, but only 
 upon a matter of form in pleading, he was to be deprived, after a 
 career of nearly five and forty years in the profession, and in 
 various of branches of it, of his means of support, and a slur to 
 be cast upon his conduct, which at most, could only be construed 
 into overzeal for his client, equally an unfortunate man as him- 
 self. He offered to amend the petition as the Court might direct, 
 hoping that the Court, as all the plaintiff's witnesses were in 
 attendance, would allow him to proceed as a special Agent in 
 this action. 
 
 Claridge E, said something had been said about the rights 
 of a Barrister addressing the Court with freedom in the discharge 
 of his duty to his client. No one could set a higher value on the 
 privilege, than he did, as a member of the profession ; and that 
 God only knew how entirely he disclaimed any wish to abridge 
 it. This Court exercised all the powers of the Court of Chancery, 
 King's Bench, &c, in England, and could any one for a moment 
 suppose that any one of the mosb learned and eminent persons 
 at the head of those Courts, would tolerate a Barrister asserting 
 before him, that there existed in England, a jurisdiction con- 
 current with that of the Legislature, and exercised by a foreign 
 Prince, within the Bealm of England, and to whom the country 
 had paid tribute. It was impossible to allow any Agent who had 
 used these and other expressions, to remain on its Rolls any 
 longer, and he therefore must make the order he had already 
 made, — he must strike the present petition off the files, and also 
 refuse Mr. Trebeck's request either to hear the case, or admit 
 him as a special Agent therein. If Mr. Trebeck had any proposal 
 to make, it must be by petition, in the usual way. The Regis- 
 trar would take care, that if the Laxamana amended his petition, 
 that no improper matte r was introduced into it, particularly mat- 
 ters reflecting on the East India Company, the Government or 
 the Judges. 
 
 Plaintiff's petition struck off the File — his Law Agent struck of 
 the Rolls, [a] 
 
 The petition was never afterwards amended, and the note 
 
 _ [o] The following is a copy of the minute, made by the Registrar of the order 
 given on this occasion, which is also to be found among the Records of the Court. 
 Prom it, it would appear, the real and 01% ground for the order, was that mentioned 
 in the marginal note at the head of this case ; 
 
 " Thursday, the 20th day of August, 1829. 
 
 Court opened. 
 
 Present. 
 
 The Honorable Sir John Thomas Claridge, Knt., Recorder. 
 
 Ishmahel Laxamana — Plaintiff. 
 
 The East India Company— Defendants. 
 Plea— 
 
 Cause oalled ou for hearing. 
 
STRAITS SETTLEMENTS. 
 
 11 
 
 thereon shews that it was strupk off the files as ordered. Mr 
 Trebeck appealed against the order made as to himself ; to the Jus- 
 tices of the Court, consisting of the Honorable Eobert Fullerton, 
 Governor of Prince of Wales' Island, and President of the Court, 
 and the Honorable Robert Ibbetson, the Resident Councillor, by 
 three petitions. The first of these is dated 9th December, 1829 [a] , 
 the next 19th May, 1830, and the third, 5th June, 1830. To the 
 first of these petitions, the said Justices replied, that " as the 
 " Professional Judge had thought proper to direct the petitioner's 
 " name to be struck off the list of practitioners, the Court would 
 " not restore him to his former position, and they could not there- 
 " fore comply with the prayer of his petition." On the Court being 
 further asked by the Registrar, at the petitioner's request, if it 
 was also intended to prohibit the petitioner from acting as an 
 Agent specially, said that " petitioner's name having been struck 
 " cff the list, they could not admit him to practise at all." To the 
 second of these petitions no reply was given, and on the 3rd peti- 
 tion beirig presented, pressing for a reply, the following minute 
 was recorded : " The Judges of the Court on consideration of the 
 " address, see no reason for altering the decision already commu- 
 " nicated to Mr. Trebeck." In the second of these petitions is 
 the following paragraph : " That he [meaning Sir John Claridge] 
 " afterwards found he had acted with rashness is clear, from his 
 " having through his new friend and eleve, Mr. Lawes, [an Agent 
 " of the Court,] communicated thrice with me in the course of 
 " the following 24 hours, that if I would petition the Court, 
 " acknowledging my supposed error, he would restore me to my 
 " standing, but I revolted at doing so, feeling that as a profes- 
 " sional man, I had done no more than my duty, and that as a 
 " gentleman, I could not sue, where the offence was committed 
 " by the other party. I therefore replied to all the offers sug- 
 " gesting, that as Sir John Claridge must be fully aware of how he 
 " had wronged me, and injured those who were looking to me for 
 " my professional exertions, it was entirely resting upon his own 
 " conscience, as an honest man, to do me justice, without his 
 
 Action to recover Spanish Dollars 10,000 damages sustained on account of money 
 had, received and advanced. 
 
 Petition filed 1st August, 1829, read. 
 
 Plea filed 8th August, 1829, read. 
 
 Mr. Trebeck for the Plaintiff. 
 
 Mr. Caunter for the Defendants. 
 
 Before the Court would allow Mr. Trebeck to open his case, ho is called upon to 
 explain the meaning of the introduction of the following words in the commencement 
 of his petition, which, as they stand, the Court consider highly insulting to its dignity : 
 
 " That your Petitioner is an inhabitant of Prince of Wales' Island aforesaid, and, 
 " in respect of the matter hereinafter complained of, submits himself to be subject to the 
 " Civil Jurisdiction of this Honorable Court." 
 
 Mr. Pattullo, the Secretary to Government being in Court is asked by the Honora- 
 ble the Recorder if there is any Person at this moment recognized by Government as 
 the King of Quedah, and to which Mr. Pattullo replied " I believe not." 
 
 Mr. Trebeck failing to afford any satisfactory explanation of his conduct, It is 
 ordered that the Eegistrar of the Court do forthwith strike the said petition off the files 
 of the Court, and further that he do strike out the name of Mr. Trebeck as an Agent and 
 Attorney of the said Court from the Roll." 
 
 [a] Sir Thomas Claridge had then left the Colony iu consequence of his re-call 
 See Preface, 
 
 Claridge, R. 
 1829. 
 
 Is HM AH EL 
 
 Laxamana 
 
 V. 
 
 E. I. Co. 
 
 Jit re 
 Trebeck. 
 
12 
 
 CIVIL CASfiS, 
 
 Clabidge,R. " calling upon me as a professional man, to submit my clients 
 1829. « rights, if for the unworthy purpose of my own professional 
 ; advantage." [a] 
 
 To] Mr. Trebeck after being struck off the Bolls, acted as a Conveyancer, and in the 
 latter part of 1830, was appointed Agent to the Rajah of Quedah. This post he. held, 
 though evidently with little or no pecuniary advantage, till his death in Singapore on 
 21st October, 1831.— J. W. N. K. 
 
 ishmahel 
 Laxamana. 
 
 V. 
 
 E. I. Co. 
 
 In re 
 The beck. 
 
 WILLIAM CAUNTER v. EAST INDIA CO. 
 
 Pjsnang Where the Defendants offered the Plaintiff the post of " Law Agent to the Com- 
 
 pany," and the plaintiff accepted the offer, subject to a guarantee being given for his 
 
 Malkin, R. continuance in the office, and in reply the defendants wrote him, that his appointment 
 1833 ' would be " subject to confirmation or otherwise, of the Court of Directors." 
 
 Held, that this reservation in favour of the Court of Directors, was not to be 
 
 April 6. understood only as a power to be exercised at once, but also extended to their annulling 
 the Plaintiff's appointment at a future time, if its continuance became, in their opinion, 
 undesirable. 
 
 By the Charter of 1826, the Court of Judicature consisted of the Governor as Pre- 
 sident the Recorder, and the Resident Councillors as Judges : the Recorder having 
 been re-called, and the titles of " Governor" and " Resident Councillor" changed to those 
 of " Resident" or " Commissioner," and " Deputy Resident." 
 
 Held, that the suspension of the Court by the local authorities during the period 
 that this was so, was an unnecessary and improper act,— for the principal officer of the 
 Defendant Company, by whatever name called, was impliedly at liberty under the 
 Charter, to act as head of the Court, and the principal officer resident in the Settlement 
 under him, to act as the third Judge ; and that the title " Governor" and " Resident 
 Councillor," in the Charter, was merely the official designation of those officers as 
 then known, and a change of such their designation, did not prevent them from 
 sitting as Judges of the Court, [a] 
 
 Held, also that the suspension not being the legal and necessary consequence 
 of the alteration in Government, but an unauthorized act of the local authorities, 
 [6] the Plaintiff could not be deprived of his right to act as Law Agent of the 
 Company, and was entitled therefore to recover the salary which he would have 
 earned, had the local authorities not fallen into the error, [c] 
 
 The payment by the Defendants to the Plaintiff, of the amount of his judg- 
 ment and costs, does not prevent the Defendants afterwards appealing, against 
 such judgment. 
 
 This was an action for the recovery of Rs. 19,700 for arrears 
 of salary as the Honorable Company's Law Agent in Penang at 
 Es. 600 per month, from the 1st July 1830 to the date of 
 his petition before the Court. It appeared from the docu- 
 ments called for by the Paintiff and admitted on the part of 
 the defendants, that he had been engaged by the late Governor 
 Fullerton at the period, and at the rate of salary abovementioned, 
 and under a guarantee exacted and accorded by the late Governor 
 in Council, that the Plaintiff's appointment should be subjected to 
 the confirmation on otherwise of the Court of Directors ; that the 
 plaintiff continued discharging the duties of Law Agent to the 
 Company until about the end of June 1830, when, just before the 
 abolition of the 4th presidency, [Penang] he was officially inf oria- 
 
 [a] See "Vernon Allen v. Meera Pullay and others, 26th Sept., 187?, infra. 
 '&] See Preface — time of Sir John Cl&ridge, R. 
 
 "cj By Ords. 3 and 30 of 1867, the Governor and Resident Councillors, 
 ceased to be Judges of the Courti See also Ord. V, 1878 s. s. 4—7. 
 
STRAITS SETTLEMENTS, 
 
 13 
 
 ed by the Secretary of the Straits Government, that in conse- 
 quence of the alteration of the establishment by order of the 
 Supreme Government, in accordance with instructions received 
 from the Court of Directors, his services as Law Agent would be 
 dispensed with after the last day of the month. The Plaintiff 
 remonstrated, claiming the terms of his guarantee; his application 
 was referred to the Supreme Government, and he was answered 
 that in consequence of the abolition of the Government and the 
 cessation of the functions of the Court of Judicature, his appoint- 
 ment ceased as a matter of course. On the revival of the Courts 
 operativeness in June, 1832, the Plaintiff again applied and ten- 
 dered his services to Governor Ibbetson, and was again answered 
 that the decision of the Supreme Government formerly conveyed 
 to him was conclusive on the subject. Upon the arrival of the 
 Eecorder [Sir B. Malkin] he commenced this suit against the 
 Company for the arrears of his salary from the period of his ceas- 
 ing to be paid. This in substance, was the Plaintiff's case, and 
 he appeared in person. 
 
 . Balhetchet, on the part of the East India Company, produced 
 a copy of a letter from the Court of Directors ordering the aboli- 
 tion of the Government of the Straits Settlements, and directing 
 the Supreme Government to have their orders carried into effect ; 
 also an original letter of that Government, grounded upon the 
 former, instructing Governor Fullerton as regarded the intended 
 reduction. He contended that the miuute of Governor Fullerton 
 in Council, upon which Mr. Cauhter had built his guarantee, 
 contained no specification as to the manner in which the Court 
 of Directors' confirmation or otherwise should be conveyed to him 
 and it was enough that their pleasure was made known to him 
 through an official authority ; which it had been even through that 
 authority from which he had received his appointment. It was 
 true that Mr. Caunter's name did not appear in the Court of 
 Directors' letter as one of the Company's servants to be put out 
 of office, and it would have stood singular, and marked with a 
 distinction not deemed necessary towards officers of much higher 
 rank and longer services, had it been so distinguished, for except- 
 ing of such officers as were recommended for the formation of the 
 new establishment, not a name was mentioned. In fact the order 
 of the Court of Directors, upon whose approbation or disapproba- 
 tion depended the continance of Mr. Caunter's situation, which 
 had been newly annexed to the Government, went to abolish at 
 once the entire fabric of the old establishment arid to create a new 
 one. It was not necessary in doing the first to particularise, 
 where all was included ; and as neither Mr. Caunter's name nor 
 office was mentioned in the new arrangement, it was clear that the 
 Court of Directors considered him as dismissed in common with 
 all the old establishment, and not one of those required to be 
 incorporated in the new. In reading over the late Governor Pul- 
 lerton's Minute of Council authorizing Mr. Caunter's appointment, 
 some stress had been laid upon the appellation there given to it 
 of a " judicial appointment," seemingly with a view to connect 
 it with the establishment of the Court which had again become 
 
 Malkin, E. 
 1833. 
 
 Catjnteb 
 v. 
 I. Co. 
 
 E. 
 
14 
 
 CIVIL CASES. 
 
 Catjntee 
 
 v. 
 E. I. Co. 
 
 Malkin, E. operative. It was, however, very obvious, that the late Governor 
 1833, could never have considered Mr. Caunter a member of the Court 
 Establishment or chargeable thereto. His was an appointment 
 bond fide in aid of the old executive; it was paid as such^and it 
 ended with the expiration of that Government, for whose assistance 
 it was created. 
 
 Gaunter, in reply, thought it incumbent upon him to notice 
 a fallacy that lurked at the bottom of the arguments just deliver- 
 ed, and which materially affected the question to be decided by 
 the Court. It consisted in an assumption not warranted by the 
 terms of the contract, namely, that he had been retained as the 
 Law Agent of Government, and not as the Law Agent of the 
 Company. It was true, that it had not been expressly so asserted; 
 but was nevertheless equally evident, that the entire fabric of the 
 reasoning on the other side was based on this notion. The Com- 
 pany, and the Government, were, by many supposed to be conver- 
 tible terms ; and the distinction, perhaps, might not be immediate- 
 ly obvious ; but in truth, it was often very material, and particu- 
 larly so, in the present case ; because by establishing a necessary 
 connection between his appointment and the Government which 
 was afterwards abolished, it was easy and natural to infer the 
 determination of the contract itself. If it could indeed be. shewn, 
 that the premises were true, the conclusion deducted would be no 
 doubt fair and rational ; but a reference to the correspondence in 
 Court would clearly prove, that he was always styled and recog- 
 nized as the Law Agent of the Hon'ble Company [«] and as 
 their affairs continued to be administered at this -island, though 
 under a different establishment from the former one, his appoint- 
 ment might subsist independently of any particular form of 
 administration that the Company might think fit to introduce into 
 these Settlements, so long as nothing had occurred to render the 
 Charter of the Court inoperative. In that respect, therefore, the 
 office of Law Agent stood on a footing widely different from the 
 other offices, which in their nature Were so intimately blended 
 with a specific constitution of the Government, that apart from 
 the integral body, they could not be said to possess any existence 
 whatever : such, for example, wheie those of a member of Council, 
 in an Indian Presidency, — a Secretary to Government, Account- 
 ant-General, and similar offices, the extinction of which, would be 
 necessarily involved in the abolition of the Government itself. 
 The question, therefore, to be considered in the present case, 
 was, whether a general order from the Court of Directors to 
 remodel (not annihilate) their existing Establishment in the Straits, 
 necessarily implied a power in their Agents to interfere with an 
 appointment, which might subsist just as well under the new as 
 the old form of Government, an appointment, moreover, that was 
 held under an express stipulation for its continuance, subject to 
 the confirmation or disapproval of the Directors, and which from 
 
 [o] By a letter dated 14th April, 1828, on record, and forwarded at the time 
 for the information of the Court, it is stated that Mr. Caunter had been appointed 
 "Law Agent to the Honorable Company." — J. "W. N, K, 
 
STRAITS SETTLEMENTS. 
 
 15 
 
 Caunter 
 
 V. 
 
 E. I. Co. 
 
 their silence he had a right to presume was not in their eontem- Malkin, e. 
 
 plation, when they issued the order in question. He then pro- 1833- 
 
 ceeded to institute a comparison between the present case, and 
 
 that of a private merchant established in London, who might have 
 
 become bound by a similar guarantee given by his Agents in India 
 
 to a third person, and ended by contending that as no act of 
 
 the Hon'ble Court of Directors could countervail His Majesty's 
 
 Patent under the great seal, the Court of Judicature had never 
 
 been deprived of existeiice during the period, for which he claimed 
 
 his arrears of salary. That his dismissal from employment on the 
 
 30th June, 1830, was an invalid act of the local authorities, and 
 
 that he was consequently entitled to the judgment of the Court, 
 
 for the full amount of his arrears from .that time to the date of 
 
 filing his petition, namely, Rs. 19,700 with costs of suit [«]. 
 
 Cur. Adv. Vult. 
 
 April 13. Malkin R. The first question in this case was 
 whether any guai-antee had been given by the local Government 
 for Mr. Caunter's continuance in the situation to which he was 
 appointed. There was none expressly, but looking to the whole 
 correspondence, it could not be doubted that a guarantee to some 
 extent was contemplated by all parties. Mr. Caunter's first 
 application expressly demanded one ; in consideration of his 
 abandoning his former employments, he solicited a guarantee from 
 Government that he should continue in their service, subject to a 
 confirmation of the appointment by the Court of Directors. 
 
 The minute of the President, recorded on the proceedings 
 (signed also by Mr. Ibbetson, the Resident Councillor,) stated his 
 opinion that the necessity of the case rendered the acceptance of 
 the services of Mr. Caunter on the terms proposed unavoidable, 
 and a copy of the minute was communicated to Mr. Caunter. 
 The Official letter, however, informing Mr. Caunter of his appoint- 
 ment, merely stated that his services were accepted at 600 rupees 
 per month. On this Mr. Caunter wrote again on April 19th, 
 1828, acknowledging the receipt of that letter. The last para- 
 graph of that letter I think very material, which says " inferring 
 " from the terms of your communication that this appointment 
 
 [a] The following is the -Notification that appeared at the time announcing 
 the change of Government. 
 
 NOTIFICATION. 
 
 " Whereas the' Settlements of Prince of Wales' Island, Singapore and 
 " Malacca, having from this day ceased to form a separate Government, and hav- 
 " ing become Settlements subordinate to the Presidency of Fort William, according 
 " to the orders of the Honorable Court of Directors, and the Supreme Government, 
 " to be managed by a Deputy Resident at each Settlement, subject to the 
 " general superintendence and control of a Resident or Commissioner, notice is 
 " hereby given that all official Eeferenees and Reports are henceforward to be 
 " submitted in the first instance to the, Deputy Resident, respectively in charge of 
 " each Settlement. 
 
 By order, 
 
 J. PATTULLO. 
 
 June, 30th, 1830. 
 
 Secretary to Government. 
 
le 
 
 CIVIL CASES. 
 
 MiliKIN, B 
 1833. 
 
 Caunter 
 
 v. 
 B. I. Co. 
 
 " has been conferred upon me under the guarantee which I took 
 " the liberty of soliciting, it only remains for me to offer my 
 " acknowledgments, &c." This was a form of expression which 
 I think could not warrant the Government in considering that 
 Mr. Caunter had determined on rendering his services unless he 
 received the guarantee in question, and if the Government had 
 given no answer to this letter, but had gone on actually to employ 
 Mr. Caunter, without further communication, I think they must 
 have been understood to employ him with the guarantee re- 
 quested. 
 
 It appears that an answer was given, and Mr. Caunter was 
 informed in pursuance of the minute of April 12th, that his 
 appointment would be subject to the confirmation or otherwise of 
 the Honorable Court of Directors. I am of opinion that on the 
 same principle that the employment of Mr. Caunter without any 
 further communication would have been an employment on the 
 guarantee demanded this must be so, except as far as the commu- 
 nication varied it ; and it seems to do so only, if at all, to the 
 extent of guarding against any notion that the Court of Direc- 
 tors were to be considered irretrievably bound by the act of the 
 local Government. 
 
 It might, however, be a question whether, Mr. Caunter's 
 appointment was to have any validity independently of the 
 information of the Court of Directors, that is to say whether the 
 expression of their sanction was necessary to its validity, or of 
 their dissent to its determination, and the question is material; 
 because no express directions were ever given by the Court on the 
 subject. It appears to me that the dissent of the Court ought to 
 have been expressed. 
 
 The local Government was entrusted with large powers, and 
 if in the exercise of them, they entered into contracts and pro- 
 cured the performance of certain services on certain terms, their 
 employers, who hold them out as their General Agents are bouod 
 to make good their contracts at least till they give notice that 
 they disallow them. And in the present case this opinion seemed 
 to have been acted on, because Mr. Caunter had received his salary 
 for all the time of his actual employment, although if the expres- 
 sion of the consent of the Court of Directors was a condition pre- 
 cedent to the validity of his appointment, he was not entitled to 
 anything but a compensation in each particular service rendered, 
 equal to the value of the labour employed ; and because the letter 
 announcing the intended termination of his office treated it as 
 one actually existing up to that time : " it has," says the com- 
 munication, " become necessary to dispense with your services as 
 " Law Agent to Government from the 1st proximo." 
 
 If then there was a guarantee and it was necessary that the 
 Court of Directors should exercise their dissent to determine the 
 office, it remains to enquire what was the extent of the guarantee, 
 and what evidence of dissent was necessary. 
 
 I think it is clear that the guarantee was not to bind the 
 Court ; and also that it would be wrong to consider it as pledg- 
 
.STRAITS SETTLEMENTS. 17 
 
 ing even the Local Government absolutely and under all circum- Mamch^B. 
 stances, to the continuance of the office. ' 
 
 It is not, however, necessary to enter very particularly into Caunter 
 its construction. The Local Government would not have been at ^' Co 
 liberty lo displace Mr. Caunter because they thought they had 
 found a more qualified person, or because the amount of litiga- 
 tion ha^ diminished and they thought his services no longer 
 worth his pay, or because jhey did not choose to institute or ., 
 defend any more suits, or because they, of their own will, in the 
 absence of another Judge, did not choose to open the Court, and 
 therefore did not want his services during its temporary suspen- 
 sion : but as Mr. Caunter's offer was principally with a view " to 
 " the conduct of their business in the Court of Judicature," I 
 think that if the Court were at any time suspended, not of their 
 own mere will and notion, but necessarily as by the death or 
 unavoidable absence of all the Judges, they would be at liberty at 
 least to suspend his employment, or refuse his salary, even with- 
 out any communication from the Court of Directors. 
 
 In fact, the functions of the Court of Judicative were sus- 
 pended on the abolition of the Government, and this was the 
 reason for the discontinuance of Mr. Caunter's employment. I 
 am of opinion, that if his were a necessary and proper suspension, 
 the local authorities, on the construction of the guarantee already 
 suggested, were justified in so discontinuing his services in the 
 exercise even of their own discretion, notwithstanding the gua- 
 rantee. I am also of opinion, that if the suspension of the Court 
 were a necessary and proper consequence of the orders of the 
 Court of Directors, those orders must be considered as a virtual 
 dissent from the further continuance of Mr. Caunter's appoint- 
 ment ; and that it would therefore be annulled by virtue of the 
 power of dissent reserved to the Court, because, according to my 
 views, that power cannot be understood as one only to be exercised 
 at once, but that it reserved to them the right of annulling the 
 appointment if its continuance became undesirable. I will go 
 even further and say, that if the discontinuance of the functions 
 of the Court of Judicature was not a necessary and proper 
 consequence of the alteration of the Government, yet, if the 
 Court of Directors clearly appear to have so considered it — 
 that alteration would virtually have implied in their understand- 
 ing the abolition of Mr. Caunter's office, and would therefore in 
 my judgment,' have amounted to an intimation of their dissent 
 from its continuance. It did not appear that the Court of Direc- 
 tors so understood the effect of the alteration. In the 13th 
 paragraph of the Despatch of 7th April, 1829, they spoke among 
 other existing and continuing charges, of the charge of the 
 Judicial Department amounting to 120,000 rupees, in which they 
 trusted thereafter to make an important reduction. And in the 
 26th paragraph, they say " we are aware that this alteration in 
 *' the mode of administering the Government of Prince of Wales' 
 " Island, Singapore and Malacca will render necessary a corre- 
 " sponding alteration in the terms of the Charter of Justice 
 
13 
 
 CIVIL OAS'fiS. 
 
 Malkin, K. 
 1333. 
 
 Caunteb 
 
 v. 
 E. I. Co. 
 
 " recently granted by His Majesty ; we shall give directions for 
 " taking measures forobtaining the required amendments of the 
 " Charter,' &c, and we shall probably be enabled to communicate 
 " to you the result of these measures at an early period." 
 
 I consider the first of these extracts, clearly contemplating 
 the immediate continuance of the Court of Judicature ; for the 
 expense mentioned, is that of the whole establishment, much of 
 which, might have been immediately and for once dismissed, if 
 there was no longer any services to render ; and there is equaliy 
 nothing in the second extract, to show that they considered the 
 functions of the Court as likely to be suspended by the proposed 
 alteration, although corresponding changes might be made'exr 
 pedient, or even necessary. It is also to be observed, that the 
 plan then proposed by the Court of Directors was not that which 
 was finally carried into effect ; but one which, leaving the Settle- 
 ments without any general head, corresponding to the Governor, 
 — made it more difficult to carry the. Charter into effect. 
 
 It seems to me therefore, that it would be too much to treat 
 the Despatch from the Court of Directors as furnishing evidence 
 that they thought that the change of the Government would pro- 
 duce a suspension of the functions of the Court, unless in fact 
 that was its legal operation, and the judgment in the present case 
 will finally turn on the very important question, was that sus- 
 pension a legal and necessary consequence of that alteration. If 
 it were, I think the plaintiff must fail ; if it were not, then the 
 suspension which in fact took place, was an erroneous and un- 
 authorized act of the local authorities, and cannot deprive the plain- 
 tiff of that right which, if they had not fallen into that error, he 
 would have continued to possess. 
 
 It is to be observed, that the Charters of Judicature, both of 
 Prince of Wales' Island, and for the United Settlement, were gran- 
 ted, although on the application of the Company, — for the bene- 
 fit of the community, and derived their whole; force and validity 
 from an Act of Parliament, and the prerogative of the Crown. 
 The Company could not surrender the Charter, unless the Crown 
 were pleased to accept the surrender. Generally, in short, it can 
 have no power whatever of abolishing or abridging the grants of 
 the Crown for, the benefit of the subject ; and ft can only have it 
 in the present instance, if at all, incidentally, by the ■ power 
 reserved to it to alter the administration of the Settlement. It 
 it had thus the power of abolishing the Court of Judicature, I 
 think the abolition total, for it had none whatever of substituting 
 any other administration of justice in its ste.ad ; and the jurisdic- 
 tion of the Supreme Court of • Port William was entirely abrogated 
 as far as Singapore and Malacca were concerned, by the Stat. G, 
 Geo. IV., C. 85,, 1. 19, and the subsequent Charter; and it never 
 existed with respect to Prince of Wales' Island, which had • a 
 Charter of Judicature of its own, before the annexation of the 
 other Settlements. We would [as Malacca and Singapore were] 
 have been left for some years without any provision whatever for 
 the administration of justice, and perhaps would still continue 
 so. 
 
STKAITS SETTLEMENTS. 
 
 id 
 
 Cauntee 
 
 v. 
 E. I. Co. 
 
 I cannot think, it was intended, that the Court of Directors Malkin, E. 
 should have such a power, nor, if they had it, is it to be supposed 1833- 
 that they intended to exercise it. 
 
 If upon any construction of the Charter, or of their own acts, 
 it was possible to avoid such a consequence, I think, that con- 
 struction ought to be adopted. And in fact, such a, construction 
 seems to me plain and easy. ' I am aware, that it has been said, 
 by an authority of which I would speak with high respect, the 
 present Advocate-General, [opinion of February, 21, 1831] that the 
 Charter was granted to Penang, Singapore, and Malacca, as to an 
 united and independent settlement, independent at least in the 
 same sense as Fort St. George and Bombay. I cannot, however, 
 concur in this opinion. The object of the C harter was to give 
 to the inhabitants of the three places, the benefit of a regular 
 administration of justice, which they needed just as much, 
 whether they were united and independant, or separate and sub- 
 ordinate to any Presidency. Prince of Wales' Island in particu- 
 lar, which stood alone, had been thought, to require a Charter, 
 but the construction suggested would deprive it of any, merely, 
 because after a temporary union, it reverted to its original condi- 
 tion, with rtspect to Malacca and Singapore. The formation of 
 the United Settlement undoubtedly was so far the inducement to 
 the establishment of the new Court, that it was thought to furnish 
 a convenient mode of constituting it, by making the Governor, 
 or Principal Officer of the three Settlements, its head everywhere, 
 the Eecorder its Chief Law Officer throughout, and the Ueside'nt 
 Councillor, or first officer of the Company's Civil Service, Resi- 
 dent constantly at each Station, the remaining Judge of the 
 place of his own abode. 
 
 It appears to me therefore, that the safest construction of 
 the Charter is to consider it as constituting the Principal Officer 
 of the Company superintending the affairs of the three Settle- 
 ments, [as long as there was such an officer] the head of the 
 Court, the principal officer, resident at each and subordinate to 
 the general head of the establishment, the third Judge at each 
 place, and to say, that the terms "Governor" and " Resident 
 Councillor," were used, not as designating the exact office to 
 which only the judicial powers were to be annexed, but as the 
 names of office by which, for the time being, the functionaries 
 in question were denominated, and in this opinion, I think, I am, 
 in some degree, confirmed by the circumstance, that the Charter, 
 in some cases recognizes a Judge, who is neither Governor, 
 Recorder, nor Resident Councillor, for in the absence of the 
 Resident Councillor, the Senior Councillor present is to be a 
 Judge, and the Governor, or Resident, or the Councillor acting 
 as such, is to have certain precedence, and to vote in a certain 
 order in the Court. On the whole, therefore, I think that the 
 first and second, for the time being, in the administration at 
 each Settlement, [at least while the first is so in all the three,] 
 were the Judges intended by the Charter, and some confirmation 
 is given to this opinion, that at the time of the alteration at 
 least, no harm could be done by such a construction, because 
 
20 CIVIL OASE3. 
 
 Mautin, e. Mr. Fullerton and the other gentlemen who held the abolished 
 1833, offices, continued to hold those substituted, and could not lose 
 
 Gaunter their individual aifd personal competence to the discharge of the 
 v. duties, by a mere change in their official designation. 
 
 E. I. Co, Tii e consequence of this construction is, firstly, that the Court 
 
 was unnecessarily and improperly suspended on the alteration 
 of the Government ; and then, in conformity with the principles 
 already stated, that such suspension of its functions, could not 
 deprive the plaintiff of the benefit of his contract. 
 
 The opinion that the suspension was unnecessary, is not my 
 own only ; it seems to have been that of the Supreme Government 
 of Bengal, who in their despatch of the 4th May, 1830, paragraphs 
 28 and 29, gave directions as to the despatch of judicial business, 
 until the arrival of the new Charter, which was then expected, 
 and in the 29th paragraph say, that " the Court at each Settlement 
 " should be held by the Eesident and his Deputy, at the Settlement, 
 " in the same manner as heretofore, by the Governor and Resident 
 " Councillor, and the Resident should proceed on circuits, for the 
 "purpose, as the Governor had done hitherto." It is true, that 
 they go on to speak of the inconvenience arising from the im- 
 possibility of literally fulfilling the old and still existing Charter, 
 but whatever this inconvenience might have been, it was obvious, 
 that the functions directed to be exercised by the Resident and 
 his Deputy could be derived only from that Charter. 
 
 I think, the same opinion appears with equal distinctness in 
 the despatch of the Court of Directors of 27th July, 1831, to 
 the Supreme Government of Bengal [a], in which they announced 
 their abandonment for the present, of the design of obtaining a 
 new Charter, and give the Resident and Deputy, or Assistant 
 Resident, the title of Governor or Resident Councillors. I 
 believe, this measure has sometimes been considered as a recog- 
 nition of the necessity of doing something to re-establish the 
 Court. It clearly, however, was not so in the opinion of the 
 framers of the despatch. 
 
 The alteration of title was only made in order that all doubts 
 might bo removed regarding the powers under the old Charter of 
 the Resident and Deputy Resident ; and express reference was 
 had to a former despatch, intimating that the former Governor 
 " was mistaken in supposing, that the alteration in the Govern- 
 (t ment could cause the Charter to become inoperative." Even 
 independently of any such expressions, I entertain no doubt, that 
 the Company, acting as they would on such an occasion, under 
 good legal advice, could not themselves imagine that a Court once 
 dissolved by the abolition of the officers to which the character of 
 judge was annexed, could be reconstituted by a mere restoration 
 of the name of office, while the offices themselves continued on 
 their reduced and altered footing, and I should therefore conclude, 
 that the alteration of name, was made merely to take the chance, 
 of thereby avoiding the question, and not with any notion that it 
 really affected the right. 
 
 [a] For this despatch, see Report of Indian Law Commissioners, 1843, p. 48, 
 
STRAITS SETTLEMENTS. 
 
 a 
 
 Caunter 
 
 V. 
 
 E. I. Co. 
 
 On the ^vhole, therefore, I am of opinion, that the plaintiff is Calkin, E 
 entitled to recover in this action. The cause is one of considera- ^ "* 
 ble importance, and by no means free from difficulty, and I am 
 glad that it is in the power of the defendants to submit it, if they 
 are disposed, to a future investigation by a higher tribunal. But 
 to me it appears, that the plaintiff held his appointment under a 
 guarantee for its continuance, which had in no way been abrogated 
 or dispensed with, that the defendants had not in fact refused their 
 sanction to his appointment, nor done anything to shew a decided 
 intention that it should not continue, — that the suspension of the 
 Court, was not a, necessary or proper c msequence of the alteration 
 of the Government, — that it must therefore be considered a volun- 
 tary act of the local authority, and could not authorize them, 
 contrary to their guarantee, to discontinue the plaintiff's ser- 
 vices. 
 
 Judgment fur plaintiff with costs. 
 
 November, 19th. Balhetchet on behalf of defendants moved 
 for leave to appeal to His Majesty in jCouncil on the following 
 grounds : — 
 
 1st. — That the local authority which notified to Mr. 
 Caunter the discontinuance of his employment, was 
 empowered by the Governor-General of Bengal, 
 under instruction from the Court of Directors, to abo- 
 lish every office of the Executive Establishment of 
 these Straits, and that at the issuing such instruc- 
 tions, the said Court was fully aware of the existence 
 of Mr. Caunter's office as part of the said Establish- 
 ment. 
 Sndly. — That this Court became inoperative prior to Mr. 
 Caunter's dismissal by the aforesaid legally autho- 
 rized change in the local Government, abolishing the 
 Executive Offices, of which the holders are constituted 
 by Charter, Judges ex-offhcio, and that during the 
 absence of Sir John Thomas Claridge, then Recorder, 
 there was no person within the said Settlements 
 qualified, under the wording of the Charter, to fill the 
 office of Judge. 
 r Gaunter, opposed the application, on the ground that the 
 /defendants had submitted to the Judgment of the Court by paying 
 i the amount and costs decreed, even without his suing out execu- 
 tion, and such voluntary payment should debar them now from 
 I the right. of appeal. He submitted also, that the defendants had 
 "taiitly acknowledged his right to continue in office until duly 
 notified by the Court of Directors to quit, by causing a notification 
 to that purport to be delivered to him through their agents in 
 Penang, even after judgment had been pronounced in his 
 case. 
 
 Balhetchet for the defendants claimed the benefit of the Char- 
 ter which made no allusion to the practice of any Courts, but 
 secured the right claimed, if petitioned for within six months from 
 the date of the judgment. With respect to the plaintiff's second 
 
22 
 
 CIVIL CASES. 
 
 Malkin, It. 
 
 1833. 
 Cauntee 
 E. I.' Co. 
 
 ground, lie contended, that it could in no way militate against the 
 appeal, and was but a precautionary measure, well advised to 
 meet the possibility of an unfavorable judgment. 
 
 Malkin, B. was of opinion that Mr. Balhetchet had taken a 
 correct view of the intention of the Charter which, by granting 
 so long a period as six months, seemed to contemplate the absence 
 in these Settlements of professional advisers, and to afford suffici- 
 ent time for suitors who thought themselves aggrieved by this 
 Court's j udgment, to obtain professional opinions from the Presi- 
 dencies, before venturing on the expensive process of an appeal. 
 His Lordship could not view Mr. Cauiiter's second reason as inter- 
 fering in any way with the right claimed, and sitting in this Court 
 as the only professional judge, he should, be at all times diffident 
 of offering or encouraging objections to an appeal from his deci- 
 sions, whenever parties considering themselves aggrieved thereby, 
 exhibited any reasonable grounds for appealing, but more especi- 
 ally when they had been able to obtain professional advice. 
 
 The jippjicatioi ^ was g ranted, on the Defendants' Agent 
 guaranteelngp^ymelSTof Plaintiff's costs, should the appeal prove 
 unsuccessful, [a] 
 
 KHO CHIN JAN AND ANOTHER 
 
 LIM TOW AND OTHERS. 
 
 PenakO. The Plaintiff bought 158 slabs of tin of the Defendant, and at the time noticed that 
 
 137 slabs boro the chop of the Defendant's firm, but the remaining 21 bore the chop of 
 
 Norbih, It- another firm — and so remarked to the Defendant. The Defendant in reply said, "all the 
 
 1836. tin that goes out of my shop is good." The Plaintiff took delivery of the tin, paid the 
 
 full price for the 15S slabs, and conveyed the same to Singapore. There he discovered 
 
 Dec. 10. that the 21 slabs were spurious, being a mixture of tin, and other inferior metal. He 
 
 brought the slabs, or such portion thereof as had not been resmelted at Singapore, to 
 
 Penang, and claimed of the Defendant, a return of his purchase money in full, as for a 
 breach of warranty. The Defendant, having satisfied himself that the 21 slabs were 
 spurious, tendered the Plaintiff the price paid for sxmi, which the Plaintiff declined to 
 receive, and coiii..ienc;d this action. 
 
 Held, lstly, the wmls "all the tin that goes out of my shop is good," amounted to 
 an express warranty that the tin was pure and merchantable ; and 2udly, that the 
 warranty was general, and applied to the whole 5S1 slabs; and being entire, though it 
 only partially failed, the Plaintiff was entitled to recover hack the whole of his purchase 
 money. 
 
 General observations on warranties, in commercial matters. 
 
 The facts and points in this case fully appear in the judgment 
 and call for no recapitulation. 
 Balhetchet, for plaintiffs. 
 Gaunter, for defendants. 
 
 Norris R. This is an action of assumpsit founded on an 
 alleged breach of warranty ; and the plaintiffs seek to recover 
 back the purchase money paid by them to the defendants for 158 
 
 [a] No traces can be found, that the Appeal was ever prosecuted. 
 
straits SETTLEMENTS. 
 
 &3 
 
 blocks of tin, great part of which has turned out to be spurious 
 and unmerchantable, as well as the expenses incurred in taking 
 the tin to Singapore, and bringing it back on its proving to be 
 unsaleable. 
 
 Jt appears, that about two months ago, one of the plaintiffs, 
 who are partners, went to the godowns of the defendants, also 
 partners, trading, under the firm of Ti Ho, iind purchased the 
 158 blocki of tin in question for upwards of $1,500; that at the 
 time of making the purchase the plaintiff remarked to the defend- 
 ants, who were all present, that the blocks were not all stamped 
 with the same chop, or mark, 21, it seems, bearing the chop of 
 Iloon Chiang, and the remaining 137 that of Ti Ho, the defendant's 
 house; whereupon the first defendant observed: "All the tin 
 that goes out of my shop is good," an observation which was 
 understood by the witness to apply to the one chop as well as the 
 other. 
 
 The plaintiffs satisfiedwith this assurance, shortly afterwards 
 paid the full price agreed upon, and took the tin to Singapore for 
 sale. There was no outward defect in the blocks, nor anything 
 in their appearance to excite suspicion, nor is it pretended that 
 the defendants practiced any deceit, or had any knowledge or sus- 
 picion of the latent defect which was afterwards discovered in the 
 21 blocks bearing the chop' of Hoon Chiang; On arriving at Singa- 
 pore the plaintiffs sold the whole 158 Mocks to Messrs. Kerr, 
 Hanson & Co. What passed between them on the occasion does 
 not appear, nor is it very material to enquire; but, as a measure 
 of precaution, the purchasers proceeded to resmelt a portion of the 
 tin, selecting indiscriminately for that purpose nearly a third of 
 the whole, which they melted down in one and the same furnace. 
 The molten mass, consisting, as it happened, of 47 blocks of the 
 Ti Ho and only 2 of the other chop, appeared to be a mixture of 
 pure tin with lead, speltre, and other base materials; and the 
 whole quantity purchased w, in consequence, returned upon the 
 hands of the plaintiffs, who lost no time in bringing back the 
 remaining 109 blocks to Penang, giving notice to the defendants 
 and requiring them to repay the purchase money. The latter, 
 however, refused to comply, persisting in their original assurance 
 that the whole of the tin was good ; but on being 'pressed by the 
 plaintiffs, at length proposed that 12 blocks of each chop should 
 be separately resmelted before a committee of respectable mer- 
 chants. This was accordingly done, and a certificate has been put 
 in, by consent, signed by Messrs. Anderson, Tanner, Re vely, Scott 
 and Stuart, expressing their " decided opinion that the tin of the 
 chop Ti Ho is " fine, merchantable and pure, and that of the chop 
 ''Hoon Chiang impure, being mixed with much dross and inferior 
 " metal." The defendants subsequently offered by way of compro- 
 mise, to pay $247, the estimated value of the 21 defective blocks, 
 supposing them to have been pure and merchantable, together 
 with the expenses incurred in conveying them to and from Singa- 
 pore; which offer the plaintiffs rejected, considering themselves 
 entitled to recover back the whole of the purchase money and not 
 merely a part. And this is. the question which the Court is now 
 
 Noeeis, E. 
 183G. 
 
 Kho Chin 
 Jan and 
 
 ANOB. 
 
 V. 
 
 Lim Tow 
 
 AND OBS. 
 
24 
 
 CIVIL CASES. 
 
 NOBEIS, It. 
 183G. 
 
 Kho Chin 
 Jan and 
 
 ANOB. 
 V. 
 
 List Tow 
 
 AND OBS. 
 
 called upon to decide ; to determine which, it must, in the first 
 instance, be ascertained — whether any warranty, express or im- 
 plied, was given by the defendants to the plaintiffs, at the time 
 of the sale — and, if any, to what extent. Now, as to the first point, 
 it is clear to my mind, that the words used by the first defendant 
 on that occasion, "All the tin that goes out of my shop is good" 
 amount to an express warranty that the tin in question was pure 
 and merchantable. I am aware that, in some of the older cases, 
 a distinction is taken between an express warranty and words of 
 mere affirmation ; and it may be objected that the words in question 
 amounted at the utmost to a general assertion only, and not to a 
 special warranty of the particular goods. But the distinction has 
 been long since overruled, and [as observed by Mr. Justice Buller, 
 in Parley v. Freeman, 3 T. R. 57] "every affirmation at the time 
 "of a sale is a warranty, provided it appear in evidence to have 
 " been so intended. " On the sale of a horse, the vendor's answer 
 " yes " to the purchaser's enquiry, " Is he free from vice?" con- 
 stitutes a warranty to that extent; [Helyear v. Hawke, 5 Esp. Rep. 
 72] so also, the vendor's general assurance, "you may depend 
 on our supplying you well, " [Jones v. Bright, 1 Dawson, and Lloyd 
 304] ; and numberless' similar instances might be quoted. In the 
 present case, the defendant's words were in answer to the implied 
 doubts expressed by the plaintiffs, and were unquestionably 
 intended and relied upon as a warranty. As to the second point, 
 I am equally clear, from the generality of the defendant's expres- 
 sions, " All the tin," &c. and the manner in which they were 
 elicited by the plaintiff's previous remark, that the warranty was 
 meant, as it was understood, to be general, and not restricted 
 merely to the defendant's own chop. The warranty then being 
 general, it cannot, in legal reasoning, be alleged that, inasmuch 
 as the failure has been only partial, the defendants are only par- 
 tially liable ; for it is an established principle, that an entire con- 
 tract cannot, without mutual consent, be split or apportioned to 
 suit the convenience of one party at the expense of the other. 
 As, in the first instance, the defendants could not have sued for 
 any part of the purchase money until the whole quantity of the 
 tin contracted for had been delivered [Wadding ton? v. Oliver, 2 N. 
 It. 61, Walker v. Dixon, 2 Stirk, 281] so neither can he now insist 
 that the contract is satisfied by a partial or mixed performance,- 
 viz.: the delivery of 137 blocks, instead of 158, and a return of 
 price for the residue. Such an arrangement may not answer the 
 plaintiffs' purpose, and, whether or not, they have a right to in- 
 sist on the full performance, or damages for the non-performance 
 of the defendants' contract. I am of opinion, therefore, that the 
 defendants are liable to the plaintiffs for the full amount of the 
 purchase money, with the cost of the action, and the expenses of 
 conveying the tin to and from Singapore, and rcsmelting portions 
 of it there and here. These expenses, from the evidence before 
 me, I estimate at |40 ; from which, however, must be deducted 
 $12 the estimated expense of bringing back from Singapore the 
 portion there melted down, and which the plaintiffs might, for 
 aught that appears, have brought away with the residue* 
 
STRAITS SETTLEMENTS. 
 
 25 
 
 It may seem hard upon the defendants that they should be 
 forced to bear the loss resulting from- the adulteration of their 47 
 blocks of good tin by the admixture of the 2 blocks from the bad 
 chop, which were, somewhat inconsiderately, thrown into the same 
 furnace by the purchasers at Singapore. But it should be recol- 
 lected, that the defendants have, or ought to have, their remedy 
 over against the manufacturer by whom, to all appearance, they 
 have been so fraudulently dealt with ; and that they have to blame 
 their own want of caution in giving a general warranty, and thus 
 leading purchasers to infer, that if suspicion attached to any portion 
 of the tin, it equally attached to all. Had the defendants con- 
 tented themselves with saying " We can warrant our own chop, 
 " and for the other we believe it to be good and merchantable, " 
 the purchasers, perhaps, with equal discrimination, would have 
 applied the test to the latter alone or, at most, have separately 
 examined 1 or 2 blocks of each chop, the warranted and the un- 
 warranted ; the different qualities of which, without some such 
 previous hint, they could scarcely have been expected to guess — 
 I say wnwarranted, because as, on the one hand, the mere utter- 
 ance of an opinion or belief certainly is not a warranty, so, on the 
 other, I have many doubts, whether, under such circumstances, 
 a warranty of the 21 blocks could have been implied in law. And 
 were it not for these doubts, and that it may be useful to mention 
 whence they arise, I should scarcely feel called upon, in a case of 
 express warranty like the present, to advert to the subject of im- 
 plied warranties at all. It is true that in the case of Jones v. Bright 
 [ 1 Dawson and Lloyd's Eep: 304 ] the Court of Common Pleas 
 decided that where a manufacturer sells goods expressly for a 
 particular purpose [viz. : copper sheaths to copper a particular 
 vessel] there is an implied warranty that the article shall be 
 reasonably fit for that purpose, or, at all events, against latent 
 defects arising from a want of skill or care in the process of 
 manufacturing. But the present case is distinguishable from 
 that in two respects ; for in the first place, the plaintiffs did not 
 mention that the tin was wanted for any specific purpose, — and 
 secondly, the defective portion was not of the defendants' own 
 manufacture. It is true also that in the previous case of Gray v. 
 Cox [4 B. and C. 108] which was likewise a case of defective 
 copper sheathing, and more nearly resembled the present inas- 
 much as the seller was not the manufacturer and no specific pur- 
 poses mentioned by the buyer, Lord Tenterden expressed a strong 
 opinion to the same effect, and that his opinion was referred to 
 with approbation by the Court of Common Pleas in the above 
 cause of Jones v. Bright. But this diet/Am of Lord Tenterden was 
 not sanctioned by the other Judges in Gray v. Cox, and although 
 a similar opinion was expressed by Lord Ellenboixmgh in the still 
 earlier case of Bluet v. Osborne and another [1 Stark. 384], the 
 soundness of the doctrine, as a general rule, was doubted at the 
 time, and has since been much questioned. It is scarcely recon- 
 cilable with the principles laid down in Parkinson v. Lee [2 East. 
 314], a leading case upon the subject; and is certainly an encroach- 
 ment upon the, old maxim of caveat emptor, by which a person 
 
 Noebis, E. 
 1836. 
 
 Kho Chin 
 Jan and 
 
 ANOE. 
 V. 
 
 Lim Tow 
 
 AND OBS. 
 
26 
 
 CIVIL OASES. 
 
 Noeeis, E. 
 
 1836. 
 
 Kho Chin 
 
 Jan and 
 
 anob. 
 
 v. 
 
 Lm Tow 
 
 AND ORS. 
 
 who personally inspects a commodity and chooses to purchase it 
 in reliance upon his own judgment, and without asking for the 
 protection of a special warranty, is generally understood! to take 
 upon himself the risk of any latent defects which may subse- 
 quently be discovered in the article sold. Formerly, indeed, it 
 was supposed that in the conditions of all sales there is an implied 
 warranty of the goodness of the article ; and that what was 
 termed a sound price was of itself an implication of warranty. 
 But it has long been settled that this is not the law of England^ 
 however agreeable it may be to the genius of the Civil Law ; by 
 which certainly the seller is in general answerable for all latent 
 defects, however innocent or ignorant he may be of their existence, 
 and is bound moreover to make known at the time of sale all such 
 latent defects as may be within his knowledge. These maxims 
 have been upheld by Grotius, Puffendorf, Paley and other great 
 moral writers, as more consonant to the principles of natural jus- 
 tice and equity than the doctrine of the English law, but there 
 are not wau ting powerful arguments in support of our own system 
 as better adapted to the circumstances of a great commercial 
 people. It should be remembered, also, that while the English 
 law in general justifies the vendor's silence with regard to the 
 defects of an article which is fairly open to the buyer's inspection, 
 it affords no protection whatever to deceit, misrepresentation 
 or fraudulent concealment. And in contracts of manufacture, 
 where goods are directed to be made or supplied, and where, there- 
 fore, the buyer is necessai'ily dependant upon the honesty and 
 good faith of the manufacturer, the law implies a warranty that 
 the articles shall be good and merchantable. In some cases also, 
 an implied warranty arises from understood custom in particular 
 trades, but then the custom must be established by clear and 
 satisfactory evidence. In the present case, certainly, according 
 to the evidence of Mr. Charles Scott, the manufacturer's chop is 
 generally looked upon as a sufficient implied warranty ; but Mr. 
 Scott added that a special warranty was frequ3ntly taken, which 
 shews that the custom of the trade, if it exists at all, is not very 
 generally understood or acted upon. Upon the whole I should 
 recommend that in all cases where the buyer has any doubts with 
 regard to the soundness of the article or the custom of the trade, 
 he should require a special warranty ; and that if the contract of 
 sale be in writing, the warranty be also inserted in aud form a 
 part of it, for otherwise it cannot be received in evidence, since 
 a Court of Justice can only look to the written contract, and not 
 suffer its contents to be varied by parole evidence of something 
 else which took place at the time when it was entered into. 
 Judgment for plaintiffs as above with costs. 
 Balhetchet for the plaintiffs stated that as tho defendants 
 could not conveniently be put in possession of the tin which 
 had been melted down and left at Singapore, his clients were 
 willing to take that portion at the average price of $20} per 
 picul, in anticipation of which, indeed, they had, as appeared on 
 reference to the petition, limited their claims for damages to 
 the sum of $1,300, 
 
STRAITS SETTLEMENTS. 
 
 27 
 
 Caunter, for the defendants, assented to this, [without preju- 
 dice, however, to his right to move for a new trial, should it be 
 thought advisable to do so] and the judgment was qualified 
 accordingly. 
 
 December 24. , Caunter, on behalf of the defendants, moved 
 for a rule calling on the plaintiffs to shew cause, why a new trial 
 should not be had, on the grounds, 1st, of certain papers, which 
 he submitted told in his favour, but which were produced by the 
 plaintiffs — had been adduced in evidence, without being translat- 
 ed, so as to enable the Court to judge of the nature thereof, the 
 nature of these documents were set out in the affidavit on which 
 he moved, and 2ndly, that a certain witness, Kho Tay Chah, who 
 proved the warranty, gave his evidence in Malay, a language 
 which the defendants were very imperfectly acquainted with, so 
 they did not understand the nature of the evidence, and could not 
 and did not therefore, instruct their lawyer, to call witnesses to 
 contradict it, as they were in a position to do, and gave some 
 names. 
 
 The Court refused to grant a rule. 
 
 Nobbis, R. 
 1836. 
 
 Kho Chin 
 Jan and 
 
 ANOE. 
 V. 
 
 Lim Tow 
 
 AND OBS. 
 
 MORAISS AND OTHERS v. DE SOUZA. 
 
 From the time of the introduction of the Charter of 1807, up to the date Act XX 
 of 1837 came into operation, the English law of Inheritance was the law of this 
 Colony. 
 
 Rodyk v. Williamson and In the Goods of Abdullah [a] approved of. 
 
 Act XX of 1 837 is retrospective, except as to existing interests which come within 
 the provisoes thereof. [6] 
 
 Where therefore the defendant's ancestor held lands at Malacca under a Dutch 
 grant, which had been lost, and the original entries in the Dutch records were not to be 
 found — but, after the English had taken Malacca, in an agreement made in 1828 
 between the English authorities and the defendant's ancestor, " the grants issued by 
 the preceding Local Government in 1781 and 1788" were expressly recognized, — 
 undisputed acts of ownership by the defendant's ancestor distinctly recited and a 
 covenant made by the English authorities with the defendant's ancestors " and his 
 "heirs for ever, so long as the Settlement ef Malacca remains under the British Flag," 
 
 Held, in the absence of evidence to the contrary, that there was a presumption that 
 the original grants were in the nature of a fee simple ; that the ancestor having died 
 before 1837, the lands passed to the defendant as his heir, and fell within the proviso of 
 the Act XX of 1837, as a transmission according to the rules, which regulate freehold 
 property. 
 
 This was a suit for the administration of the estate of the 
 deceased M. F. De Souza. The facts and questions arising, suf- 
 ficiently appear in the judgment. 
 
 Cur. Adv. Vult. 
 
 On this day judgment was delivered by 
 
 Norris, R. This was a suit by the younger children of the 
 intestate to obtain a discovery, account and distribution of , the 
 estate, from their elder brother, the administrator, who also 
 claims as heir to the real property left by the deceased, and which 
 
 [a] see Ecclesiastical Cases, Vdl. II. of these Reports. 
 
 [6] see In the Goods of William Caunter, deceased, Ecclesiastical Cases, Vol. H. 
 Of these Reports. 
 
 Malacca. 
 
 Nobs is, R. 
 1838. 
 
 May 1. 
 
28 CIVIL CASES. 
 
 Noeeis, E. is particularized at the foot of the inventory. It, was attempted . 
 1838- to he shewn, as alleged in the bill, that the defendant, in combi- 
 Moeaiss and nation with others had succeeded, by artful impediments and delays, 
 obs. in defeating the original intention of his father to divide his 
 _ *■ property by will in equal portions among all his children ; and 
 
 ouza. ^ a ^ ^ e ( j e f en( j aI]L t j lfl( j moreover, since the death of his father, 
 continued to quiet the complaints of his brother and sisters by 
 promises which had never been fulfilled, that such equal division 
 should still he made. But the evidence on both those points, as I 
 have already intimated, was far too vague and unsatisfactory, r.ot 
 to say suspicious, to be deserving of any attention. Great pains 
 were also taken, but with equally bad success, to shew that the 
 inventory rendered by the defendant was in various respects 
 untrue and incomplete. On this point also I have already 
 expressed my opinion, and see no reason to change it, that the 
 inventory has been substantially verified. The imputations 
 unsparingly cast upon the character of the defendant for his 
 alleged rapacity and desire to secure his own interests at the 
 expense of impoverishing the rest of the family, have in like 
 manner proved to be without foundation ; on the contrary, I feel 
 satisfied, from the evidence adduced on his behalf, that he has 
 really deserved the character ascribed to him by one of the 
 plaintiff's own witnesses, viz. : that of having been, for many years 
 prior to the death of the intestate [who had long been superan- 
 nuated and incapable of active exertion], a protector, supporter 
 and father to the family. With regard to the principal item on 
 the debit side of the defendant's account with the estate, viz. .: 
 $433.75, for a bond given by the intestate to James Lewis, 
 deceased, and which the defendant has been compelled to pay to 
 the administrator of that estate, it is insisted for the plaintiffs 
 that the estate of their deceased father can only be liable for one 
 half the amount, and the evidence on which the defendant 
 grounds his claim upon the estate for the whole is certainly not 
 so satisfactory as could be wished, owing to the bond having, as 
 he says, been destroyed by his father when given up on the 
 discharge of the debt. In the accounts of Lewis's estate it is 
 desciibed as the joint bond of M. F. and J. M. De Souza, and so 
 also in the endorsation in the remaining blank half of the sheet 
 on which the bond was written, and which the defendant says he 
 preserved as a memorandum for his own security. But on the 
 other hand, Mr. B. Rodyk, agent for the administrator of that 
 estate, has sworn that, although he has no precise recollection of 
 the terms of the bond, he never thought cf calling upon the 
 defendant for the debt until after many fruitless applications to 
 his father the deceased; whilst the defendant himself, on the 
 immediate challenge of the plaintiff's agent, who pressed this 
 appeal to conscience in a tone of much defiance, has solemnly 
 sworn that he became a party to the bond, not as a principal but 
 only as security for his father. Under these circumstances, I 
 cannot, in the absence of any conclusive evidence to the contrary, 
 refuse to give credit to the defendant's solemn asseveration, which 
 must be taken as a part of tys sworn answer to the bill of 
 
STRAITS SETTLEMENTS. 'fo 
 
 discovery and entitled in a Court of Equity to the same degree of Nobbis, B. 
 consideration. It remains for me to notice the arguments " a ' 
 adduced by the plaintiff's agent, in opposition to the defendant's Mobaiss and 
 claim as heir to the landed property of the deceased. It was oks. 
 contended, in the first place, that the English law of inheritance D g ' . 
 has never prevailed in these Settlements, and that, at Malacca, 
 property has always descended according to the rules of the 
 Dutch law. But although " in practice," as is generally known, 
 and stands admitted in the preamble to the Indian Act No. -XX 
 of 1837, the " rules of English law have been little regarded by 
 "a great part of the population;" yet with respect to the Law 
 itself, as it stood from the introduction of the Charter up to the 
 1st October last, it is all but declared in express terms in the 
 same preamble, that "within these Settlements land can be 
 " lawfully bequeathed and inherited only according to the rules of 
 " English law." 
 
 The question, indeed, had already, I conceive, been formally 
 decided, in principle, by my learned and lamented predecessor, 
 Sir Benjamin Malkin, in two cases, which came before him. The 
 first was the case of Bodyh v. Williamson, in May 1834, wherein 
 the rights of a Dutch widow, were held to be those of a widow 
 according to the English Law, not the Dutch Law formerly 
 received at Malacca [a] . The other was a case with reference to the 
 will of a Mahometan, Abdullah, in March 1885, [6] wherein the 
 former case was adverted to, and the principles of the decision so 
 fully and clearly explained in a luminous judgment, recorded at 
 length with the proceedings, that it is needless for me to do more 
 than refer to it, concurring as I do entirely in the principles there 
 laid down. But even admitting, it was said, for argument's sake, 
 that it may at one time have been correctly holden that landed 
 property in these Settlements such as would be called free-hold 
 in England, was subject to the English law of inheritance, still 
 the position is now, in 1838, no longer tenable, inasmuch as the 
 Indian Act above referred to, has a retrospective as well as 
 prospective operation, and enacts * " that from the first day of 
 "October 1837, all immoveable property, situated within the 
 " jurisdiction of this Court, shall, as far as regards the trans- 
 " mission of such property on the death and intestacy of any 
 " person, &c ; " " or by the last will of any such person be taken 
 " to be and to have been of the nature of chattels real and not of 
 " freehold." This, I said, as a general position, was undeniable, 
 but the argument to be of any avail must be carried further and 
 explain away, if it could, the important provisoes of the Act in 
 favor of existing interests, and without which provisoes indeed, it 
 would have been an ex-post facto law of the most tyrannical 
 description. One of these, it would be observed, expressly saves 
 
 [a] Sir Benjamin Malkin alludes to this case [Rodyk v. Williamson] in a letter 
 addressed by him to the Government of India in 1837 — see Report of Indian Law 
 Commissioners, 1843, p. 86 ; and on application made to the Eegistrar in 1846 for " a 
 Copy of the Judgment," by the widow of the Defendant, it is recorded that it could not 
 be found.— J. W. N. K. 
 
 [5] See In the Goods of Abdullah, deceased. Ecclesiastical Cases, Vol. II. of these 
 Reports. 
 
30 CIVIL CASES. 
 
 Nobms.B. titles "arising out of a transmission, upon the death and 
 1838. " intestacy of any person, of such transmission were according to 
 
 Moeaiss and "the rules which regulate the transmission of free-hold property, 
 oes. " and took place before the said first day of October." It was 
 j. g • then contended that the tenure of these lands did not in truth 
 
 amount, by the terms of the grants, to a free-hold interest, arid 
 consequently that they could not have passed or been transmitted, 
 " according to the rules " in question, to the defendant as heir 
 at law, but must be considered as chattels real, and part of the 
 personal estate in his hai^ds as administrator for the general! 
 benefit of the next of kin. 
 
 What were the precise terms of the original grants by the 
 Dutch Government it is impossible now to ascertain, as it appears 
 that they are no longer in existence, and the references made to 
 them in the subsequent deeds of transfer are too loosely worded 
 to lead to any certain conclusion on that head; whilst the original 
 entries in the Dutch'rec'ords are not to be found. But the terms 
 of the agreement entered into by the present Government with 
 the deceased in the year 1828, in which the "grants issued by the 
 preceding Local Government" in 1781, and 1788,- are expressly 
 recognized, — undisputed acts of ownership, by himself and those 
 through whom he claimed, during the long intervening period, 
 distinctly recited, — and a covenant made with him " and his heirs 
 for ever, so long as the Settlement of Malacca remains under the 
 British flag ; " these terms, I say, are sufficient, in the absence of 
 evidence to the contrary, to warrant the presumption that the 
 original grants Were in the nature of a fee-simple; and the 
 annuity payable by the Government under the agreement in 
 question must be regarded in the same light and as descendible to 
 the heir. The last point urged was, that, even supposing the 
 lands to have been freehold, &' complete "transmission" to the 
 defendant as heir, " according to the rules " in question, had not 
 only not " taken place before the said first day of October;," but 
 was even yet wanting, inasmuch as the defendant had not per- 
 fected his title by a formal entry upon and taking possession of 
 the lands, as required by the rules of the English common 
 law. This objection, however, [not to mention that, even were 
 it good for anything, the plaintiffs would be estopped from urging 
 it by the very terms of their bill, which complains of the defen- 
 dant's having " entered and possessed himself," &c, &c] proceeds 
 altogether on a mistake. The heir becomes possessed in con- 
 templation of law without any a.ct of his own ; and his actual 
 seisin, whether by formal or constructive entry, though material 
 for the purpose of preserving the descendible quality of the estate 
 and enabling him, 5 in his turn, to become the stock or root to 
 future heirs according to the legal maxim [founded on f eodal 
 principles, which I need not stop to explain] seisinafacit stipitem, 
 is by no means necessary for the completion of his title as against 
 the personal representatives of his ancestor. 
 
 The result of the whole is that the defendant is clearly 
 entitled to judgment with costs, to be paid out of the estate. 
 The $662.73, which he was directed to pay into the hands of 
 
STRAITS SETTLEMENTS. 
 
 31 
 
 ORS. 
 V. 
 
 De Souza. 
 
 the receiver appointed by the Court, : whilst the question was Noreis, R. 
 pending, will also be repaid to the defendant, and his claim for 1838 " 
 interest on that amount daring the interim cannot be resisted, mobaiss and 
 He was not bound, and could not be supposed to have ready in 
 hand, to meet the unexpected and peremptory demand of the 
 plaintiffs, so large a sum claimed by them as assets belonging to 
 the general estate, but which, being parcel of the rental or 
 annuity payable by the Government, clearly belonged to himself 
 as heir to the landed property. He must therefore be allowed to 
 reimburse himself for the amount of interest due on this sum, at 
 the usual rate, out of any of the personal estate or assets which 
 may yet remain in his hands undistributed. 
 
 EDWAEDS v. WESTEEHOUT. 
 
 The plaintiff, the Editor of a "Weekly Paper, sued the defendant, the Deputy 
 Postmaster df Malacca, in trover, for the detention of certain journals and parcels 
 addressed to him as such Editor. The defendant pleaded and proved, that he detained 
 such letters and parcels by order of the Resident Councillor, until the person to whom 
 they, were addressed, declared in writing, the name of such Editor. 
 
 Held, the defendant was justified, in so detaining the journals and parcels. 
 
 The defendant was aware the plaintiff was the Editor of such paper, and had 
 always, theretofore, forwarded him all letters and parcels addressed to the "Editor," and 
 was present, in company with the Resident Councillor, on a previous occasion, when the 
 plaintiff in open Court, avowed himself the Editor. 
 
 Held,- these facts in no way deprived the defendant of his justification. 
 
 This was an action on the case, for trover and conversion of 
 the plaintiff's property. 
 
 It appeared that in August, 1839, the defendant, who had 
 charge of the Post Office, received a note from the Eesident Coun- 
 cillor of Malacca, desiring, that all communications arriving at the 
 Post Office, directed to the Editor of the Weekly Register, should 
 be detained, unless that person came forward and declared in 
 writing the name of the Editor of that journal^ in pursuance of 
 which, the defendant thought himself justified in detaining all 
 the journals to that address, which came into his possession. 
 The damages were laid at 50 Spanish Dollars. Plea — the General 
 Issue. 
 
 The plaintiff called no witnesses, but stated the fact of the 
 defendant having transmitted to him, all papers, letters, and 
 other communications arriving from sea to the address of the 
 Editor of that journal, up to the date' on which the packets in 
 question were first detained; and, therefore, could not have 
 been ignorant of the person and name of the Editor,; and the 
 same practice, he observed, had obtained in the time of his 
 predecessor, the late Deputy Postmaster. He also proved the 
 circumstance of his having avowed himself the Editor in open 
 Court on the 9th September, while the packets, &c, were so 
 detained, and that the Postmaster and the Eesident Councillor 
 were presiding on the bench as Magistrates, and had ordered a 
 register of the avowal to be made in the minute book. 
 
 The defendant did not deny the facts as stated by the 
 plaintiff, but pleaded in justification the orders of the Eesident 
 
 Malacca. 
 
 Noreis, E. 
 1839. 
 
 Dec. 27. 
 
32 
 
 CIVIL OASES. 
 
 Norris, B. 
 1839. 
 
 Edwards 
 
 v. 
 
 "VVesteb- 
 
 hout. 
 
 Councillor ; and handed in two notes from that authority — one, 
 desiring the stoppage as above set forth ; the other, ordering the 
 delivery of the detained packets on the 16th September. 
 
 The plaintiff called the attention of the Court to the Act of 
 the Indian Legislative Council regulating the publishing of peri- 
 odicals and other publications [or] ; and to the then recent Post 
 Office Act [6], which would clearly establish the fact, that the 
 Eesident Councillor could not interfere with the Post Office De- 
 partment. 
 
 Norris, B. The question for the consideration of the Court 
 I take it to be, was the defendant justified, under the orders he 
 has satisfactorily proved to hare received from the Eesident 
 Councillor, in detaining the packets addressed to the Editor of the 
 Weekly Register, until he had been satisfied, in the manner required, 
 of the name of the Editor? I am clearly of opinion he was; 
 and could not have delivered them until his instructions 
 had been complied with. The circumstance of the avowal 
 in open Court, as proved by the plaintiff, goes for nothing in my 
 estimation, as that was not a compliance with the terms of the 
 order. With respect to the legality of the order, I consider that 
 a question with which I have nothing to do ; nor can I allow 
 the subject to be mooted in this action. But as the plaintiff has 
 declared, that his object is not to seek damages, but to settle the 
 principle involved therein, and as the Eesident Councillor has 
 stated his intention to prevent the recurrence of what the plain- 
 tiff complains ; I think the plaintiff cannot recover. 
 
 Judgment for the defendant, each party paying his own costs. 
 
 Penang. 
 Noeris, E. 
 
 1840. 
 July 16. 
 
 EEVELY & CO. v. KAM KONG GAY AND ANOTHER. 
 
 The Statute of Frauds, 29 Car. II., o. 3, is law in this Colony. 
 
 Where goods are agreed to be sold, but no memorandum of the sale, is had, or part 
 payment of money is made, — the mere fact that the goods, not weighed or measured, 
 is left by the defendant, with the plaintiff simply for his [the defendant's] own con- 
 venience, and on the bills for their value being presented, promised to pay it in & few 
 days, — do not constitute " an acceptance and receipt of the goods, or part thereof," 
 within section 17 of the Statute. 
 
 The facts giving rise to this case, and the nature of the 
 questions discussed, are fully set forth in the judgment. 
 
 Balhetchet, for plaintiffs. 
 
 C. Baumgarten, for defendants. 
 
 Judgment having been given at the hearing for the defen- 
 dants, a more formal and written judgment was this day 
 delivered by 
 
 Norris, E.. This was an action to recover the sum of 252 
 Dollars for goods bargained and sold to the defendants, who 
 pleaded first the general issue, and secondly, "that the supposed 
 " contract was an entire contract for the sale of goods for a price 
 " exceeding £10 sterling, and that the defendants had not ac- 
 
 ' [o] Act 11 of 1835. 
 {&] Act 17 of 1837. 
 
STRAITS SETTLEMENTS. 33 
 
 " cepted and actually received the said goods or any part thereof, JI °?^' E " 
 
 " nor given anything as earnest to bind the bargain or in part " 
 
 " payment, nor was there any note or memorandum of the bargain Revely&Co. 
 " in writing signed by the defendants or their agents:" — the plea •• 
 being founded on the 17th section of the Statute of Frauds, 29 KA g* 0Ka 
 Oar. 2 C 23. and anob. 
 
 Mr. Balhetchet, the agent for the plaintiff's stated the goods 
 in question were 10 hhds. of arrack, containing, as was alleged, 
 630 gallons, which the defendants had agreed to purchase from 
 the plaintiffs at the rate of 40 cents per gallon, making 252 dol- 
 lars, the amount sued for and which is equal to between £50 and 
 £60 sterling. He admitted that there was no note or memoran- 
 dum of the bargain in writing, and that nothing had been given 
 by the defendants by way of earnest or in part payment; but 
 he contended that there had been sufficient receipt and accept- 
 ance on the part of the defendants to take the case out of the 
 Statute ; for he was prepared to shew that the defendants, after 
 having made the bargain, had, merely to suit their own conve- 
 nience, requested that the arrack might be allowed to remain for 
 a while at the plaintiff's godowns, and that when the bill of 
 parcels was presented for payment the defendants had pro- 
 mised to pay it in a couple of days. It was true the arrack had 
 not been actually measured and was still in the possession of the 
 plaintiffs ; but he contended that under the circumstances stated, 
 the right of property must be considered to have passed and the 
 goods to have been constructively delivered to the defendants, 
 within the meaning of the Statute. These facts being admitted 
 to constitute the plaintiffs' case, I considered it needless to hear 
 any evidence upon the subject, because, taking the facts for 
 granted, (and they were not disputed on the other side), they 
 were insufficient in my opinion, to take the case out of the Statute. 
 Accordingly, after noticing the cases cited and the arguments 
 urged by Mr. Baumgarten for the defendants and Mr. Balhetchet 
 for the plaintiffs, and making a few observations on the beneficial 
 nature of the Statute and the danger of allowing its salutary 
 provisions to be frittered away by subtle distinctions, I gave 
 judgment for the defendants with costs. I see no reason as yet 
 to doubt the correctness of the conclusion to which I came, nor 
 does the case appear to me intrinsically remarkable enough to call 
 for any lengthened notice. But as the plaintiffs' agent has sug- 
 gested that a more formal and detailed judgment may be general- 
 ly useful, inasmuch as the law m such cases, however well 
 settled in England, is but little known to the mercantile communi- 
 ty, whether native or European, in these Settlements, whilst it is 
 certain that the Statute is but little regarded in practice and has 
 not often been pleaded in this Court, I will re-state the grounds 
 of my decision. In so doing, however, I am anxious to 
 guard against any supposed acquiescence in what the sugges- 
 tion would in some measure seem to imply, and what on other 
 occasions I have heard contended for in direct terms, viz., that 
 allowance must be made for local habits of business and local 
 ignorance of English law. With regard to the former, it may be 
 
CIVIL OASIS. 
 
 /Nobkib, K. 
 
 1840. 
 
 v. 
 Kam Kong 
 
 Gay 
 And anor. 
 
 sufficient for me to remark, that I entirely concur in the senti- 
 ments expressed by my able predecessor, Sir B. Malkin, who, in 
 Eevelt&Co. reference to -" the lax practice" of a sister Settlement, observes as 
 follows : " An attempt was once made before me to establish a 
 ; custom of Singapore' to transact ordinary mercantile business 
 " in an irregular manner. Of course I did not recognise any such 
 " custom or treat men who had received their mercantile eduea- 
 " tion in Great Britain or India as entitled to relieve themselves 
 " from the ordinary restraints of the regular conduct of business 
 " by setting up any lax usage of so recent-introduction" [a]. Sir' 
 Benjamin instances the frequent question arising out of common 
 mercantile transactions in bills of exchange, insurances and cases 
 of salvage, in illustration of the serious injustice which might be 
 done to parties at a distance, were the Court here to recognise any 
 local usage at variance with the known "usage arid custom of 
 merchants " all over the world. And I am persuaded that any 
 such concession, to say nothing of its illegality, would j>rove 
 equally prejudicial to local interests, and so fur from giving 
 general satisfaction, would afford just grounds of complaint, 
 which would not fail to be loudly urged when occasion called for 
 it, even by those who had formerly advocated the mistaken indul- 
 gence. With respect to the plea of ignorance, it never has been, 
 and, for the most obvious reason, never ought to be listened to. 
 Ignorantia legis non excusat is a maxim of necessity, not peculiar 
 to our own jurisprudence but derived from the Roman law, and 
 pi'obably recognised in the codes of all civilized nations ; nor could 
 the rule be relaxed in favour even of the most ignorant classes 
 here without virtually casting the stigma of injustice upon the 
 rigid observance of the same rule from the earliest ages as 
 against the lower orders in our own country. But if ever there 
 were a law, an ignorance or disregard of which among mercantile 
 men were peculiarly undeserving of toleration, it surely is the 
 justly commended Statute in question; because there is no law, 
 perhaps, the wise provisions of which are more consonant to the 
 dictates of ordinary prudence, regularity and fair dealing, or 
 better calculated to insure the certainty and hence the security, 
 and uphold the honour and respectability of mercantile contracts; 
 particularly in the transactions of Europeans with natives, or of 
 different classes of natives with one another. Cases of apparent 
 hardship (and possibly the present may be one) will doubtless 
 sometimes arise, in which it may be surmised that the Statute 
 enables an unscrupulous defendant to triumph' over conscience 
 and good faith. But the objection, can seldom be made with a 
 good grace. It is an old and sound maxim, that he who seeks equity 
 must behave with equity; and the obvious reply will generally be 
 that the objector himself had not scrupled, by his disregard of the 
 Statute, to reserve to himself the advantage of a similar plea, 
 had he wished to repudiate the bargain. Besides, were the 
 Statute likely to be pleaded much more frequently than it has 
 hitherto been, could it be contended for a moment that the 
 
 [o] This will be found in a letter addressed by Sir Ben]. Malkin to the Govern- 
 ment of India in 1837. See Rep ort of InMan Law -Commissioners, 1843, p. 112, 
 
STRAITS SETTLEMENTS. 35 
 
 occasional dissolution of a bond fide bargain was a greater evil Nobeib, E. 
 than those so fearfully prevalent in these countries, and the 
 occurrence of which in a large class of cases the Statute was ex- revely&Co 
 pressly designated to prevent the "many fraudulent "practices, f. 
 
 which are commonly endeavoured to be upheld by perjury and subor- Ka ™ Konq 
 nation of perjury " ? So thought not the great men and experienced AND AN0E . 
 lawyers, Sir Malhew Hale, Sir F. North, and Sir Leonine Jenkins, 
 who are supposed to have drawn up this celebrated Statute ; nor 
 the long series of learned Judges who for nearly two centuries 
 have concurred in enforcing its provisions ; and it requires but a 
 tithe of their experience in Courts of Justice to be convinced of the 
 sour.d wisdom which led to the enactment and has ever since upheld 
 it. If this Court, therefore, is resolved, as I hope it always will be, 
 upon a rigid adherence to the Statute, whenever the benefit of 
 its provisions may happen to be claimed, I can say, for myself 
 at least, that the determination will not have arisen from any 
 acquired partiality for legal trammels or from the slightest indis- 
 position to waive unmeaning technicalities, [for few Courts enjoy 
 or have exercised a larger discretion in this respect,] but from a 
 thorough conviction of the justness, propriety and policy of up- 
 holding a law especially designed and calculated for the preven- 
 tion of fraud and perjury and the- encouragement of fair, and 
 honorable dealing among merchants. 
 
 With these preliminary observations which I need scarcely 
 say have no especial reference to the parties in the present suit, 
 I proceed to re-state the grounds of my decision in favor of the 
 defendants, as shortly as I can consistently with the desire to 
 render myself intelligible to those who are not in the habit of 
 reading the reports of law cases. The 17th section of the Statute 
 on which the plea is founded is as follows : " No contract for the 
 " sale of any goods, wares, and merchandizes, for the price of 
 " ten pounds or upwards, shall be good, except the buyer shall 
 " accept part of the goods so sold and actually receive the same ; 
 " or give something in earnest to bind the bargain, or in part of 
 " payment ; or that some note or memorandum in writing, of the 
 " said bargain, be made and signed by the parties to be charged 
 " by such contract, or their agents thereunto lawfully autho- 
 " rized." 
 
 Now the only question in the case is, whether under the cii> 
 cumstances stated by the agent of the plaintiffs as above, there was 
 a sufficient actual or constructive delivery to and acceptance of the 
 goods by the defendants, within the terms of the above section ? 
 And to decide this, it is hardly necessary to do more than to refer 
 to one. or two of the cases cited by the agent of the defendants. 
 The first is that of Howe v. Palmer [3JB. & A. 321,] where the 
 defendant verbally agreed at a public maiket with the agent of 
 the plaintiff to purchase twelve bushels of tares [then in the plain- 
 tiff's possession and constituting part of a larger quantity in bulk] 
 to remain in plaintiff's possession till called for, and the agent on 
 his return home measured the twelve bushels and set them apart 
 for the defendant. It was held that this did not amount to an 
 acceptance by the latter ; " for," said Lord Tenterden [then C. J. 
 
AND ANOK. 
 
 86 CIVIL OASES. 
 
 NobmbjR. Abbott] "if he had once accepted he could not afterwards have 
 
 184() - "made objection, even if it turned out that the tares did 
 
 Eevelt&Co. "not correspond with the sample. But it is clear that he 
 
 *> " had a right to make any objection at the time when they 
 
 KA GA C ° Na " were ten dered to him for acceptance. If the defendant had 
 " discovered upon inspection that the tares did not correspond 
 " with the sample, it is impossible to say that he might not then 
 "have made the objection ; and so far it is clear that there was 
 " no previous acceptance on his part." It was admitted by the 
 agent of the plaintiff that the only difference in principle which 
 he could perceive between this and the case of his clients arose 
 from defendants' subsequent promise to pay the amount of the bill 
 of parcels. There is, however, another point of difference between 
 the two cases, to be presently noticed. But that a promise to 
 pay would not at all have affected the principle of the above deci- 
 sion, is evident from a subsequent case to be found in the same 
 volume. Tempest v. Fitzgerald, 3 B. & A. 680, and which in this 
 respect more nearly resembles the present. In that case the 
 defendant agreed to purchase a horse from tbe plaintiff for ready 
 money and to take him within a time agreed upon. About the 
 expiration of that time the defendant rode the horse and gave direc- 
 tions as to its treatment, &c, but requested that it might remain 
 in the plaintiff's possession for a further time, at the expiration of 
 which he promised to fetch it away and pay the price. It was con- 
 tended for the plaintiff that the defendant's acts amounted to an 
 acceptance and were acts of ownership. But Abbott C. J. in giv- 
 ing judgment, says, " I am of opinion that the defendant had no 
 " right of property in the horse till the price was paid." Bayley J. 
 says, "If the argument of the plaintiff were to prevail, the de- 
 " fendant might have maintained an action for the horse without 
 " paying the price, which would be contrary to the express terms 
 ' of the contract." and Holroyd J. says, "Admitting for the sake 
 " of argument that the property had been changed, still there is 
 " no evidence to shew that the plaintiff had ever parted with the 
 " possession or control, and if he had not, he had at all events a 
 " lien for the price, and the defendant could not be justified 
 " in taking it away until the price were paid." These cases 
 appear to me to be quite decisive of the present, and could 
 scarcely have been decided otherwise without a virtual repeal of 
 this part of the Statute ; the objects of which are very clearly 
 explained by Lord Tenderden and Mr. Justice Holroyd in the above 
 cases. "The Statute of Frauds," says the former, " is one of 
 " the most important and beneficial Statutes to be found in the 
 " books. One of its objects was to require written testimony or 
 " memorials of contracts, such as are acquired by the laws of most 
 " countries." And Mr. Jurtice Holroyd observes. " The object of 
 " the Statute was to remove all doubts as to the completion of the 
 " bargain, and it therefore requires some clear and unequivocal 
 " acts to be done in order to shew that the thing had ceased to be 
 " in fieri. Those acts are, either that the buyer shall accept part 
 " of the goods sold and receive the same, or give something in 
 " earnest or in part payment, or that the contract be reduced 
 
STRAITS SETTLEMENTS. 
 
 3? 
 
 Kam Kong 
 Gat 
 
 AND ANOB. 
 
 " to writing. These are all acts that clearly and equivocally Noeeis, K. 
 " shew that the bargain is executed." ' 
 
 But the plaintiff's agent has referred me to the commentaries Revely&Co 
 of a very learned American Jurist, Mr. Chancellor Kent, from 
 which it is satisfactory to find that the provisions of our English 
 Statute, with few modifications, obtain generally in the United 
 States. I ca.n find nothing, however, in that valuable wort but 
 what entirely coincides with the decisions of the learned Judges 
 in England, which are constantly cited by the author in support 
 of his positions. And the conclusion which lie draws from the 
 two cases abovementioned [after observing that " the case of 
 " Elmore v. Stone, 1 Taunt 458, has been since questioned, as car- 
 " rying the doctrine of constructive delivery to the utmost verge of 
 " safety,"] is as follows : " The presumption tof he delivery is not 
 "readily allowed, when there has been none in fact, for it goes to 
 " deprive the seller of the possession and of his lien without pay- 
 ment." 
 
 Again, he thus recognizes the principles laid down, not only 
 in various decisions of the English Courts, but by Vinneous, 
 Pothier and other commentators on the Civil Law : " If anything 
 "remains to be done, as between the seller and the buyer, before 
 " the goods are to be delivered, a present right of property does 
 " not attach in the buyer. This is a well established principle in 
 " the doctrine of sales. It is a fundamental principle pervading 
 " everywhere the doctrine of sales of chattels, that if the goods 
 "be sold by number, weight or measure, the sale is incomplete and 
 " the risk continues with the seller, until the specific property be 
 " separated and identified." In the present case, the arrack, as 
 admitted, had not been ganged or measured which is the point 
 above alluded to as constituting a further distinction between 
 this case and that of Howe v. Palmer, and a distinction of course, 
 still more adverse to the present claim. 
 
 The result is, that the defendants are clearly entitled to 
 judgment with costs. 
 
 SULTAN OMAE AKAMODEN 
 
 Singapore. 
 
 Noeeis, E. 
 1841. 
 
 NAKODAH MAHOMED CASSIM. 
 
 The words in the Charter of 182G, defining the Civil Jurisdiction of the Court 
 over " all pleas the causes of which shall or may thereafter arise against any persons 
 who shall be resident within the Settlement," mean resident at the time of action 
 brought, and not at time the cause of action arose. 
 
 Where therefore the defendant and plaintiff entered into a contract for the sile 
 of certain chests of opium at Sambas in Borneo where they were both resident at the September 2 
 
 time, but after the defendant had committed a breach there, they both came to this 
 
 Settlement/where the plaintiff sued the defendant, 
 
 Held, this Court had jurisdiction to entertain the suit. 
 
 Where a Foreign Sovereign Prince sues in the Courts of this Colony, a person 
 resident here, the Court in compelling the defendant to answer, will couple with the 
 order, that the Sovereign Prince will submit to the jurisdiction, in case of a cross 
 action, so that the remedies might be mutual. 
 
 The Columbian Government v. Rothschild, 1 Simon 81, followed. 
 
 The nature of the questions decided herein, and facts and 
 
38 
 
 CIVIL CASES. 
 
 Nobbis, E. pleadings giving rise thereto, sufficiently appears in the judgment. 
 1Sil - The plaintiff in person. 
 
 Sultan 
 
 Qmab Aka- 
 
 moden 
 
 v. 
 
 NakoBah 
 
 M. Cassim. 
 
 Napier for defendant. 
 
 Cur. Adv. Vult. 
 
 On this day judgement was delivered by 
 Norris, R. This is a Petition or Bill on the Equity side of 
 the Court calling upon the defendant for a discovery to enable 
 the plaintiff to recover damages for the breach of an alleged 
 agreement by the defendant to supply him with 100 chests of 
 opium ; by the non-fulfilment of which agreement, it is averred, 
 the plaintiff has been disabled from completing his own engage- 
 ments as Opium Parmer to the Dutch Government at Sambas, 
 in the island of Borneo, and thereby sustained a loss of 6,000 
 Guilders. 
 
 To this the defendant pleads, " that the Court has not juris- 
 " diction in nor can hold plea of the matters in the said petition 
 " contained, and cannot take cognizance of the same, but that the 
 " same appertain to and are in the cognizance of the tribunals of 
 " Sambas in Borneo, in the said petition mentioned, and in which 
 " place the alleged matters are stated to have taken place ; and the 
 " defendant further pleads, that although it appears by the said 
 " petition that the complainant at the time therein mentioned was 
 " Opium Farmer at Sambas in Borneo aforesaid, yet that in point 
 " of fact, the complainant was and is the Eajah or Sovereign of the 
 " State or Territory of Sambas aforesaid, which is and always has 
 "been his place of residence and that being a foreign Potentate, 
 " and not subject in person or effects to the jurisdiction of this 
 " Court, it is not competent for him to file his petition therein to 
 " compel this defendant to answer, where he has not any remedy 
 "by cross-bill or otherwise against the complainant." 
 
 On the strict principles of pleading, this plea would probably 
 be held- objectionable and bad for duplicity, as containing two 
 distinct matters, each professing to be a complete bar to the 
 action. But as this Court enjoys by its Charter a happy immu- 
 nity from all needless technicalities, and is bound in all cases so 
 to shape its proceedings as to attain substantial justice ; as the 
 objection to the plea, if avilable at all, could only have been 
 properly taken advantage of by special demurrer, whereas the 
 complainant has neither demurred nor replied, the question for 
 present decision standing simply on the arguments of the respec- 
 tive Agents for and against the plea ; and as it is but justice that 
 the defendant should have his remedy, if required, by cross-bill 
 or otherwise ; I should have had no difficulty [independently of 
 the authority cited by Mr. Napier, which .is strictly in point. 
 The Columbian Government v. Rothschild, 1 Sim. 84,] in accom- 
 panying an interlocutory decree for an answer to the petition 
 or bill of complaint with a condition binding the eomplainent's 
 representative, Syed Omar, who has already given security for 
 costs, to appear and answer any cross-bill which may be filed 
 against his constituent. So much as to the latter portion of the plea. 
 
STRAITS SETTLEMENTS. 
 
 89 
 
 MODEN 
 V. 
 
 Nakodau 
 M. Cassim. 
 
 The former part raises a larger and more important question, Norms, E. 
 for as observed by Sir Thomas Strange, [Notes of Cases, Vol. I., 1841 - 
 155] "not to mention the nicety that often belongs to them, Sultan 
 there .are few questions of greater importance in Courts of Justice Omab Aka 
 i ban questions of j urisdiction, there being few that eventually 
 affect a greater number of future cases." The question is, whether, 
 under the circumstances, the cause of action having confessedly 
 arisen out of the local jurisdiction, the Court can take cognizance 
 of the complaint ? And the case of Nakoda 3Iapey v. NaJcoda 
 Mourana, decided by myself in this place, last December, is 
 referred to by the defendant's Agent as a direct authority in the 
 negative. But the features of that case, it is hardly necessary to 
 observe, were materially different from those of the present. 
 There, the demand was of 9 or 10 years standing, the defendant, 
 a mere casual sojourner, and both parties inhabitants of the same 
 Island, Celebes, if not of ,the same village where the cause of 
 action arose, where they were both on the eve of returning, where 
 there was a, common tribunal to resort to, and where the wit- 
 nesses on both sides were at hand. It may fairly be presumed, 
 therefore, that in point of fact the ends of substantial justice 
 were better secured by referring the parties to their own country 
 and tribunal, than by consenting to entertain the enquiry here. 
 In the present instance, on the contrary, the cause of action is of 
 recent origin, and the defendant an old established resident, who 
 is not likely, for aught that appears, to afford the complainant an 
 opportunity of seeing him in Borneo; so that injustice might 
 probably be done should the Court refuse to hear the complaint. 
 But, can it do so consistently with the terms of the Charter, the 
 cause of action having arisen out of the local jurisdiction ? That 
 is now the question and the sole one, for decision ; for the ques- 
 tion of actual or constructive inhabitancy, on which the decision 
 in the former case in a great degree turned, does not arise in the 
 case now before the Court. 
 
 The clause of the Charter, page 22, defining the personal 
 jurisdiction of the Court over " all pleas the causes of which shall 
 or may hereafter arise, &c, against any persons who shall be resi- 
 dent within the said Settlement, &c," is certainly ambiguous; 
 for it is not clear whether residents at the time of the contract 
 or cause of action, residents at the tirc^ of the suii", or both these 
 classes of residents are meant. Prima facie, however, the first class 
 only would seem to be intended ; for if residence were meant to be 
 the sole test of jurisdiction, why advert to the " cause" of action 
 at all, instead of simply adhering to the terms used in the Char- 
 ters of H. M. Courts at the Presidencies, that is in the Bombay 
 and Madras Charters respectively, and in that of Calcutta as ex- 
 plained by the Stat. 21 Ceo. 3rd, c. 70, viz. : " All.suits and actions 
 against the Inhabitants." That the ordinary civil jurisdiction of 
 the Straits Court was meant to be limited to contracts and other 
 causes of action of local origin, would seem to be further inferrible 
 from the terms employed in pages 9, 10 and 12 of the subsequent 
 Charter of 1837, conferring Admiralty jurisdiction. In page 12 
 of this, latter Charter, it is expressly provided that the jurisdiction. 
 
40 
 
 CIVIL OASES. 
 
 Nobeis, R. 
 1841. 
 
 Sultan 
 Omab Aka- 
 
 MODEN 
 V. 
 
 Nakodah 
 M. Cassim. 
 
 of the Court, " in maritime causes" shall extend " only to such 
 persons as, pursuant, to the provisions therein before contained, 
 are and would be amenable to the said Court in its ordinary 
 jurisdiction." Now the "provisions therein before contained," 
 in that behalf, are those in pages 9 and 10, wherein the juris- 
 diction is limited to " causes civil and maritime, and all pleas of 
 contracts, debts, &c, &c, contracted, done, had, or commenced in, 
 upon,-or by the sea or public rivers, or ports, creeks, harbours, &c, 
 &c, without, throughout, and about the settlement of Prince of 
 Wales' Island," &c. The indistinctness of the clause in the first 
 Charter is, therefore, it should seem, cleared up by the more 
 precise language of the latter, and the collation of both would 
 appear to warrant the conclusion, that as is the Admiralty, so was 
 the ordinary jurisdiction of the Court meant to be restricted to 
 contracts and other causes of action arising within the local limits 
 of the Settlement. This restricted operation of the Court's powers 
 in the civil branch of its Admiralty jurisdiction [and by conse- 
 quence, apparently, in its ordinary civil jurisdiction also,] is 
 further manifest by contrast with the extensive powers immedi- 
 ately before conferred upon it in the same clause, pages 11 and 
 12, in its criminal jurisdiction, " to take cognizance of all crimes 
 committed on the high seas by any person or persons whatsoever." 
 And further still [according to the rule exceptio probat regulam] is 
 this limitation of the civil jurisdiction made apparent by the 
 terms of the Statute 2 Win. IV., c. 51, s. 6, by which in certain 
 cases therin mentioned, Vice-Admiralty Courts are declared to 
 have jurisdiction, " notwithstanding the cause of action may 
 have arisen out of the local limits of such Courts." 
 
 In addition to all this some decisions of the Supreme Court 
 of Madras as reported by Sir Thomas Strange, appeared to furnish 
 authoritative precedents for our declining here to exercise juris- 
 diction in cases analogous in some respects, though not in all, 
 to that of Nakoda Mapey v. Nakoda Mourana, which as already 
 observed, the Court refused to entertain last year. The cases in 
 Sir T. Strange's reports to which I more particularly called 
 attention to, are, those of Nagapah Chitty v.llachummah, vol. I., 
 page 152 ; and Earn Narrain v. Nursiah, vol. II., page 289. In the 
 former of these, the Chief Justice, Sir T. Strange in delivering 
 the opinion of the Court, remarked as follows : — 
 
 " It has been truly observed that it is impossible to argue 
 " in this Court from analogous cases of jurisdiction in the Courts 
 " at home ; those Courts being by their constitution, according 
 " to their respective modes and purposes of proceeding, the great 
 " depositaries of the universal justice of the realm, and as such, 
 " in every instance in which it is .attempted to withdraw a case 
 " frum their cognizance, bound to see distinctly and unequivo- 
 cally that a jxirisdiction adequate to the object in view exists 
 " elsewhere. If that be not stated, so as to appear to the Court, 
 "a plea to _ the jurisdiction fails and the jurisdiction remains. 
 " But here it is different, because though co-ordinate in its nature 
 " with those Courts so far as its jurisdiction attaches, the juris- 
 " diction of this Court is limited with reward +.n nmnr S » &.,», &« 
 
 diction of this Court is limited with regard to persons," &c 3 &c. 
 
STRAITS SETTLEMENTS. 
 
 41 
 
 MODEN 
 
 V. 
 
 NAKODAH 
 
 M. Cassim. 
 
 In the other case, the Court said : " they thought that inhabi- No "*™»' K * 
 
 " tant for the purpose of jurisdiction meant resident and that a ' 
 
 " constructive inhabitancy would not do . . . what a condition Sultan 
 
 " a stranger might find himself in, arrested suddenly for a large 0l J^£f A " 
 
 " demand, not belonging to the place, but casually at it, being an 
 
 " inhabitant perhaps of the extreme point of the peninsula ! 
 
 " How would he be able to find bail ? Then as to his defence to 
 
 " the action ; he might have to send for his witnesses to a most 
 
 " inconvenient distance, — in nineteen cases out of twenty he 
 
 " would not find them at Madras. Natives residing in the interior 
 
 " have no conception of the Supreme Court ; they do not contract 
 
 " or carry on their dealings with reference to it. The Native 
 
 " residents do." If these passages do not expressly state, they 
 
 at least strongly imply, that the legal maxim, debitum et contractus 
 
 sunt nullius loci, ought, in the opinion of the Supreme Court of 
 
 Madras, to be received in India with greater qualification than in 
 
 England ; and that inhabitancy alone would not be sufficient to 
 
 ground jurisdiction where the contract or cause of action arose 
 
 elsewhere and with reference to Tribunals. 
 
 I have thought it necessary to go thus much into detail, in 
 order to explain clearly the grounds of ray decision in the former 
 case, and to avoid the appearance of inconsistency, now that I feel 
 myself obliged, in deference to the weight of authorites to which 
 I have since had access [and which being ot very recent publica- 
 tion were necessarily unknown to me before] to decide somewhat 
 differently in the present instance; though, had the question 
 depended simply on the construction of our own Charters without 
 reference to the earlier Charters of the Supreme Courts at the 
 Presidencies, I should still have thought there was at least 
 room for the doubt whether the Court could properly take cogniz- 
 ance of the present suit. The chief authority to which I refer is 
 the case of Madoo Wissenauth v. Ballo Gunnasett reported in pages 
 149 to 158 of a Volume of Decisions of the Supreme Court at 
 Calcutta, published a few moths ago by Mr. Morton, a Barrister 
 of that Court. The case in question, which is appended by way 
 of note to other decisions on questions of jurisdiction at Calcutta, 
 was decided in the Eecorder's Court at Bombay so long ago as Jan- 
 uary 1818, by the then Recorder, Sir Alexander Anstruther, from 
 whose manuscript notes it is now apparently published for the 
 first time. And, as the reporter informs us in aD appendix at 
 at the end of the volume, " the doctrines contained in this able 
 " judgment appearing to have been regarded by the local Govern- 
 " ment as dangerous innovations unauthorized by law," references 
 upon the subject were in consequence made to the Advocates 
 General, Maclin and Spankie, and to the Counsel of the Court of 
 Directors, Mr. Serjeant (now Justice) Bosanquet ; whose opinions 
 are also reported at length and appear fully to concur with those 
 expressed by Sir A. Anstruther. The learned Judge, in his very 
 luminous judgment, expressed his " perfect acquiescence in the 
 "decision of most of the cases upon the subject in Sir Thomas 
 " Strange's notes at Madras ;" but he dissents from one of them, 
 thinks another questionable, and dissents also from " some of the 
 
42 
 
 CIVIL CASES: 
 
 Nobeis, E. 
 1841. 
 
 StTLTAN 
 
 Omak Aka- 
 
 MODEN 
 V. 
 
 Nakodah 
 M. Oassim. 
 
 " reasoning which the Judges appear to have employed in support- 
 " ing them." I have already quoted the observations of the Court 
 at Madras with reference to the argument' from analogous cases 
 of jurisdiction in the Courts at home. On this subject, Sir A. 
 Anstruther remarks as follows, " a foreigner arriving in England 
 " for whatever purposes, in time of peace, is immediately answer- 
 " able in the Courts of the Country for all claims of . personal 
 " contract wherever arising, and there must be some direct and 
 " clear words to shew that the Court of the Recorder of Bombay, 
 " which is expressly declared to have in general all authority 
 " which the Courts of Westminster Hall have in England, shall 
 " not be able to hold jurisdiction over an Arab or Mahratta in 
 " Bombay, under the same circumstances in which the Courts at 
 "Westminster would hold jurisdiction over a Frenchman or a 
 " German." He admits, however, the anibiquity of the Statute 
 and Charter of 1797, which leave it doubtful [as in our own 
 Charter] whether inhabitancy at the time of the contract or of the 
 suit, or of both, is to be the test of jurisdiction. But in determin- 
 ing this question he possessed an advantage which this Court has 
 not, and of which he naturally availed himself, viz., the language 
 of prior Charters " as explaining the meaning of the Statute and 
 " of the new Charter granted upon the same subject." He refers 
 accordingly to the first Charter, 13 Geo. I., establishing the Mayor's 
 Courts in 1726, and giving jurisdiction over all persons "residing 
 or being in" each Presidency, either "then," [i.e., at the time of 
 the complaint or action brought] or "at the time when such 
 cause of action did or shall accrue." The second Charter, that of 
 Geo. II., in 1753, "retained," he observes, "in favour," of Euro- 
 " peans, the same jurisdiction over inhabitants of Bombay, either 
 " at the time of contract or cause of action, or at the time of the 
 " action being commenced . . . The Statute and Charter of 1797 
 " are to be construed by those former Charters when they are 
 " otherwise ambiguous . . . The Statute and new Charter do 
 " not introduce any limitation of the jurisdiction to inhabitants 
 " at the time of the suit brought, in exclusion of the inhabitants 
 " at the time of -the cause of action accruing, but use terms which 
 " certainly may include both those classes of inhabitants ; and 
 " the former class seem to have been more peculiarly in contem- 
 " plation, not only from the. former Charters but from those parts 
 "of them which are retained in the new Charter. 'The new 
 "Charter of 1797 expressly retained to the Recorder's Court all 
 |' jurisdiction which existed in the Mayor's." He therefore held 
 it to be " clear that one, who was inhibitant of Bombay at the 
 time of the commencement of the suit is liable to the jurisdic- 
 tion." He then examined the question whether any particular 
 duration of time is necessary to constitute inhabitancy or resi- 
 dence for the purposes of jurisdiction ; but as that point is not at 
 issue in the present case, it is needless to enter upon it here. 
 This construction of the Bombay Charters is entirely confirmed 
 by the similar construction put upon the Charters of the Supreme 
 Court at Calcutta, as appears from a note upon the Statute 21 
 Geo. 3rd, c. 70, s. 17, in Smoult and Ryan's valuable collection: of 
 
STRAITS SETTLEMENTS. 
 
 43 
 
 the HmUs and Orders of that Court, lately published ■with 
 the sanction of the learned Chief Justice, Sir E. Eyan, 
 [vol. I., p. 66] . The Judges of that Court, it seems, have consi- 
 dered this Statute in which the words, " Inhabitants of the City 
 of Calcutta," are, for the first time mentioned, not as giving the 
 Court, for the first time jurisdiction over the inhabitants of Cal- 
 cutta but as merely a declaratory Act, which neither extended 
 nor narrowed the jurisdiction before enjoyed, but corrected an 
 erroneous construction which had been put on the previous Acts 
 of Parliament. And in support of this, positive reference is accord- 
 ingly made in the note in question ,to the terms of the previous 
 Charters and the same conclusion drawn as that by Sir A. Anstru- 
 ther, viz., that the present jurisdiction is co-extensive with that 
 of the Mayors Court, and includes [independently of the Statute. 
 21 Geo. 3rd] all persons being inhabitants whether at the time 
 the cause of action accrued, or at the time of action brought. 
 And this is the more material to the present purpose, because the 
 words of the present Charter of the Calcuttta Court, in the 
 corresponding clause, much more nearly resemble those of our 
 own than the words in the Bombay Charter., 
 
 On the whole, then, considering the ambiguity of the terms 
 of our Charter on the point in question, and the want of any 
 good reason, so far as I can discover, for supposing that the juris- 
 diction of Her Majesty's Court here was intended to be less 
 extensive in its general nature than that of Her -Majesty's Courts 
 at the Presidencies, I am bound, in the absence of preceding 
 Charters which might solve the difficulty, to resort to the next 
 best mode of ascertaining the meaning and intent of the fraroers, 
 viz., the terms used in the corresponding clauses of the Charters 
 of those Courts, and the construction put upon them by the learned 
 Judges presiding therein. What these are I have shewn ; and 
 the authorities referred to, in my opinion decisively establish the 
 point, and this Court cannot refuse to entertain the present 
 suit, the defendant being a resident in the Settlement at the time 
 of action brought; notwithstanding the fact that the cause of 
 action arose out of the jurisdiction. The plea to the jurisdiction 
 is therefore overruled, and the defendant is ordered to file his 
 answer within the usual time ; the complainant's Agent under- 
 taking to appear and answer any cross-bill which may be filed 
 against him. Costs to abide the event of 'the suit. 
 
 Norms, E. 
 1841. 
 
 Sultan 
 Omak Aka- 
 
 MODBJf 
 v. 
 
 Nakodaii 
 M. Cassim. 
 
 BEOWN AND OES. v. HEEEIOT. 
 
 Mats nailed to the floor, oil-cloth nailed to a stair-case, and punkahs fixed to and Penang. 
 
 depending from the ceiling by ropes and screws, are, both by law, and the custom in 
 
 Penang, [a] fixtures. Norris, E. 
 
 Where the plaintiff had purchased a house with its appurtenances, of the defend- 1842. 
 
 ant's principal, paid his purchase money and received his conveyance, and the defend- 
 
 ant thereafter removed the aforesaid articles from the house, which were attached April 5. 
 thereto in the manner stated, 
 
 ' Held, that the articles— in the absence of an agreement to the contrary— passed, 
 
 [a] The custom in Penang, it is believed, has since materially changed.— J. W.N.K- 
 
44 CIVIL CASES. 
 
 Noams, E. as fixtures, with the house, under the conveyance, to the plaintiff , and the defendant 
 1842. was liable in trover for their conversion. 
 
 Brown and The Statute of Enrolment, [2,1 Henry VIII., c. 16] does not extend to this 
 
 oes. Colony. 
 
 v. 
 Hbbeiot. 
 
 Trover for mats, oil-cloth, and punkahs. Plea, the general 
 issue. 
 
 The facts were as follows, and arose in connection with the 
 sale of Sans Souci house and grounds, which belonged to a Mrs. 
 Durand, to the plaintiffs. A Mr. Stuart had acted as the agent 
 for Mrs. Durand, and the correspondence between him and the 
 plaintiffs, are set out. On the 19th January, 1842, Mr. Stuart 
 wrote to Mr. F. S. Brown, one of the plaintiffs, offering the house 
 for sale. On the 20th, Mr. Brown in reply wrote that he was 
 willing to purchase Sans Souci for 3,500 dollars, — " the payment 
 " to be by two equal instalments, the first in six and the other 
 " in twelve months — that two promissory notes running at interest 
 " at 7 per cent, per annum for the respective instalments should 
 " be given on the day that a bill of sale and possession of 
 " the property were delivered to the purchaser." On the 21st* 
 Mr. Stuart in a note accepted on the part of Mrs. Durand, Mr. 
 Brown's offer according to the terms of his note, adding — " she 
 " will execute the bill of sale on Monday" [the 24th,] " and 
 " hopes that you will allow us nine or ten days from that date to 
 " give us time to embark and get rid of our traps." On the 24th, 
 Mr. Brown wrote to Mr. Stuart, that he would receive the bill of 
 sale and grant the notes that day, and would be happy " to 
 " allow Mrs. Durand and Mr.' Stuart's family to remain in occu- 
 ■ ' pation of the house for the ten days they required it." It was 
 not until the 26th that the deed of bargain and sale, which had 
 been signed and sealed on the 25th, was delivered to the plaintiffs. 
 On the same day, [the 26th] they sent to Mr. Stuart the two 
 promissory notes. After receiving them, Mr. Stuart wrote that 
 " the transaction was all right in terms of Mr. Brown's piote." 
 This note of Mr. Stuart contained another paragraph which was 
 as follows : — 
 
 " There are several things in the house belonging to her [Mrs. 
 " Durand], which it will be for the interest of both parties per- 
 " haps that you should take. When would you like to look at 
 " them, &c. Mrs. Purafid bought the things alluded to, or the 
 " great part of them rather, from Sir B. Malkin." A sale of 
 Mr. Stuart's effects was advertised to take place at the house on 
 the 3rd of February, and Mr. Stuart left the Island. On the 31st 
 of January, the defendant [Herriot] wrote to the first plaintiff. 
 " If you wish to see the fixtures in the house at Sans Souci, I shall 
 f be most happy to shew them to you, and should like in that case 
 " that you would appoint sometime either to-day or to-morrow for 
 " that purpose, as in the event of your not taking them, I might 
 " have time to remove them from the house before the sale of Mr. 
 " Stuart's effects takes place " The first plaintiff in reply wro^e 
 that " he would look at the things Stuart was talking about, &c." 
 « I do not understand what you mean by fixtures — of course, these 
 
STRAITS SETTLEMENTS. 
 
 " always go with a house." The plaintiffs went to the house, 
 but refused to purchase the fixtures, which are the subject of this 
 action on the ground that they were their own property. On the 
 1st February, the defendant wrote that he was quite satisfied 
 that the furniture, mats, &c, were the property of Mrs. Durand, 
 and that, if plaintiffs would not buy them he would remove them. 
 Plaintiffs replied that, if the defendant removed any fixtures 
 [and such they considered the mats that were nailed down, stair- 
 case oil-cloth, and punkahs], he would do so at his risk and 
 responsibility as those belonged to them. They, however, re- 
 peated the offer which they had previously made to submit the 
 difference to arbitration. This offer, the defendant rejected as 
 he considered he was not authorised to accept it. The period of 
 ten days that had been allowed to Mr. Stuart for the purpose of 
 disposing of his furniture expired on the 3rd February. The 
 auction was not concluded, however, uutil the 4th. On the 
 morning of the 5th, the defendant detached from the house, and 
 removed the articles with the conversion of which he was now 
 charged. The registered conveyance and the correspondence were 
 put in and admitted, and witnesses were called to prove the 
 conversion and the damage thereby sustained, and also the cus- 
 tom of Penang with l-espect to- fixtures. It appeared from the 
 evidence that it was usual for the builders of houses to complete 
 them by fixing punkahs and mats — that these always passed 
 on any transfer of a house without being specially mentioned in 
 the agreement of sale, — and that when they were to be reserved 
 there was always a stipulation to that effect. The defendant 
 remained a day and night in the house, after removing the 
 articles. 
 
 J. R. Logan, for plaintiffs. The circumstances of the case 
 appear so clearly upon the face of the letters, that the questions 
 to be decided are chiefly legal ones. Were the articles mentioned in 
 the petition fixtures, and did they pass with the conveyance of the 
 house ? As to the first point, it might be sufficient to say that the 
 defendant in his own letters h;is uniformly designated the articles 
 as fixtures. But fortunately the law is so clear that we do not 
 require to take advantage of such admission. Whatever uncer- 
 tainty may attach to the law of fixtures in those numerous cases 
 in which the conflicting interests of landlords and tenants require 
 the decision of the Courts, questions Ms between sellers and 
 purchasers admit of more easy determilfetioii. The broad dis- 
 tinctions which at one period embraced the whole law of fixtures 
 have long diverged into numerous intricate and uncertain doctrines 
 which have been conceded to the varying and accumulating claims 
 of commerce. But none of the reasons which have lead the 
 Courts to break through the rigid rules of feudal times to adapt 
 the law better to the exigencies of trade, operate in favour of mere 
 sellers. They are to be considered as standing in the place of 
 Executors, and the rules which regulate the rights of heirs and exe- 
 cutors retain their original simplicity and force. " The general 
 " rule relating to the right to fixtures, is that between the heir 
 " and executor ; and, as between them, the second class of articles 
 
 Norms, E. 
 1842. 
 
 Brown and 
 
 OHS. 
 V. 
 
 Hebbiot. 
 
CIVIL OASES. 
 
 NOEBIB, R, 
 
 184a. 
 Brown and 
 
 Herriot. 
 
 " [fixtures commonly so called, butremoveable as between landlord 
 " and tenant] would belong to the heir ; all the other cases as to 
 " landlords and tenants, and execution creditors, are mere excep- 
 " tions in favour of trade" per Bayley J. in Colegrave v. Bias 
 Santos [2 B. and C. 77] ; Lord Mansfield says, " all the old cases 
 " lean in favour of the heir, and the relaxations have only been 
 " in cases between landlord and tenant, and between tenant for 
 " life and the remainder man." In the celebrated case of Elwes 
 v. Maw, [3 East 38,] Lord Ellenborough said, that " as between heir 
 " and executor, the rule obtains with the most rigour in favour 
 " of the inheritance, and against the right to disannex therefrom, 
 " and to consider as a personal chattel anything wbich has been 
 " affixed thereto." 
 
 There are two modes of converting articles, moveable in them- 
 selves into immoveables, which must be attended to in this case. 
 Things may become heritable by accession, by being affixed to the 
 freehold by means of nails, screws and the like, or by being built 
 or let into it. In this manner the mats and oil-cloth claimed by 
 tbe plaintiffs were attached to the house, and it will probably be 
 considered that the punkahs, which were suspended by hooks let 
 into the ceiling, were also heritable by accession. But, even, 
 things which may be dissevered from the realty without injury 
 to it may become heritable by destination. Whenever it can be 
 demonstrated or inferred that it was the intention of the owner 
 that the articles should be permanently annexed to the' freehold 
 they are irremoveable by the executor. 
 
 The intention of the parties prescribe the rule which must 
 guide the decision of this case, and the intention must be held to 
 have been- conformable to custom, until it is shewn that a differ- 
 ent intention was in contemplation of both parties at the time of 
 the sale. Had the property come to the seller by inheritance, and 
 the sale been negotiated in the same manner, the law would have 
 construed her intention to be, that whatever she had acquired as 
 heir, should pass to the purchaser. Punkahs are attached to a 
 house when it is built, in the same manner as a door. And the 
 intention of the builder is the same in both cases, viz., that they 
 shall remain permanently affixed to the house. Household furniture 
 is in general the property of the tenant and removable by him at 
 the end of his term, but who ever heard of a man carrying his pun- 
 kahs as he carries his 7 : chairs and tables from house to house ? 
 When a house is erected in Penang, punkahs and mats are placed 
 in it for the benefit of the inheritance. 
 
 The case already cited of Colegrave v. Bias Santos approxi- 
 mates so closely to bhe present, and the opinions of the Judges 
 are so applicable, that they may be referred to more particularly. 
 In that case the defendant had purchased at auction and. taken 
 possession of a house which belonged to the plaintiff. No reser- 
 vation has been made of fixtures. Afterwards the plaintiff 
 demanded as fixtures the articles named in the declaration — some 
 of these being fixtures, and others were mere chattels, and on 
 the defendant refusing to deliver them, brought his action in 
 trover. Abbot C. J. said, "The usual course is to say that the 
 
STRAITS SETTLEMENTS. 
 
 4? 
 
 fixtures shall be taken at an appraisement, or at a valuation to be No *]"|' E ' 
 made in some appointed mode ; but here nothing at all was said 4 ' 
 
 respecting them. After the auction a conveyance was executed, Brown anii 
 the purchase money paid, and the defendant put into posses- ors. 
 sion, all the articles which form the subject of the present action HeB b IOT 
 being still left in the house. The rule of law is most strict be- 
 tween the heir and executor. Accoi'ding to'that rule, the articles 
 in the two first classes mentioned by the plaintiff's counsel [articles 
 clearly fixed to the freehold, and fixtures commonly so called, 
 bat removable as between landlord and tenant] would be consi- 
 dered as parcel of the freehold. If they are so, why should 
 they not pass by a conveyance of the freehold, when there is 
 nothing to indicate a contrary intention ? Bayley J. If we 
 were obliged to support the verdict which has been found for the 
 plaintiff, we should be obliged to do great injustice. It is 
 assumed that the fixtures were not intended to pass by the con- 
 veyance of the house. But there is nothing to prove that; and 
 on the contrary, I think that as nothing was said about them at 
 the time of the sale, the plaintiff has no right to make this claim. 
 In the case of an heir selling a house which descends to him, in 
 the absence of any express stipulation, he would be taken to sell 
 it as it came to him, and the fixtures would pass. If the plaintiff 
 may now insist upon payment for these fixtures, he might also 
 after the sale of the bouse have refused to sell the fixtures, and 
 might have done great injury to the house by taking them away, 
 [what has actually occurred in this case]. He should have insist- 
 ed upon his right- before the conveyance was executed. Best J. 
 Where a stipulation is made that fixtures are to be taken at a 
 valuation, that shews that they are not otherwise to pass. So of 
 timber if there be a provision that it shall be valued : if there be 
 not, the wood passes with the land, "and the fixtures with the house. 
 In the absence of authorities, I should hold, that everything 
 which forms part of a house passes by a sale and conveyance of 
 the house itself. If it descends, fixtures pass, so also if it be 
 devised; why then should they not in case of a purchase ?" But 
 even if it could at all be made out that the articles which are the 
 subject of this action remained the property of the seller of the 
 house, it would have been incumbent on her to remove them 
 before the completion of the sale. In the same case, Lord Ten- 
 terden cites the opinion of Gibbs C. J. Who in Lee v. Risdon [7 
 Taunt. 188] says, speaking of the power which tenants have to 
 remove fixtures, "unless the lessee uses during his term his con- 
 " tinuing privilege to sever them, he cannot afterwards do it." It 
 is true that Mrs. Durand remained in the house after the convey- 
 ance was "executed, but by permission of the new owner, and for a 
 special purpose. She left the Island and could delegate no autho- 
 rity to an agent beyond that of superintending the sale and 
 removal of the chattels. Whatever authoiity the defendant may 
 be able to shew he received from the seller expired on the 3rd of 
 February, and his entrance into the house after that day could 
 only be under a fresh authority from the plaintiffs, and for purposes 
 which depended wholly upon their will. The correspondence shews 
 
49 
 
 CIVIL OASES. 
 
 Koreis, E. 
 1842. 
 
 Brown and 
 
 ors. 
 
 v. 
 
 Herriot. 
 
 that they expressly prohibited the removal' of the fixtures and 
 therefore, in whomsoever the right to them rested, their severance 
 and asportation by the defendant were violent and illegal pro- 
 ceedings. 
 
 Carnegy, for the defendant contended, that the case cited for 
 the plaintiffs, Golegrave v. Bias Santos, did not here apply, as 
 not only the house and property in that case were conveyed to 
 the purchaser, but also possession was given to him, with all the 
 articles sought to be recovered still remaining in' the house. That 
 in the present case, the facts were the very reverse, inasmuch as 
 the articles sought to be recovered by them were removed before 
 possession given over, and also that defendant continued in occu- 
 pation of the house with the plaintiff's knowledge for several 
 days after removal of the articles in dispute. He contested the 
 principle sought to be established by the plaintiffs in the case 
 cited, upon the dictum of Best, J. ; and maintained that the prin- 
 ciple of the case decided by the Judges, who presided at the trial, 
 was to the effect that a conveyance and possession were two 
 different things ; that the former did not imply the latter, and 
 referred to Lyde v. Russell [1 B. and C. 394] ; that this case should 
 not be decided as between heir and executor, but on the rule as 
 between landlord and tenant, or as between vendor and purchaser, 
 2 towell, p. 1041a ; that the articles now sought to be recovered 
 back by the plaintiffs having been taken away previous to pos- 
 session being given of the house, the plaintiffs were entitled only 
 to the four walls, and also there being in the Conveyance neither 
 consideration nor valuation put upon the mats, punkahs and oil- 
 cloth, they therefore did not pass. He therefore submitted that 
 mats, punkahs aud oil-cloths, even admitting them to be fixtures, 
 were legally removable by the vendor previous to possession of 
 the house being given over to the purchaser, and in absence of all 
 valuation and consideration being set upon them. As to what 
 were and were not fixtures, he referred to numerous cases cited 
 in 2 Powell, 1041 note. 
 
 Logan in reply, maintained, that in Penang, livery of seisin 
 was not necessary to complete a transfer, but that possession 
 passed to the purchaser upon the execution of the deed of bargain 
 and sale, and that the Statute of Enrolment [27 Hen. VIII., 
 c. 16] was not in force here. Mr. Stuart's letter showed that in 
 the contemplation of the seller, possession did so pass on the 
 26th January. The seller inhabited the house from that date, 
 not by virtue of a condition in the agreement that possession 
 should not be delivered to the plaintiffs until the expiry of a 
 certain term, but by the sufferance of the plaintiffs. The defend- 
 ant had contended that without actual possession this action could 
 not lie, but to maintain trover the right, not the fact of posses- 
 sion was essential, and this right was vested in the plaintiffs from 
 the day upon which the deed of sale was executed : he had like 
 wise^ contended that the rule as between landlord and tenant 
 applied in this case; but to bring it in, it was necessary to have 
 shewn that the articles had been made fixtures subsequently to 
 the execution of the deed, of sale, as then for the same time, 
 
HEKBIbT. 
 
 STRAITS SETTLEMENTS, 49 
 
 did the relation of landlord and tenant arise — that it was said, Nobbis, E. 
 that even fixtures must be specified in the deed of transfer, and 1842 - 
 that as the articles which formed the subject- of this action were beown and 
 not mentioned in the deed of sale, they were not intended to be nor obs. 
 were conveyed, according to Lord Tenterden and the other Judges 
 who decided the case of Golegrave r. Bias Santos. The custom of 
 England was against the defendant. The custom of this place 
 had been proved to be similar, and the law, therefore as laid down 
 in that case was strictly applicable here. 
 
 Cur. Adv. Vult. 
 April 12. Norris, TJ. — This is an action of trover to recover 
 three mats, three punkahs and a stair-case oil-cloth, originally 
 fixtures, as the phdntiffs contend, in Sans Souci house, and pur- 
 chased by them with the house from Mrs. Durand, through her 
 agent, Mr. George Stuart, but which the defendant, acting pro- 
 fessedly on behalf of Mr. Stuart and Mrs. Durand, who both left 
 the Island shortly after the sale of the house, — has removed, and 
 refuses to replace. The purchase of the house by the plain- 
 tiffs, and the removal of the articles in, question from the house 
 by persons acting under the directions of the defendant, and his 
 refusal hitherto to restore them were clearly proved. The grounds 
 of defence were principally these : firstly, that the articles were 
 not fixtures, in the proper sense of the term; secondly, that, if 
 they could be so considered they were, nevertheless, of right 
 removeable by the vendor under the terms of the agreement ; and, 
 thirdly, that at all events, the plaintiffs had never obtained pos- 
 session of the articles and were, therefore, not in a legal position 
 to recover damages in this form of action. To begin with the 
 last objection, it is clear that actual corporal possession is not 
 always necessary to the maintenance of an action of trover. An 
 Executor for instance, may have trover for the goods of his 
 testator before actual possession ; for the law gives him a pro- 
 perty in the goads which constructively draws to it the possession. 
 A vendee also, when the contract was for ready money, may, after 
 tendering the money, maintain trover against the vendor, on his 
 refusal to accept it and deliver the goods ; and the same where 
 the vendees were to have immediate possession on giving security 
 for payment at a future day, as in the present case, — that is, if 
 the articles in question were included in the contract ; the next 
 point for examination and decision. But it was further argued 
 in support of the first objection, that, whatever may be the law 
 as to chattels, livery of seisin is necessary to a complete transfer 
 of possession in the case of freehold property and whatever per- 
 tains to it, as fixtures necessarily must. This, however, is a mis- 
 take. Under the ancient mode of transfer by deed of feoffment, 
 it is true, livery of seisin was necessary, but not so under the 
 modern form of conveyance by baryain and sale; the purchaser 
 being, in contemplation of law since the Statute of Uses, seised 
 from the date of the Bill of Sale, to which all needful publicity 
 [the great object of livery of seisin] is now given by Registration 
 under the late Act ; for the Statute of Enrolments [27 Hen. 
 VIII., c. 16] does not, as observed by Mr. Logan, extend to this 
 
50 
 
 6IV1L OASES, 
 
 Norms, K. 
 1812. 
 
 Bbown and 
 
 OBS. 
 V. 
 
 Herriot. 
 
 country. It was, in the second place, contended that the articles 
 in question, whether fixtures or not, did not pass by the sale, hut 
 were of right removeable l>y the vendor under the terms of the 
 agreement. What these terms were, appears in the correspondence 
 between the parties and the Bill of Wale, from which io is clear 
 that on the 21st January last, the plaintiffs had offered to buy 
 and Mr. Stuart on behalf of Mrs. Durand agreed to sell, and that 
 on the 26th the latter had actually sold, and the former actually 
 bought and paid for by bills, as agreed, "the dwelling house and 
 " ground of Saws Souci, with the oat-houses and other buildings 
 " and erections and other the appurtenances thereunto belong- 
 " ing ;" terms sufficiently comprehensive to include all fixtures, 
 properly so called, which were not actually removed or agreed to 
 be removed before the completion of the contract by the exe- 
 cution of the bill of sale. That the articles in question were not 
 actually removed until after the 30th January, that is at least 
 four days after the plaintiffs had obtained legal seisin of all that 
 passed by the bill of sule, is clear from the evidence of the 
 carpenter Appoo ; and I cannot discover either in the bill of sale, 
 or in the preliminary correspondence any proviso or stipulation 
 to justify such subsequent removal. In his mite of the 21st 
 January, it is true Mr. Stuart requests permission to remain in 
 the house for nine or ten days after the execution of the bill of 
 sale to fjive himself, Mrs. Stuart and Mrs. Durand " time to 
 " embark and get rid of their traps ;" and in his subsequent 
 note of the 26th he says, " there are several things in the house 
 " belonging to Mrs. Durand, which it might perhaps be for the 
 " interest of both parties that you should take." Now although 
 Mr. Stuart might possibly have intended these indefinite terms 
 " traps " and " things " to include the articles in dispute, few 
 men probably would have understood them in any other sense 
 than did the plaintiffs, viz., as referring to chairs, tables, and 
 other loose furniture as distinguished from the fixtures : a dis- 
 tinction actually made by the defendant himself in his subsequent 
 letters. Certainly in the absence of any sufficient evidence to the 
 contrary, I can ascribe no other meaning to terms so loose than 
 what I believe to be the ordinary one, viz., Chattels in the common 
 acceptation of the word — things unattached in any way to the 
 freehold. The mats, punkahs, and oil-cloth which form the 
 Subject of the present action having then, as was proved, been 
 originally attached by nails and screws to the freehold, and left 
 so attached at and after the execution of the bill of sale, and no 
 condition or reservation upon the subject appearing in the bill of 
 sale or previous agreement, the case of Colegrave v. Bias Santos, 
 which has been cited for the plaintiffs, would seem to be deci- 
 sive in their favor, unless as contended for the defendant in the 
 third and last place, these articles do not properly come within 
 the legal definition of fixtures. To this objection a sufficient 
 answer might, as observed by the plaintiff's agent, be found 
 in the defendant's own admission to the contrary. But for the 
 prevention of similar disputes in future, it may be desirable to 
 state what I consider to be the law upon the subject, "Fixtures," 
 
STRAITS SETTLEMENTS. 
 
 51 
 
 Herbiot. 
 
 as Chitty observes, " is a term generally denoting the very reverse Nobbis, E. 
 
 " of the name," for in its ordinary acceptation it signifies " such ; 
 
 " things of a personal nature as have been annexed to the realty, brown and 
 " and may be afterwards severed or removed by the party who obs. 
 "united them, against the will of the owner of the freehold ;" 
 that is, provided the severance be effected during the tenancy of 
 such party. The precise mode of- annexation appears [according 
 to the same writer, referring to Messrs. Amos and Ferard's excel- 
 lent Treatise on the subject] to be immaterial, provided the 
 article be "fixed in or to the ground or to some substance previ- 
 " ously rendered a portion of the freehold." Now certainly this 
 definition cannot but be held to embrace articles so circumstanced 
 as those in dispute — mats, nailed to the floors — an oil-cloth nailed 
 to the stair-case, — and punkahs fixed to and depending from the 
 ceiling by ropes and screws. At least the definition seems to me 
 quite as applicable in these cases, as in those of hangings, 
 tapestry, bells, lamps, beds fastened to ceilings, wainscot fixed by 
 screws, and furniture put up as fixtures ; all of which have in 
 England, been held to come within the legal description of fix- 
 tures removeable by the tenant during his tenancy, but passing 
 to the landlord if not so removed, and consequently [according 1 
 to the case cited] to a purchaser in the absence of any agree- 
 ment to the contrary. Besides it must not be forgotten that in 
 very many of the numerous cases upou the subject, the decision 
 of the Courts have been greatly influenced by the particular cir- 
 cumstances of the case ; and amongst these must reasonably be 
 included the prevalent local custom in similar cases. Now the 
 evidence of Mr. George Scott, and Mr. Anthony Mclntyre, both long 
 residents and the latter the most experienced auctioneer in the 
 place, seems decisively to establish the fact that on sale of houses 
 in Penang, punkahs, oil cloths and Bengal mats fixed like those 
 in question are generally understood to pass with the house, un- 
 less, [of which he could not remember an instance,] there should 
 be a special agreement to the contrary. 
 
 The plaintiffs are therefore entitled to judgment with 
 damages, which, on a fair calculation, without needlessly recap- 
 itulating the details in evidence on the subject, I estimate at 100 
 dollars; and I think also that under all the circumstances, the 
 plaintiffs who manifested a conciliatory spirit throughout, are 
 entitled to their full costs. 
 
 Judgment accordingly. 
 
 EAST INDIA COMPANY v. SCOTT. 
 
 In rating Estates and Plantations in this Colony, for purposes of assessment, the 
 terms "annual rent" and "annual value" in Acts 12 of 1839, and 12 of 1840, are 
 synonymous terms, and the assessment can only be calculated on the annual nett 
 return of the property [a] 
 
 Principles of rating property for purposes of assessment discussed. 
 
 The Collector had assessed, a spice plantation of the appellant 
 
 [a] These Acts have been repealed, — and assessment is now governed by Act 25 
 of 1856, as amended by Ord. 3 of 1879> — "annual value " being defined as gross annual 
 rent, 
 
 Penano. 
 
 Nobbis, E. 
 1882. 
 
 Mat 18. 
 
52 
 
 CIVIL OASES, 
 
 V. 
 
 Scott. 
 
 Norms, B. upon the value of its gross annual produce. Appellant had 
 1848 ' objected to the demand upon the ground that under the Indian 
 Bast India Act No. 12 of 1840, his land could only be rated upon its net pro- 
 Co. ceeds. The appeal against the levy was made for the purpose of 
 having the correct principle of valuation ascertained by judicial 
 decision. 
 
 The Assessor appeared in person. 
 
 J. R. Logan for the Appellant. The object of the Assessment 
 Acts is to raise a certain sum annually to be applied to the differ- 
 ent purposes specified in sec. 13 of the Indian Act No. 12 of 1839. 
 After the various fixed taxes on horses, carriages, &c, and the 
 percentage upon the rents of houses a,re levied, there will remain 
 a balance to be made up from the taxes on lands. These vary 
 so much in value that it is not possible to impose a fixed sum on 
 each estate, and some mode of apportioning the total amount 
 required amongst the different properties in the Settlement must 
 be resorted to. It is natural to suppose that Government out of 
 the several modes that may exist of effecting this object, would 
 select that which most equally and fairly distributes the whole 
 tax amongst the land holders. There can be but one perfectly 
 equitable principle of apportioning the tax, and that is by a per- 
 centage upon the actual revenue yielded by each estate to its 
 owner, which is its real value. That this is the principle of the 
 Land Assessment Act is sufficiently plain. By sec. 1 of the Indian 
 Act No. 12 of 1840, it is enacted that from the 1st day of January, 
 1841, an assessment shall be levied on all lands not covered with 
 houses or buildings within the limits of George Town, Singapore 
 and Malacca, according to the real annual value thereof at a rate 
 not exceeding ten per cent, of such annual values; and by sec. 2, 
 which regulates the assessment of Mr. Scott's plantation it is 
 provided that from the dav aforesaid an assessment shall be levied 
 on all property of the nature described in the foregoing section, 
 but which shall be situated beyond the limits of the aforesaid 
 towns at a rate not exceeding 5 per cent, on the annual rent or 
 value thereof. Annual rent and animal value are here used as 
 synonymous terms and it is difficult to conceive upon what foun- 
 dation any doubt can be raised that the rent of lands-had been 
 chosen by the Indian Legislature as the only measure by which 
 the levy of the tax can be equalized. It will not surely be asserted 
 that the assessor may, at his discretion, adopt either of two very- 
 different modes of rating. As to the meaning of the word "rent" 
 there can be no difference of opinion. It cannot possibly be taken 
 to mean " gross produce." This expression no where occurs in the 
 Act, and, since the Assessor must have fancied that he had found 
 its equivalent somewhere within the small compass of the 2nd 
 section, I can only conclude that he has affixed the same meaning 
 to the term "annual value." As a general fact it may be stated 
 that the rent of land is about one-fifth of its gross produce. If 
 the assessor's reading is the true one, the legislature has left it 
 entirely to his discretion to levy on either of two descriptions of 
 property which differ in value in the proportion of 5 to 1. This 
 interpretation amounts to the assertion of an arbitrary right to 
 
STRAITS SETTLEMENTS. 
 
 5'3 
 
 Scott. 
 
 make one estate pay five times the assessment which is levied Noebis, B. 
 from another estate of equal value. If, however, it be said that 1843 - 
 the assessor must choose one or other of the two modes of rating £ AST i ND i A 
 for general application, he will doubtless be guided in his choice Co. 
 by principles of reason and equity, and it will not be difficult to 
 shew that these are altogether in favour of an assessment upon 
 rent. But though this will appear sufficiently obvious from what 
 will shortly be stated, I do not chose to adopt a line of argument 
 which would proceed upon the admission of a reading of the Act 
 which I cannot for a moment view as correct. Annual rent and 
 annual value have, I maintain, been used by the frainers of the 
 act as synonymous. The annual value of an estate within the mean- 
 ing of the Act is its real annual value to its owner, and not any 
 arbitrary value which may be obtained by coining an imaginary 
 revenue out of produce which the estate has never yielded, or 
 which has been swallowed up in the wages of labour, in the price 
 of materials used, and in the agricultural profit on the outlay of 
 the cultivator : If the plain language of the Act is insufficient 
 to mark the intentions of Government a very slight practical 
 knowledge .of agriculture, or of the simplest principles of poli- 
 tical economy, should suffice to preserve the Officers of assess- 
 ment from giving a direction to the provisions of the Act as much 
 against reason, as it is inconsistent with justice. They have no 
 difficulty in seeing that the real annual value of a house or shop 
 is the rent or revenue which it yields to its owner. But they 
 cannot apply the same definition to the real annual value of land. 
 Because the case becomes a little more complicated — because the 
 land does not spontaneously yield a certain number of current 
 coin of the realm, but its aunual value is the result of a process 
 which must be annually repeated, involving various operations, 
 but which may all be expressed and measured in money expended, 
 the assessment officer unwilling to take the trouble of estimat- 
 ing the proportion in which other things than the land itself have 
 contributed to the return, seizures upon the gross produce, carries 
 off his 25th part, and leaves the owner of the land, the labourers, 
 and the tenant who applies his skill, and risks his capital in the 
 cultivation, to make a division of the remainder amongst them- 
 selves. There is this difference between a house and a piece of 
 ground that in the first case the purchase money having been 
 paid, the owner has nothing to do, but secure a tenant and draw 
 his rent, but in the latter case the purchase money has been paid, 
 and the land yields no revenue. An agriculturist must be procured 
 — labour must be applied — capital must be risked — before the 
 land yields its return. But, it is only the ground which belong3 
 to the landholder, and he is only entitled to so much of the 
 return as can fairly be put down to the credit of the soil. 
 To ascertain this, there must be put on one side so much as i3 due 
 to the labourers — to the seed and materials furnished by the culti- 
 vator — to his skill and superintendence — there must be deducted 
 too a premium for the risk to which he has exposed the capital 
 which he has employed. When all this has been done, the bal- 
 ance will shew what is due to the land itself, what has been the 
 
u 
 
 CIVIL CASES. 
 
 Norms, E. 
 1842. 
 
 Bast India 
 
 Co. 
 
 v. 
 
 Scott. 
 
 real value of tlie land to its owner during the year measured in 
 produce, and that converted into money is the real annual value 
 of the land within the meaning of the Assessment Act. To levy a 
 tax upon anything more than this is not to tax the land, but to 
 tax the skill, superintendence and capital of the agriculturist, 
 and the wages of labour — sources of revenue never contemplated 
 by the Act. It was said by Burke that " nothing is such an 
 " enemy to accuracy of judgment as a coarse discrimination; a 
 " want of such classification and distribution as the subject 
 " admits of." The analysis of that compound result, the gross 
 value of the produce of land, is not so difficult that the Assessor 
 should refuse to undertake it. Every particular item of expen- 
 diture in agricultural employments is for the direct purpose of 
 contributing to re-produce or ^-place itself with an increase. 
 Every such item therefore is, strictly speaking, a pre-investment 
 of an equivalent portion oi the produce, and must be withdrawn 
 from the produce before the value of land for the year can be 
 ascertained. Agriculture is an artificial and not a natural process. 
 The land with all its natural powers and capacities of production 
 derive from the inherent virtue of the soil, and those great ferti- 
 lizing provisions of providence without which the mere earth, 
 whatever its composition, would remain barren, does not, econo- 
 mically speaking, possess value in itself. It is the fruit of the 
 vegetation which the efforts of man, aiding the powers of nature, 
 cause to be produced upon it that developes its value. But the 
 various instruments whose combined powers effect this process 
 must be allowed to be each so far of a separate value in them- 
 selves, as they have operated in the production of the commodi- 
 ties which the harvest has given for distribution. The 
 strength of the soil and the elements which have fertilized 
 it have indeed been indispensable powers. But no less in- 
 dispensable in the condition of a farm or plantation is the 
 power of the horse, the ox or the buffaloe, the manual 
 strength and the mental faculties which enable the labourer to 
 guide this inferior power, or to substitute his own sole industry, 
 or which have been exerted in constructing the various implements 
 without which the strength of the horse, or the industry ot the 
 labourer were equally unavailing. Not less indispensable is the 
 skill of the farmer or agriculturist applying the results of expe- 
 rience, and perhaps of science, to increase to the utmost the 
 productive powers of the soil, and to conform his mode of planta- 
 tion to the laws of nature, and at the same time exercising 
 incessant activity in superintending and directing the application 
 of that labour without which all his skill were in vain. Aud 
 lastly, as neither the farmer nor his labourers can postpone their 
 demand for those necessaries and comforts of life for the acquisi- 
 tion of which they give their skill and labour, as the cattle dealer, 
 the carpenter, and other artizans. whose labour may have been 
 called in, cannot subsist upon the prospect of the harvest, capital 
 must be advanced ; and as the re-payment of that capital is 
 dependant on the numerous risks to which agriculture is subject, 
 the party advancing it, whether he be the farmer himself or 
 
STRAITS SETTLEMENTS. 
 
 55, 
 
 another, will not be satisfied with the usual price for the use of 
 his money, but will claim a heavy premium, over and above. The 
 value of all these several powers, [which, in the gross, may be 
 correctly measured by the eventual claim of the capitalist] equally 
 with the value of the land, must be draWn from the gross produce 
 of their application. There is this great distinction, however, 
 between the value of the land and the value of the former powers, 
 that it is merely the balance remaining after the former 
 have been satisfied out of the produce ; and although those 
 also are subject to variations in their respective values, the latter 
 must be subject to the greatest fluctuation. In fact the real rent, 
 as it has been explained in contradistinction to the reserved rent 
 must receive the whole benefit of good seasons causing extraordi- 
 nary productiveness, and bear the whole decrease arising from 
 seasons of scarcity before any of it can fall upon the cultivator. 
 Augmented fertility, produced artificially, ought of course to go 
 to the cultivator, whose skill or outlay has caused it. I have 
 entered thus fully into the subject of rent, because, I shall shew 
 that it affords the only just criterion for assessing lands, and it 
 was necessary to dwell upon the. various elements which must 
 always enter into the consideration of the subject, as their dif- 
 ferent relative proportions in different descriptions of cultivation, 
 is the very reason, why rent enjoys this pre-eminence as a rule 
 for equalising assessment. 
 
 I have alluded generally to the assessment upon the rent of 
 houses to shew that annual value as used by the framers of the 
 Act is the income derived from his estate by the owner. Tt has 
 been attempted to carry the analogy between lands and houses a 
 great deal further. It has been said that because assessment is 
 levied on the whole annual return of a house or other building it 
 must therefore be levied upon the gross produce of land. This .at 
 first sight might seem plausible enough to those who are unac- 
 quainted with the subject. To shew the fallacy of this very rapid 
 and simple ratiocination we need only point out the non-existence 
 of one fact which it assumes. If the argument be not a mere 
 equivoke the same signification is attached to the term gross pro- 
 duce whether it be used with reference to houses and buildings 
 or to lands. I have maintained that the value, revenue or say 
 gross proceeds of both descriptions of property to the owner is the 
 meaning of the term used in the Act. This reasoning on the 
 contrary, unless it is quite equivocal, assumes that the gross 
 proceeds of both descriptions of property which in the first 
 instance come to the hand of the tenant is themeaiiing of the Act. 
 We must put on one side dwelling houses which art not used for 
 speculations or investment, of capital by the tenant. Lands such 
 as parks which are for ornament and pleasure and all others on 
 which capital is not laid out for a profit may be put on the same 
 side. On the other there are shops and other buildings not occu- 
 pied as residences but which are used by the tenants merely for 
 the purposes of trade, &c, and on this side also are farms and all 
 lands used for the purposes of agriculture. To render the argu- 
 ment which I am opposing worth anything it must be true that 
 
 Norms, E. 
 1842. 
 
 East India 
 
 Co. 
 
 v. 
 
 Scott. 
 
56 
 
 CIVIL CASES. 
 
 KOBRISj E. 
 1842. 
 
 East India 
 
 Co. 
 
 v. 
 
 Scott. 
 
 assessment is levied on the gross proceeds of shops, to the tenant. 
 But it has never been, nor was it ever held that it should be, so 
 levied. If by the anology between buildings, and lands so far as 
 it goes, the meaning of the Act in reference to lands is to be 
 determined, it must be' argued that as buildings for habitation 
 and ornament yield nothing to the tenant, and assessment is 
 therefore levied on their mere annual value to the owner, and as 
 in the case of buildings which are necessary and are used solely 
 for speculations, the tenant is allowed to deduct from the gross 
 proceeds of the speculation all the capital which he has invested, 
 together with his profits and a remuneration for his own 
 skill and trouble, and is made to pay assessment upon the 
 share of such gross proceeds which goes to the landlord in the 
 shape of rent and is the annual value of the building to him, so 
 in the case of lands used merely for ornament and from which 
 the tenant as he lays out no capital reaps no proceeds, the assess- 
 ment must be levied on their annual value to the owner, and in 
 the case of lands which are necessary, and are used, solely for 
 the speculations of the agriculturist, he, the tenant, must be 
 allowed to deduct from the gross proceeds, his outlay, his own 
 wages, and his profit, and assessment must be levied on the 
 balance that accrues to the landlord. 
 
 This may be otherwise illustrated. House building and cul- 
 tivation are both speculations. In this respect the owner of the 
 house and the cultivator of the ground occupy similar positions. 
 Of two men who are possessed of the same capital one resolves to 
 invest his money in house-building, the other in the cultivation 
 of paddy. The cost of a house, let us say is $2,000 ; the annual 
 rent $400. This is a return of 20 per cent, upon the capital invested. 
 Take the parallel case of investment of an equal sum in the cul- 
 tivation of paddy. The gross proceeds may be $6,000 or 3 times 
 the capital invested. From the speculator in houses an annual 
 assessment is levied upon the fifth part of the capital which he 
 has risked. From the speculator in paddy an annual assessment 
 is levied upon three times the amount of his capital. The dispro- 
 portion being as 15 : 1. 
 
 Perhaps in the present case and in similar cases, the assessor 
 may seek .to justify his proceedings by alleging that the owner 
 of the ground cultivates it himself, and the whole produce be- 
 longs to him. Tbis is true — but the whole produce does not 
 go to him as owner of the soil. The real annual value of 
 the land is the same as if it had been cultivated by a tenant, 
 and there can be no good reason why the capital of a land- 
 holder any more than that of a farmer or of a person advancing 
 to the farmer should be taxed when he choses to employ it in 
 agriculture. To tax his capital when he employs it in this way 
 and leave it exempt when he lays it out at interest or embarks 
 it in trade would certainly be an effective mode of discouraging 
 agriculture. 
 
 To make the owner of land pay a tax upon what the land never 
 yielded him,— for assessment though advanced by the tenant 
 really falls upon the owner, and to add to the actual value of 
 
STRAITS SJffiHifiMfiNtTS. 
 
 57 
 
 land that which is the fruit of labour, skill and capital would be 
 at once inequitable and unreasonable. 
 
 I now proceed to shew that to substitute the value of 
 the gross produce of cultivated land for the real annual 
 value of the land itself would not only be unreasonable 
 in itself, but would wholly defeat the intention of Govern- 
 ment to distribute the tax equally amongst the contributors. 
 If all land was of the same quality and under the same 
 kind of cultivation the gross produce might be taken as 
 the criterion for apportioning tbe tax, because, it would on 
 every estate bear the same proportion to the real annual value. 
 But the differences of soil and of products are so great that the 
 annual value of an orlong of ground is far from being uniform 
 throughout the Settlement. An orlong of paddy land in some of 
 the best tracts in Province Wellesley may yield twice or four times 
 the quantity of grain that is produced on an orlong of some of 
 the worst tracts, and yet the cost of cultivation is likely to be the 
 same in both. If the gross produce be made the rule of assess- 
 ment mark in what manner it will operate ! The produce of an 
 orlong of good land, we shall say is of the value of 24 Spanish 
 Dollars, the produce of the inferior land of the value of 12 
 Spanish Dollars. The good land is assessed upon the assessor's 
 principle at 96 pice ; the poor land at 48 pice, or one-half. Now, 
 what is the real value or revenue of the two pieces of ground ? 
 An equal quantity of the produce has in both cases been consumed 
 by the labourers, whose work was as necessary to the production 
 of the grain, as the powers of the soil. An equal quantity has in 
 both cases gone to replace the seed, and to compensate other expen- 
 diture. In both cases about 8 dollars may be equivalent to the 
 quantity of produce that has been, so to speak, necessarily ex- 
 pended in advance, in cultivation. When this is deducted, the 
 supposititious proportion upon which the assessment has been 
 levied is destroyed. It now appears that the actual return of the 
 good land was $16, and that of the poor land only $4. By the 
 present false principle of assessment, which altogether overlooks 
 facts, it was made to appear "that the proportion of the 
 annual values of the good and poor lands was as two to 
 one, whereas in reality, it is as four to one. The owner of the 
 latter has derived from it exactly one-fourth of the revenue or 
 return which the former has derived from his good land, and yet, 
 he has been compelled to pay, not one-fourth of the assessment 
 payable by the former, but one-half ! But take, another case, 
 where the land is so barren that the entire produce only suffices 
 to furnish food for the ryot and his family, who cultivate it. 
 There is nothing to assess, and yet, if the principle of the assessor 
 be correct, the ryot must starve four days out of the hundred to 
 afford an assessment. But if the soil varies so much in fer- 
 tility as to render the assessor's rule altogether unequal and 
 unjust, the produce of the different plants cultivated, and the 
 modes of" cultivation, do not less affect the operation of the rule. 
 This too may be reduced to the principle which I have already 
 adverted to, ws., that, whatever prevents the proportion between 
 
 NOERIS, 11. 
 
 1842. 
 
 East India 
 Co. 
 
 v. 
 Scott. 
 
58 
 
 CIVIL OASES. 
 
 Nobbis.'E. 
 
 1842. 
 
 East India 
 
 Co. 
 
 v. 
 
 Scott. 
 
 the outlay, &c, and the gross produce from remaining exactly the 
 same on all lands however cultivated, must prevent the assessor's 
 rule from operating fairly and equally. I have returns which 
 shew the expenditure and the gross produce in different kinds of 
 cultivation, but they are somewhat long, and instead of reading 
 them, I shall refer to Major Low's work on the agriculture of the 
 Settlement, which, although I may not admit the correctness of 
 all his estimates, will serve to shew how greatly the proportion 
 between the gross proceeds, and the outlay differs in the cultiva- 
 tion of the numerous products of the soil. I may give one or two 
 instances. As a criterion for spice plantations which are fully 
 matured and cultivated, and the limits of whi'jh are per- 
 manently fixed, Mr. Ibbetson's plantation at Ayer Etam 
 may be taken. The annual expenses amount to $3,500, and 
 the value of the gross produce $9,047. The expenses are 
 more than a third of the return. But say that in nutmeg plan- 
 tations, and the same proportion nearly will apply to cloves, the 
 annual outlay is to the return as one to three. The annual expen- 
 diture in the cultivation of an orlong of full grown betelnut trees 
 may be stated at $17.50; the value of the gross produce at $80, 
 but say the proportion is as one to five. Major Low states, that 
 the expense of cultivating an orlong of good paddy land in Pro- 
 vince Wellesley to be $4, the value of the gross produce $24, 
 The proportion here is one to six. But on poor lands, it may be 
 as one to two upon an average. The expenditure incurred upon 
 an orlong of full grown cocoanuts may be stated at $6.50. The 
 price of. produce varies, but taking it at $1.25 for 100 nuts, the 
 value of the gross produce will be $62 \, the proportion here is 
 one to ten nearly. It thus appears that in one description of cul- 
 tivation the outlay may be only a tenth part of the gross produce ; 
 in another it may be one-sixth ; in others it may be one-fifth or 
 one-third and even much more ; nay how often, from the risks to 
 which all agricultural speculations are exposed, may it not greatly 
 exceed it. A speculator may not so much as recover his 
 outlay. He may lose one-half, and yet the remainder is to 
 be taxed, as, if it were 'a real addition to his capital which 
 his land had yielded him. Such are the consequences of losing 
 sight of the very simple, and apparent fact that the gross pro- 
 duce of the plants grown upon a piece of ground is not the annual • 
 value of the ground itself, but is composed of several ele- 
 ments which must be separated to ascertain the true mode 
 of assessment. Where land is let, the landlord and tenant effect 
 this themselves, and the assessment is to be levied on the actual 
 rent which the former annually receives. "Where, however, 
 there is a gross disproportion between the reserved, and what I 
 have denominated the real rent, which will seldom happen, the 
 assessor is not to be bound by the former. Where the landlord 
 turns speculator himself, the .Collector must make the separation, 
 and as all Governments encourage agriculture, and it is of the 
 highest consequence to this Settlement that capitalists should 
 become cultivators, it is to be hoped that this duty will not only be 
 discharged equitably, but that even a greater deduction will be 
 
V. 
 
 Scott. 
 
 STRAITS SETTLEMENTS. 59 
 
 made than the portion of the produce which would have gone to Nobeis, E. 
 the tenant had the land been let. The motives for this liberal 1842 - 
 mode of dealing with landholders who cultivate their own lands east India 
 have been so well expressed by Dr. Adam Smith that I shall quote Co. 
 his words, especially as they seem, with some slight modifications, 
 peculiarly applicable in the circumstances of this Settlement. 
 
 " When the landlord chose to occupy himself a part of his own lands, the rent 
 " might be valued according to an equitable arbitration of the farmers and landlords of 
 " the neighbourhood, and a moderate abatement of the tax might be granted to him, in 
 " the same manner as in the Venetian territory ; provided the rent of lands he occupied 
 " did not exceed a certain sum. It is of importance that the landlord should be encour- 
 " aged to cultivate a part [here it may be safely said the whole~] of his own land. His 
 " capital is generally greater than that of the tenant, and with less skill he can frequent- 
 " ly raise a produce. The landlord can afford to try experiments, and is generally dis- 
 " posed to do so. His unsuccessful experiments occasion only a moderate [but in 
 " Penang frequently a heavy] loss to himself. His successful ones contribute to the 
 '* improvement and better cultivation of the whole country " [8 Smith's " "Wealth of 
 " Nations," 266.] " In the Venetian territory, when the proprietor cultivates his own 
 " lands, they are [for the purposes of taxation] valued according to an equitable esti- 
 " mation, and he is allowed a deduction of one-fifth of the tax so that for such lands he 
 " pays only 8 instead of 10 per cent, of the supposed rent" [id. 263], 
 
 With respect to plantations of spice trees, such as that from 
 the assessment of which the present appeal has been made, it may 
 seem difficult to make a perfectly equitable estimate. The prin- 
 cipal kind of cultivation — that of rice — the staple article of food in 
 eastern countries — should in some measure regulate the rent of all 
 lands under whatever kind of cultivation. Rents in England aver- 
 age one-fifth of the gross produce. And, according to Major Low, 
 " the average money rent here at present for all land is nearly 
 " the same." According to the same authority " the average rate 
 " of money rent for the best ricel and is 4 Spanish dollars an orlong 
 " or about one-sixth of the gross produce value." What deductions 
 then are made from the gross produce of a rice field before we 
 arrive at the real annual value or rent of the land ? In the first 
 place the whole actual cost of cultivating the plant from the seed 
 to maturity, the price of the seed, the interest upon the price, 
 and the wear and tear of cattle and implements. In the second 
 place the ordinary profit on agriculture which in different kinds 
 of cultivation should be proportioned to the risk. When we en- 
 deavour to apply the same mode of estimate to spice cultiva- 
 tion we are met on the threshhold by a difficulty arising from the 
 different natu?e of the plant. The rice is an annual and the 
 whole cost of the plant is at once deducted from the produce of 
 the first and only crop. The spice tree on the other hand re- 
 quires years to reach maturity, and does not at once yield all its 
 fruit on arriving at that stage. The cost of bringing the tree to 
 maturity is so heavy, being not less than from 350 to 400 dollars 
 per orlong, that the produce of the first bearing year would not 
 nearly replace it. This difficulty may be got over, however, in 
 several ways — by allowing the produce to remain untaxed till the 
 whole expenditure has been replaced, by allowing interest year 
 after year upon the original cost of bringing the plant to_ matu- 
 rity, or by striking an average upon a long period of years includ- 
 ing the unproductive ones. It will probably be answered that 
 
6o 
 
 CIVIL CASES. 
 
 Norms, K 
 1842. 
 
 Co. 
 
 v. 
 
 Scott. 
 
 the principles by which. Courts in England have regulated the 
 apportionment of poor-rates are unfavourable to such allowance. 
 East India Properly considered I do not think they are, and it would cer- 
 tainly be more fair if the allowance were made. The annual outlay 
 of all kinds must of course be deducted. The greatest difficulty 
 will be in fixing a just profit upon the stock invested. The profit 
 in the case of spices and in some other kinds of cultivation such as 
 coffee, and, in some localities, sugar, must be high because the 
 risk is peculiarly great. It is well known that thousands of dollars 
 have been expended in Penang in forming clove plantations which 
 have died after yielding a single crop. The uncertainty in the 
 price of spices adds a high degree of risk which entitles the culti- 
 vator to a proportionate premium. It may be said that the deter- 
 mination of all these matters will be attended with much trouble 
 and some difficulty. This is very true, but the same trouble and 
 difficulty have been encountered in every country in the world 
 where a tax has been laid upon rent, and no amount of trouble can 
 justify the adoption of an arbitrary, illegal and unequal rule of 
 taxation. One thing is very clear, the task will never be accom- 
 plished by men who are not conversant with agriculture. Let a 
 committee or jury of agriculturists and landholders be appointed 
 by Government, embracing men interested in every description of 
 cultivation, and no difficulty whatever will be experienced in 
 fixing a fair rent for lands yielding every different production. 
 When this is done, and a correct agricultural survey of the Set- 
 tlement made, it will be easy to fix the percentage that must 
 be levied on the gross rents of the Settlement to produce i;he 
 requisite funds for the purposes of the Act. The amount levied, 
 will be the same whatever mode of apportioning it be adopted, 
 but I have shewn that there is only one equal aiid equitable cri- 
 terion — viz., the annual rent. To take the gross produce as the 
 criterion seems as reasonable as if a fixed sum was to be levied 
 upon every plant without making any distinction between a stalk of 
 paddy, the produce of which is too insignificant in value to be 
 expressed in money, and a nutmeg tree of which the produce may 
 be worth many dollars annually. 
 
 All analogy, — the usage of the Settlement,— the system 
 followed in India and Great Britain — attest that the rule for 
 which I have contended is founded in reason, justice, and con- 
 venience. By sec. 2 of Eegulation I. of 1827 of the code of 
 Prince of "Wales' Island, which provided the means of cleaning, 
 watching, lighting, upholding and keeping in repair the streets of 
 George Town, and the roads in the country, &c, it was provided that 
 " an assessment shall be levied on all dwelling houses, shops and 
 " lands of every description beyond the limits of George Town,' the 
 " annual rent or value of which shall be equal to or exceed twelve 
 " Spanish dollars to the extent of two and-a-half per cent, the said 
 " annual rent of such houses 5/ shops, or lands, or yearly value, save 
 " and except such houses and lands as are hereafter declared 
 " excepted." I hold receipts from the assessors for a series of years 
 shewing that a deduction was made of from 25 to 50 per cent. 
 from the proceeds of spice plantations to fix the annual rent for 
 
STRAITS SETTLEMENTS. 
 
 61 
 
 East India 
 Co. 
 
 V, 
 
 Scott. 
 
 assessment. By 83 Geo. III., c. 52, s. 158, which provides for Nobbis.B, 
 
 cleaning and repairing the streets, &c, of Calcutta, Madras and 1842 , 
 
 Bombay, the Justices of the Peace are authorised " for the pur- 
 
 " poses of defraying the expenses thereof from time to time to 
 
 " make an equal assessment or assessments on the owners or occu- 
 
 " piers of houses, buildings and ground in the said towns or f ac- 
 
 " tories respectively, according to the true and real annual values 
 
 " thereof, so that the whole of such assessment or assessments shall 
 
 " not exceed in any one year the proportion of one-twentieth of the 
 
 " gross annual values thereof, &c." It appears that in Calcutta, 
 
 this assessment is levied on the annual rent. 
 
 When we refer to the Acts regulating the modes of assessing 
 land for different purposes in every part of Great Britain, we find 
 that in no one instance, with the exception of tythes for the 
 support of the clergy, is the gross produce of the land taxed. 
 By the 55 Geo. III., c. 51, which regulates the mode of assess- 
 ing the land for country rates, these are to be collected rateably 
 and equally according to a certain pound rate of the full and fair 
 annual value of the messuages, lands, &c, and rateable to the relief 
 of the poor, &c, and certain provisions are made whereby the 
 Justices may be enabled to ascertain the "fair annual value of all 
 " property liable to be rated." In Great Britain, the land tax is 
 levied on the rent. 
 
 By 12 Geo. II., c. 20, county rates are to be paid out of the 
 poor-rates [s. 2] , and in places where there is no poor-rates, they 
 are to be levied in such manner as money for the relief of the 
 poor is by law to be rated or levied [s. 3], and by 2 Geo. IV., 
 c. 85, [s. 2] in such places the justices may appoint persons to tax 
 and assess county rate upon all messuage, lands, tenements, and 
 hereditaments " in such and the same manner as the messuages, 
 " lands, tenements, and hereditaments, within any parishes or places 
 " where a rate is made for the relief of the poor." By 43 Eliz., c. 2, 
 money is to be raised for the relief of the poor " by taxation of every 
 " inhabitant, parson, vicar, and other, and of every occupier of 
 " lands, houses, tythes impropriate, propriations of tythes, coal 
 " mines or saleable underwoods in the said parish." In the 4th 
 vol. of Burn's Justice of Peace, by Chitty, pages 177 to 192, the 
 principles of valuation for the assessment of poor-rates under 
 this Act which have been laid down by the Court of Queen's 
 Bench are very fully illustrated. Amongst the rules which are 
 therein deduced from the decisions is this — " that although the 
 " rent reserved cannot be always relied on ; yet the annual sum at 
 " which the property would let for, is the fair criterion of its value. 
 " In Rex v. Chaplin, I. B. and Ad. 926 [4 Burn 188], Taun- 
 ton, J. said, " In ascertaining what a property is worth to let, the best 
 " criterion in general is what it actually does let for," and Patteson 
 J. said, " Where the land is not actually let, it becomes necessary tocal- 
 " culate what a tenant would pay for it where it is let. The actual rent 
 " is the criterion unless it can be clearly shewn that it is too small." 
 In Rex v. Hull Dock Co., 5 D. and R. 359 ; 3 B. and C. 516 [Burn's 
 p. 185], Lord Chief Justice Abbot said^" the whole worth or value 
 " is made up of what is paid in rent and what in rates, and other 
 
Nobris, E. 
 
 1842. 
 
 East India 
 
 Co. 
 
 v. 
 
 Scott. 
 
 62 CIVIL CASES. 
 
 " outgoings. Land intrinsically worth £40 can only pay a rent of 
 " £30, if it is to pay £10 per annum in other wages ; and in esti- 
 " mating a rent to the landlord and tenant, look to the value of the 
 " thing on the one hand, and the outgoings on the other ; and the 
 "outgoings must be deducted from the value before the rent can 
 " be fairly fixed." 
 
 [Logan also cited Rex v. Tomlinson, 4 Man. and R. 169, 9 
 B. and. C. 163, Rex v. The Trustees of the Duke of Bridge- 
 water, 4 M. and E. 143, 9 B. and C. 168, Rex v. Joddrell, 1 
 B. and Ad. 403, and Rex v. Adams, 1 N". and M. 162, 4 B. and 
 Ad. 61]. 
 
 Cur. Adv. VuU. 
 
 May 25. Norris, R. This is an appeal against an assessment 
 made on the defendant's land under the Indian Legislative Act 
 No. XII. of 1840, but as the defendant contends, not in accord- 
 ance with the term and meaning of that Act ; the assessment 
 being calculated on the full value of the gross produce of the 
 land for the year, a mode of calculation not warranted, it is con- 
 tended, by the terms " annual rent or value," in the 2nd section 
 of the Act, which regulates the assessment of " lands not covered 
 " with houses or buildings" and " situated beyond the limits of 
 George Town," such as is the land in question. 
 
 The point has been argued by Mr. Logan with his usual 
 clearness and ability, though perhaps at more length than was 
 necessary, seeing that no Agent was retained to oppose him — that 
 the appeal is amicable for the piirpose of obtaining a judicial 
 decision of which both parties are desirous, — and that the« English 
 cases collected in Burn's Justice, title " Poor-rate," and ref ei'red 
 to by Mr. Logan, are quite decisive of the point in dispute. These 
 authorities leave me little more than to repeat the principles 
 therein laid down. The terms of the Act "annual rent," and 
 " annual value" are obviously convertible. Where the land is Ut, 
 the assessment must be levied on the actual " rent" reserved, if 
 not too small ; where it is not let, on the annual " value," or 
 sum for which it would let, if the owner wished to let it. But, it 
 is obvious, that no man in his senses would engage to pay a 
 rent equivalent to the value of the gross produce, without any 
 deduction for the expenses of cultivation. In the words of Mr. 
 Justice Taunton in the case of Rex v. Chaplin, I. B. & Ad. 926, 
 cited in Burn, " the profits of land are to be valued at what 
 " they would let for communibus annis, and it has, I believe, been 
 " held that no difference is to be made, because in one particular 
 ' ; year there was a loss. In ascertaining what a property is worth 
 "to let, the best criterion in general is what it actually does let 
 " for." And Mr. Justice Patteson, in the same case, says, " Where 
 " the land is not actually let, it becomes necessary to calculate 
 " what a tenant would pay it. Where it is let, the actual rent is 
 " the criterion, unless it can be clearly shewn that it is too small ; 
 " but that is not ascertained by enquiring whether the property 
 " was more or less beneficial in a particular year," 
 
STRAITS SETTLEMENTS. 
 
 63 
 
 The assessment in this case therefore must be amended and 
 levied in conformity with the rales above laid down. And having 
 thus disposed of the immediate question, I wish to add a few words 
 in justice to myself. Circumstanced as these Settlements are, there 
 have been many occasions in which it seemed to me that I could 
 not properly refuse to give an extra judicial opinion to those who 
 thought it worth their while to ask for it [a] . But in so doing I 
 never expected, as has happened on the present occasion, that 
 such opinions would be openly quoted and acted upon as nearly 
 tantamount, which of course they are not, to judicial decisions. 
 This is not fair to any Judge whose opinions may thus be easily 
 made to appear inconsistent, vacillating and worthless — not per- 
 haps because they really are so, but because the question may 
 have been indistinctly proposed or the answer wrongly interpreted. 
 On the present occasion I may be allowed, as I have the opportu- 
 nity, to say that the opinions I have given have not been incon- 
 sistent. If in reply to a question put to me in Court some months 
 ago, I expressed an opinion that the assessment should be levied 
 on the net produce of lands, I am not answerable for the errone- 
 ous conclusion which some appear thence to have drawn, that the 
 assessment might then be evaded altogether by landholders mak- 
 ing it appear that their net produce was fi'oin enormous deductions 
 next to nothing. Nor again when, to a question " whether 
 " estates should be assessed on the same principle as houses which 
 " pay on the gross proceeds or amount of rent,'' I shortly answered 
 in the affirmative, do I hold myself responsible for the want of 
 precision in the question, or the loose interpretation put upon the 
 answer, and which appears to have led to the present appeal. On 
 both occasions my opinion was substantially the same and con- 
 sistent with that which I have now given. In future it will be 
 my own fault if the consequences of similar mistakes are cast at 
 my door. Not that I mean to complain of any intentional breach 
 of faith, but of a want of due consideration in those who con- 
 sult me. 
 
 Norms, E. 
 1842. 
 
 East India 
 
 Co. 
 
 v. 
 
 Scott. 
 
 TA.N KEE v. HONG KEAT. 
 
 It is a sufficient reason for breaking off a promise of marriage — even after a large 
 sum of money has, in accordance with Chinese custom, been spent in consequence of 
 the engagement — that the plaintiff is inflicted with an infectious disease, even itoh. 
 
 This was an action by the intended bridegroom, to recover 
 $1,000, for breach of promise of marriage and for money paid, 
 laid out and expended at defendant's request. It appear that the 
 defendant had promised the plaintiff to give her daughter to him 
 in marriage, and a day was fixed for the marriage; that, in accord- 
 ance with Chinese custom, the plaintiff had, in faith of the 
 defendant's promise, gone through the usual formalities and 
 ceremonies and had spent a large sum of money, but the defen- 
 
 [a] On this point, see Edwards v. Easi India Go., 15th Dec, 1840, foot note [a] 
 [e"nd of Eecorder's decision] Magistrates' Appeals, Yol. III. of these Reports — see also, 
 regarding same matter, Preface, &c, time of Sir William Norris, It. 
 
 Penang. 
 
 Noebis, B. 
 1842. 
 
 June 21. 
 
64 CIVIL OASES. 
 
 Norms, E. dant on the eve of the marriage, broke her promise and refused 
 1842 - to allow her daughter to marry the plaintiff. The defendant 
 Tan Kbe admitted the promise, the receipt of presents, &c, but pleaded 
 «■ that " long before the commencement of this suit, it was mutually 
 
 Bong Keat. « a g ree fl by an( j between the plaintiff and defendant that the said 
 " contemplated marriage should be, and the same was wholly res- 
 " cinded and abandoned accordingly." From the medical testi- 
 mony of Mr. Surgeon Smith it appeared the plaintiff was inflicted 
 with an infectious disease, which he supposed to be itch. 
 J. E. Logan, for plaintiff. 
 C. Baumgarten, for defendant. 
 
 Norris, E., held, on the authority of Lord Mansfield quoted 
 by Lord Kenyon in Foulkes v. Sellway, Esp. 236, that that was a 
 sufficient reason for breaking off the engagement and gave judg- 
 ment for the defendant. 
 
 SYED ABBAS BIN HUSSEIN AIDEED 
 
 v. 
 
 CHARLES SCOTT AND ANOR. 
 
 Penano. The mere fact that a judgment debtor, in order to defeat an expected execu- 
 
 tion, transfers his property to another creditor, with a view of preferring that other 
 
 Nobbis, R. creditor to the execution creditor, does not render the transfer fraudulent and void 
 
 1842, under the Statute, 13 Eliz., c. 5. 
 
 Notice of claim by a third party, to property seized, given to the execution 
 
 June 28. creditor, is notice to the Sheriff j and notice to the Sheriff, thereof, is notice to the 
 
 execution creditor. 
 
 Seizure and sale by the Sheriff is, but one act and one conversion, and where 
 the execution creditor indemnifies the Sheriff ; it is the joint act of both. 
 
 Semble. — It is not necessary to serve the Sheriff, who seizes the property of a 
 third party as property of the judgment debtor, with, notice of the claim of such 
 third party, in order to render the seizure and sale thereunder, a conversion. 
 
 This was an action of trover, and the facts giving rise to it 
 sufficiently appear in the judgment. 
 
 C. Bawmgarten, for plaintiff. 
 
 J. E. Logan, for defendant. 
 
 Our. Adv. Vult. 
 
 On this day judgment was delivered by 
 
 Norris, E. This is an action of trover against the Sheriff and 
 an execution creditor of one Abdullah, and the subject in contest 
 is the value of a barque called the Mahomed Bux, seized and sold 
 by the first defendant in part satisfaction of the judgment ob- 
 tained by the other, the said vessel having, as alleged by the 
 plaintiff, been transferred to him by Abdullah for a bond fide 
 consideration previous to the delivery of the writ of Fi. Fa. to 
 the Sheriff. It is not denied and was indeed clearly proved, that 
 ' the transfer and delivery of the vessel by Abdullah to the plaintiff 
 took place before, though but a few hours before, the delivery of 
 the writ, but it is contended that the transfer was void under the 
 Statute 13 Eliz., c. 5, as having been made by Abdullah " with 
 
ANOB. 
 
 STRAITS SETTLEMENTS. 65 
 
 " intent to delay, hinder or defraud his creditor," the second de- Nobbis, E. 
 fendant, of his just debt. It appeared, in evidence, that in March ^' 
 last year, the plaintiff had sued Abdullah for the sum of Dollars g TE D Abbas 
 1,300 odd on an agreement, and in May following for Dollars 1,400 «■ 
 
 odd on a promissory note. To the first action Abdullah had Sco i ™ AND 
 pleaded, the general issue with notice of set off to the extent of 
 Dollars 1,700 odd, to the second action no plea had been put in ; 
 pending these two actions against Abdullah, a third was brought 
 by the second defendant, Mahomed Meera Lebby, to which on the 
 14th June, Abdullah confessed judgment, but judgment was not 
 given nor execution sued out until the 19th. The writ did not 
 reach the Sheriff's hands till between two and three in the after- 
 noon, whilst the vessel had been transferred and delivered to the 
 plaintiff in the course of the morning. Now that the transfer 
 was made with intent to hinder or delay Mahomed Meera Lebby 
 from reaping the fruits of his judgment there can be no doubt; 
 but it does not necessarily follow that the transfer was therefore 
 fraudulent, see Estwick v. Gailland, 5 T. E. 420. Nor was the 
 preference thus shewn to the plaintiff necessarily fraudulent 
 within the meaning of the Statute ; Halberd v. Anderson, 5 T. E. 
 235. But it is contended that the transfer was fraudulent as 
 having been made without a bond fide consideration. The consi- 
 deration appears to have been a previous debt against which the 
 value of the ship, Dollars 800, [the sum for which she actually sold] 
 was to be set off ; and this the cases referred to by Mr. Baum- 
 garten, show to be a good consideration. The real value of the 
 ship, to be sure, was then only Dollars 400, as she had been pre- 
 viously mortgaged for so much — but to make up for this, Abdul- 
 lah's brother, Abdulrahman, transferred hind worth Dollars 400 in 
 part liquidation of the same debt, so that the plaintiff obtained 
 in the vessel and land value nearly to the full extent of his claim 
 on Abdullah, which according to the evidence was about Dollars 
 900 ; and the amount for which the latter was sued in the two 
 actions, reduced by the set off, appears to have been little more, 
 viz., about Dollars 1,000. Tfc is asked whether this account of 
 the matter, which is given by Haji Ahmed is credible — seeing 
 that the two actions against Abdullah still remain on the file, and 
 that he has no release to show ? If the parties had been European 
 Merchants — regular men of business, — this argument perhaps 
 might have had considerable weight ; — but we all know the loose 
 and careless way in which the natives generally manage such 
 transactions ; and knowing this, I confess it does not surprise 
 me that Abdullah should have considered himself perfectly safe 
 without any formal release or withdrawal of the actions, and that 
 the evidence of Mr. Mclntyre, his own brother, and Haji Ahmed 
 would conclusively show that' all claims had been settled by the 
 transfer of the ship and land, should Syed Abbas ever have the 
 hardihood to assert the contrary. Haji Ahmed's evidence, it is 
 true, is not quite consistent with that of Mr. Mclntyre ;— the 
 former asserts that the nature of the considerations was explained 
 to Mr. Mclntyre in the first instance prior to his drafting the 
 bill of sale; Mr. Mclntyre says— " no— not until I had enquired 
 
ee , civil cases. 
 
 Nobsis, E. « where is the money." I do'nt, however, consider this discre- 
 pancy of sufficient importance to throw entire discredit on Haji 
 
 Syed Abbas Ahmed's evidence, — it mny easily have arisen from inadvertence 
 . «• or forgetfulness; and Mr. Mclntyre himself sa.ys, that he hud no 
 
 Scott and reas011 t suspect that the whole transaction was not bond fide. 
 But in opposition to Haji Ahmed's testimony is brought forward 
 that of Che Lah, who certainly tells a very different story. If he 
 is to be credited, the amount of Abdullah's debt to Syed Abbas 
 was only 400 or 500 instead of 900 dollars, and as that debt was 
 fully secured by the transfer of the land, the transfer of the vessel 
 also, it is argued was clearly superfluous and must therefore have 
 been colourable and without any bond fide consideration. But the 
 veracity of this account is rendered more than dubious by the 
 chain of improbabilities connected with it. It is, in the first 
 place highly improbable, scarcely credible, that Syed Abbas on 
 the one hand should have had the audacity to demand and the ad- 
 dress to obtain, or that Abdullah and his brother, on the other 
 should have been simple enough to give valid securities [for, as 
 against them they are unquestionably valid] to the extent of 800 
 dollars for a debt little more than half that amount. It seems 
 absurd also and incredible that Syed Abbas should out of mere 
 joke, [as according to Che Lah, he declared was the fact] have 
 sued Abdullah for 2,700 dollars, when he admits that he could 
 claim only 500. Again, if it be true, as Che Lah says, that he 
 was on the most intimate and confidential terms both with Syed 
 Abbas and Abdullah, it is little to his credit, to say the least, and 
 necessarily leads one to suspect his testimony, that he should 
 have been treacherous enough to reveal these confidential commu- 
 nications to Mahomed Meera Lebby. If on the other hand, this 
 pretended intimacy be a fiction, falsehood necessarily impeaches 
 the testimony altogether — strange, too, that so confidential an 
 adviser who, if he is to be believed, had been entrusted with the 
 entire management of the compromise should have been absent 
 at the critical and important moment, when the transfer was for- 
 mally made at Mr. Mclntyre's. Certainly, it is very difficult to 
 reconcile both accounts ; and being thus in a manner driven to 
 decide between the two witnesses, I have no hesitation in giving 
 the preference to Haji Ahmed, as, in my judgment the more 
 respectable witness, and as giving an account which appears more 
 accordant with probabilities. Admitting the transfer, however, 
 to have been bond fide, it wns contended that the Sheriff had re- 
 ceived no notice — though doubts were at the same time expressed 
 whether notice was necessary. I also doubt whether notice was 
 necessary. The transfer was openly and fairly made at a Public 
 Notary's and the ship was delivered over in open day. The 
 Sheriff, therefore, at his peril, seized it as still the property of 
 Abdullah. But, in truth, notice was actually given, — notice to 
 the former Sheriff, which was proved, was notice to Mahomed 
 Meera Lebby the execution creditor, and no I ice to him was suffi- 
 cient notice to the succeeding Sheriff; this is clear from the 
 present Sheriff's refusal to act without an indemnity bond from 
 Mahomed Meera Lebby. Lastly, it was objected that no evidence 
 
STRAITS SETTLEMENTS. 
 
 6? 
 
 Scott and 
 
 ANOli. 
 
 had been given to > prove .a joint act of conversion by the defend- Nobbis, E. 
 ants — that the seizure was one conversion — the sale another. 1842, 
 This I cannot admit, even were it necessary to prove such unity g TED Abbas 
 of operation in an action for a tort. The sale was the only con- 
 version and that was a joint act, the Sheriff selling and the other 
 defendant, indemnifying him for so doing. The plaintiff is clearly 
 entitled to judgment, and under all the circumstances, I think, 
 with full costs. The damages I assess at dollars 1,000, viz., $800, 
 the sum for which the ship sold, and $200 for loss of freight, &c, 
 from the time of seizure. 
 
 Judgment accordingly* 
 
 McINTYEE v. G. D. GALASTAUN. 
 
 A creditor who had claims, in three several capacities against his debtor, 
 recoived in all three captivities dividends from the Trustees of his debtor, under 
 a composition deeJ. He signed the composition deed once, without shewing, on 
 the deed, in what character he signed it. He subsequently denied he had signed 
 the deed and received any dividend, except in his individual capacity, and threat- 
 ened his debtor that unless some security was given for one of the two claims which 
 he had in a representative character, he would take proceedings against him. He 
 concealed from the debtor the fact that he had received dividends in such repre- 
 sentative capacity, and when the debtor was induced to make a mortgage bond to 
 secure the one representative claim, he falsely represented that he had paid the 
 estate he represented, and required the bond to be made in his own name, 
 which was done. 
 
 Held, the receipt of the dividends in the three capacities, and signing his 
 name generally, was a sufficient assent by him to the composition deed, so as to 
 make it binding on him. 
 
 Held also, that the mis- representation that he paid the estate he represented, 
 the debtor's debt, — and the fraudulent concealment in not disclosing that he had 
 already received, in such representative capacity, a dividend under the composition 
 deed, were sufficient to render the mortgage bond, fraudulent and void, and the 
 same was ordered to be given up to be cancelled, at the suit of the debtor, who 
 subsequently came to learn of the fraud practised on him. 
 
 The facts and pleadings in this case are so fully set out in 
 the judgment, that it is needless to state them here. 
 
 J. R. Logan, for plaintiff, 
 
 C. Baumgarten, for defendant. 
 
 Norris, R. The defendant in this suit has obtained judgment 
 at law on a bond for dollars 5,500, and the object of the present 
 bill of discovery is to have the bond set aside on the ground that it 
 wasobtained byfraudulent concealment and mis-representation, and 
 that the defendant may be restrained by injunction of this Court 
 from proceeding further on the judgment he has obtained or 
 bringing any other action on the bond. 
 
 The bill states in substance that complainant was a merchant 
 and auctioneer, and that having sustained heavy losses, and being 
 in embarrassed circumstances, a meeting of his creditors was 
 called in the month of May, 1832, at which the testator and most 
 of the other creditors attended, when it was agreed that a deed 
 of composition should be entered into and that complainant should 
 assign over all his property to the testator, Mr. Geo. Scott and 
 
 Penanq. 
 
 Nobbis, B. 
 1843. 
 
 May 30, 
 
GS 
 
 civil OASES. 
 
 Nomas, E. 
 
 1843. 
 
 McIntyee 
 
 v. 
 Galastaun. 
 
 Mr. Philip de Murat,' as trustees for the benefit of the creditors 
 in general ; that on a subsequent day in the same month, a deed 
 of composition was accordingly drawn up nnd executed by the 
 complainant, the said trustees and most of the creditors whereby 
 among other things it was covenanted and agreed that the com- 
 plainant should have "full and absolute iiberty, license, and 
 " authority to follow and attend to any affairs, business matters 
 " and things whatsoever, without any arrest, attachment, execu- 
 " tion, impediment or molestation whatsoever against his person 
 " or estate by the said parties, and that if any or either of them 
 " did or should arrest, attach or otheiwise molest the person or 
 " effects of tlie complainant, then the debt and debts of or 
 " belonging to the person, or persons so acting contrary to 
 " the said provision should be forfeited and void, and the grant 
 " and license thereby given shoull be and operate as an absolute 
 " and final release," &c. 
 
 The bill goes on to state that the complainant assigned over 
 all his property accordingly, that it was sold and realised, and 
 that a schedule was prepared and signed by the complainant 
 shewing the amounts of the several debts due by hiin and the pro- 
 portionate dividends ; that among other debts mentioned in the 
 schedule appeared one of 552 dollars due to the defendant's 
 testator, another of 138 dollars due to Mrs. Carapier, the mother- 
 in-law of the said testator, and another of 2,715 dollars due to 
 the said testator as Executor of Gregory Lucas deceased. That 
 sometime in 1833, the said testator received the dividend on his 
 own individual claim and signed the schedule accordingly ; and 
 that sometime in 1837, he received the dividends on the debt due 
 •to Mrs. Carapiet and to himself as executor of Lucas ; that the 
 schedule having at that time been missed the testator did not 
 sign it for the two last mentioned dividends, but that he gave a 
 special receipt for the latter particularly worded with reference to 
 the composition deed ; that the complainant was ignorant of the 
 testator's having received these dividends until after the defend- 
 ant had brought his suit at law on the bond now in question ; 
 that in March, 1838, the testator demanded from the complainant 
 payment of his debt to him as executor of Lucas ; that complain- 
 ant reminded him of the deed of composition as exempting him 
 from further liability whereupon the testator declared that he 
 had only executed the deed with reference to his own individual 
 claim and not as Executor of Lucas ; that the complainant en- 
 deavoured to prevail on hiin not to sue, but that testator threat- 
 ened immediate proceedings unless complainant would sign the 
 mortgage bond in question; that the testator concealed from 
 complainant the fact that he had already received the dividend as 
 Executor of Lucas, and complainant being thus led to believe that 
 he was still liable for the debt, agreed to execute the required 
 bond ; that whilst the bond was preparing, Testator said he had 
 bePM obliged to pay complainant's debt to the estate, and that, there- 
 fore, the bond should be granted to testator in his own name; 
 and that thebond was accordingly executed on the 10th Novem- 
 ber, 1838, ifor the amount agreed on, viz., 5,500 dollars; that 
 
STRAITS SETTLEMENTS. 69 
 
 after the death of the testator, the defendant as his Executor Noebis, E. 
 brought an action against complainant on the said bond, vw., on 
 the 1st November, 1842; that sometime thereafter complainant McInttbb, 
 learned for the first time that the testator had received the said v- 
 
 dividend ; ami he now charges that the said bond was obtained Galastaun - 
 by fraudulent concealment of fact and mis-representation, and is 
 therefore invalid ; and he, therefore, prays relief, and that the 
 defendant may be called upon to declare on oath all that he knows 
 of the matter; and then follows a string of interrogatories in the 
 usual form. 
 
 The answer of the defendant admits in substance the truth 
 of -the allegations in the bill as to the meeting of creditors, the 
 deed of assignment, and the schedule and testator's receipt of 
 dividend on his own debt, but states his belief that the testator 
 never did receive the dividends due to Mrs. Carapiet and to him- 
 self as Executor of Lucas, or cither of them ; admits also the 
 execution of the bond by the complainant to the testator, but, 
 whether the consideration was different from what appears in the 
 bond, or whether the complainant was induced by the represent- 
 ations alleged, to si<?n the bond he does not know, but, that the 
 complainant might have easily ascertained, whether the testator 
 had received the said dividends or not : admits that he has ob- 
 tained judgment at law, but submits that if the bond was obtained 
 as alleged by fraud, complainant might a,nd ought to have pleaded 
 the same in bar to the action ; and lastly declared his belief that 
 the bond was obtained without fraud and for a good and valid 
 consideration. 
 
 With regard to the observation that the alleged fraud should 
 have been specially pleaded in bar to the action, a sufficient 
 answer is furnished by the defendant's affidavit that the fraud 
 was for the most part unknown to him till after the commencement 
 of the action ; the fact that previous to pleading the general 
 issue he had moved for leave to file a bill of discovery as neces- 
 sary to his defence ; and the understanding that the trial at law 
 should be proceeded with, subject to the result of such bill in 
 equity. It should be remembered also, that when complainant's 
 agent was proceeding to cross-examine the witness, who proved 
 the execution of the bond as to the circumstances under which 
 the Bond was given, the cross-examination was objected to by the 
 agent on the other side, and the objection, prrhips, too readily 
 allowed. On consideration, I am inclined to think that the cross- 
 examination was quite regular and that the disallowance of it 
 might have afforded sufficient ground for a new trial. 
 
 The principal witness called by the complainant was Mr. Geo. 
 Scott, whose evidence was taken de bene esse, as he was on the 
 eve of proceeding to Europe. The witness was objected to at the 
 time on the ground that he was interested in the event of the suit 
 and might avail himself of the decree in any subsequent proceeding 
 against him to recover the dividend, the payment of which he 
 was called to prove. The interest was not sufficiently apparent, 
 and the other objection, on reference to the Act IX. of 1840, was 
 temporarily overruled ; but the point was reserved. On the hea,r- 
 
70 
 
 CIVIL CASES. 
 
 McInttre 
 
 v. 
 Galastaun. 
 
 Nobris, E. ing of the cause the other day, Mr. Scott's deposition was tendered 
 1843. £ n e vidence, but again objected to on the grounds above stated. 
 For the defendant, Mr. Bauingarten cited several cases of actions 
 for damages occasioned by negligent driving, in which the evidence 
 of servants on behalf of their masters had been held inadmissible 
 on the obvious ground that they had a direct interest in the event 
 of the suit by throwing off the imputation of negligence from 
 their own shoulders upon those of the defendants. I do not men- 
 tion these cases in detail, as in my opinion they are quite inappli- 
 cable. Mr. Scott had no interest, for aught that has appeared, 
 in the success of either plaintiff or defendant in the suit. But 
 then, it was contended, he might avail himself of the judgment 
 of the Court in any future action or suit to be brought against 
 him by the creditors for the amount of the dividend which accord- 
 ing to his evidence had been paid to the testator. But the judg- 
 ment or decree would not be evidence for him in such an action 
 for three reasons, — firstly, that, as Mr. Logan observes, he 
 would thus, in contravention of one of the first principles of 
 evidence, be made a witness in his own cause; secondly, that the 
 parties would be different, whereas, verdicts and judgments are 
 Only evidence for or against the same parties ; and, thirdly, thiit 
 judgments are only conclusive between the same parties "upon the 
 same matter, and not upon any matter which come collaterally in 
 question nor of any matter incidentally cognizable, nor of any 
 matter to be inferred by argument from the judgment. Besides, 
 whether the judgment would be available in another suit or not, 
 I conceive that the Legislative Act IX. of 1840, renders the objec- 
 tion nugatory as a bar to the reception of the evidence in the 
 present suit. Some cases indeed, cited by Phillips in the last 
 edition of his work on Evidence, have been referred to, from 
 which it appears to have been ruled in the Courts at West- 
 minster that the Statute 3 and 4, Wm. IV., on which the 
 Indian Act is founded, was not intended to npply to Courts of 
 Equity. But the cases upon that Statute are, as admitted by 
 Mr. Phillips, full of difficulty and not easily reconcilable; and it 
 should be remembered that the Indian Act was passed seven years 
 after the Statute-with full knowledge or the means of full know- 
 ledge of the conflicting decisions upon the subject, and that the 
 terms employed are general, viz. : " if any witness shall be objected 
 " to in any of Her Majesty's Courts, &c," without reference to the 
 separate jurisdictions of law and equity, whereas, the provision in 
 the English Statute is expressly limited to the " Courts of 
 " common law." 
 
 Mr. Scott's evidence then, I think, was on every ground 
 admissible. The details of that evidence, I need not again re- 
 capitulate, as it is familiar to the parties and I have°already 
 expressed my opinion, which I see no reason to alter, that it is 
 substantially true. I believe, then, as I have already stated, that 
 Mr. Galastaun did receive the dividend due to him as Executor of 
 Lucas's Estate, and having so received it he virtually assented as 
 such creditor to the terms of the composition deed, and there was 
 no necessity for him to sign his name over again at the foot of 
 
STRAITS SETTLEMENTS. 7l 
 
 the deed. His signature was general, and as such bound him not ^°*""!?> *" 
 
 only as trustee, but as creditor also from the moment he received ' 
 
 his dividends. A case cited by Mr. Bauingarten himself supplies a McInttee 
 sufficient authority on that point. In the case of Lewis v. Jones, *• 
 
 4 B. and C. 512, Mr. JustieeBailey observes : " If a creditor signs an Galastadn. 
 " instrument generally he becomes a party to it unconditionally, and 
 " then the legal effect of the instrument must be collected from 
 " the instrument itself, and not from verbal declarations made by 
 " the parties at the lime they executed it." As Mr. Galastaun, 
 -therefore, after the receipt of the dividend, became subject to the 
 same conditions as any other creditor who had signed the deed 
 of composition, the question then arises, whether his subsequent 
 proceedings with regard to the mortgage bond in question were or 
 were not a violation of the deed and a fraud upon his brother 
 creditors, or at least upon the complainant. As regards the 
 creditors, the cases from 4th and 9th B. and C, cited by Mr. 
 Bauingarten in explanation of that of Cochhott v. Benneit in 
 4 T. E., certainly tend to shew that in order to sustain the argu- 
 ment of a fraud upon them, the mortgage bond in question must 
 appear to have been executed or agreed upon at the time, when 
 the composition deed was assented to ; but there is nothing in 
 those cases to prevent the operation of the defendant's breach of 
 his covenant not to sue, &c, by which the bond became void. 
 Nor do they affect the question as regards the complainant, who 
 charges the defendant with having obtained the bond from him 
 by mis-representation and fraudulent, concealment. The evidence in. 
 support of this charge is the testimony given by Mr. Norman 
 Mclntyre and Mr. W"m. Anderson. The latter gentleman de- 
 clares that in a conversation with the deceased at Calcutta, shortly 
 before his death, Mr. Galastaun admitted that the bond, though 
 granted to him in his own name, was in effect for the debt due to 
 him as Executor of Lucas. This corroborates the testimony of 
 Mr. N. Mclntyre on that point, who declares that the deceased 
 requested that the bond might be so made out, although surprise 
 was expressed by the witness and his brother, the complainant, at 
 the time. And how did Mr. Galastaun overcome their scruples 
 in this respect? By representing that he had himself been 
 obliged to pay the complainant's debt to the estate. Was this 
 true or was it not ? If untrue it was certainly a mis-representation 
 for the obvious purpose of inducing the complainant to sign the 
 bond. Now had it been true some notice of ihe payment should 
 have appeared in the estate papers of Luc:is. But, there is none, 
 and the presumption therefore is that the assertion was untrue, 
 especially as Mr. Galastaun was not, as he asserted, under any 
 obligation whatever to pay off the complainant's debt to that 
 estate. But, whether or not, the fraudulent concealment of the fact 
 that he had received the dividend is plain from Mr. N. Mclntyre 's 
 evidence, and that in my opinion is alone sufficient to vitiate the 
 bond. Had Mr. Galastaun been only an ordinary creditor, I 
 should still have thought I his concealment sufficiently condemna- 
 tory, but standing as he did in the situation of a trustee, and as 
 such especially bound to disclose a fact of so much importance to 
 
72 
 
 CIVIL CASES, 
 
 Norris, K. 
 1843. 
 
 McInttbe 
 
 v. 
 Galabtahk. 
 
 the complainant and of which, the latter was obviously ignorant, 
 the fraud has a darker aspect. 
 
 A case has been cited on behalf of the defendant to shew 
 that there is no fraud in mis-representing the legal effect of an 
 instrument to a person who has signed it, since every man must 
 be presumed cognizant of the legal effect of any instrument to 
 which he affixes his name ; but, I am at n loss to know how that 
 case applies here. Two cases -were also cited from 2 Vernon, to 
 shew that a fraudulent debtor, is no more entitled to relief in equity 
 than a fraudulent creditor — but here again I cannot perceive 
 the applicability of these cases. So far from intending to de r 
 fraud his creditors the complainant was himself deceived. Lastly, 
 it was contended that the complainant being under a moral obli- 
 gation to discharge the debt, the defendant was not justly charge- 
 able with fraud in obtaining additional security for that debt, 
 even admitting him to have resorted for that purpose to the mis- 
 representation aud concealment complained of. I have so little 
 doubt upon the subject that it is hardly necessnry, I conceive, to 
 cite authorities ; but as it may be more satisfactory to the parties 
 to do so, I refer with pleasure to the book principally relied on 
 by Mr. Logan for the complainant, the work of the American 
 Jurist, Dr. Storey's Commentaries on Equity Jurisprudence, which I 
 have the less hesitation in doing as the learned writer's positions 
 on this head are almost entirely fouuded upon or at least easily 
 deducible from or reconcilable with English authorities. " Fraud," 
 said Lord Hardwicke as quoted by Dr. Storey, " is infinite and 
 " were a Court of Equity once to lay down rules how far it would 
 " go and no further in extending relief against it, or to define 
 " strictly the species or evidence of it, the jurisdiction would be 
 " cramped aud perpetually eluded by new schemes which the fer- 
 " tiiity of man's invention would contrive." " Fraud," continues 
 the learned commentator, " in the sense of a Court of Equity, 
 " properly includes all acts, omissions and concealments which 
 " involve a breach of legal or equitable duty, trust, or confidence, 
 " justly reposed, and are injurious to another, or by which an undue 
 " and unconscientious advantage is taken of another." Again, 
 as belonging to an extensive class, he refers to " cases where one 
 " party is under some obligation to communicate the facts or where 
 " there is a peculiar known relation, trust or confidence between 
 " them, \yhich authorizes the other party to act upon the presump- 
 " tion that there is no concealment of any material fact." Authorities 
 to the same effect might easily be multiplied, but this cannot be 
 thought necessary. 
 
 My decree is that the bond be delivered up and cancelled as 
 fraudulent and void, and that the defendant be enjoined from 
 all further proceedings with reference to it at law. The defend- 
 ant to pay the full costs incurred by the complaiuant in defending 
 the action, and in prosecuting his bill. 
 
STRAITS SETTLEMENTS. 
 
 73 
 
 F. S. BEOWN & ANOE. v. KAM KONGAY & ANOE. 
 
 The Court will not allow interest on a judgment, for any interval of time interven- Penano. 
 
 iug between the date of judgment, and payment thereof. 
 
 The Statute 8 and 9 Wm. III., c. 11, s. 8, does not apply to a simple money bond. Noebib, li. 
 
 1844. 
 
 This was an action to recover $2,000, besides interest, due on 
 a bond. The defendants had allowed judgment to go by default 
 and the matter now came before the Court, for assessment of 
 damages. 
 
 C. Bwwmgarten for plaintiffs claimed interest on the debt 
 after judgment entered and up to day of suing out execution, or 
 of satisfaction. The practice he stated [and in this he was borne 
 out by the Eegistrar] to allow interest only up to the day judg- 
 ment was entered, whether execution issued immediately or eleven 
 months after — but was never, in practice, allowed for any period 
 which transpired after date of judgment. 
 
 Norris, E. The petitioners are only entitled to interest up to 
 the date of judgment. The Statute 8 and 9 Win. III., c. 11, 
 s. 8, which enacted that in debt on bond the judgment should 
 stand as security for "further damages " arising from "further 
 " breaches," &c, does not apply to the case of a simple money 
 bond like the present, where there is, and can be, but one breach — ■ 
 the non-payment of the stipulated sum. Besides, had the Statute 
 been applicable, the plaintiffs should have proceeded differently, 
 by suing for the penalty [they sue only for the sum due] and 
 assigning and proving breaches according to the form, see the 
 notes to the cases of Gadnsford v. Griffiths, 1 Saund 58, and Roberts 
 v. Mariott, 2 Saund 187, where the history and form of proceed- 
 ings on the Statute are detailed at length. There will be judg- 
 ment for the plaintiff for $2,000, for principal, besides interest, 
 up to this day, and costs of suit [a] . 
 
 August 13. 
 
 EAST INDIA CO. v. JAMES LOW. 
 
 The right that the Government has to distrain for arrears of quit rent, does not 
 deprive them of their right to sue the tenant at law for the rent : the remedies are 
 cumulative. 
 
 Where a person has, on accepting a grant of land from Government, covenanted to 
 pay quit rent annually, without any exception as to circumstances, he is bound to pay 
 the rent, although the lands may subsequently turn out useless, and are abandoned by 
 him. 
 
 This was an action to recover $258.9(i arrears of quit rent of 
 certain lands in Province Wellesley granted by the plaintiffs to 
 the defendant in fee, [by grant No. 3678, dated 30th April, 1833] 
 subject to an annual quit rent which increased at stated periods 
 until a given time, when thereafter the quit rent was to be at 
 Es. 2 per orlong. This quit rent was to be " under the Eules 
 
 [a] This decision must be considered overruled by Ord. 2 of 1884, and is only 
 reported as shewing that prior to that Ordinance, interest was not chargeable on 
 judgments, a, point considered uncertain) in ignorance of this decision.— J »W, N. K. 
 
 Penang. 
 
 Kawxin- 
 
 son, K. 
 
 1848. 
 
 June 15. 
 
Low. 
 
 74 CIVIL CASES. 
 
 Eawlin- « prescribed for the issue of titles, A. D. 1831. Eegulation I." 
 B ^?* It appeared that the defendant finding the land useless, abandon- 
 -. '' ed it and refused to pay these arrears of quit rent. On the 10th 
 E. I. Co. July, 18-17, a notice was served on him requiring him to pay the 
 same within 15 days and proceeded, "that in default of payment 
 " within the period specified, the amount of the said arrears, to- 
 " gether with costs of process, will be recovered under the powers 
 " of Act XVI. of 1839." This notice was signed by the Assistant 
 Collector at the Land Office, Province Wellesley. The defendant, 
 still declined to pay, the land being mere jungle and uncleared 
 ground, no distress could be found there. Thei'e was no clause in 
 the grant for the property to revert to Government in default of 
 payment of quit rent. This action was therefore brought. The 
 defendant pleaded first plea he did not owe the money, and by 
 way of a second plea, " the plaintiffs ought not to have or main- 
 " tain their aforesaid action against him, because he says, that by 
 " reason of the arrears of quit rent in the petition alleged remain- 
 " ing three years unpaid, the land mentioned in the petition is 
 " alone liable for such arrears, and is resumable to the plaintiffs. 
 " by virtue of the Eegulation prescibed for the issue of the title 
 " under which this defendant holds his said laud, to wit, Eegula- 
 " tioii I., A. D. 1831, and this he prays the Court to enquire, 
 " &c." ' The plaintiffs demurred to this plea as being insufficient in 
 law : the defendant joined in demurrer. By sec. 8, cl. 3 of the 
 Eegulation 1 of A. D. 1831, it is enacted "all persons holding 
 " lands, shall, after the date of this Eegulation, be responsible for 
 " the annual quit rent thereon, registered in their names, and 
 " Government shall be at liberty to distrain on the premises for 
 " annual arrears of rent without application to the Court of Judi- 
 " cature, but the land itself being ultimately held liable for the 
 "quit rent; in case of its remaining three years unpaid, the 
 " lands shall be resumed by the Government." 
 
 J. Ferrier, the Assistant Collector, for plaintiffs. 
 S. Herriot, as special agent for defendant, contended, T. — that 
 as the deed was a mere grant, not a deed inter partes, and not 
 signed by the defendant, he was not liable thereon ; II. — that the 
 regulation was part of the grant, and by sec. 8, cl. 3 the remedy 
 was confined to distress, and after the third year, forfeiture ; III. — 
 that there was an implied condition that the land was capable of 
 cultivation — it was not so — it was generally jungle, inaccessible 
 to either party. The action was for rent,, but rent was money 
 issuing out of the land, therefore profit — here there was no profit, 
 the land was useless to the defendant and he had abandoned it. 
 Unless there was a beneficial occupation, no rent could be claimed. 
 Edwards v. Etherington, E. & M. 268, and Collins v. Barrow, 1 
 Moody and Eobinson, p. 112. 
 
 Rawlinson, E. I give judgment for the plaintiffs on the 
 grounds that the first objection is not tenable. On general prin- 
 ciples, a landlord's title cannot be disputed by a tenant, or the 
 objection should have been pleaded by " non est factum" and 
 was unavailable on " nil debet" as had been pleaded in this case. 
 Comyn's Tenant Law, p. 469, [Ed. 1821] and Jlodson v. Sharpe, 
 
STRAITS SETTLEMENTS. 75 
 
 10 East 350. As to the second objection, I rule that the ^ L ^ N " 
 liberty to distrain did not deprive the plaintiffs of their s ^ 8> ' 
 
 right of action of debt at common law, and the demurrer 
 
 must be allowed. As to the third objection, the cases cited E. I. Co. 
 were Nisi Prius cases, and for use and occupation : the pre- Ii0 ' w _ 
 sent action is founded on defendant's covenant to pay rent, which 
 is binding on him, under all circumstances ; Baker v. Holpzaffel, 
 4 Taunt 46 ; Brown v. Qurlow, Ambler 621 ; Goodale's case, Dyer 
 14, and Moule v. Cooper, 1 Ld. Raymond 1477. 
 
 Judgment for ylaintiff with costs. 
 
 BROWN v. MUNICIPAL COMMISSIONERS. 
 
 The appellant, the owner of extensive lands in the Settlement, rented a large Penang. 
 
 portion of such land, to tenants, and kept the remainder in his own occupation : he 
 
 employed an agent to superintend the whole of these lands including those let out Jbpfcott, R. 
 to tenants, and paid this agent $6,000 a year. He claimed that this sum under 1850. 
 
 Act. IX. of 1848, should be deducted from the rent of the lands let, as well as from 
 
 the value of the net produce of the lands in his own occupation. August 14. 
 
 Held, that no deductions could be made from the rent, as assessment was 
 dfrected by s. 3, to be charged on the " actual rent," but a reasonable portion of 
 sueh sum, for the superintendence of the lands occupied by himself, should be 
 deducted from the value of the gross produce of such lands. 
 
 The words " outlay actually paid and expended upon the land," in the 5th sec. 
 of the said Act means, an expenditure which is of such a nature as will give value 
 to the land, or is instrumental in producing the gross value ; the assessment there- 
 fore paid on a house built on the land, and quit rents paid to Government on the 
 . laud, are neither of them items which can be properly deducted under that section, 
 in order to ascertain the value of the net produce on which assessment is chargeable. 
 
 Principles of rating discussed. 
 
 This was an appeal heard at " Quarter Sessions" against certain 
 assessment fixed by the Municipal Commissioners on certain lands 
 of the Appellant. The facts and points sufficiently appear in the 
 judgment, so as not to require a statement of them here. 
 
 The parties appeared in person, and the judgment of the 
 Court was delivered by 
 
 Jeffcott, R. This is an appeal, on behalf of Mr. D. W. Brown, 
 against an assessment levied on his lands pursuant to the provi- 
 sions of "Act IX. of 1848," on the ground that certain deductions, 
 to which he considered himself entitled, were not made from 
 the amount of that assessment. 
 
 The 3rd sec. of that Act enacts that a rate, not exceeding 5 
 per cent., shall be levied half yearly or annually " upon the actual 
 " rent, or upon the value of the net produce, derived from all 
 " lands," &c. 
 
 The 4th sec. enacts, " that in order to ascertain the value of 
 " the net produce of any such lands for any 'one year or half year, 
 " for the purpose of levying such assessment, the amount of out- 
 " lay actually paid and expended, during that period, in and upon 
 " the lands yielding such produce, and in the manufacture of any 
 " such produce, [not including either the purchase money of such 
 " lands, or the original outlay thereon, or the cost or purchase 
 " money of any articles of machinery used or employed, or of any 
 " buildings erected thereon,] shall be deducted from the estimated 
 
76 
 
 CIVIL OASES. 
 
 bitcott, K. " value, at tlie then local current rate, of the gross quantity or 
 ' " amount of produce, whether manufactured or otherwise derived 
 " from such lands, and that upon the overplus or net balance 
 
 Beown 
 
 V. 
 
 Mun. Com- 
 missioners 
 
 upon the overplus 
 " value, the assessment shall be levied and paid." 
 
 The 5th sec. euacts that, in order to facilitate the collecting' 
 of assessment in manner specified in sec. 4, the Collector may 
 require the owner or other person in charge of the said lands to 
 furnish him, either annually or half yearly, with a true and detailed 
 statement of the gross produce yielded by, or manufactured from 
 land during either of said periods — " and likewise a true and 
 " detailed statement of the amount of actual outlay paid and 
 " expended in the cultivation of the said lands, and in the prepar- 
 " ation or manufacture of the produce thereof, during the like 
 " periods," &c. 
 
 Mr. Brown first claims to be allowed a sum of 6,000 dollars 
 paid, as his yearly Salary, to an agent for superintending the 
 whole of his lands. It appears from the statement furnished by 
 Mr. Brown's agent, that a large portion of those lands is let 
 to tenants at fixed rents — the remainder is in Mr. Brown's own 
 occupation. The salary is claimed in respect of the superinten- 
 dence of the lands let to tenants as well as of those in Mr. Brown's 
 own occupation. 
 
 The Municipal Committee, to whom the expenditure of the 
 sum collected is entrusted, were willing to allow a reasonable 
 sum for the superintendence of the portion of the lands not let to 
 tenants, and proposed 3,000 dollars. That sum Mr. Brown refused 
 to accept, and insisted on his right to deduct the full sum 
 of $6,000. 
 
 The "Court are of opinion that, in determining the amount of 
 assessment to be levied on Mr. Brown's lands, no deduction what- 
 soever can be made from the actual rent of the portion of the 
 lands let to tenants, as the Act directs that the assessment is to 
 be levied upon the actual rent, and no deduction is authorized by 
 the Act to be made from it. And that, with respect to the portion 
 of the lands in Mr. Brown's own occupation, those deductions only 
 can be made which are specified in the 4th sec. of the Act. 
 
 As no objection is made to allowing, out of the salary paid to 
 the agent a reasonable sum for the superintendence of the latter 
 portion of the lands, it being considered that the expense of such 
 superintendence should be deemed a part of the necessary outlay 
 upon that portion of the lands, if the parties cannot agree as to the 
 sum, the Court must hear evidence to determine what sum would 
 be reasonable for the management and superintendence of that 
 particular portion. Mr. Brown next claims to have deducted from 
 the value of the gross produce of that portion of the lands in his 
 own occupation, the amount of the assessment which he paid on 
 the rent of Glugore House— [the mansion house of the estate in 
 which his agent resides] which amounted to 60 dollars — the rent 
 being estimated at $600. The assessment on houses is directed to 
 be levied by the same Act [No. IX. of 1848 J as the assessment on 
 lands-r-and no houses whatsoever are excepted from the assess- 
 ment except certain public and private buildings specified in the 
 
STBAITS SETTLEMENTS. 
 
 W 
 
 Mun. COM- 
 MISSIONERS. 
 
 schedule. Mr. Brown admits that his house is not one of those Juppoott, R 
 buildings mentioned in the schedule and that it was properly as- 1850 , 
 sessed — but he claims that the sum he paid for that assessment Brown 
 on his house should be deducted as part of the outlay actually 
 paid and expended on his lands, as the house was his agent's resi- 
 dence, but it is impossible to put such a construction on the 4th 
 Section of the Act. 
 
 The house and lands are selected by the Act as distinct and 
 separate objects of taxation — each pays its own assessment, and 
 for the purposes of the Act they are to be deemed as distinct and 
 separate as anything can be. 
 
 The Court are of opinion, that the assessment paid for the 
 house cannot be considered, in any sense, as part of "the outlay 
 " actually paid and expended in and upon the lands," that the 
 obvious meaning of those words is, that the expenditure is to be 
 of such a nature as will have some effect in giving value to the 
 land — that the deduction from the gross value is to be of such 
 outlny as was instrumental in producing it, and such as a tenant 
 should take into consideration in determining the rent to be 
 paid for the land, such is the restricted meaning given to the 
 words " actual outlay" in the 5th Section, — and even though dis- 
 posed to give the most liberal construction to the words; still it 
 would be too remote an inference, that, because the land required 
 the superintendence of an agent — and the agent required a 
 house, and the house required a tax to be paid for it — therefore 
 the tax so paid, had a remote effect upon the value of the land, 
 and should be considered as part of the outlay on it. 
 
 The meaning we have given to the words of the 4th section 
 disposes of the claim of Mr. Brown with respect to all the other 
 assessments on foot, of which he required deductions, and we are 
 of opinion that those deductions should not be allowed — all those 
 assessments are imposed by the same Act as the assessment on 
 land, and on the different objects selected for taxation — and the 
 Act contains no provision that the sum paid for the assessment on 
 any one of those objects, shall be used in diminution of the 
 assessment to be paid on any other of them, nor does the Act con- 
 tain any provision that rates and taxes should be deducted for 
 the purpose of ascertaining the net value, the fact being that 
 there are no rates or taxes which could be deducted save those 
 imposed by the Act itself, no previous Act having imposed any. 
 
 The last claim of Mr. Brown is for a deduction of the amount 
 paid by him for quit rents, and we are of opinion that the claim 
 should not be allowed — the only deduction authorized by the Act 
 is "the amount of outlay actually paid and expended on the 
 " lands," and we have given a construction to those words which 
 excludes quit rents. 
 
 Besides we are of opinion that allowing it to the landlord 
 would introduce " inequality," as the tenant as presumed to be 
 charged with it in his " actual rent," and it has never been the 
 practice in England to deduct them, as land tax, quit rents, and 
 ground rents were considered landlord charges, which he included 
 in the rent, and if he were to be allowed to deduct them, while 
 
Mun. Com- 
 
 aiSSIONEES. 
 
 78 CIVIL CASE?. 
 
 effcott, R. the tenant paid according to the amount of actual rent, inequality 
 185 °; would be introduced. It may be deemed satisfactory to cite a 
 Brown few English, cases, to sbew that the principles which have regu- 
 v -„ lated the decisions of the Courts in England upon rating Acts, 
 have been adhered to in framing this Act, with such alterations as 
 suited the circumstances of this Settlement. Most of those deci- 
 sions have been upon the Act for relief of the poor. 
 
 The 43rd Elizabeth, c. 2, [considered the first Act for the 
 relief of the poor] uses the most general terms, and merely directs 
 that a rate shall be raised, by "taxation of every occupier of 
 " lands, &c, in the parish" nothing is said in that Act as to the 
 principle upon which the rate was to be made — whether it was to 
 be. made according to the respective values of the lands — but judi- 
 cial decisions soon determined that it should be so made. 
 
 In subsequent rating Acts, a direction is introduced that the 
 rate shall be made according to the respective values of 
 the lands — and finally judicial decision determined that the 
 "• value" intended was the " net annual value" and that the fol- 
 lowing were the modes in which that value was to be ascer- 
 tained. 
 
 If the land were let to a tenant at a rack rent, that the best 
 criterion of the " net annual value " was the rent paid for it — and 
 if not let to a tenant the rent which might reasonably be ex- 
 pected for it. 
 
 To ascertain this latter rent they determined that the value 
 of the gross produce should be ascertained, and that the cost of culti- 
 vation, tenants' rates, and other outgoings should be deducted, 
 and that the balance should be deemed the rent which might be 
 reasonably expected. 
 
 That when the land was let to a tenant there was no neces- 
 sity for making any calculations or deductions as the " rent" he 
 paid was the measure of the " net annual value" of his lands. 
 
 When the land was not let, but kept in the owner's own 
 occupation, it was necessary to make calculations and deductions 
 to ascertain what rent the owner should be charged so as to put 
 him on an equality with the tenant. 
 
 In JR. v. Hull Dock Co., 3 B. & C. 527, Abbot, C. J. says : 
 " The whole value is made up of what is paid in rent, and what 
 " is rates, and other outgoings. Land intrinsically worth £40 a 
 " year can only pay a rent of £30 if it is to pay £10 per annum 
 " in other ways — and on estimating a rent both . landlord and 
 " tenant look to the value of the thing on the one hand, and 
 " to the outgoings on the other, and the outgoings must be 
 " deducted from the value before the rent can be properly fixed." 
 
 In B. v. Duke of Bridgewater, 9 B. & C. 72, Bayley, J. : " If 
 " land be occupied by a person, as a farmer, the value of the 
 " occupation is the rent paid by him for it. The principle of our 
 " decision in the case is that the same rule is to be applied to all 
 " occupiers, and that the rent or sum at which the land will let 
 " is the criterion of the value of the occupation." 
 
 And in B. v. London and South-Western By., 1 Q. B. 586, Lord 
 Penman says ; " From the time of the decision of the case of 
 
STRAITS SETTLEMENTS. 
 
 ?0 
 
 Beown 
 
 V. 
 
 JIttn. Com- 
 missionebs, 
 
 " Rex v. Trustees of the Duke of Bridgewater, it has been gene- Jmfoow, R 
 " rally understood that, fraud apart, the rent, whether the occu- 18o ° ' 
 " pier was the owner, or only the tenant, in the former case a 
 " supposed, in the latter a real rent, was to be the criterion of 
 " rateable value." 
 
 Prom those and numerous other cases it appears to be the 
 established principle of rating lands in England, that, whenever 
 the land is let to a tenant, the actual rent, without any deduc- 
 tions whatsoever, should be deemed the criterion of the net 
 annual value, the presumption — is that the tenant, before he 
 fixed his rent, made all the necessary deductions for outgoings, 
 and when the land is not let to a tenant but kept in the owner's 
 occupation, that then such deductions should be made, from the 
 gross value of the produce, as would charge the owner with 
 a rent equal to that paid by his tenant supposing their lands to 
 be equally productive. The great object in all cases being that 
 the rate should be equally charged upon all according to the 
 respective values of their properties. 
 
 This principle of rating, namely, considering a real or sup- 
 posed annual rent the criterion of l'ateable value, has been applied 
 to every description of rateable property — houses, shops, mines, 
 canals, railways, saleable woods, manufactories, &c, and the great 
 difficulty the Court3 had was to. determine, in applying the same 
 principle to such various descriptions of property, which were the 
 proper deductions to be made, for the purpose of ascertaining the 
 fair annual rent, for each kind of property, when it was not 
 actually let to a tenant. 
 
 At length the Legislature interfered, and the 6th and 7th, 
 Wm. IV., c. 96 was passed, whereby, after reciting " that it was 
 " desirable to establish one uniform mode of rating for the relief 
 " of the poor throughout England and Wales" it was enacted that 
 no rate should be allowed " unless made upon an estimate of the 
 " net annual value of the several hereditaments rated thereunto : 
 " that is to say, of the rent at which the same might reasonably be 
 " expected to let from year to year, free of all usual tenants' rates 
 " and taxes, tithe commutation and rent charge, if any, and deduct- 
 " ing therefrom, the probable average annual cost of the repairs, 
 " Insurance, and other expenses, if any, necessary to maintain them 
 " in a state to command such rent." Since the passing of the above 
 Act, the Courts are coerced in all assessments, to which the Act 
 applies, to make the deductions specified in the Act and no others. 
 The Courts have no discretion. The deductions specified must be 
 made, no others can. 
 
 The Act, however, as Lord Dennmn says, in B. v. London and 
 South-Western By., " introduced no new principle of rating," it 
 merely specified for the convenience of the Courts and all parties 
 what, according to the old established principles of rating, should 
 be the deductions from the gross value of rateable property, for the 
 purpose of determining the net annual value, or the rent. 
 
 Those deductions have been deemed so reasonable, that they 
 have been recommended by the Judicial Committee of the Privy 
 Council, to be adopted for the purpose of ascertaining the rent, 
 
80 
 
 CIVIL CASES. 
 
 Brown 
 
 u. 
 
 M.UN. Com- 
 
 MISSIONEBS. 
 
 Jdpfoott, E. w hich could be reasonably expected, in a case where the Act 83, 
 " "'° Geo. 3, c. 50, " for watching, cleansing and repairing the streets 
 " of Bombay" merely directed that the assessment should be levied 
 in specified properties " according to the true and real annual 
 values thereof." 
 
 And in all cases when the Act imposing the rate uses 
 general words " according to the annual value," without direct- 
 ing how that value is to be ascertained, those deductions would 
 be proper. 
 
 In this Settlement, the first Act directing an assessment to be 
 levied on lands "Act No. 12 of 1840" enacts, that it shall be 
 levied on all lands, according to the real annual values thereof. 
 
 Those were the words used in the English Acts, and, accord- 
 ing to the English decisions, the " value" should be ascertained — 
 if let to a tenant — by the actual rent paid — if not let to a tenant 
 — by the rent which might be reasonably expected, and which 
 was to be ascertained by making certain deductions from the 
 gross value of the produce. 
 
 What those deductions should be was left here, as in Eng- 
 land, to the decision of the Courts, as long as general words were 
 used in the Act imposing the rate — but it was thought more con- 
 venient here, as in England, to specify the deductions and Accord- 
 ingly " the Act No. 9 of 1848" was passed, enacting that " the 
 " assessment on lands shall be levied half yearly or annually" on the 
 actual rent, or " upon the value of the net produce, derived from all 
 "lands" and, in order to ascertain the value of the net produce, 
 certain deductions specified in the Act are directed to be made and 
 no others can be made. The appeal will therefore be dismissed. 
 
 MILES v. ABEAHAM LOGAN. 
 
 Singapore. It > s no defence to an action of libel, that the article was copied from an English 
 
 newspaper which had been some months already in circulation, and was a Report of 
 
 JeffcotT, B. a debate in the House of Commons, on a matter of interest in this Colony. 
 
 1851. The defendant, the Editor of a newspaper, knowing that the article contained certain 
 
 libellous statements against the plaintiff, intended, in publishing such debate, to have 
 
 October 2. omitted such libellous statements. He handed the newspaper to his printer with the 
 debate marked Out, but without any instructions as to the libellous statements, intend- 
 ing himself to correct the proof sheets, and then to strike out these passages. Through an 
 accident, he omitted to correct the proof sheets, which were revised by the printer only, 
 and published in extenso, 
 
 Held, he had shewn great carelessness and a want of due regard for the feeling of 
 others ; and §200 damages, with costs, were awarded against him [a]. 
 
 This was an action of libel. The circumstances giving rise 
 to it are fully set out in the judgment. 
 
 R. C. Woods, sen., for plaintiff. 
 
 A. M. Aitken for defendant. The publication by the defen- 
 dant was entirely unintentional and could not therefore be libellous, 
 
 [o.J The joint opinion of Lord Chelmsford [then Sir Frederick Thesiger,] and 
 Mr. Justice Hill [then Mr. Hugh Hill] was taken by defendant after this judgment, 
 with a view to an appeal to the Privy Council ; but their opinion being in accordance 
 with the judgment, and against the defendant, the matter dropped. — J. TV. N. K. 
 
STRAITS SETTLEMENTS. 81 
 
 intention and malice being essential ingredients in libel. In Jmtoott, K. 
 Rex v. Lord Abingdon, 1 Espinasse 228, Lord Kenyon kid down 1851 , 
 " that in order to constitute a libel, the mind must be in fault Miles 
 " and shew a malicious intention to defame, for if published v - 
 
 " inadvertently it would not be a libel." In this case the LoaAN - 
 publication was accidental, the defendant not being aware 
 that the passage objected to formed part of the abridged report 
 copied into the Free Press until he saw it after publication, 
 when he immediately explained to the plaintiff how it came 
 to be there. 
 
 Cur. Adv. Vult. 
 
 October 6. Jeffcott, E. This is an action brought by the plain- 
 tiff, to recover damages from the defendant for the publication of 
 a libel. The damages are laid at $5,000. The defendant pleaded 
 the general issue. 
 
 The article complained of was published in a newspaper 
 called the Singapore Free Press, on the 5th day of September last. 
 It was admitted at the trial, that the defendant was then the- 
 Editor of that newspaper, and that he published the article com- 
 plained of. . It was proved at the trial, that the words complained 
 of were copied by the directions of the defendant, from that por- 
 tion of the London Examiner newspaper, of the 12th July last, 
 which purports to give a report of a debate in the House of Com- 
 mons on a motion of Mr. Hume, and is headed " Charges against 
 " Sir James Brooke." The passage said to contain the libel is as 
 follows : — 
 
 " Sometime ago there appeared in the Daily Neios a letter written by a 
 " Mr. Miles, the same gentleman he [the speaker] believed, whom the 
 " Honorable Member had that evening referred to, as author of a letter, 
 " without naming him. Mr. Miles was a gentleman who followed the occupa- 
 ' tion of a butcher, with which he united the more honorable profession of a 
 '■ boxer ; and it happened that owing to 'a little misfortune, he went abroad at 
 '• the Queen's expense." 
 
 It was proved at the trial, by a person who read those words, 
 that he understood them to mean that the plaintiff had been trans- 
 ported as a felon ; and the defendant's own witness, Dr. Little, 
 proved, that the defendant had stated to him previously to the 
 publication of the article complained of, that it was not his in- 
 tention to publish the whole debate, as it appeared in the English 
 papers on the charges against Sir James Brooke, as if he did so, 
 " he should immediately be brought up for libel." 
 
 Coupling that statement with the note which he wrote to 
 the plaintiff immediately after the article containing the debate 
 had been published, it is quite clear that the defendant felt con- 
 vinced that the article -contained a libel on the plaintiff. 
 
 The old rule that the words are to be understood " in miliori 
 sensu" having been long since superseded, and the rule now being, 
 that the words are to be construed by the Courts, [as they al- 
 ways ought to have been] in the plain and popular sense in which 
 the rest of the world naturally understand them, in my opinion 
 
S3 CIVIL OASES. 
 
 Jeffcom, E. those 'words mean, in the plain and popular sense, that the plajn- 
 1851 • tiff was transported, having been convicted in a Court of Justice 
 Miles of a transportable offence. 
 
 v. The plaintiff having thus established tbat a libel upon him 
 
 Logan. k a( j been published by the defendant as stated in his petition, 
 and that being the only issue on record between the parties, the 
 Court is bound to give a verdict for the plaintiff. 
 
 It only remains that the Court should determine what dam- 
 ages should be awarded to the plaintiff, having given due consi- 
 deration to the mitigating circumstances relied upon by the 
 defendant. 
 
 He first alleges, that the publication was unintentional,— 
 and if his own statement that he did not intend to publish the 
 libellous matter can avail him, — as the plaintiff did not object to 
 its reception, — it appears that he did make such a statement to 
 Dr. Little previous to the publication ; but whatever his intention 
 may have been, it is quite clear that he did not use those precau- 
 tions which would have effectually prevented the publication of 
 the libel; and it is also cleai, that it was his peculiar duty, as 
 editor of the newspaper, to have used those precautions, and to 
 have taken care that the libellous matter to which his attention 
 had been so particularly called, should not appear in its columns. 
 
 That duty he wholly neglected, and under circumstances 
 which shew great carelessness, and a want of due regard to the 
 feelings and characters of others. 
 
 The printer, who was called as a witness by the defendant, 
 proved, that the defendant having marked for publication the 
 whole of the article in the Examiner containing the debate on 
 " the charges against Sir James Brooke," handed the article, so 
 marked, to the witness [his printer] to be printed for the next 
 Free Press ; and that it was accordingly printed and published in 
 that newspaper as it now appears. It is true that the same wit- 
 ness proved that the defendant went to the country after he had 
 handed him the article so marked to be printed, and that the 
 defendant did not afterwards read the proof sheets, which were 
 revised and corrected by the printer himself, and thus the libel- 
 lous matter which it was intended to omit, had not been omitted — 
 but I feel no hesitation in saying, after the defendant's statement 
 to Dr. Little previous to the publication, that if he introduced 
 into his paper a particular debate as it appeared in the news- 
 papers he read, " he should immediately be brought up for libel," 
 that he was guilty of very gross carelessness in omitting to read 
 the newspaper from which he ordered the debate to be extracted, 
 or the proof sheets which related to that particular debate. 
 
 " To run the risk of effecting a serious injury to another, 
 " even from want of due care and attention [to use the words of 
 " Mr. Starkie ] is necessarily an offence against the first princi- 
 " pies of morality ; and even were it otherwise, it would be highly 
 " impolitic and inconvenient, as a rule of law, to permit any man 
 " to destroy the characters of others, provided he was not actuated 
 " by motives of express malice, but acted without consideration, 
 " heedless of consequences." 1 Starh : on Libel, 211, 
 
STRAITS SETTLEMENTS. 83 
 
 The defendant next relies upon his having expressed his re- Jsraoara, R-: 
 gretthat the article appeared in his newspaper, in a note address- 1So1 " 
 ed to the plaintiff, bearing date the 5th September [the day on Miles 
 which the libel was published,] and forwarded immediately after «. 
 its publication, and before the plaintiff had applied to him on the ^ 0GAN - 
 subject, [here his Lordship read the note]. That note in my. 
 opinion was not such a note as ought to have satisfied the plain- 
 tiff — it expressed no belief that the libel was false, nor did it con- 
 tain any offer to assist in removing from the public mind the. im- 
 pression that the libel was calculated to make, — namely, that the 
 plaintiff had been transported as a convicted felon. It merely- 
 expressed regret that the libel appeared in the defendant's news- 
 paper, that the defendant had intended to omit it, and that he; 
 was ready to insert a paragraph to that effect — [thus strictly de- 
 fining the sort of paragraph he was ready to insert,] in the next- 
 week's Free Press, and that the plaintiff was in the meantime at 
 liberty to use that note as he may think proper. 
 
 The plaintiff having been advised that such a note could not; 
 be of any use in vindicating his character, instructed his law agent 
 to commence this action for libel, — and that the defendant may 
 have on opportunity of justifying and of proving, if he would, the 
 truth of the libel. A letter was accordingly written to the defen- 
 dant by the plaintiff's agent, announcing his intention to com- 
 mence an action, in reply to which a much more satisfactory 
 note than the former was sent, in which the defendant offers to 
 make every compensation in his power for the injury unintention- 
 ally inflicted upon the plaintiff; but as he still omitted to express 
 any opinion as to the truth or falsehood of the libel, he imposed 
 upon the plaintiff the necessity of prosecuting the action. 
 
 The plaintiff has resided for some years in Singapore and is 
 engaged in trade ; and it is matter of vital importance to him, to 
 remove from the mind of his fellow townsmen, and of those with 
 whom he trades, the impression that he' had been a transported 
 felon. The defendant had publicly circulated a statement to 
 that effect, and he did not offer, in any of his notes, to make any 
 public declaration as to its truth or falsehood. 
 
 The plaintiff was therefore obliged for the vindication of 
 his character to bring this action by which he challenged the 
 defendant to prove the truth of the libel. The defendant has not 
 attempted to allege or prove that the libel is true, and the Court, 
 and all others, are therefore bound to presume that it is false. 
 The plaintiff has thu3 done everything he could do for the public 
 vindication of his character. The rules of the Court did not 
 permit him to prove the falsehood of the libel, as the defendant 
 had not alleged that it was true ; but it is always presumed in 
 . such cases, that the defendant would have alleged and provedits 
 truth if he could have done so, as he would then have saved him- 
 self from the payment of damages. Lastly, I am bound to 
 consider in estimating the amount of damages, under what 
 circumstances, and in what character, the defendant published 
 the libel, and what the libel was. The defendant is the Editor 
 of a newspaper, and he published the article in the discharge of 
 
84 CIVIti CASES. 
 
 Jifpoott, B. his professsional duty as such. He was not the original author, 
 or the original publisher. He merely copied verbatim from 
 
 Milks another newspaper the article in question, purporting to be the 
 *■ Eeport of a debate in the House of Commons. The publication 
 
 Loqan. of tte agates i a both Houses of Parliament is a great public 
 advantage, and as the publication may be said in some respects 
 to be sanctioned by both Houses, the public require that each 
 newspaper shall contain a report in some shape, of those debates 
 ■which interest the neighbourhood in which it is published. It 
 was therefore the duty of the defendant to insert, in some shape, 
 this debate which had a peculiar interest for this locality. It is 
 true that he acted with great carelessness in allowing it to appear 
 in its present shape, and that is the full amount of his offence. 
 There appears to be an absence of any malicious intention in 
 which the crime of Libel consists. He headed the article with 
 the name of the newspaper from which he copied it, and he did 
 not add one word of comment;, nor did he make any allusion to 
 it in his Editorial article. If an editor, in an Editorial article, 
 publish a Libel on another, he is justly held to be bound to make 
 full compensation to the injured party. He composed and pub- 
 lished the Libel, or is justly presumed to have done so, and he 
 must pay the full penalty for the injury thus inflicted; but on 
 the present occasion, the defendant carefully abstained from any 
 allusion to the debate iD his leading article — he copied the report 
 as it appeared in the Examiner, without altering a single letter — 
 and he "did not publish that report until some months after its 
 original publication and until after it had appeared in several 
 thousand different publications, and had been circulated through- 
 out the globe. For all that wide spread circulation the defendant 
 is not to blame. It also appears, that the defendant did not 
 publish, until several days after the libel had been published in 
 Singapore, by the circulation of the English newspapers, so that 
 the only additional injury to the plaintiff which could have been 
 caused by the publication in the Free Press is, that some few 
 persons who have no opportunity of seeing the English news- 
 papers, may have read the libel in the Singapore Free Press after 
 it had been previously widely circulated through the town — and 
 I am bound to consider, that although the offers of the defendant 
 to make reparation were not such as the plaintiff under the 
 circumstances could have accepted, yet that they shewed a dis- 
 position in the defendant to make reparation, that he published 
 the correspondence, in which he expressed his regret, and his 
 offer to make reparation in the first newspaper which was pub- 
 lished after the libel appeared, and that his not having offered 
 reparation to the full extent which ought to have satisfied the 
 plaintiff, may have arisen from his not knowing what he ought 
 to have offered. I do not think, under all the circumstances of 
 this case, that the Court would be justified in exacting from the 
 present defendant, [as if he had been the person most guilty in 
 circulating this libel,] full compensation for the injury inflicted 
 on the plaintiff ; and from the nature of the libel there can be no 
 doubt that injury has been inflicted. The defendant has proved 
 
STRAITS SETTLEMENTS. 85 
 
 that he acted with gross carelessness, and therefore the verdict Jum'cott, K. 
 must be for such amount as may hereafter deter persons, similarly ° 
 
 circumstanced, from shewing such a disregard for the feelings Miles 
 and character of others. I think the plaintiff was rightly ad- v - 
 
 vised, and that he was compelled under the circumstances to LoaAN> 
 bring this action, but the defendant is not the person from whom 
 he ought to expect, or against whom the Court ought to give ex- 
 emplary damages. 
 
 Verdict for plaintiff two hundred dollars with costs, but in 
 taxing the cosbs let the percentage fee paid on filing be taxed as if 
 paid on the amount awarded, [a] 
 
 SCOTT, SINCLAIR & CO. v. BROWN & CO. 
 
 In the absence of a special agreement, the presumption in the case of Foreign Pbnang. 
 
 Merchants is, that credit is given to the British agent ; but that presumption is liable 
 
 to be rebutted by shewing that credit was in fact given to both principal and agent, or jBrFCOTT, E. 
 to the foreign principal only. 185a. 
 
 When B. & Co. of Penang [defendants] acting on behalf of a constituent, wrote to 
 
 their agents H. & Co. of Liverpool to procure certain machinery ; and H. & Co. in October 26. 
 
 pursuiuce of such order, entered into a contract with S., S. & Co, [plaintiffs] for the 
 
 manufacture of such machinery ; and the evidence shewed that S., S. & Co. gave credit 
 to both H. & Co. [the British agents] as well as to B. & Co, defendants, [the foreign 
 principals] and not to H. & Co. exclusively, 
 
 Held, on the bankruptcy of H. & Co., that S., S. \& Co. could recover from 
 B. & Co, the price of the machinery, although B. & Co. had, under the idea that 
 H. & Co, were alone liable to S,, S. & Co., paid and settled with H, & Co, the price 
 of the machinery — and notwithstanding that five years had elapsed after the date when 
 the price was due and should have been paid. 
 
 The fact that the British agent did not communicate to the foreign principal the 
 terms of the contract he had entered into with the manufacturer, and so led the foreign 
 principal to believe that, in accordance with the usage in trade, credit was exclusively 
 given to the British agent, — does not alter the liability of the foreign principal, if cre- 
 dit has been given him as above — as it was no part of the duty of the manufacturer to 
 convey that information to the foreign principal, but of the British agent only, and 
 for whose omissions in that respect the principal should suffer. 
 
 Kymer v. Suwercvop, I. Camp, 103, distinguished. 
 
 If an agent exceeds his authority, his acts, only in so far as they are in excess of 
 authority, are void : but the rest thereof, as are within his authority, will stand, though 
 connected as one transaction with the excess. 
 
 Action to recover $7,512.95, being balance of the price of a 
 Steam-engine and other apparatus of a sugar mill, inclusive of 
 interest. The facts appear so fully in the judgment, that it is 
 unnecessary to state them here. 
 
 Do Murat, for plaintiffs 
 
 J. R. Logan, for defendants. 
 
 Cur. Adv. Vult. 
 
 November 12. .Tefcott R. This is an action for goods sold and 
 delivered, and on the common money counts 10 recover the sum 
 of Spanish dollars 7,512.95, being the balance of the price of cer- 
 tain machinery manufactured by the plaintiffs, who are steam- 
 
 [a] Soo H. v. Creevcy, 1 M & Sol. 273 ; B. v. Lord Abingdon, 1 Esp. 2S6, which 
 cases were referred to in the opinion given by Counsel named ia note [a], *t the be- 
 ginning of this case, ante p. 8Q, 
 
86 CIVIL CASES. 
 
 Jbfpcott, E. engine manufacturers residing in Greenock, for the defendants, 
 1852 - by order of their agents, Messrs. Hossack & Co. of Liverpool, ■ 
 Scott, The defendants have pleaded the general issue. 
 
 Sinclair & It appears from the evidence of Mr. F. S. Brown, one of the 
 
 Co - defendants, that Mr. James Hossack of the firm of Hossack & Co. 
 
 Bbown&Co. 0I Liverpool was in Penang in the month of November 1845, 
 and that an agreement was then made between Mr. Hossack on 
 the part of his firm and the defendants, Messrs. Brown & Co., un- 
 der which the defendants agreed to ship a portion of their produce 
 to Messrs. Hossack & Co. to Liverpool, and the latter firm agreed 
 to give the defendants credit in account for 80 per cent, of the 
 invoice prices of such produce. In addition to the produce of 
 their own estates, which are very extensive, the defendants were 
 at that time under an agreement with Mr. Rodyk to ship the 
 produce of an estate belonging to him called the " Krean Estate" ; 
 and as it was necessary for the. defendants, from time to time, to 
 make advances on account of that estate, it was further agreed 
 with respect to that estate, that Messrs. Hossack & Co. should 
 credit the defendants with two-thirds of all advances made by 
 them oil" "Krean Estate." 
 
 It appears that Mr. Rodyk,' in the beginning of the year 1846, 
 having seen on the estate of his neighbour, Mr. Donnadieu, a 
 steam-iengine and sugar mill, and being anxious to have similar 
 machinery for the "Krean Estate," addressed a letter bearing date 
 the 11th of February, 1846, to the defendants, Messrs. Brown & Co., 
 commencing as follows : — 
 
 "Deab Sirs, 
 
 " Being desirous of obtaining a Steam-engine and Sugar Mill for- my 
 " Krean Estate, I beg leave to avail myself of your assistance in commis- 
 " sioning for the same ; agreeably with the provision of our agreement in that 
 " respect. 
 
 " "Will you therefore order for me by the present mail a Steam-engine and 
 " Sugar Mill, to be constructed by Messrs. Scott, Sinclair of Glasgow; of the 
 " same size, power, and description as the one they made for Mr. J. Donna, 
 "dieu's Valdor Estate by order of Mr. G. Stuart." 
 
 And towards the conclusion he says : — ■ 
 
 " I am given to understand that the whole machinery with the Jimard 
 " Batteries including freight arid shipping charges up .to its arrival in Penang 
 " harbour, cost Mr. Donnadieu £1,650, that he paid 10 per cent, of the cost 
 " price as a deposit, and was to pay half the remainder m six, and the other 
 " half in twelve months after delivery here. I state these particulars as a cuide 
 " in settling with Messrs. Scott, Sinclair for the price and its payment, and I 
 " shall feel obliged by your instructing the deposit amount to be advanced 
 " and paid, carrying the same to account of our agreement." 
 
 By a subsequent letter of the 7th March, 1846, addressed to 
 the defendants, Mr. Rodyk directs that the Jimard Battery should 
 be made after a model which Mr. Donnadieu was to forward by 
 that mail, and he adds : — 
 
 _ " With reference also to the mode of payment, Mr. Donnadieu has since 
 
 informed me that after depositing 10 per cent, the balance is to be paid 
 
 " half at 4 months, and the other half at 8 months, after delivery here ■ these 
 
 " particulars may serve to prevent any misapprehension arising from what 
 
 " I stated on the subject in my former letter," 
 
STRAITS SETTLEMENTS. 87 
 
 In both these letters the mode of payment is particularly Jeffcott, E. 
 alluded to. One-tenth of the whole price was to be deposited ' 
 
 immediately; and the balance to be paid by two equal payments Scott, 
 in 6 and 12 months, according to the first, or in 4 and 8 months, Sinclair & 
 according to the second letter; but it is not stated in either ^°' 
 letter that bills were to be given. Bbown&Co. 
 
 Mr. Brown in his evidence states that he enclosed copies of 
 those two letters to Messrs. Hossack & Co., with instructions to 
 them to order the machinery from the plaintiffs. Mr. Brown does 
 not, however, produce any copy of the letter in which he gave 
 those instructions to Messrs. Hossack & Co., and he swore that he 
 had no copy. 
 
 It appears, however, from the evidence of Mr. Brown and of 
 Mr. Rodyk, that, in the communication with Hossack & Co., the 
 defendants assumed the character of principals ; that in the 
 accounts furnished by Messrs. Hossack & Co. to the defendants, 
 the defendants are charged as principals; that those accounts 
 were produced to Mr. B.odyk by the defendants to satisfy him 
 that he was not liable to any other persons than to the defen- 
 dants; that Mr. Rodyk has paid to the defendants the price of 
 the machinery, with interest ; and that the plaintiffs have not 
 been paid either by Hossack or by the defendants. 
 
 I am therefore bound, in this case, to consider the defen- 
 dants as principals, who instructed their general agents Messrs. 
 Hossack & Co., to become their special agents in this instance 
 for the purchase of this machinery, having a regard to the con- 
 sents of the enclosed letters both as to the description of the 
 machinery and mode of payment. 
 
 It does not appear when these instructions were forwarded 
 to Hossack & Co., but it is sworn in the affidavit of James Gray 
 Lawrie, which was read by consent, that the contract with the 
 plaintiffs was entered into on the 8th of September, 1846, by 
 James Hossack in person. The following is an extract from 
 Lawrie's affidavit. 
 
 " That on or about the 8th day of September, one thousand eight hun. 
 " dred and forty six, I was present at an interview at Greenock aforesaid, 
 " between James Hossack. of Liverpool, in the county of Lancaster, mer- 
 " chant, then carrying on business at Liverpool aforesaid under the firm of 
 " James Hossack and Company and the said Charles Cunningham Scott, one 
 " of the partners of the said firm of Scott, Sinclair & Co. At which meeting 
 " it was stated to the said Charles Cunningham Scott by the said James 
 " Hossack, on behalf of certain persons then carrying on business at Penang 
 " under the firm of Brown & Co., but whose individual names I am not 
 "acquainted with; that the said firm of Brown & Co., of Penang were 
 " desirous to have certain machinery manufactured by the said Scott, Sin. 
 *' clair & Co., and enquired as to the probable cost ; and the said Charles 
 " Cunningham Scott gave to the said James Hossack the information which 
 " he required. That on or about the eighth day of September, one thousand 
 " eight hundred and forty six, a contract was made between the said Scott, 
 *■' Sinclair & Co., and the said James Hossack on behalf of the said firm of 
 " Brown & Co., for the manufacture and sale, and delivery to the said 
 " Brown & Co. at Penang aforesaid by the said firm of Scott, Sinclair & Co., 
 " of a high pressure Steam-engine with boiler, and one sugar mill with 
 " three boilers and one set of sugar pans for the sum of one thousand six 
 " hundred and twenty pounds. That such sum of one thousand six hundred. 
 
88 CIVIL OASES. 
 
 Jeffcott, E. " and twenty pounds was to be free of all commission and payable by three 
 1852. " instalments, the first instalment of one hundred and sixty two pounds, to 
 
 " be paid at the time of entering into such contract, and the other two instal- 
 
 Scott, " ments by equal bills at six and twelve months after the delivery of the 
 Sinclair & " aforesaid articles of machinery above specified and set forth at Penang, 
 " such bills to be drawn by tne said Brown & Co., on the said James Hossack 
 P V ' jkn " ^ ® '' an ^ *° ^ e P a y a W e to the said Scott, Sinclair & Co." 
 
 That appeai-s to have been a verbal contract, for on the 9th 
 of September, 1846, the following letter is written to Hossack & 
 Co. by the plaintiffs. 
 
 " Greenock, 9th Septeniber,*1846. 
 
 "Messes. James Hossack & Co. 
 
 " Gentlemen, 
 
 " In confirmation of your agreement yesterday, and in compliance 
 " with your wish we have now to state that we have undertaken to supply 
 " you with Sugar Mill Machinery as follows : — 
 
 " One Steam-engine with boiler. ") Of the same dimensions as those sent 
 " One Sugar Mill with three rollers. > by us to Mr. Donnadieu for the sum 
 " One set of sugar pans. J of sixteen hundred and twenty 
 
 " pounds sterling, say £1,620, free of all commission and payable' in three 
 " instalments, the first of £162 due at this date, and other two in equal bills 
 " at six and twelve months after the delivery of the machinery at Penang. 
 
 " The machinery to be delivered at the Quay here, on the 10th of De- 
 " cember. 
 
 " Please acknowledge the receipt of this and oblige. 
 
 " Gentlemen, 
 
 " Tour most obedient Servants, 
 
 (Sd.) " Scott, Sinclair & Co." 
 
 The receipt of that letter is acknowledged in a letter of the 
 15th September, 1846. 
 
 1 "Liverpool, 15th September, 1846. 
 
 " Messes. Scott, Sinclair & Co. 
 " Gentlemen, 
 
 " We are in receipt of your favours, dated the 9th and 10th instant ;■ 
 " the first enumerating the conditions for the supply of machinery which are 
 " correct, with two exceptions, viz., free of all commission as added by you, 
 " which we presume means to recall your offer to us of 2J per cent. ; how- 
 " ever, to make that recall of any effect it should have been made during the 
 " interview at Greenock, and we of course consider ourselves fully and clearly 
 " entitled to it. The first instalment of £162, we now remit as per particu- 
 "lars at foot, the remaining sums in bills at six and twelvemonths (from the 
 "landing of the machinery at Penang). Yfe presume you understand, as 
 " we do, that those should be by drafts drawn by us on Messrs. Brown & 
 " Co., at these dates and endorsed over to your goodselves. 
 
 " We observe that you have prolonged the date of delivery from the 7th 
 " to the 10th of December, but we do not suppose it will make any difference, 
 " and knowing as we do, the value of a lengthened time for the manufacture, 
 " to you, we shall endeavour and expect to be able to extend it, but in the- 
 " meantime you will please understand that we cannot deviate from the con- 
 " tract in this respect. Should we be able to grant this additional time, you 
 " shall be made aware of it, at the earliest possible date. 
 
 " With respect to the new pans, will you have the goodness to inform us 
 " how long . after the receipt of models, would we be required to make one 
 
STEAITS SETTLEMENTS. 89 
 
 " set, that is the shortest possible time, and we shall be better able then to Jeffcott, K. 
 '• give instructions on that point. 1852. 
 
 " We are, „ Sc0TT » 
 
 Sinclair & 
 
 " Tour most obedient Servants, Co. 
 
 v. 
 (Si.) "James Hossack & Co." Bbown&Co. 
 
 " Letters of credit in your favor on the Royal Bank, Glasgow, for £162 
 " enclosed herein." 
 
 In reply to this, by a subsequent letter of the 19th Septem- 
 ber, from the plaintiffs to Hossack & Co., [from which the 
 following is an extract,] the mode of payment is fully ex- 
 plained. 
 
 " In reply to your favour of the 15th instant, we are sorry that we 
 " cannot allow you any commisssion on this order of machinery, &c, 
 " and with respect to the payment, we do not attach any other meaning than 
 " that stated in our offer of the 9th instant, viz., that the machinery on being 
 " delivered at Penang, is then to be paid for by two equal bills, drawn by 
 " Messrs. Brown & Co., at six and twelve months from that date, in our 
 *' favour, on Messrs. James Hossack & Co., &c." 
 
 To this letter, there is the following postscript : — 
 
 " The amount of the order on the Royal Bank for £162 is duly placed 
 " to your credit with thanks." 
 
 Those words " your credit" are relied upon by the defen- 
 dants, as proof that the plaintiffs gave credit to Hossack & Co. ; 
 but, it appears from the letter that they did not give them 
 exclusive credit. 
 
 By a letter bearing date the 23rd of September, 1846, written 
 by James Hossack & Co. to the defendants, they are informed of 
 the contract in the following words : 
 
 _ " We have now to advise that we have contracted with Messieurs Scott, 
 " Sinclair & Co. for steam engine, sugar mill, and one set of pans, similar to 
 '* those furnished Mr. Donnadieu for one thousand six hundred and twenty 
 " pounds, to be ready for shipment by tenth December next, and we shall 
 " make arrangements for an opportunity to send them from the Clyde." 
 
 And it further appears that the receipt of such letter was 
 acknowledged by the said Brown & Co., by a letter bearing date 
 the 6th day of November, 1846, addressed to the said James 
 Hossack & Co., of which the following is an extract. 
 
 " We are muchpleased to learn that you have contracted with Messieurs 
 " Scott, Sinclair & Co. for Mr. Rodyk's machinery, with a set of pans, similar 
 " to those furnished to Mr. Donnadieu, for one thousand six hundred and 
 " twenty pounds, to be ready for shipment on the tenth of December 
 " next.' r 
 
 An 'addition of £90, is subsequently made by letters of the 
 7th and 13th of November, to the sum contracted for, in conse- 
 quence of the alteration in the forms of the sugar pans. It is 
 unnecessary to refer more particularly to those letters, as there 
 is no dispute as to this additional sum. On the 28th of Novem- 
 ber, 1846, Messrs. Hossack & Co. wrote the following letter to 
 the plaintiffs. 
 
$6 CIVIL CASES. 
 
 Jeffcott, E. " Liverpool, 20th November, 1846. 
 
 '' " Messrs. Scott, Sinclair & Co. 
 
 Scott, ,. Gentlembn 
 
 Sinclair k 
 
 Co. " As we find that the Stata is to sail from Greenock next week, 
 
 v - " we beg to enclose a blank set of Bills of lading to be filled up for the engine 
 
 Brown & Co. « an( j machinery, a copy of which please enclose under cover to Messrs. Brown 
 
 " & Co., Penang, and, send us another. Be good, enough to pass the entry at 
 
 " the Custom fcrase ; and furnish us with Invoice. 
 
 " The rate of freight is five shillings per ton, which the agents in Glas- 
 " gow for the vessel, state is the same as Messrs. Stuart & Co. pay. 
 
 " We are, Gentlemen, 
 
 " Tour obedient Servants, 
 
 (Sd.) " James Hossack & Co." 
 " Greenock." 
 
 The directions in this letter were literally complied with by 
 the plaintiffs. They enclose two bills of lading, one to the de- 
 fendants, the other to Hossack & Co., and they furnish but one 
 Invoice, which is sent to Hossack & Co., as directed. 
 
 On the 8th December, 1846, the plaintiffs write to the de- 
 fendants a -letter, of which the following is a copy, enclosing a 
 bill of lading. 
 
 " Greenock, 8th December, 1846. 
 
 " Messes. Brown & Co. 
 " Gentlemen, 
 
 " We have now the pleasure to enclose you a bill of lading for 
 " machinery ordered by Mr. Hossack of Liverpool on your account. It has 
 " been all got safely on board the brig Stata, and we hope that the delivery 
 " will be made in good order, and that, when the mill is erected, it will give 
 " you satisfaction. 
 
 " The materials for your pans has not reached us from Staffordshire" 
 " We will lose no time in their construction, when it does arrive. 
 
 •' It will afford us pleasure at any future time to supply you with any 
 " description of machineiy you may require. Trusting to have by and bye 
 " your approval of the present shipment. 
 
 " We are, Gentlemen, 
 
 " Your most obedient Servants, 
 
 (Sd.) " Scott, Sinclair & Co." 
 " Greenock, 8th December." 
 
 It appears that this was the only direct communication from 
 the plaintiffs to the defendants, and that it took place, in conse- 
 quence of the orders of Messrs. Hossack & Co. 
 
 The defendants in a letter from . Penang, bearing date the 
 1st May, 1847, acknowledge the receipt of the last mentioned- 
 letter. 
 
 " Penang, 1st May, 1847. 
 " Messrs. Scott, Sinclair & Co.; 
 Greenock. 
 " Gentlemen, 
 
 " We have the pleasure to acknowledge the receipt of your letter of 
 " 8th December, transmitting a bill of lading for machinery per Stata 
 
STRAITS SETTLEMENTS. 
 
 91 
 
 " shipped to us by order of Messrs. James Hossaek & Co. of Liverpool. The Jeffcott, E. 
 " Stata, we are happy to inform you, has arrived, but is not yet ready to 1852. 
 
 " discharge the machinery, which, we shall report upon as soon as it is landed 
 
 " —meantime, Scott, 
 
 Sinclair & 
 " We are, Gentlemen, Co. 
 
 v. 
 " Your most obedient Servants, Brown & Co. 
 
 (Sd.) "Brown & Co." 
 
 On the 9th December, 1846, the plaintiffs enclose in a letter 
 of that date, another bill of lading to Messrs. James Hossaek & 
 Co., as directed. 
 
 " Greenock, 9th December, 1846. 
 
 "Messes. James Hossack & Co. 
 
 " Gentlemen, 
 
 " You have herewith the enclosed bill of lading for machinery ship- 
 " ped per Brig Stata for your friends at Penang, which, we hope may be 
 " delivered to them in good order by Captain Nicol. 
 
 " The plates are not yet forwarded for the Sugar-pans ; but, we look for 
 " them daily, and you may be assured, we shall do all in our power to have 
 " them made thereafter, as expeditiously as possible. 
 
 " Mr. Lawrie being from home, it is out of our power to send Invoice at 
 " present with the shipment. 
 
 " We are, Gentlemen, 
 
 " Your obedient Servants, 
 
 (Sd.) " Scott, Sinclair & Co." 
 
 On the 14th January, 1847, the plaintiffs write to Messrs- 
 Hossack & Co., a letter from which the following is an extract. 
 
 " Gentlemen, 
 
 " We prefix Invoice of cost of machinery shipped per Brig Stata for 
 " your friends at Penang, amounting to £1,490, &c., &c." 
 
 The Invoice is as follows : — 
 
 " Greenock Foundry. 
 "Messrs. Hossack & Co., 
 
 " To Scott, Sinclair & Co. 
 
 1846. 
 
 
 £ 
 
 £ 
 
 December. 
 
 To one high pressure Steam-engine with 
 boiler, one Sugar-mill with three 
 rollers, as per bill of lading 
 
 1,620 
 
 
 
 Less Sugar-pans not yet shipped, say.., 
 
 140 
 
 
 
 
 1,480 
 
 
 Packing boxes for ditto 
 
 iniii 
 
 10 
 
 
 £1,490 
 
92- CIVIL CASES. 
 
 efecott, E. On the 19th of January, 1847, Messrs. Hossack & Co. fur- 
 1852- nish an account to the defendants, in which is the following 
 Scott, charge. 
 
 (-| _ "September 15th, 1846. — Paid Scott, Sinclair & Co. first instalment on 
 
 Vm ' " account of engine, Sec, £162." 
 
 bown & Co. rp^ d e f en( j an ts were informed by that account that a special 
 contract had been made by the agent with the plaintiffs for a 
 sum to be paid by instalments ; the first of which had been paid, 
 being one-tenth of the whole sum, in conformity with Mr. 
 Kodyk's letter. 
 
 On the 21st May, the plaintiffs enclose, in a letter of that 
 date to Messrs. Hossack & Co., the bill of lading for the pans 
 shipped by the Minerva. 
 
 "Greenock, 21st May, 1847. 
 "Messrs. James Hossack & Co. 
 
 " Gentlemen, 
 
 " We now enclose the bills of lading for the Sugar-pans H. SI 
 " C. 5, now on board the Minerva this day. The vessel we are advised will 
 " go to sea to-morrow. 
 
 " We remain, Gentlemen, 
 
 " Tour most obedient Servants, 
 
 (Sd.) " Scott, Sinclair & Co." 
 
 On the 27th, Messrs. Hossack & Co., write to the plaintiffs 
 the following letter. 
 
 " Liverpool, 27th May, 1847. 
 " Messrs. Scott, Sinclair & Co. 
 
 "Dear Sirs, 
 
 " We have received your favour enclosing bill of lading per Minerva, 
 " for the pans— please send us as early as convenient, and by return of post, if 
 " possible, invoice of the whole ; and inform us the respective amounts which 
 " you have insured on each vessel. 
 
 " We are, 
 
 " Your very obedient Servants, 
 
 (Sd.) "James Hossack & Co." 
 
 On this occasion, the plaintiffs receive no directions from 
 Hossack & Co., to send either a bill of lading or invoice to 
 defendants. 
 
 On the 2nd of June, 1847, the plaintiffs wrote the following 
 letter, with invoice, to Messrs. Hossack & Co. 
 
 " Greenock, 2nd June, 1847. 
 "Messrs. James Hossack & Co. 
 " Gentlemen, 
 
 " We had the pleasure to receive your favor of the 27th instant, and 
 " in accordance with your request, prefix invoice of the mill and pans, which 
 " we trust you will find correct. 
 
 " We are, Gentlemen, 
 
 " Your most obedient Servants, 
 (Sd.) "Scott, Sinclair & Qo." 
 
STEAITS SETTLEMENTS. 
 
 93 
 
 The invoice is as follows : — Jktocott, iE. 
 
 " Greenock Foundry. 1853, 
 
 "Messes. James Hossack & Co., Sco-rr 
 
 " To Scott, Sinclaie & Co. Sinclaib & 
 Co. 
 
 Beown & Co. 
 
 1846. 
 
 
 £ 
 
 s. 
 
 d. 
 
 December... 
 
 To goods as per account current furnished ... 
 
 1,490 
 
 
 
 
 
 1847. 
 
 
 
 
 
 May 19th 
 
 One set of Sugar- pans C As per offers dated - } 
 complete as per mo- < 9th September, 7th > 
 dels furnished ... (.November, 1846 ...J 
 
 220 
 
 
 
 
 
 
 Packing ditto 
 
 7 
 
 3 
 
 9 
 
 
 1,717 
 
 3 
 
 9 
 
 On the 7th June, another invoice is sent : — 
 
 " Messes. James Hossack & Co., 
 
 " To Scott, Sinclaie & Co., 
 
 " Greenock Foundry. 
 
 1846. 
 Deer. ... 
 
 To amount of account current fur- 
 nished for machinery 
 
 £ «. d. 
 
 £ s. d. 
 1,480 
 
 1847. 
 May 
 
 To one set Sugar r Ag off ^^S 
 pans complete ) ^ fe tember and [ 
 as per model > ?th No £ emb 1846 . [ 
 furnished, v. J 
 
 
 230 
 
 
 Packing boxes for engine, &c, Decem- 
 ber, 1846 
 
 10 
 
 
 
 Packing for Sugar-pans 
 
 7 3 9 
 
 17 3 9 
 
 
 
 1,727 3 9 
 
 Annexed to the following letter : — 
 
 " Greenock Poundry, 7th June, 1847. 
 " Messes James Hossack & Co. 
 " Gentlemen, 
 
 " We beg to annex corrected invoice for engine, sugar pans, &c, 
 " shipped for Penang, the error having' arisen by the writer from an overlook 
 " of the £10, charged for packing boxes in our first invoice. 
 
 " We are, Gentlemen, 
 
 " Tour obedient Servants, 
 
 " For Scott, Sinclaie & Co., 
 (Sd.) "R.C. McPberson." 
 
94 CIVIL OASES. 
 
 epfoott, E. On the 17th of June, 1847, Messrs. Hossack & Co. sent a 
 1852, general invoice to the defendants which according to Mr. Brown's 
 Scott, evidence was the only invoice sent to the defendants before this 
 Sinclair & action was commenced. 
 Co 
 „.* The following is the invoice. 
 
 own °' " Invoice of Machinery for Alexander Rodyk, Esq., shipped per Stata 
 
 "and Minerva from Clyde for Penang, on account and risk of Messrs. 
 " Brown & Co." 
 
 Per Stata. 
 
 One High Pressure Steam-engine with boiler ") 
 One Sugar-mill with three rollers as per Bill > 
 
 of Lading J 
 
 Packing boxes for ditto 
 
 Per Minerva. 
 
 One set of Sugar pans complete as per model 
 
 furnished 
 
 Packing ditto 
 
 Commission at 5 per cent. 
 
 Errors excepted 
 
 £ s. d. 
 
 1,480 
 10 
 
 220 
 7 3 9 
 
 £ s. d. 
 
 1,490 
 
 227 3 9 
 
 1,717 
 85 17 
 
 
 
 
 1,803 
 38 14 
 
 9 
 
 
 
 1,841 14 . 9 
 
 (Sd.) "James Hossack & Co." 
 
 " Liverpool, 18th June, 1847. 
 
 " Insurances omitted £38-14. 
 " As per letter of 23rd July." 
 
 The receipt of that invoice and of the pans is acknowledged 
 in a letter bearing date the 1st September, 1847, from Brown & 
 Co. to J. Hossack & Co., from which the following is an extract. 
 
 " We have to acknowledge the receipt of your Invoice of Mr. Rodyk's 
 " machinery for Krean Estate, a copy of which we shall send to him. 
 
 " [True extract.] 
 
 (Sd.) *' Brown & Co." 
 
 It thus appears that the delivery to the defendants of all the 
 machinery was made on or before the month of September, 1847. 
 The first set of bills would be due in the month of November, 
 1847. 
 
 On the 22nd of December, 1847, the plaintiffs wrote the 
 following letter to Hossack & Co. 
 
 " Greenock, 22nd December, 1847. 
 
 "Messrs. Jambs Hossack & Co. 
 " Gentlemen, 
 
 " The East India Mail having_ arrived, we fully expected to have received 
 " a remittance, the first set of bills for the machinery shipped by the Stata. 
 
STBAITS SETTLEMENTS. 95 
 
 " We shall tliank you to advise us, if you have received any instructions from Jejtcott, B. 
 your friends at Penang aB to the payment. 1852. 
 
 " We are, Gentlemen, Scott, 
 
 " Tour most obedient Servants, Sinclair .& 
 
 Co 
 (Sd.) " Scott, Sinclair & Co." „/ 
 
 On the 27th December, 1847, that letter is answered by BE0WN4C * 
 Hossack & Co., saying that they had received no remittance. 
 
 " Liverpool, 27th December, 1847. 
 " Messes. Scott, Sinclaib & Co. 
 " Gentlemen, 
 
 " In reply to your favor of the 22nd instant, we beg to state that we 
 " have not received any instructions from our friends at Penang, respecting 
 " the remittance for your machinery, but we trust that by next mail, we may 
 " receive some advices in this transaction, — meantime, 
 
 " We are, Gentlemen, 
 
 " Tour most obedient Servants, 
 
 (Sd.) "James Hossack & Co." 
 
 On the 28th December, 1847, the plaintiffs wrote to Hossack 
 & Co., the following letter. 
 
 " Greenock, 28th December, 1847. 
 "Messes. James Hossack & Co. 
 " Gentlemen, 
 
 " We wrote you on the 22nd instant, regarding remittance for the ma- 
 " chinery shipped per Stata, to which we crave reference. We stand much 
 " in need of the cash at present, and will thank you for an early reply with 
 " the remittance. 
 
 " We are, Sire, 
 
 " Tour most obedient Servants, 
 
 (Sd.) " SCOTT, SlNCLAIE & CO." 
 
 On the 3rd February, 1848, they wrote again to Hossack 
 & Co. 
 
 " Greenock, 3rd February, 1848. 
 " Messes. James Hossack & Co. 
 " Gentlemen, 
 
 " Another India Mail has arrived, and we have not received any remit. 
 " tance for the machinery shipped per Stata for your friends at Penang. 
 " We are most anxious in consequence, as Messrs. Stuart & Co. made a 
 " remittance in November for their shipment by the same vessel, being at 
 " the regular time by our agreement. 
 
 " We remain, Gentlemen, 
 
 " Tour most obedient Servants, 
 
 (Sd.) " Scott, Sinclaie & Co." 
 
 On the 5th of April, 1848, they wrote again : — 
 
 " Greenock, 5th April, 1848. 
 " Messes. James Hossack & Co. 
 '• Gentlemen, 
 " We are very much disappointed at not having received a remittance from 
 " your Penang friends for the machinery shipped per Stata. _ We ought, by 
 " the bargain entered into with you, to have been in possession of the first 
 
96 CIVIL OASES. 
 
 Jbffcott, E. " set of bills on the 22nd December. It is now upwards of three months, 
 1852. " since that period, and we are most anxions, in consequence of this great 
 
 " irregularity. Have you had any communication on the subject ? 
 
 Scott, 
 Sinclair & " We are, Gentlemen, 
 
 Co- " Your most obedient Servants, 
 
 Brown & Co. (Sd.) " Scott, Sinclair & Co." 
 
 On the 24th April, they wrote again : — 
 
 " Greenock, 24th April, 1848. 
 "Messes. James Hossack & Co. 
 " Gentlemen, 
 
 " We wrote to you on the 5th instant, to which we beg to refer, and as 
 " we did not receive an answer to that letter, we now request that you will 
 " do so by return of post, as it will be necessary for us to write to Penang 
 " by this mail. 
 
 " We are, Gentlemen, 
 
 " Tour most obedient Servants, 
 
 (Sd.) " Scott, Sinclair & Co." 
 
 " P.8. — By the mail just arrived, we have received remittance in full 
 " from Stuart & Co., for machinery shipped per Stata. " 
 
 But on the 18th of April, 1848, Hossack & Co., had suspended 
 payment, of which they gave the plaintiffs notice. On the 25th 
 May, 1848, the plaintiffs write to their Agent, Mr. Herriot, to 
 apply to the defendants for payment. 
 
 It would appear that the first application on the 22nd of 
 Decen.ber, 1847, had been communicated by Messrs. Hossack ^c Co. 
 to the defendants, for in a letter bearing date the 31st March, 1848, 
 addressed by the defendants to Messrs. Hossack & Co., they state 
 " with these alternation and valuing against our shipments at the 
 " rate of 80 per cent, as agreed upon, you will perceive by the 
 " enclosed sketch that we have more tha'n sufficient funds in your 
 " hands to meet the payment of Mr. Rodyk's machinery." 
 
 The defendants admit that the machinery was delivered to 
 them, that the price is fair, that they have been paid by Rodyk, 
 that they are liable as principals to Hossack & Co., for the full 
 price of the machinery, but they deny their liability to the 
 plaintiffs on several grounds. 
 
 They have referred me to 3 cases collected in 2 Smith's 
 Leading Cases, 198. — Paterson v. Gaudesequi, Addison v. Gaudese- 
 qui, and Thompson v. Davenport. 
 
 In Paterson v. Gaudesequi the sole question was whether it 
 was sufficiently proved at the trial that the plaintiffs knew at the 
 time of the sale that the defendants were the principals, and a 
 new trial was granted to ascertain that fact, as it could not be 
 held that the plaintiffs had elected to give exclusive credit to the 
 agents unless they knew who the principals were. 
 
 In the case of Thompson v. Davenport the plaintiffs, knowing 
 that the purchaser McKine was merely an agent, but not knowing 
 who his principals were, although at the time they debited 
 McKine in their books, and the Invoices were made out in his 
 name only, were held not to have elected to give exclusive credit 
 
STRAITS SETTLEMENTS. 97 
 
 to the agents, because at the time they did not know who the 3sBV ^^' R - 
 principals were. ' 
 
 Those two cases differ in their circumstances from the Scott, 
 present, Sinclaik & 
 
 In the case of Addison v. Gaudcsequi, .the plaintiffs, knew „.' 
 
 that Larrazable & Co., were purchasing as agents and that the Brown & Co-, 
 defendants were the principals, and it was held upon the evidence 
 that the plaintiff had elected to give exclusive credit to the 
 agents, but in that case the evidence was very conclusive. The 
 house of the agents Lad previous dealings for 20 years with the 
 plaintiffs. The Invoices were all made out by the plaintiffs in the 
 names of the agents. The agents were debited in the plaintiff's 
 books, one of the partners in the agent's house [which had be- 
 come bankrupt] being examined, stated that the house h;jid pur- 
 chased those goods of the plaintiffs on their own credit and 
 account, as they would any other goods and that they had insured 
 the goods in their own names. 
 
 Upon that evidence and in the absence of any special agree- 
 ment, or of any evidence to the contrary, the plaintiffs were 
 held to have made their selection to give exclusive credit to the 
 agents. 
 
 In the present case the question is whether, upon the evi- 
 dence now before the Court, it should 'hold that the plaintiffs had 
 elected to give exclusive credit to Hossack & Co., or whether, 
 upon any other ground, the defendants are relieved from liabi- 
 lity to the plaintiffs. 
 
 The defendants urge that they were not parties to the con- 
 tract, and that in the correspondence between plaintiffs and 
 Hossack & Co., they are not treated as such. It is true that in 
 the letter of 9th of September the defendants are not named. 
 But the words with which that letter commences are '■' In confirm- 
 " ation of our agreement yesterday, and in compliance with your 
 " wish we have to state, &c." 
 
 The agreement of the 8th of September, "in confirmation of 
 " which " that letter was written, is fully stated in the evidence 
 of J. G. Lawrie, and it appears from his evidence that the names 
 of the defendants were disclosed by their agent Hossack at the 
 time of that original agreement, and that the plaintiffs insisted 
 not only that the defendants should give them bills, but that 
 Hossack & Co. should join in the bills to guarantee their pay- 
 ment by defendants, although the names of the parties to the bills 
 are not mentioned in that letter. 
 
 It appears from the letter of the loth September from Hos- 
 sack & Co., to the plaintiffs, acknowledging the receipt of the 
 letter of the 9th, that Hossack & Co. understood that the bills 
 mentioned in the letter of the 9th were to be drawn by Hos- 
 sack & Co. upon Brown & Co. for the 2nd and 3rd instalments, 
 but as the names of Brown & Co. do not occur in the letter of the 
 9th, it is quite clear that the understanding of Hossack arose from 
 what occurred at the interview at Greenock on the 8 th of Sep- 
 tember, on which occasion the defendants' names were mentioned 
 and the pai*ol agreement made. 
 
CIVIL OASES. 
 
 It is established that parol evidence is admissible to shew 
 ; a person who has made a written contract as principal is in 
 
 Jsppcott, B. 
 
 1852 , that a person who has made a written contract as principal 
 
 Scott, reality but an agent, when the object of the evidence is to charge 
 
 Sinclair & the principal, 2 Smith's leading Cases, 225, —but even without 
 
 Co - the parol evidence, the letters of the 9th and 15th are to be taken 
 
 Bbown &Co. together as expressing the terms of the contract according to the 
 
 understanding of defendants' agents. Hossack & Co. remitted 
 
 the full instalment in that letter of the 15th September upon 
 
 their understanding of the contract, and upon the 19th January, 
 
 1847, an account is sent to the defendants charging them with 
 
 the first instalment, which instalment was shortly after paid by 
 
 the defendants to Hossack & Co. 
 
 In a letter of the 19th September, the plaintiffs state that 
 their understanding of the agreement was that Hossack & Co- 
 should be the acceptors, and Brown & Co. the drawers and 
 indorsers. 
 
 It thus appears distinctly that the plaintiffs did not elect to 
 give exclusive credit to Hossack & Co., but that they always 
 insisted that Brown & Co. should be parties to the bills. 
 
 This action is not brought to enforce a ' delivery of the bills in 
 performance of the special contract. The time for the perform- 
 ance of that special contract expired 5 years ago, and the 
 evidence just alluded to is used to shew that the plaintiffs did not, 
 at the time of the sale, by the terms of their original agreement, 
 elect to give exclusive credit to the agents. 
 
 The defendants then urge that as the terms of the contract 
 were never communicated to them, they were led to believe that 
 the credit had been given exclusively to the British agent 
 according to the usage of trade in the case of foreign mer- 
 chants. 
 
 In the absence of any special agreement, the presumption in 
 the case of foreign merchants is, that exclusive credit is given to 
 the British agent, but, as Mr. Justice Story sayS, " that pvesump- 
 " tion is liable to be rebutted either by proofs that credit was 
 " given to both principal and agent, or to the principal only." 
 Story's Law of Agency, 230. In this case it has been proved that 
 by the contract the credit was given to the principal and agent, 
 and it was not the duty of the seller to communicate to the 
 defendants the terms of the contract. This was the duty of their 
 own agents, and if through their neglect of their duty, the defen- 
 dants were acting under a wrong impression,, the defendants 
 should suffer for the misconduct of their own agents, and not the 
 plaintiffs. The defendants then urge that the three invoices, made 
 out in the name of Hossack & Co., only, shew that the plain- 
 tiffs elected to give exclusive credit to them. If there had been 
 no other evidence of the contract, than what appears on the face 
 of the invoices, it might be inferred from them that exclusive credit 
 had been given to Hossack & Co., but in this case Hossack & Co., 
 to whom the invoices were sent, knew that they were not the only 
 evidence of the contract, for they knew that there was a special 
 agreement. They were the persons who had made that agreement, 
 and they had in their possession the written correspondence canvass- 
 
STRAITS SETTLEMENTS. 99 
 
 ing its terms, and two of the invoices have marginal notes referring Jefmott, ft. 
 
 to the letters containing the contract. It would therefore be ab- " 
 
 sard to hold that Hossack & Co., who had directed the invoices to Scott, 
 be sent to themselves, had been deceived by the mere heading of SinclaibA 
 those invoices, into a belief that exclusive credit bad been given Co# 
 to them. Their answers to the plaintiffs' subsequent letters shew brown & Co. 
 that they had no such belief. 
 
 It may be urged that as the plaintiffs, by furnishing such 
 invoices, gave their agents the means of misleading the. defend- 
 ants, the defendants should be discharged from liability to the 
 plaintiffs, but it appears in evidence that these invoices were not 
 sent to the defendants by Hossack & Co., until after the com- 
 mencement of this action, and, therefore, that the defendants had 
 not been misled by them. 
 
 The defendants next urge that the Court should presume that 
 Hossack & Co. are debited in the plaintiffs' books from the head- 
 ing of the invoices, but such a presumption cannot be made, for in 
 this case the defendants should have proved the entries in those 
 books as part of their proofs, for it lies on them to shew that they 
 are exonerated ; and as plaintiffs attempted to prove those entries, 
 but the proof was rejected on an objection by the defendants, I 
 can only say that it has not been proved to whom the credit is 
 given in the plaintiffs' books. 
 
 The defendants then urge that the plaintiffs should have in- 
 sisted on a delivery of the bills and should not have waited till 
 the expiration of the credit. I do'nt see that the plaintiffs were 
 under any necessity to insist on bills, and they might have had 
 some difficulty in doing so unless they consented to take Hossack 
 & Co. as drawers, as Hossack & Co. do not appear to have ex- 
 • pressly stated that they would become acceptors, although the 
 plaintiffs appear to have acted on that understanding. The first 
 set of bills may be taken to be due some time after the 1st Novem- 
 ber, 1847, for in the letter of the lstof May it is expressly stated 
 that the goods had not been then landed, and that a further letter 
 should be sent to report upon them when landed, which letter 
 does not appear to have been sent. On the 22nd of December, 
 the first set of bills were demanded, which may or may not have 
 been quite a month after they were due. 
 
 1 do'nt think the letter of the 28th of December can be con- 
 sidered as waiving the bills, and looking solely to Hossack & Co., 
 nor do I think that the words " bargain with you" in the letter 
 of the 5th April have the meaning the defendants put upon them. 
 
 The defendants then wge that the agents having exceeded 
 the authority given by their special instructions, in pledging the 
 defendants to give bills, the defendants are not bound by any 
 part of the contract. I should hesitate to decide that the agents 
 exceeded their instructions by undertaking .[not that the agents 
 should accept or endorse bills in the names of the defendants] 
 but that the defendants, having asked a credit of 6 and 12 months 
 for so large a sum as £1,620, should send their own bills after the 
 machinery had been delivered to them. But supposing the agent 
 had exceeded his authority in engaging that the defendants 
 
100 CIVIL OASES. 
 
 Jemwtt, R. should send their own "bills, still as the instructions were followed 
 
 ' exactly in all other respects the execution of the authority is 
 
 Scott, good and the excess void, — Story's Agency, 136, — for the Court 
 Sinclair & cannot see that any disadvantage .has accrued to the defendants 
 ° • by getting the 6 and 12 months' credit without being called upon 
 Bkown&Co. to give bills. The Court considers this contract as if made with 
 the defendants and if they had contracted to give bills, and after- 
 wards did not give them, the plaintiffs could wait till the expira- 
 tion of the credit, and then sue them. 
 
 It does not appear that plaintiffs by any agreement, either 
 express or implied, with Hossack & Co., waived their right to get 
 the bills, and therefore the case of Thornton v. Meux, M. & Mai., 
 43, does not apply; but the plaintiffs did not take proceedings to 
 enforce the delivery of the bills, as they would have had some 
 difficulty in doing so, and the credit was so short that it was 
 likely to expire before the delivery could be enforced. 
 
 I do'nt think the case of Kymer v. Suwercrop, I. Camp, 109, 
 or that class of cases, applies, as in those cases exclusive credit is 
 given to the agent in the first instance, believing him to be the 
 principal, but afterwards a principal is discovered. If, in such 
 case, a seller delay an unreasonable time after the discovery of the 
 principal, before he applies to him for payment, and if, during 
 that time, the principal, in the ordinary course of business, pay 
 the agent, and the principal be afterwards sued, it must be sub- 
 ject to the state of the accounts between him and the agents, as 
 the seller by his own acts and conduct had given the principal good 
 ground for presuming that the seller never intended to apply to 
 him for payment. 
 
 I think that the plaintiffs have done nothing in this case to 
 prejudice their right to recover from the defendants. If the 
 defendants have been kept in ignorance of the terms of the con- 
 tract made for thein, their agent is to blame. They obtained all 
 the terms stipulated for in Mr. Eodyk's letter. The goods were 
 in part forwarded to them on the 8th December, 1846, accom- 
 panied by a letter stating that they had been ordered on their 
 account, and they accept the delivery. On the 19th January an 
 account is furnished charging the defendants with the first in- 
 stalment, which they pay on the 18th June. They are furnished 
 with a general invoice from their agents in the heading of which 
 it is stated that the goods were shipped on their account and at 
 their risk and their agents charge them with commission for 
 their agency. 
 
 The defendants allege that they have settled in account with 
 Hossack & Co. for the price of this machinery, but it.is admitted 
 that Hossack & Co. have not paid the plaintiffs. 
 
 The Court is of opinion that the defendants are liable to the 
 plaintiffs for the full balance claimed, as the plaintiffs do not 
 appear to have done any act releasing the defendants from their 
 original responsibility as principals . 
 
 Verdicb for plaintiffs, Spanish Dollars 7,512.95 with interest 
 from 5th August, 1848, at 5 per cent, per annum, with costs. 
 
STRAITS SETTLEMENTS. lOl 
 
 JOHN COLSON SMITH v. B.EHN, MEYER & CO. 
 
 In order to prevent a payment or gift made by an Insolvent on the eve of Bank- Singapore. 
 
 ruptcy, and within two months of his adjudication, voluntary, — it is not sufficient to 
 
 shew merely jiressuro or importunity on the part of the creditor, hut also that such Jeffcott, R. 
 pressure or importunity operated on the mind of the insolvent and led to the payment 1854. 
 or gift being made. . 
 
 The fair conclusion to be drawn from all the cases on the subject, appears to be, April 12. 
 that in a simple transaction, free from all suspicious circumstances, payment made by 
 an' insolvent within two months of his Bankruptcy, in the usual course of business, and 
 in consequence of a bon-l fide demand, is not a voluntary payment : but where the case 
 is a mixed case in which, though there was pressure on the part of the creditor, there 
 was a desire on the part of the debtor by such payment to accomplish an object of his 
 own, which the creditor was not at the time aware of, — but to accomplish which object, 
 the debtor seizes on the creditor's importunity as a favourable opportunity to carry out 
 his object, — such payment will be deemed voluntary ; and the money or goods paid or 
 given under such circumstmccs is recoverable by the Assignee from the creditor so 
 preferred. 
 
 Motion for a new trial. The facts and points sufficiently 
 appear in the judgment. 
 
 R. C. Woods, sen. shewed cause. 
 Napier supported the Rule. 
 
 Cur. Adv. Vult. 
 
 On this day judgment was delivered by 
 
 Jeffcott, R. In this ense the action was brought by the official 
 Assignee of the Estate of Wolcott & Co., to recover a sura of 
 Spanish Dollars 2,877 and 48 cents paid to the defendants by 
 W. Dreyer, one of the partners of that Company, immediately 
 before their petition was filed in the Insolvent Court. The case 
 was tried in November last when a verdict was found for the 
 plaintiff for the sum claimed. 
 
 A Rule Nisi has been obtained by the' defendants to set aside 
 that verdict as against evidence. The following are the circum- 
 stances of the case as proved at the trial: — 
 
 In the beginning of the month of August, about six weeks 
 before- the 23rd September, 1852, the defendants had purchased 
 from Wolcott & Co., two Bills of Exchange, each being for 
 $2,000, drawn by Wolcott & Co., on Schweman & Co., of Canton. 
 
 On the 22nd of September, 1852, defendants purchased a 
 third bill for $2,877 and 48 cents drawn by the same Wolcott & 
 Co., on the same Schweman & Co., payable 30 days after sight. 
 On the 23rd. of September, 1852, the mail steamer arrived in 
 Singapore from China bringing Mr . Overwig, an Agent of the 
 said Schweman & Co. of Canton, who about 1 o'clock p.m. on 
 that day had an interview with the insolvent, Dreyer, and informed 
 him that the house of Wolcott, Bates & Co. of Shanghai with 
 which the firm of Wolcott & Co. had extensive dealings, had failed. 
 
 Just before he gave that information, the mail bag had been 
 brought into Mr. Dreyer's office, and in it was a letter from the 
 agent of the Shanghai house giving an authentic account of the 
 failure. Shortly after and while Mr. Overwig was still in the 
 office, the defendant Schrieber, one of the partners in Behn, 
 Meyer & Co., entered, having in his hand the protest for non- 
 acceptance of the two bills ou Schweman & Co. for $2,000 each, 
 
102 CIVIL CASES. 
 
 Jejtcott, E. •which Dreyer had sold to him 6 weeks before, and Dreyer gave 
 1854 - the following evidence as to what passed between him and 
 Smith Schrieber: "He told me as those two bills had been protested 
 v. " that he couldnot remitthe same kind of paper again to his friends 
 
 Behn, « a t Canton and he requested me to pay him back the money 
 ET:E " which he had paid tome on the previous day for the bill on 
 " Schweman & Co.— the bill for $2,877.48 cents. Upon that I 
 " gave him a cheque on the Bank for the amount, and either he 
 " or I tore up the bill. That was all that was said on the occa- 
 " sion, and the whole time that Mr. Schrieber remained in the 
 " office did not exceed 5 minutes. At the time I gave the cheque 
 " I was in great confusion of mind as I believed that our house 
 " would be largely involved by the failure of Wolcott, Bates & Co., 
 " that we should lose largely by it, but I could not tell to what 
 " amount as I did not then know the state of the accounts. I knew 
 " that the firm was in difficulties when I saw Schrieber, but it did 
 "not occur to me that we were insolvent or that we should file a 
 "petition in the Iu solvent Court. At that time the thought of 
 " insolvency had not occurred to me. Immediately after I had 
 " given the cheque to the defendant, it struck me 1 had done 
 " wrong. I made the payment to him to save the expense of re- 
 " change and the other expenses of transmitting the bill. T also 
 " made the payment to him because I had drawn those bills 
 " against a consignment of goods then in the harbour which we 
 "intended to consign to Schweman & Co., but as he had refused 
 "to accept the former bills I was glad to get back the bill from 
 " Schrieber as I would not be obliged to make the consignment. 
 "The consignment amounted to dollars 11,500, — of that about 
 " dollars 2„000 worth was paid for. I also made the payment to 
 " Schrieber that I might get him out of the office as soon as possi- 
 " ble that I might have time to examine into my affairs. On the 
 " morning of the 23rd September, I had given to the Bank bills 
 " on Schweman & Co. for dollars 7,-500, which, with the amount 
 " of Schrieber's cheque for the purchase money of the bill for dol- 
 "lars 2,877.48 cents, and a small balance to our credit of 
 " about dollars 300, made up about dollars 11,000 then in the 
 " Bank to the credit of our Firm, but at the time I gave 
 " the cheque to Schrieber I believe we had in the Bank only 
 " the small balance of dollars 300, which could properly speak- 
 " ing be said to belong to our firm. After Schrieber had left 
 "the office and after I had time to collect any thoughts the im- 
 " pression on my mind was that we could not pay our creditors in 
 " full." Mr. Dreyer further proved that the Insolvents had pur- 
 chased a few days before, from Rahman Chitty, betelnut to the 
 amount of about $3,000 for cash,— that the last delivery was on 
 the "20th September, and that about three hours after Schrieber 
 had called, Eahman Chitty called and demanded payment which 
 the insolvent Dreyer refused as he had then made up his mind 
 that they should call a meeting of their creditors. 
 
 He further proved that on the same day after Schrieber had 
 left the office, other parties had returned to them pr-otested bills 
 to the amount of $6,597.87 cents, aud that the only two houses 
 
STRAITS SETTLEMENTS. 103 
 
 in China upon which the insolvents drew were Schweman & Co., Jotcott. R. 
 
 and Walcot, Bates & Co., one of which had failed and the other ' 
 
 had refused to accept their bills. Between 6 and 7 o'clock that Smith 
 
 same evening, the insolvents on consulting together, determined . *• 
 
 to call a meeting of their creditors, and accordingly on the next jj bt ^^'cc. 
 
 day [the 24th September] the insolvents, having first consulted 
 
 at 6 a.m., with their Law Agent, Mr. Woods, issued notices calling 
 
 a meeting of their creditors, which was held about 10 or 1 1 a.m. 
 
 of the same day, when a balance sheet was called for, and the 
 
 meeting having named trustees, adjourned to the following day. 
 
 On the following day, the 25th September, the insolvents submitted 
 
 to their creditors a rough sketch of their affairs shewing a • 
 
 balance against the insolvents. And on the 27th September, the 
 
 insolvents by the direction of their creditors filed their petition 
 
 in the Insolvent Court. 
 
 Under those circumstances, the cheque was given by Dreyer 
 to the defendant Schrieber and to recover the amount paid to the 
 defendants on that cheque, the official assignee of the insolvents 
 brought this action under the 24th sec. of VT. Vict., c. 21. [The 
 Indian Insolvent Act.] 
 
 The following are the words of that section : — 
 " And be it enacted that, if any Insolvent who shall file his 
 petition for his discharge under this act, or who shall be ad- 
 judged to have committed an act of Insolvency, shall voluntarily 
 convey, assign, transfer; charge, deliver or make over any estate 
 " real, or personal, security for money, bond, bill, note, money, 
 " property, goods or effects whatsoever, to any creditor, or to any 
 " other person in trust for or to, or for the use, benefit and advan- 
 " tage of any creditor, every such conveyance, assignment, transfer, 
 " charge, , delivery and making over, if made when in Insolvent 
 " circumstances, and witbin two months before the date of the 
 "petition of such Insolvent, or of the petition on which an adju- 
 " dication of Insolvency may have proceeded, as the case may be, 
 " or if made with the view or intention by the party so conveying, 
 " assigning, transferring, charging, delivering or making over, of 
 " petitioning the said Court for his discharge from custody under 
 " this Act, or of committing an act of Insolvency, shall be deemed 
 " and is hereby declared to be fraudulent and void as against the 
 " assignees of such insolvent." 
 
 Before the plaintiff can recover in this action he must prove — 
 first, that the payment was made " voluntarily," — second, that it 
 was made to a creditor, — third, that at the time it was made, 
 the firm was " in insolvent circumstances," — fourth, that it 
 was made witbin two months before the date of the insolvent's 
 petition, or with a view of petitioning the Insolvent Court, 
 or of committing an act of Insolvency. And it is the duty of 
 the Court to decide upon the evidence, whether those matters 
 have been proved to the satisfaction of the Court. The diligence 
 " of the Law Agents" has supplied me with every important case 
 relating to the subject. Many of those were cases under the 
 Bankruptcy Act. 
 
 To avoid payments made under those A'cts, it is necessary to 
 
 a 
 
104 CIVIL CASES. 
 
 Jbmwtt, K. prove two things, — first, that the payments were " voluntary/' — 
 
 1854 - second, that they were made with a view of giving a fraudulent 
 
 Smith preference in contemplation of bankruptcy. Under the 24th sec. 
 
 v. of the Indian Insolvent Act, it is only necessary to prove that the- 
 
 Behn, payment was " voluntary," if made by an Insolvent to his creditor 
 
 eyes & Co. -^jjiu two mouths before the date of his petition. Beche v. 
 
 Smith, 2 Mees & W. 191. It is therefore unnecessary for me 
 
 to refer to those cases under the Bankrupt Acts in which it was 
 
 admitted that the payment was voluntary, and the argument was 
 
 confined to the question, whether it was made with a view to a 
 
 fraudulent preference. In the present case, it is not disputed, — 
 
 first, that the payment was made to a creditor, — second, that 
 
 at the time it was made the firm was in insolvent circumstances, — 
 
 third, that it was made within two months before the date of 
 
 their petition. The only question, therefore, which remains to be 
 
 determined by the Court is, — fourth, whether the payment was 
 
 voluntary. 
 
 The following are the cases which assist most towards forming 
 an opinion on that question. In 2 Bos. and P. 582 " Hartshorn v. 
 Slodden, at the desire of the defendant, goods were delivered to 
 her by the bankrupt as a security for his debt. Lord Alvanby, 
 C. J. in his judgment, says, " If the goods be delivered through 
 " the urgency of the demand, or the fear of prosecution, whatever 
 " may have been in the contemplation of the bankrupt, this will 
 " not vitiate the proceeding." Or in other words such a delivery 
 could not be held to be "voluntary." 
 
 In 7 East 544, Thornton v. Hargreaves, the jury having found 
 that the payment was not voluntary, on motion for a new trial the 
 case from Bos. and P. is cited in argument, and is the only case 
 to which the Court is referred, and Lord Ellenboro' in his judg- 
 ment, says — " The only difficulty which lies on the plaintiffs in 
 " this case is to' make out that this was a ' voluntary ' payment, 
 " taking the conversation reported between the defendants and 
 " the bankrupt, to be a threat of process if they did not receive 
 " payment or security for their demand, I do not see how the 
 •' the execution of such a threat could put the bankrupt in a worse 
 " situation than the actual transfer of the goods did, for that left 
 " him without any property, and he was immediately obliged to 
 " break up his business and leave his home. This would rather 
 " shew that he did not make the transfer by dint of the threat, 
 " for he did not redeem himself from any present difficulty by doing 
 " the act which is the motive for such an act when really done 
 " under the pressure of a threat, and if he got nothing by evading 
 " the threat, I should rather say that, it was a voluntary act and 
 " preference on his part as to the particular creditor." The jury 
 having found that it was not voluntary a new trial was granted^ 
 
 In 11 East 256, Crosby v. Crouch, Lord Ellenboro', C. J., says, 
 " Iu considering whether the act in question was in this sense 
 " ' voluntary,' it is material to see from which party the 
 " proposition for making the deposit originated, whether from 
 " the bankrupt or the defendant, — it certainly proceeded wholly 
 " from the defendant— he is stated to have required the act to be 
 
STRAITS SETTLEMENTS. 105 
 
 " done. It is therefore on any fair interpretation of the words, Jwwjott, E. 
 " not referable to any supposition of favor and preference exer- 1854- 
 " cised on the part of the bankrupt, but to urgency and importunity Smith, 
 " on the part of the person obtaining the deposit." Again he says : ■». 
 
 " There was no doubt, at the trial, of the fact of urging for Mb ^™^' c 
 " the security ; such fact appearing upon the face of the defend- 
 " ant's deposition read in evidence by the plaintiff, &c." The 
 plaintiff had been non-suited, the rule to set aside the non-suit 
 was discharged. 
 
 In 7 Bingh : 438, Cook v. Rogers. The bankrupt had given a 
 bill for £600 to the defendant payable on 29th September. On 
 the evening of the 18th September, the defendant who had before % 
 threatened to arrest him if the £600 bill was not paid when due, 
 again threatened to arrest both him and his father. The money 
 not being paid, the defendant again came on the morning of the 
 19th and said he would be fooled no longer, and his bill was paid. 
 This payment, however, did not relieve the bankrupt from his 
 difficulty or render it the more probable that he could continue 
 his business. On the evening of the 19th September, he com- 
 mitted an Act of Bankruptcy. Being called as a witness on the 
 trial, he stated that he paid the money to secure his father, and at 
 the same time to benefit the defendant; that he had no re-collec- 
 tion of any threat, and if any such had been used, it would have 
 had no effect on him, that he was not exactly acquainted with the 
 state of his accounts and did not then contemplate bankruptcy, but, 
 pe?'haps, a composition with his creditors, — afterwards, however, 
 on that day he was advised to become bankrupt. Tindal, C. J., told 
 the jury to " consider whether Baker contemplated bankruptcy, 
 " and secondly, whether the payment was made voluntary" or in 
 consequence of any threat from the defendant, and with a view 
 to assist them in the consideration of those questions, he directed 
 them to consider what was passing in the bankrupt's mind at the 
 time of the payment and the motwes by which he probably was 
 actuated. The jury found the payment " voluntary," and on the 
 motion for a new trial on the ground of mis-direction, Tindal, 
 0. J. says : — 
 
 " This is not a case of simple preference,- nor the equally 
 " simple case of a payment obtained by threats, without any 
 " sinister intention on the part of the debtor. It is a mixed case 
 " in which the debtor had an object in favoring the particular creditor, 
 " but in which the creditor also, before he knew of such a disposi- 
 " Hon on the part of the debtor had urged and importuned him for pay- 
 " ment. It has been argued for the defendant that wherever 
 " threat or importunity has been resorted to, there cannot be 
 voluntary payment ; but that proposition is too constrained, and 
 " it must be left to the jury to say, whether the threat had, any 
 " operation or not. If when a threat has been employed, no other 
 " circumstance is to be inquired into, how came Lord Ellenboro' 
 " in that case [Thornton v. Hargreaves] to look into all the accom- 
 " panying facts on the motion for a new trial." His Lordship 
 then cites Lord Ellen boro's judgment as given above, and adds : 
 " That is conclusive to shew the Court did not consider the threat a 
 
 « 
 
106 CIVIL CASES. 
 
 Jeffcott, r. " sufficient reason for shutting out the consideration of other 
 1Soi ' " circumstances. The jury have found the payment was made 
 Smith " voluntarily, and I see no reason for disturbing their verdict." 
 
 v. Alderson, J., reconciles the cases of Hartshorn v. Slodden, 
 
 Bbh *?' Crosby v. Grouch, and Thornton v. Hargreaves, and adds : " Threats 
 ' " on the part of the creditor are a strong circumstance to shew that 
 " the payment ensuing is not voluntary, but, if as here, the party 
 " be not placed in a better situation by yielding to the threats, or 
 " if he disclosed such a reason for preference, that the threats 
 " could obviously have produced no effect upon his mind, those 
 " are circumstances which afford a strong inference the other 
 " way." The rule for a new trial was discharged. 
 
 In 5 B. and Ad. 289, Morgan v. Brundrett, the following 
 words from the judgment of Mr. Justice Patterson have been 
 much relied upon by the defendant " upon the question of pres- 
 " sure, in order to shew that the deposit was made voluntarily, I 
 " think, ifc ought to have appeared clearly that the bankrupt 
 " took the first step towards making the deposit." It was unne- 
 cessary for him to decide to that extent, as the same learned 
 Judge in the words which immediately follow, states : " that 
 " there was evidence that [the bankrupt] has been frequently 
 " asked for payment or security," and Littledale, J., in the same 
 case says, " I think here was strong evidence to show that the 
 " deposit was made in consequence of pressure, for it appeared 
 " that the defendant had frequently or urgently asked for the 
 " money or security, and that a bill had been filed against the 
 " bankrupt on which he was liable to be taken on attachment." * 
 The expressions of Patterson J. upon which the defendant 
 relies are therefore clearly but mere general observations and not 
 a decision upon the facts of the case, and it is quite clear accord- 
 ing to the cases in 7 East 544, and 7 Bing 438, already cited, 
 that although the bankrupt did not take the first step, and 
 although the defendants used threats and importunity, the pay- 
 ment may be " voluntary" if not made in consequence of the threats 
 and importunity but under the influence of other motives. In 
 Eigg v. Baker, 3 Mees. & W. 197, it was proved that before the 
 12th July, the bankrupt had expressed his desire to give the 
 defendant security, and that he gave it [in the language 
 of the witness] " quite spontaneously," the defendant having 
 made no application to him to execute the bill of sale until that 
 day. The jury found a verdict for the plaintiff thereby finding 
 that the execution of the bill of sale was " voluntary." On a 
 motion for a new trial, Parke B. says : " The giving the bill of 
 " sale itself was undoubtedly altogether the spontaneous act of 
 " the insolvent." A second trial of the same case, before the 
 same Judge, Parke B., is reported in 4 Mees. & W. 348. At the 
 trial, the examination of the defendant was rea.d, in which the 
 defendant stated that the bankrupt " offered him security spon- 
 " taneously." Parke B. in his charge told the jury that pressure of 
 the creditor was not necessary, but that if it originated with the 
 insolvent, it could only have been made by way of " voluntary 
 " preference." The jury found " it was not voluntary"— Lord 
 
STRAITS SETTLEMENTS. 107 
 
 Abinger C. B. says — " I am of opinion that the verdict was Jemcottj E. 
 
 " right and the direction right. There is a fact in the case which ' 
 
 " seems to have escaped Mr. Crowder's attention, which is, that Smith 
 
 " the bankrupt said he executed the bill of sale because he appre- «• 
 
 " hended if he did not, Baker would put in a distress. I do not, Mb ^j™4 c . 
 
 " however, think this was necessary and I should be sorry to have 
 
 " it understood I thought it essential. I think if a demand is 
 
 " made by a creditor bond fide and a transfer takes place in pur- 
 
 " suance of that demand, that takes it out of the case of 'voluntary' 
 
 " transfer, contemplated by the Insolvent Act." The rule for 
 
 a new trial was refused. 
 
 It appears to have been clearly proved in that case that the 
 offer of security originated with the bankrupt, but that when 
 asked by the defendant on the 12th July to execute the bill of 
 sale, he executed it " because he apprehended if he did not, that 
 " the defendant would put in a distress." In that case the demand 
 by the defendant conveyed to the bankrupt's mind a threat of 
 distress if he should refuse to execute, and influenced by the de- 
 mand so made, he executed the bill of sale. The jury were there- 
 fore fully justified in finding that the bankrupt did not execute 
 " voluntarily" and the decision of the Court that on the facts 
 proved, the verdict was right, cannot be found fault with. 
 
 The opinion expressed by Lord Abinger, although not a deci- 
 sion on the case before him, appears to have been adopted in sub- 
 sequent cases. The cases of Kniyht v. Fergusson, 5 M. & W. 389, 
 and Amell v. Bean, 8 Bing 87, have little application to the case 
 under consideration, as in those cases the Court held that the 
 deed was executed for " a new and valuable consideration paid by 
 " the defendant, and in such cases a deed is never held to be 
 " voluntary." 
 
 In Jaeltson v. Thompson, 2 Ad. & B. [N. S.,J 89, the facts 
 of which are also reported in 3 M. & Gr. 621 , the Insolvent was 
 examined at the trial, and stated that he had called a meeting 
 of his creditors, and at that meeting the assignment was proposed 
 by a creditor — " at that meeting I stated my affairs to the credi- 
 " tors. They required me to make the assignment. I made the 
 " assignment on account of the wish of the principal creditors. 
 " It was not voluntary on my part." The Agent of the Insolvent 
 who gave the instruction to the attorney for preparing the 
 deed, was also examined, and said : " I think I proposed the 
 " assignment on behalf of the Insolvent. The creditors were 
 " urgent for something to be done. The assignment was pro- 
 " posed for that reason." The jury found the assignment was 
 voluntary, and on a motion for new trial, the Court refused to 
 grant the rule. 
 
 In that case the Court appears to have determined from a 
 consideration of all the circumstances of the case, the Insolvent 
 having called the meeting of the creditors at which the assign- 
 ment was proposed and his agent having given the instructions 
 to his attorney to prepare the deed, that the Insolvent was the 
 moving party, and that the assignment loas " voluntary" al- 
 though the Insolvent swore that it was " not voluntary." 
 
108 CIVIL OASES. 
 
 Jeitcott, E. In Cook v. Pritchard, 5 Man & Gr. 329, Tindal C. J. told 
 
 1854 " the jury notwithstanding there had been pressure and importu- 
 
 Smith uity on the part of the defendant the question they had to consi- 
 
 v. der was whether the payments were made in consequence of that 
 
 Beh ^' pressure or importunity or were "voluntary." The jury found the 
 
 eyeb o. p a y men ^ s were » voluntary" and on a motion for a new trial on 
 
 the ground of misdirection, — the objection to the charge was that 
 
 the Chief Justice had assumed that the pressure was necessary 
 
 to prevent a payment being voluntary. Maule J. says : " His 
 
 " Lordship seems to have assumed that importunity and pressure 
 
 " had been proved, and, assuming that as a fact in the case, to have 
 
 " thought thab the plaintiffs would still be entitled to recover, pro- 
 
 " vided the jury came to the conclusion that the payments 
 
 " were made, not in consequence of the importunity and pressure 
 
 " but in order to give a preference to the defendant." 
 
 Creswell J. says : " If the Lord Chief Justice had told the 
 "jury that the facts proved did not amount to importunity and 
 " pressure, I should have thought the case required reconsideration. 
 " I do not see any fault to be found with the summing up." The 
 rule for a new trial was refused. 
 
 In that case, on the authority of Rigg v. Baiter, and the other 
 , cases cited, the Court appeared inclined to hold that a payment 
 would not be voluntary if made in consequence of a bond fide de- 
 mand although no pressure or importunity had been used, and to 
 have decided that although importunity and pressure had been 
 used the payment may be voluntary if not made in consequence of 
 that pressure and importunity. The fair conclusion from all the 
 cases appears to be that in a simple transaction free from all 
 suspicious circumstances, payment made by an Insolvent within 
 two months before the date of his petition in the usual course of 
 business and in consequence of a bond fide demand will not be 
 held to be voluntary. 
 
 . In the case now under consideration, the question the Court 
 will have to decide is whether the payment was made in conse- 
 quence of the request of Schrieber, supposing a request equivalent 
 to a demand, or whether it was made by the Insolvent not in con- 
 sequence of the request, but voluntarily and with a view to accom- 
 plishing objects of his own. To enable the Court to decide that 
 question, it is bound to consider what was passing in the Insol- 
 vent's mind at the time, which may be collected not only from his 
 statements but from all the facts of the case. 
 
 1st. — It is clear that the Insolvent could if he chose, have 
 refused to make the payment, as the bill was payable 30 days 
 after sight and had not been presented for acceptance. It was 
 not a payment made in the usual course of business. 
 
 2nd. — The Insolvents gained no advantage by the payment, 
 it did not relieve them from their embarrassments or better their 
 position. 
 
 3rd.— A few hours after the payment to the defendants, pay- 
 ment was refused to other creditors. 
 
 4th.— The Insolvent, although pressed to state all that was 
 passing in his mind at the time of payment, does not state that 
 
STRAITS SETTLEMENTS. 
 
 109 
 
 he was influenced by the request of Schrieber or by anything he Jeftcott, r. 
 had to expect or fear from him. 1854 ' 
 
 5th. — He states the reasons which in the very confused state Smith 
 of his mind made him glad to make the payment, which reasons •»■ 
 relate to the general state of his affairs, and to his own personal jjjj^f&'co 
 convenience and not to anything he had to expect or fear from 
 Schrieber. 
 
 6th. — Immediately after he had given the cheque to Schrieber, 
 it struck him that he had done wrong, and ye the does not appear 
 to have asked back the cheque. 
 
 7th. — According to the Insolvent's statement so far from being 
 unwilling he was glad to make the payment — the act done was 
 not adverse to his wishes. The request gave him the opportunity 
 of doing that which he was glad to do. 
 
 It appears to be one of those mixed cases mentioned by Chief 
 Justice Tindal, in which the Insolvent to accomplish objects of 
 his own, was glad to make the payment and in which the creditor, 
 before he knew of such a disposition on the part of the Insolvent, 
 had requested payment. The Court, taking into consideration 
 the statements made by tlie Insolvent and all the circumstances 
 of the case, considers that the payment was voluntary and sees 
 no reason to disturb the verdict. 
 
 Rule discharged. 
 
 D'ALMEIDA & ANOE. v. GEAT. 
 
 Courts of Law, for the benefit of commerce, have always had a leaning in favor of Singapobe. 
 
 the right of a ship-owner to a lien for freight, on goods shipped on board his vessel ; 
 
 and with that object, where a vessel is let on charter, draw a distinction between cases McCaus- 
 where the ship itself is let out, [in which case possession of the ship is parted with, and land, E. 
 there is no lien on the part of the ship-owner] — and oases where the mero carriage, or 1856. 
 
 space of the ship is let out, [in which case the owner still retaining possession of -the 
 
 ship, retains a lien for freight]. August 21. 
 
 The language of the charter party must be very strong, in order to exclude, under 
 any circumstances, the lien of the ship-owner ; more words of letting and hiring appear- 
 ing therein, will not themselves do so, whore the other provisions shew they arc used 
 as mere words of contract for the capacity of the ship, and not a demise of the entire 
 hull. 
 
 Whore S. W. & Co., merchants of London, chartered of A. A. owner of the barque 
 P., the said barque for a voyage from London to Singapore or Rangoon and back, for a 
 fixed sum for freight which was to be paid by S. W. & Co's. acceptance at 3 months, 
 and S. W. & Co. put up the ship as a general ship and thereby procured shipment of 
 goods on freight, by several persons, and themselves also shipped goods therein/which 
 they consigned to the plaintiffs for sale, drawing in advance on the plaintiffs against the 
 value of the said goods ; and thereafter the barque proceeded on her voyage with A. A., 
 the ship-owner's Captain and crow on board, and safely reached Singapore with the 
 said goods on board ; but before she arrived, S. W. &. Co. became bankrupt, and the 
 Bill of Exchange given for the freight, and accepted by them, was dishonoured, where- 
 upon the defendant, the Master of the barque, acting on behalf of A. A. the ship owner, 
 refused to give up to the Plaintiffs, the goods of S. W. & Co. consigned to them, where- 
 upon the plaintiffs sued him in trover therefor, 
 
 Held, that the ship-owner had a lien for his freight, which was only suspended by 
 his taking the bill, but revived the moment it was dishonoured, as the cargo was then 
 still inhis possession through his servants, 
 
 Held also, that if the ship owner [A. A.] had, on receipt of the bill, negotiated it 
 for value, but in a way not to render himself liable thereon, it would have operated 
 as payment of the freight, though the bill was afterwards dishonoured ; but as he had 
 
no 
 
 CIVIL OASES. 
 
 McCatts- negotiated the bill, and as indorsee remained personally liable thereon the taking of the 
 land, E. bill, and negotiating it, did not operate as payment, when the bill was subsequently 
 18513. dishonoured. 
 
 D'Almeida iji^jg wag an ac tion of trover for certain quantities of raer- 
 
 GeIy chandize shipped on board the barque Pilgrim, and which were 
 claimed by the plaintiffs as consignees for value under certain 
 Bills of Lading, which goods were detained by the defendant, the 
 Master of the ship, on a claim of lien for unpaid freight. The 
 facts sufficiently appear in the judgment. 
 Napier for plaintiffs. 
 A. M. Aithen for defendant. 
 
 Oar. Adv. Vult. 
 
 August 28. McCcmsland, R. In this case a Charter Party, 
 dated at London, 6th December, 1855, was entered into between 
 the owner of the barque Pilgrim and Messrs. Syers, Walter & Co., 
 which is in the following terms : — 
 
 CHARTER PARTY. 
 
 London, 6th December, 1855. 
 
 Intermediate freight for char- 
 terer's benefit but timeof loading 
 game to be counted as lay days. 
 The vessel not to draw more 
 than 16 feet on the outward 
 passage. 
 
 The brokerage is 5 per cent. 
 on the amount of freight and 
 primage by this charter party, 
 and is due to K . G. Jones, Price 
 & Co., on signing hereof [ship 
 lost or not lost]. This ship to 
 be reported at the Custom 
 House, London, by R. G. Jones, 
 Price & Co., Brokers, 3, Church 
 *-ourt, Clement's Lane, or by 
 their agents at port of dis- 
 charge, paying the usual com- 
 mission. 
 
 It is this day mutually agreed between Alexander Alexander, Esquire, 
 owner of the ship or vessel called Pilgrim, of 
 the measurement of -|t|- tons, or thereabouts, 
 David Gray, Master, now in the St. Katharine's 
 Docks, London, and Messrs. Syers, "Walker & Co., of 
 London, Merchants, that the said ship, being tight, 
 staunch and strong, and every way fitted for the 
 voyage, shall, with all convenient speed, sail and 
 proceed to St. Katherine's Docks, and there load a 
 full cargo of lawful merchandize, and therewith 
 proceed to Singapore, or so near thereunto as she 
 can safely get, and after discharging the outward 
 cargo, load there — d at Rangoon from the agents 
 of the said affreighter, a full and complete 
 cargo of lawful merchandize, timber excepted, and 
 not less than one-half of the cargo to be rice 
 in bags and or other dead-weight. The cargoes to be brought to, and taken 
 from alongside the vessel at the merchant's risk and expense, which the said 
 merchants bind themselves to ship, not exceeding what she can reasonably 
 stow and carry over and above her tackle, apparel, provisions and furniture, 
 and being so loaded, shall therewith proceed to London, Liverpool or 
 Glasgow, as ordered at port of loading, or so near thereunto as she may 
 safely get, and deliver the same on being paid freight, as follows, viz : — For 
 the voyage out and home six pounds five shillings per ton of 20 cwt. nett for 
 rice in bags, other goods according to the custom of the port of loading. 
 The Captain to sign Bills of Lading at any rate of freight without prejudice 
 to this Charter, but the owners to have a lien on the cargo for all freight, 
 dead freight and demurrage, in lieu of all port charges and pilotages. [Re- 
 straint of Princes and Rulers, the Act of God, the Queen's Enemies, Eire, 
 and all and every other dangers and accidents of the Seas, Rivers and Navi- 
 gation, of whatever nature and kind soever, during the said voyage, always 
 excepted.] The freight to be paid on unloading and right delivery of the 
 cargo, in cash, less two months' discount. Thirty running day3 are to be 
 allowed the same merchants, [if the shin is not sooner despatched] for load- 
 ing the said ship at London, forty running days for discharging at Singapore 
 and loading at Singapore and or Rangoon. The homeward cargo to be 
 
STRAITS SETTLEMENTS. Ill 
 
 discharged with all possible dispatch according to the custom of the port MoCaus- 
 and ten days on demurrage, over and above the said laying days, at six land, E. 
 pounds per day. Penalty for non-performance of this agreement estimated 1856. 
 amount of freight. The ship to be addressed to the Charterer's Agents at 
 Singapore and Rangoon, free of commission, who will advance the master D Almeida 
 sufficient cash for ship's ordinary disbursements free of commission, but pay- _ "• 
 ing 24 per cent, interest and insurance thereon, and to be deducted from the " 
 
 freight. Charterers not to be responsible for appropriation of cash for 
 disbursements. £450 to be paid the owners by Charterer's acceptance at 
 three months' date from clearing at the Custom House. 
 
 A, ALEXANDER. 
 
 Witness to the signature of) 
 A. Alexander, >■ 
 
 Andrew "Weight. J 
 
 SYERS, WALKER & CO. 
 Witness to the signature of") 
 Syees, Waxkee & Co. > 
 James Daebt. ) 
 
 This Charter Party was executed on the 6th December ; on 
 the 7th, the notice to load was given by the owner, and on the. 8th 
 December, in pursuance of the agreement in that behalf contained 
 in the Charter Party, a Bill of Exchange, payable three months 
 after date to order, was drawn by the* ship-owner on the Char- 
 terers, Messrs. Syers, Walker & Co. for £450, on account of freight 
 per Pilgrim, as per Charter, dated 6th December, 1855. This bill 
 was accepted by them, payable at the Banking House of Messrs. 
 Robarts & Co., London, and was endorsed over by the drawer to 
 the Union Bank of Scotland, for value on his own account. This 
 bill was afterwards duly presented for payment on the 1 1th April, 
 1856, the .day on which it fell due, and was dishonoured, Messrs. 
 Robarts & Co., stating that they had received orders not to pay ; 
 and it was returned to the drawer and duly protested for non- 
 
 . payment on the 12th April, 1856. The ship Pilgrim was put up 
 in London as a general ship by Syers, Walker & Co., and goods 
 were shipped on board of her by several merchants in London, 
 consigned to their respective correspondents at Singapore, for 
 which bills of lading were given by the defendant, and amongst 
 other goods so shipped, 220 bales of merchandize were put on 
 board by Syers, Walker & Co., expressed in their Invoices of the 
 same, dated 1st January, 1856, to have been shipped per Pilgrim, 
 London to Singapore, and consigned to Messrs. Joze d'Almeida & 
 Sons, for sale and returns on the freighters' account. 
 
 For these 220 bales of merchandize so shipped, a Bill of Lad- 
 ing was made out and signed by the defendant, dated at London, 
 2nd January, 1856, and handed to the freighters, stating, that 
 these 220 bales of merchandize were to be delivered at the Port 
 of Singapore to order or assigns, freight for the said goods to be 
 paid in London, ship lost or not lost. In the invoices of these 
 particular goods forwarded to the plaintiffs by the freighters, the 
 plaintiffs are debited with the value of their goods, including 
 
 freight and insurance to the amount of £3,885. 4. 6. 
 
 Mr. Joaquim D'Almeida, one of the plaintiffs, was in London 
 at the time these shipments were made ; and Syers, Walker & Co., 
 
Gray. 
 
 112 CIVIL OASES. 
 
 MoCatjs- then and there agreed with him that the Pilgrim should be 
 
 tA i856 E consigned to his firm at Singapore. 
 
 ' They also entered into an agreement with Joaquim D' Almeida, 
 
 D' Almeida before his departure from London, that they could draw on his 
 firm at Singapore, at three or four months' sight, for £3,400 
 against the Bill of Lading and a Policy of Insurance for 100 
 bales of mule twist, and 120 bales of piece goods per Pilgrim, 
 consigned to his firm at Singapore ; as appeared by the copy of 
 the letter dated at London, on the 17th January, 1856, and 
 addressed to Syers, Walker & Co. by Joaquim D'Almeida. 
 
 Accordingly, on the 18th January, 1856, a Bill of Ex- 
 change for Spanish Dollars 15,542.85 equivalent at the rate 
 of exchange to £3,400, was drawn by them on the plaintiff's 
 firm at Singapore, payable at sixty days after sight, and to be 
 placed to account of shipment per Pilgrim. This bill was endor- 
 sed over by the drawers to the London Agency of the North- 
 Western Bank of India, and was negotiated by them accompanied 
 with the collateral security of the Bill of Lading and Policy of 
 Insurance for the 220^ bales of merchandize abovementioned. 
 
 On the 9th February, 1856, this last mentioned Bill of Ex- 
 change was transmitted overland via Marseilles from the London 
 Agency of the North- Western Bank of India to David Duff, Esq., 
 their agent at Singapore, for realization ; and along with it was 
 sent the Bill of Lading which had been deposited with the bank 
 as collateral security. The overland mail, which was despatched 
 from London vid Marseilles, on Monday, the 11th February, 1856, 
 reached Singapore on Saturday, the 22nd March, 1856; and on 
 Monday, the 24th March, 1856, the Bill of Exchange so drawn on 
 the plaintiff's firm at Singapore, was unconditionally accepted by 
 the plaintiff Joze - D'Almeida in the name of the plaintiff's 
 firm at Singapore ; and, at the same time, the Bill of Lading 
 for the 220 bales of mule twist and piece goods, endorsed 
 in blank was transferred by Mr. Duff to the plaintiff, Joze" 
 D'Almeida, in pursuance of a written authority to that effect from 
 the freighters, bearing date at London, the 8th February, 1856, 
 and addressed by them to the London agency of the North- 
 western Bank of India, as holders of said Bill of Exchange, and, 
 by a letter, dated London, 9th February, 1856, and addressed by the 
 freighters to the plaintiffs' firm at Singapore, the invoices for the 
 220 bales of twist and piece goods were enclosed; and the plain- 
 tiffs were thereby informed that the bill, which had been drawn 
 on their firm at Singapore for £8,400, had been sold by the 
 drawers to the London and North- Western Bank of India, as 
 against the shipments by the Pilgrim, as per the invoices enclosed : 
 and the plaintiffs were further directed by said letter to quit the 
 goods of the freighters, so consigned to them, as they should 
 think fit, but not to miss a fair profit, where one could be realized. 
 This letter also apprized the plaintiffs at Singapore, that the 
 writers had been obliged to give the consignment of the Pilgrim 
 away to a larger shipper by her ; adding the words — " unfortu- 
 nately ; for she is chartered by us." The letter then goes on to treat 
 of previous consignments from the writers to the plaintiffs' firm 
 
STRAITS SETTLEMENTS. 
 
 113 
 
 at Singapore, as their agents and factors; and to make arrange- 
 ments with them as their agents for further proposed operations. 
 
 The Pilgrim sailed from London, on the 12th day of January, 
 1856, and arrived at Singapore on the 16th day of Jnne, 1856. 
 
 The cargo was in due course delivered ex- Pilgrim by the 
 defendant, her master, to its several consignees at Singapore, but 
 withholding from the plaintiffs the 220 hales of twist and 
 piece goods until his demand for the full amount of the 
 Pilgrim's outward freight to Singapore should be paid by the 
 plaintiffs, as assignees of the Bill of Lading of the goods of Syers, 
 Walker & Co., and this demand the defendant based upon the 
 contents of the Charter Party, a copy of which he had in his 
 possession, and also upon the fact, that, upon or shortly after 
 his arrival at Singapore, he had received notice from his employer, 
 the ship-owner, that the Bill of Exchange. for £450 had been 
 dishonored, and that the freighters had been declared Insolvents. 
 
 Under these circumstances, the plaintiffs commenced an 
 acbion of trover on the 15th July, 1856, claiming to recover 
 Spanish Dollars '2,800, for the wrongful detention by the defend- 
 ant, as is alleged, of thirty bales of No. 40, White Cotton Twist 
 or Mule Yarn of the value of" Spanish Dollars 2,520: to which 
 the defendant on the 29th July, 1856, filed a plea of not guilty. 
 The case was most ably argued before me, on the 21st August, 
 1856, by Mr. Napier for the plaintiffs, and by Mr. Aitken, for 
 the defendant. 
 
 For the defendant, it was contended that the moment the 
 freighters put their goods on board the Pilgrim, on the 1 st Jan- 
 uary, 1 856, the ship-owner's lien for the entire freight of the ship 
 attached upon their goods ; and could not be discharged by any 
 transactions which subsequently took place between the freighters 
 and the plaintiffs, whether in London or at Singapore. That by 
 the express terms of the Charter Party, the ship owner reserved 
 to himself a lien on the cargo for all freight, dead freight and 
 demurrage. That the Bill of. Lading was not conclusive as 
 between the ship-owner and the freighters ; and that the plaintiffs, 
 as assignees of the Bill of Lading, must hence take it subject to 
 all its equities in the hands of the freighters. That by the letter 
 of the freighters, dated 9th February, 1856, received by the plain- 
 tiffs at Singapore, on the 23rd March, 1856, the plaintiffs had 
 express notice that the Pilgrim was chartered by them ; and the 
 voyage being broken off by reason of their insolvency, there being 
 no agent of theirs at Singapore to procure a homeward cargo for 
 the ship, the goods of the freighters detained on board the ship 
 by the defendant, are liable to make good the ship-owner's claim 
 to be paid the full freight of his vessel for the outward voyage 
 upon a quantum meruit, irrespective of any contract, the terms of 
 which have not been observed by the freighters. 
 
 Now ships being articles of great value and the freights 
 amounting to large considerations, the Courts of Law have always 
 expressed a disposition to favour the right of lien for freight, 
 whether under Charter Parties or Bills of Lading; and have 
 accordingly, been very reluctant in admitting such doctrine of 
 
 McCatjs 
 
 LAND, E. 
 
 1856. 
 
 D' Almeida 
 
 v. 
 
 Gray. 
 
V. 
 
 Gbay. 
 
 114 CIVIL OASES, 
 
 McCAtis. constructive possession in the freighters even of a whole ship, 
 1A 1856. E ' as under strict rules oi law would divest the owner of the right of 
 
 ' lien ; a right with which no prudent ship-owner will readily part. 
 
 D* Almeida Upon this principle the Courts, in a series of decisions from 
 Vallejo v. Wheller, Cowp. 143, to Christie v. Lewis, 2 Brod. & 
 Bing. 410, have taken a distinction between those cases where 
 the ship itself is let out ; and those where the mere carriage, or 
 space of the ship is let out. In the first cases, the posses- 
 sion of the ship is clearly parted with, and belongs to the 
 freighters ; and in such cases, there being no possession, actual or 
 presumptive, reserved to the owner, there is no foundation for the 
 right or exercise of lien for freight. But where the capacity 
 or space of the ship is only let out, then the possession remains 
 with the ship-owner; and having an actual possession of the 
 goods, he may of course retain them, where necessary, in lien for 
 freight. The terms of the Charter Party, or the nature of the 
 service, must determine under which of these contracts the ship 
 is let ; and the right of lien will follow the nature of the original 
 agreement. But in almost all cases of this kind, the Court is 
 disposed, from motives of justice as well as policy, to favor the 
 lien of the owner. The language of a Charter Party must be 
 very strong indeed to exclude, under any circumstances, the lien 
 of the owner. Mere words of letting and hiring will not of them- 
 selves invest a party with the possession of the ship, if the other 
 provisions of the instrument and the nature of the contract qua- 
 lify and restrain the words, and shew that the hiring and letting 
 were not used in their positive sense and signification, but as 
 mere terms of contract for the whole capacity and use of the 
 vessel, and not as words of demise of the entire hull of the ship. 
 In the present case there are no words of demise contained in 
 the Charter Party ; the ship-owner keeps possession by his master 
 and his crew ; after discharging the outward cargo at Singapore, 
 the vessel is to load there or at Rangoon a full cargo from the 
 agents of the affreighters ; the cargoes are to be brought to and 
 taken away from alongside by the merchants themselves, and 
 at their risk and expense ; and being so loaded she is to proceed 
 on her homeward voyage as ordered at the port of lading. To 
 use the words of Lord Tenterden in the case of Saville v. Cam- 
 pion, 2 B. & Aid. 503 — " It would be an act of great imprudence 
 " on the part of the ship-owner to en ter into a contract which 
 " may have the effect of employing his ship for a long time, and 
 " at a great expense to himself, without any remuneration, if the 
 " person with whom he contracts should happen to fail before the 
 " termination of the voyage." I am, therefore, disposed to interpret 
 this Charter Party in a sense agreeable to the nature of the con- 
 tract that a prudent ship-owner would make, preserving to the 
 owner the possession of his ship, and his lien for freight on the 
 goods carried by her. But it is contended on the part of the plain- 
 tiffs that in the present case it would be unreasonable and contrary 
 to the intention of the contracting parties to enforce this right 
 of lien, the owner having expressed his intention to take the per- 
 sonal security of the freighters for his demand, and having in 
 
STRAITS SETTLEMENTS. 
 
 115 
 
 V. 
 
 Gray. 
 
 part carried that intention into execution by the drawing of the MoOat^. 
 bill of the 8th January, 1856, upon them, at 3 months for £450 LA ^' 6> ' 
 
 for freight, as per Charter of the 6th December, 1855. To this ' 
 
 proposition, I cannot assent ; the right of the ship-owner to resort D'Almeida 
 to the cargo for payment of so much of the freight was only 
 suspended during the time this bill had to run ; and his right of 
 lien revived the moment his bill was dishonored bythe freighters, 
 provided any portion of the cargo remained in his possession at 
 the time he had notice of the dishonor. [See Stevenson v. Black- 
 lock, I. M. & Sel. 535.] If he had negotiated this bill for value, 
 and without rendering himself liable upon it, it would have 
 operated as payment though dishonored ; but having negotiated 
 it so as to render himself personally liable upon it, it did not 
 operate as payment when dishonored, and therefore he had a 
 right, by the hands of the defendant as his servant, to retain the 
 goods in hia possession and not delivered. [See Bunney v. Poyntz, 
 4 B. & Aid. 568 ; and Miles v. Gorton, 2 Cr. & Mee. 504.] 
 
 Now with respect to the extent of the lien of the owner, he 
 has clearly a lien for the whole freight against the goods of the 
 freighter. In Molloy's Treatise de Jure Maritimo, page 528, it is 
 thus written — " The lading of the ship in the construction of the 
 " Law is tacitly obliged for the freight ; the same being, in point 
 " of payment, preferred before any other debts to which the 
 " goods so laden are liable, though such debts, as to point of 
 " time, were precedent to the freight ; for the goods remain as it 
 " were bailed for the same, nor can they be attached in the 
 " master's hands, [though vulgarly it is conceived otherwise.]" 
 With respect, however, to the goods of the sub-freighters the 
 owner's lien is of a more limited extent ; and he is entitled to 
 receive from each sub-freighter, or the consignee of such sub* 
 freighter, no more than is due for the conveyance of his particu-. 
 lar goods, Paul v. Birch, 2 Atk. 261 ; Christie v. Lewis, 2 B. & 
 B. 410 ; and Faith v. East India Company, 4 B. & Aid., 630. 
 The considerations are, perhaps, not necessary in deciding the 
 present case, for the owner is, by the express terms of the Charter 
 Party, " to have a lien on the cargo, for all freight, dead freight 
 " and demurrage." 
 
 But, it is further contended on the part of the plaintiffs, 
 that they had no notice of the existence of this Charter Party, 
 and that their rights are those of assignees for value of the Bill 
 of Lading without notice of this Charter Party, either express or 
 implied. 
 
 There is no direct evidence to fix Joaquim D'Almeida with 
 notice of it, though it is hardly possible to suppose that, when he 
 entered into an agreement with the freighters in London, in 
 January, 1856, to consign the vessel to bis firm at Singapore, he 
 should not have been aware that the vessel, was chartered by the 
 freighters. But, as to his partner Mr. Joze D'Almeida, it appears 
 from the letter of the freighters, bearing date the 9th February, 
 1856, which was received at Singapore, on the 23rd of March 
 following, that he must have known upon that day, and before he 
 accepted the bill for £3,400 on the 24th, not only that, the vessel 
 
ne 
 
 CIVIL OASES. 
 
 McCatjb- 
 
 LA.ND, E. 
 
 1856. 
 
 Gbat. 
 
 was chartered by the freighters; but that the consignment of 
 the vessel had been taken away by the freighters from the plain- 
 tiff's firm, and given to another larger shipper by her, Messrs. 
 D' Almeida A. L. Johnston & Co., of Singapore ; — " unfortunately" as 
 the writers add. Besides, the same letter mentions that at 
 the time of writing it, Mr. Joaquini D' Almeida was on the 
 continent ; and that fact is suggested by the freighters as an 
 excuse for not being able to get him to alter the terms of the 
 letter he had given to them, authorising them to draw on the firm 
 at Singapore at three or four months' sight for £3,400, instead of 
 which the bill is mentioned, as having been drawn by them at 60 
 days after sight. It was surely no more than what common atten- 
 tion to their own interest required, for Mr. Joze' D' Almeida to have 
 made some enquiry, as to the relations in which the freighters 
 stood towards the owner of the ship under their Charter, as well 
 as towards the plaintiffs themselves, before he pledged the good 
 faith of his firm by his unconditional acceptance of the freight- 
 ers' bill for £3,400. 
 
 It was a fraud on the part of the freighters to include the 
 amount of the freight in the consideration for the bill for £3,400, 
 of which it formed a part, and which they negotiated for value 
 with the London' and North-Western Bank of India, and then 
 dishonor their acceptance of the owner's bill for £450, drawn on 
 them on account of this same freight ; and to entrap the plaintiffs 
 into becoming assignees of the Bill of Lading subject to all its 
 liabilities in the hands of the freighters, and therefore liable to 
 pay the entire amount of freight that was due by them. Again, 
 referring to the Treatise of Molloy de Jure Maritimo, page 257, it is 
 stated : " The Charter Party does settle the agreement, and the 
 " Bills of Lading the contents of the cargo; and binds the Master to 
 " deliver them well conditioned, at the place of discharge, accord- 
 " ing to the contents of the Charter Party or agreement." In 
 this case the Charter Party did settle the agreement between 
 • the owner and the freighters, and the Bill of Lading was conclu- 
 sive only as to the contents of the goods described in it, and 
 in binding the master to deliver them up in good order and con- 
 dition at the port of Singapore. It could not operate as an 
 estoppel between the owner and the freighters, nor between the 
 defendant, as the servant of the owner, and the plaintiffs as 
 assignees of the freighters, nor could its transfer, impair or 
 diminish the exercise of the owner's right of lien on the goods 
 described in it. Whatever, therefore, maybe the hardship of this 
 case, it appears to me that the title of the owner to his lien on the 
 goods of the freighters is prior in point of time to that of the 
 plaintiffs as indorsees of the Bill of Lading, and is to be preferred 
 to the plaintiffs title under the indorsement, — [see Small v. Moates, 
 9 Bing. 574], and consequently there must be judgment for the 
 defendant, with costs. 
 
STRAITS SETTLEMENTS. 117 
 
 CHASSEEIAU v. MATHIEU & CO. 
 
 Plaintiff and defendants entered into a contract in writing, by which plaintiff Pbnang. 
 
 " engaged to deliver to the defendants, all sugar manufactured on his estate from 1st 
 
 " October 1857, to 30th June, 1858, both inclusive." Maxwell, E. 
 
 Held, that what was meant by the contract was, not that the deliveries should be 1858. 
 
 made between the dates in question, but only that the sugar should be manufactured 
 
 between those dates — and that the defendants were bound to accept all sugar manu- August 18. 
 
 factured on or before the latter date, and which was tended to him within a reasonable 
 
 time thereafter. 
 
 The sugar was tendered by plaintiff on the 12th July, 1858, 
 
 Held, this was. within a reasonable time. 
 
 The sugar tendered, however, on that date (12th July) was in boxes, undergoing 
 the process by which molasses are finally separated from the granulated sugar ; and 
 though the upper portion in each box was what in commerce would be considered 
 "sugar," still the whole mass taken together would not be so considered — though 
 planters would call it sugar. 
 
 Held, that the article tendered was not "sugar" manufactured by the 30th June, 
 and the defendants were not, therefore, bound to accept same, nor even that portion of it 
 as had granulated, but which could not be separated from the rest. 
 
 Query. "Whether if the separation could have been effected, the defendants were 
 bound to have done so, and to accept the granulated portion ? 
 
 This was an action for the non-acceptance of certain quanti- 
 ties of sugar.. The facts and points raised sufficiently appear in 
 the judgment. 
 
 The parties appeared in person. 
 
 Cur. Adv. Vult. 
 
 August 23. Maxwell, R. In this case the plaintiff sued the 
 defendant for refusing to accept 200 piculs of sugar in pursuance 
 of a contract, of which the only material portions for the pur- 
 poses of the question between the parties are the following : 
 
 " 1st. — Mr. Chasseriau engages to deliver to Messrs. -Mathieu 
 & Co., all sugar manufactured on his property, Tuddenham Estate, 
 from the 1st of October, 1857, to the 30th of June, 1858, both in- 
 clusive ; the quantity estimated between 3,500 aud 5,000 piculs. 
 
 " 2nd. — Messrs. Mathieu & Co., engage to pay him at the rate 
 of $6£ per picul for the first and second qualities, on the condi- 
 tion that the sugar shall be perfectly dry, and that it shall not be 
 inferior to the musters given by Mr. Chasseriau. The 2nd quality 
 not to exceed 15 per cent. 
 
 "3rd. — The payments to be made on the delivery of the sugar." 
 
 On the 30th June, the plaintiff wrote to the defendant, "I have 
 " the pleasure to let you know that my crop is finished, and also 
 " to inform you that I have in my sugar boxes, about 230 piculs 
 " of sugar fabricated for you according to our contract. I will 
 " make all dispatch to send it to you, and hope to do so before 
 " the 10th of July." 
 
 To this letter the defendant replied on the 1st July, that the 
 contract was at an end on the preceding day; and when sugar to 
 the amount of 200 piculs was tendered to the plaintiff on the 12th 
 of July, he declined to receive it. 
 
 It appeared at the trial, on the 18tb instant, that no part of 
 the sugar in question was, on the 30th. of June, perfectly dry or 
 equal to sample. It was in boxes undergoing the process by 
 which the molasses are finally separated from the granulated 
 
118 CIVIL CASES. 
 
 Maxwell, E. sugar. The upper portion of it in each box was, what would in 
 
 1858 - commerce be considered sugar; but the whole mass taken together 
 
 Chassebiau would not, according to the evidence of the witnesses, come under 
 
 v. any of the known qualities of sugar in the market. It appeared, 
 
 Mathieu however, that planters would call the whole sugar ; for they call 
 
 °' the substance by that name as it is granulated. 
 
 It was contended by the plaintiff that the sugar in question was 
 manufactured on or before the 30th of June, within the true mean- 
 ing of the contract, and that the defendant was therefore bound 
 to accept it. The defendant, on the other hand, insisted that he 
 was not bound to accept any sugar whatever, after the 30th of 
 June; but that if he was, the sugar which had been tendered to 
 him was not, on that day, such sugar as he was bound to accept. 
 I held, at the time, that the meaning of the contract was, 
 not that the deliveries should be made between October and June, 
 but that the sugar should be manufactured within those dates. 
 If the period of time had been intended to apply to the delivery 
 of the sugar, the words would have occurred earlier in the 
 sentence. The agreement would have stated that Mr. Chasseriau 
 engaged to deliver between October and June all sugars manu- 
 factured, &c, and not, that he engaged to deliver all sugar manu- 
 factured between October and June. The words cannot gram- 
 matically refer to both delivery and manufacture, and if I were at 
 liberty to speculate on what the parties may possibly have meant, 
 I should doubt whether the words were really intended to refer, 
 to both ; for the parties can hardly have intended that sugar only 
 manufactured on the 30th of June, should be packed, transported 
 and delivered on the same day. I therefore held that the defend- 
 ant was bound to receive all sugar manufactured on or before the 
 30th of June, which was tendered to him within a reasonable 
 time after that day. 
 
 The question then arose whether the sugar tendered on the 
 12th of July, which I thought a reasonable time, was, on the 30th 
 of June such manufactured sugar as the defendant was bound to 
 accept; and, on consideration, I think that it was not. 
 
 It is not necessary to enquire in what sense the word " sugar " 
 must be understood in a mercantile contract such as this ; for I 
 think that the parties have given their own definition of the word 
 in their agreement. Although the plaintiff undertakes to deliver 
 all sugar manufactured on his estate, generally, that which alone 
 . the defendant contracts to receive is sugar which, besides being 
 manufactured there, possesses the two additional qualifications of 
 being perfectly dry and equal to sample ; and this is, I think, the 
 only kind of " sugar" which was the subject of the contract. It is 
 the only kind of sugar which was, in the contemplation of the 
 parties, to be manufactured between the 1st of October and the 
 30th of June. The sugar tendered was not, the plaintiff admits, 
 of that description at any time between those dates ; it was not, 
 at the date, what both parties understood by sugar when they 
 contracted to deliver and accept sugar; and it was not, therefore, 
 in my opinion, such sugar then, as the defendant was subse- 
 quently bound to accept. 
 
STRAITS SETTLEMENTS. 119 
 
 If I am wrong, however, in the view of the case, I think, Maxwell, R. 
 
 the plaintiff would still fail in this action. If I were to reject ' 
 
 the meaning which, I think, the parties have attached to the Chasberiau 
 term, I should still have to decide what the parties meant by it, »■ 
 
 and I should hold that when a planter agrees to supply a mer- T ^™ 
 chant with sugar manufactured on his property, the intention 
 is that the substance shall be in that condition in which it is 
 recognised as sugar in the market of the world, — this being the 
 general or popular meaning of the word, and there being no 
 adequare reason for giving it any other. Now, of the whole 
 quantity tendered for acceptance, the plaintiff admits that only a 
 portion was in the condition of marketable sugar on the 30th of 
 June. The defendant, then, would not have been bound to accept 
 more than that portion, but as more was tendered, and it was 
 not in his power, from the nature of the article, to separate the 
 part which might have been properly tendered, from that which 
 he was not obliged to take, he was at liberty to reject the whole. 
 Even, if he could have made the separation, it is very doubtful, 
 whether, he would have been bound to do so. The Court of 
 Queen's Bench was recently divided on the point [a]. For these 
 reasons, I think, that the defendant is entitled to judgment. 
 
 IBBETSON v. BROWN. 
 
 The cancellation of a deed, does not, in law, divest the estate out of the person in Penang. 
 whom it was vested by the deed. 
 
 Where land is first described in a deed by name, or by distinct ascertained bouu- Maxwell, E. 
 daries, any additional description inconsistent with the first, has no effect. 135S. 
 
 Thus, if lands are conveyed by definite boundaries, but is subsequently by the 
 
 same deed said to contain a certain area,, but it is afterwards discovered that such area Sept. 11. 
 is either more or less than that which is actually contained within the boundaries given, 
 such additional description of the area in the deed is immaterial, and will be rejected. 
 
 Query. "Will equity relieve in such a case between the parties, by awarding com- 
 pensation ? 
 
 Where land is conveyed by distinct boundaries, the representation of either of the 
 parties to the other, that the land contains a certains area, is immaterial, — unless it. is 
 proved that such representations were made fraudulently, and knowing them to be false. 
 
 This was an action of ejectment. The facts giving rise to 
 same, and points of law arising therein, are so fully set out in the 
 judgment, that they need no mention here. 
 
 Plaintiff in person. 
 
 Branson, for defendant. 
 
 Cur. Adv. Vull. 
 
 September 25. Maxwell, R. In this case, the question which I 
 have to decide is, whether the plaintiff is entitled to a piece of jungle 
 land lying to the northward of the hedge of his spice plantation in 
 the district of Ayer Itam. This question has arisen in consequence, 
 partly, of the great laxity which formerly prevailed on the part of 
 
 [a] Levy v. Green, 27 L. J. Q. B. 111. See Hart v. Mills, 15 M. & W. 83, 
 
120 CIVIL CASES. 
 
 Maxwell, E. the local authorities in describing, in their grants, the boundaries 
 1858- and the areas of the lands granted, and partly also, of the negli- 
 Ibbjstson gence of land-holders in marking out their boundaries upon the 
 v. ground. The cause of this negligence is clear enough in the 
 Beown. present case, since both parties to the action, if agreed on no 
 other point, concur in admitting that the land in dispute is almost 
 of no value. This circumstance, however, though it may make the 
 result of the decision a matter of little importance to them, in no 
 way affects, I need hardly say, the difficulty of the question to 
 be solved; and I have given the subject, therefore, as careful a 
 consideration as if the fortunes of the litigants were at stake. I 
 have done more ; as the parties are not lawyers, and one of them 
 has not had the advantage of legal assistance, I have gone into 
 the question with a degree of minuteness which under other cir- 
 cumstances I should not have thought necessary ; because I wish 
 that the parties should not only know what my decision is, but 
 understand exactly the grounds of it. 
 
 The facts of the case are these. The late Mr. Brown was 
 seised among many other lands, of two pieces comprised in two 
 Government grants dated 1805, and numbered respectively 1618 
 and 1667. The land comprised in the former was described as 
 granted to Mr. Christopher Smith, and as bounded to the east 
 and south by the Ayer Itam road, to the north by Capt. Scott's 
 ground, and to the west by a river and the Company's ground. 
 The first three boundaries were from the beginning, clearly 
 marked and ascertained. Capt. Scott's ground is bounded by a 
 ditch, about which there is no more dispute than there is or can 
 be about the Ayer Itam road, for I see it is mentioned as already 
 in existence in the grant of Scotland estate which is dated 1802. 
 The length of those boundaries also is given. The eastern measures, 
 5 orlongs; the northern, 16 orlongs 10 jumbas; the southern, 
 13 orlongs 7 jumbas. The two western extremities of the 
 last two boundaries are consequently accurately ascertained ; but 
 the western limit cannot be laid down according to the language 
 of the grant. It is described as measuring 6 orlongs 17 jumbas, 
 whereas the shortest line that could be drawn to unite the 
 two western ends of the road and ditch would be nearly double 
 that length. The land comprised in the grant was estimated at 
 88 orlongs 8 jumbas ; but such a line as I have supposed for the 
 western boundary would includewithin it and the as.certainedlimits, 
 a much larger area. In 1809, however, the Government Surveyor, 
 Mr. McCarthy, make a survey of this part of the. Island. By what 
 means he laid down the western boundary — whether he found it 
 already marked by a ditch or hedge, or whether he followed any 
 stream, or the limits of cultivation, Or of actual possession by 
 Mr. Smith, does not appear ; but his map shews a distinct line at 
 the western end, uniting the road and Capt. Scott's ditch ; and 
 the reference book which accompanies it, states that the grant 
 1618 contained 125 orlongs 19 jumbas, that it was under cultiva- 
 tion with pepper, and that it was bounded by the Ayer Itam road, 
 Scotland estate and "the hills," — by which "forest" was probably 
 meant, as the land to the westward continues flat for some dis- 
 
STRAITS SETTLEMENTS. 121 
 
 tance. Whether this survey was correct or not, is immaterial. It Maxwell, K. 
 is evidence, and strong evidence, that whatever blunders may have 1858 ' 
 occurred in describing the western boundary, or in estimating the Ibbbtson 
 area of the land granted by this grant, that boundary was fixed as v. 
 
 far back as nearly 50 years ago, and the land held under the Brown. 
 grant by the grantee consisted of about 125 orlongs. There is no 
 evidence that this boundary was ever changed or the area dimin- 
 ished; and the letter of the plaintiff of the 23rd of October, 
 1833, to which I shall presently refer, shews that at that time it 
 was in the same .condition. This estate was purchased by Mr. 
 Brown, and with the exception of a small portion, — five orlongs, 
 at its south eastern extremity, which were sold in 1815, — he 
 died seised of the whole of it. 
 
 The position of grant 1,667 has, perhaps, never been accu- 
 rately ascertained, but it is admitted by the parties that it lies, 
 in part at least, to the westward, and adjoins' grant 1,618, and 
 that it comprises the land in dispute which is enough for the 
 purposes of this action. 
 
 By a deed dated 5th Mareh, 1833, George Stuart, one of the 
 Executors of Mr. Brown, conveyed to the plaintiff, in consider- 
 ation of 1,000 dollars, all that piece of ground, &c, being part 
 and parcel of a larger piece more particularly mentioned and 
 described in grant 1,667, and forming part of the *pice concern. 
 The deed then described the land conveyed by its boundaries, the 
 north-western being " the hills, and measuring on that side 16 
 " orlongs, 18 jumbas," [4,056 feet], and added that the area was 
 estimated at 100 orlongs 7^ jumbas. No question has been 
 raised as to Mr. Stuart's power to convey this land, and, there- 
 fore, I assume that he had it. 
 
 On the 23rd October, 1833, the plaintiff wrote to Mr. David 
 Wordlaw Brown, the son and devisee and another of the Execu- 
 tors of the late Mr. Brown $,." the ground I want at Ayer Itam is 
 " just the whole of that which I first spoke to you about, viz : — 
 " formerly Smith's property, and now bounded by Harrow's 
 " ground, my ground, and the road to Amee's mills." That 
 road is obviously the Ayer Itam Road, Harrow's ground, it is 
 admitted, is Scotland Estate, or the property described in the old 
 grant numbered 1,618 as Captain Scott's ground, and " my 
 " ground," must mean the portion of the land which the plaintiff 
 had purchased.^ In a word, this letter points plainly to the land 
 in grant 1,618, as described and laid down in McCarthy's survey. 
 
 Some doubts appear to have occurred about this time, as to 
 whether the land purchased in March was wholly comprised in 
 grant 1,667, or whether a portion of it was not included in 
 grant 1,687 ; and an arrangement was accordingly proposed by 
 the plaintiff to Mr. David Wordlaw Brown, which is best de- 
 scribed in a letter which he drew up, and which was to be addressed 
 to him by Mr. Brown. " With reference" says this letter, " to the 
 " survey we had this morning, and to the doubts, as to whether the 
 " 100 orlongs I lately sold you at Ayer Itam is, as stated in the 
 " Bill of Sale, a part of grant 1 ,667, or, whether, it does not also 
 " include grant 1,687, 1 have not the slightest objection to renew 
 
122 CIVIL CASES, 
 
 Maxwell, E. r modify the Bill of Sale in any way that will satisfy your mind ; 
 
 1858. an( j ag you are desirous of purchasing the property adjoining, 
 
 Ibbetson vie: grant No. 1,618, together with the small piece of jungle 
 
 «. suppose to he part of grant 1,670, the most satisfactory 
 
 Bkown. wav f arranging the matter will probably be [it being impossible 
 
 to define the boundaries of each part] to cancel the present 
 
 Bill of Sale for another commencing : " In consideration of the 
 
 " sum of 2,000 dollars, I hereby sell the land at Ayer Itam, esti- 
 
 " mated to contain about 200 orlongs, bounded as follows." The 
 
 letter then states the boundaries in the sauie termsas they are 
 
 described in the deed of November, hereafter mentioned, with 
 
 the exception of the northern, which is said to be a line drawn 
 
 round the hills. 
 
 It appears, then, that the plaintiff's object, and the object 
 of Mr. D. W. Brown, if he wrote that letter or otherwise 
 adopted it, was twofold; first, that the plaintiff's title to the 
 land bought in March should be confirmed, and secondly, that all 
 the land that Smith had held under grant 1,618 should be convey- 
 ed to the plaintiff. 
 
 By a deed poll, dated the 11th November, 1833, George 
 Stuart and D. W. Brown, as Executors of the late Mr. Brown, 
 conveyed to the plaintiff, in consideration of 2,000 dollars, certain 
 pieces and parcels of land which were described in the first place 
 as consisting of, — 
 
 [a] The whole of the land comprised in grant 1,687. 
 [6] A portion of the land comprised in grant 1,667. 
 
 [c] The remaining portion of the land in grant 1,618. 
 
 [d] A portion of the land in grant 1,670. 
 
 These parcels were next described as being enclosed within 
 certain boundaries, viz : on the east by the Ayer Itam Road 1,080 
 feet, on the south the same road to the boundary of Amee's mills 
 and boundary hedge, and old road to the Flag Staff, measuring 
 5,680 feet, on the west by the same hedge and road, 1,350 feet, to 
 the foot of a range of hills. Returning to the eastern boundary, 
 the 'deed described the land as being bounded to the northward 
 by the property of the children of Haroo for 4,300 feet, ending 
 also at the foot of a range of hills. These boundaries, I may 
 observe before proceeding further, comprise the three boundaries 
 of grant 1,618 which were always free from difficulty. The east- 
 ern boundary is exactly the east boundai'y of grant 1,618 ; and so 
 is the northern, Captain Scott's ground, or Scotland Estate, then 
 belonging to Haroo's children ; and the southern is the southern 
 boundary of grant 1,618 protracted about 2,400 feet. 
 
 The whole area is then closed as follows : — " The two points 
 " ending at the foot of the hills are connected by a line drawn 
 " from one to the other a little above the base of them, and mea- 
 " suring about 6,000 feet bounded all the way by the Honorable 
 " Company's lands or original forest." 
 
 The deed then states, that the area of the tract thus bounded 
 as " estimated to contain 200 orlongs, as per plan and survey 
 " thereof signed" by the vendors, excepting the few orlongs sold 
 in 1815. This explains what the deed meant by " the remaining 
 
STRAITS SETTLEMENTS. 123 
 
 " part of 1,618." It meant the whole of 1,618 minus these five Ma: ^ LjK ' 
 
 orlongs. The plan and survey referred to are not now forth- ' 
 
 coming. The plaintiff tendered a plan which was said by Mr. Ibbbtson 
 Loureiro, of the Land Office, .to bear the hand-writing of Long v - 
 Mahomed Ali, the Government Surveyor in 1833, and which was Bkown - 
 also proved to bear the hand-writing of Mr. Charles Scott, who 
 ceased to be the plaintiff's agent in 1841 or 1842; but, as it was 
 not signed by the vendors, nor proved to be a copy of that which 
 was so signed, I think, it is not evidence against the defendant in 
 this action. 
 
 Shortly after the purchase, the plaintiff returned to Europe, 
 leaving his newly purchased property in the hands of the gentle- 
 man just mentioned, Mr. Scott, who proceeded to form a nutmeg 
 plantation upon that part of the land which lies south of the boun- 
 dary in dispute and enclosed the trees within a bamboo hedge. 
 The land in dispute lies chiefly to the north of that hedge, and 
 the plaintiff gave some general evidence of acts of ownership done 
 by him through his servants ; that is, they cut wood there when 
 they wanted it. The defendant also proved similar acts done by 
 him as the agent of Mr. D. W. Brown ; but as none of these 
 acts date farther back than 1850, I am of opinion that if the land 
 was ever conveyed to the plaintiff he has not lost his right to it by 
 lapse of time. It was not, in fact, until 1849 or 1850, that any part 
 of the land oeyond the plaintiff's boundary was supposed to belong 
 to Mr. Brown, or was claimed or occupied by him. In the deeds 
 of 1833 the plaintiff's land was described as bounded by land 
 belonging to the Company, and as far as the evidence before me 
 goes, it continued to be so regarded until about the time I have 
 just mentioned, when Mr. Moniot, the Government Surveyor, in 
 surveying the district, considered that the remainder of grant 
 1667 lay in that direction. 
 
 The question upon which this action turns, is what land, and 
 what quantity of land became vested in the plaintiff on the 
 execution of the second deed. The plaintiff contends that he was 
 thereby confirmed in his right to the 100 orlongs which he pur- 
 chased in March, and further that he acquired the whole of the 
 land held under grant 1618, as laid down in Mr. McCarthy's 
 survey, minus the five orlongs sold in the year 1815. But, the 
 defendant contends that no more than about 200 orlongs ever were 
 vested in the plaintiff ; and I understand his argument in support 
 of this view to amount to this : — that the transaction of March 
 was annulled, and must be treated as if it had never taken 
 place; that the transaction of November was, in substance and 
 effect, a purchase of 200 orlongs at ten dollars an orlong ; and 
 that as the area within the admitted boundaries and the planta- 
 tion hedge measured 215 orlongs, which is the fact, the plaintiff 
 had within that hedge all, yea more than all, that he was entitled 
 to. 
 
 I think this reasoning erroneous. In the first place, the t 
 defendant has mis-apprehended the effect of the cancellation of ; 
 the deed of March. The cancellation of the deed does not, in 
 law, divest the estate out of the person in whom it was vested by 
 
124 CIVIL OASES. 
 
 Maxwell, e. the deed. "I hold it clearly," says Eyre, C. J. in Bolton v. 
 1858 - Carlisle, 2 H. Blacks : 259, " that the cancelling a deed will not 
 Ibbbtson " divest property which has once vested, by transmutation of 
 o- " possession." In Hudson's Case, Prec. in Ch. 235, a father, 
 
 Bbown. a ft er a quarrel with his eldest son, executed a deed settling £100 
 a year on his wife. He afterwards became reconciled with his 
 son and cancelled the deed. But the instrument, upon proof of 
 its having been duly executed, was held a good and valid deed, 
 notwithstanding its cancelled state. So, when a lease was deli- 
 vered up and cancelled upon the tenant getting a new one, and 
 the latter lease turned out to be void, it was held that the old one 
 was still good, and might be set up by the tenant in an action of 
 ejectment, Roe v. Archbishop of York, 6 East, 86. But treating 
 the question as one purely of intention, I do not think that in 
 the present, case, the cancellation was designed to have the effect 
 of divesting the. property out of the plaintiff. I see no ground 
 for supposing that the parties desired that the transaction of 
 March should be revoked or rescinded, and that they should begin 
 it again de novo, I think, indeed, that they would have been much 
 surprised, if they had learned that the effect of the second trans- 
 action would be to take away from the plaintiff any part of the 
 land which he had already bought, what the parties intended, it 
 seems to me, was to confirm the first purchase, and to include 
 both lands in one deed and within one boundary ; or in the words 
 of the defendant in his letter of the 8th of January last, " to 
 " lump into one Bill of Sale" the two purchases. The letter 
 which was drafted by the plaintiff for Mr. D. W. Brown to serye 
 as instructions for drawing the deed of November, and which, 
 whether written or not, was evidently adopted by him, as the 
 defendant himself represented, shews clearly what their intention 
 was. " With reference to the doubts," it says, " as to whether 
 " the 200 orlongs, I lately sold you at Ayer Itam is, as stated in 
 " the Bill of Sale, part of grant 1,667, or whether it does not 
 " include also grant 1,687, I have not the slightest objection to 
 " renew or modify the Bill of Sale in any way that will satisfy 
 " your mind." The object aimed at was manifest : by the confirm- 
 ation, not the rescission of the sale of March ; and the cancellation 
 of the deed had not the effect of thwarting that end. Even, if 
 that deed be treated as void ab initio, conveying nothing to the 
 plaintiff, it seems clear that the parties desired, not to treat 
 it as such, but to give it all the effect they could by another 
 instrument. 
 
 It follows, then, that the land conveyed to the plaintiff in' 
 March continued vested in him ; and what the quantity of that 
 land was, is not disputed. It was 100 orlongs. Nor is it now 
 disputed that the piece of land conveyed in March was wholly 
 comprised in grant 1,667 ; for the parties concur in stating grant 
 1,687, which, it was thought in November might perhaps include 
 a portion of it, lies in a totally different direction, where, then, 
 are the 100 orlongs in question ? The defendant contends that 
 they are to be fouud south of the plaintiff's plantation hedge ; 
 and he makes this out thus :— Grant 1,618, he says, is mis- 
 
STRAITS SETTLEMENTS. 125 
 
 described by McCarthy ; its true position is represented by an area Maxwell, R. 
 of about 88 orlongs enclosed by the Ayer Itam Eoad on the east 1858 - 
 and south, and on the north by a line, no longer following the i BB etson 
 ditch of Scotland Estate, it is true, but meeting another line v. 
 
 of 6 orlongs 17 jumbas in length, which unites it with the south Bbown. 
 limit, and forms the western boundary. We thus preserve the 
 east and south boundary of the grant ; we get at the west, 
 a boundary of the exact length given in the grant ; and we get* 
 further, exactly the area which the grant was estimated to com- 
 prise. The space between the proposed north houndary and the 
 ditch of Scotland is part of grant 1,667, and just supplies the 
 quantity of the grant which the defendant says, he has not got ; 
 and as that grant was made to Christopher Smith and Captain 
 Scott, the land comprised in it may not inappropriately have 
 been called Ca,ptain Scott's ground. Thus the northern boundary 
 now proposed answers the description given in the grant, for the 
 land would be bounded on that side by Captain Scott's ground. 
 In fewer words, the defendant suggests that McCarthy's west 
 boundary should be shortened to the length given in the grant, 
 and that the north boundary should be moved down to meet the 
 shortened line. The date of grant 1,667, however, offers a 
 difficulty to this arrangement ; for it was not granted till a 
 month after grant 1,618, and the land comprised in it could 
 therefore hardly have been described in the earlier grant as 
 Captain Scott's ; nor is it likely that Mr. Smith would have had 
 land which belonged to himself and Captain Scott jointly, de- 
 scribed in another grant as Captain Scott's exclusively. Grant 
 1,618 then, could not have been laid down, even in McCarthy's 
 time in the manner proposed. But independently of these trifl- 
 ing points of detail, far graver objections arise. The defendant 
 has forgotten how important an element time is in questions jof 
 this kind. Even, if this theory were not open to the palpable 
 objections just indicated, it would be out of the question to 
 change boundaries which have been ascertained and defined for 
 half a century, and according to which the land has been known 
 and enjoyed during all that time. 
 
 But there is another and even more obvious objection to this 
 proposition. Read the grant 1,667 as you will, it is impossible to 
 place any portion of the land comprised in it, within that long 
 angular space between Scotland ditch and the proposed north 
 boundary. Even if it were, there would remain the difficulty of 
 shewing that that portion was comprised in the deed of March. If 
 the boundaries given by that deed are considered, it is impossible 
 to find any portion of the land thereby conveyed, within that 
 space. The property then conveyed would have been described as 
 bounded on the north in part by Scotland estate, and south in 
 part by Brown's, formerly Smith's land ; but nothing of the kind, 
 nothing reconcilable with such a description, is to be found. 
 Again, the plaintiff,, as the defendant mentions in one of his let- 
 ters, took possession of his first purchase in March, eight months 
 before the second purchase ; but it has not been shewn or even 
 suggested that he entered upon the angular piece of land now 
 
Bbown. 
 
 126 CIVIL CASES. 
 
 ^axweiljE. u n c[ er consideration. If he had, he would hardly have described 
 
 " in November the land which he desired to purchase, Smith's 
 
 Ibbetson ground, as bounded by Haroo's. In short, what the plaintiff 
 •• obtained by the deed of March was not simply 100 orlongs of 
 
 grant 1,667, but a hundred specific orlongs bounded within given 
 boundaries, and the piece of land in question, even if it was part 
 of that which was included in grant 1667, is manifestly not part 
 of the specific 100 orlongs conveyed to the plaintiff in March. 
 
 Immediately before the execution of the deed of November, 
 then, the plaintiff stood seised of 100 orlongs, part of grant 1,667; 
 and those orlongs did not lie within the boundaries assigned by 
 McCarthy to grant 1,618. If this be so, the plaintiff has not got 
 those 100 orlongs within the plantation hedge and his other 
 boundaries, and it is admitted that if there be a deficiency in his 
 quantity, it must be made good from the land in dispute. This is 
 enough to entitle the plaintiff to judgmenf; in the present action. 
 But it may be as well to consider further the defendant's proposi- 
 tion, that the real bargain between the parties was for 200 orlongs 
 or thereabouts and no more. Let us see, in the first place, what 
 it was that the plaintiff desired to buy. Having already 100 or- 
 longs, he writes to purchase another jpiece of land. How does he 
 describe it ? Not as 100 orlongs of land lying near his first pur- 
 chase, but as " the whole of that which I first spoke to you about, 
 " viz : formerly Smith's property, and now bounded by Harrow's 
 " ground, my ground, and the road to Amee's mill." He does not 
 say a word about the quantity. He asks for the whole of Smith's 
 land, let it measure what it may. In the next place, what did 
 the vendors intend to. sell? By the deed of November, besides 
 confirming the first purchase, they convey " the remaining part of 
 "the land comprised in grant 1,618," — that is the whole minus 
 the five orlongs sold in 1815. If the deed had stopped here, there 
 would have been no room for doubt. But taking his land and the 
 land of grant 1,667 together ; it estimates the aggregate area at 
 at 200 orlongs; and as the first purchase consisted of 100, it 
 follows that the second was estimated at the same amount. This 
 estimated amount, the defendant contends, must be taken to con- 
 trol the previous more general description, and that amount 
 therefore alone passed. But this is an error. The rule is well 
 established, that where land is first described by its name, or by 
 distinct ascertained boundaries, any additional description incon- 
 sistent with the first has no effect, Bac. Tracts, 102. " As soon," 
 says Mr. Brown, [Legal Maxims, 490, 2nd Ed.] " as there is an 
 " adequate and sufficient definition with convenient certainty, of 
 " what is intended to pass by the particular instrument, any subse- 
 " quent erroneous addition will not vitiate it. Quicquid demonstrate 
 " rei additur satis demonstrate frustra est." Here the land was 
 described by what was equivalent to its name or its boundaries. 
 What was conveyed was not 100 orlongs comprised in grant 1,618, 
 but all the land in grant 1,618, estimated to contain 100 orlongs. 
 The first description indicates exactly what was the subject of 
 conveyance. Under the conveyance of " the land comprised in 
 " grant 1,618 " all the land which had long been held as actually 
 
STRAITS SETTLEMENTS. 127 
 
 included in it passed, although the area was wrongly estimated in Maxweix.R. 
 
 the grant. In Long v. Collier, 4 Euss. 267, the defendant con- * ' 
 
 tracted to purchase certain copyhold lands and premises described Ibbetson 
 as " situated at Moorstead, in the County of Southampton, as the v - 
 " same are now in the occupation of Bunney, as tenant of Walter Bbown - 
 " Long, containing by admeasurement 219 acres, more or less." 
 The property was described on the Court Rolls of the manor — like 
 the registry in the Land Office — as containing only 71 acres ; and 
 the defendant refused to complete the purchase as no title was 
 shewn to tbe remainder. But as it was shewn that the whole 219 
 acres had passed through a succession of proprietors by the des- 
 cription on the Court Eolls, the Master of the Rolls held that a 
 good title was shewn to the whole. So here, all the land which 
 had been held under grant 1,618 passed, and the erroneous estimate 
 did not cut it down or affect it. It would be strange, indeed, if 
 it would have any such effect ; for if it could reduce the quantity 
 when the estimate was in defect, it must pari ratione increase it 
 when in excess. But in such a case, where is the additional land 
 to be got from ? 
 
 According to the plainest rules of law, then, the whole of 
 the land comprised in grant 1,618, with the exception so often 
 alluded to, passed to the plaintiff. And I think it equally clear 
 that the whole was intended to pass. The plaintiff plainly asked 
 for the whole. An examination of the boundaries given by the 
 deed of November, shews that the land bounded on the north 
 by the Scotland Estate and by the Ayer Itam road to the east 
 and south, the three indisputable boundaries of grant 1,618, is 
 all included ; and I think the vendors would have been much 
 surprised, if they had found, after executing that deed, that any 
 portion of that land which had been known as Smith's still 
 remained in them. 
 
 I think it, indeed, not improbable, on comparing the price 
 paid with the estimated area of the land conveyed, that the price 
 was calculated at the rate of 10 dollars an orlong; and if Mr. 
 D. W. Brown had known that the land which was estimated at 
 100 orlongs in fact comprised 120, he would have demanded 
 200 dollars more for it. It is here that the mistake was made. 
 If there was any mistake in the transaction, it was evidently not 
 a mistake as to the land to be actually conveyed, but as to its 
 price, arising from a rough, negligent and erroneous estimate of 
 its area, and it was an error for which the vendors might per- 
 haps have been entitled to compensation for the overplus. 
 
 But suppose that I am wrong here, and suppose also that 
 only 100 orlongs of grant 1,618 were conveyed to the plaintiff — 
 it follows, that he is in possession of more of the land of the 
 grant than was conveyed to him. But how does the defendant 
 propose that the vendor should recoup himself for the loss 9 He 
 claims the right to take from the plaintiff a portion of the land 
 in grant 1,667 in compensation for the excess which he, holds of 
 the land in grant 1,618. This is in effect his contention when he 
 urges that, if the plaintiff has not got his full measures of land 
 in grant 1,667, he must compensate himself with the superabun- 
 
128 CIVIL OASES. 
 
 MAxwntijR. dance of grant 1,618. " It appears a curious kind of argument," 
 . he says to the plaintiff, " that you appropriate all excess in any 
 ,- Ibbbtson " particular grant, but for any deficiency you are entitled to come 
 »• " back on the seller. You admit an excess of 42 orlongs in grant 
 
 Brown. « l 5 618, but you say there is a deficiency in grant 1,667 which you 
 " wish made up. This I do not call even handed justice. I con- 
 " sider that even if you had bought grant 1,618 first, instead of 
 " last, as long as the aggregate quantity you held under both 
 " titles was equal to the quantity in the Bill of Sale, you have no 
 " right to more." Now this is not law, and would be rough jus- 
 tice. It amounts to this. The plaintiff complains that the 
 defendant has evicted him from Blackacre. The defendant 
 answers " true, I have committed the grievance you complain of ; 
 "but 17 years before I did so, I sold you Whiteacre, and if you 
 " will measure it, you will find that it contains more land than 
 " I then believed it did, and I therefore now plaim the right to 
 " take back from you an equal portion of Blackacre, which I had 
 " previously sold to you, and about which no mistake was com- 
 " mitted." If the defendant could, in such a case, take anything 
 back, in natural justice, one would think it would be the overplus 
 of Whiteacre ; but even then he would be met with much diffi- 
 culty. What part should he take back ? The wood, or the pas- 
 ture, or the arable, or the marsh? The portion covered with 
 buildings, or with water ? Should be help himself to the north, 
 south, east or west ? To the portion which suited himself best, or 
 to that which the plaintiff could best afford to part with ? 
 
 As I said before, if the vendor had any redress for the error 
 committed, it was a right to sue the plaintiff for compensation for 
 the. excess of land conveyed. In what cases vendors have this 
 right, and whether Mr. Brown had it in this case, it is not neces- 
 sary that I should express any opinion ; for I have here only to 
 decide whether the land in dispute belongs to the plaintiff or not. 
 All that I need say upon the question is, that Mr. Brown cannot 
 rectify the error or give himself redress in the manner suggested, 
 viz., by ousting the purchaser from another piece of land. Nor 
 am 1 called upon to pronounce any opinion upon another point 
 which was urged in the course of the case, viz., whether Mr. D. 
 W. Brown had been induced to execute the deed of November, 
 by the plaintiff's representation that it did not comprise more 
 than 200 orlongs. Whether he was or not, indeed, would be 
 immaterial unless it were also alleged and proved that the plain- 
 tiff made those representations fraudulently and knowing them to 
 be false ; which I did not understand the defendant to allege, still 
 less to attempt to prove. Even then, whether Mr. Brown might 
 have obtained redress at law or in equity for the supposed fraud, 
 it would have afforded the defendant no defence in this action." 
 
 The whole case, then, amounts to this. The plaintiff buys 
 first a hundred orlongs of land, and afterwards an adjoining pro- 
 perty which is estimated to contain another hundred, but which 
 in fact contains some 30 more. This fact, notwithstanding the 
 existence of McCarthy's survey, strangely remains unknown for 
 17 years, until the Government employ a man of talent and skill 
 
STRAITS SETTLEMENTS. 
 
 129 
 
 Brown. 
 
 in his pi-ofession, Mr. Moniot, again to survey the district, when Maxwell, R. 
 it quickly comes to light, about the same time, the defendant 1858 ' 
 takes possession of a piece of ground, honestly believing it to be Ibbetson 
 the property of his principal, but wbich turns out to be neglected 
 and unenclosed portion of the plaintiff's first purchase. The 
 plaintiff, on discovering the defendant in occupation of it, 
 demands it back, and the defendant declines to restore it, on the 
 ground, either that it was taken back from the plaintiff on the 
 occasion of second pui-chase, or if not, that there was a miscal- 
 culntion of the area on the second purcbase, and that the gain 
 which the plaintiff then made by the error more than adequately 
 compensates him for his present loss. This, when the case is sifted, 
 seems to me to be the pith of the whole matter ; but for the rea- 
 sons which I have now at such great length and with so much 
 minuteness given, T think that the defendant is wrong and that 
 the plaintiff is entitled to judgment. 
 
 In deciding this, however, J hold only that the defendant 
 trespassed upon some parts of the plaintiff's land north of the 
 plantation hedge. What the true boundary of his land is, has 
 not been proved and it is not necessary for me to decide. I think 
 it right to say, however, that I do not consider that Mr. Brown is 
 bound by the particular line of demarcation for which the plain- 
 tiff contended. The latter gave evidence, at the trial, to prove 
 that Long Mahomed Ali, Government surveyor, laid it down at 
 the time of the purchase ; that it followed for about two-thirds of 
 its entire length, proceeding from the eastward, an old bridle 
 path, from which it then struck through the j ungle and fell upon 
 the 5 milestone on the Flag Staff road. This line rises, and con- 
 tines for some distance, about 200 feet above the base of the hills. 
 Now, when it was measured, the vendors were not present. There 
 was no evidence that they had directed Long to make that measure- 
 ment, or that they adopted it when made ; and it certainly was 
 not so described either in the letter of the 29th October or in the 
 deed of the 11th November, as to be binding on them. Indeed, 
 the only part of its description given in those documents, which 
 admits of verification — its length, turns out to be erroneous, for 
 such a line as indicated by the plaintiff does not much exceed 
 half the alleged length of 6,000 feet. With respect to the defend- 
 ant's objection, however, thatrany boundary giving the plaintiff 
 100 orlongs of 1,667, besides all the land in 1,618, would be 
 inconsistant with that description, and also with the further des- 
 cription "a little above the base of the hills," all that can be said 
 is, that the general description must be followed, and the inaccu- 
 rate and inconsistent details rejected. This line has never been 
 twice described in the seme way. In the deed of March it is 
 described as measuring 16 orlongs 18 jumbas, but nothing is said 
 of its elevation. In the plaintiff's letter of October 29, it is 
 described as drawn round the foot of the hills, and in the deed 
 of November, as a little above their base. The hills are about 
 1,400 feet high according to the Government survey, and I am 
 not prepared to say that a line 200 feet above their base is incor- 
 rectly described ks " a little above them." If the line which gives 
 
130 
 
 CIVIL CASES. 
 
 Ibbetson 
 Brown. 
 
 Maxwell, E, the desired area does not answer the description of about 6,000 
 1858 , feet, then that description must be rejected, and that line be 
 taken which will include the area required. 
 
 With respect to the argument that such a line will encroach 
 on the only 75 orlongs which remain to Mr. Brown of grant 1,667, 
 the grant having been described as consisting of 175 orlongs, it 
 is enough to observe that the plaintiff's title to his 100 orlongs 
 cannot depend on the accuracy or inaccuracy of the estimate 
 of the area contained in the original grant ; for what he pur- 
 chased was not a certain named proportion of the whole esti- 
 mated area, but a fixed number of orlongs, and he would be 
 entitled to the whole quantity if grant 1,667 did not contain 
 another orlong. 
 
 I oiight not to close my remarks on this case, without stating 
 why I have not noticed arguments urged on both sides, which 
 were founded on what the parties called the admissions of each 
 other. For instance, the plaintiff contended that the statement 
 in the deed of November, 1833, that the land beyond his north 
 boundary was Company's land, taken in conjunction with the de- 
 fendant's admission lhat Mr. Brown had not since acquired any 
 land there, was conclusive evidence against his right to the piece 
 of land in question. So, he m*ged that a request made by the 
 defendant in 1849, that the land on that side might be described as 
 partly Governmentland andpartly grant 1, 667, wasafurther, though 
 more restricted admission fatal to the defendant. On the otlier 
 hand, the defendant insisted tha-t a plan which had been recently 
 registered by the plaintiff and which had been, drawn by himself, 
 adopting the hedge as the boundary, was conclusive against his 
 present claim. And I think, there were otlier representations of 
 a similar kind Which he contended should be similarly regarded. 
 But what do they all amount to ? Simply to statements of the 
 opinions of the parties, entertained at different times upon what 
 was more a matter of law than a matter of fact. Even, if they had 
 been the plainest admissions of facts, it would have been open to 
 the parties to explain them, and to shew that they were erroneous, 
 unless, indeed, the party making them had, thereby induced his 
 opponent to act upon them and change his position. Heane v. 
 Rogers, 9 B. & C ; Pickard v. Sears, 6 A. & E., Gregg v. Wells, 
 10 A. & E., but the questioh between (he parties was a question 
 of law. Whether the plaintiff was entitled to the land in dispute 
 depended upon the legal effect of certain deeds : and both he 
 and the defendant were at liberty to hasard as many erroneous 
 opinions upon that point as they pleased, without affecting the 
 question or prejudicing their rights, unless they induced the 
 other side to act upon their admissions. 
 
 I agree with the defendant on one point, however, and that 
 is, that the plaintiff hus himself partly to blame for the dispute 
 which has eventuated in this suit, if he had marked out his 
 boundary, as he ought to have done, at the time of the purchase, 
 the present difficulty would not have arisen. Being absent, how- 
 ever, and having left his property to the care of a gentleman not 
 fully cognisant of his rights, he exposed the piece of land in question 
 
STEAITS SETTLEMENTS. 
 
 131 
 
 Ibbetson 
 
 V. 
 
 Bkown. 
 
 to be considered as not belonging to him. Seeing a bamboo hedge Maxwell, B. 
 which enclosed, with the other boundaries given in the deed of ' 
 November, an area equal to that which the whole property was 
 estimated in that deed, any surveyor would have been led to 
 conclude that the hedge was really the boundary of the estate. 
 It is clear on examining the deeds and the history of the purchase, 
 that this was a mistake ; but the mistake would not have occur- 
 red, if the true boundary had been defined ; and once committed, 
 it was but natural that its explanation should be rejected, or 
 admitted at last only with reluctance. The plaintiff explained 
 this neglect by stating that he believed that he had the Govern- 
 ment and not Mr. Brown, for his neighbour ; and this was evi- 
 dently the belief of the parties in 1883. Still, I think, that the 
 plaintiff ought, for his own security, to hive marked out his 
 boundary ; a:id as his neglect to do so has contributed to the 
 present difficulty, I do not think this is a case in which the. 
 successful partly is entitled to costs. 
 
 Judgment for plaintiff. 
 
 CHE HIM v. ROBERTSON & ORS. 
 
 CHE HIM v. ROBERTSON & ANOR. 
 LEE KOU KOI v. ROBERTSON. 
 LEE KOU KOI v. MAHOMED HASSAN. 
 HASHIM v. ROBERTSON. 
 
 The several provisions in the Police Act XIII of 1150, Section 112, [a] afford no Penang. 
 
 protection to police officers and others helping them, nor do they give thorn any right 
 
 to a month's notice before action, or limit the party aggrieved to three months for Maxwell, E. 
 
 bringing his action, except in cises, not only where the acts complained of are illegal, 1859. 
 
 but where they were done bond, fide, in honest ignorance, and conscientious belief 
 
 that they were done in the discharge of duty, and were not done from caprice, or under March 7. 
 
 a vague opinion of one's own powers. 
 
 These were actions for false imprisonment against certain 
 officers of the Police Force. Each case arose out of circumstances 
 distinct from the others, but as they were tried in succession, and 
 judgment was delivered its a whole, they have been reported in 
 this form. The facts giving rise to the casas, and questions raised 
 therein, fully appear from the judgment. 
 
 [Mr. Wilson as Special Agent, for Plaintiffs in the several 
 actions.] 
 
 The Defendants severally in perjon. 
 
 Cur. Adv. Vult. 
 
 March 21. Maxivsll, R. At the late sittings, several actions for 
 false imprisonment brought against police officers, were tried before 
 me ; and if I reserved my judgment in them all, it was not because I 
 entertained much doubt about the real state of the facts or the merits 
 of the cases, but because I wished to refresh my memory with a 
 
 (a) See now Ord. I, of 1872, Section 42, et seq. 
 
Robertson 
 
 & OBS 
 
 132 CIVIL OASES. 
 
 Maxwell, K. perusal of the numerous authorities which are scattered in the 
 1859, Eeports, upon the only defences that were, with one exception, 
 Che Him relied upon by the defendants, viz, lapse of time and no notice of 
 & oes. \ action. The Police Act of the Legislative Council (XIII. of 1856, 
 K ' Sec. 112) enacts that actions which may lawfully be brought for 
 " anything done, or intended to be done under the provisions of the 
 "Act," must be brought within three months, and that a month's 
 notice of action must be given to the defendants. In all the eases 
 tried before me the cause of action accrued more than three 
 months before the action was begun, and no notice of action 
 was given to any of the defendants. It became therefore 
 necessary to consider whether the acts complained of were 
 " done or intended to be done under the provisions of the 
 " Police Act." In point of fact, none of the defendants could indi- 
 cate any provision in the Act under which they acted or intended 
 to act ; but this was not very material. If there are any provi- 
 sions to which their acts can reasonably be referred, that is enough. 
 In England we have a multitude of Acts which give similar pro- 
 tection, though not in precisely the same language. Those which 
 come nearest to it are the Malicious Trespass Act [7 & 8 Geo. IV. c. 
 30, Sec. 41) ;the Larceny Act {? & 8 Geo. IV. c. 29, Sec. 75) ; the High- 
 way Act (5 & 6 W. IV. c. 50 Sec. 109) ; and the County Courts' Act 
 (9 & 10 Vict. c. 95, Sec. 139], — to say nothing of numerous local 
 Acts, — which give the privileges of notice of action and of a re- 
 sti'icted period of liability to all persons sued "for'anything done 
 "in pursuance of the act.." Magistrates [24 Geo. IT c. 44, and 11 & 
 12 Vict. c. 44] are protected to the same extent, if acting " in the 
 " execution of their office ;" and Custom-house officers (8 & 9 Vict. 
 c. 87 Sec. 11 7J when acting "in the execution or by reason of their 
 " offices." The protection given to Magistrates, indeed, under the 
 words " in the execution of their office," in 11 & 12 Vict. c. 44 
 goes very far; for it has been held by the Court of Exchequer 
 that a Magistrate who has acted maliciously and without reason- 
 able or probable cause, is entitled to notice, if he acted within his 
 jurisdiction ; Kirly v. Simpson, 10 Exch. E. 358 S. C. 23 L. J. M. C. 
 165. But where a Magistrate exceeds his jurisdiction; then he is 
 not entitled to protection except under the same circumstances as 
 other persons who are protected for " anything done in pursuance " 
 Of the Act which gives them the protection. These words "done 
 " in pursuance of the Act," which come nearer to those of the Police 
 Act than those in the Magistrates' Act, it is obvious, "do not 
 "mean," as Parke B. observes in Hughes v. Buckland, 15 M. & W. 
 355, " acts done in strict pursuance of the Act, because, in such a 
 " case, a party would be acting legally, and would not require pro- ' 
 " tection. The words, therefore, must be qualified by the decisions ; 
 " and then the meaning will be, that a party, to be entitled to pro- 
 " tection, must bond fide and reasonably believe himself to be 
 " authorised by the Act." The'reasonableness of the belief is, how- 
 ever, but a test of its bond fides [per Lord Cran worth in Horn v. 
 Thornlorough, 3 Exch. 850] ; and the rule therefore is perhaps 
 more accurately laid down by the Court of Common Pleas in 
 Booth t. OUve, 10 C. B. 827, S. C. 2 L. M. & P. 253, that the pro- 
 
STRAITS SETTLEMENTS. 133 
 
 tection depends on whether the defendant acted in the honest Maxwell, K. 
 belief that his duty called upon him to do the act complained of. 18 ° ' 
 In that case, an action against the County Court Judge for trying chb Him 
 a cause after having been served with a writ of prohibition, Jervis & oes. 
 C. J. told the Jury that if the defendant had acted in the bond j> 0BE u ETS0N 
 fide belief that his duty made it incumbent on him to do so, he & 0KS . 
 was protected ; and that as to the reasonableness of his belief, if 
 it meant anything more than in good faith, it meant, according to 
 his reason, as contradistinguished from caprice. In one of the 
 latest cases-on the subject, Arnold v. Hamel, 9 Exch. 406 ; S. U. 23 
 L. J. Exch. 137, an action against an officer of customs, Parke, B. 
 says : " the question will be for the Judge to determine whether the 
 defendant acted honestly believing that his duty called upon him 
 to do what he did. Of course the reasonableness cf the belief 
 would be an element in deciding as to the bond fides ;" and he 
 refers to Booth v. Olive. Alderson, B. adds : "The real question 
 is, whether the officer was acting in honest ignorance and con- 
 scientious belief that he was acting in the discharge of his duties." 
 "But again, that 'conscientious belief must be, according to 
 the Court of Q. B., not merely that vague, opinion of his own 
 pt)wer, but a reasonable conviction that he was enforcing the spe- 
 cific provisions of the law in committing the grievance complained 
 off, " Kine v. Evershed, 10 Q. B. 143. 151. " The principle seems 
 to be this," says Lord Dennam C. J. in delivering judgment in 
 Hazeldinev. Grove, 3.Q. B. 997, "that when the Magistrate with 
 some colour of reason, and bond fide, believes that he is acting in 
 pursuance of his lawful authority, he is entitled to protection, 
 although he may proceed illegally, or exceed his jurisdiction." So, 
 Lord Tenlerden says in Beechey v. Sides, 9 B. & C. 808, that the 
 intention of these provisions is "to protect persons acting illegally 
 " but in supposed pursuance of the statute, and with a bond fide in- 
 "tentioh of discharging their duty under the Act of Parliament." 
 Thus a constable or a county court bailiff who, under a warramt 
 to take the goods of A., by mistake takes those of B. is protected. 
 Barton v. Williams, 3 B. & A. 330 ; Barling v. Harley, 27 L. J. 
 Exch. 258. In the latter case-, indeed, Martin B. dissented from 
 the rest of the Court. There, however, the defendant acted under 
 legal authority, but committed an honest error in executing his 
 duty. On the other hand, a constable who was authorised by a 
 local act to remove from the streets animals exhibited there, having 
 removed from a stable, which he was not entitled to do, an ani- 
 mal which ha"d been so exhibited, he was held not entitled to 
 notice of action when sued for having imprisoned a person who 
 had attempted to prevent him. Cook v. Leonard, 6 B. and C. 341. 
 In this case he had no authority whatever from the law for his 
 act, nor any reasonable ground for supposing he had. In Wedge 
 v. Berkeley, 6 A. & E. 663, a Magistrate seized certain goods on 
 a suspicion of felony, but without having any reasonable ground 
 for his suspicion; and it was held that whether he was entitled or 
 not to notice of action depended on whether he proceeded under 
 a bon fide belief that he was executing his duty. " The distinc- 
 tion is clear," says Coleridge, J. " between that which amounts to 
 
134, 
 
 CIVIL OASES. 
 
 Maxwell, E 
 1859. 
 
 Che Him 
 
 & OBS. 
 
 V. 
 
 KOBERTSON 
 
 & OES. 
 
 ■ " a defence, and that which entitles to notice. The Magistrate is 
 " entitled to notice when he has no defence on the merits, but 
 " where in a matter within his jurisdiction, he has exceeded its 
 "limit?, acting, nevertheless, bond fide, p. 669. In short, the deci- 
 " sions of the Courts and the dicta of the judges, seem in the main 
 " to have established the law on this subject in the spirit of the 
 " preamble of the 24 Geo. II. c. 44, which recites that as justices are 
 " discouraged in the execution of their office by vexatious actions 
 " for small and involuntary errors, it is necessary to render them 
 " safe in the execution of their office, so far as is consistent with 
 " justice and the liberty of the subject ; but necessary also that the 
 " subject should be protected from wilful and oppressive abuse of 
 " the laws committed to the care and execution of justices. For 
 " honest errors, there is protection; for wilful and oppressive abuse 
 " in excess of their j urisdiction, none." The plaintiff, then, in the 
 present cases, cannot succeed, unless not only the defendants act- 
 ed illegally, but their acts were not done in the honest belief that 
 they were doing their duty. Such being the law applicable to 
 these cases, I now proceed to examine the facts in each of them. 
 
 In Che Him v. Robertson, Ward and Scott, it appeared that a 
 burglary was committed early in the morning of the 11th of 
 August, at Teluk Ayer Tawar, in the house of a Chinese pawnbroker 
 named Que Chuan; and that the plaintiff- was apprehended by the 
 1st defendant, the Deputy Commissioner of Police, on the 27th 
 August, on the charge of being implicated in the crime. The de- 
 fendant is a Justice of the Peace, and had authority to make this 
 arrest. Nor have I any reason to doubt his bond fides in making 
 it ; but at the same time I must say that when I bear in mind that 
 the information against the plaintiff: was given, for the first time 
 eleven days after the burglary, by the pawnbroker, who admitted 
 at the trial that the plaintiff had come and smoked in his house 
 at daybreak on the morning of the robbery, had come again on 
 the evening of the following day, and had been seen by him a 
 third time on the day after, in the . next house ; — when I bear in 
 mind that the plaintiff had been known to this pawnbroker from 
 his childhood, that he had been, until the last two years, an in- 
 habitant of Teluk Ayer Tawar, and during these two years a fre- 
 quent visitor at his mother's house there, that he was connected 
 with some of the chief inhabitants of the place, and that he con- 
 tinued in the village for eight days after the burglary, assisting 
 the police, with other Malays, in anticipation of another similar 
 outrage, and actually passing some of his time at the police sta- 
 tion; — and when I bear in mind, also, the uneasy, downcast, ner- 
 vous demeanour of that pawnbroker in the witness box, I cannot 
 divest my mind of strong suspicion that the charge against the 
 plaintiff was not an honest charge, but was made against him with 
 some sinister object. But this is not material as far as Mr. 
 Eobertson is concerned. The pawnbroker, though silent on the 
 previous repeated visits of the Inspector Jeremiah and other 
 policemen, informed Mr. Eobertson, on the 11th day after the 
 burglary, that he had seen the plaintiff among the burglars on the 
 night of the burglary, carrying a gun, and had heard him direct 
 
STRAITS SETTLEMENTS. 135 
 
 them to the stop ; and Mr. Bobortson, as he lawfully might, as a Maxwell, B. 
 
 Justice of the Peace, apprehended him in person. I pass over the " 
 
 circumstances attending the arrest, and the means by which the Che Him 
 plaintiff was got to the defendant's house, remarking only that & ons. 
 the fact of his going boldly to the Deputy Commissioner as soon EoB eb T son 
 as he heard of his wife's apprehension, shews that he was not & bs. 
 keeping out of the way, — that he did not act like a man Con- 
 scious of guilt ; and this strengthens my suspicions as to the 
 character of the charge against him. 
 
 The plaintiff's complaint, however, is, that after -his arrest he 
 was kept in confinement for an unreasonable length of time, to wit, 
 from the 27th of August to the 13th of September, without having 
 been taken before a Magistrate for examination, and that during 
 all that time he was treated with wilful and unnecessary cruelty 
 by the defendants, in this respect, that he was kept handcuff ed all 
 the time, except when at meals, washing and calls of nature. In 
 the present case, the defendant's duty was, under section 6 of the 
 ' Police Act, to detain the plaintiff " in order to his being brought 
 before the Police Magistrate." But was it necessary to keep him 
 imprisoned for 17 clays without taking him before the Magistrate ? 
 Even if the defendant had been the Police Magistrate, he would 
 not have been justified in detaining him there. It is well settled 
 that a commitment for am unreasonable time is wholly void ; and 
 trespass lies against the Magistrate who makes it, even though he 
 acted from no improper motive. " The duty of a Magistrate is to 
 commit for a reasonable time, and if he commits for an unreason- 
 able time, he thereby does that which he is not by law authorised 
 to do, and the commitment is void from the beginning, per Cur. in 
 Davis v. Gappsr, 10 B. & C. 28, 38. So utterly void and illegal, 
 indeed, is it, that a person aiding another so_ committed to 
 escape, is not guilty of any offence against the law; R. v. 
 Gooding, cited in Davis v. Capper, ubi sup. In the present case, 
 there was not the slightest ground for regarding a preliminary 
 imprisonment of 17 days for such a purpose necessary or reason- 
 able. Mr. Robertson pleaded his own engagements; but even if 
 the excuse h ad been valid in point of law, it was not established 
 in point of fact. He says that on the 29th, or it might have been 
 the 30th or 31st of August, he went to Quedah. But he did not 
 shew why the planrliff was not taken before the Magistrate on 
 the 27th, or the 28th, or the 29th, or the 30th ; and I can see no 
 good reason for the neglect. The pawnbroker, who was the pro- 
 secutor, lived not far off, and could have been brought forward at 
 any time, in two or three hours. But suppose there was some 
 reason for the first delay, why was the plaintiff not taken before 
 the Magistrate when Mr. Robertson returned from Quedah? The 
 defendant says he was too busy iii preparing for some expedition to 
 Perak ; but he is contradicted by one of the Inspectors, Thompson, 
 "who proved in the clearest manner that on the 8th September, he, 
 Robertson, was at his office and engaged in his ordinary duties. 
 Mr. Robertson disputed the accuracy of this witness, but a note 
 which the latter produced written by Mr. Robertson on the 6th 
 of September directing him to come to town for his pay, put the 
 
136 CIVIL OASES. 
 
 Maxwell, E. matter, in my opinion, beyond* "'question. It shewed, also, that 
 1852 - Robertson was probably on the spot on the 6th and 7th as well at 
 Che Him on * ue ^th. It is established, then, that he arrested the plaintiff, 
 & oes. and had him kept locked up by a man under his orders. It is in 
 v - evidence that he saw him on more than one occasion during his 
 
 *& E obs ON confinement, and wasinPenang attending to his duties in the or- 
 dinary way for days, and it is admitted that he neither took him 
 nor directed him to be taken before a Magistrate for examination 
 on any day between the 27th August and 13th September, while 
 not the slightest excuse is shewn for this gross neglect. Even 
 while asserting his own engagements as an excuse for his neglect, 
 Robertson does not shew now those engagements could in any way 
 interfere with the man's examination. Beyond the fact of his 
 having ari'ested the plaintiff, it does not appenr that he had any 
 evidence to give in the case against him; and there is nothing to 
 shew that the Magistrate's inquiry might not have been gone into 
 „ and even completed without, the defendant's presence. I am of 
 opinion, therefore, that this imprisonment was illegal,' and abso- 
 lutely void.ab initio. 
 
 This alone however, as I said before, does not entitle the 
 plaintiff to a verdict ; for if the defendants did the illegal act in 
 honest ignorance, and in the conscientious belief that they were 
 acting in the discharge of their duty; — if, in the language of Cole- 
 ridge, J. in Wedge v. Berkeley, while exceeding thelimits of their 
 jurisdiction, they nevertheless acted bond fide, the action must 
 fail on account of the lapse of time and the want of notice of ac- 
 tion. Now there are two or three facts in the case, which seem 
 to me to dispose of this question . We have the fact that the 
 first defendant is and has been for some time the Deputy Com- 
 missioner of Police, and the others are Inspectors ; and it is im- 
 possible for me to believe that they did not know that it was 
 their duty to take the plaintiff to a Magistrate for examination 
 without loss of time. They cannot have been ignorant of so ele- 
 mentary a rule as this— a rule not of law merely, but one laid 
 down for their guidance in the Police Regulations. Indeed, they 
 asserted in the course of the trial, that -they habitually observed 
 that rule ; and this disposes of all doubt as to their ignorance, — • 
 even if ignorance, on such a point, in such men, could have been 
 "honest ignorance." They said, however, thatthe case was an 
 exceptional one, as the plaintiff and his fellow prisoners, though 
 confined in the Island lock-up, were in custody for an offence com- 
 mitted in the Province ; that for this reason no charge was entered 
 against them in the charge sheet of the station where they were 
 confined ; and Scott said that it was because he had no evidence 
 that they were not taken before a Magistrate. I should have 
 some difficulty in believing that the Inspector in charge of the 
 lock-up could have honestly blundered into the notion that be- 
 cause his prisoners came from the Province, he was discharged 
 from all his ordinary duties of a constable as respected them, and 
 that he was at liberty to keep them incarcerated as long as he or 
 his superior officer pleased, or until somebody brought him evi- 
 dence against them. Still more difficult should I find it to 
 
STRAITS SETTLEMENTS. 137 
 
 believe that the Deputy Commissioner, also, was so ignorant Maxwell, E. 
 of his duty, as honestly to consider himself entitled to keep 1859 , 
 the plaintiff locked up for such a long period without any Che Him 
 adequate motive, before taking them to a Magistrate for examina- & op- 
 tion. But there are other facts in the case which I cannot jj, 0BE b TSON 
 attribute to any amount of ignorance or stupidity, and which & oes. 
 throw such a light on the conduct of the first defendant as to 
 bring me to the conclusion that he acted in no conscientious 
 belief that he was doing his duty, but, on the contrary, in a spirit 
 wholly alien to a due discharge of that duty. I pass over the total 
 neglect of legal forms in the arrest and detention of the plaintiff 
 and come to the manner of his detention. The man was im- 
 mediately handcuffed. On the following day the defendant 
 Eobertson saw him in that condition, and left him in it. Some 
 ten days after, finding that he had been relieved of his handcuffs 
 by an Inspector, he, Robertson, immediately ordered that a pair 
 should be put upon him, and thus the man continued until the 
 13th of September, when he was taken to the Province. Now, 
 this conduct was not mere negligence or oversight. It was a posi- 
 tive act of harshness, which if not necessary, betrayed a spirit of 
 cruelty and tyranny . It has not been alleged that the man was 
 violent or insubordinate, or had attempted to escape, nor is there 
 any ground for believing that handcuffing was necessary to prevent 
 his escape. Upon the trial of another action, some months ago, 
 I was led by the defendant Eobertson and one of the Police In- 
 spectors, to believe that it was necessary to handcuff prisoners in 
 the lock-up to ensure their safe custody. Though not convinced 
 on an inspection of the place that escape was so very easy, I felt 
 great difficulty in opposing my judgment upon such a question to 
 that of Police officers, and still greater difficulty in bringing 
 myself to believe that Englishmen would inflict unnecessary 
 suffering on any human being, however degraded or depraved. 
 I therefore at once accepted their representations without further 
 testing their accuracy. On the present occasion, however, I have 
 thought it necessary to apply a test to it ; and that test, it seems 
 to me, proves conclusively that those representations were far 
 from accurate in the opinion of the very persons who made them. 
 Awang, one of the prisoners who was treated in the same way as 
 the plaintiff, mentioned, in the course of his evidence, that only 
 three men were handcuffed in the lock-up — the plaintiff, himself 
 and one Slaman — but that during the whole time that he remained 
 there — till the 13th September, though numbers of prisoners were 
 daily brought in, not one of them was ever handcuffed. And the 
 defendants themselves admitted that except in the case of this 
 burglary, prisoners have never been handcuffed in the lock-ups. 
 What then becomes of the alleged necessity of handcuffing the 
 plaintiff ? The defendants themselves have proved by their own 
 practice in other cases, that it was not necessary for the purpose 
 of preventing their escape. If so, then to what am I to attribute 
 this treatment of the plaintiff for such a length of time ? _ To 
 what can it possibly be attributed, but to a spirit of oppression. 
 The act was barbarous and unnecessary — as barbarous and un- 
 
138 CIVIL OASES. 
 
 Maxwell, E, necessary as flogging, starving or any other corporal suffering 
 
 1859, would have been ; and I can regard it therefore only as a wilful 
 
 Che Him abuse of power ; something wholly different fiom an honest and 
 
 & cms. conscientious discharge of duty by an English Justice of the 
 *■ Peace or Constable. If I were to judge of the spirit 
 
 & E oTs! 01 * which , influenced the defendant Robertson's conduct towards 
 the plaintiff, by his treatment of others of the prisoners, 
 I should find strong corroboration of the opinion I have 
 formed of it ; but I forbear from referring more parti- 
 cularly to that part of the evidence which bears on this sub- 
 ject. If I were trying this case with a jury, the question which 
 I should leave to them would be, whether, as Alderson B. puts it, 
 the defendant acted in honest ignorance and conscientious belief 
 that he was acting in the discharge of his duties, — whether, in 
 the language of Jervis, C. J. he acted as he did in the bond fide be- 
 lief that his duty made it incumbent upon him, whether he acted 
 according to his reason as contradistinguished from caprice or 
 worse ; — and as I have to fulfil the functions of a jury here, I an- 
 swer the question by saying that the defendant did not, , in my 
 opinion, act in the honest belief that he was doing as his duty 
 made it incumbent on him to do, and that he acted, not according 
 to his honest reason, but according to his caprice. I am therefore 
 of opinion that the act complained of was not " anything done, or 
 intended to be done under the provisions of the Police Act," and 
 that the first defendant was not entitled to notice of action, nor 
 was the plaintiff limited to three months for bringing the action. 
 With respect to Scott, also, I think he is liable, for in my opi- 
 nion he cannot have been ignorant of his duty, or insensible of 
 the useless cruelty of keeping the man for more than a fortnight 
 in irons ; and if he chose to keep the plaintiff in that state for 
 that length of time, not because he honestly thought it lawful 
 and right, but in obedience to the illegal order of his superior, he 
 must suffer the consequences. I said at the trial that the evi- 
 dence, did not satisfy me as to Ward's participation. The verdict 
 will therefore be for the second, and against the 1st and 3rd de- 
 fendants with 200 dollars damages. 
 
 In the case of Che Him v. Robertson and Jeremiah, the same 
 plaintiff sued the defendants for his subsequent imprisonment in 
 the Province lock-up, from the 13th to the 17th of September. I 
 entertained some doubt at the trial about Robertson's liability in 
 this action, and upon the whole I am inclined to think he is not 
 legally liable. He sent the men over to the. Province in charge 
 of the other defendant, Jeremiah, to whom he gave instructions 
 to ascertain from the Magistrate when Ire would hear the case. I 
 do not think this order was very wise, since if the Magistrate chose 
 to name an unreasonable distant time, the constable who under- 
 took to keep the men in custody in the meanwhile, without com- 
 mitment or even verbal remand would have exposed himself to an ac- 
 tion." But this order of the Deputy Commissioner did not exonerate 
 the defendant Jeremiah from the duty — and indeed was not incon- 
 sistent with it — of taking the prisoners at once before the Magis- 
 trate, and leaving to him the responsibility of a remand and f urther 
 
STRAITS SETTLEMENTS. 139 
 
 confinement. Jeremiah, says he called on Monday, the 13th, upon Maxwell, K, 
 the Magistrate who put off the examination to Friday, the 17th; 1859 - 
 but assuming that the imprisonment in the interval was, in respect Che Him 
 of its duration, legal, I think that Jeremiah is liable for the shame- & oks. 
 ful treatment to'which the plaintiff was subjected during that time. ~ v - 
 When the plaintiff was removed from the Island Office, instead of & m *™ os 
 being handcuffed separately, he was handcuffed by Jeremiah to 
 Awang, the left hand of one man being coupled to the right of 
 another. The other prisoners were similarly treated. Mr. Robert- 
 son saw them in this condition as they proceeded from the station 
 to the waterside, and the precaution may have been desirable in 
 marching the prisoners from one place to another. There is no 
 evidence, however, that he either ordered that, the men should be 
 kept in that condition in their new prison, or that he knew that 
 they were so kept. On their arrival, at the Police Office of the 
 Province, Jeremiah put them into the lock-up, as they were, fasten- 
 ed in couples. The constable in charge was one Pledger, who 
 was under Jeremiah's orders. The plaintiff appealed to Jeremiah 
 to unfasten Awang, his companion, from him,, and to handcuff, 
 both his hands instead, in order, as he said, that he might at 
 least sleep with a little more comfort. Not only, therefore were 
 the men taken by Jeremiah to the lock-up in this state, but his 
 attention was called to the cruelty to which they were subjected. 
 His answer to the plaintiff was a refusal. " There are no more 
 " handcuffs ; I know nothing about it ;" was his only reply ; and the 
 plaintiff was left fastened to Awang from Monday afternoon till 
 Friday morning. He was not released for meals or even for any 
 other necessary pm-pose. " We were obliged," says Awang, " to 
 " help each other, for we could not help ourselves, to water when we 
 " went, &c." I need not stop to enquire whether this lock-up was 
 as safe as it ought to have been. Assuming that the windows 
 were as insecure as they were represented by Mr. Robertson, and 
 that there was a tradition of a prisoner having once dug his way 
 off out of the room through the floor, I have his own word and 
 Jeremiah's that they had never known prisoners handcuffed in 
 that lock-up before ; and even if the number of men then imprison- 
 ed was unusually great, as suggested by Jeremiah, there was no 
 excuse for the disgusting and disgraceful treatment to which the 
 plaintiff was subjected. Such treatment appears to me to have 
 been wholly illegal, and consequently that the plaintiff acquired 
 thereby a good cause of action. I think, also, that it was a sheer 
 act of gratuitous cruelty and that the defeudant Jeremiah did not 
 act in honest ignorance or in a conscientious belief that it was his 
 duty — that he did not act accorfling to his reason, but according 
 to his caprice. I am of opinion therefore that the act complained 
 of was not " done or intended to be done under the provisions of 
 the Police Act," and I therefore give judgment against him for 
 150 dollars damages. As respect the other defendant, Robertson, 
 the verdict will be entered for him. 
 
 The next actions which I have to consider were brought by a 
 Chinaman named Lee Kou Koi, one against Robertson the other 
 against Mahomed Hassan, a Jemadar of Police 5 and I shall take 
 
140 -* CIVIL CASES. 
 
 Maxwell, E. them together. " According to Mr. Eobertson's account, a woman 
 1859 - named Cheah Ah JSTeogh came to him one day, alone and exhaust- 
 Che Him ed, and complained that her husband the plaintiff, had, two days 
 & oes. before, beaten her, turned her out of house and home, and taken 
 v - from her her child which was then at the breast ; that she had no 
 
 °| E E K T g SON desire, and was afraid to make a formal complaint against him for 
 the assault, but begged that he, the defendant Robertson would 
 send for him and talk to him. On hearing this tale, and being 
 desirous to' assist her, he directed Mahomed Hassan to go 
 with the woman and try and persuade the man to come 
 and see him. His account before the Magistrate was more brief. 
 The woman, he said, had complained to him of the assault, &c , 
 and had said she did not wish her husband punished, but asked 
 him to send for her husband to tell him not to do so any more ; 
 upon which he had desired the Jemadar to accompany the woman 
 and ask her husband to come and speak to him. Now, here, at the 
 outset, we have an assumption of authority which does not belong 
 to any Police Officer. If the woman claimed the child, it was for 
 the Supreme Court, not for a Deputy Commissioner of Police to 
 pronounce upon her claim. If she merely wished the defendant's 
 private good offices to settle a domestic broil between herself and 
 her husband, he had no business to dispatch a public officer, upon 
 such a private errand. But neither her tale, nor her state of soli- 
 tude and exhaustion, authorised the defendant to send a policeman 
 to try and persuade the Chinaman to come and speak to him. It 
 strikes me, indeed, that the object of the policeman's mission was 
 rather to get the child than to summon the husband for a lecture 
 on the duties of married life from the Deputy Commissioner. 
 Mahomed Hassan says as much. He says that his instructions 
 were to call the husband and to tell him to bring the child — a species 
 of verbal order of habeas corpus, returnable instanler, before the 
 Deputy Commissioner, in short. He went first to the plaintiff's 
 house ; and finding that he was not at home, proceeded to that 
 of his tribesman where the child was. The plaintiff was not there 
 either ; and it seems to me that if the policeman, wanted the 
 father and not the child, he would have left this place, too, and 
 gone in quest of him. Instead of doing so, he remained, and in 
 the course of ten minutes, the plaintiff, who had been sent for 
 from the market, arrived. The Jemadar says that upon the 
 plaintiff's approaching the house, at the door of which the Jema- 
 dar was standing, the plaintiff, who had never seen him in his life 
 before, without saying a word to him, straightway dealt him a blow 
 with a long umbrella which he carried ; and then, with the assis- 
 tance of other men, gave him fresh blows, seized him and dragged 
 him the whole way from the house, at Ujong Passir to the Police 
 Office. The preposterous absurdity of this statement needs no com- 
 ment ; and I have no hesitation in expressing my utter disbelief 
 that any Chinaman would not only make a wanton and unprovoked 
 attack upon a policeman, bub having done so, would, instead of 
 running away, drag the man, getting, too, a number of his coun- 
 trymen to assist him, to, of all places in the world, the Police 
 Office* where he must have known that a Magistrate sits and Iu- 
 
STRAITS SETTLEMENTS. 141 
 
 spectors and peons are at hand. The falsehood of this account is Maxweix 5 R 
 palpable enough, without noticing the entire absence of evidence 1 859 - 
 as to marks of violence, &c. The plaintiff's story comes to my c HE h im 
 mind, much nearer the truth. On arriving at the house where he & oks. 
 had left his child, he saw his wife sitting in a palanquin v - 
 
 a short way off, and found Mahomed Hassan in the house. & 0BSi 
 " I said to him," he says " why do you come here ? He said : 
 " Tuan Bahru [some Malay nick name for the Deputy Coinmis- 
 "sioner] directed me to come and take the child;" and in cross 
 examination he added that the Jemadar stretched out his arms to 
 take his child, but that he, the plaintiff, would not let him. "I 
 " said, what fault has my child committed; have you a warrant? 
 " He answered, No. Then, I said, you cannot take my child. If 
 "you wish, you can take me. He said very well ; and seizing me 
 "by the 'hand, he pulled me along." He then goes on to state that 
 after proceeding half way, he remonstrated with the policeman at 
 being thus dragged, whereupon the policeman let him go, and that 
 then, turning the tables upon his antagonist, he- seized him, and, 
 with the assistance of three or four passers-bye, his countrymen, 
 dragged him towards the Police Office. Now, the policeman, ac- 
 cording to this far more probable version of the facts, committed 
 an assault on the plaintiff ; and unless the Police uniform is to 
 entitle every body who wears it, to notice of action under the 112th 
 sec. of the Police Act, it is impossible to say that Mahomed Has- 
 san is sued for " anything done or intended to be done under the 
 " provisions of that Act." He was sent on an errand wholly 
 foreign to his duties as a policeman or constable. He had ho sum- 
 mons to serve, no warrant to execute. The direction to tell the 
 man to come to the defendant Robertson and to bring the child, was 
 a mere piece of impertinence, and improper as it was on the part 
 of Robertson to send him upon such a message, I do not think 
 that he had any order from him to arrest the plaintiff. The police- 
 man shewed on his conduct, in letting the plaintiff go, that he 
 was conscious that he had exceeded his instructions in apprehend- 
 ing him. 
 
 Upon arriving at the office a riot took place. Into the 
 merits of this part of the case, however, it is not necessary to go. 
 The Chinaman says that he and his companions had marched the 
 policeman to the Station for the purpose of laying a complaint 
 against him; but that on his approaching the place, the defendant 
 Mahomed Hassan disengaged himself by an effort, that eight 
 or ten peons ran down the steps of the porch, and proceeded to 
 beat the Chinese ; that the defendant Robertson coming out of 
 his office at the time, was called to by the plaintiff for protection ; 
 but that without listening, he immediately ordered the five men 
 to be apprehended and locked up. Mr. Robertson on the other 
 hand describes the matter in a more serious light. According to 
 him, the five Chinese who held the Jemadar prisoner, were preced- 
 ed and followed by a large mob of Chinese and Klings, which 
 made a rush on himself and the rest of the police, in the course 
 of which one, Pierce, was knocked down, and the defendant knock- 
 ed up against a pillar. If this be so, it is singular that the five 
 
142 CIVIL OASES. 
 
 Maxwell, R. Chinese who brought the policeman were the only men arrested, 
 
 1859 t and that none of the mob were apprehended. I am rather dis- 
 
 Che Him posed to believe that Thompson's account of the scene, is more 
 
 & obs. accurate. He describes the crowd as consisting, not of com- 
 
 Robertbon batants, but of the idlers who were hanging about the Magistrate's 
 & ors. X Court, and who, on seeing the strange sight of a policeman a pri- 
 soner in the hands of five Chinamen, flocked out of the Court, not 
 to assist, but to look on. I confess I do not believe in the story 
 of five Chinamen marching to the Police Office and making a deli- 
 berate onslaught on two or three times their number of officers, 
 European and Malay ; and I think that Mr. Robertson would 
 have exercised his office with more temper and discretion if, in- 
 stead of arresting and locking up for several hours these five men, 
 he had calmly inquired into the circumstances which had brought 
 them to the Police Office. So unusual a sight ought surely to 
 have led him to enquire into its cause, instead of at once assum- 
 ing that the men who had seized the policeman, must be in the 
 wrong. It might have been that he had committed a felony, for 
 aught he knew, however, I think the defendant was acting within 
 his jurisdiction. The Chinaman had no right to seize the police- 
 man as he did. He ought to have taken his number instead of 
 assaulting him. Mr. Robertson's act was, in my opinion, neither 
 judicious nor perhaps very well meaning, but I think it was done 
 " under the provisions of the act," and that he ought to have had 
 notice of action. In the action against Hassan, then, there will 
 be a verdict for the plaintiff, with 25 dollars damages and costs. In 
 that against the Deputy Commissioner a verdict for the defen- 
 dant. 
 
 I now come to the last action, Hashim v. Robertson. This is 
 another case in which the whole mischief has arisen from the 
 defendant's assumption of powers which he does not possess, — an 
 assumption which, indeed, would be merely ridiculous, if those 
 over whom the usurped authority was exercised were aware of 
 the true limits of his power, and of their own rights ; but which, 
 in their present ignorance, leads sometimes to consequences, which 
 are not ridiculous. The leading facts of the case are these : a 
 woman named Pah came to the defendant, and informed him that 
 another woman named Minah, had been forced by the plaintiff to 
 prostitute herself, that she had been sold by him to another man, 
 and that he had taken her property from her. The defendant 
 says he desired Subadar Amir to go with Pab and make inquiry — 
 to see where the girl was, and ascertain if she was detained against 
 her will, or her things had been sold. He left the matter entirely 
 to his judgment. If so, we have a curious example of the manner 
 in which Police Subadars exercise their judgment in Penano-. He 
 went, at about 6 p.m., to the plaintiff and to another man "lamed 
 Mahomed Salleh. What he said to them was not evidence against 
 the defendant, and was therefore not stated ; but both of the men 
 found their way forthwith to the Police Office and were locked up 
 for the night. The defendant positively denies that he ever 
 ordered the Subadar to arrest the plaintiff ; but when I find, as 
 was proved by Nagore Mira, and not positively denied by de'fen- 
 
STRAITS SETTLEMENTS, 143 
 
 dant, that on the same evening at about 8.30 o'clock, the defen- Maxwell, E. 
 dant was informed of the arrest, and that he refused to release 185 ' 
 the plaintiff except on better bail than was tendered to him ; aud Chb Him 
 when I find him, according to his own admission, having the & 0Iiq - 
 plaintiff brought into his room with some others, merely on the fol- EoBB „' Tg0 j, 
 lowing day, and trying to frame some charge against him, I must & es. 
 say thatnobwithstanding his assertion to the contrary, I can come 
 to no other conclusion from the facts than that he did order the plain- 
 tiff's arrest. I do not think that a Subadar would have ventured 
 ex mero motu to apprehend two men on the defendant's order to 
 inquire and if the defendant had not given the order, 1 think he 
 would have explained to the policeman the absolute illegality of his 
 proceeding, and rectified his grave error at once by liberating the 
 plaintiff. But he did nothing of the kind. The plaintiff says that 
 the day after his having been taken into custody, he was conducted 
 by a peon to the defendant who asked him if it was true that he 
 had taken Minah to Syed Mahomed to borrow money ; and upon 
 the plaintiff saying that he had, as she owed him 40 dollars, the 
 defendant ordered the Jemadar to take him away and lock him v/p. 
 -The defendant does not deny that he gave this order. The plain- 
 tiff went on to speak of subsequent interviews of the same kind, 
 but I did not believe him. We have, however, the plaintiff arrest- 
 ing, as I think his conduct proves, aud then keeping in confine- 
 ment for some 36 hours, a man charged with he hardly knew what, 
 according to his own account ; — for if that account be oesrect, it 
 was not until the 16th, the day after the plaintiff's arrest, thai he, 
 the defendant, framed the charge which now stands in the Magis- 
 trate's book against the' plaintiff, of detaining a woman against the 
 will of her lawful guardian for the purpose of prostitution, which 
 is made a misdemeanour by the 44th Section of the Police Act. 
 This was the substance though not the exact language of the 
 charge. The same charge, however, stands in the same words in 
 the Inspector's charge-sheet under date of July 15; but the de- 
 fendant suggested that the officer copied the entry from the 
 Magistrate's book — that is, in other words, locked up the man for 
 the night without any charge being made against him^ This ver- 
 sion of the facts, indeed, does not improve the defendant's case. 
 It -would shew that he had the plaintiff arrested first, and then 
 endeavoured to find out why. I should be slow, however, to ac- 
 cept, without- further evidence, this theory either of the defen- 
 dant's harshness or of the Inspector's neglect; and from the 
 curious language of. the charge, I am inclined to think that the 
 Inspector did his duty, and that the defendant was not engaged 
 on the 16th in forming a charge, as he says, but in questioning his 
 prisonei'3, as to their guilt — a course which I have never "heard 
 commended in England, but have sometimes heard severely repre- 
 hended from the Bench. Now, the plaintiff's imprisonment was 
 wholly illegal. A Justice of the Peace may apprehend without war- 
 rant for felony or breach of the peace ; but for a misdemeanour 
 without, violence, no person can be apprehended without a warrant. 
 And even to issue a warrant in the first instance, instead of a 
 summons, except in cases of great aggravation, or where there are 
 
144 CIVIL OASES. 
 
 Maxwell, R. grounds for believing that the party is about to abscond, is a very 
 
 1859 - harsh and improper measure. This case, then, resembles Leonard 
 
 Che Him v. Cook. The defendant's act was not the erroneous exercise of a 
 
 & oes. power vested in him, but the assumption of a power which he had 
 _ "• not, and could not reasonably conceive that he had. It is impossi- 
 
 & ors. ble to say that such an act was " done or intended to be done 
 " under the provisions of the Act," and therefore the defendant is 
 liable, notwithstanding that more than 3 months have elapsed, and 
 he has had no notice of action. In considering the question 
 of damages I am not unmindful of the worthlessness of the plain- 
 tiff. It appeared pretty clearly, in the course of the case, that he 
 was a disgusting wretch who lived upon the wages of a poor girl's 
 prostitution. But the question is not whether the plaintiff is a 
 wretch, but whether the defendant has not acted tyrannically and ' 
 oppressively towards him ; and though I cannot give him heavy 
 damages, I must make them sufficient to mark in some degree my 
 sense of the impropriety of the defendant's conduct. The verdict 
 will be for the plaintiff, with 50 dollars damages. 
 
 I must not dismiss this case, however, without noticing an 
 act of illegality on the part of the defendant which was elicited, 
 in the course of the trial. A man of the name of Sheila Merican, 
 who gave evidence, stated that he had also been a witness when 
 the plaintiff was tried by the Magistrate ; and in answer to the 
 question where he had passed his time for the four or five days— 
 from Friday to Wednesday — that the case was under the Magis- 
 trate's consideration, he said that he had been kept in the guard 
 room of the Police, and that though he had offered bail, the de- 
 fendant had refused to accept it. He said, also, that though the 
 Police Magistrate told him on. the Tuesday that he might go home, 
 he was marched back by a policeman to the guard room, and kept 
 a prisoner there till the following day. Here then, I come upon a 
 practice which is new to me, but which I shall forbear, at pre- 
 sent, from characterising as it deserves. If a witness obstinately 
 refuses to bind himself to appear at a criminal trial, the Magis- 
 trate may lawfully commit him till he give sureties. But here 
 was a witness who had shewn no indisposition to attend, who 
 even offered bail for his attendance ; and yet he was kept a close 
 prisoner. I never heard of anything to equal this, and I can only 
 say it is fortunate the man did not bring an action for his im- 
 prisonment. 
 
 In assessing the damages in these actions, I have desired to 
 make them as moderate as they could well be. And I have done 
 so for two reasons : first, because the actions were brought late in 
 the day ; and persons who have grievances should not let them 
 sleep for a length of time before complaining ; and secondly, 
 because I cannot help fearing that the officers of Police of this 
 place have been too long left without having the full sense of re- 
 sponsibility brought home to them, and usage is some mitigation 
 for wrongful acts, even whenever so wrongful. The Police appear 
 to be left entirely uncontrolled by their chief. It was with 
 great regret that I heard Mr. Lewis, the Commissioner of Police, 
 say in his evidence in the case of Che Him v. Robertson, that 
 
STRAITS SETTLEMENTS. 
 
 145 
 
 Che Him 
 
 & oas. 
 
 v. 
 
 Robertson 
 
 & OR 3. 
 
 though the wife and mother of the plaintiff had petitioned him on Maxwele,R. 
 the subject of Che Him's imprisonment, he had not interfered, 1859- 
 and that he had told them he never interfered in such matters. 
 Why not? It was his duty to interfere ; and the Commissioner 
 of Police never made a greater mistake in his life than in imagin- 
 ing that by declining to execute the duties of his office, he relieved 
 himself from its responsibilities. As great responsibility attaches 
 to nonfeazance as to misfeazance, and Mr. Lewis should know 
 that those who stand by, and permit which it is in their power 
 to prevent or to terminate, are responsible for them. If the Com- 
 missioner had interposed his authority between his Deputy and 
 the plaintiff, as I think he ought to have done, the latter and 
 many other innocent men would have been saved much suffering, 
 and the former the present action. I trust that I shall not have 
 many more such actions as these to ti - y; but if the Police authori- 
 ties or the local Government will not interfere to prevent or punish 
 the illegal acts and the excesses of Police Officers, the people of this 
 place may, at all events, rest assured that they will always find 
 redress for such conduct in Her Majesty's Supreme Court. 
 
 NAIENE 
 
 March 2. 
 
 AHMED TAJUDIN BIN SULTAN ZAIN NOOE EASHID, 
 
 [EAJAH OP QUEDAHJ 
 
 and 
 
 WAN ISMAIL, [a J 
 
 A Foreign Sovereign cannot be sued in the Courts of this Colony, simply because Penang. 
 
 he happens to be a natural born British Subject according to our own law, if he has not 
 
 acted, or done anything bywhich it might be inferred that he acted as a subject. Maxwell, K. 
 
 In a suit against such an individual, it is- not necessary to aver in the bill or 1861. 
 declaration„that he is subject to the jurisdiction of the Court. This is a matter that 
 should come from him, and if in his plea he does not say he is exempt from the juris- 
 diction, it must be presumed that he is not so exempted. 
 
 Query. Whether a person, after he has been once recognised by the British Crown, 
 as an independent Sovereign, can thereafter be considered a subject of that Crown ? 
 
 Bill for partnership accounts. The second defendant filed an 
 answer. The first defendant pleaded in bar, as follows: — 
 
 " The plea of Sultan Ahmed Tajudin Mokaram Shah bin Sultan 
 " Zain al Eashid, who has been erroneously sued by the name of 
 " Ahmed Tajudin bin Sultan Zain Noor Eashid and by the descrip- 
 " tion of Governor or Euler of Quedah, to the petition of Law- 
 " rence Nairne, plaintiff. 
 
 " This defendant by protestation not confessing all or any of 
 " the matters or things in anrt^by the said petition set forth and 
 "alleged to be true, for plea to the whole of the said petition, in so 
 " far as the same doth concern this defendant, saith that this de- 
 fendant before and at the time of the commencement of this 
 " suit was, and still is, a sovereign prince, that is to say, the reign- 
 fa] See Ishmahel Laxamana v. East India Co. and In re Trebeck, ante p. 4. — also 
 see if, v. Tunkoo Mahomed 8aad cf - ors„ Criminal Bulings, Vol. II. of these Reports, 
 
146 
 
 CIVIL OASES. 
 
 1861. 
 
 Naibne 
 
 v. 
 
 Kajah of 
 
 QuEDAH & 
 AKOB. 
 
 MaX i^ i "' B ' "* n § sovereign of the kingdom of Quedah, a state tributary to the 
 " kingdom of Siam, and that by reason of the premises he ought not 
 " to be compelled, against his will, to answer to the said petition in 
 " this honorable Court, or to any suit or action in respect of the 
 " matters in the said petition mentioned, before any Judge or in 
 " any Court whatsoever. Therefore this defendant doth plead 
 " his said sovereignty in bar to the plaintiif's petition, in so far as 
 " the same concerns this defendant, and prays the judgment of this 
 " honorable Court whether he should be compelled to make any 
 " further answer thereto." 
 
 The case was heard on the 25th, 27th "February, and again on 
 this day. 
 
 Plaintiff [in person]. The plea alleges that the defendant 
 whose real and proper name and style is " Sultan Ahmed Tajudin 
 Mokaram Shah bin Sultan Zain al Eashid," was before, and at the 
 commencing of this suit and at the time of pleading such plea a 
 sovereign prince, namely the reigning sovereign of the kingdom 
 of Quedah, a state tributary to the kingdom of Siam — and that 
 in consequence, this Court has no jurisdiction against him. I 
 shall call this defendant by way of distinction from the other 
 defendant, "Eajah of Quedah," by which name he is generally 
 called. The Court has not now to consider and decide whether 
 the Rajah is such a sovereign prince as he claims himself to be, 
 for it is not the truth of the plea which is now in question but its 
 validity. 
 
 For this purpose, as the Eajah has not supported his plea by 
 any answer on oath contradicting any part of the bill, the bill 
 must be taken to be true, except in the statement of such facts of 
 which the Court will take judicial notice which may have been 
 erroneously stated in the bill. 
 
 The case in the bill against the Eajah, so far as it is necessary 
 to be now noticed, is as follows : — 
 
 That the plaintiff during the partnership transactions in the 
 bill mentioned carried on a merchant's business in this Island, 
 that the Eajah was born on this Island and resided here, but was 
 at the commencement of this suit residing in Quedah, that he was 
 the virtual owner of the British barque Gratitude, that she was 
 purchased in the name of the other defendant, that the Eajah 
 proposed to the plaintiff to take the entire management of her 
 and employ her in trade, for which purpose the Eajah ordered the 
 other defendant, who was the nominal but at the same time ap- 
 peared on the bill of sale as the apparent owner, handed her over 
 to the plaintiff, and then he refers to the particulars of the deal- 
 ings with the vessel by the plaintiff and the trade carried on by 
 him with and by means of her in co-partnership with the Eajah. 
 
 The bill virtually and in effect makes the Eajah a British 
 subject because he was born on British ground ; and by his plead- 
 ing himself to have since become a sovereign prince, two points 
 arise for the consideration of the Court. 
 
 First,— Whether the Eajah who was born in this Island and 
 thereby primd facie became a subject of the British Crown and is 
 under the jurisdiction of this Court, can have beeome wholly 
 
STBA.ITS SETTLEMENTS, 
 
 147 
 
 Nairne 
 
 V. 
 
 Eajah of 
 
 Q TIE UAH & 
 
 ANOR. 
 
 exempted from such jurisdiction by having since been created an Maxwell, R, 
 independent sovereign. 8 l ' 
 
 Secondly, — If he is not wholly exempted from the jurisdiction 
 but is subject thereto with regard to certain matters, then, 
 whether the bill discloses that the subject matter of it makes out 
 a case in which a person filling the two characters of Sovereign 
 and Subject, is liable to be sued as such subject. 
 
 As to the first point it was laid down in Calvin's Case — 
 [7 Eeports, p. 10 and p. 31 — and see 2nd Vol. Stephen's Com- 
 mentaries, p. 413] that a natural subject is one who is born 
 within the dominions of the British Crown, whether within the 
 United Kingdom or the territories thereto belonging, of parents 
 who are either natural born subjects or aliens and foreign born, 
 or, as Stephen has it, stranger-born, provided the alien parents 
 were not at the time of birth in enmity with the sovereign of the 
 birth-place. There are two other exceptions to this general rule. 
 One is that the children of the sovereign and the heirs of the 
 crown, wherever born, are held to be natural born subjects, and 
 the other with respect to the children of ambassadors. But with 
 these three exceptions the common law holds all persons born 
 within the dominion to be natural born subjects, and therefore a 
 person, prima facie so born, will be held to be a natural born 
 subject, the law presuming for the general rule and not for the 
 exceptional case, which, if any, must be pleaded — and here the 
 Eajah has not put in any answer denying the statement of his 
 birth — which is in the bill, or pleading any facts which would 
 make out an exceptional case for him. The Court will take 
 judicial notice of the sovereignty of the Eajah, which is admitted 
 for the purpose of this argument, and perhaps when he came to 
 the throne, but it will not take judicial notice of the date of his 
 birth or where that happened and whether or not the Eajah was 
 then the son of a sovereign or of any other facts which would 
 take away the effect of his birth from the general rule I allude to ; 
 and even if the Court did, before it would do so, the facts either 
 affirmatively or negatively in assertion or contradiction of the real 
 facts, must appear somewhere on the face of the pleadings, for it 
 is not for the Court to take the trouble of searching out for the 
 benefit of a suitor and bringing to light every fact of which it 
 will take judicial notice which is not in any way referred to in the 
 pleadings ; but supposing the Court would do this, what are the 
 facts ? 
 
 The Eajah of Quedah in 1821 was expelled by the Siamese 
 Government from the country and took refuge with his family 
 in Penang — the Siamese held the country till the middle of the 
 year 1842, when the Eajah was reinstated in the government of 
 Quedah. This was the grandfather of the present defendant ; 
 while in Penang, Tunku Dai, the third son of the old Eajah, 
 married here Wan Maran, the daughter of the Bundahara of 
 Quedah, and their issue, to the number of 6 or 7, were all born 
 here on British ground. There can be no question as to the 
 nature of the occupation of Quedah by the Siamese ; the treaty 
 between Siam and the East India Company of 1826, through Major 
 
1-13 
 
 CIVIL OASES. 
 
 Maxwell, r. Burney, in article XIII., states that the English engage to the 
 1 b1 ' Siamese that they will not permit the Eajah, who is styled "the 
 
 Naibne 
 
 v. 
 
 Bajah of 
 
 QtTEDAH (fc 
 ANOK. 
 
 former Governor," to attack, disturb or injure in any manner the 
 territory of Quedah, which is there stated to be subject to Siam, 
 and in another part of the Treaty a Siamese Country — vide article 
 X ; and that the Siamese should remain in Quedah and take proper- 
 care of it; that the inhabitants of ' Quedah and Penang should 
 have trade and intercourse, and that the Siamese should levy no 
 duty upon certain articles of food required by the inhabitants of 
 Penang, and should not farm the mouths of the rivers of Quedah, 
 &c. Whatever may be the question of the Rajah's sovereignty, 
 there can be no doubt that the country of Quedah was perma- 
 nently occupied and treated as part and parcel of the territories 
 of the Siamese Empire. I will not say that the country was con- 
 quered because in the whole of their conduct, the Siamese treated 
 the country as having belonged and belonging to them, and that 
 it was their due right to expel the old Rajah from the government 
 of it, whom they style a Governor and the acts of the Siamese were 
 by this treaty recognized by the British Indian Government as 
 being legitimate; and this part of the treaty not only remains till 
 now unrepealed but has had double effect given to it by the late 
 Treaty of the Home Government with the Siamese confirming it, 
 and in 1831, while the old Rajah was a refugee in Penang, the 
 Ligor Chief and Mr. Ibbetson, then the Chief Officer in the Straits 
 Settlements, settled the boundaries between Quedah and Province 
 Wellesley. 
 
 Can it then be said that when the present Rajah was 
 born he was the son of an independent sovereign, assuming 
 that his grandfather was an independent king. When he was 
 driven out of his country he certainly was not king de facto 
 and whatever his claims were the British Government recog- 
 nized them not, but on the contrary supported the Siamese 
 authority in Quedah; in the same way that the British Govern- 
 ment now recognize the French Empire under Napoleon the 
 Third. What is now the position of the family of Louis Phil- 
 lippe ; would the issue of a son of his now born in England be 
 considered a French or an English subject ? Would he not 
 be considered in a British tribunal as being a natural born 
 subject in the same way as it would view the child of any French 
 parents born in England ; whose subject otherwise would such 
 a person be ? 
 
 That the Rajah of Quedah was afterwards reinstated in his 
 Government can add no difficulty to the subject, assuming that by 
 it he resumed his sovereignty, because it is not the case of any 
 expulsion from his kingdom which he regained before the 
 authority of the invador was recognized by the British Govern- 
 ment; here his expulsion and the Siamese' authority in Quedah 
 was recognized by the British Government for upwards of 20 
 years during which time he was neither King de facto nor de jure 
 so far as the British Government and its tribunal's of justice are 
 concerned, which always act in unison with the Government with 
 regard to its foreign relations ; and the issue of any of his sons 
 
S^RAlTS SETTLEMENTS. U9 
 
 born within British dominions must come within the general rule Maxwell, R. 
 making the issue a natural-born subject. 1861- 
 
 By the law of England a natural-born subject can never divest u AIRNE 
 himself of that character without an act of parliament free- v . 
 
 ing him from its responsibility. Bowyer's Constitutional Law , 402. Rajah of 
 In the case of 'I'he Duke of Brunswick v. The King of Hanover who YnoiT 
 was a British subject, 6 Beavan, the Master of the Rolls decided, 
 notwithstanding his acquisition of a kingdom, that the inviola- 
 bility of the King, who was a British subject, as a sovereign 
 prince was modified by his character and duty as a subject of the 
 Queen of England ; that he was exempt from all liability of being 
 sued in the English Courts for any of his acts as King of Hanover, 
 but that, being a subject of the Queen, he was liable to be sued 
 in her Courts in respect of any acts and teansactions done by him 
 or in which he might have been engaged as such subject. 
 
 It is true that the decision there was founded on the particu- 
 lar circumstance that the King of Hanover, after his accession 
 to the throne, so far from renouncing or having any desire to re- 
 nounce his allegiance to tbe Crown or his subjection to the laws of 
 England ; so far from admitting it to be questionable whether his 
 sovereignity and the recognition of it by the Queen had dissolved 
 such allegiance or subjection ; had renewed his oath of allegiance 
 and taken his seat in the English legislature ; and had claimed 
 and exercised the political rights of an English subject and peer. 
 
 But the Master of the Rolls in delivering his judgment with 
 reference to the similar position of other princes to the countries 
 of their origin in Europe, said " there are in Europe other sover- 
 " eign princes who, if not now, have been, subjects of the country 
 "of their origin or adoption; upon such a question as this I 
 " cannot disregard those cases, but they may have their specialities 
 " of which I am not aware." 
 
 " I cannot venture to say that a subject acquiring the charac- 
 " ter of a sovereign prince in another counhy, and being i-ecogniz- 
 " ed as a sovereign prince by the sovereign of the countiy. of his 
 " origin, may not, by the act of recognition in ordinary circumstances 
 " and by the laws of some countries, be altogether released from the 
 " allegiance and legal subjection which he previously owed." 
 
 It is evident that the Master of the Rolls strongly inclined to 
 the opinion that, even without the peculiar circumstances of the 
 case before him, the King of Hanover was liable to be sued in an 
 English Court in respect of his acts and transactions as a subject; 
 he evidently intended to say that, whatever were the laws of some 
 other countries, the laws of England did not release a subject who 
 might acquire a sovereignty from his allegiance and legal subjec- 
 tion to its laws. 
 
 The Rajah may have become a British subject under peculiar 
 circumstances ; none however of these circumstances can be attri- 
 butable to the British Government ; his grandfather fled for refuge 
 here with his family from whom the present defendant has sprung ; 
 and if it were not owing to the, pardon granted the old Rajah by 
 the King of Siam the whole family might be glad of protection ; 
 the peculiar circumstances of their case cannot avoid the rule un- 
 
150 
 
 CIVIL CASES. 
 
 Maxwbh.e. ] esg they fall within one of the exceptional classes— which they 
 l 8 " 1 " do not. The question is, whether the present defendant is not 
 
 of 
 
 Naibnb 
 
 V. 
 
 Rajah of 
 
 QUEDAK & 
 
 ANOIt, 
 
 entitled to the privileges of a British subject or more properly 
 whether he would not have been so entitled, but for any acts he 
 inay Lave committed by which he has forfeited them? 
 
 Ciui it be said that Rajah Brooke is the less a British subject 
 because he has acquired Sarawak ? 
 
 As to the second point. In the case of Brunswick and 
 Hanover it was held that in a suit against a sovereign prince the 
 bill should, on the face of it, disclose that its subject matter con- 
 stitutes a case in which a sovereign prince is liable to be sued as 
 a subject — in p. 53 of the judgment. 
 
 Here it sufficiently appears by the bill that the subject matter 
 of this suit is of that description as it relates to a trading part- 
 nership which was originated by the Rajah, which was intended 
 to be and was carried on by the plaintiff in Prince of Wales' Island 
 with a vessel of the Rajah having British colors. 
 
 In Cremidi v. Powell, The Gerasimo [Moore's Privy Council 
 Cases, vol. xi.] which was the case of a vessel seized by an English 
 man of war during the Russian war, the question was whether the 
 owners of the cargo were to be considered alien enemies and the 
 judgment proceeded to say. — "If a war breaks out, a foreign 
 " merchant carrying on trade in a belligerent country has a rea- 
 " sonable time allowed him for transferring himself and his pro- 
 " perty to another country ; if he does not avail himself of the 
 " opportunity, he is to be treated, for the purposes of the trade as 
 " a subject of the power under whose dominion he carries it on ; 
 " upon the general principles of law applicable to this subject their 
 " can be no dispute. The national character of a trader is to be 
 " decided for the purposes of the trade by the national character of 
 " the place in. which it is carried on." 
 
 For the purpose of the partnership transactions carried on by 
 the plaintiff and the Rajah, the same principle must apply. The 
 trade was carried on in.Prince of Wales' Island, and for that pur- 
 pose the national character of the Rajah must be that of an 
 English subject. 
 
 firaddell. for defendants. 1st. — The statement in the bill 
 that the Rajah was born in Penang is not sufficient to constitute 
 the status of British subject, for there are several exceptions, such 
 as birth in the house of an ambassador, or in a part of the 
 British territory occupied by an enemy : Calvin's case, 7 Rep. 18a, 
 and the Bill does not, as in' the case of The King of Hanover .v. The 
 Duke of Brunswick, charge, in express words, that the King was a 
 subject of this realm. It was for the plaintiff to show that the 
 defendant was subject to the jurisdiction, not for the defendant 
 to shew that he was exempt, and the plea supplies what is neces- 
 sary on the defendant's part, in stating, as it does expressly, that 
 the Rajah is sovereign prince ; Duke of Brunswick v. King of Han- 
 over, 5 Beav. 1. 
 
 [Maxwell, R. — The mere fact of birth in the British domi^ 
 nions is a sufficient allegation of subjection, and if subjection is 
 denied the denial must be specially pleaded, and not being 
 
STRAITS SETTLEMENTS. 151 
 
 specially pleaded it must be taken, for the purpose of the argu- Maxwbh,E. 
 ment, that the Rajah is. a British subject.] 1861 ' 
 
 2nd. — Even if a British subject at the time of his birth, the Naiknb 
 Rajah is now a sovereign prince, and, as such, is exempt from the v - 
 
 jurisdiction of any municipal court, — the King of Hanover's case q^^I, 
 above cited ; and, on the authority of the same case, it is con- akob. 
 tended that the plaintiff ought to have shewn on the bill that the 
 contract alleged was entered into within the British territory, and 
 was of a character which excluded the supposition that it was 
 entered into by the Rajah in his capacity of sovereign, and there 
 is nothing in the bill to shew, in a part of the world where sover- 
 eigns enter into trade for revenue purposes, that the contract 
 alleged in the bill was not an act of state. 
 
 3rd. — In the King of Hanover's case, the Master of the Rolls 
 guarded himself carefully throughout his judgment, by restricting 
 every position laid down of a foreign sovereign born in England 
 and owing allegiance to the British Crown being liable to the 
 Courts in England for all acts done by him in his capacity of sub- 
 ject, to the case of such a sovereign himself claiming his rights 
 as a British subject, and actually residing in England in the 
 exercise of such rights at the time of suit brought. Now the 
 Rajah of Quedah, though born in Penang, was so born the son 
 of a sovereign prince then in exile from his dominions, and received 
 by the British Government as such exile, and afterwards re- 
 stored to his throne in 1842, at which time the defendant was a 
 mere child, and so far from acting as the King of Hanover did 
 after his accession to the throne of Hanover, the Rajah of Que- 
 dah has always repudiated subjection to the British Crown, and 
 has never come back to any part of the British dominions since he 
 left Penang in 1842, except on short visits of a day or two on 
 state business. Therefore this case is much stronger than the 
 Duke of Brunswick v. the King of Hanover ; and at the time of, 
 or within a few months of, the Rajah's birth in Penang this 
 Court at Malacca, held, that his grandfather was then a sovereign 
 prince, and exempt from the jurisdiction of this Court". At that 
 time the defendant's father was in attendance on his sovereign, 
 and the defendant having been born in exile was born in allegiance 
 to his grandfather and not to the British Crown. There is strong 
 authority for saying that the expulsion of a sovereign from his 
 territory does not take away the allegiance of his subjects ; see 2, 
 Howell's State Trials, 570, 595, 692, and it is contended that 
 although the infant born in Penang owed allegiance in return for 
 protection, this allegiance was only local and temporary and ceased 
 on removal from the British dominions, for, by analogy in English 
 Law which makes the heirs to the crown British born subjects, 
 wherever they may be born, it is clear that in this case the Rajah 
 being born under the allegiance of his grandfather could ows no 
 allegiance to the British Crown, any further and any longer than 
 as a return for protection granted by that crown, and when pro- 
 tection ceased, allegiance ceased with it. 
 
 Lord Langdale, in the King, of Hanover's case, says " I can- 
 ' " not venture to say that a subject acquiring the character of a 
 
1S2 
 
 CIVIL CASES. 
 
 18G1 
 
 Nairn E 
 
 v. 
 
 Rajah of 
 
 QuEDAH & 
 ANOK. 
 
 Maxwell, E. " sovereign prince in another country, and recognized as a sover- 
 " eign prince by the sovereign of the country of his origin, may 
 "not, by the act of recognition in ordinary cases and by the laws 
 " of some countries, be altogether released from the allegiance and 
 " legal subjection which he previously owed ; but this case must. 
 " depend on its own circumstances." It is contended that if any 
 circumstances could warrant the conclusion the present case does. 
 
 4th. — The Bill states that the Rajah proposed a contract to 
 the plaintiff, and this contract was afterwards agreed upon by the 
 Eajah. At the time of this alleged agreement, the Eajah was 
 certainly in Quedah, and to make him liable to the jurisdiction, 
 under the authority of the King of Hanover's case, the bill ought 
 to have expressly charged that the contract was entered into and 
 completed by the Eajah while he was in the British dominions in 
 the exercise of his rights as a British subject. 
 
 5th. — The reasons on which the exemption of sovereigns 
 depend exist in this case, as— how could the process of the Court 
 be served, how could this Court exercise any authority over a man 
 who claims and exerts the right of sovereignty, and who is recog- 
 nized by this Government as a Sovereign ? War is the only 
 remedy between states or sovereigns for injuries when the sover- 
 eign, even if a subject of the State, is sued for matters done by 
 him out of the realm at a time- when he is not, within the realm. 
 
 [He also referred to the following authorities: Sir Harry 
 Vane's case, 6 Howell's State Trials, 119. Taylor and Barclay, 
 2 Sim., 213. Mundm v. Duke of Brunswick, 10 Q.B., 656. Be 
 Saber v. Queen of 1 'ortugal, and Wordsworth v. Queen of Spain, 
 20 L.J. Q.B. 488. Marten's Law of Nations, pp. 23, 101, 184, 231. 
 Vatiel's do. [Chitty's edit.] pp. 2, 93, 102, 106.] 
 
 Cur. Adv. Vult.. 
 
 Mai*cb 18. Maxwell E. The bill in this case states that the 
 plaintiff is a merchant carrying on business here ; that the first 
 defendant was born and has resided in the same settlement, but 
 now resides in Quedah, a territory subordinate to Siam, and of which 
 he is the Governor or Ruler under the appointment of the King of 
 Siam, holding such office during his will and pleasure : and that the 
 other defendant is a trader, a subject of Quedah, but now residing 
 in Prince of Wales' Island. It then goes on to state that in 
 January, 1856, the first defendant whom I shall hereafter call the 
 Eajah, was the owner of the British barque the Gratitude, but 
 that he had purchased it in the name of Wan Ismail, who appear- 
 ed as the legal owner; that the Eajah and the plaintiff, about 
 that time, agreed that the plaintiff should take the entire manage- 
 ment of the vessel, and employ her in trade wheresoever or howso- 
 ever, either on their joint account, or by charter or in freight, 
 or in any other manner that the plaintiff should deem advisable; 
 the plaintiff to make advances for the usual disbursements and 
 expenses of the vessel and for the purchase of cargoes, which 
 were, however, to be eventually borne by both parties equally, and 
 they were also to share equally in profit or loss; the expenses of 
 repairing tne vessel and of providiug her with rigging, tackle and 
 other necessaries were to be advanced by the plaintiff, but to be 
 
STRAITS SETTLEMENTS. 
 
 153 
 
 Rajah or 
 Quedah & 
 
 ANOK. 
 
 borne by the Rajah exclusively. The bill then states that Wan Maxwell, E 
 
 Ismail, by the direction of the Rajah ; executed a power of attor- ; 
 
 ney, to enable the plaintiff to act in the management of the vessel Nairne 
 and partnership,- with regard to third parties ; that the vessel 
 made several voyages, that the account of the first was furnished 
 to the Rajah himself but as to all subsequent accounts, copies of 
 them were taken for the Rajah by Wan Ismail, who wa3 empower- 
 ed to act for him as his agent. Finally, the bill states that the 
 barque was chartered by one Oong Achoon, in April, 1857, for a 
 voyage to China, and was lost in the month of October in the 
 same year, off the coast of Cochin China; that the vessel was so 
 chartered before, and not, as the bill alleges that the Rajah 
 insists, after the Rajah had requested the plaintiff to return the 
 vessel to him ; that the sum for which the vessel was chartered was 
 6,000 dollars, of which 3,500 were to be paid only on her return to 
 Penang ; that the freight was insured in the plaintiff's name in 
 the Calcutta Mercantile Marine Insurance Society who refused to 
 pay, and who were being sued in Calcutta in consequence. The 
 bill concluded by alleging that, not taking into account the said 
 sum of 3,500 dollars, the result of the partnership transactions 
 left the Rajah owing the plaintiff $2,789.09; it says that Wan 
 Ismail claims some interest in the transactions ; and it prays that 
 an account may be taken iu this Court of these dealings, and that 
 the defendants may be decreed to pay what shall be found due to 
 the plaintiff. 
 
 To this bill the Raj ah of Quedah has pleaded that before and 
 at the time of the commencement of this suit, he was, and still is a 
 sovereign prince, that is to say, the reigning sovereign of the 
 kingdom of Quedah, a state tributary to Siam ; and that by rea- 
 son of. the premises, he ought not to be compelled to answer the 
 bill, or any suit in respect of the matter in question in any Court. 
 
 The question which I have to decide, on this state of facts is, 
 whether the Rajah of Quedah is amenable to the jurisdiction 
 of this Court in this suit. 
 
 The fact of his being tributary to another sovereign is not 
 inconsistent with 'his own sovereignty, and is immaterial for the 
 purposes of this suit. "Though the payment of tribute to a for- 
 " eign power does in some degree diminish the dignity of tributary 
 " states, from its being a confession of theirjweakness, yet it suffers 
 " their sovereignty to subsist entire." ' Vattel B. 2. c. 1. s. 7. 
 
 Since the full discussion which the question underwent in the 
 case of The Duke of Brunsivick v. The King of Hanover, 6 Beav. I., 
 it cannot be doubted that, as a general rule, a sovereign prince 
 cannot be sued in the Courts of a foreign country. To this rule 
 there are exceptions, the chief of which is that if a sovereign sues 
 in. a foreign Court, he may be sued there in respect of the same 
 subject matter. The reason of this exception is obvious : in 
 appealing to a Court, he submits to its jurisdiction in respect of 
 the subject in dispute, and he must abide by its principles and 
 procedure in the same manner as an ordinary suitor. Lord Lang- 
 dale, in his judgment in the case just cited mentions, as other 
 exceptions to the rule, cases where a fund is to be distributed, in 
 
154 
 
 CIYIL CASES. 
 
 Maxwell, E, 
 1861. 
 
 Naibnb 
 
 v. 
 Rajah of 
 Quedah & 
 
 ANOB. 
 
 ■ which a sovereign may have an interest or where his agent is 
 sued in respect of some matter in which the sovereign is interested 
 as principal, in which case he may be made a party to the suit ; 
 but these exceptions are perhaps more apparent than real, for in 
 those cases it is not pretended to compel the foreign sovereign to 
 submit to the judgment of the Court. He is merely offered an 
 opportunity of establishing his interests, or of defending them, 
 when the suit is against his agent instead of leaving their defence 
 to such agent. 
 
 Another exception to the general rule is that which Lord 
 Langdale laid down in the case already referred to, of The Duke of 
 Brunswick v. The King of Hanover. In that case, the King of Han- 
 over, a British subject, a Peer of the Realm and a Privy Councillor, 
 returned to England after his accession to the Crown, took the 
 oath of allegiance to Her present Majesty, and exercised the func- 
 tions of a Peer and Privy Councillor. While still in England, he 
 was sued by the Duke of Brunswick ; and the Master of the Eolls, 
 while holding that, as a general rule, a foreign sovereign is not 
 amenable to the jurisdiction of our Courts, held also that the 
 King of Hanover might be sued in them for acts in which he was 
 engaged, not as a sovereign, but as a private person. The plain- 
 tiff contended that this case governed the present. He also 
 contended that the Rajah was not to be considered as a subject 
 in this suit, on the authority of a passage in the judgment of the 
 Privy Council in the case of The Gerasimo [11 Moo. P. C. 88] to the 
 effect that "the national character of a trader is to be decided 
 "for the purposes of the trade, by the national characterof the coun-, 
 " try in which it is carried on." But this, to dispose of the point at 
 once, has no bearing on the present subject. The passage in ques- 
 tion refers to the case of a foreigner residing in a belligerent coun- 
 try, and carrying on a trade there,. and to the rule of prize law in 
 such a case, that his property, [or so much of it, at least, as is 
 connected with his establishment in that country,] is subject to 
 • capture, as much as the property of natural born subjects. For 
 this purpose, and to this extent, a belligerent has a right to treat 
 all persons who reside in a hostile country, whatever their real 
 national character, as enemies ; but it is difficult to see what con- 
 nection this rule can have with the present case, where there is-no 
 question whether the Rajah is friend or enemy. Analogies from 
 the law of prize would not- lead to the consequence desired by the 
 plaintiff. If a war had broken out between England and a foreign 
 power, during the trade, the Rajah's share in the joint property 
 would have been protected from capture, though he was a British 
 subject, precisely because he was not domiciled here. See also 
 such cases as The Osprey, 1 Rob. 14 ; and The Herman, 4 Rob. 228. 
 
 It was contended on behalf of the Rajah, that it did not 
 appear upon the face of the bill that he was a subject of the 
 Queen, — the statement of his being born in Prince of Wales' 
 Island not necessarily leading to the inference that this made him 
 a subject, in the absence of averments negativing that he was the 
 son of a sovereign, or of an ambassador, or of an alien enemy in 
 hostile possession of the country. Further, it was contended that 
 
STRAITS SETTLEMENTS. 155 
 
 even if the Rajah did not fall within any of these exceptions, it Maxwell, R. 
 was not law that he was, by his birth in the Queen's dominions, a 1861 - 
 subject of the Queen. It was also said that there was nothing in naiknb 
 the transactions which were the subject matter of the suit to v. 
 
 establish that the Rajah had engaged in them as a private indivi- ^^"ah"*; 
 dual and not as a sovereign ; and that the presumption, according ANO r. 
 to Lord Langdale, [6 Beav. 58,] ought therefore to be that he had 
 acted in the latter capacity. 
 
 As to the point of pleading, I intimated, in the course of the 
 argument, that I thought the bill sufficient, on the ground that 
 matter need not be stated which should come more properly from 
 the other side; and the argument addressed against the bill 
 seemed to me to be more applicable to the plea. In the absence 
 of averments asserting any of those matters which it was con- 
 tended that the bill ought to have negatived, I must take it that 
 the Rajah was born of parents in a private station of life, and 
 owing at least actual obedience to our Sovereign. 
 
 In this state of facts, I take it to be clear that the Rajah of 
 Quedah was, at his birth, a subject of the Queen, according to our 
 law. In Calvin's Case [7 Rep. 18a] it is said that the incidents 
 to a subject born are, that the parents be under the actual 
 obedience of the King, and that the place of his birth be within 
 the King's dominions. Actual obedience is enough, however 
 momentary and uncertain it be, and if one under such obedience 
 hath issue, that*issue is a natural born subject, [id. 6a.] I am 
 not aware that this has ever been doubted to be law ; it is followed 
 by all writers of authority* such as Blackstone and Stephen, and 
 is even noticed as a well known rule of our law by Vattel [Bk 1. 
 c. 19 Sec. 214]. 
 
 Whether the Rajah continued a subject after he became, and 
 was recognised as the sovereign of Quedah, is a different question, 
 but one upon which it is unnecessary to offer any opinion, in the 
 view which I have taken of this case. I shall assume that he did 
 continue, and is now a subject of the Queen ; and then the 
 question is whether, being so, he is amenable to the jurisdiction 
 in the present suit. 
 
 It is necessary to consider, here, what are the grounds of that 
 general rule which establishes the immunity of sovereigns, and 
 what are the grounds of the exceptions to it. " The question," 
 says Lord Langdale, " is to be determined by that which may be 
 " thought to be the law of nations applicable to the case ;' there is 
 " no English law applicable to the present subject, unless it can be 
 " derived from the law of nations, which, when ascertained, is to 
 " be deemed part of the common law of England." — 6 Beav. 45. 
 "If we hold sovereign princes to be amenable to the Courts of 
 " this country, the orders and decrees which may be made cannot be 
 " executed by the ordinary means. Where is the power which can 
 " enforce obedience ? If accidental circumstances should give the 
 " power, and if, for the supposed purposes of justice, an attempt 
 " were made to compel the obedience of a sovereign prince to any 
 " process, order, or judgment, he and the nation of which he is the 
 " head, and probably all other princes and the nations of which they 
 
15(3 
 
 CIVIL CASES. 
 
 Eajah ot 
 
 QlJEDAH & 
 ANOK. 
 
 Maxwell, E, " a re the heads, would see, in the attempt, nothing but hostile ag- 
 ' " gression upon the inviolability which all claim as the requisite of 
 Nairne "their sovereign and national independence . . . It must be ad- 
 " mitted, that the subject is replete with difficulties. These difficul- 
 " ties and the importance of maintaining the legal inviolability of 
 " sovereign princes, can scarcely he shewn more strongly, than by 
 " adverting to the opinions which have been expressed by eminent 
 "jurists, that offences committed by sovereign princes in foreign 
 " states ought rather to be treated as causes of war, than as viola- 
 " tious of the law of the country where they are committed, and 
 " ought rather to be checked by vengeance, and making war on the 
 "offender, than by any attempt to obtain justice through lawful 
 " means." After citing the opinions of Zouch and Bynkershoek, he 
 says : " When great and eminent lawyers, men of experience and 
 " reflection, so express themselves, as to show their opinion, that 
 " less mischief would ensue from the unrestrained and irregular 
 " vengeance of individuals and of the multitude, than from attempts 
 " to bring sovereign princes to judgment in the ordinary Courts of 
 " a foreign country where they have offended, however much we may 
 " lament that such should be the condition of the world, we may be 
 " sure of the sense which they entertained of the difficulty of making, 
 " and of the danger of attempting to make, sovereign princes amen- 
 " able to the Courts of justice of the country in which they happeu 
 " to be . . . After giving to the subject the be.st consideration in 
 " my power, it appearing to me that . . . suits against sovereign 
 " princes of foreign countries must, in all ordinary cases in which 
 " orders or declarations of right may be made, end in requests for 
 " justice, which might be made without any suit at all ; that even 
 " the failure of justice, in some particular' cases, would be less pre- 
 " judicial than attempts to obtain it by violating immunities though 
 " necessary to the independence of princes and nations, I think that, 
 " on the whole, it ought to be considered as a general rule, in ac- 
 " cordance with the law of nations, that a sovereign prince, resident 
 " in the dominions of another, is exempt from the jurisdiction of 
 " the Courts there."— 6 Beav., pp. 48-51. 
 
 From the passage just quoted it appears that the rule is 
 founded on this general consideration, that to require a foreign 
 sovereign to submit to the authority of our Courts would be a 
 violation of immunities- necessary to his independence and a 
 hostile aggression on his inviolability. This would be a legitimate 
 ground of offence to him and to all other Princes, and might lead 
 to war ; and in the choice of evils, it is better that there should 
 be a failure of justice to an individual, than that the state should 
 be involved in danger. And it appears to me that all the exceptions 
 to the rule turn on the existence of peculiar circumstances which pre- 
 clude the giving of legitimate offence and the consequent danger: 
 Thus, the sovereign who appeals to a foreign tribunal cannot com- 
 plain that his sovereign rights are infringed by his being required to 
 answer a cross bill, or a bill of discovery, concerning the same subject 
 matter. So, those rights are not invaded when he is made a party 
 to a suit merely for the purpose of giving him the option of 
 defending his interests already imperilled through his agent, 
 
STRAITS SETTLEMENTS. 
 
 157 
 
 Naienb 
 
 V, 
 
 Rajah of 
 Quedah & 
 
 A NOB. 
 
 And, as it seems to me, it was upon analogous grounds that Maxwell, R. 
 Lord Langdale held that the King of Hanover might he sued. 1S(i1, 
 " If he came here," he sa.ys, " as King of Hanover only, the same 
 " inviolability and privileges which are deemed to belong to all 
 " sovereign princes would have been his, save in peculiar cases, such 
 " as 1 have referred to" [viz., of a sovereign who sues being required 
 to answer a ci'ossbill, &c] "he would have been exempt from all 
 " process. But coming here not as King of Hanover only, but as a 
 " subject, as a Peer of the Realm, and as a member of Her Majesty's 
 " Privy Council, can it be reasonably said that he is exempt from all 
 " jurisdiction, or in other words, from all responsibility for his con- 
 " duct in any of those characters . . . can any Peer or Privy Coun- 
 " cillor, whatever station he may occupy elsewhere, be permitted to 
 " give advice, for which any other Peer or any other member of the 
 " Privy Council might be justly impeached, and yet hold himself 
 " exemptfrom the jurisdiction of the highest tribunal in the realm?" 
 p. 55. "Great inconvenience," he goes on to say, "may arise 
 "from the exercise of any jurisdiction in such a case. They arise, 
 "-perhaps, from the two characters which his Majesty the King of 
 " Hanover unites in his own person, and from, the claim which he 
 " voluntarily makes, to enjoy or exercise, concurrently, in this coun- 
 try, hisrightsasan English subject, Peer andPrivyCouncillor . . . 
 " Remaining in his own dominions, or in the dominions of another 
 " prince of whom he is not a subject, he would, as I presume, be 
 " exempt from all forensic jurisdiction. But he comes to this coun- 
 " try where he is a subject, and claims and exercises his rights as 
 " such." pp. 55, 56. " Admitting it to be the general rule, that 
 " sovereign princes are not liable to be sued, and that all sovereign 
 " princes may consider themselves interested to maintain the in- 
 " violability which each one claims, and that any aggression upon it 
 " might, in ordinary circumstances, be a cause of war ; yei, observ- 
 " ing what is stated to be the law of nations in the case of ainbassa- 
 " dors, conceiving that a rule applicable only to the case of sove- 
 " reigns who are subjects, and think fit actively to exercise their 
 " rights as subjects, cannot have any extensive application and is 
 " not likely to excite any general interest, or any alarm, and having 
 " regard to that which is absolutely required to maintain the relation 
 " of sovereign and subject in any country, I am of opinion that no 
 " complaint can justly or will probably arise, from any legal pro- 
 " ceeding, the object of which is to compel, ,asfar as practically may 
 " be, a sovereign prince residing in the territory of another prince 
 " whose subject he is, to perform the duties of a subject, in relation 
 " to his own acts done in the character of subject only." After this 
 survey of the facts he concludes, " I do not think that I ought to 
 " presume that a sovereign prince, who deems it to be consistent 
 "with his dignity and interest to come here and practically exercise 
 " the rights of an English subject, will not also deem it consistent 
 "with his dignity and interest to yield willing obedience to the law 
 " of England when duly declared." p. 57. In short, the defendant 
 was Duke of Cumberland as well as King of Hanover, and it was 
 because he had, while residing in England, by acts of the most 
 unequivocal kind,. which could not be referred to his sovereign 
 
158 
 
 CIVIL CASES. 
 
 Naibne 
 
 V. 
 
 Rajah of 
 
 QUEDAB & 
 ANOB. 
 
 Maxwbh.E. character, insisted on his rights and privileges of a subject, that 
 1861- the Master of the Eolls thought that he might consider him to 
 have precluded himself from objecting to his being treated, in 
 respect of private and personal transactions, as a private person. 
 In these respects the present case differs altogether from the case 
 of tho King of Hanover. Lord Langdale confined himself to " the 
 " case of sovereigns who are subjects, and think fit actively to 
 " exercise their rights as subjects." — 6 Beav. 56. The Eajah has 
 not exercised any such rights. It was competent for any alien to 
 enter into the mercantile adventure which is the subject of this 
 suit. Lord Langdale confined himself to the case of a foreign 
 sovereign residing within the British dominions. The Rajah is 
 domiciled in his own territories. In all the facts, then, which in- 
 fluenced Lord Langdale's decision, the cases differ wholly ; and the 
 whole train of reasoning in the King of Hanover's case is inap- 
 plicable to the present. It does not fall within any of the other 
 established exceptions to the general rule, nor is it governed 
 by any principle analogous to that on which those exceptions 
 depend. 
 
 The question, then, is, whether a foreign sovereign residing 
 in his own dominions is subject to the jurisdiction of our Courts, 
 merely because he happens to be a subject of our country, by 
 virtue of our peculiar law. There is no authority in support of 
 such a proposition, and I think it cannot be supported on princi- 
 ple. Lord Langdale says, in one of the passages already cited,' 
 that the King of Hanover would have been exempt from ah 
 foreign jurisdiction if he had remained in his own kingdom ; and 
 in another, that even in England he would have been entitled to 
 the inviolability belonging to all sovereigns if he had come as 
 King of Hanover only. The former dictum may have had refer- 
 ence to the state of our law at the time when Lord Langdale 
 spoke, which did not enable our Courts, except in certain classes 
 of chancery suits, to reach parties abroad ; and the latter may 
 also be possibly susceptible of explanation ; but it seems to me 
 that both are correct in the sense applicable to the present subject. 
 Without going the length of asserting that a subject, on becoming 
 and being recognised as a sovereign, is, for all purposes and under 
 all circumstances whatsoever, released from his allegiance, I think 
 that the recognition must be taken as amounting to at least an 
 admission that he is entitled to exercise, in full independence, all 
 those sovereign rights and powers of the nation of which he is 
 the recognised organ. If so, " the danger of attempting to make 
 " sovereign princes amenable to the jurisdiction of the country in 
 "whichthey happen to be," which is the ground of their immunity 
 from suit, exists in his case as much as in that of other princes. 
 And if a sovereign may legitimately treat attempts of the Courts 
 of the foreign country in which he is residing, to enforce his 
 obedience to their authority, as a hostile aggression on his in- 
 violability, it seems to me that he has still stronger grounds for 
 so treating such attempts, when made while he is residing not 
 merely beyond the natural limits of their jurisdiction, the limits 
 of their own territory, but in his own dominions. 
 
STRAITS SETTLEMENTS, 
 
 159 
 
 Nairne 
 
 V. 
 
 Rajah op 
 Quedah & 
 
 ANOH. 
 
 But there is yet another important fact in this case, to which Maxwell, B. 
 I must advert. The character of subject not only is not insisted 1861, 
 upon by the Rajah, but it is not accepted by him. It is, as it 
 were, thrust upon him by our own peculiar municipal law ; and I 
 think that this is a material circumstance in the decision of a 
 question which as Lord Langdale says, " is to be determined by 
 " that which may be thought to be the law of nations applicable to 
 " the case." Differing from that which is, I apprehend, the general 
 rule in other countries, that the citizens of a state are those who 
 are born, no matter where, of parents who are its citizens, our law 
 declares every man a subject who is born within our dominions. 
 But it seems to me that the danger adverted to by Lord Langdale 
 might be very justly apprehended if it were to be held that a 
 nation which, by virtue of a peculiar law, claims a f oreign sovereign 
 for its subject, can justly enforce against him, even when domi- 
 ciled in his own dominions, all the logical consequences of his 
 filling that character, though he does not claim tbe character, and 
 the law of his own country and the ordinary understanding and 
 custom of mankind do not impose it on him. If this were so, the 
 son and the grandson of the Rajah would be equally amenable to 
 our Courts, because the Acts of 4 Geo. II., & 13 Geo. III., naturalise 
 the sons and grandsons of natural born subjects ; and the de- 
 scendants of the late King of Hanover, to the latest posterity, 
 would be so amenable, because the. Act of Settlement declares all 
 the descendants of the Princess Sophia natural born subjects. I 
 am not prepared to adopt a proposition from which such conse- 
 quences might be drawn. 
 
 Upon the whole then, after giving the question my best con- 
 sideration, I think that the Rajah of Quedah is not bound to an- 
 swer the plaintiff's bill. As a sovereign he is exempt from the 
 jurisdiction of foreign Courts ; the facts of the case do not bring 
 him within any of the established exceptions to that general rule ; 
 and I am unable to discover any adequate reason in principle, for 
 excepting him for it. The plea will therefore be allowed, and the 
 bill dismissed as against the Rajah of Quedah. 
 
 March 20. The Recorder this day, in reference to the above 
 decision, wrote the following letter [a] to the Registrar and 
 requested that it should be communicated to the parties concerned. 
 
 " The Resident Councillor, ha.ving but lately assumed his office, 
 " was not prepared to inform me authoritatively, whether the Rajah 
 " of Quedah was recognized by our Government. But I find on 
 " referring to a correspondence which passed between tbe late 
 " Governor and me, two years ago, that that gentleman, described 
 "the Rajah as an ' independent native chief/ not only in writ- 
 " ing to me, but in addressing the Supreme Government. I can- 
 " not hesitate to accept Mr. Blundell's opinion on such a point as 
 " this. The word ' independent,' thus used, is obviously converti- 
 " ble with ' sovereign' ; and having learned from the Resident 
 " Councillor that no change has occurred in "the Rajah's position, 
 
 [a] Letter on record. 
 
160 CIVIL CASES. 
 
 Maxw>li,R. « s i nce the date of Mr. BlnndelPs letter, I am satisfied that I was 
 
 J ' " right in considering the Bajah a sovereign prince. My judg- 
 
 Naienb " ment will therefore stand and the hill will be dismissed as regards 
 
 _ *• '-theEaiah." [a] 
 
 Eajah op j l j 
 
 Quedah & 
 
 ANOB. ________ 
 
 NONIA CHEAH YEW v. OTHMANSAW MEEICAN & ANOE. 
 
 Penang. A Chinese female in this Colony, is at liberty to inarry, after being divorced 
 
 from her former husband — and such marriage will be held valid, notwithstanding 
 
 Maxwell, R. that, at such second marriage, no guardian (or Wallee) for marriage, is present. 
 The law of China, to the contrary, is not applicable to this Colony. 
 
 J "ty *• This was an action of ejectment, and the whole question turn- 
 
 ed on whether a conveyance executed by the plaintiff, to the de- 
 fendants, of the land in question, in 1845, was binding on her as 
 a married woman. The plaintiff who was a Chinese woman, had 
 been first married to one Lim Ban, she subsequently lived with 
 one Khoo Hoye Seeoo, and was so living with him at the time 
 she executed the conveyance. He was no party to it ; and was dead, 
 when this suit was commenced. The plaintiff maintained she had 
 been divorced by Lim Ban on account of her indolence, and had 
 thereafter married the said Khoo Hoye Seeoo, and was his wife, 
 and living with him, as such, when she executed the conveyance 
 in question. The defendants denied the plaintiff had been di- 
 vorced by Lim Ban and had married Khoo Hoye Seeoo, and main- 
 tained that she had quarrelled with him in consequence of being 
 caught intriguing with the said Khoo Hoye Seeoo, and had 'there- 
 upon left him [Lim Ban] and gone and lived with Khoo Hoye 
 Seeoo as his mistress. The defendants also maintained that even 
 if plaintiff's story was the true one, her marriage with Khoo Hoye 
 Seeoo was invalid according to Chinese law, and so the deed of 
 conveyance to them, by plaintiff as a single woman, was good and 
 binding. The grounds on which the defendants maintained the 
 plaintiff's marriage [if any] to Khoo Hoye Seeoo was invalid, 
 were — Istly, that there was no guardian for marriage who gave 
 her away ; and 2ndly, because, according to Chinese law and cus- 
 tom, a divorced wife cannot marry a second time. 
 
 Chinese witnesses were examined on the subject of Chinese 
 law, but their evidence shewed that their information was of the 
 slightest character. Ou that point, however, the learned Eecorder 
 relied wholly on Staunton's Translation of the Chinese Penal Code. . 
 
 Allan for plaintiff. 
 
 The defendants in person. 
 
 Cur. Adv. Vult. 
 
 December 18. Maxwell E., in delivering judgment, said, that 
 he considered the divorce of the plaintiff by Lim Ban had' been 
 clearly established. The question was whether the alleged second 
 
 [o] On the subject of recognition, see Ishmahel Lammana v, Mast India Co ana 
 In re Trebeck, ante p. 4. 
 
STRAITS SETTLEMENTS. 
 
 161 
 
 marriage had taken place. The Chinese law permitted a woman MAX ,™ ,: ' , E ' 
 
 to marry a second time, unless she received an honorary title from \ " 
 
 the Emperor during her first husband's life [Staunton's Penal \ Nonia 
 Code, p. 112]. But to render the second union a marriage, there C^eahYew 
 must be a person to give the woman away to the new husband and otLmansaw 
 a delivery of marriage presents, otherwise it was considered $erican 
 simply as a case of concubinage. [id!., p. 113]. If this rule were in $ anor. 
 force here, it was plain that the marriage set up could not be sus- 
 tained, for the plaintiff admitted that neither her uncle, the head 
 of the family, nor any one else, gave her away. But the rule 
 could not be held essential here under English law, where a very 
 different degree of liberty and respect was accorded to women 
 than in China or other part of the East. In China a woman ap- 
 peared to be, as in India, in a state of perpetual tutilage, and to 
 be either under a general incapacity 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 conse- 
 quence of the general law relating to the status of the woman. 
 But here this must be determined by the 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 plaintiff ever been 
 married to Khoo Hoye Seeoo, and on this point the evidence was 
 conflicting. The plaintiff said that " several persons were present 
 at the marriage ; Nonia Engku, Nonia Luan, her sister Chiah 
 Lian, Chan Su Phan and Chuah 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 by the bride, — 
 a man who said he carried trays to her house, with candles, pigs- 
 feet and fowl in the morning, and assisted in laying the table for 
 the feast in the afternoon, — and one 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 mar- 
 riage having taken place, it did not constitute a marriage. On 
 the other hand, Nonia Lian positively denied that she was present. 
 The plaintiff admitted that Nonia Sin, another sister, was not 
 there ; her half sister Nonia Eh Long was also absent ; so that 
 the evidence before, the Court failed to shew that any of her re- 
 lations were present. Again, though he was of opinion that it 
 was not essential 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 defacto. The Chinese were more than any other people, 
 attached to their usages, and the admitted absence of the uncle 
 therefore threw great doubt on the question. Besides, looking 
 to all the circumstances, was it likely that there was a marriage ? 
 From the evidence, though conflicting, he had no doubt that there 
 
 was cohabitation before the marriage. 
 
 The divorce paper did not 
 
lea civil oases. 
 
 Maxwell, R. mention the adultery, but it was natural that it should not. But 
 
 1861 , it was more probable that this was the real cause of the divorce, 
 
 Nonia than the indolence of the wife, or. her temper, as she alleged, es- 
 
 Cheah Yew pecially as several witnesses had spoken to the fact of the adul- 
 v - tery. If there had been a marriage, one would have expected that 
 
 Meeican the family would have taken care that it took place, as publicly as 
 &ANOB. 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 should throw a veil over her previous mis- 
 conduct. This assumed, indeed, that the woman and her friends 
 Were sensitive on the subject of marriage or no marriage. But it 
 appeared clearly in this case — ns 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 
 visited them, and associated with them, as wives [bini]. There 
 appeared to be no inferiority in their social status. What object 
 then could there have been for a marriage, after living for a year 
 with the man, as the plaintiff would appear to have done ? None 
 apparently ; 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 publicity, 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 learned 
 Recorder] must come to the conclusion that there was no marriage 
 — and therefore the conveyance by the plaintiff, as feme sols, to the 
 defendants of the land in question, perfectly good, and binding on 
 her, and there must therefore be judgment for the defendants with 
 costs. 
 
 Judgment for defendants. 
 
 TAN KOK SENG v. LETCHMAN CHETTY. 
 
 ' , ^.n insolvent who pays a creditor a sum over and. above a certain composition 
 
 Maxwell E wM ,* he haS ar ™ n g ed to P a y his general body of creditors, in consideration of such 
 18G6 ' ' c }' edltor consenting to appear as an assenting creditor to such composition, is en- 
 
 \ titled to recover from such creditor the sum so overpaid by him, as money had and 
 
 Tulv IS re ceived ; and that, whether the sum has been paid by him in money, or by means 
 _^ of a bill accepted by him. 
 
 The fact that a bill was accepted by a third party, in consideration of the 
 creditor so consenting to appear as an assenting creditor to the composition, which 
 bill, such third party afterwards voluntarily pays— does not prevent the insolvent 
 recovering from the creditor the money so paid by such third party, in the same 
 way as if .he, the insolvent, had personally paid it. 
 
 E. C. Woods, senr., on behalf of the defendant, moved for a 
 rule nisi, calling on the plaintiff to shew cause why a non-suit 
 should not be entered. It appeared that, on the facts set out in 
 the judgment, a verdict had been entered for the plaintiff; leave 
 
STRAITS SETTLEMENTS. 
 
 163 
 
 however, being given to the defendant to move for a non-suit, if MA ^ w i? L ' E 
 
 the Court should be of opinion that the action was not maintain- * 
 
 able. The present motion was inade in pursuance of such leave Tan Kok 
 reserved. SENa 
 
 V. 
 
 Cur. Adv. Vult. Letchman 
 
 Chetty. 
 
 On this day judgment was delivered by 
 
 Massyoell, E. In this case Mr. Woods moved for a rule to set 
 aside 4;he judgment entered up for the plaintiff, and to enter a 
 non-suit. The facts were these : — The plaintiff, being insolvent, 
 offered a composition to his creditors, which the defendant one of 
 the number, refused to concur in, unless a sum beyond the com- 
 position was paid to him, partly in cash and partly by the accept- 
 ance of a third person. These terms were complied with, and 
 when the bill thus given to him fell due, its amount was paid by 
 the acceptor. The plaintiff then sued the defendant to recover that 
 sum fis money paid to his use, and he recovered judgment at the 
 trial, subject to the present motion. 
 
 I think that the judgment shotild stand, and that no rule 
 should be granted. It is clear that the transaction was a fraud 
 on the other creditors, and it is well established that if the bill 
 had been accepted by the insolvent himself, and had been paid by 
 nim at maturity, he would have been considered to have paid it 
 under compulsion, and would have been entitled to recover it from 
 the defendant as money had and received to his use ; just as he is 
 entitled to recover the sum, if he had himself paid it down in 
 money; see Atkinson v. Denby, 6 Ex. 770, and 7 Ex. 934, and the. 
 authorities collected there. Here, the money was paid by a third 
 person, and Mr. Woods contended that it could not be recovered 
 back because it had been paid voluntarily and with full knowledge 
 of the fact. But to this the answer plainly was, that the party 
 who made the voluntary payment was not seeking to recover it 
 back. The argument was inapplicable to the plaintiff, who had 
 been compelled — [for he was not a free agent under the circum- 
 stances, per Lord Ellenborough, 6 M. & 8. 165] — to give the 
 bill, and who was no party to the subsequent payment. He is 
 bound to repay the acpeptor, and if he was not entitled to recover 
 this sum from the defendant, who has.no legal or equitable right 
 to it, it would follow that his right would be materially affected 
 by the immaterial circumstance that the payment was made 
 through a third person and not by himself directly, a conclusion 
 hardly consistent with good sense. It seems to me that the pay- 
 ment by the accommodation, acceptor was substantially a payment 
 by the debtor himself, and as it is plain that he would be entitled 
 to recover the money back if he had paid it himself, it seems to me 
 to follow that he is 'entitled to recover the amount as if it had 
 been so paid. 
 
 Mule refused. 
 
164 OIYIL OASES, 
 
 ASHTON AND ORS. v. BAUER AND QRS. 
 
 Singapore. In deciding whether there has been an appropriation of gooda, so as to pass the 
 property therein, the acts relied on must be not only clear, unequivocal and conclusive, 
 
 Maxwell, R. but the test is, whether they amount "to an actual and final election of the particular 
 1866. goods for that particular purpose. 
 
 October 2S Where H. G. & Co., in consideration of certain advances to their home firm, by the 
 
 ' ' plaintiff, purchased certain quantities of pepper which they placed in a store room by 
 
 itself, and thereafter engaged a ship to convey the said pepper home to the plaintiff, 
 and wrote to their home firm expressing their intention of forwarding such pepper by 
 the said ship to the plaintiff, but before they could actually ship the same, they became 
 bankrupt, and immediately thereupon wrote to the plaintiff expressing their intention 
 to have forwarded the goods, but of their having been hindered by their general body of 
 creditors from doing so, and the assignee of H, G. & Co., having sold the said pepper 
 and received the proceeds of such sale, 
 
 Held, that there was no appropriation of the pepper to the use of the plaintiff, and 
 although there was a present intention, on the part of H. G. & Co,, to forward to the 
 plaintiff that particular pepper, yet there was still wanting that final and irrevocable act 
 completing such appropriation, as the forwarding to the plaintiff of the Bill of Lading 
 duly endorsed, on shipping the pepper on board the said ship, or the like. 
 
 Action to recover $7000, damages for the wrongful con- 
 version of certain quantities of black pepper. Hamilton, Gray & 
 Co. [late of [Singapore] had intended to ship the pepper to the plain- 
 tiffs in pursuance of their agreement ; but they [H. G. & Co.] 
 having failed in business, the defendants, Inspectors of their 
 estate [in liquidation] had directed the pepper which was then in 
 H. G. & Co.'s godowns to be sold, and received the proceeds, which 
 they placed to the credit of H. G. & Co.'s estate. The defendants 
 pleaded [1] not guilty, and [2] not possessed. Issue was taken on 
 both pleas. The correspondence and further facts appear in the 
 judgment. 
 
 R. C. Woods, senr., for the plaintiffs contended, that there had 
 been a specific appropriation of the pepper to Ashton and Co., as 
 plainly indicated by the correspondence which had passed between 
 the parties ; that H. G. & Co. had full authority to make the selec- 
 tion on behalf of Ashton and Co., and that being so, it was not 
 necessary that the transhipment should have commenced. Fra- 
 gano v. Long, 4 B & C 219, and the appropriation being irrevoca- 
 ble — Blackburn on sales, p. 129, the property in the pepper had 
 by such appropriation passed to Ashton & Co., and had thereby be- 
 come clothed with all the trusts of property so circumstanced ; they 
 were held for a specific purpose, and were not " in the order and 
 " disposition" of H. G. & Co., or their Inspectors. He referred to 
 Ex-parte Oursell, 1 Amb. 296 ; Ex-p. Dumas, 2 Vesey 582 ; Mace v. 
 Gadell, 1 Car. 232; Sinclair v. Wilson, 24 L. J. Ch. 537; Ex-p. 
 Craves, 25 L. J. Bank 53 ; Collins v. Forbes, 3 T. R. 316 ; Kinlock 
 v. Craig, 3 T. R. 983; Too/cev. Hollingworth, 5 T. R. 215; Arch. 
 Bank. Law, 333, 337 ; 1 Deac. Bank, 594, 595 ; and Banksheal's 
 Trusts, 2 Kay and J., 560. 
 
 Atchison for the defendants submitted, that if any Torts had 
 been committed, it was by H. G. & Co., in whose possession the 
 pepper was, and that the acts of H. G. & Co. did not transfer any 
 property in the goods to the inspectors. Stephens v. Badcock, 3 
 B. & Adl. 354. He also contended, that there was no obligation 
 binding H. G, & Co., to deliver the pepper, or any particular pep- 
 
STRAITS SETTLEMENTS. 165 
 
 per, to the plaintiffs. He also urged that the transaction was Maxwell, R. 
 
 incomplete, as no sale or delivery was ever made to Ashton, or any ' 
 
 agents in their behalf. There was nothing to shew that any pro- Ashton 
 perty -passed to plaintiffs. It was competent to H. G. & Co., to &• ° RS - 
 have retracted the proposed delivery of the j;oods, and the most BArEK "'& ORS . 
 that the correspondence disclosed was an intention to deliver: he 
 further submitted that this was a case in wliich both parties 
 ought to have consented before the goods could be considered as 
 appropriated. He referred to Goclts v. Rose, 17 C. B. 229, and had 
 the goods been shipped and lost on their way, the loss would 
 have fallen on H. G. & Co. 
 
 Cur. Adv. Vidt. 
 On this day judgment was delivered by 
 
 Maxvjell, R. This is an action of trover for 1,049 piculs of 
 pepper. 
 
 Plea, the general issue. 
 
 The following are the material facts of the case. Messrs. 
 Buchanan, Hamilton & Co., carried on business in Glasgow as 
 merchants. The firm of Hamilton, Gray and Company, consist- 
 ing of the member of Buchanan & Co., and of other persons, 
 carried on business as merchants in Singapore, usually remitting 
 produce to the Glasgow house, who employed the plaintiff, 
 Ashton & Co., of London to sell it. In February, 1865, the plain- 
 tiffs agreed to open a credit in favor of Buchanan & Co., upon the 
 terms stated in a letter addressed by Buchanan & Co., to Hamilton, 
 Gray & Co., and forwarded to the latter by the plaintiffs. It 
 stated : " Messrs. Ashton & Co., have agreed to open a credit in 
 " our favor for £ 10,000, and in consideration of their doing so, 
 " we have agreed that you will send them returns for a like 
 " amount direct from Singapore. You will please, therefore, on 
 " receipt hereof send Messrs. Ashton & Co., shipping documents 
 " for produce to the value of £10,000, from the first shipments 
 "you may be making, and which documents under usual circum- 
 " stances you would be sending home free to us. Insurance will 
 " be provided for here. Although we do not contemplate returns 
 " in bills, of course you will have recourse to them, if produce is 
 " not available, and you have no shipments going forward." 
 This letter was received on the 13th of April, and on the 21st,. 
 Hamilton, Gray & Co., wrote to the plaintiffs that they would 
 comply with its terms. On the 5th of April, they had purchased 
 the pepper which is the subject of this action, and it was delivered 
 to them at various times between the 18th and the 29th of April, 
 and placed in a store separate from other peppers. On the 23rd 
 of April, Hamilton & Co., wrote to Buchanan & Co., " at present 
 " we have only 1,000 piculs black pepper for this'- [£10,000 credit] 
 " in prospect, documents for which we will send as soon as a ship- 
 " ment is made." On the 4th of May, they wrote again to the 
 Glasgow house, " we are not able to send Messrs. Ashton & Co., 
 " documents for the black pepper by this mail, but have engaged 
 " tonnage for it per Civiale, for London at £2." This was true ; 
 and it was communicated to the plaintiff ou the 1 2th of June. 
 On the 6th of May, however, Hamilton, Gray & Co., had stopped 
 
166 CIVIL OASES. 
 
 Maxwell E. payment. On the 8th they called a meeting of their creditors, 
 
 1866 • when a committee of five of them, of whom the defendants are 
 
 Ashton three, was appointed to act as Inspectors. On the 16th, another 
 
 & obs. meeting of the creditors was held, at which, on the recommenda- 
 
 Ba V '& s ^ on °^ *^ e i ns P ec * i0rs 3 the creditors resolved that the pepper 
 
 ' should be sold; and it was sold accordingly on the same day by 
 
 Hamilton, Gray & Co., and the price of it [$ 6,234.20] was paid to 
 
 . the inspectors 'for the benefit of the general body of creditors. 
 
 On the 21st of May, Hamilton, Gray & Co., wrote to the plaintiffs, 
 
 "we would have had shipping documents for some pepper to send 
 
 " you by this opportunity, as part cover for credit C," [a clerical 
 
 error for OJ " but we have not been allowed to do so, and the pepper 
 
 "had to be sold here." No part of the pepper had been loaded 
 
 on board the Civiale. 
 
 Under these circumstances, the principal question, and the 
 only one which I need decide, is whether the pi'operty in the pep- 
 per was vested in the plaintiffs at the time of its sale on the 16th 
 of May. The general rule of law is that, in the absence of inten- 
 tion to the contrary, the property in goods sold vests immediately 
 in the buyer, when they are specific and ascertained ; but that 
 when the goods are unspecified, the property in them does not vest 
 in him until the vendor has appropriated certain specific goods 
 wherewith to fulfil the contract, and the purchaser has assented 
 to the appropriation ; or without that assent, when the contract 
 is of such a nature as dispenses with it, and leaves the appro- 
 priation exclusively with the vendor. If, in this case, Hamilton 
 & Co., had proposed to the plaintiffs to appropriate the pepper to 
 their contract, and the plaintiffs had assented to it, the property 
 would have at once passed to them. The assent of the purchaser 
 would have made the appropriation final and irrevocable. But 
 the property might have passed in this case without any such 
 assent, for the contract was one of those in which the appro- 
 priation might be made by the vendors exclusively ; and if they 
 did make an appropriation the property in the pepper would there- 
 upon have passed to the plaintiffs, though without prejudice to 
 their option of rejection ultimately, if the goods were not of the 
 kind ordered; per Bramwell B. in Langton v. Higgins, 28 L. J. 
 Ex. 252. But the appropriation must be clear, unequivocal and 
 conclusive. There must be an actual and final election to appro- 
 priate the goods to the contract, and not a mere intention to do 
 so ; and the test for determining whether the acts or conduct of 
 the vendor amount to the former, or are merely expressive of the 
 latter, seems to be, whether the final acts towards complete appro- 
 priation has been done, or at least begun. If unspecified goods 
 are ordered, on the terms of being despatched to the purchaser, 
 the property vests as soon as the goods leave the vendor's ware- 
 house for dispatch; Fragano v. Long, 4 B. & C. 219; but it would 
 not vest on the goods being made or prepared, or even packed, or 
 before the dispatch had actually begun ; Atkinson v. Bell, 8 B. & 
 C. 277. 
 
 In the case just cited, the defendant had ordered two machines 
 of the plaintiff who made and packed them, and wrote to the do- 
 
STRAINS SETTLEMENTS. 167. 
 
 fendant to a3k by what conveyance they should be sent; and it Maxwell, # r 
 was held that in that state of things, and before the delivery or 8 ° " 
 dispatch had been begun, the property in the goods had not passed Ashton 
 to the defendant. Though the plaintiff's intention to appropriate &obs. 
 them was manifest and unequivocal, he had not made the final and ]3 ACE e & bs 
 irrevocable appropriation of them which was necessary to operate 
 a transfer of the property in them. The present case seems to me 
 to fall within the same principle; that Hamilton, Gray k Co., in- 
 tended to appropriate the pepper to the fulfilment of the contract 
 with the plaintiffs, seems beyond question. They wrote, not to 
 the plaintiffs indeed, but to their own correspondents, that such 
 was their intention, they contracted for the carriage ; and they 
 afterwards wrote to the plaintiffs that they would have sent it, if 
 they had been allowed. All this, however, does not appear to me 
 to amount to an actual appropriation; but only to shew that there 
 was then a present intention to make an appropriation at a future 
 time. There was still wanting the final act of forwarding the bill 
 of lading, endorsed, to the plaintiffs, or at least of the loading of 
 the pepper on .board the ship, which might perhaps have brought 
 the case within the decisions in Aldridge and Johnson, 7 E. & B. 885, 
 and Langton v. Higgins. If the warehouse had been burnt down 
 a.nd the pepper destroyed, the loss would, it seems to me, have 
 fallen on Hamilton & Co., and not on the plaintiffs ; and notwith- 
 standing their repeated declarations of intention, it would have 
 been optional to them to put other pepper or other produce into 
 the ship which they had hired, without any infringement of the 
 rights of the plaintiffs. 
 
 For these reasons, I think that the judgment should be for 
 the defendants. 
 
 WEE KOW v. CHARTERED BANK OP INDIA, 
 AUSTRALIA AND CHINA. 
 
 The maxim caveat emptor has no application to a case where the vendor pro- Singapobe. 
 
 fesses to sell a particular article, which turns out subsequently to be, not that 
 
 article, but some other article altogether : and the vendee is entitled to recover Maxwell It.. 
 back a3 money had and received, the purchase money he paid for such particular 1867. ' 
 article, as there was a total failure of the consideration for which it was paid. 
 
 This was an action for money had and receivel: the facts an uary ' 
 giving rise to it sufficiently appear in the judgment. 
 
 Davidson for plaintiff. 
 
 Atchison for defendants. 
 
 Maxwell, R. — This case is one which presents no difficulty. 
 There is a question of fact and a question of law, and both appear 
 sufficiently plain. Mr. Crane, under the instructions of the Bank 
 announced for sale by auction eight chests of opium. The chests 
 were declared at the auction to be opium. The plaintiff _ bid and 
 became the purchaser of two, paid their price and carried them 
 away. Two months afterwards, he sold them to the opium farmer 
 and on their being opened, one was found to contain balls, not of 
 opium, but of gutta, gambier or mud. He now claims to recover 
 
168 
 
 CIVIL CASES. 
 
 Wee Kow 
 
 v. 
 
 Chartered 
 
 Bank op 
 
 India, &c. 
 
 Maxwell, K. from the Bank the price which he paid for this chest, and I think 
 1867, that he is entitled to recover it. 
 
 The first question is one of fact, viz., whether the chest, when 
 opened, was in the same condition as when it was sold by the 
 Bank ; and I think that the evidence is sufficient to satisfy me that 
 it was. The two chests were kept in the plaintiff's shop, in a 
 place where it was necessarily, all day, under the eye of the plain- 
 tiff, his shopmen and customers. It could not, therefore, well have 
 been tampered with in the day time. At night, the plaintiff's son 
 and his clerk slept in the premises, and no other person. There 
 was no evidence of any entrance by thieves at night ; and if any 
 had entered, they would not have passed their time in taking out 
 the opium and substituting mud in its place, and then restoring the 
 box to its original outward condition, but they would simply have 
 carried the chest bodily away. ,Tlie opium examiner of the 
 farmer, a man of experience in such matters, said that the sewing 
 of the canvas appeared black and therefore old, and that the lid 
 of the box bore no signs of having been previously opened. I 
 think, therefore, that upon this evidence, the reasonable conclu- 
 sion is, that the box did not contain opium when the sale took 
 place, and that the Bank was the victim of a fraud. m 
 
 Then comes the question of law, is the Bank bound to repay 
 the price ? This admits of no doubt. The maxim caveat emptor 
 does not apply. It is not a question whether the opium which 
 they sold was of good or bad quality, but whether they delivered 
 to the plaintiff what they professed to sell to him, viz., a chest of 
 opium. If they did not, they did not, perform the contract into 
 which they entered. They could not have sued him for the price ; 
 and if he has paid it to them, he may recover it, as it seems to me, 
 as money had and received to his use, on the ground of a total 
 failure of consideration. 
 
 For these reasons I think that the plaintiff is entitled to 
 judgment for the sum claimed. 
 
 RUNGASAMY v. ISAAC AARON PILLAY. 
 
 Singapore. "Where a builder contracts to erect a building in a certain manner, but neglects to do 
 
 so, he is not entitled to recover the price of such work on the contract, nor yet on a 
 
 Maxwell, R. quantum meruit, even though the owner take possession and has -the use of the work 
 
 1867. so done, as no implied promise arises from the fact that the owner has so taken pos- 
 
 session, as he but makes use of his own land and all that is affixed thereto. 
 
 February 22. „ . _ 
 
 ; " Munro v. Butt, 8 E. & B. 738, followed. 
 
 Action for work and labour done. Plea, never indebted and 
 that the cause of action did not arise within three years before 
 suit. The facts appear sufficiently in the judgment. 
 
 The parties appeared in person. 
 
 Maxwell, R. — In this case, the plea of the Statute of Limita- 
 stions is probably an answer to the plaintiff's claim, but I prefer for 
 his sake, to dispose of it on the ground of substantial justice. He 
 agreed to build a house for the defendant for a sum of 650 dollars, of 
 
STRAITS SETTLEMENTS. 169 
 
 which he was to receive 150 as soon as the walls were raised to 12 Maxwell, E. 
 
 feet, and the timbers for the upper floor, of certain dimensions were 1 
 
 laid. When he claimed this sum, it was found that the walls eungasamy 
 were six inches under the requisite height, and that some of the »• 
 
 beams were under the requisite size. It was also found that some PlLLAT - 
 of the wood-work of the windows was of inferior wood. The de- 
 fendant refused to pay, the plaintiff refused to continue the work, 
 and another builder was called in, who raised the walls to the pro- 
 per height, substituted proper beams and wood, and finished the 
 house. That the plaintiff cannot recover the 150 dollars under the 
 contract, is plain, for he did not perform that which he was bound 
 to perform precedent to the payment. The only question is, 
 whether he can recover anything independently of the contract, 
 for work and materials of which the defendant is at present un- 
 questionably enjoying the benefit. If a man contracts to buy cer- 
 tain goods, and goods of a different description are delivered to 
 him, it is clear that the seller has not performed his part of the 
 contract, and therefore cannot sue the buyer for the contract price. 
 But if the buyer keeps and consumes the goods delivered, it is 
 equally clear that he must pay for them ; for as he had the option 
 of rejecting them when he found that they did not answer to the 
 description contracted for, his retaining them shows conclusively, 
 both in law and in honesty, that he intended and undertook to pay 
 a reasonable price for them. But the same presumption does not 
 arise where the contract is to build on a man's land, and the 
 building being not according to contract, the owner uses and 
 occupies it. He cannot reject the house as he can goods. He 
 is not bound to pull it down and to send back the materials, even 
 when the latter were supplied by the builder. He is entitled to 
 the use of his land and of all affixed to it ; and consequently from 
 his taking bodily possession of the building and occupying it, no 
 contract to pay for it can be inferred. The plaintiff therefore 
 must fail, for there is neither express nor implied contract to sup- 
 port his claim. 
 
 In so deciding, I merely follow the decision of the Queen's 
 Bench, in Munro v. Butt, 8 E. & B. 738, also an action on a 
 builder's contract. The plaintiff had it in his power to perform 
 his contract honestly ; and if he did not choose to do so, it is 
 neither hard nor unreasonable that the loss of his labour and 
 materials should be the penalty of his attempt to impose. It 
 would fritter away contracts if in such a case a builder were to 
 be entitled to recover a reasonable sum for his work and materials. 
 He would, in this case, according to the estimate of the architect, 
 be entitled to a larger sum than the contract sum, and the law 
 would thus offer a premium on the breach of an agreement. 
 
 Judgment will be for the defendant. 
 
170, ClfIL CASUS. 
 
 LIM MAH PENG v. Q. H. BEOWN. 
 
 Singapore. Plaintiff having arranged on a composition with his creditors, of whom the defeud- 
 
 ant was one, to pay them 50 per cent, of their claims, by means of tjiree bills payable at 
 
 Maxwell, K. three, six and nine months respectively, handed the defendant three bills, which, by 
 
 1867. mistake, were made out, together for 75 per cent, of his claim : the first two bills were 
 
 duly paid at maturity, which together made up just 50 per cent, of the defendant's origi- 
 
 March 5. nal claim. Before the third bill fell due, the defendant failed in business, and had him- 
 
 self to enter into an arrangement with his creditors, by which certain Inspectors " were 
 
 appointed to collect his assets, and among others the amount payable on the third bill, 
 and to divide them among his several creditors. On the third bill falling due; the plain- 
 tiff paid the defendant's Inspectors $500 to account of it, and this, money was, by the 
 Inspectors, distributed among defendant's creditors. After this, the plaintiff discovered 
 the mistake he had made, and not only refused to pay the Inspectors the balance pay- 
 able on the third bill, but claimed from the defendant, a refund of the §500, which he 
 (plaintiff) had paid under such mistake. The defendant refused to refund the money, 
 alleging that he was not liable to do so, as the money had been paid by the plaintiff 
 to his (defendant's) Inspectors, and by them had been distributed among his creditors ; 
 and he personally had derived no benefit by the payment, 
 
 Held, that the defendant was bound to refund plaintiff the $500, and that the 
 plaintiff was entitled to recover it as money paid at the defendant's, request, or as money 
 had and received by the defendant for the use of the plaintiff. 
 
 The facts giving rise to this case sufficiently appear in the 
 judgment. 
 
 Atchison, for plaintiff. 
 
 A. M. Aitken, for defendant. 
 
 Maxwell, E. — This is an action to recover a sum of $500 said 
 to have been paid by the plaintiff at the request of the defendant, 
 and for money had and received by the defendant for the use of 
 the plaintiff under the following circumstances. The plaintiff 
 compounded with his creditors, upon the terms of paying them 
 fifty per cent, on their debts by three bills at three, six, and nine 
 months. The defendant was one of the creditors ; his debt 
 amounted to 4,282 dollars, and three bills were given to him. It 
 appears, however, that through an oversight each bill was made 
 for $1,070.50, or 25 per cent, of the debt, so that the defendant 
 obtained bills for $3,211.50, or 75 instead of 50 percent. He, in 
 turn, fell into embarrassment ; and being obliged to enter into an 
 arrangement with his creditors, he transferred the bills- to Inspec- 
 tors appointed under deed, for the purpose, among other things of 
 collecting his assets and paying his debts. The first two bills 
 were duly paid at maturity, and when the third was presented for 
 payment the plaintiff paid to the Inspectors 500 dollars in part 
 payment of it; and they paid the sum away among the creditors 
 of the defendant. The plaintiff afterwards discovered the error, 
 and called upon the defendant to refund the 500 dollars. This 
 being refused, the present action was brought. 
 
 I am of opinion that the plaintiff is entitled to judgment. It 
 is clear that if the 500 dollars had been paid to the°defendant 
 personally, he would have been bound to return the money. So 
 if he had endorsed the bill for value, he would have been bound 
 to repay the plaintiff the amount which the latter had been obliged 
 to pay to the holder. But it was contended in this case that 
 because the money was paid to the Inspectors, and was distributed 
 by them among the creditors of the defendant, and the latter it 
 was said, had derived no benefit from the payment, he was not 
 
STRAINS SETT?LI!MENTS. 
 
 171 
 
 LimMah 
 Peng> 
 
 V. 
 
 Bbown. 
 
 liable to refund the amount. It seems to me, however, that the Max J"^ l > E - 
 
 payment to the Inspectors, was a payment made to the use of the ' 
 
 defendant at his, request. It was paid to persons to whom he had 
 transferred the bills, [whether as holders for value or as his agents, 
 it was immaterial to inquire,] and to whom, therefore, he impliedly 
 requested the defendant to pay the amount. Whether he derived 
 any benefit from the subsequent application of the money is 
 immaterial ; it would have been equally money paid to his use and 
 at his request, though the Inspectors had thrown it into the sea. 
 But I may observe that every farthing of the money appears to 
 have been applied in the manner directed by the defendant, and 
 in common honesty as well as in law, it would be difficult to sug- 
 gest a more advantageous manner of disposing of money, than 
 that of paying its owner's debts with it. There will be judgment 
 for the plaintiff for the amount claimed, and costs. 
 
 ABDULEAHIM v. DEAHMAN & ANOR. 
 
 A person who is administrator of a deceased person, U entitled to recover possession Penang. 
 
 of title deeds belonging to such deceased, from another with whom they may have 
 
 been deposited, although such deposit may have been for valuable consideration, and Hackett, J. 
 
 made by such person who is administrator, as a next of kin, jointly with other next of 1867. 
 
 kin, but before he has obtained administration to the estate of such deceased. 
 
 Such a deposit affords no defence, either at law or equity, to a claim by such person May 24. 
 
 depositing, when he has clothed himself with the title of administrator, by obtaining 
 
 Letters of Administration. 
 
 This was an action to recover possession of certain title deeds 
 belonging to one Din deceased, and which deeds, the plaintiff 
 claimed, as administrator of the said deceased. It appeared that 
 the plaintiff along with his sister one Samsiah, who were the only 
 next of kin of the said Din, on the 23rd of October, 1865, in con- 
 sideration of a loan of $60, then made to them by one Wahab, 
 deposited the said title deeds with the said Wahab, as security, 
 and executed a paper written in Malay, to that effect. That on 
 the 28th October the said Wahab, with the consent of the plaintiff 
 and his said sister, agreed to assign the said security and title 
 deeds held by him, to the female defendant ,Essah, on her paying 
 him, Wahab, up the $60 due him by the plaintiff and his sister, 
 and Wahab accordingly then executed an assignment, in English, 
 of the same to the defendant Essah, and was then paid his $60. 
 At this time the plaintiff was not administrator to the estate of 
 Din, and no one had taken out letters of administration to his 
 estate. On the 5th September, 1866, the plaintiff applied for and 
 abtained Letters of Administration to Din's estate, and then com- 
 menced this action against the defendants, to recover possession 
 of such deeds. The defendant Drahman was the husband of the 
 female defendant Essah. The defendants set - out these facts in 
 their second plea, which they pleaded on equitable grounds. 
 
 B. Rodyk, for plaintiff. 
 
 D. Logan [Solicitor-General], for defendants. 
 
 Cur, Adv. VuU % 
 
172 CIVIL CASES. 
 
 Hackett, J. May 30. Hackett, J. — This is an action for the recovery of 
 
 1867. title deeds. There is an equitable plea that the defendants, at 
 
 , the request of the plaintiff, advanced the sum of $60, to one 
 
 „, Wahab, who held an equitable mortgage on certain lands belong- 
 
 Dbahman ing to the deceased, and that the title deeds of these lands are 
 & anob. the title deeds now claimed by the plaintiff. The defendants' 
 case is, that Wahab and the plaintiff came to the defendant'Essah, 
 and asked for a loan, this evidence of the defendant Essah is con- 
 firmed by that of Drahman, Dolah and Wahab. The plaintiff's 
 case is, that he never owed Wahab any money, that he only de- 
 posited the deeds with him for safe custody, and that he never 
 asked Essah to advance the money, that in fact he was, at the 
 time of the advance, absent from Penang, on a voyage, in his 
 calling of a sailor. As to the question of fact, I consider the 
 weight of testimony is in favour of the defendants, besides, from 
 the plaintiff's own account, it is manifest that he was not absent 
 at the time of the advance made by Essah. Then, there is the 
 question, whether the mortgage by Abdulrahim, before he obtained 
 Letters of Administration, can stand — and on this point, I have 
 reluctantly [reluctantly I say, as I have no doubt the defendants 
 would never have lent the money, unless they believed that the 
 plaintiff would never claim back the deeds till the money was 
 paid,] come to the conclusion, that it cannot. ISTo dealing by the 
 next of kin, with the estate of a deceased person, is binding on 
 them, unless it is beneficial to the estate. Morgan v. Thomas, 
 22. L. J. Exch. [N. S.] 152. This is clearly so at law ; and the 
 present dealing with the estate, incumbering it with an equitable 
 mortgage, I am of opinion, is not beneficial to the estate. Such 
 dealing is also not looked on favorably by the Court, as it is an 
 attempt to administer the estate, without administration, and in 
 fraud of the revenue. Then, does it make any difference that the 
 present defence is pleaded on equitable grounds ? I think not. 
 In this matter, both for the benefit of the revenue [as equity 
 cannot countenance a fraud,] as well as for the benefit of the 
 estate, equity will follow the law. The fact that all the other 
 next of kin interested have concurred in the mortgage, cannot 
 make any difference. When administration is taken out, and the 
 defendants seek to enforce their security against the equitable 
 interests of the plaintiff as a next of kin, this Court, as a Court of 
 Equity, will no doubt help them ; and in doing this, equity will be 
 speeding on the administration of the deceased's estate ; but to 
 hold that, in equity, the defendants are, under the circumstances, 
 entitled to withhold these deeds from the administrator, would 
 be to hinder the administration of the estate ; and that, I am of 
 opinion, equity will not do. The plaintiff has since the deposit, 
 but prior to this suit, clothed himself with the title of administra- 
 tor, and brings this action as such : to such an action, the defence 
 based on the facts as found, can afford no answer at law or equity, 
 . for the reasons given. There will, therefore, be judgment for the 
 plaintiff, for the recovery of the title deeds, and costs. 
 
STRAITS SETTLEMENTS, 173 
 
 CHARTERED MERCANTILE BANK, &c, v. D'RODAS. 
 
 The release of a prisoner taken into custody on civil process, though permitted by Singapore. 
 
 the bailiff, does not debar the plaintiff from re-arresting him, unless the plaintiff has 
 
 consented to, and ratified the act of the bailiff. Hackett, 
 
 Pegina v. Renton, 2 Exch. 216, remarks of Parke B. observed on. ^1867 J 
 
 The fact that the bailiff so releasing, is a special bailiff of the plaintiff, makes no 
 
 difference in this respect. December 3. 
 
 Atchison, On behalf of the defendant, had obtained a rule 
 calling on the plaintiff Bank to shew cause, why the defendant 
 should not be discharged from custody. It appeared that the 
 plaintiff Bank recovered judgment against the defendant, lately 
 Spanish Consul in Singapore, for a considerable amount; but 
 being unable to take the defendant on a ea. sa., employed a special 
 bailiff to arrest him, which he did one night after great trouble, 
 and expense to the plaintiff, in the harbour of Singapore. The 
 defendant, after being arrested, was allowed by the special bailiff 
 to go upon his parole till the following morning, and when allowed 
 to do so, he assured the bailiff upon his word of honour, and as a 
 grandee of Spain, that he would surrender himself to the Sheriff 
 next morning at the Court House. The following morning the 
 defendant, in keeping with his word, surrendered himself, and in 
 the afternoon was sent to Her Majesty's Jail. He thereafter 
 made this application for his discharge. 
 
 A. M. Aitken, for the plaintiff, shewed cause. 
 
 Atchison supported the rule. 
 
 Cur. Adv. Vult. 
 
 On this day judgment was delivered by 
 
 Hackett, acting C. J. — This was a rule calling upon the plaintiff 
 to shew cause why the defendant should not be discharged outof the 
 custody of the Sheriff, and the question I have to decide is, whether 
 or not, the defendant is la.wf ully in custody. After referring to the 
 affidavits which were filed by the defendant, and which differ very 
 materially from those filed by the plaintiff, the defendant having 
 omitted facts which materially altered the circumstances that took 
 place between the actual arrest and the voluntary surrender of him- 
 self to the Sheriff, — I consider, — although the special bailiff com- 
 mitted a very grave offence in allowing the defendant to get out of 
 his custody, and behaved very foolishly in so doing, — his affidavit 
 . is corroborated by the Sheriff's, and I cannot help thinking that the 
 defendant has been advised to omit some material facts. It has 
 been contended for the defendant, however, that having been once 
 taken on a capias ad satisfaciendum and been allowed to escape, 
 no matter by what means, or by whose fault, that the claim the 
 plaintiff had upon him was lost. I have therefore been at consider- 
 able trouble in looking up the point, and taken great pains in con- 
 sidering the subject before arriving at a decision. In one of the 
 cases, cited by the defendant's counsel, that of Begina v. Renton, 
 2 Exch. 216, reliance was placed upon what Parke B. is reported 
 to have said [pp. 219, 221] to the effect that while the Crown could 
 retake the prisoner after his voluntary escape, a private individual 
 could not do so. These passages, I think, must merely be taken as 
 
174 
 
 OITIL OASES. 
 
 V. 
 
 d'Eodas. 
 
 Hackett, obiter dicta, as they are at variance with all the other authorities 
 Ac j.C J. on ^g stl bject, and not only so, but the same learned judge in a 
 _• subsequent case,— Ward v. Broomhead, 7 Exch. 726 (at pp. 727, 728), 
 Chaetebed takes a very different view of the matter. From this last passage 
 M. Bank he would appear to have changed his mind, and considered that to 
 mate an escape valid, the plaintiff [a private person] must ratify 
 and confirm it. This latter opinion is in unison with the other 
 authorities. In Chitty's Archbold's Practice, Vol. T. [11 Ed.] 693, 
 a book accurately edited and kept up to the present state of the 
 ] aw , — it is laid dowD, that the plaintiff might issue out a fresh 
 writ if the defendant has escaped under the first, and several 
 authorities are cited for tbat position. Taking all the cases which 
 I have been referred to by counsel, as well as those I have turned 
 my attention to myself, I am of opinion that the law is clear, that 
 even supposing the defendant was allowed to go at large after 
 arrest, unless with the ratification and consent of the plaintiff, 
 the plaintiff might sue out a fresh writ, and the defendant might 
 be lawfully arrested and placed in the custody of the Sheriff. In 
 the present case the defendant was legally in custody, and he asked 
 the special bailiff to allow him not to go to the Jail, but to allow 
 him to remain at the hotel for the night, and that he would sur- 
 render himself to the Sheriff next morning. This was done with- 
 out the plaintiff's knowledge, and the defendant, the next day, 
 voluntarily surrendered himself as he had promised. From the 
 cases of Lenthal v. Lenthal, 2 Liv. 109, and James v. Pierce, Ibid, 
 132 s. c. 1 Vent. 269, — which were confirmed by the American case 
 which I have been referred to, and the remarks therein of Hub- 
 bert J. — I think, it is abundantly clear, that the authorities cover 
 the present case. I can only treat this case as one of voluntary 
 escape, and that execution stands clearly against the defendant, it 
 would be hard if it were otherwise. ■ Something was said by 
 • counsel during the argument, about a special bailiff being em- 
 ployed, but the only difference that fact made, was, the escape 
 taking place from him, the plaintiff lost his remedy against the 
 Sheriff, for the escape. Had the defendant not kept his word as a 
 gentleman ; but had he escaped and gone on board a ship in the 
 harbour, a fresh writ, had it been applied for, could have been 
 issued against him, and he would have been again placed legally 
 in the custody of the Sheriff. For these reasons, I think, this rule 
 must be discharged. 
 
 Hackett 
 1868. 
 
 .VERAPPA CHETTY v. VENTRE. 
 
 Pbnano. In a:l questions of sea worthiness, the law of the country to which the ship be- 
 longs, must prevail. 
 
 J. In order to constitute deviation, there must be a voluntary act on the part of 
 
 those on hoard, to turn out of the course : and any going out of that course, which 
 
 is attributable to ignorance, or tide, or weather, is not a deviation 
 
 February 27. ml . 
 
 This was an action on an instrument commonly known as a 
 
 Chetty's Insurance. The facts and questions are fully set out in 
 the judgment. 
 
 The case was heard on the 25th, 26th February, and on this day. 
 
STRAITS SETTLEMENTS. 
 
 176 
 
 Veeappa 
 Chetty 
 
 V. 
 
 Ventbe. 
 
 D. Logan, Solicitor-General, [R. C. Woods, junr., with him] Hackett, J. 
 cited Davis v. Garrett, 6 Bing. 716; Phynnv. Royal Exchange In- i;i ' 
 surance Co., 7 T. R. 505 ; Tait v. Levi,'l4> East 481 ; 2 Arnold on 
 Insurance, 675; and Phillips on Insurance, 974, 1051. 
 
 B. RodyJi, for defendant, cited Walker v. Maitland, 5 B. & Aid. 
 171; Busk v. Royal Exchange Assurance Co., 2 B. & Aid. 73; 
 Smith v. Scott, 4 Taunt. 127; Holdsworth v. Wise, 7 B & C. 
 794 ; Bishop v. Pentland, 7 B. & C. 219 ; Dixon v. Sadler, 8 M. & W. 
 895 ; Ionidesr. Universal Marine Association, 32 L. J. C. P. 170. 
 
 Cur. Adv. Vult. 
 
 July 13. Hackett, J. — This was an action brought by the 
 plaintiff to recover the sum of $4,000, with interest, lent by the 
 plaintiff to one Joseph Charles Angles for whom the defendant was 
 surety, and the facts of the case are as follows : — 
 
 In the month of January, 1866, Joseph Charles Angles, who - 
 was master and part owner of the French ship Charles Julie, 
 borrowed $4,000 from the plaintiff, and in consideration of the 
 loan, the defendant joined Angles in executing a deed upon which 
 the present action is founded. By this deed, which recited the 
 loan to Angles, for twelve calendar months, on the understanding 
 that the Charles Julie might during that period be employed in 
 voyages from Penang to Rangoon and back, and to Singapore and 
 back, and should eventually return to Penang, within the aforesaid 
 time, the defendant and Angles jointly and severally covenanted, 
 that the said vessel would not go on any other voyages, or deviate 
 from those authorized by the said deed, [the perils of the -seas, &c. 
 excepted] and should return to Penang at the stipulated time. 
 Then there was a covenant, by the defendant and Angles for pay- 
 ment of the principal sum with interest at 2 per cent, per mensem, 
 ten days after the arrival of the vessel at Penang from the last of 
 her voyages, and a proviso, that if she should previously have been 
 totally lost, the principal and interest should not be payable to the 
 plaintiff. And as a further security Angles assigned his interest 
 in the Charles Julie to the plaintiff. 
 
 The plaintiff in the first count of his petition alleged that the 
 " vessel without sufficient cause deviated from the said voyage and 
 " never went to Singapore, whereby the said bottomry bond was 
 " determined, and the said $4,000 became immediately due and 
 " payable by the defendant to the plaintiff." The defendant to the 
 first count pleaded that " the said ship did not diviate from the 
 " said voyage to Singapore as alleged," and upon this plea issue 
 was joined. 
 
 . From the evidence it appeared that the Charles Julie, a 
 three masted schooner sailing under French colours, left Penang 
 on a voyage to Singapore on the 22nd February, 1866. Including 
 the master [J. C. Angles] there were ten seamen on board. The 
 vessel proceeded on her voyage without accident until the morning 
 of the 25th February. On that morning between three and four 
 o'clock, land was seen on the port bow, which the captain and 
 first mate supposed to be Pulo Cocob, an island in the proper 
 channel, and which, supposing the vessel to be in her right place 
 
176 
 
 CIVIL OASES. 
 
 Verappa 
 Chetty 
 
 v. 
 Ventre. 
 
 Hackett, J. would have been seen on the port bow. The vessel then appears to 
 vm - have been steered to the south for about four miles "to take" as 
 the captain said, " the mid-channel so as to round Cocob island 
 " and the land." He then goes on : 
 
 " Convinced that I was in the channel between Cocob and the Carimons, 
 " the breeze having slackened, I ordered to steer to the S. S. E. — S. E. and 
 " S. E. i E., trying to come to port as much as the land allowed me, so as to 
 " take afterwards the direction of the E. S. E. in order to sight Coney Island 
 '• which was to lead me to the Straits of Singapore, where I was going at day- 
 " break, about 6 a.m., without having taken any rest, watching the lead, going 
 " up the mast myself with my spy-glass, ordering my mate and my second 
 " mate to go there also, I saw through the morning haziness the land on the 
 " starboard. I supposed it to be the Carimons, and in the east I saw small 
 " islands rather distant. I came up the mast again to look about, trying to 
 " see the light of Coney Island, when I observed a change in the colour of the 
 " water at a small distance ; the looming had already altered the appearance 
 "of the land. It was about 7 a.m. I immediately ordered to take in sails and 
 " to let go the anchor, but at the same moment my vessel had three violent 
 " shakes, having struck on a shoal covered by the sea." 
 
 Having been asked what hedid when the ship struck, he replied: 
 " I immediately ordered to sound the pump, and found at first one foot 
 " of water in the hold — the vessel was fast amidship. I ordered to sound at 
 " the stern and found four feet in the hold. I immediately ordered to lower 
 " the boats to free the mainhatch, for throwing cargo overboard to lighten 
 "the vessel, but the water was rising in the hold, the vessel was burst, the 
 " water was on deck . . ." . then the vessel had a list to port, and sunk 
 " fast. I remained on board the last and left the vessel when urged by my 
 " crew to do so . . . I only knew where I was, through a Malay of the 
 " name of Said, who came near the vessel at the moment of the wreck and of 
 " whom I asked where was the Great Carimon and which he pointed out to 
 " me to the Northward. I then perceived the error caused by the currents. 
 '• I believed the Great Carimon was to the south. I was not able to per- 
 " ceive the error myself, navigating with a chart ending at the beginning of 
 " the Great Carimon. The error was then evident. I had been brought by 
 " the influence of the currents in the straits formed by the island of Pulo 
 " Panjang and the Great Carimon, a channel parallel to the one I wanted to 
 " take ; and which I thought I had taken, viz., the one formed by Cocob 
 " Island and the Carimons, and which would have led me to Singapore." 
 
 The evidence of the Captain is in substance corroborated hy 
 the evidence of the first and second mates, and as regards what 
 took place immediately before the ship struck, it is confirmed by 
 the evidence of some Malays who, from the shore, saw the vessel 
 strike. A number of witnesses were examined on behalf of the 
 plaintiff to show that there are no currents in those seas which 
 would account for the course which the vessel took, and to prove 
 that with the most ordinary care the vessel could not have got into 
 the position in which she was when she struck. On the other 
 hand, the defendant examined witnesses who testified that there 
 was a current in the Straits which might have carried the vessel 
 out of her course in the direction in which she was lost. The 
 result of the evidence on this point in my opinion is this : — 
 That there probably was a current or tide setting to the southward 
 between Pulo Panjang and the Great Carimon, but that a vessel 
 navigated with ordinary care and skill could not have been carried 
 out of her proper course by the force of this current without the 
 deviation being perceived, and therefore that the Charles Julie 
 could not have drifted to the shoal on which she was wrecked 
 
STRAITS SETTLEMENTS. 
 
 177 
 
 186S 
 
 Vebappa 
 Chbtty 
 
 Ventee. 
 
 except through the negligence or unskilfulness of the master and HAC f^ s Tj J ' 
 crew. 
 
 Now the plaintiff contends that the departure of the vessel 
 from the proper and ordinary conrse of the voyage was a deviation 
 within -the meaning of the covenant against deviation contained in 
 the deed, and that for the breach of this covenant he is entitled to 
 recover the principal sum of $ 4,000 together with interest. And 
 the question arises, was this departure from the ordinary channel 
 in the voyage from Penang to Singapore, a deviation within the 
 meaning of the covenant? I take it for granted, that I may 
 assume that the covenant not to deviate contained in the deed, is 
 to be construed in the same sense in which the condition not to 
 deviate which is implied in Policies of Marine .Insurance is under- 
 stood. 
 
 Now on referring to the text writers on Marine Insurance 
 whose works I have been able to consult, I find the following defi- 
 nitions of the word " deviation." Park defines it as " a voluntary 
 " departure without necessity or any reasonable cause from the 
 " regular and usual course of the specific voyage insured." Park 
 on Ins., 8th ed., p. 619. 
 
 Marshall states : " By deviation is meant a voluntary departure 
 " without necessity from the usual course of the voyage insured." 
 Marshall on Ins., 4th ed., p. 138. 
 
 Arnold's definition is more full than either of these. He 
 says : " The true proposition, therefore, is, that every voluntary 
 " and unnecessary departure from the prescribed course of the 
 " voyage, by which the risk is varied, is a deviation whether the risk 
 " be thereby aggravated or not." Arnold on Ins., 3rd ed., p. 426. 
 " Further on he says : " Moreover it must be a voluntary departure 
 " from the usual course of the voyage in order to be a deviation ; 
 " but it will be so considered although it takes place through the 
 "gross ignorance of the Captain," citing Phynnx. Royal 'Exch. 
 Ins. Co., 7 T. E. 505. 
 
 This last proposition is relied on by the plaintiff in support of 
 his claim, and he contends that inasmuch as the Charles Julie 
 departed from the proper a,nd usual course of the voyage through 
 the gross ignorance of » the master, there was a breach of the cove- 
 nant not to deviate, even although the master may have thought 
 he wa3 proceeding in the proper course. 
 
 But, in my opinion this is not a correct view of the author's 
 meaning : . the whole passage must be read together ; and I think 
 it is clear that the act done in ignorance which constitutes a devia- 
 tion must be a voluntary act, and not a mere error of judgment. 
 Nor does the case of Phynn v. Eoyal Exch. Ins. Co., bear out the 
 proposition contended for by the plaintiff. In that case a vessel 
 bound from London to Jamaica was carried by currents and other 
 causes, out of her reckoning until she was found to be between the 
 Grand Canary and Teneriffe. From this point her direct course 
 to Jamaica was to the South West, but the Captain bore up for 
 Santa Cruz about 30 miles to the North West, where he. came to 
 an anchor. There the vessel was seized and condemned as prize. 
 
178 
 
 CIVIL CASES, 
 
 Hackbtt, J. 
 
 1868. 
 
 Verappa 
 Chetty 
 
 V, 
 
 Ventre. 
 
 Here therefore we have a distinct voluntary departure from 
 the proper course of the voyage after the master had fully ascer- 
 tained his position, and from the report of the case, it seems to 
 have been taken for granted, that although the master lost his 
 reckoning and got out of his course, there was no deviation until 
 having ascertained where he was, he voluntarily shaped his course 
 for Santa Cruz. 
 
 But in the case before the Court, the master got out of his 
 reckoning and never found oujb his mistake until after the vessel 
 had struck ; there was no intention on his part to go between the 
 Carimons and Pulo Panjang, and therefore the case does not 
 resemble the one just referred to. 
 
 There is another case which was referred to by the counsel for 
 the plaintiff, that of Taitv. Levi, 14 East, 481, in which the 
 captain of a vessel, insured to a port or ports on the Spanish Coast 
 not higher up than Tarragona, went into Barcelona mistaking it 
 for Tarragona. This case is cited as a case of deviation. But 
 although there is a passage in Lord Bllenborough's judgment from 
 which it appears that his Lordship thought this might be & case of 
 deviation, yet in the opinion of the majority of the Judges of the 
 Court it was not considered a case of deviation, because it was not 
 voluntary, and the underwriters were held to be discharged on the 
 ground that there was a breach of the implied warranty to provide 
 a captain of sufficient knowledge for the purpose of the voyage 
 insured. This case therefore rather supports the proposition that 
 an involuntary departure from the ordinary course of the voyage 
 through the ignorance of the master, does not constitute a devia- 
 tion, and that to constitute a deviation the departure must be 
 voluntary. And indeed it seems to me that any other doctrine 
 would be attended with absurd results, and it would come to this, 
 that in every case in which a vessel struck on a rock or sandbank 
 through the ignorance and unskilfulness of the master, there would 
 be a deviation inasmuch as such rock or sandbank must necessarily 
 be out of the proper course of the voyage. 
 
 I am of opinion therefore that there has been no deviation in 
 this case within the meaning of the covenant, not to deviate from 
 the voyages stipulated and authorized by the deed, and that the 
 plaintiff is not entitled to judgment on the 1st count of his petition. 
 
 The plaintiff further contends that, in any case he is entitled 
 to recover on the count for money had and received, on the ground 
 of a breach of the warranty of seaworthiness which must be 
 implied in the contract ; that this warranty not having been com- 
 plied with, there was a total want of consideration and therefore 
 that he is entitled to be repaid the money he has lent. 
 
 The grounds of unseaworthiness alleged by the plaintiff are 
 three : — 
 
 First, the ignorance and incompetence of the captain; 
 secondly, the insufficiency of the crew ; and thirdly, the want of 
 proper and necessary charts on board the vessel. 
 
 Now assuming a warranty of the seaworthiness of the ship 
 to be implied in the contract between the parties, and that on 
 the event of a breach of this implied warranty the plaintiff would 
 
STRAITS SETTLEMENTS. 
 
 179 
 
 Veeappa 
 Chetty 
 
 V. 
 
 Ventre. 
 
 be entitled to recover back his loan on the couut for money had HAC f 8 E 6 | T 
 
 and received, I proceed to consider the evidence on the various ' 
 
 breaches alleged by the plaintiff. 
 
 First, as to the alleged incompetency of the captain. I quite 
 agree to the contention on behalf of the plaintiff, that there is evi- 
 dence to shew negligence or ignorance on the part of the captain, 
 and that it is difhcnlt to conceive how he could have got into the 
 position in which the vessel was lost with ordinary care and a 
 competent knowledge of his duties. And if this were the case of 
 a British ship, prior to the 13 & 14 Vict., c. 98, upon the evidence 
 I think, there might be strong reason for contending that the cap- 
 tain was not competent. This was so in the case of Tait v. Levi, 
 which I have already mentioned, where the evidence shewed, that 
 the Captain was incompetent and the underwriters were discharged. 
 At the time, however, that case was decided, there were no require- 
 ments by the English law as to the fitness and capacity of masters, 
 and it may be doubted whether since the Merchant Shipping Act, 
 the question could well arise. By the Act, Marine Boards are 
 constituted for the examination of masters and mates of foreign- 
 going ships and of home-trade passenger snips. The examination 
 is under the control of the Board of Trade, and when it has been 
 passed, the Board of Trade gra.nts to the applicants a " certificate 
 " of competency " either as master, first, second or only mate of a 
 foreign-going ship, or as master or mate of a home trade passen- 
 ger ship, as the case may be. If then this were the case of a Bri- 
 tish ship, all that, in my opinion, the Court could look to in any 
 allegation of unseaworthiness on the ground of the master's 
 incompetency, would be the " certificate of competency " granted 
 under the provisions of the Merchant Shipping Act. [See Mer- 
 chant Shipping Act, 185 A, Sees. 135 & 136]. If the master were 
 properly certified under that Act, I do not think evidence of his 
 conduct would be admissible to shew that he was incompetent. 
 
 But this is not the case of a British ship. The Charles Julie 
 was a French ship, built in France, with a French master and 
 crew, and it is clear that any question as to the competency of the 
 master or the sufficiency of her equipment generally, must be de- 
 cided by the law of France. As Willes J. observed in Lloyd v. 
 Guibert (L. E. Q. B., Vol. I., p. 127) ; "With respect to all persons, 
 " things and transactions on board, she was, as it were, a floating 
 " island, over which France had an absolute, and for all purposes 
 " of peace as exclusive a sovereignty as over her dominions by land." 
 
 Now what is the French law with regard to masters of 
 merchant ships ? There was no evidence adduced expressly on the 
 subject, and the absence of such evidence may be accounted for 
 by the fact of the plaintiff resting his claim mainly on the ground 
 of the deviation of the vessel from her proper course. But there 
 is evidence from which I think it may be fairly presumed that the 
 requirements of the French law as to the qualifications of master, 
 have been complied with. 
 
 A Commission was issued out of this Court to Marseilles for 
 the examination of witnesses, and under that Commission, Captain 
 Angles was examined. He there stated " that he was a master 
 
180 
 
 CIVIL OASES. 
 
 Vebappa 
 Chettt 
 
 V. 
 
 Ventre. 
 
 Hacrett, J. " mariner for navigation on all seas ; and that he had passed a 
 1868 - " practical as well as a theoretical examination, after which a cer- 
 " tificate of master mariner for navigation in all seas was granted 
 " to him in 1854." In a subsequent part of his evidence, Captain 
 Angles states that after the loss of the Charles Julie, and his return 
 to France, " he passed, in compliance with the French law, before 
 " several Courts composed of competent men who have entirely 
 " absolved him, and have left him his certificate and the power to 
 " continue to command." 
 
 Doubtless it would have been more satisfactory if the point 
 had been properly raised between the parties, and the provisions 
 of the French law established by proof in the usual way, but I 
 must deal with the evidence as 1 find it, and considering that the 
 evidence of Captain Angles is not contradicted, I feel bound to 
 presume that he is a properly certificated master according to 
 French law, and therefore that in any question of seaworthiness, 
 evidence of his conduct during the voyage cannot be adduced to 
 prove his incompetency. 
 
 The second ground of unseaworthiness, alleged by the plaintiff 
 is the insufficiency of the crew. The only evidence we have on 
 the question of the sufficiency of the crew is, that of the master 
 and the first and second mates of the Charles Julie. Captain 
 Angles states as follows : — " I had a mate, a second mate and a 
 " boatswain, and a crew of six ... She [the vessel] was a three 
 " masted schooner, being so easily manned ... I had only three 
 " square sails and all three at the foremast . . . They [the crew] 
 " were more than sufficient [to man the vessel] according Jo what 
 " I have just stated." Amedee Aubert, the mate, states : " We 
 " were ten hands altogether, on board. The officers were the 
 " captain, myself and the second mate ... In difficult circum- 
 " stances, besides the man at the cathead and the customary watch, 
 " orders were frequently given for some one to go up the masts." 
 Felicien Pen-ache on this point says : " There was a sufficient 
 " crew for manning the vessel, considering the vessel was a three 
 " masted schooner and that the only heavy work was, in moving 
 " the square sails." 
 
 This being the only evidence in the case with regard to tbe 
 number and sufficiency, it is clear that (here is nothing from which 
 I should be justified in assuming that the crew was insufficient. 
 
 The third ground of unseaworthiness alleged is, the want of 
 proper and necessary charts on board the vessel. 
 
 From the evidence of Captain Angles, it appears that tbe 
 chart used on board the Charles Julie is (he chart published 
 under the direction of the Secretary of State for the French Navy, 
 in 1862. A copy of this chart was produced before the Commission 
 at Marseilles, and is the chart marked No. 2 in the documentary 
 evidence. It is designated " Carte du Detroit de Malacca [Partie 
 " Sud], depuis les North Sands jusqu'a Singapour, d'apres M. M. 
 " Wm. Eose, Eobert Moresby et C. Y. Ward de la Marine Anglaise 
 " de L'Inde," [" Chart of the south part of the Straits of Malacca 
 " from the North Sands to Singapore, according to Messrs. W. 
 " Eose, &c, of the Indian Navy."] From its title, therefore, the 
 
STRAITS SETTLEMENTS. 
 
 1st 
 
 Vekappa 
 Chetty 
 
 Vbktee. 
 
 chart purports to be the authorised chart of the portion of the HACKE „g T 
 
 Straits of Malacca in her voyage through which the Charles Julie ; 
 
 was lost. And there is further evidence of this. The mate 
 Amedee Aubert states : " The chart made use of, is the chart of 
 " the Straits of Malacca from the depot of the French Navy," and 
 Louis Honore Gilette, a retired captain, describes the chart in 
 question as " a new and more complete edition of the one publish- 
 ed by order of the Minister of the Navy, which I used and which 
 " is used by French captains to go to Singapore. It enables me to 
 " see the navigation which is to be made in the Straits of Malacca." 
 
 It would appear, therefore, that the chart used, is that publish- 
 ed by order of the Minister of the Navy and used ordinarily by 
 French captains. 
 
 But a charb was produced before the Commissioners on 
 the examination of witnesses at Singapore, an English chart 
 which appears to be a more complete chart than the French 
 one, and it is contended on behalf of the plaintiff, that be- 
 cause the Charles Julie was not provided with a chart as per- 
 fect as this English chart, therefore she was unseaworthy. Now 
 on examination of these two charts, it is clear that as com- 
 pared with the English chart, the French one is imperfect, 
 and must necessarily be less serviceable in navigating those 
 waters. Besides it appears from the evidence of the captain and 
 mate, that the place where the . Charles Julie was wrecked was 
 altogether out of the range of the French chart, which, therefore, 
 at that point became useless, whereas the English chart which 
 extends a third of a degree more to the southward includes the 
 spot of the wreck. 
 
 But it seems to me that all that was requisite was, that the 
 Charles Julie should have on board the chart stamped with the 
 authority of, and prescribed by, the French law. It would be 
 most unreasonable to hold that, as regards her equipment, a vessel 
 should be governed by any other law than that of the state to 
 which she belongs. 
 
 I am therefore of opinion, that the plaintiff has failed to 
 establish the third ground of unseaworthiness, namely, the want 
 of proper and necessary charts. 
 
 The result of the whole is, that there must be judgment for 
 the defendant, [a.] 
 
 AEMOOGUM CHETTY v. LEE CHENG TEE & ANOR. 
 
 In order to establish an usage of trade, the evidence of men personally connect- 
 ed with the trade, and who have acquired their knowledge of its usage, not from 
 hearsay, but from experience, is required. 
 
 There is no usage of trade, applicable to Straits trading vessels trading 
 between Singapore and Penang, which permits of their touching in at Malacca, so 
 as not to render it a deviation, when such vessel is insured only *' for voyages 
 " between Singapore and Penang." 
 
 Straits owned vessels, plying between the Straits and ports outside the limits of 
 the Colony, are not " Straits Traders," so as to be affected by Straits usage in 
 trade. 
 
 [a] Leave to appeal to the Privy Council was moved for and obtained on the 
 20th July 1868, but the appeal was subsequently withdrawn on motion of Counsel for 
 plaintiff, on the 1st) March 1869, 
 
 Singapore. 
 
 Maxwell. 
 C.J. 
 1868. 
 
 May 15. 
 
182 
 
 CIVIL OASES. 
 
 Maxwell, 
 O.J. 
 1868. 
 
 Akmoogum 
 
 Chetty 
 
 v. 
 
 . Lee Chen& 
 
 Tee & anoh. 
 
 This was an action on a Chetty's Insurance Bond. The facts 
 giving rise to it sufficiently appear in the judgment. 
 Atchison, for plaintiff. 
 Braddell [Attorney-General] , for defendants. 
 
 Cur. Adv. Vult. 
 On this day judgment was delivered by 
 Maxwell, C. J. The petition claims to recover the sum of 
 $4,400 and interest upon a bond dated February, 1867. The con- 
 dition of the bond recites that the plaintiff had lent to the defen- 
 dants the sum in question on the hazard and adventure of the brig 
 Black Diamond, on voyages to and from Singapore, Penang, Achin, 
 Rangoon or Saigon for six months, and declares that the bond 
 shall be void if the money is repaid with interest at 27 per cent, per 
 annum in six months, or if the vessel is lost by sea perils within 
 that time on any of the above mentioned voyages, without 
 deviation. The Black Diamond was totally lost by a collision with 
 a steamer ; but she had called in at Malacca ; it was indeed on her 
 way to Singapore after leaving Malacca, that she was lost; and the 
 question in dispute was, whether this constituted a deviation. 
 
 Mr. Atchison, on behalf of the plaintiff, relied on the generalrule 
 of law that every instrument is to be understood in the plain and 
 common meaning of its terms, and that as the bond sued upon 
 gave no leave to touch at Malacca, there had been a deviation. 
 The Attorney-General, for the defendants, contended that 
 such leave was implied, first, because it was to be inferred from 
 conversations between the parties before the execution of the-in- 
 strument, and from the conduct and declarations of the plaintiff 
 subsequently, that siich was tho intention ; and secondly, because 
 there was a general usage in the trade to which the Black Diamond 
 belonged, for vessels to touch at Malacca. 
 
 The first ground cannot be supported on any recognized prin- 
 ciples of law. It is an elementary rule that when parties put 
 their agreement into writing in a shape which shews that they 
 intend the writing to be the record of their bargain, it is not open 
 to them to contradict or vary its terms by extrinsic evidence, 
 when its provisions are in controversy between the parties to it, or 
 some right arising out of it is asserted. The rule is that the 
 document must speak for itself. It follows, therefore, in this case, 
 that even if it had been clearly proved that the parties had ver- 
 bally agreed, at or before the date of the bond, that the ship 
 should be at liberty to touch at Malacca, she would not have been at 
 liberty to do so if that permission was not to be found within the 
 four corners of the instrument. If any such stipulation had been 
 omitted by mistake, the only redress open to the party prejudiced 
 would have been to get it rectified by a suit in equity. Again, 
 conversations subsequent to the execution of the bond, shewing 
 that the plaintiff knew that the vessel repeatedly went into 
 Malacca, and that he was under the impression that she was at - 
 liberty to do so within the meaning of the bond, are equally un- 
 availing to vary its language or affect the rights or liabilities of 
 the parties. The words used must receive their interpretation 
 without any regard to subsequent declarations by the parties as to 
 
STRAITS SETTLEMENTS. 183 
 
 what they understood or intended to be in the contract, [except Maxwell, 
 in the single case of a latent ambiguity,] for if the meaning of X g 6 g, 
 
 words could be thus varied, written instruments would have no 
 
 other meaning than that which the parties chose to give them at Abmoooum 
 any time. It is, indeed, allowable to vary or discharge a contract c ™ttt 
 by a new arrangement, and this may, in some cases, be done ver- Lee Cheng 
 bally, or even by acts or conduct or course of dealing. As Bonnier Tee & anob. 
 pithily puts it, in his Traits des Preuves, you do not deny the 
 voyage of a ship by asserting that she has arrived at her port of 
 discharge. But it is not contended in this case that there was any 
 such new compact, and for technical reasons, none could have 
 affected the bond sued upon unless it had been under seal. 
 
 The other point was, that there was a known established usage 
 authorizing the Black Diamond to touch at Malacca, and that the 
 bond must be read as though that usage had been set forth in ex- 
 press terms in the document. Unquestionably, if any usage ap- 
 plicable to this contract had been proved, it would be considered 
 as incorporated in it. The object of all exposition of written in- 
 struments is to ascertain the meaning and iutention of the parties 
 to them. This is, in general, accomplished by applying the rules 
 of grammar to the words taken within ordinary and popular mean- 
 ing. But if words have acquh'ed a peculiar meaning in any loca- 
 lity or trade, persons making a contract in or with reference to 
 such locality or trade, are presumed to use its language and also 
 to intend to be bound by its usage, if either they belong to the 
 place or trade, or are acquainted with its language and usages. 
 Thus, it may be shewn by extrinsic evidence that in a lease of a 
 rabbit warren, " one thousand" rabbits mean, by the custom of 
 the place, twelve hundred ; that " days" mean " working days" 
 in a bill of lading, and that " years" mean " seasons" in a theatri- 
 cal engagement, Smith v. Wilson, 3 B. and Ad. 728, Cochran v. 
 Retberg, 3 Esp. 121, Grant v. Maddot, 15 M. and W. 737. So, in 
 construing policies, the known usage of trade has always been 
 freely invoked. " To understand the policy," said Lord Mansfield 
 in Gregory v. Christie, " you must refer to the course of trade to 
 " which it relates ;" and so here it is open to the defendants to 
 prove that in the ordinary language of the trade with reference to 
 which this bond was made, " a voyage from Singapore to Penang," 
 means " a voyage from Singapore to Penang with liberty to call 
 " at Malacca." It was not pretended that Malacca is an usual 
 port of call for all vessels passing between the two ports ; but evi- 
 dence was given to shew that it was usual for a certain class of 
 vessels called " Straits Traders," owned, commanded and manned 
 by Chinese, and plying simply between Singapore and Penang, to 
 call at Malacca. Three or four owners of such vessels said that 
 such was the practice of their own vessels, some say that they 
 called whether full or in want of cargo, either to get the latest 
 market news, or to enable the masters and men to visit their favo- 
 rites ; others, that they called only when the vessel, was not full. 
 Captain Smith, who has been connected with a different class of 
 shipping in Singapore since 1850, spoke merely from what he had 
 heard, and his belief was, that the vessels in question sailed straight 
 
184 
 
 OIYIL CASES. 
 
 Maxwell, 
 C. J. 
 1868. 
 
 Abmoogtjm 
 
 Chetty 
 
 v, 
 
 Lee Cheng 
 
 to their destination when they were full, but that, when not full, 
 they called in at Malacca for orders. , Finally, Mr. Burn, the 
 Master Attendant, said that the greater proportion of the clearan- 
 ces of the Straits traders was for Penang and Malacca, but that 
 many cleared for Penang direct. I said, at the time, that I con- 
 sidered this evidence insufficient to establish a general usage ; and 
 Tee & anob. for this reason, that to establish an usage of trade, the evidence 
 of men personally connected with the trade and who have acquired 
 their knowledge of its usage not from hearsay but from experience, 
 is required ; while here the Chinese owners scrupulously confined 
 their testimony to the practice of their own vessels, or I ought 
 rather to say, to the orders which they gave to their masters and 
 to what the latter told them ; and Mr. Burn and Mr. Smith had no 
 personal experience whatever in the trade. But even if the usage 
 had been proved, it was limited to " Straits Traders" plying 
 between Singapore and Penang, and I am unable to see how it 
 could apply 'to a vessel whose voyages were not confined to those 
 limits. It is true, the Black Diamond had a Chinese owner, master 
 and crew, and had traded between the two terminal ports of the 
 Straits between October, 1866, and the February following, when 
 the bond was executed, and had on every voyage called at Malacca 
 [possibly with the knowledge of the plaintiff] , though before that 
 time she plied between Singapore and Saigon, subject to a contract 
 between the same parties similar to that now in suit. Still the 
 fact remains, that the voyages mentioned in the bond, and there- 
 fore in the contemplation of the parties when the bond was exe- 
 cuted, were not mere voyages within the limits of the Straits, hut 
 voyages extending to Rangoon, Achin and Saigon, seems to me, 
 therefore, that the contract was not made with reference to the 
 Straits trade, and therefore that there is no ground for holding 
 that its language should receive the meaning attached to it by 
 usage in the Straits trade. Usage would have been imported into 
 the instrument if it appeared that the instrument related to a 
 mere Straits voyage, and that the Black Diamond was a known 
 Straits trader. But to import it into a contract which does not 
 relate to a mere Straits voyage, would be to attribute to the lan- 
 guage a sense given to it not in the trade in reference to which the 
 contract was made, but a different trade. This is out of the 
 question. It follows that the terms must be used in their ordi- 
 nary sense and as no leave to call at Malacca is to be found ex- 
 pressed in the bond construed in that sense, I must hold that the 
 vessel in touching there deviated from her voyage. 
 
 Judgment for the plaintiff. 
 
 HOOGLANDT v. MAHOMED ISUP & OES. 
 
 Singapore. A memorandum for goods sold to the value of ten pounds or upwards, in order to 
 
 satisfy the Statute of Frauds, must contain the names of the vendor and purchaser, the 
 
 Maxwell, terms of the sale, the prices of the goods, and must he signed by the person to he 
 C. J. charged [vendor or purchaser as the oase might be] ; otherwise no action can be main- 
 1868. tained thereon. 
 
 ' A Solicitor who signs and sends a notice on behalf of his client, demanding delivery 
 
 May 15. of goods sold, is not an agent for signing a contract of sale so as to bind his client and 
 make the notice [whioh otherwise may oontain all the requirements of the Statute] a 
 ' memorandum with the Statute. 
 
STRAITS SETTLEMENTS. 
 
 185 
 
 This action was brought to recover damages from the defend- 
 ants for refusing to accept delivery of goods which they had con- 
 tracted to buy of the plaintiffs. For the plaintiffs, one of them 
 proved that the defendants had verbally contracted for the pur- 
 chase of three hundred pieces of cotton printed goods, at 3 dol- 
 lars a piece, upon three months' credit ; and that the defendants 
 refused to accept the goods tendered to them on the ground that 
 they were not equal to sample. At the time of the bargain, an 
 entry was made by the managing partner in a book, in the follow- 
 ing form. 
 
 No. 590. Terms, three months. 
 Dated 7th November, 1867. 
 To Mahomed Isup, Mahomed Misa and Saiboo. 
 170 ") 
 S 173 f 300 pieces prints 
 N C 174 ( @ |3. 
 
 184/6.) 
 
 and a delivery order was at the same time given to the defendants 
 in the same terms, except that instead of the italicised word to, 
 it was deliver to. The former document bore no signature. The 
 latter bore the signatures of the three defendants on the back, 
 written there some days after the contract, and with the view of 
 getting delivery of goods. A letter signed by Mr. Davidson, the 
 Solicitor of the defendants, and addressed to the plaintiffs was 
 also put in, calling on the latter to deliver goods according to 
 sample. On the close of the plain tiff's case, 
 
 Davidson, for the defendants objected, that the plaintiffs could 
 not recover and must be non-suited, on two grounds, first that the 
 contract laid in the petition was not proved, assuming that there 
 was legal evidence of any contract, inasmuch as the petition de- 
 scribed it as for the present delivery of goods and payable on deli- 
 very, whereas the evidence was that the delivery was to be at a 
 future time, and payment not to be made until the expiration of 
 three months ; but secondly, that there was no memorandum of 
 the bargain sufficient to satisfy the Statute of Frauds. The entry 
 in the plaintiffs' book was manifestly no compliance with the 
 statute, for it contained neither the names of the vendors nor any 
 terms to shew that it related to a sale, and it bore no signature 
 whatever, consequently was not, as the statute required, signed by 
 the party sought to be charged or by -his lawful agent. The deli- 
 very order was not a memorandum of any contract of sale, there 
 was nothing on its face from which it could be collected that the 
 persons to whom the goods were to be delivered were the purchas- 
 ers of them. As to the letter written by him [Davidson], he 
 was not his clients' agent for the purpose of signing any con- 
 tract of sale, but besides the contract referred to in his letter was 
 evidently not the one on which the plaintiffs sued, and at all events 
 the letter was an insufficient memorandum as it made no mention 
 of the price. 
 
 Maxwell, C. J., held, that the objection was fatal. The Statute 
 of Frauds required that when goods were sold for the price of ten 
 pounds or upwards, there should be a memorandum of the terms 
 of the bargain signed by the party sought to be charged or by hia 
 
 Maxwell, 
 C.J. 
 1868. 
 
 HooGLANDT 
 
 V. 
 
 Mahomed 
 Isup & ors. 
 
186 
 
 CIVIL CASES. 
 
 Maxwell, 
 C.J. 
 1868. 
 
 HoOOLANDT 
 
 V. 
 
 Mahomed 
 Isup & OBS, 
 
 thereunto lawfully authorized agent, if there was neither accept- 
 ance and receipt of the goods, nor something given in earnest or a 
 part payment of the price. The Courts at home had always 
 stretched the construction of the statute as much as possible for 
 the ends of substantial justice, and he was willing to do the same ; 
 but it was impossible to get over the difficulties pointed out by 
 Counsel for the defendants. There was no sufficient memorandum 
 of the contract and no signature by the defendants. 
 
 j, Pldintiffs non-suited,. 
 
 Singapore. 
 
 Maxwell, 
 C, J. 
 1868. 
 
 July 22. 
 
 COLLINS v. BTJEN. 
 
 An action for damages will lie against a public servant, for acting in breach of bis 
 official duty, to the injury of any person. 
 
 The defendant, the Master Attendant or Shipping Officer at Singapore, it was 
 alleged, refused to place the plaintiff, a duly qualified seaman, on the articles of a mer- 
 chant vessel, as chief officer, whereby the plaintiff was unable to get the berth and 
 suffered great loss. 
 
 Held, [if the evidence had supported the case,] that the action would lie. 
 
 The defendant advised the captain of a ship, who was about shipping the plaintiff 
 as his chief officer, not to take him as such, on account of his previous conduct on 
 board other ships, whereupon the captain changed his mind, and would not take plain- 
 tiff on. 
 
 Held, this was not an obstructing of the plaintiff from being engaged ; and even 
 if it was, was not done by the defendant in breach of his public duty, as it was no part 
 of his public duty to advise the captain. 
 
 Held, further, if the plaintiff had any remedy for such statement made by the 
 defendant, concerning him, to the captain, it was in a different form of action. 
 
 Query. Whether an action for slander or libel would lie, under the circumstances ? 
 
 The duty of the Shipping Officer under section 4 of the Merchant Shipping [Indian] 
 Act I. of 1859, is not to facilitate engagements for, seamen generally, but only in the 
 way pointed out by section 22 ; and that is, not in assisting them to get employment, 
 but to see they were not imposed on, when employment was offered them. 
 
 The plaintiff, in this case, was a Master Mariner; the defend- 
 ant was the Master Attendant and Shipping Master of Singapore. 
 
 The petition stated, in the first count, that the plaintiff en- 
 tered into an agreement with Edward Roberts, the master of the 
 British steam-ship John Bull, to serve on board as chief officer, 
 at forty dollars a month ; that in pursuance of the agreement, 
 the plaintiff and Roberts requested the defendant, as the Shipping 
 Master of Singapore, to permit the plaintiff to sign the shipping 
 article in his presence, and to attest the signature ; but that the 
 defendant, being such Shipping Master, without any reasonable 
 excuse, refused ; whereby the plaintiff lost his engagement. 
 
 The second count was similar, except that the ship was des- 
 cribed as a foreign-going steam-ship. 
 
 The third count alleged that the defendant, being a Shipping 
 Master under Act I. of 1859, for Singapore, did, contrary to his 
 duty in that behalf, wrongfully obstruct .and prevent the plain- 
 tiff from being engaged and shipped as chief officer of the John 
 Bull, whereby the plaintiff was prevented from serving on board 
 that vessel, and lost the wages and remuneration which would 
 have accrued to him. 
 
 Davidson appeared for the plaintiff. 
 . Atchison, for the defendant. 
 
STRAITS SETTLEMENTS. 
 
 187 
 
 The plaintiff, in his evidence, said that, on the 2nd May, he 
 went to the Shipping Office with Captain Eoberts, who requested 
 Mr. Eeutens, one of the clerks, to put his, Collins' name, in the 
 articles as chief officer at 40 dollars a month. Eeutens went 
 into the next room with a paper in his hand, and then returned, 
 directing the plaintiff to go to the defendant. Plaintiff went 
 into the room, said good morning, and the defendant replied, that 
 will do. The plaintiff walked out. Eoberts was called into the 
 defendant's room, the door of which was closed. Presently he 
 came out and said to the plaintiff, he won't ship you. The plain- 
 tiff asked, why not, and Eoberts told him to see the defendant. 
 He did so ; he asked him to allow him to be shipped on board the 
 John Bull. The defendant said no ; plaintiff asked why not, the 
 defendant replied that he would give no reasons. It further ap- 
 peared from the plaintiff's examination that he applied to Captain 
 Playfair, the Colonial Secretary, and afterwards to the Governor 
 on the subject of the defendant's refusal, and ultimately the de- 
 fendant said that he had received a letter from the Governor, and 
 that the plaintiff might go into any ship available. 
 
 In cross-examination the plaintiff admitted that he had been 
 convicted last January for not going to sea after signing articles, 
 and had been sent to the House of Correction for four weeks for 
 that offence ; also that a little more than a year ago, he had ship- 
 ped on board a Siamese barque, commanded by Captain Eoberts, 
 that he had received two months' pay in advance, and that the 
 ship had sailed without hini; but he said that he had joined her 
 afterwards. He also said that Captain DeSouza had sworn 
 articles of the peace aginst him in March, and that he had been 
 committed to jail for some days for want of sureties. 
 
 Mr. Eeutens said that Captain Eoberts had asked him to allow 
 Collins to sign the articles as chief officer ; that he took Collins 
 to the defendant, who asked to see Captain Eoberts ; and that 
 whenthelatterlefttheoffi.ee, he said to the plaintiff that the 
 defendant would not allow him to be shipped. 
 
 The defendant said that he had a conversation on the morn- 
 ing in question with Captain Eoberts. Upon being asked what 
 was said, 
 
 Davidson, for the plaintiff, objected to the question, on the 
 ground that what passed between the defendant and Captain 
 Eoberts behind the plaintiff's back was not evidence against him. 
 
 Atchison concluded that it was part of the res gestce. 
 
 [Maxwell, C. J., said, that the plaintiff complained of having 
 been obstructed in getting an engagement, and it was pretty ob- 
 vious that whatever obstruction occurred, arose in the course of 
 the conversation in question, but as the plaintiff objected to its 
 reception, he would allow the objection.] 
 
 The defendant then proceeded to say that he had never re- 
 fused to allow the plaintiff to sign any articles, nor had he re- 
 fused to attest his signature. 
 
 He had never been asked to do either, he had never been asked 
 by the plaintiff to allow him to join the John Bull, nor had he [the 
 defendant] ever said that he would not allow plaintiff to join, 
 
 Maxwell, 
 C.J. 
 1868. 
 
 Collins 
 v 
 
 BUBN. 
 
188 
 
 CIVIL CASES. 
 
 MAXWELXi, 
 
 C.J. 
 1868. 
 
 Collins 
 v 
 
 BCKN. 
 
 Cross-examined by Davidson. — Reutens did tell him that Cap- 
 tain Roberts wished to ship Collins; he said nothing about 
 articles ; he said that Captain Roberts wished to have Collins as 
 Mate of the John Bull. After Captain Roberts left the room, 
 plaintiff came in and said that he [the defendant] had prevented 
 his being shipped, and that he would not leave the office till 
 he had satisfaction. The defendant requested him to leave the 
 room, saying that he declined to have any conversation with him 
 on the subject of the John Bull. 
 
 Captain Roberts, said that he went to the Shipping Office 
 with Collins, on the 2nd of May, for the purpose of shipping him 
 as mate, and that the defendant had not prevented him from 
 shipping him. 
 
 In cross-examination, he said that, on leaving the defend- 
 ant's office, he was not exactly willing to ship the plaintiff. He 
 had not shipped him in consequence of what the defendant had 
 told him. The defendant had not said he would not allow him 
 to be shipped. He advised him [Captain Roberts] not to have 
 anything to do with the plaintiff ; that he would " give him the 
 "slip," and that he had done the same thing lately. He said to 
 the plaintiff: that he [Captain Roberts] could not ship him. The 
 plaintiff asked why not, and the witness answered that he had 
 better' go and ask the Master Attendant. The witness further 
 said that the plaintiff had given him the slip once ; he had re- 
 mained on shore after receiving two months' pay, eighty dollars. 
 He had certainly served for two months afterwards, but that was 
 to work out the two months' pay which he had received, and 
 which Captain Roberts would otherwise have lost, and then he 
 had left. He [the witness] had told the plaintiff on Sunday 
 evening that he was willing to take him, and would keep the 
 berth open for him ; and even on the Monday he would have 
 shipped him, but he happened to have gone to the Governor. On 
 that day he saw his agents, and had some conversation with them. 
 On Tuesday, he changed his mind, and became unwilling to ship 
 the plaintiff. 
 
 Maxwell, C. J., in delivering judgment, said that the defend- 
 ant was sued for a breach of his duty as Shipping Master, in 
 refusing to let the plaintiff sign ship's articles in his presence and 
 in refusing to attest that act, and also, for having, generally, ob- 
 structed the plaintiff and prevented him from being engaged on 
 board the John Bull. To understand the case, it was necessary 
 to refer to those passages of the Act 1 of 1859 to which Mr. 
 Davidson had called attention in his opening. The 4th section 
 declared that it was to be the duty of Shipping Masters, among 
 other things, to superintend and facilitate the engagement and 
 discharge of seamen in manner thereinafter mentioned; and 
 the 22nd section shewed what he was to do in respect of their 
 engagements, viz., to see that the articles were read and explained 
 to the seamen before they signed, and to attest their signa- 
 tures. This was a public duty imposed on him as a public officer 
 and if he had acted in breach of his duty to the injury of any 
 person, that person was entitled to bring an action against him for 
 
STRAITS SETTLEMENTS. 
 
 189 
 
 the ■wrong. The first question, then was, had the defendant re- 
 refused to let the plaintiff sign, or had he refused to attest the 
 plaintiff's signature ? Now, not only was there no evidence that 
 he had ever. been called upon to perform those purely ministerial 
 acts, but it appeared very clear that the nature of the defendant's 
 act was entirely different. What had led to thiT plaintiff not 
 being shipped, was obviously the conversation between the de- 
 fendant and the captain of the ship, and though the defendant's 
 version of the conversation had been excluded, enough of it had 
 been elicited from Captain Roberts by the plaintiff's counsel in 
 cross-examination to shew what had taken place. The defendant 
 advised Captain Roberts not to ship the plaintiff, observing that 
 he would " give him the slip," as he had done once before, and 
 as he had done since to somebody else ; and Roberts said that on 
 hearing this, he left the office " not exactly willing" to take the 
 plaintiff as his chief officer. If this was really what occurred, 
 and he [the Chief Justice] had no doubt about it, what prevent- 
 ed the plaintiff's engagement was not the refusal of the defend- 
 ant to suffer the articles to be signed in his presence, but the dis- 
 inclination of the captain to engage the plaintiff, induced, un- 
 doubtedly, by the defendant's advice. The plaintiff said that 
 Roberts on returning to the outer office, said to him the defend- 
 ant would not suffer him to be shipped. Captain Roberts' ver- 
 sion of what he said was that he, Roberts, could not ship him, 
 and when asked for the reason, told the plaintiff to ask the defen- 
 dant. It was not material which version was the correct one ; for 
 it was plain that Roberts, on leaving the defendant, was unwill- 
 ing to take the plaintiff as- his officer, and that there never was a 
 question about signing or attesting articles. It was true, that 
 the following evening [Sunday] he was still willing to take him, 
 and, indeed, he would have shipped him on Monday, but for the 
 accident of the plaintiff being out of the way, having gone to the 
 Governor to complain against the defendant. But this did not 
 shew that the loss of the engagement, was owing to the defend- 
 ant's refusal to do his duty as Shipping Master, it shewed on the 
 contrary that Captain Roberts at that time was disposed to dis- 
 regard the advice which had been given him by the defendant 
 and that he, at least, had not construed that advice into a refusal 
 to attest the articles. It was clear that there never had been any 
 such refusal or anything equivalent to it, and therefore the plain- 
 tiff could not recover on either of the first two counts. As to the 
 third count, it complained that the defendant, as Shipping Master 
 obstructed and prevented the plaintiff from being engaged, and 
 this was said to be a breach of his duty as defined by the 4th sec- 
 tion of the Act. It was said that it was the duty of Shipping 
 Masters, under that section to facilitate the engagement of 
 seamen, and that, here, the defendant, had, instead of facilitating, 
 obstructed an engagement contrary to his- duty. Such was not 
 the meaning of the Act. It would indeed have been strange, to 
 find an Act requiring a public officer to use exertions to find en- 
 gagements on board ships for all kinds of seafaring men, no mat- 
 ter what their character or qualifications might be. The 4th 
 
 Maxwell, 
 C. J. 
 1868. 
 
 Collins 
 
 v. 
 
 Btjbn. 
 
190 
 
 OIVIL OASES. 
 
 Maxwell, 
 C.J. 
 1868. 
 
 Collins 
 
 v. 
 
 BtTBN. 
 
 section did not require the Shipping Master to facilitate engage- 
 ments generally, but simply to facilitate them " in manner herein- 
 " after mentioned," and what that manner was, was shewn by the 
 22nd section, which provided that he was to see that seamen who 
 engaged to serve on board ships, understood the contract into 
 which they were entering. In other words, his duty was not to 
 assist them in finding employment, but to see that they were not 
 imposed upon when employment was offered to them ; and the 
 only breach of that duty was a neglect or refusal to perform the 
 simple ministerial acts of having the articles read and explained 
 to the seamen, or of attesting his signature. If, therefore, the 
 defendant had obstructed and prevented the plaintiff from getting 
 an engagement, it was not by any breach of his public duty as 
 Shipping Master, and the third count must therefore also fail. 
 If the plaintiff had any cause of action against the defendant, it 
 was for something done not in breach of his duty as Shipping 
 Master, but wholly independently of his public character. It 
 was- for having said to Captain Roberts that the plaintiff would 
 give him the slip, and he had lately been convicted of that offence, 
 and for having dissuaded Roberts from shipping him. Whether 
 the plaintiff was entitled to complain of this as a legal wrong 
 done to him, it was not his duty to determine in this action. It 
 was enough to say that the complaint here was simply that the 
 defendant had injured the plaintiff by a breach of his duty as 
 Shipping Master ; it was plain that there had been no such breach 
 and judgment must therefore be for the defendant. 
 
 Singapore. 
 
 Maxwell, 
 C.J. 
 1863. 
 
 August 17. 
 
 MARTIN, DYCE & Co. v. HODGSON & Co. 
 
 A warehouseman who undertakes to warehouse goods in a ship impliedly undertakes 
 to use due eare in keeping the ship in good condition and reasonably water tight ; and 
 also to have a sufficient .number of hands on board to answer any emergency. 
 
 The fact that the warehouseman has placed such a number of hands on board, as is 
 ordinarily to be found in other vessels, used for the same purposes, does not, of itself, 
 relieve him from the responsibility, should the goods entrusted to him be lost. Nor is 
 he relieved from responsibility by the fact that he has placed a reasonably sufficient 
 number of men on board with express directions that they were not to be absent from 
 the ship, and the men, in spite of his directions, wilfully absent themselves leavin<* so 
 few hands on board as. to be unequal to meet an emergency. 
 
 The defendants, the owners of a hulk, received, for reward, certain quantities of 
 gunpowder from the plaintiffs to be warehoused on board their hulk, they placed a 
 
 European captain and four native seamen on board her, with express directions they 
 
 were not to be absent from the hulk at nights, three of whom, however, on the night in 
 question, disobeyed the order given them, leaving two only of the men [natives] on 
 board : the number of hands so placed by the defendants was the customary number 
 placed on board other hulks similarly used. The hulk after taking in an extra quantity 
 of gunpowder than usual, on the night in question, sprang a leak and sank with all gun- 
 powder on board. 
 
 Held, the defendants were guilty of negligence, and liable to make good to the 
 plaintiffs the value of gunpowder received from them. 
 
 The defendants' hulk, on the day of the night in question, took in certain quanti- 
 ties of gunpowder belonging to the plaintiffs from another hulk, but without the privity 
 of the plaintiffs, aud that night sank as stated above. 
 
 Held, the plaintiffs could not sue the defendants for negligence in respect of 
 this quantity, as there was no privity of contract between them. 
 
STRAITS SETTLEMENTS. 
 
 191 
 
 The facts of this case are fully set out in the judgment and 
 need no further statement'here. 
 
 Atchison for plaintiffs. 
 
 Cur. Adv. Vult. 
 
 Judgment was now delivered by 
 
 Maxwell, C. J.— The petition states that in consideration 
 that the plaintiffs delivered to the defendants certain gunpowder, 
 to be safely kept by them and redelivered on request, for reward, the 
 defendants promised to keep it safely and redeliver it ; that the 
 plaintiffs had requested the defendants to redeliver it, but that they 
 had not done so. 
 
 The second count is fo the like effect, except that the consid- 
 eration is stated to be that the plaintiffs would deliver the pow- 
 der to the defendants to keep, and this is followed by an averment 
 that the powder had been delivered to the defendants accordingly. 
 
 The third count alleges that the powder was kept negligently, 
 and was consequently lost. 
 
 The first two pleas put in issue the promise and the bailment. 
 The third alleges that the defendants did keep the gunpowder 
 safely ; and the fourth states that the powder hulk Princess Royal, 
 was a hulk moored near the limits of Singapore harbour, and used 
 by the defendants for the storage of gunpowder for hire ; that the 
 powder in question was sent by the plaintiffs to the hulk to be 
 stored and kept, was received, stored and kept by the defend- 
 ants, who caused it to be safely deposited, and took care of it ; 
 and that before the plaintiffs demanded delivery of it, the powder 
 was casually lost and destroyed by the sinking of the hulk by 
 accident ; by means whereof and from no other cause, and without 
 any carelessness, negligence or improper conduct, or want of due 
 care in the defendants, they were prevented from delivering the 
 powder. 
 
 It was admitted that the quantity of powder claimed in the 
 action had been received by the defendants ; viz., 2,712 piculs 
 direct from the plaintiffs, and 788 piculs from the owners of 
 another hulk, the Statesman, with whom it had been deposited by 
 the plaintiffs, and that the whole quantity had been lost by the 
 sinking of the Princess Royal on the night of Sunday, the 16th 
 February last. • 
 
 The first and most important question is, whether the defend- 
 ants are liable for this loss ; the second, whether, if they are, 
 the plaintiffs are entitled to recover in this action the value of the 
 powder received from the Statesman, as well as of that received 
 from the plaintiffs directly. 
 
 To take the second question first,' I think it must be answered 
 in the negative. There was no privity of contract between the 
 plaintiffs and the defendants in respect of the powder delivered by 
 the Statesman ; and there being no contract between them, the de- 
 fendants cannot be sued for a breach of any. But, Mr. Atchison 
 asked for leave to add a count in trover ; and in exercise of the 
 power which the Charter gives to the Court, of amending the 
 pleadings, and which I have always freely exercised whenever I 
 thought that the ends of substantial justice required it, I should 
 
 Maxwell, 
 C.J. 
 1868. 
 
 Maetin, 
 Dyce & Co. 
 
 V. 
 
 Hodgson 
 &Co. 
 
192 CIVIL CASES. 
 
 Maxwell, probably not have refused the application upon terms, if such a 
 
 1868 count would clearly be sustainable. But it seems to me that this 
 
 - — ' is not a mere question of pleading, but that the plaintiffs could 
 
 Martin, no t recover from the defendants in any form of action, compen- 
 
 Dyce & Co. ga tj on f or the loss of this powder. There was no conversion of it 
 Hodson&Co. by the defendants. It has often been decided that if a carrier 
 misdelivers a parcel, trover lies against him for the wrongful act, 
 see for instance, Stephenson v. Hart, 4 Bing. 483 ; but it was held 
 in Boss v. Johnson, 5 Burr. 2827, that trover would not lie against 
 a wharfinger for goods which he had lost. " In order to maintain 
 " trover," says Lord Mansfield in that case, " there must be an in- 
 " jurious conversion. This is not to be esteemed a refusal to de- 
 " liver the goods. They can't deliver them. It is not in their 
 " power to do it." Mr. Atchison cited a passage from Addison on 
 Torts, p. 222, to the effect that if goods are bailed by A. to B., to 
 be kept by the latter, and B. bails them to C, who uses and wastes 
 the goods, C. is liable at the suit of A. ; and he referred also to 
 Story on Bailments (Sect. 105), where it is said, that if a bailee 
 delivers the goods bailed to him, to a second bailee, the original 
 bailor is entitled to demand and recover them from either bailee. 
 Both passages I take to be sound law; but they apply to cases 
 where the second bailee has, in legal effect, converted the goods 
 to his own use, either by wasting them, or keeping them in his 
 possession after demand. In the present case, it seems to me that 
 whether the defendants be liable to the owners of the Statesman 
 or not, they are not so to the plaintiffs. 
 
 The determination of the first question depends on whether the 
 defendants were guilty of negligence in keeping the goods com- 
 mitted to them. As warehousemen, they did not warrant or en- 
 sure the safety of the powder against all risk, but they undertook 
 to bestow care in keeping it ; and if they failed in bringing to the 
 duty so undertaken the degree of care which they were bound to 
 v bring, the breach of that duty is negligence, and they are respon- 
 sible to the plaintiffs for the loss sustained in consequence. It is 
 impossible to lay down a priori, with sufficient accuracy to answer 
 any practical end, what degree of care it is incumbent on a bailee 
 to exercise in different cases. In the old civil-law division of 
 negligence, into the three degrees of slight, ordinary and gross, 
 warehousemen are responsible not only for " gross" but for 
 " ordinary" negligence ; but these expressions tend, perhaps, 
 rather to confuse than to convey an accurate idea of the extent 
 or limits of their responsibility ; and the division of negligence into 
 degrees has been in recent times regarded by our Superior Courts 
 of law as useless for all practical purposes ; per Eolfe B. in Wilson 
 v. Brett, 11 M. AW. 115; by the Court of Queen's Bench, in 
 Hmton v. Dibben, 2 Q. B. 661; and by the Court of Common Pleas 
 m. Austin v. The Manchester, &c, Railway Co., 10 C. B. 454 • and the 
 same opinion has been expressed by the Supreme Court of the . 
 United States m The Steamboat New World v. Kimg, 16 Howard 
 469. It is better therefore to drop the expressions " ordinary" and 
 1" ^° SE C J ? e ^ ence ' and to say simply that the defendants are 
 liable, if they have been guilty of " negligence," which is simply 
 
STRAITS SETTLEMENTS. 
 
 193 
 
 the absence of such, care as it was their duty to use ; per Willes, J. 
 in Grill v. The General Iron Screw Collier Co., L. E. 1 C. P. 612. 
 
 Now, as I understand the law on the subject, bailees for hire, 
 that is, persons who undertake, in consideration of reward, to do 
 something with the goods entrusted to them by those who employ 
 them, whether it be to bestow work in improving them or care in 
 keeping them, impliedly undertake and contract to bring to their 
 task an adequate knowledge of their business, and the application 
 of what may be called business — like" or professional skill, diligence 
 and care in its performance. If a man carries on the business of 
 a watch-maker or jeweller, he holds himself out to the world as 
 possessed, and impliedly contracts with those who employ him 
 that he is possessed of the qualifications reasonably requisite for 
 the due performance of the task which he undertakes in his busi- 
 ness ; and a warehouseman does the same. No express contract is 
 required to impose this obligation on him ; he assumes it by the 
 public profession of his trade, or biisiness or arb or profession. 
 He impliedly undertakes to bring to the keeping of the property 
 which has been entrusted to him, in consideration of the raward 
 which he receives, an adequate knowledge of the business of 
 safely keeping goods and a due amount of skill and care in keep- 
 ing them, in the same sense and degree as the watchmaker or 
 jeweller who undertakes to repair a wat.-h or set a gem, would be 
 required to bring to the work to be done on the thing delivered to 
 thein, and to its preservation from loss or injury. The care, again 
 must be proportioned to the nature of the thing which is bailed, 
 and to the extent of the injury likely to be sustained through the 
 want of such care ; Story Bailm : section 15. Thus in the carri- 
 age of passengers for hire, coach proprietors and railway com- 
 panies are bound to carry safely, as far as human care and fore- 
 sight will go, Christie v. Griggs, 2 Camp. 79, Readhead v. The 
 Midland Railway Company, 2 L. E. 2 B. 412. On the other hand 
 " a man would not be expected to take the same ca,re of a bag of 
 " oats as of a bag of gold ; of a bale of cotton as of a box of dia- 
 " mands ; Story, section 15;" and for the simple reason that it 
 is found by experience that different degrees of care answer the 
 same end in the different cases. 
 
 One other proposition of law it is necessary to state. A 
 master is responsible for the negligence of his servant in the 
 course of his employment. Thus, if goods on board a ship are 
 lost by the negligence of the captain, the owners are responsible, 
 Ellis v. Turner, 8 T. E. 53, Boson v. Sandford, 3 Leo. 258. If the 
 portmanteau of a passenger in a cab is lost by the negligence of 
 the driver, his master is bound to make it good, Powles v. Hider, 
 6 E. & B. 208. And it makes no difference that the misconduct of 
 the servant was in disobedience of his master's orders ; Limpus v. 
 The London Omnibus Company, 32 L. J. Ex. 34. The rule of 
 respondeat superior, it is« said by the Supreme Court of the United 
 States or that the master shall be civilly liable for the tortious acts 
 for his servants, is of universal application, whether the act be one 
 of omission or commission, whether negligent, fraudulent or 
 deceitful. If it be done in the course of the employment, the 
 
 C.J. 
 
 1S68. 
 
 Mabtin, 
 Dtce & Co. 
 
 •v. 
 
 Hodgson 
 
 &Co. 
 
194 
 
 CIVIL OASES. 
 
 C.J. 
 
 1868. 
 
 Maetin, 
 Dtce & Co. 
 
 V. 
 
 Hodgson 
 
 &Co. 
 
 master is liable ; and it makes no difference that the master did 
 not authorise or even know of the servant's act or neglect; or even 
 if he disapproved of it or forbade it, he is equally liable, if the act 
 [or neglect] be done in the course of his servant's employment; 
 Philadelphia and Reading Railroad Company v. Derby, 14 Howard 
 468. The criterion is not whether the master has given authority 
 to the servant to do [or omit J the particular act, but whether the 
 servant does [or omits] it in the ordinary course of his employ- 
 ment, per cur. in Seymour v. Greenwood, 30 L. J. Ex. 192. If, then, 
 in this case, the captain or men were guilty of negligence in the 
 course of their employment, even in disobeying their orders, the 
 responsibility must fall on their masters. In a word it was not 
 convenient to the defendants to discharge in person the duty 
 which they had undertaken ; they employed others as their 
 servants to do it, and if servants were guilty of negligence in the 
 course of their service the defendants are responsible for it. 
 
 Although the trial of this case lasted several days, the fact 
 may be briefly stated. The powder hulk Princess Royal of 913 tons, 
 was bought by the defendants in 1864, for 6,000 dollars, and 
 about 5,000 dollars were subsequently expended on her. She was 
 repaired in 1865, caulked and covered with zinc up to 144 feet, 
 and, as far as her timbers were examined, she appeared in every 
 respect sound, and apparently well calculated to serve as a hulk in 
 Singapore harbour for five years, at the end of which time fresh 
 repairs would have been necessary. She was moored in seven 
 fathoms of water, in the usual way, by two anchors from her bow, 
 with a swivel, eight-tenths of a mile from Tanjong Kafcong, just 
 beyond the limits of the harbour, about two cables length or a 
 little more, from the two fathom bank, which was between her 
 and the shore, and 24 or 3 miles from the jetty o_r mouth of the 
 river. She made very little water, needing to be pumped [for 
 half an hour] only twice a month ; or indeed, I think one of the men 
 said, only once in two months, when there was no rain. She was 
 provided with two good and suitable iron pumps of 84 inches 
 diameter ; and the captain says that it was the practice to sound 
 the well once or twice in the day, and three times at night. She 
 had, at the end of 1866, as much as 1 1,000 piculs [of 100 lbs.] of 
 gunpowder stowed in her ; but in 1867 the largest quantity on 
 board at any one time was 3,570 piculs. On Thursday, the 13th 
 of February, she had between 4,200 and 4,300 piculs on board ; and 
 with that cargo she drew about 12 feet. She was manned by an 
 English captain, Mayo, and four Boyaus, not seamen, but boat- 
 men or coolies, whose duty it was to keep the ship clean, to keep 
 watch and sound the pumps at night, and to man the boats when 
 necessary. Among the regulations laid down by the defendants 
 for the captain and crew, was one which prohibited the European 
 officers to be out of the ship after sunset without their written 
 consent, and required that three-fourths of the crew should always 
 be on board. I mention this regulation, however, merely for the 
 purpose of saying that it does not follow that because the owners 
 might justly complain of a breach of it as negligence, as between 
 themselves and. their servants, the plaintiffs are therefore entitled 
 
STRAITS SETTLEMENTS. 
 
 195 
 
 to treat such a breach as negligence, as between themselves and 
 the owners. In this cause, the regulation is evidence only of the 
 prudence and care of the defendants on the point to which it 
 relates. 
 
 In the course of Thursday, the 18th of February, another 
 powder hulk, the Statesman, came along side of the Princess Royal 
 and on Friday and Saturday transhipped into her 2,005 piculs, so 
 that an Saturday afternoon, at 4 o'clock, she had a cargo of be- 
 tween 6,200 and 6,300 piculs, and the additional weight, about 
 120 tons, sank her in the water 1 foot or 1 foot 2 inches deeper. 
 It blew fresh on Saturday, and between 2 and 3 p.m. the wind in- 
 creased. There was a nasty sea on, to use the expression of Cap- 
 tain Mayo, and the vessels occasionally touched, but they were 
 separated from immediate contact by fenders. At about 5 p.m. they 
 separated; at 7£ p.m. Captain Mayo sounded the well and found 
 about the usual quantity of water, seventeen inches, which, he 
 says, it was not worth while to pump out. He then got into his 
 boat with two of the four Boyans, pulled round the vessel, found 
 nothing wrong, and pulled ashore. It was 8 p.m. when they left 
 the ship; and they did not return to her until 9 p.m. on the 
 following day, so that the hulk was left in the charge of two 
 Boyan coolies or boat-men for a considerable space of time. 
 
 What passed on board during that time is left in great 
 obscurity. Captain Mayo and Captain Smith, one of the defend- 
 ants, say that at 3 p.m. on Sunday they looked at her from 
 Tanjong Pagar through an opera-glass, and that she appeared 
 to them to have two feet, according to Captain Mayo, or \\ feet 
 according to Captain Smith of her zinc above water, which would 
 make her draft 12£ or 13 feet. But they do not say that they 
 paid any- special attention to this matter, and I cannot believe 
 that at the distnnce at which they were, between three and four 
 miles, as I infer from the chart, they could have distinguished 
 this with anything approaching to accuracy through an opera 
 glass. At the same time, I have no doubt that they noticed 
 nothing in her draft or trim at that time, to alarm either a master 
 or an owner. The two Boyans left on board, concur in stating 
 that the quantity of water usually in the well was 12 inches, but 
 that on Saturday afternoon it rose to 15, when the vessel was 
 pumped. In these particulars they are at variance with Captain 
 Mayo. They say also, that they sounded the well on Sunday 
 morning, and again at noon, and on both occasions found 15 
 inches ; and that they sounded a third time at 5 p.m. with the 
 same result. At this hour, a squall came off Tanjong Katong, 
 blowing from a little to tbe westward of north. They describe 
 it as a sharp or high wind with waves ; Mr. Waller says that he 
 was prevented by it from coming to town from Tanjong Katong 
 in a Chinese sampan, ,or boat pulled by one man ; while another 
 witness, Mr. Simmons, tlie master of a vessel in the harbour, 
 spoke of it as a " little squall," and a3 " nothing to prevent one 
 " from going ashore." I see no reason for believing that it was 
 of an extraordinary nature, or of unusual severity. It subsided 
 at 6 p.m., but the sea continued heavy for the rest of the night. 
 
 Maxwell, 
 C. J. 
 1868. 
 
 Mabtin, 
 Dyce & Co. 
 
 V. 
 
 Hodgson 
 &Co. 
 
19g 
 
 CIVIL OASES. 
 
 Maxweli, 
 C. J. 
 
 1808. 
 
 Martin, 
 
 Dyce & Co. 
 
 y. 
 
 Hodgson 
 
 &Co. 
 
 At 6 p.m., the men say, they sounded again, in consequence of 
 the wind, and then they found the quantity of water to be, ac- 
 cording to Ahman, 17, but according to Mahomed, 25 inches. 
 They concur in saying that they at once went to the pumps and 
 pumped incessantly according to the one, for an hour, and accord- 
 ing to the other, for "half an hour, and that they then sounded 
 again, and found the water to be, one says'34, the other, 25 inches. 
 Finding that the water was gaining on them, they left the 
 ship, pulled to the Statesman, where one of her crew, Sabtu, 
 joined them, and thence pulled slowly, against the tide, to 
 the beach of Campong Glam, about a quarter of a mile 
 from which Mayo lives, Mayo was not at home; Mahomed 
 walked then to Tanjong Pagar where Mr. Smith lives, and 
 walked back to Campong Glam, and near the French Church 
 he met Captain Mayo, who went off at once to the hulk, which he 
 reached at 9 p.m. He found Captain Platel of the Statesman 
 already there with some men, and it is probable that Captain 
 Platel had arrived there an hour earlier; he "sounded the well 
 and found that the vessel had between 14 and 15 feet of water. 
 The pumps were worked, and the bell was rung to give the 
 alarm, and powder was thrown overboard to lighten the hulk ; 
 but at 9.50 p.m. she descended into the water some 8 or 9 feet, 
 up to her bulwarks, and continued in that state, water logged 
 and gradually sinking, until 7 o'clock on Monday morning, 
 when she finally went down. The man-of-war steamer, Perseus, 
 of 975 tons, one or two tug steamers, perhaps other steamers also, 
 and about 30 or 40 square-rigged European vessels were in the 
 harbour, on the night of this occurrence. Captain Mayo remained 
 near the hulk during the night. Captain Smith, who arrived a 
 little before 10 p.m., just as she was descending into the water, 
 remained there also for an hour and a half, and then returned to 
 the shore. After 5 a.m., on Monday, he returned to the hulk, 
 when only part of her roof was visible. He then went to 
 Sandy-point and engaged two lighters and a hundred Kling 
 coolies. It was then a quarter to seven. He then proceeded to 
 the Mohr tug, which was lying in the harbour ; she got up steam 
 and reached the wreck at 10 a.m. But it was then too. late. 
 
 Under these circumstances, then, the question arises, whether 
 the loss sustained by the plaintiffs was owing to the want of due 
 care, or in other words, to the negligence of the defendants. It 
 seems to me that a warehouseman, in contracting to use due care 
 in the keeping of the goods of others, impliedly undertakes to use 
 due care in keeping the premises in which they are stored, in good 
 and proper condition and repair. If he allowed them to fall into 
 decay, and by reason thereof the rain entered and damaged the 
 goods, or the house tumbled down and destroyed them, I think 
 that he would clearly be responsible to his bailers for the loss 
 thus incurred. So, if his warehouse is a ship, he impliedly 'under- 
 takes to use due care in keeping her in good condition and reason- 
 ably water-tight. "Without doing so, he could not perform his 
 contract to keep the goods with due care. I think, then, that 
 the defendants, though they did not contract to indemnify the 
 
SARAH'S SETTLEMENTS. 
 
 i9? 
 
 plaintiff against all loss arising from inevitable accident to the hulk 
 did contract to use all reasonable and proper means, and precau- 
 tions to guard her against at least all known and probable dangers 
 threatening her. In Lech v. Maestaer, I. Camp. 138, Lord Ellen- 
 borough held that a bailee for hire should be prepared to meet 
 not merely ordinary, but unusual and unexpected hazards. There, 
 a shipwright who had a vessel in his dock for repair, was held 
 liable for the injury done to her by an extraordinary high tide, 
 which burst the dock gates, because he had not a proper number 
 of men in the dock at the time, to take measures of precaution 
 when the danger was approaching. The soundness of that de- 
 cision was said to be questionable, but it has been repeatedly 
 cited without disapprobation, as far as I know, and no Judge 
 sitting in this Court would venture to disregard the opinion of 
 Lord Ellenborough, even nisi prius, without weighty authority to 
 support him. That case, however, was a much stronger case than 
 the present. There, the danger was not only unexpected but ex- 
 traordinary ; here the danger was known and expected ; it was, 
 that the hulk should spring a leak. A knot hole or a worm hole, 
 or the starting of a butt or whole plank, or the carrying away 
 of the forefoot by over-riding the cable, were mentioned, in the 
 course of the trial, by the defendant, "Captain Smith, aud other 
 witnesses, as instances of the manner in which leaks may suddenly 
 be sprung. Besides, sooner or later, in the inevitable course of 
 things, by wear and tear and decay, a vessel must spring a leak 
 one day if not watched and repaired in due time, as surely as the 
 roof of a house will one day leak if it is not attended to. It is 
 true, the leak was not expected at the time when it came ; the 
 hulk was very dry, and on Saturday it betrayed no sign of the 
 danger, according to Captain Mayo ; but still a leak was a thing 
 to be guarded against, and to be guarded against with due and 
 reasonable care. This, indeed, would not be questioned by the 
 defendants, who had for that purpose provided the vessel with 
 suitable pumps, and* had ordered soundings night and morning. 
 But was this enough? Was it enough to provide for the detec- 
 tion of the danger, without making adequate preparation to meet 
 it when it came ? And if not, was adequate preparation to meet • 
 it, made by the defendants ? If it was, they did their duty ; if 
 it was not, they were guilty of negligence. 
 
 It was said that a master and four men were adequate for 
 this purpose, having regard to the circumstances of the hulk, and 
 to the practice of other hulks in this and other harbours ; and a 
 passage from Story on bailments was cited (sec. 14) to the effect 
 that in considering the question of negligence, the customs of 
 trade, the course of business and the state of society had an im- 
 portant influence. Within due limits the remark is sound ; but it 
 cannot be pushed to the extent of establishing that there can be 
 no negligence when a general practice is followed. To take one 
 of Story's illustrations ; if it is found in any particular place, that 
 coals may be left on a wharf unprotected and unsecured, or a 
 chaise may be left in an open shed, at night, without tempting 
 the cupidity of the dishonest, it would not be negligence to omit 
 
 Maxwell, 
 C. J. 
 1868. 
 
 Maetin, 
 Dtce & Co. 
 
 u. 
 
 Hodgson 
 &Co. 
 
196 
 
 CIVIL CASES. 
 
 Maxwell, 
 C. J. 
 1868. 
 
 Martin, 
 Dtce & Co, 
 
 V. 
 
 Hodgson 
 & Co. 
 
 precautions which long experience tended to prove unnecessary. 
 And this depends on the same principle as that on which it would 
 he held that it was not negligence to keep oats in a bin and under 
 a common padlock, while it would be great negligence to make no 
 better provision for the security of plate or treasure, experience 
 teaching that that which is an adequate obstacle to dishonesty in 
 the one case, is wholly inadequate in the other. But cases of that 
 kind have no application here ; cases like that of Siordet v. Hall, 
 4 Bing. 607, are more analogous. There the owners of a steamer 
 were held liable for the act of the captain in filling the boiler, 
 overnight, in the month of February which led to the pipe being 
 cracked by the frost ; and ifc was held no defence that the same 
 practice had long been followed in the same vessel, and was 
 generally followed on board other steamers. It was well known 
 that frost would rend iron, and previous immunity from injury 
 did not justify the practice. So here, tlie mere fact that 
 with four native men and one European officer no accident 
 had hitherto occurred, and that other hulks were not more strongly 
 manned, would not, in my opinion, be conclusive in disproof of 
 negligence. It would be more pertinent to show that iu a similar . 
 emergency the same number of men had been found equal to it. 
 But I am not called upon to determine whether a captain and four 
 men were enough. In Leek v. Maestaer the question was not 
 whether the shipbuilder employed a sufficient number of men, but 
 whether he had a sufficient number-at hand to meet the danger 
 when it came. So here, the question which I have to consider, 
 and would have to consider if the crew had been ten times as 
 strong, is whether there was due care in leaving the vessel and her 
 valuable cargo, in the charge of two Boyan boatmen for 25 hours. 
 And. to that question I can give no other answer than that it was 
 not ; and consequently that there was negligence for which the 
 defendants are responsible. I think that due care and prudence 
 required ihat the vessel should always have on board not only a 
 man of sufficient intelligence, experience and judgment to detect 
 a leak at an early stage, and to. take at once the best measures for 
 meeting it, but also men enough to enable him to do so, either 
 by their own exertions, or by procuring external aid, according to 
 circumstances. A few would suffice if other assistance could be 
 counted upon ; many more, if it could not. But I do not think 
 that there was due care in leaving the vessel in the charge of 
 Mohamed and Ahman, who even if they were competent enough 
 to detect and appreciate the danger quickly, were obviously un- 
 equal to meet it themselves, and appear to have had no other idea 
 or instructions as to what they wore to do in such an emergency, 
 than to go to the town for the captain. If, as was suggested, the 
 European masters and seamen of the vessels in the harbour would 
 have paid no attentii >n to the appeals of two native boatmen for 
 help, it would be but illustrative of the negligence of leaving the 
 hulk in the sole keeping of such hands. 
 
 It was said, however, that even if there was newlioence in 
 this respect, it was not made out that it caused any loss which 
 would not otherwise have happened ; that if the vessel had had its 
 
STRAITS SETTLEMENTS. 
 
 190 
 
 captain and four men when the leak was discovered, she could not 
 have been saved, that no pumping could have kept her afloat for 
 any material length of time ; that it would have been impractica- 
 ble to get coolies ; that no boats could have beeii procured owing 
 to the habits of intoxication of European crews on Sundays, and 
 that if they had been, they could not have towed the hulk to the 
 Tanjong Katong beach, or even to the two fathom bank; that no 
 lighters could have been obtained in time ; that tug steamers 
 might not have been available, as they might have been unprovided 
 with coal, and their masters and engineers might have been on 
 shore ; and even that it might have been impracticable to un- 
 shackle or slip the ship's cable. I think it unnecessary to examine 
 the evidence on these various topics ; and 1 will merely observe 
 that most of it was conjectural or otherwise vague, and that some 
 of it was contradicted by the facts actually proved, such as the 
 difficulty about getting coolies, by the fact that Captain Platel and 
 Mr. Mayo had procured 40 in a very short time, and that several 
 boat-loads more arrived at 10 p.m. But if I were to give it im- 
 plicit credit, it would not lead me to the conclusion which the 
 defendants would desire ; for I should be led to inquire whether, 
 in a port where external aid was notoriously not to be expected 
 from the shipping or the town on a Sunday, the defendants had 
 acted with due care in leaving their hulk and its valuable cargo, 
 on that day, in the keeping, I will not say of two coolies, but even 
 of their full compliment of an European master and four native 
 boatmen. Certainly, that crew was sufficient, it whs not because 
 they were, themselves, equal to meet the emergency of the ship 
 springing a leak, but because help might with reasonable certainty 
 be calculated on within a reasonable time, having regard to the 
 circumstances of the place. Hut if this was not so, if it was 
 notorious that on Sundays no help was procurable, the question 
 would arise whether it was taking due and proper care of the 
 plaintiffs' goods to leave them, one day in every seven, in such a 
 position that if a leak occurred, thf hulk in which they were 
 stored must inevitably go down at her moorings. It might justly 
 be asked, whether, in such circumstances, it was not the duty of 
 the defendants, in fulfilment of their contract to keep with due 
 care the plaintiffs' goods, to take extraordinary precautions, every 
 Sunday, for the preservation of the property entrusted to their 
 keeping, either by manning her so powerfully, and providing her 
 so-well with boats aud other requisite appliances, as to enable her 
 to meet with her own resources, the dangers which she had to 
 guard against, or to make special arrangements for imme- 
 diate assistance from shore. But I am unable to believe 
 that w'th a man-of-war and 30 or 40 European vessels in the 
 harbour, with numbers of lighters two or three miles off, and 
 with a large population of labouring and seafaring men in and 
 about the town and shore, to whom Sunday is not. a day of rest or 
 relaxation, no material aid could have been obtained to save the 
 hulk. Unfortunately, no attempt was made to obtain .any, and 
 while making every allowance for the state of mind of Captain 
 Smith, when he found himself, on that evening, under the blow 
 
 Maxwell, 
 C. J. 
 1868. 
 
 Martin, 
 Dyce & Co. 
 
 V. 
 
 Hodgson 
 &Co. 
 
200 
 
 CIVIL CASES. 
 
 Maxwell, 
 C.J. 
 186S. 
 
 Martin, 
 
 Dyce & Co. 
 
 v. 
 
 Hodgson 
 
 &Co. 
 
 of an overwhelming disaster, I am bound to say that if application 
 for help had been made when the leak ought to have been first 
 discovered, the hulk and cargo, or at all events the latter would, 
 I believe, have been saved. 
 
 I am inclined to believe that the leak began much earlier than 
 the Boyans say, considering that the sides of this old vessel which 
 had been exposed to sun and rain and wind for the preceding 
 twelve months were on Friday and Saturday submerged to the 
 depth of a foot, and that the increased depth must have materially 
 increased the strain on her I think it probable, also, that it was 
 discovered by the Boyans earlier than they say. The regulations 
 only required that the pump-wells should be sounded night and 
 morning ; and yet those men, according to their account, sounded 
 on Sunday not only in the morning, but again at noon, and 
 again at 5 p.m., and a fourth time at 6 p.m. Does not this fre- 
 quent sounding indicate some uneasiness about the ship, or to 
 speak more precisely, some uneasiness about the quantity of 
 water in her? For my -part, I do not believe that those dull apa- 
 thetic men would have been so curious about the state of the well, 
 if there had not been some adequate cause. But the story may 
 not be true, and at all events I cannot attach implicit belief to it. 
 However, I think that they did sound at 5 p.m. ; that they had 
 then a stronger ground of apprehension than the squall which 
 was just beginning, and that they found then good reason for 
 again sounding at p.m. I think also that the leak had made 
 greater progress than 25 or 84 inches when they left the ship, 
 which I think, must have been rather earlier than they admit, 
 not only because I doubt whether they would have worked at the 
 pumps incessantly for an hour or even half an hour, as they say, 
 but because they could not have returned to the ship as early as 
 9 p.m., if it was. much after 6 p.m. when they left, consider- 
 ing that they first pulled to the Statesman, then slowly 
 against the tide to Campong Glam, and then walked to 
 Captain Mayo's house, j of a mile off, then to Tanjong 
 Pagar, which can hardly be less than two miles, and then 
 returned to Campong Glam, before taking again to their 
 boat. But assuming that the leak was discovered only at 
 5 or even 6 r.M., I think that if Captain Mayo or any other ex- 
 perienced seaman had been then on board with men enough to 
 keep the pumps going, and to man a boat to go to town for help,, 
 givingthe alarm to the shipping, and especially to the man-of-war, 
 on their way, men and boats and kedges would have been procured, 
 sufficient to tow or warp the bulk to the beach of Tanjong Katong, 
 or at least to the two-fathom bank which was only some three 
 hundred ynrds off, and so the plaintiff's goods would have been 
 saved. 1 think it probable also that the tug steamer and the two 
 lighters whose services were put in requisition too late on the fol- 
 lowing morning, might have been brought to the scene in good 
 time to save her. From Captain Smith's evidence, I gather that 
 the tug could not have been more than- two hours in gettino- up 
 their steam on Monday morning and even if the master and 
 engineer had been on shore, on Sunday, I think that the defendant, 
 
STRAITS SETTLEMENTS. 201 
 
 Captain Smith, would have found no great difficulty in having her Maxwell, 
 fires lighted and her boiler filled, while they were being sent for ; ^g 6 g" 
 
 and in this case she would have been on the scene before 9 p.m., ' 
 
 But even the delay of another hour or two would not have been Mabtin, 
 material, for if the ship's pumps had been efficiently manned in Dyc = & Co - 
 the meantime, she would have been kept afloat till a much later Hodgson 
 hour. & Co. 
 
 I come, then, . to the conclusion that the plaintiffs have esta- 
 blished their case, and that their goods were lost through the 
 absence of that degree of care which it was the duty of the 
 defendants to give to the safe keeping of them. 
 
 The damages assessed at $26,689. 
 
 W. E. MAXWELL v. CHETTYAPAH CHETTY. 
 
 Although it is a rule that there can he no passing of property in a chattel, Penang. 
 
 except by delivery or deed, [a] yet this has no application to contracts made in 
 
 respect to chattels, for valuable consideration : and therefore there may be a Hackett, J. 
 mortgage of a chattel without deed. 1868. 
 
 In the absence of a stipulation to the contrary, a mortgagee is entitled to ~ 
 
 immediate possession of the property mortgaged, until his debt is paid : and if he September 3. 
 sell the property, whether he then had the right to do so or not, such sale does not 
 revest the right of possession to such property, in the mortgagor, so as to enable 
 him to sue in trover, as long as the debt remains unpaid. 
 
 This was an action of trover for a carriage. The defendant 
 among other things pleaded by way of equitable defence as other- 
 wise, that the carriage had been mortgaged to him by the plain- 
 tiff's intestate by an informal document [set out in the judgment] 
 and that default had been made by him and the plaintiff as his 
 administrator, in payment of the monies due thereon, whereupon 
 he took possession of and sold the carriage, which was the conver- 
 sion complained of. The facts appear sufficiently in the j udgment. 
 
 The plaintiff [in person] cited Harris v. Birch, 9 M. & W. 591 ; 
 Franklin v. Neate, 13 M. & W. 481 ; Irons v. Smallpiece, 2 B, & 
 Aid. 551 ; Attack v. Bramicell, 32 L. J. Q. B. 146 ; Edrnonstone v. 
 Nuttall, 34 L. J. C. P. 102 ; Johnston v. Btear, 33 L. J. C. P. 130; 
 Brierley v. Kendall, 17 Q. B. 937 ; Cocjgs v. Bernard, 1 Sin. L. C, 
 p. 171, ed. 5. 
 
 B. Rodyk, for defendant, cited Beeves v. Capper, 5 Bing. N. C. 
 139 ; Flory v. Denny, 7 Exch. 581, 8. C. 21 L. ,T. Exch. 223 ; 
 Donald v. Suckling, 1 L. E. Q. B. 585 ; Story Eq. Jur. §. 1031 ; 
 and Halliday v. Holgate, 3 L. B. Ex. 299. 
 
 Cur. Adv. Vult. 
 
 October 7. Hackett, J. This is an action of trover to recover 
 the value of a carriage. The plaintiff is the administrator of one 
 Nallah Mahomed, deceased. The facts appear to be as follows : 
 In January, 1868., the plaintiff's intestate borrowed money from 
 the defendant and gave him certain papers as a security for the 
 loan. On the 29th February, the intestate died, and about the 
 20th of April, the defendant sold the carriage, and it is for this 
 act that the action is brought. 
 
 [a] See however, Danby v. Tucker, 31 TV. B. 578. 
 
202 CIVIL CASES. 
 
 Hackett, J. Defendant sets up his title as mortgagee and claims a right 
 
 18li8 - ,/' to sell, under the promissory note of the 1st February. 
 Maxwell The promissory note was as follows :, 
 
 v. 
 ChettyapAh " I Nallah Mahomed promise to pay to Chettyapah Chetty or order the 
 
 Chatty, " sum of Spanish Dollars fifty [$50] payable by monthly instalments of the 
 " sum of Spanish Dollars Six [$6], if default should be made in paying any of 
 " the said instalments the whole shall become immediately due and payable, 
 " and for better securing the repayment I hereby mortgaged to the said 
 " Chettyapah Chetty one carriage No. 92, and one black pony with harness 
 " complete." 
 
 The plaintiff on the other hand, maintains that there was no 
 
 I mortgage, because the promissory note was not an instrument 
 
 under seal, and no property in a chattel can pass without delivery 
 
 unless the gift be by deed, and in support of his argument he cites 
 
 the case of Irons v. Smallpiece. 
 
 Now this is no doubt perfectly true with regard to gifts of 
 chattels which are invalid without a delivery of possession, in the 
 same way as a donatio mortis causa passes nothing unless the gift 
 be completed by delivery, but it is not so in the case of a contract 
 where there is a valuable consideration. Otherwise no contract 
 I for sale of goods would be binding unless there were actual delivery 
 j of the goods. 
 
 The case of Flory v. Denny shows conclusively that the mort- 
 ; gage of a chattel may be made without deed. I am, therefore, of 
 opinion that this objection cannot be sustained. 
 
 Then comes the question does this promissory note or agree- 
 ment amount to a mortgage ? The document is certainly a most 
 informal one and contains none of the proper or usual words of 
 assignment. It only contains the words " mortgage," and that 
 too is used [no doubt by mistake] in the past tense. Now properly 
 speaking " mortgage" is a word expressing in law the effect of an 
 assignment or conveyance of a particular kind, and is never used 
 by lawyers to express the act of assignment. But here I have a 
 document drawn by an unpractised hand and I am to endeavour 
 to extract the real meaning of it. If the parties, from ignorance, 
 failed to use the proper or usual words, am I to say that their 
 contract is not to be carried into effect ? I think not. If the 
 Court is satisfied from the document itself that the parties intend- j 
 ed to make a mortgage, I think it is bound to effectuate their <jpu- 
 tention although perhaps the most correct and grammatical 
 language may not have been used. 
 
 In this case, I think, it is clear from this note that the inten- 
 tion of the parties was that the palanquin and pony should be 
 mortgaged to the defendant as a security for his money, and I 
 r consequently feel bound to hold that the palanquin was in fact so 
 ( mortgaged. 
 
 The next question is, what were the rights of the defendant in 
 \ the events which have happened. Had he a right to sell, and if 
 
 y •/ he had no right to sell, can the plaintiff maintain his action for 
 I the conversion of the goods ? 
 
 Now the terms of the note are, that Nallah Mahomed shall pay 
 off the loan by monthly instalments of $6, and that in the event 
 
STRAITS SETTLEMENTS. 203 
 
 of one monthly instalment being unpaid, then the -whole amount Hackett.j. 
 shall become payable. Ordinarily .speaking, in assignments by 1 ^ 
 way of mortgage there are stipulations as to the circumstances Maxwell 
 and conditions under which the mortgagee shall be entitled to »• 
 
 take possession of and dispose of the mortgaged property. Here Chettyapah 
 there are no such stipulations, and we have the bare fact of the HETTT - 
 mortgage to the defendant without anything more. 
 
 Now in the absence of any stipulation to the contrary, a 
 mortgage would entitle the mortgagee to immediate possession of 
 the mortgaged property. A mortgage is an assignment of the 
 property in anything subject to a condition or proviso that if the 
 debt is discharged by a certain day the transfer should be void, 
 and the only right remaining in the mortgagor [unless there are 
 provisions for his retaining possession of the mortgaged property, 
 in which case he may be a lessee] is his right hi the equity of 
 redemption . In this case, therefore, there being nothing stipulated 
 to the contrary, the defendant had a perfect right to the possession 
 of the mortgaged palanquin until his debt was satisfied. 
 
 Then the question comes had the defendant a right to sell ? 
 and if he had no right to sell does the act of the sale operate so 
 as to revest the right to the possession of the mortgaged property 
 in the mortgagor or his representatives ? I think not. At law 
 the title of the mortgagee to the possession of the mortgaged 
 property is absolute unless there be some special clause in the 
 mortgage^ deed by virtue of which the mortgage is entitled to 
 claim possession, and even in the case of a pledge in which the 
 property does not pass, it has been held in the case of Donald v: 
 Suckling, and the recent case of Halliday v. Holgate, that the 
 pledger is not entitled to bring trover as long as the debt for 
 which the property was pledged as security remains unpaid. A 
 fortiori, this must be so in the case of a mortgage in which the 
 legal estate in the mortgaged property is vested in the mortgagee, 
 and the only right or interest remaining in the mortgagor is the 
 equity of redemption. 
 
 I express no opinion here as to whether the sale was regular 
 or otherwise. It is laid down in the books that the mortgagee of 
 a chattel may sell on giving notice to the mortgagor. In this 
 case at the time of the seizure and sale, the mortgagor was dead 
 and had no legal personal representative. There wis therefore no 
 person to whom notice could have been given, and it may be that 
 the sale was thus irregular. But the question cannot arise in the 
 present suit. The rights of the mortgagor other than those which 
 he has by special agreement, are purely equitable and are not 
 cognizable in a Court of Law. If, therefore, the interests of the 
 mortgagor have been prejudiced, he must seek for redress in 
 another manner. 
 
 I may mention that it does not appear to me from the evi- 
 dence that the representatives of the mortgagor have been preju- 
 diced. There is no reason to believe that the property was not 
 sold to the best advantage, and in point of fact there is still a 
 considerable balance due to the defendant. Under any circum- 
 stances, therefore, according to authority of Brierley v. Kendall, 
 
204 CIVIL CASES. 
 
 Hackett, Ji\and Johnson v. Stear, the plaintiff, even if he were entitled to judg- 
 
 1868. I men t in his favour, could only claim nominal damages. 
 Maxwell I think, therefore, that law agrees here with equity in giving 
 
 v. judgment for the defendant. 
 
 Chettyapah 
 Chettt 
 
 SHELLUMBRUM CHETTY v. PHILLIP JONES. 
 
 
 Penang. Tlie assignment by a public officer in the service of the Government of the Colony, 
 
 — — of his stipend to another, to secure repayment of a loan, is contrary to public policy and 
 
 Hackett, J. illegal. 
 
 " This was an action to recover $380, due on an agreement. 
 
 September 18. The declaration averred that "the defendant on the 28th day of 
 
 " April, 1867, and then still being the Assistant Colonial Treasurer 
 
 " at Penang, and as such his duty was and still is to pay monthly 
 " and every month to all officers of the Colony such proportion of 
 " their respective salaries as should then be respectively due to 
 " each of them ; and that one James Bridger Dill Rodyk was and 
 " still is the Deputy-Sheriff of Penang, and as such was and still 
 " is entitled to receive from the defendant every month the sum 
 ; of $113.63 or thereabouts ; the defendant, on the day and year 
 aforesaid, in consideration that the plaintiff would then lend to 
 " the said James Bridger Dill Rodyk the sum of $3,500, which 
 " the said James Bridger Dill Rodyk then by a deed bearing that 
 " date covenanted to repay in monthly instalments of $50 each, 
 " besides $45 per mensem for interest thereon, he the defendant 
 '< promised and agreed with the plaintiff, that he the defendant 
 " would, with the permission and concurrence of the said James 
 11 Bridger Dill Rodyk retain $95 out of the salary of the said 
 '' James Bridger Dill Rodyk every mouth and would pay over the 
 '' same to the plaintiff in satisfaction of such the instalment due 
 " for such month. And the plaintiff averred, that to better 
 " enable him to perform his agreement, the said James Bridger 
 " Dill Rodyk on the 30fch September, 1867, gave to the defendant, 
 " a written power of Attorney authorizing the defendant to make 
 " such monthly payments from the salary of the said James 
 " Bridger Dill Rodyk to the plaintiff, and the defendant thereupon 
 " did pay the plaintiff five of the monthly instalments as agreed, 
 " and that all conditions were fulfilled and all times elapsed and 
 " all things done necessary to entitle the plaintiff to claim from 
 " the defendant payment of four more of the said instalments, 
 " but the defendant had not paid the same." 
 
 The defendant demurred to this declaration and stated the 
 matter intended to be argued was, that the assignment by a 
 public officer of his stipend to another man, is contrary to the 
 policy of the law and illegal. 
 
 The plaintiff joined in demurrer. 
 
 D. Logan [Solicitor-General] for demurrer submitted the decla- 
 ration was bad on the ground that an assignment of an officer's 
 salary was contrary to public policy, and cited Banvick v. Reid 
 1 H. Black, 627 ; M. Killubdass v. Vans Kennedy, Perry's Oriental 
 Cases, p. 167 ; Flarty v. Adhm, 3 T. R. 681 ; Wells v. Foster, 8 M. 
 
STRAITS SETTLEMENTS. 
 
 205 
 
 & W. 149 ; Dent v. Dent, 1 L. E. Pro. & Div. 366 ; Arhuthnot v. Hackbtt, J. 
 Norton, 10 Jur. 0. S., p. 145 ; Knight v. Bulkley, 4 Jur. N. S. 527, ^ 
 S. 0. 5. Jur. N. S. 817. Shellttm- 
 
 E. 0. Woods, junr., in support of the declaration contended that brumChetty 
 the principle laid down by these cases did not apply to a ministerial j £ ES 
 officer in this Colony, such as the Deputy-Sheriff was. 
 
 Maclcett, J.- — said that he could not see the difference attempt- 
 ed to be drawn between this case, and those cited on behalf of the 
 defendant, that he was of opinion that the declaration was bad 
 for the reason assigned, and the demurrer must be allowed. 
 
 Demurrer allowed. 
 
 Maxwell, 
 C. J. 
 1868. 
 
 October 27. 
 
 DAVIDSON v. ORD. 
 
 The powers of Commissioners of the Court of Requests are strictly limited by Singapobe 
 section 20 of Act XXIX. of 1866 ; and as regards contempts, they possess no further 
 powers of dealing therewith, than those expressly given by that section. 
 
 The Commissioners have no power to deal with a contempt out of Court. 
 
 A single Commissioner has no power to fine for contempt, and none to imprison 
 for non-payment of the* fine. 
 
 Query. Is tho Court of Requests a Court of Record ? [a] 
 
 In England, the Judge of an inferior Court, is liable to an action, if he acts 
 beyond his jurisdiction, and then knew, or had the means of knowing the defect ; and 
 this although he acted bond, fide. In this Colony, however, since the Act XVIII. of 
 1850, he is not so liable, if he, at the time, in good faith believed himself to have juris- 
 diction, but in all such cases, he must have acted really and bond, fide in his judicial 
 capacity, and not merely colourably so. 
 
 Query. Does Act XVIII. of 1850 apply to cases where the excess of jurisdiction 
 is due to the Judges- misoonception of the law, or only to ignorance of facts affecting 
 his jurisdiction ? 
 
 The Act, however, can only afford protection where the Judge acts in good faith : 
 but " good faith" must be founded on reasonable grounds [6], or otherwise the Judge's 
 immunity from legal liability for acts done out of his jurisdiction, would be indirect 
 proportion to his ignorance and thoughtlessness. 
 
 Query. Is a Judge of an inferior Court liable, if he act within his jurisdiction, 
 but does so maliciously and without any reasonable or probable cause ? 
 
 Semble. The test in such a case, probably is, whether he acted really or only 
 colourably judicially. 
 
 The plaintiff, a Solicitor, served! the defendant, a Commissioner of the Court of 
 Requests, at his private residence, with an ordinary notice of appeal on behalf of a 
 suitor in the Court of Requests, and also served a similar notice on the clerk of the 
 Court. A day or two after, the plaintiff received a letter from the clerk, written by 
 instructions of the defendant, requesting the plaintiff kindly to call at his [defendant's] 
 office, as he [defendant] wished to speak to him. The plaintiff accordingly went to 
 the defendant's office, but found him out. In passing the Court, he saw the defendant 
 on the Bench trying a case ; he sent in his card, whereupon the defendant beckoned 
 him into Court. The plaintiff walked up to the Bench, and stood between it and the 
 table of the clerk, and the business before the Court was suspended fer the time. The 
 defendant then had some conversation: with the plaintiff, during which the defendant 
 informed the plaintiff that the (notice was a very improper one, and was very improperly 
 served, and after further conversation on the subject, [which the defendant con- 
 sidered to be carried on in a disrespectful and contemptuous manner on the part of the 
 plaintiff,] the plaintiff informed the defendant that he came to see him simply as a 
 private individual in consequence of his request, and not in his judicial capacity, and 
 was not a party in any proceeding before his Court, and wishing him " good morning," 
 was about walking away, when the defendant called him to stop ; the plaintiff con- 
 
 ' [o] See Maxwell [W, E.] on the Court of Requests, p. 7. 
 
 [6] As to law now, see Sections 52 and 77 of the Penal Code [Ord. I. of 1871.1 
 
206 
 
 CIVIL OASES. 
 
 Maxwell, 
 C. J. 
 1863. 
 
 Davidson 
 
 v. 
 
 Oed. 
 
 tinued walking, and the defendant thereupon called out, " You are fined $25 for 
 " contempt of Court," to which the plaintiff replied, " I wish you may get it," and 
 walked out. The following day, the defendant issued his warrant for the apprehension 
 of the plaintiff if he omitted to pay the fine, the plaintiff still refusing to pay the fine, 
 ho was lodged in prison for some days under the wai-rant, whereupon he brought an 
 action against defendant for false imprisonment, to which the defendant replied 
 he did the act in his judicial capacity. 
 
 Query. "Whether under the circumstances, the defendant could be considered as 
 really acting judicially or only colourably so ? 
 
 Held, however, whether the defendant acted judicially or not, as a single Com- 
 missioner of the Court of Requests, he had no power to fine or imprison for con- 
 tempt : that having acted beyond his jurisdiction, without any reasonable grounds 
 for believing he had jurisdiction, he was liable in damages to the plaintiff for the 
 false imprisonment. 
 
 Action to recover $2,500 for assault and false imprisonment. 
 Pleas, not guilty by Statute ; secondly : a special plea, that at 
 the time of the committing of the alleged grievances, the defend- 
 ant was a Judge or Commissioner of the Court of Requests, and 
 acted under the power conferred on him by Act XXIX. of 1866, sec. 
 20. Issue thereon. 
 
 The plaintiff was a Solicitor of this Court, and had been 
 practising as such for about seven years before this action : he 
 was also a Solicitor of the Supreme Court of Scotland. In June, 
 1867, during the course of his professional employment, an appli- 
 cation was made by one Hassan Hussein Beebee, [the wife of a 
 a peon named Dawdsah,] who had been committed to gaol upon a 
 warrant from the Court below, for new trial. The plaintiff herein 
 was engaged as her legal adviser, and gave, notice to the Commis- 
 sioner of the Court of Requests [the defendant] that his deci- 
 sion would be appealed against on the following grounds, first, 
 for refusal to "hear the defendant or her witnesses ; and, secondly, 
 because the defendant was at the commencement of the action 
 against her, and at the date of the judgment, the lawful wife of 
 the plaintiff [Dawdsah]. Notice was also given that a writ of 
 Habeas Corpus would be moved for, to release her from H. M.'s 
 gaol, where she had been committed under a warrant signed by 
 the defendant. A copy of each of these notices was served upon 
 defendant, and a similar one, upon the clerk of the Court of Re- 
 quests, Mr. W. Norris. An application was made to the clerk 
 for a copy of the proceedings, to which no reply was given. On 
 the 15th June, a note was addressed by the clerk to the plaintiff, 
 which ran as follows : 
 
 "Deab Sib, — Captain Ord desires me to request you will kindly call at 
 " his office at 11 a. m., on Monday next, as he wishes to speak to you. 
 
 " Yours truly, 
 " W. Noebis." 
 Believing that it was on some private business that defend- 
 ant required the plaintiff, the latter went on the Monday follow- 
 ing at 11 a. m., as desired. Not finding defendant in his room, 
 the plaintiff went round to the Court, and on passing by one of 
 the doors, he observed a gentleman sitting on the bench whom 
 he presumed was the defendant. Plaintiff then sent up his card 
 by a peon, and defendant beckoned to him to come up as far as 
 the bench, in rear of the clerk's table, which he accordingly did. 
 
STRAITS SETTLEMENTS. 
 
 207 
 
 The proceedings of the Court were then temporarily stayed, whilst 
 some private conversation was being held between the two parties. 
 The defendant interrogated the plaintiff as to the fact of the latter 
 having sent him the notice, and said it was a most improper one 
 and most improperly served at his dwelling house. The plaintiff 
 then replied, that he knew his own business best, and therefore 
 did not want defendant to give him any instructions in the matter. 
 The defendant then said, " I treat your notice with contempt, 
 " sir," at the same time throwing down the notice on the table, to 
 which the plaintiff replied : " If that is all that you have to say 
 " to me, you might have saved yourself the trouble of sending for 
 " me, and me the trouble of coming to you." Defendant replied 
 that he had a great deal more to say to the plaintiff, but the latter 
 said he did not wish to hear any more in this strain, and walked 
 away. On reaching the door, defendant called out in a loud tone 
 of voice, " you are fined $25 for contempt of Court," to which 
 plaintiff replied, " I wish you may get it." The plaintiff previous 
 to this, had informed defendant that he was not before the Court, 
 nor was he addressing him in his judicial capacity, but merely as 
 Captain Ord. The following day, the bailiff of the Court of Be- 
 quests went to plaintiff's office in Collyer Quay, and threatened 
 to take him off to gaol unless the money was forthwith paid. 
 Plaintiff, considering that the fine was illegal, refused to pay it, 
 and was therefore taken to gaol. An application was made to 
 this Court, on an affidavit sworn to by defendant in gaol, before 
 one of the Commissioners appointed to take affidavits, on the 21st 
 June, 1867, for a writ of Habeas Corpus. Whilst the application 
 was being made to the then Acting Colonial Secretary, who was 
 also at that time one of the Judges of this Court, His Excellency the 
 Governor having considered the matter, a note was accordingly sent 
 by the Colonial Secretary, Colonel Macpherson, to the Gaoler, order- 
 ing him to release the plaintiff. That not being considered a suffi- 
 cient authority by plaintiff, he preferred remaining in gaol until 
 he was released by a pro forma order from the Court directed to 
 the Sheriff. H. B. the Governor then thought proper to remit 
 the fine inflicbed upon the plaintiff, and the Colonial Secretary 
 wrote a letter to the Sheriff stating that the fine had been remitted. 
 The writ of Habeas Corpus was applied for, but was refused as 
 the Sheriff said he had no such person as plaintiff in his custody. 
 No application was made by the plaintiff to His Excellency the 
 Governor to remit the fine, and the plaintiff disclaimed having 
 committed any contempt of Court. The plaintiff was afterwards 
 released, and this action was commenced a month thereafter ; and 
 after the lapse of more than a year, came on for hearing before 
 the Court. 
 
 B. C. Woods, senr., [AtcJiison with him] for plaintiff, referred to 
 Baker v. Bye, 2 L. J. Exch. 169 ; Beaurain v. Scott, 3 Campbell, 
 388 ; Mosely on Inferior Courts, p. 359 ; 3 Cro. 689 ; Levy v. 
 Moyland, 19. L. J. C. P. 308, s. c. 10 C. B. 189; Houldenv. Smith, 
 14 Q. B. 841 ; Pollard v. Smale, 2 L. E. P. C. 106 ; Cann v.dip- 
 perton, 10 A. & E. 582; Rex v. Faulkener, 2 Mon. & Ayr. 311 ; 
 Max. on Mag. 19 & 12, Co: 96b. He submitted that under 
 
 Maxwell, 
 C. J. 
 1868. 
 
 Davidson 
 
 r. 
 
 Okd. 
 
208 
 
 CIVIL CASES. 
 
 Maxwell, 
 C.J. 
 1868. 
 
 Davidson 
 
 Okd. 
 
 sec. 20 of Act XXIX. of 1880, a Commissioner of the Court of 
 Bequests could not, on his own responsibility, fine an offender for 
 contempt of Court ; he could only order the person, who commits 
 such contempt, into custody, to be detained until the rising of the 
 Court, when the Commissioners, not a single Commissioner, 
 should deal with the offender by inflicting upon him a fine, and 
 in default of payment thereof, commit him to prison for any time 
 not exceeding seven days. He therefore contended that defend- 
 ant had greatly overstepped the mark in acting in the manner lie 
 had done. The defence that what had been done was done"by 
 the defendant in good faith, believing that he had jurisdiction, 
 could not be sustained, as a man might be foolish enough to com- 
 mit the grossest absurdities by believing himself justified in what 
 he does. 
 
 T. Braddell [Attorney-General], for the defendant, contended 
 that the defendant was acting in his magisterial capacity when he 
 imposed the fine of $25 upon the plaintiff, and that even if be was 
 acting beyond his jurisdiction, he had done so in good faith, and 
 was protected bv Act XVIII. of 1850, that " Commissioners," in 
 sec. 20 of Act XXIX. of 1866, must be read as in the singular, ac- 
 cording to the Interpretation Ordinance XIV. of 1867, sec. 21, cl. 20. 
 
 Cur. Adv. Vult. 
 
 November 2. Maxwell, C. J. In this case, the first count of 
 the petition is in trespass for the false imprisonment of the plain- 
 tiff. The second count is also for the false imprisonment, alleging 
 it to have been done maliciously, illegally, and without reasonable 
 or probable cause. The defendant pleaded not guilty by Statute, 
 referring to the 42 Geo. III. c. 85, Act XVIII. of 1850, and Act 
 XXIX. of 1866; and a second plea alleging that the matters and 
 things complained of were done by the defendant in his j adicial 
 capacity as a Commissioner of the Court of Requests, under powers 
 vested in him by the Act XXIX. of 1866. The plaintiff took issue 
 on both pleas, and replied further, that there was no suclrCourt, 
 that the defendant was not a Judge or Commissioner, and that he 
 was not acting in a judicial capacity at the time when the matters 
 and things were done. 
 
 The circumstances of the case are these : — The plaintiff is a 
 legal practitioner of this Court, and the defendant was, from April 
 to December, 1867, a Commissioner of the Court for the recovery 
 of small debts, .or Court of Requests of Singapore. That Court 
 was created by the Governor and Council of these Settlements in 
 1828, under authority vested in them by the Charter of Justice. 
 The proclamation which constituted it says, that it is to consist of 
 Commissioners, [without stating what number,] and it appoints 
 three gentlemen to be the first Commissioners. The jurisdiction 
 was limited to cases where the cause of action did not exceed 
 thirty-two dollars ; and among the powers given to the Commission- 
 ers was one which, to prevent insult and abuse in the Court, 
 authorized them or any of them, to issue a warrant under their or 
 either of their hands, to apprehend and bring before them on the 
 next Court day, any person who affronted, insulted, or abused auy 
 
STRAITS SETTLEMENTS. 
 
 209 
 
 of them, or their clerk, in the execution of their respective offices, 
 or interrupted or disturbed the proceedings of the Court, and on 
 the. offence being proved, the Court was empowered to fine the 
 offender as much as 20 dollars and if be did not pay, to commit 
 him to jail for as much as a month. The jurisdiction of this 
 Court was extended by Act XXIX. of 1866, to cases where the cause 
 of action did not exceed 50 dollars; and the 20th section provides 
 that if any person shall wilfully insult any Commissioner or officer 
 during his sitting or attendance in Court, or shall wilfully inter- 
 rupt the proceedings, or otherwise misbehave in the Court, the 
 bailiff or officer of the Court may, by order of a Commissioner, take 
 him into custody, and detain him until the rising of the Court; 
 and the Commissioners are then empowered, if they think fit, by 
 warrant under their hands and the seal of the Court, to commit 
 him for any term not exceeding seven days, or to impose on him a 
 fine not exceeding 25 dollars, and, in default of payment, to com- 
 mit him for the same period, unless it be sooner paid. 
 
 At the time of the occurrence which is the subject of this suit, 
 there were four Commissioners of the Court of Requests. 
 
 It is unnecessary to consider whether that Court is a Court of 
 Record ; for I am of opinion that whether it is or is not, its powers 
 and the powers of its Judges are limited by the enactment just 
 cited; and. that, as regards contempts, it and they possess no 
 further or other powers of dealing with them than those expressly 
 given therein. 
 
 This, then, being the position of the parties, it appears that 
 the plaintiff, as the attorney of a woman named Hassan Hussein 
 Beebee, and by her instructions, sent a notice to the defendant, 
 and to the clerk of the Court, stating that his client intended to 
 appeal to this Court against a judgment pronounced by the de- 
 fendant against her. The plaintiff shortly afterwards applied to 
 the clerk of the Court for a copy of the proceedings ; he did not 
 get theni, but, on the 15th, he received a note from the clerk in 
 these words: " Captain Ord desires me to request you will kindly 
 " call at his office at 11 a. m., on Monday next, as he wishes to speak 
 "to you." Mr. Davidson, the plaintiff, called accordingly on Mon- 
 day, the 17th, about the hour indicated ; and not finding the de- 
 fendant in his office, he went into the Court, where the defendant 
 was sitting on the bench, engaged in trying a cause. The plaintiff 
 sent his card to the defendant, who, on receiving it,- beckoned to 
 the plaintiff to come to him. The plaintiff went to the place 
 below the Commissioner's desk, close to where the clerk of the 
 Court sits, and a conversation ensued, which, according to Mr. 
 Davidson, was as follows : — , 
 
 " The defendant said, Did you send me this notice? holding 
 " at the time a paper. I answered, Yes. He spoke i-oughly and 
 " sharply. He said, Eead it, holding it out to me. I declined, I 
 " said, I know the contents very well. He said, It is a very 
 " improper notice. I said, I beg your pardon, Captain Ord. He 
 " said, You have also served a notice on my clerk. I replied, 
 "Yes. He then said, This notice has been very improperly 
 " worded, and very improperly served. I said, I have been too 
 
 Maxwkil, 
 C. J. 
 1S68. 
 
 Davidson 
 
 v. 
 
 Obd. 
 
Oed. 
 
 210 CIVIL OASES. 
 
 Maxwell, « ] ng in the profession to take a lesson from yon, in writing 
 1868" " or serving a notice. He said, Is it proper to serve a notice 
 t ' " on a Magistrate at his dwelling house ? I said, It is 
 
 Davidson " sufficient that I know the notice has reached you ; but I know 
 "nothing of you in your Magisterial capacity, I was asked to 
 " come to speak to you as Captain Ord. He said something 
 " about the dignity of the bench on which lie sat ; but I did not 
 " catch his words exactly. I said, I- came to speak to you as an 
 " individual ; I am not in the Court of Requests, and, when 1 am 
 " wanted there, proper steps can be taken to bring me. He then 
 " took up my notice, and in an excited tone, -said, I treat your 
 " notice with contempt, Sir, with contempt ! and he threw it 
 " down. I laughed, and said, If that is all that you had to tell 
 " me, you might have saved yourself the trouble of sending for ' 
 " me, and me the trouble of coming here ; good morning. He 
 " said, I have a great deal more to say to you, Sir. I said, I 
 " don't choose to hear anything more in this strain, I wish you 
 " good morning. I turned round and was walking away when he 
 "said; stop, Sir. I continued to walk on. Then I heard him 
 " say ; You are fined 25 dollars for contempt of Court. I said, I 
 " wish you may get it ; and I continued walking. I did not speak 
 " in an excited or insulting manner. I spoke quietly ; the last 
 " two or three sentences louder. He did not say of what my con- 
 " tempt consisted. The plaintiif then left the Court." 
 The defendant's version is as follows : — 
 " I shewed him the notice, saying I had received it from him, 
 "and, as I consideied, in an improper manner. His answer was. 
 " I have been too long at the work not to know how to serve a 
 "notice. He said this in a jeering and insulting tone, laughing 
 " at the same time. All this was spoken in a low tone on both 
 " sides. I said, Mr. Davidson, yonr manner is most contemp- 
 "tuous. He answered, If that is all you have, to say, I'll leave. 
 " I said, I have something more to say ; I object to your sending 
 " notices to my clerk. He said, If that is all you have to say, I 
 " had better leave. I again said his manner was contemptuous. 
 " He turned round to leave. I said, Stop, if you please. He 
 " moved on, and as he got to the door, and in his hearing, I said, 
 " You are fined 25 dollars, for contempt of Court. I never said, 
 " I treat your notice with contempt, nor did I throw it down or 
 " any other paper." With the exception of the defendant's denial 
 that he threw down the notice, or used the words imputed to him 
 as accompanying the alleged act, and his assertion that he told the 
 plaintiff that his tone was contemptuous, there is no material 
 variance between his and the plaintiff's accounts of what passed. 
 The conviction or adjudication wa.s by the defendant, as a 
 Commissioner of the Court; and on the afternoon of the 18th, 
 the day after the occurrence, the bailiff of the Court received- a 
 warrant under the seal of the Court and signed by the defendant, 
 requiring him to arrest the plaintiff, and to deliver him to the 
 keeper of the jail; to be there confined for seven days, unless he 
 sooner paid the fine of twenty-five dollars. On the morning of the 
 J9th ? "Wednesday, the bailiff proceeded to Mr. Davidson's office, 
 
STRAITS SETTLEMENTS. 
 
 211 
 
 and on the refusal of the latter to pay the fine, took him to jail, Maxwell, 
 
 where he was confined till the following Saturday, on which day ^el' 
 
 he left, in consequence of the remission of the fine by the Governor. - ' 
 
 The action was begun after a month's notice/on the 30th of Davidson 
 July, 1867, but was not tried until the present sittings. 
 
 There being no dispute as to the fact that the plaintiff was 
 imprisoned by the defendant, the question is whether that 
 
 im- 
 
 prisonment gave the plaintiff a cause of action against him. The 
 defence was, in substance, that the act complained of was a judi- 
 cial act, that it was done by the defendant within his jurisdiction, 
 or if not within it, that it was done in the bond fide belief that it 
 was within it ; and that, consequently, the defendant is not liable 
 to this action. 
 ^ The general principles of law, on the subject of the liability 
 
 of the judges and judicial officers, I conceive to be these : — no 
 action lies against a judge of the superior Courts for any judicial 
 act ; and no action lies against a judge of an inferior Court, for 
 any judicial act done within his jurisdiction, at all events when 
 not done maliciously and without reasonable or probable cause. 
 Nor is he liable for doing an act out of his jurisdiction, if the de- 
 fect was owing to a fact which he did not know, and had not any 
 means of knowing, of which he ought to have availed himself. 
 But if he does an act out of his jurisdiction, knowing or having 
 means of knowing the .defect, he is, in England, liable to be sued 
 for it, "though it was done bond fide. In this country, since the 
 passing of the Indian Act XVIII. of 1850, he is not liable for any 
 judicial act done out of the limits of his jurisdiction, if he, at the 
 time, in good faith believed himself to have jurisdiction to do it. 
 In all cases, however, where protection is given to a judge, he must 
 have acted really and bond fide in his judicial capacity. Whether 
 he is liable for judicial acts done within his jurisdiction, mali- 
 ciously and without reasonable or probable cause, may perhaps be 
 open to question. The affirmation seems to have been assumed in 
 Ackerley v. Parkinson, 3 M. & S. 425 ; Linfordv. Fitzroy, 13 Q. B. 
 240; and Kirby v. Simpson, 10 Exch. 351 ; while the negative was 
 broadly asserted, in the recent case of Scott v. Stansfield, L. B. 3 
 Exch. 220. Perhaps the liability would be found to depend on 
 whether the act was really or only colourablv judicial. Thus, a 
 judge of an inferior Court would not be liable to an action for 
 words spoken by him maliciously and without reasonable or proba- 
 ble cause, in the course of the trial of a cause within his juris- 
 diction, Scott v. Stansfield, L. E. 3 Exch. 220 ; but he might be 
 liable, if, not acting really as a judge, but merely under colour and 
 in sheer abuse of his office, he were to do an act within the juris- 
 diction of his office, such as convicting of an offence for which he 
 had power to convict, but convicting without any evidence, or 
 without information, maliciously and without reasonable or pro- 
 bable cause ; see the remarks of Chief Baron Pollock in Gelen v. 
 Rail, 2 H. & N. 393, and Kirby v. Simpson, 10 Exch. 358, Wind- 
 ham v. Clere, Cro. Eiiz. 13, Morgan v. Hughes, 2 T. E. 225. It is 
 a point, however, on which it is unnecessary for me to express any 
 opinion in this ease. 
 
 Obd. 
 
civil cases. 
 
 Maxwell, 
 C.J. 
 1868. 
 
 Davidson 
 
 v. 
 
 Obd. 
 
 The first question that occurs in considering the facts of 
 this case, is whether the act complained of was really or only 
 colourably a judicial act. It is to be observed that the plaintiff was 
 not before the defendant in any judicial matter. A note request- 
 ing him "kindly to call" on the defendant at his office or private 
 room, as the latter desired to speak to him, cannot be construed 
 into any thing more than a request for a private interview. The 
 invitation to the plaintiff, upon receiving his card, to come up to 
 the desk, instead of taking his place at the bar, as well as the 
 tone of voice in which both spoke, are further proof that the in- 
 terview was, to all intents and purposes, private. The object 
 which the defendant says he had hi sending for the plaintiff, viz. 
 to " remonstrate " with him, leads to the same conclusion ; and if 
 the notice was thrown down with the expression alleged by Mv. 
 Davidson to have accompanied that act, it would be but additional 
 evidence that the defendant was acting in his private and not his 
 judicial capacity. Besides, the subject of the interview could not 
 have been legally a matter of judicial enquiry ; for, if the con- 
 tents or the service of the notice were objectionable, it would have 
 been in the nature of a contempt out of Court, but the Commis- 
 sioner had no jurisdiction to deal with such a contempt. The 
 question then arises whether, when matters had arrived at a stage 
 where the plaintiff said or did something which defendant con- 
 sidered disrespectful, whether it was the language or the tone 
 of the plaintiff, or his refusal to continue a conversation which 
 had become angry, or his refusal to obey the defendant's order to 
 remain in Court, when he was leaving it, does not appear, the 
 defendant could really and bond fide assume the judicial character, 
 and deal with the plaintiff for disrespect to him in that character. 
 The only ground on which such a proposition could be maintained 
 is, that the place where the conversation took place was the room 
 in which the^causes of the Court of Requests are heard, and that 
 the officers and suitors were present. It would have to be observed, 
 however, on the other side, that the sitting was suspended by the 
 judge for the transaction of a private matter with the plaintiff; 
 so that, as regarded the plaintiff and the defendant, so long at 
 least as the letter did not depart from the subject of the conver- 
 sation, it might be said that the Court was not sitting. I abstain, 
 however, from pronouncing an opinion on the question, because, 
 assuming that the act complained of was not colourably judicial 
 only, I think it clear that it was not an act within the defend- 
 ant's jurisdiction. He had no power, alone, to adjudicate on con- 
 tempts at all. His power was limited to ordering an offender into 
 custody until the rising of the Court ; and this, plainly, for the 
 purpose of securing his attendance before the tribunal which was 
 entrusted with the power of dealing with the contempt. And it 
 is observable that it is not to " the Court" that power is commit- 
 ted, for that would have probably been but a different way of 
 speaking of the Commisioner who had been insulted ; it is the 
 general body of Commissioners who are to deal with the matter; 
 the fine imposed by them is leviable in a different manner from 
 fines imposed by " the Court " [sec. 14] ; and the warrant of com- 
 
STRAITS SETTLEMENTS. 
 
 213 
 
 Maxwell, 
 C. J. 
 1868. 
 
 v. 
 Obd. 
 
 mitment is to be signed by the Commissioners, as well as to be 
 under the seal of the Court. In short, the object of tbe legisla- 
 ture appears plainly to have been, not to leave it to the offended 
 Commissioner, or to " the Court," to punish for a contempt, but Davidson 
 to delegate that power to the Commissioners generally, whose duty 
 would be to enter upon the inquiry judicially, hearing what the 
 offender had to say in his defence ; and a further object was, to 
 avoid an immediate adjudication, even if all the Commissioners 
 were present ah the time of the pffence, in order to afford time for 
 reflection. In all these respects, it is clear that the defendant's 
 act was in no way conformable to the law ; he had no power to 
 fine for contempt, and none to imprison for non-payment of the 
 fine. With respect to the argument, that the words " the Coin- 
 " missioners " in the 20th section, should be read in the singular, 
 because by an Act passed by the Legislative Council of this Colony 
 last year, it is enacted that the singular shall include the plural, 
 and the plural the singular, unless the contrary is expressly pro- 
 vided, or unless there be something in the context repugnant to 
 such construction, it is enough to say that such a construction 
 would defeat the plain meaning and object of the legislature. And 
 with respect to the further argument, that inasmuch as the defend- 
 ant had power to detain for a contempt until the rising of the 
 Court, he had jurisdiction over the subject matter, and having 
 also jurisdiction over the place and the person, he was not liable to 
 be sued for his act ; the answer is, that those circumstances did not 
 bring the case within his jurisdiction, when his act was one which 
 it was not competent for him under any circumstances to do. 
 The power of detention till adjudication is not a power to adjudi- 
 cate, and an adj udication by the defendant was notmerely an irreg- 
 ularity or proceeding inverso ordine, but an act beyond his juris- 
 diction ; just as a commitment by a justice of the peace for an 
 indefinite time, for default of sureties to keep the peace, is an act 
 out of the justice's jurisdiction, and for which he is liable to an 
 action, although he has power over the place, person, and subject 
 matter, and also has authority to commit, though for a limited and 
 definite time only ; Trickett v. Gratrex, 8 Q. B. 1020. Tn this res- 
 pect the case differs altogether from Kemp v. Nevile, 10 C. B. N. S. 
 52'5, where the defendant had power to do the judicial act com- 
 plained of, however irregularly the power may have been exercised. 
 The only remaining question then as regards the defendant's 
 liability is, whether he is protected by Act XVIII. of 1850 ; that is, 
 whether, having done an act out of the limits of his jurisdiction, 
 he " at the time, in good faith believed himself to have jurisdic- 
 " tion to do or order the act complained of." Assuming that the 
 Act of 1850 applies to cases where the excess of jurisdiction has 
 been owing to the judge's misconception of the law or of his 
 powers, and not only to ignorance of facts affecting his juris- 
 diction, I think that the question must be answered in the nega- 
 tive. Even if I were better satisfied than I am, of the judicial 
 nature of the act, and of the animus and temper of it, I should 
 still have to observe, that, " good faith " must be founded on 
 reasonable grounds, Kine v. flvershed, 10 Q, B. 143, otherwise this 
 
2i4 
 
 CIVIL OASES. 
 
 Maxwell, 
 C.J. 
 1868. 
 
 Davidson 
 
 v. 
 
 Oed. 
 
 absurd consequence would follow, that the extent of a judge's 
 immunity from legal liability, for acts out of his jurisdiction, 
 would be in direct proportion to his ignorance and thoughtless- 
 ness; which would undoubtedly lead to the " will work" spoken 
 of by Mr. Justice Williams in Cann v. Clipperton, 10 A. & E. 
 589. Here, I am constrained to say that I fail to see in this case 
 that element which is necessary to entitle the defendant to the 
 protection of the Act of 1850. [a] 
 
 It remains to determine the amount of damages. Mr. Woods, 
 on behalf of the plaintiff, claimed that they should be exem- 
 plary ; and, in general, I am disposed to visit with some severity 
 everything that savours of an abuse of power by any public officer. 
 But, in this case, I do not think that I ought to give heavy- 
 damages, and for this reason ; — The action. was begun as long ago 
 as July, 1867, and has therefore been pending over the defendant 
 for fifteen months. I asked the plaintiff the reason of the delay, 
 and he said that he acted under the advice of his counsel. Now, 
 I think it was very hard on the defendant to keep him thus for 
 such a length of time with a law suit hanging over his head, and 
 under the continued threat, as it were, of a trial. It is true, he 
 might, after a time, have applied for judgment as in case of a 
 non-suit, but though he had this remedy, the long pendency of 
 the action was nevertheless calculated to be a serious annoyance 
 to him ; and this, I think, I ought not to lose sight of for the 
 present purpose. But further, when the plaintiff claims damages 
 for the insult which he has received, it is not unreasonable to 
 measure, to some extent at least, the moral injury which he has 
 sustained, by the degree of alacrity which he shews to obtain 
 redress; and this also, would I think, incline a jury, and should 
 also lead me, who have here to fulfil the functions of a jury, to 
 moderation in estimating the damages. At the same time, it is 
 necessary in cases of this kind, that the damages should be sub- 
 stantial enough to indicate, that any wrongful exercise of power 
 on the part of persons in authority, especially when affecting the 
 liberty of the subject, is not viewed lightly by English law. 
 Taking all the circumstances into consideration, there will be 
 judgment for the plaintiff for One Hundred Dollars. 
 
 SlNGAPOBE. 
 
 Maxwell, 
 C.J. 
 1868. 
 
 November 16. 
 
 MAHOMED GHOUSE v. RABIA. M 
 
 Since the Limitation Act [XIV. of 1S59] beeame Law in this Colony, part payment 
 of principal or interest has ceased to revive a debt, if it b8 otherwise statute barred. 
 
 A statement of accounts between the parties, in which items appear on both sides, 
 and a balance is struck which is verbally acknowledged to be correct, does not revive 
 the debt. 
 
 The English Law on that subject is now quite inapplicable to this Colony. 
 
 Action for money lent. Plea that the cause of action did not 
 
 arise within three years before suit. The plaintiff and defendant 
 
 [a] See Taraknath Ifookhopadhya v. The Collector of Hooqhlv &■ ors. 4 Bensal 
 L. B, Civ. 37. y 
 
 [6] See, further, Neoh Chin Tele 
 December 13, 1876, infnl 
 
 $ ors v. Tan Beow, decided by Phillipo J., 
 
STRAITS SETTLEMENTS. 
 
 215 
 
 had within three years before suit, gone into accounts, in which 
 items appeared on both sides, and a balance was struck in favor 
 of the plaintiff. The defendant acknowledged this account and 
 balance to be correct, but saving the accounts and balance so 
 struck, [which were not signed by the defendant,] there was no 
 acknowledgment in writing. 
 
 A. Baumgarten, for plaintiff. 
 
 Defendant in person. 
 
 Maxwell, C. J. — In this case the defendant has pleaded to an 
 action for money lent, that the cause of action did not arise within 
 three years, the period within which suits for debts must be 
 brought-, since the Act XIV. of 1859 came into operation. To 
 avoid the operation of the Act, the plaintiff proved that he and 
 the defendant had in December, 1865, gone through their accounts, 
 which had items on both sides, and struck a balance, which the 
 defendant had admitted to be correct ; and Mr. Alexander Baum- 
 garten contended, on the authority of Ashby v. James, 11 M. & W. 
 542, that guing through an account with items on both sides, and 
 striking a balance, convert the set off into payments, and that, 
 thus by part-payment at that date, the case was taken out of the 
 Act. But the question remained whether part payment has any 
 such effect under the Indian Act. The point has been decided in 
 the negative by the High Court of Madras, as I find from Mr. 
 Thomson's Treaties on the Act, p. 246, et seq : and I might therefore 
 confine myself to following that authority. But it will perhaps be 
 more satisfactory to the parties if I state shortly the grounds in 
 which this conclusion rests. The English Act of James I. requires 
 that all actions of trespass, detinue, trover, assumpsit and debt 
 shall be brought within six yea.rs from thb cause of action. It was 
 early established that when the cause of action is a debt, an ac- 
 knowledgment of it made to the creditor implied a promise to pay, 
 unless it was accompanied by language expressive of a different 
 intention ; and the debt might be recovered within six years from 
 that promise, for in such a case it was the new promise and not 
 the old debt that was the cause of action. But an acknowledg- 
 ment may be made not only by word but hy part payment, which 
 is an acknowledgment by deed ; and a fresh promise to pay is as 
 obviously inferred from that Act as from an oral acknowledgment. 
 Then came Lord Tenterden's Act [9 Geo. IV., c. 14] [a] providing 
 that no acknowledgment by words should be operative unless it was 
 reduced into writing signed by the party chargeable by it, without 
 prejudice) however, to a revival of the debt by part payment. Thus, 
 in England at the present time, a simple contract debt may be 
 taken out of the statute either by a written acknowledgment 
 signed by the debtor [or his agent, 19 & 20 Vict., c. 9] or by part 
 payment. But the Indian Act is different from the English Law. 
 It provides, as regards action for money lent, that the suit must 
 be brought within three years from the time when the money became 
 due, unless [sec. 4] the debtor has admitted it by an acknowledg- 
 ment in writing signed by him, in which case the Act runs from 
 
 j>] Extended to this Colony by Act XI V. of 1840, impliedly repealed as regards 
 this Question by Act XIV. of 1S50. 
 
 Maxwell, 
 C.J. 
 1868, 
 
 Mahomed 
 Chouse 
 
 v 
 Rabia. 
 
216 
 
 CIVIL OASES. 
 
 Maxwell, 
 C.J. 
 
 1808. 
 
 Mahomed 
 
 Ghouse 
 
 v. 
 
 "Raima. 
 
 Singapore. 
 
 Maxwell, 
 C.J. 
 1869. 
 
 January 19. 
 
 the date of the acknowledgment. This is equivalent to a dqi- 
 claration that any other kind of acknowledgment is unavailing/to 
 avoid the operation of the Act ; and, consequently, the acknow- 
 ledgment made by part payment is unavailing for that purppse. 
 
 CHOA CHOON NBOH v, SPOTTISWOODE. 
 
 A direction by a testator, that the rents and profits of his land should be expended 
 on certain ceremonies called " Sin Chew," is void as being in'perpetuity, and not a 
 charity. 
 
 The Statutes 1 Ed. VI., c. 14 ; 23 Hen. VIII., c. 10, and 9 Geo. it, c. 36, held 
 not to be law in the Straits Settlements, [a] 
 
 This was a suit by certain next of kin for the administration 
 of the testator's estate and for a declaration that certain bequests 
 were void, and the property comprised therein was distributable 
 amongst the next of kin. 
 
 Atchison, [A. M. Aitken with him,] for plaintiff. 
 
 E. C. Woods, senr., for defendant. 
 
 Cur. Adv. Vidt. 
 
 On this day judgment was delivered by 
 
 Maxwell, Q.J. — In this case the testator, Choa Chong Long, 
 a person born and domiciled in Singapore, but of Chinese descent, 
 by his Will, in the English language, after bequeathing legacies 
 of 500 dollars apiece to each of his two sons and four daughters,. 
 and making provision for another son, and after reciting that lie 
 was erecting a building for charitable purposes, and for the per- 
 formance of religious ceremonies, according to the custom of his 
 ancestors, called Sin-Chew, to perpetuate the memories of his de- 
 parted wives, as also of himself, after his decease, devised certain 
 houses and land in Singapore and Malacca, and also his residuary 
 estate, to trustees, upon trust, to apply the rents and profits, after 
 providing for repairs and insurance, " in the performance of such 
 " Sin-Chew or Charity, in and to the names of myself and my said 
 " wives hereinbefore named and mentioned, to be performed four 
 " times in each and every year at the least, and as much oftener as 
 " the funds applicable thereto will admit." The Will contains 
 also a direction to the trustees to see that the " Charity" is faithr 
 fully carried 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, according to the term of the original grants ; and 
 it declares that the testator's wish is to preserve the funds so in- 
 tended to be applied to such religious and charitable purposes as 
 aforesaid, from being 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 under them, would by due enforcement of 
 its provisions, encourage wealthy, industrious and honest Chinese 
 
 [a] By this decision, the judgment delivered by McCausland, R. in the Goods of 
 Choa Ohong Long, deceased, in 1857 [not reported'], was practically overruled. The 
 present decision was approved of in Ong Cheng Nao v. Yeav Gheah Neo, 6 ]j. K>. P. C. 
 381, [24th July, 1872, infra.-] 
 
STRAITS SETTLEMENTS. 217 
 
 and other settlers in the Company's territories, to follow his. Maxwell, 
 example and thereby ultimately advance the wealth, prosperity, ^- 
 and permanency of its possessions in these parts. '. 
 
 The testator died about thirty years ago, leaving the two sons Choa Choon 
 and four daughters, to whom he had given the pecuniary legacies Nboh 
 mentioned, and who, or whose representatives, are the plaintiffs spottis- 
 in this suit, and leaving the other son already referred to, whom woode. 
 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 defendant in this suit, but is out 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 Ecclesiastical sides, 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 apppinted, 
 that it was ordered that, the sum of $280 a year should be set 
 apart out of the rents, for the performance of the ceremony men- 
 tioned, 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 $33,500. 
 These various proceedings were set up by the answer as a bar to this 
 suit, but I held at the hearing that they had not that operation, 
 whether regard were had to their ez-parte character, 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. The petition pra)'s that it may be declared that the '. 
 devise for the Sin-Chevj is void, and that the testator died intestate ( 
 as to the property devised for that purpose, arid consequently that t ' 
 it goes to the next of kin. 
 
 Several Chinese, men of learning, have been examined 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 Bin, which means spirit, soul or 
 ghost ; and Chew, which means ruler ; and the composite 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 en- 
 graved 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 worshipper, 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 
 anniversary of his death, and once in each of the four seasons, 
 his son or sons, or if he has none, his nearest male relative, but 
 never his daughters or other females, go to the place where the 
 tablet is, and lay on a table in front of it a quantity of food, such 
 as pigs, goats, ducks, fowl, fish, sweetmeats, fruit, tea and 
 arraci. -They light joss-sticks, fire crackers, burn small squares of 
 thin brown paper in the centre of each of which is about a square 
 
218 CIVIL OASES. 
 
 Maxwell, inch of gold or silver tinsel, they bow their hands three times, 
 c - J - kneel, touch the ground with their foreheads, and call on the 
 1869 ' ' Sin-Chew by his new name to appear and partake of the food 
 Choa Choon provided for him. The food remains on the table for one or two 
 Neoh or even three hours, during which time the spirit feeds on its 
 Spottis- ethereal savour ; and to ascertain whether it is satiated or satisfied, 
 woode. 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 removed, 
 and eaten or otherwise disposed of by the relatives, but there is no 
 distribution of it in charity or among the poor. Indeed the Chi- 
 nese have a repugnance 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 money and. clothing, the 
 gold and silver tinsel turning into precious metal. No prayers are 
 offered to the spirit ; the person 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 prospers those 
 who are regular in this duty ; and its neglect entails disgrace on 
 him whose duty it is to perform 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 out- 
 cast, begging of the more fortunate spirits, and haunting and 
 tormenting his negligent descendant, and mankind generally. To 
 I avert the latter evil, the wealthier Chinese make, in the seventh 
 month, every year, a general public offering, or sacrifice, called 
 Kee-too or Poh-toh for the benefit of all poor spirits. 
 
 The question is whether this devise or "bequest is valid. 
 No difficulty arises in respect of the 9 Geo. II., 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 arexecognized by our law as charitable. 
 It was admitted, however, by Mr. Woods, who contended for the 
 validity of the devise, that it did not fall under the legal designa- 
 tion of charitable, and it seems to me it would have been difficult 
 to establish that it did. The term charity receives, in questions of 
 this kind, a peculiar but wide meaning ; and although the 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 pre- 
 amble, 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 purposes which it is unnecessary to enumerate, but also, 
 as in England, all objects having any analogy to such uses, would 
 be regarded as charitable. Lord Cranworth said in the case of, 
 
STRAITS SETTLEMENTS. 219 
 
 the University of London v. Yarrow, 26 L. J. Ch. 430, that every Maxwell, 
 object beneficial to the community is a charity in the legal sense ^.J. 
 
 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, Choa Choon 
 provided it be not immoral, or cruel, or otherwise against public Neoh 
 policy. It was held, for instance, by Lord Komilly, that a legacy Sp0 ttib- 
 to print and propagate the writings of Johanna Southcote, was a woode. 
 good charity, as, however, foolish they might be deemed by most 
 persons, they were neither immoral nor irreligious, and were de- 
 signed 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 maintenance 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 Mr. Woods, 
 would be determined in this 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 being misunderstood as questioning 
 the validity of any eastern charity. In the case before me, how- 
 ever, the devise is plainly not charitable ; it has not any charitable 
 object whatever, whether general or special, in the sense of a benefit 
 to any living being. Its object is solely for the benefit of the tes- 
 tator himself ; andalthough the descendants are supposed incidently 
 to derive from the performance of the Sin-Chew ceremony the ad- 
 vantage of pleasing God and escaping the danger of being haunted, 
 those advantages are obviously not the object of the testator, nor 
 if they were, would they be of such a character as to bring the de- 
 vise 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 England it would be void. In West 
 v. Shuttlevwrth, 2 M. & K. 684, Lord Cottenham held that be- 
 quests to Roman 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 BlundelVs Trusts in 31 L. J. Ch. 52. As Lord Cot- 
 tenham observed, there was nothing of charity in their object ; 
 they were not intended for the benefit of the priests personally or 
 for the support of the chapels for general purposes ; and they 
 could not, therefore, be supported as charitable bequests. It 
 is true, the legacies are in all those cases spoken of as void be- 
 cause superstitious ; but as Sir W. Grant observed in Gary v. Abbot, 
 7 Ves. 495, there is no statute making superstitious uses or 
 bequests void generally. The Statute of 1 Ed. VI. c. 14 relates 
 only to superstitious uses of a particular description then existing, 
 and the 23 Hen. VIII. c. 10, which was intended to guard against 
 the loss suffered by feudal superiors through alienations in mort- 
 main, rather than to check the spread of superstition, relates only 
 to assurances of land to churches, chapels and corporate or quasi 
 corporate bodies, for longer terms than twenty years. Besides, 
 
220 CIVIL CASES. 
 
 Maxwell, when West v. Shuttleworth was decided, the dogmas and prac- 
 5Lg - tices of the Roman Catholic religion had ceased to be super- 
 
 '. stitious in the eye of the law. The 2 & 3W. III., c. 115, had placed 
 
 Choa Choon it on the same footing as other forms of Christianity, dissenting 
 Neoh from the established one, in respect of their schools, places of 
 Spottis- worship, and charities ; and a bequest for the repair of a Roman 
 woode. Catholic Chapel, or the propagation of the Roman Catholic religion, 
 was as valid as one for repairing a Protestant Parish Church, or 
 spreading the Protestant faith, De Windt v. De Windt, 23 L. J. 
 Ch. 776 ; Bradshaw v. Tosher, 2 M. & K. 221. Lord Cottenham, 
 indeed, referring to some early authorities collected in Duke on 
 Charitable Uses, observed that the Act of Ed. VI. had been con- 
 sidered as establishing that legacies to priests to pray for the soul 
 of the donor were within the superstitious uses intended to be 
 suppressed by that Statute ; but the effect of his decision was, that 
 they did not fall within that Act ; for if they had, the illegal le- 
 gacies would have been forfeited to the Crown, instead of being 
 as they were, held distributable among the next of tin. But, 
 however, this may be, it seems to me that all such legacies, 
 whether they be designated superstitious or otherwise, are void 
 upon another ground, viz., that not being for a public or quasi 
 public benefit, they attempt to create a perpetuity. On this 
 ground, a legacy to keep in • repair the testator's tomb has been 
 repeatedly held void, Richards v. Robson, 31 L. J. Ch. 897; Lloyd 
 v. Lloyd, 21 L. J. Ch. 598; Fowler v. Fowler, 33 L. J. Ch.674; 
 Hoare v. Osborne, 35 L. J. Ch. 345. On the same ground, a de- 
 vise of and to the trustees of a library established and kept up 
 for purchasing and preserving books for the subscribers, was held 
 void, Came v. Long, 29 L. J. Ch. 503 [a] ; and Lord Campbell 
 intimated in the case of Thompson v. Shahespear, id. 278, that a 
 bequest of money to erect and keep up a museum at or near 
 Shakespear'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 : 'bri the subject. The law of England, as 
 I understand it, does not allow the owner of property, whether 
 real or personal, to dispose of it for all future ages as he desires 
 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 either money or land on his children or descend- 
 ants 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 purpose not charitable. On this ground alone, and not 
 because the law condemns as unsound the theological dogma 
 which such a legacy implies, [for the Acts of 23 Hen. VIII. and 
 1 Ed. VI. are not, in my opinion, law in these Settlements,] I 
 should consider a bequest for masses for departed souls, void, 
 and the devise in this case void, unless the law of these Settle- 
 ments differs in this respect from the law of England. It ve-. 
 mains to consider this question. 
 
 [a] See Beaumont v. Olivers,, 4. L. B. Ch. Ap. 314; Trustees of British Museum 
 V. White, 2 S & S. 594. 
 
STRAITS SETTLEMENTS. 
 
 221 
 
 J. 
 
 1869. 
 
 Spottis- 
 
 WOODB. 
 
 In this Colony, so much of the law of England as was in JMaxweil, 
 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 inhabitants, is the law of the land; and farther, that law tf no *t Choon 
 is subject, in its application to the various alien races established '°" 
 
 here, to such modifications as are necessary to prevent it from 
 operating unjustly and oppressively on them. Thus in questions 
 of marriage and divorce, it would be impossible to apply our law 
 to Mahomedans, Hindoos, and Buddhists, without the most absurd 
 and intolerable consequences, and it is therefore held inapplicable 
 to them. Tested 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 mle 
 is not founded by "any statute, but is a rule of the common law, 
 and it seems to me to be one of a general and fundamental cha- 
 racter, of great economical importance, and as well fitted for a 
 young and small community of a great state, for both are inter- 
 ested 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, therefore, 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 men- 
 tioned in Story Conf. L., sec. 440, that it is out of the question to 
 subject property of that nature to any but the local law, and thus 
 introduce in our own jurisprudence the innumerable diversities of 
 foreign laws. But waiving this point, if it be said that such a 
 restriction on the power of impressing on property, the will of its 
 present owner in perpetuam, 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 Chinese law, or customs, 
 certainly, I had no evidence of it, — which requires the owner of 
 property to dispose of any part of it for the use of his own soul 
 after death. It has not even been shewn that such a devise would 
 be valid in China, or indeed that the power of testamentary dis- 
 position is known there at all. No similar devise appears to have 
 been ever brought ur.der the cognizance of the Court of these 
 Settlements, though one of them, Penang, has been under British 
 rule and inhabited by Chinese for upwards of eighty years; and 
 surely if a devise in fee for the use of the testator's soul was dic- 
 tated 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 benefit and comfort 
 of his own soul, while he left his sons and daughters almost 
 
222 CIVIL CASES. 
 
 MA g W j LI " wholly unprovided for. As there is no such evidence, I am un- 
 1869. able to see any reason for holding that the rule against perpetui- 
 
 ' ties is less applicable to property in the bands of a Chinese and a 
 
 CHO xtsoh° 01 Buddhist than to property in the hands of an Englishman and a 
 Christian, and I think that the former has no power to devise or 
 ' bequeath property to be devoted in scecula sceculorum to any pur- 
 j pose not charitable. 
 
 For these reasons, I think this devise void, and that the pro- 
 perty is distributable among the testator's next of kin living at 
 I his death. 
 
 Neoh 
 
 v. 
 
 Spottis- 
 
 WOODE. 
 
 GAN GUAT CHUAN & ORS. v. KHO SU CHEANG. 
 
 A partner may use the names of his co-partners in legal proceedings, and they 
 p cannot stay proceedings or get their names struck off ; but the partners who object 
 ' have a right to be indemnified against costs. 
 
 Hac ™™> j - This was an action on the common money counts. 
 
 1! Lim Cheng Tean, one of the plaintiffs, having obtained a Rule 
 
 February 24. calling upon the other plaintiffs, his partners, to shew cause why 
 
 his name should not be struck out as a plaintiff in this suit, 
 
 R. C. Woods, junr., shewed cause, and contended that this 
 being a joint contract, the petitioner's name must continue on the 
 record, on his receiving an indemnity from the other plaintiffs 
 against costs, and cited Whitehead v. Hughes, 2 Dowl, P. C. 258, 
 and Auster v. Holland, 10 Jur. Q. B. 786. 
 The petitioner in person, heard contra. 
 
 Hackett, J. held that the petitioner's name must be continued 
 on the record, as the contract was a joint one, hut that he was en- 
 titled to be indemnified, on account thereof, by the other plaintiffs, 
 as to costs, and discharged the Rule with costs. 
 
 Rule discharged with costs, [a] 
 
 In re ISAAC SWINBURNE BOND. 
 
 The term " fees" in legal phraseology, means perquisites allowed to public 
 officers as a reward for their trouble. 
 
 Where therefore, in the table of fees published with the Order in Council of 
 tt T 6th March, 1868, purportingto be made under Ordinance XII. of 1867, a. 1., was an 
 
 1869 item as foUows » " Admission of an Advocate §50," 
 
 Held, this was not a "fee" and not one within the powers of the Executive 
 
 Sept. 15. Council, under the said Act, to pass. [6] 
 
 This was a Rule Nisi obtained by Bond against the Reg- 
 istrar of the Court, calling upon him to shew cause why he should 
 not certify that certain stamps to the amount and value of $50, de- 
 manded by him from Bond on his admission as an Advocate 
 and Attorney of the Court, as fees leviable under the Order of the 
 Governor in Council, dated. 5th March, 1868, and by him [Bond] 
 
 [a] Where one of several plaintiffs dissents to bringing the action, the Court 
 will not interpose, unless upon a suggestion of fraud. Emery v. NucUow, 10 Bing. 
 23, 8. C. 2 Dowl, 735 ; also see Drake v. Symes, 30 L. J. Ch. iV. 8. 358, 
 
 [6] By Ord. V. of 178. s. 18, this charge can now be legally made. 
 
STRAITS SETTLEMENTS. 22^ 
 
 paid under protest, were fit subjects for allowance under the HAC f869 T ' J ' 
 
 3rd clause of section 30 of Ordinance XXVI. of 1867, commonly ' 
 
 called the Stamp Act. J« re 
 
 D. Logan, [Solicitor-General,'] for the Crown. The fee is legal. L s - BoND - 
 It was lawfully fixed by the said Order in Council by virtue of sec- 
 tion 1 of Ordinance XII. of 1867 [o]. The Governor has power 
 thereby to fix or create any new fee in this Court as fees were 
 leviable by law therein before the passing of this Ordinance under 
 the Charters of the Court of 1807, 1827 and 1855 [&] , The ques- 
 tion before the Court is not whether the Governor in Council has 
 power to create a fee in any new office or department that may be 
 established after the passing of the above Ordinance, unless the 
 Legislature expressly gives authority to make and levy fees there- 
 in, or whether the Governor in Council has authority to create 
 new fees in departments where no fees were leviable by law at the 
 time of the passing of the said Ordinance. Here, fees had been 
 leviable under the Charters, and had been levied for years, and 
 there was no objection to the Governor fixing this new fee although 
 it had never been charged before. It could not be-the intention 
 of the Legislature that the Governor should simply fix the same 
 table of fees as was already in existence, and give him only the 
 power to increase or decrease the amount of the sums then levia- 
 ble. By the Supreme Court Ordinance V. of 1868, [passed 8th 
 June, 1868,] the process and practice of this Court had been 
 changed, yet could it be contended that the Governor in Council 
 had no power to fix new fees for additional process under this Act ? 
 The words of the Ordinance are " to fix tables of fees .... and 
 " from time to time to alter and amend such tables of fees," which 
 are of the same import as the words " settle a table of fees and from 
 " time to time vary the said table of fees," used in" the Charter under 
 which all the fees levied in the Court were created. It could not be 
 said that the Colonial Legislature hadno power to pass such an Ordi- 
 nance as ActXII.of 1867, on the ground of its beingunconstitution- 
 al to part with the power of taxation, or on the principle of Delegatus 
 non potest delegare, neither was the new fee an unreasonable one. 
 The words " to be leviable" in Act XII. of 1867 were probably in- 
 tended to apply to fees which might after the passing of the said 
 Ordinance be leviable in any public Office or Department, whe- 
 ther in existence or to be hereafter formed and in which no fees were 
 at the time levied. Section 29 of the Stamp Ordinance, XXVI. 
 
 [a] " It shall be lawful for the Governor in Council to fix tables of fees and of 
 "payment for licenses, leviable or to be leviable in all Courts of Justice, Public Offices 
 " and Departments in the Colony, and from time to time to alter and amend such tables 
 " of fees and payments for licenses, and from and after the coming into operation of any 
 " table of fees so fixed, no fee other than those so fixed shall be payable for any mat- 
 " ters therein contained : Provided always, that no fees or payments for licenses in 
 "excess of the maximum rate fixed for any purpose by an Act of the Legislative 
 " Council shall be chargeable under any tables fixed by virtue of this Act." Section 1 
 of Act XII. 0/1867. 
 
 [6] " Ami we do hereby further authorise and empower the said Court of Judi- 
 " cature to settle a table of fees to be allowed to such Registrar, Sheriff and Coroner 
 " for all and Vvery part of the business to be done by them respectively, which fees the . 
 " said Registrar, Sheriff and Coroner shall and may carefully demand and receive and 
 " we do further authorise the said Court from time to time to vary the said table of fees 
 " as there shall be occasion." See 2nd Charter, p. 18. 
 
224 
 
 CIVIL OASES. 
 
 Haokbtt, J, 
 1S69. 
 
 In re I. S. 
 Bond. 
 
 of 1867 [a], confirmed the legality of this fee, and so did see. 4 of 
 the Supreme Court Act V. of 1868. The power given by the Act 
 to the Governor in Council was not unlawful nor unusual as testi- 
 fied by numerous Imperial Statutes and Colonial Ordinances : and 
 sec. 30 and 31 Vict. c. '89. Weekly Notes, Law Reports, No. 4, 
 1869 [Orders]. It differs entirely from a power to levy taxes. It 
 applies only to fees to be taken in public offices for service ren- 
 dered therein. 
 
 Bond, contra. The fee is illegal. The preamble of Act 
 XII. of 1867 declares that it is "to regulate the levy and pay- 
 " ment of fees, &c," and does not express that this Ordinance was 
 one to amend, vary or alter the then existing laws or fees, or that 
 it was expedient to create new offices or new fees. This Act must 
 be judged by its preamble, Broom's Legal Maxims, 509, 510. The 
 Order in Council of 5th March, 1868, misrecites the Act and 
 uses the words " to be levied," which assumes the question. It 
 could never be the intention of the Legislative to grant unlimited 
 power of taxation to the Executive, and the words " to be levia- 
 ble " in the Act clearly demonstrates the contrary intent, otherwise 
 why should they have inserted the words ? By those words thpy 
 must be considered to have meant that where new fees were deemed 
 necessary, they should be consulted ere such a tax could becomg 
 legally leviable. This fee was not leviable by law. The Charter 
 of the Court of 1827 empowered the Court to " settle" tables of 
 fees, which was a word of greater import than to "fix" fees 
 " leviable or to be leviable" as declared in Act XII. of 1867. The 
 words of the Charter of 1855 which supersedes the Charter of 1827 
 are much more limited. The 29th section of Act XXVI. of 1867 
 clearly explains the intention of the Legislature as to the "Fees 
 Act, for they therein declare that only such fees as are " payable 
 under any law" may be levied. Can it be said that this new fee 
 of f 50 is so payable under any law ? There is no law that ever 
 authorised it. There was no such fee in the tables of fees under 
 the Charters of the Court. If the view that the Governor 
 had power to create new fees was correct, then he might do so 
 ad libitum and without any restraint. But it could not surely be 
 the intention of the Colonial Legislature to betray their trust in 
 that manner and to part with the right of taxation which belongs 
 solely to them. Broom's Constitutional Law, 339, 407. Bowyer's 
 Constitutional Law, 204, 429. Broom's Legal Maxims, 4, citing 
 Gosling v. Veley, Burder v. Veley, Denn v. Diamond. Locke on 
 Government, c. 11. The language of the Legislature was clear 
 and unambiguous that the fee must be one leviable by law or to be 
 made leviable by law. In this case the new fee of $50 was not 
 supported by any law, but was an illegal demand. If, however, 
 the words were ambiguous, then the subject should benefit by any 
 
 [a] " Whenever the Governor shall direct by Order in Council under Act XTT of 
 « 1867, that any fees payable to Government in any Court, Office or ^ Government De- 
 " partment in the Colony , or any payments for licences under any law shall he ™v 
 " able by means of Stamps such Order in Council shall set out a table of such fees or : 
 
 i ^TTu 1°* T S6 -f i °<\T d f af ? OT thS P ublioation °f such Order in Council th°s 
 " Act shall be read as if suoh table of fees or payments for linen™ hnri f™™™ i I « 
 
 " this Act." Section 29 of Act XXVI. of 1867 [.Stamp AciQ rmed a part of 
 
STHAITS SETTLEMENTS. 225 
 
 such ambiguity as this fee was in the nature of a penalty and Kac ™?*> J - 
 
 therefore odious in the eye of the law, Vattel's Law of Nations, ; 
 
 262, 268. Dicarris Stat,, 551, 564, -587, 594, 646. Re Mickleth- in re 
 waite, 11 Exch. 456, Ryder v. Mills, 3 Exch. 869. Broom's Legal Bond 
 Maxims, 508. It musb be remembered that fees levied in the dif- 
 ferent public offices are nob appropriated to those offices, but go 
 to the general revenue of the Colony. There was no inherent 
 power in the Governor to make new fees, and he can have none 
 unless it is granted to him by some legislative enactment, ex- 
 pressed in clear, distinct and unambiguous language. 
 
 Cur. Adv. Vult. 
 
 December 21 . Hackett, J. — This was a case upon a Rule call- 
 ing on the Registrar of the Supreme Court to shew cause why he 
 should not certify that certain stamps to the amount of $50 de- 
 manded by him from Mr. Bond, on his admission as an Advocate 
 and Attorney of the Court, as fees leviable uuder the order of the 
 Governor in Council of the 5th March, 1868, and by him, Mr. Bond, 
 paid under protest, were fit subjects for allowance under the 3rd 
 clause of the 30th sec. of the " Stamp Act, 1867," and the ques- 
 tion for my decision is, whether the said fee of $50 levied on the 
 admission of an Advocate in the Supreme Court according tothe said 
 Order in Council, is alegalfee,Mr. Bond contending that it is not. 
 
 The Solicitor-General on behalf of the Government has waived 
 any objection that might have been made to the form of the appli- 
 cation. The question arises upon the construction of sec. 1 of Act 
 XII. of 1867, by which it is declared that " it shall be lawful for the 
 " Governor in Council to fix tables of fees leviable or to be leviable 
 "in all Courts of Justice." Theargument before me turned prin- 
 cipally in the meaning of the word3^a; and leviable or to be leviable. 
 Now, as to the word fix, I think, it was clearly used in the sense 
 of settle or establish, and that the words, " fix table of fees " are 
 to be construed in the same way as the words " settle a table of 
 " fees " in the Court Charter of 1827. 
 
 Then come the" words leviable or to be leviable upon which much 
 stress was laid by Mr. Bond, and on which in fact his argument 
 was principally based. It was contended that these words im- 
 ported that the Governor was not empowered to create any new 
 tee but was merely to settle the amount of an established fee, and 
 that to make a fee legal it must be leviable by law, independently 
 of the Governor's order : in effect, that he might raise or diminish 
 the amount of an established fee at his pleasure, but that he has 
 no power to impose a fee on a matter in respect of which a fee 
 should not be leviable by law independently of the Governor's 
 order. But I confess I am not prepared to agree to this conten- 
 tion. It is perhaps difficult to understand what is really meant 
 by the word in question, but I am relieved from the difficulty of 
 deciding their meaning by the view which I take of this case, and 
 I will assume for the moment that they are merely a cumbrous 
 mode of expressing the same meaning as " to be levied" which 
 indeed is the expression used in the Order in Council. 
 
226 
 
 CIVIL CASES. 
 
 Hackett, 
 1869. 
 
 In re 
 Bond. 
 
 J. Assuming then that the Governor in Cotincil is empowered to 
 fix fables of the fees to be levied in Courts of Justice, we come to 
 the question, what fees is he entitled so to fix? Are his powers 
 as unlimited as by the terms of the Act they at first sight appear 
 to be ? Has he an unrestricted right to impose payments in res- 
 pect of anything and everything done in Courts of Justice ? Is 
 he empowered for instance to demand a fee from every person en- 
 tering a Court, or to impose payment of a fee on every one acting 
 as a jurymen or giving evidence as a witness? These instances 
 are, no doubt, redudiones ad absurdam, but they are a fair mode of 
 testing the meaning of "the words, and they serve to shew that the 
 Governor's powers must be confined within certain limits. It 
 would be unreasonable to suppose that the Legislature intended 
 to bestow on the Executive, powers which, construed literally, 
 might be carried to such extravagant lengths. 
 
 Now what are the fair and reasonable limits of these powers, • 
 and is it possible to ascertain them with any certainty ? I think 
 that it is, and that a solution of the difficulty is to be found in the 
 true meaning of the word " fees" as it is used in Courts of Justice. 
 If the expression " fees in Courts of Justice" is always found to 
 be used in one sense in the law books, I think it is a fair inference 
 that it must be construed in the same sense in the Act which I am 
 now considering. 
 
 Now, I believe it will be found that this is so, and that " fees 
 " in Courts of Justice are always used to express, the perquisites 
 " allowed to officers who have to do with the Administration of Jus- 
 " tice, as arecompense for their labour and trouble." This is the 
 definition given in Bacon's Abridgment, a book of considerable 
 authority. In Co. Litt. 368 b., it is said that such reasonable 
 fees as have been allowed by Courts of Justice to inferior ministers 
 and attendants for their labour and attendance if asked and taken 
 of the subject, are no extortion. In Ballard v. Gerrard, 12 Mod. 
 608, Holt, C. J. said : that a Court cannot create new fees for its 
 officers so as to be binding on the subject, though it may adjudge 
 what are reasonable fees. 
 
 I think, therefore, we may assume it to be clear that fees are, 
 
 properly, perquisites allowed to the officers of a Court as a reward 
 
 for their trouble, and that any imposition or charge upon persons 
 
 who have to do with the Court, in order to be rightly included in 
 
 the category of fees, must be the recompense for work done by the 
 
 oflicers of the Court. Accordingly we find that the f ramers of the 
 
 Court Charter of 1827, in conferring' on the Judges the power of 
 
 settling the fees of Court, were careful to define the power in 
 
 exact terms and to limit it to the "fees to be allowed to the 
 
 Registrar, Sheriff and. Coroner, for all and every part of the busi- 
 
 ness to be done by them respectively." The limits thus affixed 
 
 to the power of the Judges in the creation of fees, are those which 
 
 are as well recognized by authority, as they are governed by a 
 
 rA F rt nam Jy that fees are the recompense for work 
 
 done by the officers of the Court. If I am right in my opinion of 
 
 in Z Xt n ^f«r h 7 tT eSSi ° n 1 "/ eeS in Coui ' ts of J ^ ce >" » "ed 
 m the Act of 1867, 1 have only to apply the test to «.« W wWnl, 
 
STRAITS SETTLEMENTS. 
 
 .227 
 
 In re 
 Bond. 
 
 is now in dispute, and see if it falls within the proper meaning of HA0K ^' r ' J - 
 the word " fee " as I have defined it. And I confess I do not think 
 it does. The heading of the table of fees is " Supreme Court," 
 and it is not a little curious that this heading is not strictly cor- 
 rect, inasmuch as at the date of the Order in Council [6th;Mardi, 
 1868] the proper style of the Court was "the Court of Judicature 
 " of Prince of Wales' Island, gingapore and Malacca." However, 
 no point was made of this, and I will assume that the heading 
 was intended to apply to the Court which was the Supreme. 
 
 Then follow the words which stand first in the list of fees : — 
 " Admissions of Advocate $50." Wow is this charge a fee pro- 
 perly so called ? Is it the recompense for the labour or trouble of 
 any of the officers or ministers of the Court ? I think not. As 
 the words stand, they seem to me more in the light of a tax levied 
 for the concession of the privilege of appearing in Court as an 
 Advocate, than as a payment for services rendered by the officers of 
 the Court. By a parity of reasoning, the fee payable for the certi- 
 ficate of admission as an Advocate would perhaps be a good fee, 
 but that question does not arise in the present case. 
 
 I confess I have had considerable difficulty in forming an 
 opinion on this case, owing to the very general and consequently 
 ambiguous terms used in the Act which I had to interpret, illus- 
 trating strikingly the adage "error lies in general," but I have 
 less diffidence in pronouncing my decision, from the knowledge 
 that my learned brother, Sir Benson Maxwell, concurs in the con- 
 clusion at which I have arrived. 
 
 Upon the whole, I am of opinion that the charge of $50 on 
 the admission of an Advocate, in the table of fees of the 6th March, 
 1867, is not properly " a fee in a Court of Justice," and therefore 
 that it cannot be supported. 
 
 CHALLIS v. CRAMER. 
 
 Plaintiff was ths charterer of a ship, which he chartered at 24 9h. per keel, " in full Singapore. 
 
 " of all charges, wharfage and other dues," and loaded her with a cargo of coal for Sing- 
 
 apore. He controctad to sell the coal to defendant, at 36 sh. per ton to he " delivered Maxwsil, 
 " alongsid3 any craft, floating dopfit, steamer or wharf, as buyers may direct, and in full C.J. 
 '' of all charges." On the ship's arrival at Singapore, the defendant [the purchaser] 1870. 
 
 directed- that she should go alongside the Borneo Company's Wharf, which she did, and 
 
 there delivered her cargo of coal which was received by the Company on the defend- February 2. 
 
 ant's aooount, and warehoused by them. The Company charged the defendant with 
 
 [among other things] wharfage, which he paid and subsequently claimed to deduct 
 [and retained] from the price of the coals to be paid the plaintiff, alleging that by the 
 terms of the contract, he [plaintiff] was liable therefor : the plaintiff refused to submit 
 to this and commenced an action for the recovery of the amount retained. 
 
 Held, that the plaintiff was not liable for the wharfage, as on the true construction 
 of the contract, the words " in full of all charges " meant, that the ship [plaintiff] could 
 make no charge which it might otherwise have been entitled to, such as labour for 
 taking the coal out of the hold, harbour dues, &c.,.and not that the ship-owner or 
 charterer would defray expensos falling immediately on the purchaser [defendant] by 
 his voluntary act. 
 
 Held, further, that wharfage is a charge on the skipper or consignee of goods, and 
 not on the ship, and so property fell on the defendant. 
 
 Held also, that the contract of sale, though annexed to the charter-party, could not 
 he construed in conjunction with the latter, and the expression in the latter "full of 
 "all . . . wharfage," did not explain the words " in full of all charges" in the con- 
 tract of sale, 
 
228 
 
 CIVIL. OASES. 
 
 Maxweii, 
 C.J. 
 1S70. 
 
 Ohallis 
 
 V. 
 
 Cramer. 
 
 Action to recover $372, balance for goods sold and delivered. 
 Plea— first, payment ; second, set off for money paid by defendant 
 for plaintiff, at his request, as wharfage due by the plaintiff to the 
 Borneo Company, Singapore. Issue thereon. The facts suffi- 
 ciently appear in the judgment. 
 
 A. M. Aitken for plaintiff. 
 
 Davidson for defendant. 
 
 Cur. Adv. Vult. 
 
 On this day judgment was delivered by 
 
 Maxwell, C. J.— The plaintiffs, being charterers of the ship 
 Wallace, at a freight of 24sh. per keel " in full of port charges, 
 "wharfage and other dues," contracted to sell a cargo of coal to the 
 defendant at 36 shillings per ton " delivered alongside any craft, 
 " floating depot, steamer or wharf at Singapore, as buyers may di- 
 " rect, and in full of all charges." It was also provided that the 
 purchasers should have the option of discharging at two wharves, 
 the coals to be delivered at not less than 45 tons daily as per char- 
 ter-party annexed. On the arrival of the ship, she went, by the 
 defendant's direction, to the wharf of the Borneo Company, where - 
 she discharged the coal, which was then carried to the Company's 
 stores and stacked. The Company charged the defendants with 
 wharfage as well as for warehousing, and the defendants paid 
 the amount of the former claim, 372 dollars, which they deducted 
 from the price of the coal, in settling their account with the plain- 
 tiffs. The plaintiffs objected to the deduction, contending that 
 they were not bound to pay for the wharfage, and this action has 
 been brought to recover the sum so deducted. 
 
 It seems to me that the meaning of the contract to deliver 
 the cargo alongside "in full of all charges " is, that the ship would 
 make no charge which it might otherwise be entitled to make, but 
 not that the ship-owner or charterer would defray expenses falling 
 immediately on the consignee by his own voluntary act. It is so im- 
 probable and so unreasonable that the ship-owner should undertake 
 to pay a debt incurred by the merchant, while it is so reasonable that 
 he should limit his own demands on him, that nothing short of the 
 clearest language would justify the former construction, while if the 
 terms of the contract were susceptible of doubt, the latter would be 
 the natural meaning to put upon it. The question then arises, 
 whether the charge for " wharfage" is a charge on the ship or on 
 the cargo. Mr. Buchanan, the Manager of the Borneo Dock Com- 
 pany, said that in the case of general ships ho charged the ship, 
 but otherwise the goods, but whatever may be the practice of 
 those wharfingers in this respect, I think that wharf a ge is a charge 
 on the shipper, or the consignee of goods for the facilities afforded 
 in loading or unloading them. The charge is not proportioned to 
 the size of the ship or the length of time that she lies alongside, but 
 to the quantity of goods loaded and imloaded. In Stex>hen v. Costa, 
 1 W. Bl., the Act of Parliament which ^ave rise to the question 
 shewed that the charge fell on the goods, or the owner of them ; 
 and is clear from such cases as Syeds v. Hay, 4 T. R. 260, and 
 Bourne & ors. v. Gatliffe, M. & Gr., p. 850, that wharfage is 
 a charge oh the goods. It was not disputed that if the defendants 
 
STRAITS SETTLEMENTS. 
 
 229 
 
 bad taken lighters to the ship's side for the coal, the ship would 
 not have been bound under this contract to pay the hire of them, 
 and though there may be a little more obscurity in the case of a 
 delivery on a wharf, because the ship is taken to the place of dis- 
 charge, and has also incidentally the advantage of being moored, 
 and perhaps some more than ordinary facilities in delivering 
 her cargo, the same principle applies. It depends on the fact that 
 a ship-owner, unlike a carrier by land, is not bound to seek the 
 consignee and deliver the goods to him nthis abode or' warehouse, 
 bub that ifc is the business of those who send goods by sea and 
 those to whom they are consigned, to go to the ship with them or 
 for them. In the present case, it was for the defendants, on the 
 arrival of the ship, to take receipt of the cargo at the ship's side. 
 The ship was bound to deliver it to them there "in full of all 
 " charges," that is, without making any charge for the labour of 
 taking it out of the hold, or perhaps for harbour dues, moorage or 
 other charges, but it was the duty of the defendants to receive it 
 at the ship's side, and whether they used a lighter or a wharf for 
 the purpose, the cost would fall on them, and I see no intention in 
 the contract that the ship should indemnify them for it. In com- 
 ing to this conclusion, I have not lost sight of the argument of 
 Mr. Davidson, to the effect that inasmuch as the plaintiffs had 
 hired the ship at so much per keel " in full of port charges, wharf - 
 " age and other dues," and as the charter-party was annexed to 
 the contract now in question, the two instruments ought to be 
 construed together, and the expression " in full of all charges" in 
 the one ought to be construed as in full of the wharfage and other 
 charges mentioned in the other. But I do not think that there is 
 any ground for construing the instruments together. They are 
 between different persons and relate to a different subject : and 
 the charter-party is referred to merely in relation to the stipulation 
 to discharge 45 tons daily. Besides, it may be a question whether 
 the term wharfage is not used in a different sense in the charter- 
 party, whether it does not refer to some charge analogous to moor- 
 age or anchorage, which might be charged in a ship for the 
 accommodation it obtained in being secured alongside a wharf, 
 .whether loaded or unloaded. 
 
 But if I am wrong in the view which I have taken, and the 
 charge for wharfage falls primarily on the ship, and is not a charge 
 on goods, the defendants must still fail in this action, for they 
 would have paid the wharfage of their own wrong : the Borneo 
 Dock Company would have had no lien on' the coal for it, and the 
 defendants could not, by paying it, constitute themselves the 
 creditors of the plaintiffs, or claim to set off the amount in paying 
 their debt to them. 
 
 For these reasons, the judgment must be for the plaintiffs. 
 
 Maxweix, 
 C.J, 
 1870. 
 
 Challis 
 
 '17, 
 CllAMJSII. 
 
230 
 
 CIVIL OASES. 
 
 Singapore, 
 
 Maxwell, 
 C.J, 
 1870- 
 
 &pril 8. 
 
 BUCHANAN v. K1RBY. 
 
 B, [the plaintiff,] a manufacturer of gunpowder in Scotland, sent certain large 
 quantities of gunpowder to M. & Co. of Singapore, factors, for sale. M. & Co on re- 
 ceipt of the poVdL, having no magazine to place it in placed the same ov board a 
 powder hulk called the " S. "belonging to K. [the defendant]: shortly atter, tne 
 ?' S " being found to require extensive repairs, all the powder on board her including 
 B.'s was transferred on board the "P. E, " another powder hulk belonging to one H ; 
 fn two or three days thereafter, the " P. E." having sprung a leak went down with all 
 powder on board, including B's. B. L the plaintiff] then sued K. [the defendant] for the 
 value of the powder lost to him, firstly [in four counts] for non-delivery of the powder 
 as on a contract of bailment, secondly, [5th count] for negligence, as a bailee of the 
 powder from the plaintiff, thirdly, [6th count] for negligence as bailee of the powder 
 belonging to the plaintiff, fourthly [amended 7th count,] for trover of the powder. 
 
 Meld the plaintiff could not maintain the action on either count, not on the first 
 four counts as there was no privity of contract between B, the_ plaintiff, and K the 
 defendaut,-not on the 5th count as K, the defendant, never received the powder from 
 B the plaintiff, and owed him no duty to safely keep the powder,— not on the srxth 
 count, as the owners and crew of the hulk " P. E.", in which the powder went down, 
 were not the servants and agents of K, the defendant,— and not on the Hh count, as 
 even if there was negligence on the part of K, the defendant, still there was no evi- 
 dence, on abova facts, of a conversion by him of the powder. 
 
 Action for damages for negligence, and wrongful conversion 
 of goods. The facts and points are fully set out in the judgment. 
 Atchison, for plaintiff. 
 A. M. Aitken, for defendant. 
 
 Cur. Adv. Vult. 
 
 On this day judgment was delivered by 
 
 Maxwell, C. J. — In stating the grounds of my. decision 
 in this case, it will be convenient to begin by stating the facts 
 as they appeared in evidence. The plaintiffs, manufacturers of 
 gunpowder in Scotland, sent a quantity of gunpowder for sale 
 on commission, to Messrs. Macdonald & Co., who are mer- 
 chants and factors in this place. That firm has no warehouse 
 or magazine for storing gunpowder ; and at the time whJh the 
 facts of this case occurred, there were but two places where that 
 commodity could be lawfully stored, vie., two hulks lying beyond 
 the limits of the harbour, the Statesman and the Princess Royal. 
 On the arrival of the plaintiffs' powder, towards the end of 1867, 
 Macdonald & Co., deposited it with the defendants, who are owners 
 of the powder hulk Statesman, for safe keeping in their hulk. 
 Early in February, 1868, it was discovered that the Statesman was 
 in need of repairs, and the defendants entered into an arrange- 
 ment with the owners of the Princess Royal for warehousing in 
 the latter vessel all the gunpowder in their keeping, for 250 
 dollars a month until the repairs should be completed. In pursu- 
 ance of this contract, the gunpowder stored in the Statesman, 
 including that belonging to the plaintiffs, was transhipped on 
 board the Princess Royal, on the 14th and 15th of February. On 
 the 16th, the Princess Royal sprang a leak and sank at her 
 moorings, whereby the plaintiffs' powder was destroyed or lost. 
 This misfortune, it is said [I need not express an opinion on the 
 point here], [a] was owing to the negligence of the servants of her 
 owners. 
 
 M c, Iu ,i- lie P rovious ?se arising out of this same occurrence, it was held, this 
 was so,— See Martin, Dyce # Co. v. Hodgson, ante page 180. 
 
STRAITS SETTLEMENTS. 
 
 23l 
 
 Maxwell, 
 C. J. 
 1870 
 
 KlBBT. 
 
 Under these circumstances, the plaintiffs have brought an 
 action against the owners of the hulk in which it was warehoused 
 by Macdonald & Co. The first four counts of the petition allege, 
 with unimportant variations, that the defendants contracted with Buchanan 
 the plaintiffs to keep safely and redeliver on request, for reward, 
 certain gunpowder. The 5th count alleges that the plaintiffs 
 delivered the powder to the defendants to be safely kept by them 
 for reward, and that the defendants kept it negligently, whereby it 
 was lost ; and the sixth, that the powder was received by the de- 
 fendants, as storekeepers, to be safely kept, and that it was lost 
 by their negligence. In the course of the hearing, the counsel of 
 the plaintiffs applied for leave to add a Count in trover ; and 
 assuming that the petition contains such a count, I have to con- 
 sider whether this action is maintainable on any of the counts. 
 
 To recover on any of the first four, it is necessary to prove a con- 
 tract between the plaintiffs and the defendanls for the keeping- of 
 the powder. It was contended on behalf of the former, thnt Mac- 
 donald & Co., in contracting with the defendants, contracted as 
 agents and on behalf of the plaintiffs, and that the plaintiffs were 
 consequently entitled to sue on the contract ; and unquestionably 
 if this were so, it would be no answer for the defendants to say 
 that they were ignorant of the existence of a principal, when they 
 dealt with Macdonald & Co. But was the contract really made 
 for the plaintiffs ? This does not follow simply from the fact that 
 Macdonald & Co., were their agents for the sale of their goods. 
 There was no evidence of any instructions from the plaintiffs to 
 Macdonald & Co., to enter into any such contract for them ; and 
 their relative rights and duties shew clearly that fiTacdonald &Co., 
 must have contracted for themselves and not as the agents of the 
 plaintiffs. Macdonald & Co., were factors, or commission mer- 
 chants ; the plaintiffs employed them, as such, to sell their powder 
 and they consigned it to them, and thus placed it in their 
 possession. Under those circumstances, whose duty was it to ware- 
 house the go8ds ? Clearly, it was the duty of Macdonald & Co. 
 Factors are responsible for the safe keeping of goods consigned to 
 them in the way of their business, and they are liable to their 
 employers for any negligence in the discharge of this duty. In 
 general, the duty is personal ; but rnasonable convenience, and 
 attention to the benefit of their employers, j ustify them in dele- 
 gating the custody of the goods to another, provided due care be 
 taken to select a proper depository. I'aley on Acj. 17. On the other 
 hand, factors have a special property in the goods entrusted to 
 them ; they have a lien on them, as long as the goods remain in 
 their possession, for their disbursements and liabilities incurred 
 for their emploj r ers. If Macdonald & Co., had placed the powder 
 in their own warehouses, it would not have been doubted that they 
 had done so in pursuance of this ordinary duty of their business, 
 — or that the powder was in their possession as factors, and not, 
 in Contemplation of law, in that of the plaintiffs, and that they had 
 a lien upon it ; and I see nothing in the case to lead to the 
 belief that in storing the powder in the hulk, they intended to 
 alter their own legal position towards, the plaintiffs, to part with. 
 
232 
 
 CIVIL GASES. 
 
 Maxwell, 
 C.J. 
 1870. 
 
 v. 
 
 KlBBT. 
 
 their own rights over the goods, or in short to do anything more 
 than delegate the custody of the goods entrusted to them, which 
 they could properly do in this case, since the law of the place 
 Buchanan made it imperative. Any provision, indeed, by or on behalf of the 
 plaintiffs for warehousing the goods, would imply that the pos- 
 session continued in themselves ; it would be inconsistent with the 
 possession being in Macdonald and Co., and inconsistent with their 
 lien for their charges and disbursements. In short, it would be 
 to hold that they were not factors in the transaction. But this is 
 plainly contrary to the fact. I think it clear, therefore, that the 
 contract of bailment made by Macdonald & Co., with the defendants, 
 was made for themselves personally and not on behalf of the plain- 
 tiffs, and it follows that the latter, being straiigers to it, cannot 
 sue upon it. The first four counts therefore cannot be sustained. 
 
 The fifth count is open to the same remarks ; the powder was 
 not delivered by the plaintiffs to the defendants, as alleged ; the 
 plaintiffs did not employ them as warehousemen ; they did not hold 
 the goods for the plaintiffs, but for Macdonald and Co., and they 
 had no duty to the plaintiffs to perform in respect of the safe custody 
 of the powder. The mere fact that the powder was the property 
 of the plaintiffs cannot affect the position of the defendants in 
 this respect ; per Parke B. in Tanner v. Scovell, 14 M. & W. 28. 
 
 Taking the sixth count as vesting the liability of the defendants 
 on an injury done to the plaintiffs' property through the negli- 
 gence of the defendants, irrespectively of any contract or bailment, 
 or of any duty arising therefrom, I think that it also must fail. 
 The defendants can be liable only for their own personal negli- 
 gence or for the negligence of their agents or servants in the course 
 of their employment. No personal negligence is imputed to them ; 
 but it is contended that they are liable for the negligence of the 
 servants of the owners of the Princess Royal ; and this depends on 
 whether those owners were their servants ; for if they were, it may 
 be assumed that the defendants would be liable for the negligence 
 of the persons employed by their servants in the course of the ser- 
 vice, just as the owner of a ship is liable for damage done to the 
 cargo, or to another ship through the negligence not only of his 
 master, but of the crew, [per Littledale, J., in Laugher v. fainter, 
 
 5 B. & C. 554] . But the liability does not extend to the acts 
 or defaults, not expressly ordered, of persons who are not in the 
 relation of servants. The person who hires a cab is not liable for 
 damage done without his orders, by the negligence of the driver 
 in the course of driving ; for the driver is not his servant. The 
 owner of a ferry who hires a steamboat and crew from another to 
 to carry on his business, is not liable for the damage done bv the 
 negligence of the crew, for they are not his servants, but the ser 
 vants of the owner of the steamboat ; see Lanaher v. Pointer 
 
 6 C. 547, Quarman v. Burnett, 6 M. & W. 499 Fowles 
 6 E. & B. 208, Dalyel v. Tyrer, 1 E. B. 4 E 899 
 clear that the relation between the defendants* and the owners of 
 the Princess Royal was not that of master and servant The latter 
 contracted simply to keep the powder for the former, but this con- 
 tract did not give the deiendants authority to direct the owners, of 
 
 . 5B. 
 
 v. Hider, 
 Here, it is 
 
STRAITS SETTLEMENTS. 
 
 233 
 
 the Princess Royal as to the manner of keeping it. They could not 
 dictate to them how they should stow it, or how many men they 
 should keep on board, or how often they should sound the pumps, 
 and so on. The owners of the Princess Royal were simply bailees 
 for hire ; and the defendants are therefore not liable for their neg- 
 ligence, or for that of their master and crew. 
 
 It remains to consider whether I ought to allow a count in 
 trover to be added to the petition, and this depends on whether 
 such a count could be sustained by the facts of the case ; for if it 
 could, I should be bound, for the purpose of carrying out substan- 
 tial justice, to allow the addition to be made, upon proper terms. 
 But it seems to me that such a count would fail, because there 
 would be no evidence of conversion by the defendants. In trover 
 the plaintiff complains that his goods having somehow come into 
 the possession of the defendant, the latter has converted them to 
 his own use and deprived the plaintiff of them. It is not necessary, 
 indeed, to prove an acquisition of the goods by the defendant for 
 his benefit, for a wilful destruction of them by him would be a con- 
 version, Key worth v. Hill, 3 B. & A. 687 ; but there is no con- 
 version unless there be a repudiation of the right of the owner, or 
 the exercise of a dominion over the goods inconsistent with that 
 right; Heald v. Garey, 11 C. B. 977, Foulkes v. Willoughby, 8 M. 
 & W. 540. There was neither the one nor the other in trans- 
 ferring the powder to the Princess Royal. In doing this, the de- 
 fendants had no other motive than to do their best for its protec- 
 tion and safe custody ; and if it was an act of negligence on their 
 part to take that step, it would nevertheless be no evidence of a 
 conversion. And the loss of the powder by the sinking of the 
 Princess Royal was no conversion of it by the defendants. " There 
 " is no doubt," says Mr. Justice Maule in Heald v. Carey, " that a 
 " negligent dealing with goods by a bailee," and the goods were 
 lawfully in the possession of the defendants as bailees, " is not a 
 ", conversion ; there is no doubt that an act consequent on the neg- 
 " ligence of the bailee, in which he did not participate, would not 
 " amount to a conversion by him." In Foulkes v. Willoughby, Lord 
 Abinger says : " In order to constitute a conversion, it is necessary 
 " either that the party taking the goods should intend some use to 
 " be made of them, by himself or by those for whom he acts, or that, 
 " owing to his act, the goods are destroyed and consumed to the 
 " prejudice of the lawful owner." Here, the defendants did not in- 
 tend the former, and they were strangers to the negligence which 
 caused the destruction of the powder. 
 
 The conclusion, then, to which I come,, is that the plaintiffs 
 cannot make the defendants responsible to them for the loss of the 
 powder, and that they misconceived their remedy in suing them. 
 t The defendants did not contract with them to keep their property 
 ' safely ; they did not owe them any duty to keep it ; they did not 
 either personally, or through the agency of any persons for whose 
 acts they are responsible, injure or destroy it, and they did not 
 claim or exercise any dominion over it inconsistent with the rights 
 of the plaintiffs. There mustj therefore, be judgment for the 
 defendants. 
 
 Maxwell, 
 C.J. 
 1870. 
 
 Buchanan 
 
 v. 
 
 Kikbt. 
 
234 CIVIL CASES. 
 
 TUNKU MUDA CHOOT LATIFF v. LIM SEANG. 
 
 PirwANfl A stranger to a deed, cannot under the deed, seize and sell any thing mortgaged 
 
 the deed . f he do ^ he . g a trespasserj eyeu though the monies due on the deed 
 
 Hackett J. be due to the finn in whioh the Pendant was a partner, and though he sold the vessel 
 1870. ' ' an( l applied tne proceeds to account of such debt. 
 
 But under the above circumstances, the Court will only give nominal damages, a s 
 
 December 19. the plaintiff derived a benefit by the defendant appropriating the proceeds to account of 
 
 the debt due on the deed. 
 
 Query. Whether, if the defendant was a party to the deed, and the deed con- 
 tained no power of sale, he could avail himself of the deed, without pleading it specially, 
 either on equitable grounds or otherwise ? 
 
 This was an action to recover possession of a vessel called the 
 Sree Mahmoo together with all her tackle, apparel, &c, or $3,000, 
 her value, and $1,200 as damages for her detention. 
 
 The defendant pleaded not guilty and not possessed. 
 
 E. C. Woods, junr., [with whom was C. W. Bodyk,~] |or the plain- 
 tiff contended that the trover and conversion was clearly made out. 
 That the agreement purporting to be a mortgage and on which the 
 defendant relied, could afford no answer as it contained no power 
 of sale ; and moreover, it was a deed made between the plaintiff 
 and Lim Hean and Lim Ho, and not with the defendant. The 
 defendant at the time, he sold the vessel, was not the Executor 
 or Administrator of either of these persons ; he was a mere stranger 
 to the deed, and could not under it seize and sell the vessel. 
 
 Bond, for the defendant, contended that as the defendant was 
 a partner with Lim Hean and Lim Ho under the name or firm of 
 " Seng Huat," and the deed being made with the last named 
 persons, as partners of that firm, the defendant though not named, 
 could act under it, and seize and sell the vessel. The omission of. 
 the power of sale in the deed would not make the defendant a 
 trespasser. Maxwell v. Chettyapah Chetty [a] ; Fisher on Mtges., 
 776 ; Act XXVIII. of 1866, Sec. 6. 
 
 Woods in reply, contended that the defendant being only a 
 partner, would not iii any way justify his conduct, as he was a 
 stranger, and a stranger cannot sue on a deed, and if he could not 
 do this, no more could he under the deed, seize and sell the vessel. 
 
 Hackett, J., held that the defendant, being a stranger to the 
 deed, could not act under it, and that his being a partner with 
 Lim Hean and Lim Ho, the two persons named in the deed, could 
 in no way help him ; but as the defendant was under the impres- 
 sion that he had a right to seize and sell the vessel, and apply the 
 proceeds to account of the monies due on the deed, and had also 
 fulfilled such intention, by which the defendant derived a benefit, 
 he would only give nominal damages. [6] 
 
 Judgment for plaintiff with one cent damages, and costs, [c] 
 
 [a] See ante page 201, 
 
 [ 6] See Edmondson v, Niittall, 34 L.J. C.P. [#.$.] 102. 
 
 [c] Sec Urn, Cheong $ ors. v. Tunlcu Muda Ghoot Latiff * on. riost, t> 235 
 and also Petne v. Lawxmt, Car. & M. 93 ; Bradford v. Belfieldtk Sim 264 • 
 iFewjwend v. Wilson, I. B. & Adl. 608 ; Prideaux m Couvy, Vol, L, p. 319 * ' 
 
STRAITS SETTLEMENTS. 235 
 
 LIM CHEONG, LIM SEANG & OES. v. TUNKU MUDA 
 CHOOT LATIFF & OES. 
 
 A stranger to a deed cannot maintain an action on it, though he be a partner of the Pbnang. 
 
 persons with whom the deed was entered, and the deed was intended to have been 
 
 entered with the firm in which they were partners. The legal representatives of such Hackett J 
 persons, are the proper persons to bring the action. jq»q ' 
 
 This was an action to recover the sum of $2,101.24 for prin- December 19. 
 cipal and interest due on a deed and on the common money 
 counts. The deed was made by the defendants, with one Lim 
 *Hean and Lim Ho, the partners of the plaintiffs. 
 
 The defendants demurred to the declaration, the marginal 
 note of the demurrer being as follows : " A matter of law in- 
 " tended to be argued is, that the plaintiffs in this action have no 
 " right to sue the defendants in this action, on the alleged deed 
 " set forth in the said first count of the plaintiff's declaration." 
 
 The plaintiffs joined in demurrer. 
 
 Ej C. Woods, junr., [with whom was C. W. Rodyk,] in support of 
 the demurrer, contended that the plaintiffs being strangers to the 
 deed could not sue on it. 1 Chitty's Pleadings, pp. 3 and 4 ; 
 Chilly on Contracts, p. 54 ; Dixon on Partnership, 239, 240 ; Green 
 v. Home, 1 Salk. 197 ; Cro. Jac. 506 ; B. & L. [3rd Ed.] 230 ; 
 Jell v. Douglas, 4 B. & Aid. 374; Metcalfes v. By croft, 6 M. & 
 S. 75. 
 
 Bond contra, contended that the deed being made with Lim 
 Hean and Lim Ho, the partners of the plaintiffs for the firm, the 
 latter the surviving partners, must bring the action ; 2 Lindley 
 on Partnership, 1034 ; B. & L. 134, note ; Jell v. Douglas, supra. 
 Their legal representatives could not do so ; 1 Lindley on Partner- 
 ship, 492 ; Mathin v. Crompa, 1 Ld. Eaymond, 340 ; Robson v. 
 Drwmmond, 2 B. & Aid. 303. 
 
 Woods in reply contended that the deed was not made with 
 the plaintiff's firm, but simply with Lim Hean and Lim Ho, and 
 that the words " of the firm of Seng Huat," were merely descrip- 
 tive of these two persons, and the action must be brought by their 
 legal representatives. 
 
 Sackett, J. According to the words of this deed, the plaintiffs 
 the surviving partners, cannot sue on it, and I allow the demurrer 
 with costs : but as an amendment will not prej udice the merits, 
 I allow the plaintiffs to amend their declaration by bringing, the 
 action in the names of the legal representatives of Lim Hean and 
 Lim Ho. 
 
 Demurrer allowed with costs, with leave to plaintiffs to 
 amend, [a] 
 
 [a] Vide Tunku Muda Choot Latiff v. Lim Seang, ante p. 234, 
 
1871. 
 February 28. 
 
 236 CIVIL CASES. 
 
 LIM CHYE PEOW v. WEE BOON TEK. 
 
 The Supreme Court has no jurisdiction either on its Civil or Ecclesiastical side, to 
 Penans. entertain a suit for restitution of conjugal rights among non-chnstians. 
 
 The 23rd Section of the Courts Ordinance V. of 1868, only gives the jurisdiction 
 
 Hackett, old Court of j udioature ha d under the Charter of 1855, which was the jurisdiction 
 
 A iJ?i' of the Ecclesiastical Court at home, and which was confined to Christian marriages. 
 
 The nature and facts of this case sufficiently appear from the 
 judgment. . 
 
 Bond, for the defendant. The parties are Chinese. The 
 Chinese are allowed polygamy, and the Court cannot therefore en- 
 tertain a suit for restitution of conjugal rights. Hyde v. Hyde * 
 and Woodmansee, 1 L. E. Proh. & Divorce, p. 130 ; Ardaseer Cur- 
 setjee v. Perozeboye, 10 Moore P. C. 375. 
 
 C. W. Rodyk, for the plaintiff. The cases have been brought 
 on the Civil side of the Court, and such suits have often been en- 
 tertained. Toh Lye v. Keng Neoh, Dec. 1866 [a] ; Mahomed Has- 
 him v. Katijah Bee [a] ; Reg. v. Loon [a] ; Ex-parte Sandilands, 21 
 L. J. Q. B. 342. The cases cited by the other side were brought 
 before the Ecclesiastical side of the Court. The Supreme Court 
 Ordinance V. of 1868, s. 23, clearly gives jurisdiction. 
 
 Cur. Adv. Vult. 
 
 10th January, 1872. Hackett, ag. C. J. — This is a suit for 
 restitution of conjugal rights, brought not on the Ecclesiastical, 
 but on the civil side of this Courb. 
 
 The petition states that the plaintiff and the defendant are 
 both Chinese. That on the 25th of July, 1871, the plaintiff was 
 lawfully married to the defendant according to the rites and cere- 
 monies prescribed by the Chinese law and faith, and that the mar- 
 riage was duly consummated. That on the 15th of August, the de- 
 fendant left the plaintiff and went to live apart from her and that he 
 refuses although frequently requested, to return to her. That by 
 the Chinese law the plaintiff is entitled to have conjugal rights 
 rendered to her by the defendant. The petition goes on to pray 
 that the defendant may be compelled to return to the plaintiff 
 and to render her conjugal rights. 
 
 The defendant has pleaded in bar denying the jurisdiction of 
 the Court, and it therefore becomes necessary to inquire what the 
 jurisdiction of the Court in matrimonial suits is. 
 
 The jurisdiction of this Court is defined by the Supreme Court 
 Ordinance of 1868, which repealed the Letters Patent reconstitut- 
 ing the old Court of Judicature. In the 23rd section of that 
 Ordinance we find the following provision : " " The Court shall have 
 " and exercise the jurisdiction vested under the Letters Patent of 
 " August 1855, in the Court of Judicature of Prince of Wales' 
 " Island, Singapore and Malacca, in matrimonial cases so far as 
 " the several religions, manners and customs of the inhabitants of 
 " this Colony will admit." 
 
 The jurisdiction of the Court, therefore, in matrimonial causes, 
 is precisely the same as that vested in the Court/ of Judicature by 
 
 [a] Not reported. 
 
STRAITS SETTLEMENTS. 
 
 23* 
 
 the Letters Patent of 1855. Now the only provision in that Char- 
 ter which can be construed to confer matrimonial jurisdiction, is 
 that which ordains that the Court " shall have and exercise juris- 
 " diction as an Ecclesiastical Court, so far as the several religions, 
 " manners and customs of the inhabitants of the Settlement and 
 " places will admit. There is not a word in the Charter about the 
 matrimonial causes eo nomine, and the jurisdiction in those cases 
 was merely one of those classes of cases which the Ecclesiastical 
 Court has always dealt with. 
 
 The jurisdiction in matrimonial causes therefore given by the 
 Supreme Court Ordinance is simply the jurisdiction which was 
 exercised by the Court of Judicature as an Ecclesiastical Court, 
 and the contention of the defendant is, that this suit having been 
 brought on the Civil side, the Court has no jurisdiction, inasmuch 
 as all suits of a matrimonial nature should properly be brought on 
 the Ecclesiastical side of the Court. 
 
 The principle involved in the question thus raised is, of some 
 importance inasmuch as if suitors are declared incompetent to 
 bring suits of a similar description on the Civil side of the Court, 
 a very large proportion of the inhabitants of these Settlements 
 will be deprived of those remedies which the law gives to husbands 
 and wives professing the Christian religion, wbo sue for redress 
 in the proper Matrimonial Court. The case of Ardaseer Cursetjee v. 
 Perozeboye, [10 Moo. P. C. Ca. 375J decided that the Supreme Court 
 of Bombay on its Ecclesiastical side [and it must be remarked that 
 the words of the Bombay Charter of Justice conferring Ecclesias- 
 tical jurisdiction are very similar to those of the Penang Charter] 
 had no jurisdiction on its Ecclesiastical side to entertain a suit, by 
 a Parsee wife against a Par see husband, for restitution of conjugal 
 rights, as there existed such a difference between the duties and obli- 
 gations of a matrimonial union among Parsees from that of Christ- 
 ians, that the Court if it made a decree had no means of enforcing 
 it, except according to the principles governing the matrimonial 
 lawin Doctors Commons, which were in such a case incompatible with 
 the laws and customs of Parsees. The effect of this decision was to 
 exclude all persons except Christians from their right to bring 
 matrimonial suits in the Ecclesiastical Court, and as the only ma- 
 trimonial jurisdiction expressly given to the Supreme Court is, as 
 I have shewn, that exercised as an Ecclesiastical Court, it becomes 
 necessary to consider whether under the general powers conferred 
 upon it, the Court on its Civil side has power to entertain such a suit. 
 The general powers of the Court are defined in the 23rd section 
 of the Supreme Court Ordinance as follows : " The Court shall 
 " have such jurisdiction and authority as the Court of Queen's 
 " Bench and the Justices thereof, and also as the Court of Chancery 
 " and the Courts of Common Pleas and Exchequer respectively, and 
 " the several Judges, Justices and Barons thereof respectively have 
 " and may lawfully exercise in England in all Civil and Criminal 
 " actions." 
 
 The Court then possesses the powers of the Superior Courts 
 in England and cannot exercise any jurisdiction which would 
 not be properly exerciseable by those Courts. In deciding 
 
 Hackett, 
 
 Ag. C. J. 
 
 1871. 
 
 Lim Chte 
 Pbow 
 
 V. 
 
 Wee Boon 
 Tek. 
 
238 CIVIL OASES. 
 
 Hackmm, whether this suit is properly brought, it is necessary therefore, 
 A( i87i J ' to refer to the law of En g land and to tnose institutions in which 
 
 ' our Supreme Court has been modelled, in order to ascertain what 
 
 Lim Chtb are the proper limits of the jurisdiction of the civil, and ecclesias- 
 Vx ° w tical tribunals respectively, and how far this Court is bound by 
 Wee Boon those limits as established by precedent and authority. 
 
 Tek. Now it cannot be denied that the present suit is novel, I can- 
 
 not say that it is primce impressionis as there are some petitions 
 similar to the present on the files of the Court, but this is the first 
 case in which as far as I am aware the question of the jurisdic- 
 tion of the Court has been formally raised. In England it is per- 
 haps needless to say that no such suit as the present has ever been 
 brought. It is well known that from the earliest times in the 
 history of our law, the Ecclesiastical Court assumed exclusive cog- 
 nizance of certain matrimonial questions and especially of those 
 in which either a divorce or rendering of conjugal rights was 
 sought. The jurisdiction of the Spiritual Judges to decide upon 
 the delicate questions arising from the relations between husband 
 and wife was never disputed by the Temporal Judges, and re- 
 mained untouched by the Parliament. It is alleged as a reason 
 for this, that as marriage was admitted by the religion of the 
 country to be a sacrament, the jurisdiction of the Ecclesiastical 
 tribunals, could not well be disputed. But I think a sufficient 
 reason may be found in the consideration that in these matrimonial 
 matters which were considered to fall peculiarly within the cogni- 
 zance of the Spiritual Court the ordinary tribunals of the country 
 would have been incompetent to afford a complete remedy. The 
 Common Law Judge indeed might have forcibly compelled the 
 delinquent husband or wife to return to the conjugal abode, 
 but how could he possibly have pretended to enforce the rendering 
 of the conjugalia obsequia which were sought for by the complain- 
 ant. The Common Law, therefore, feeling itself powerless to deal 
 with these matters, wisely withdrew, and decided to leave them to 
 be dealt with by the Judges whose peculiar province it was to 
 settle matrimonial disputes. The same authority which had united 
 the spouses together was found to be the most fitting tribunal 
 to appeal to in matrimonial disputes. The Ecclesiastical Court 
 could act upon the guilty or rebellious spouse by monition and in 
 case of need, by excommunication. It could appeal to the con- 
 science which in the delicate relation of husband and wife is the 
 only forum where complete reparation can be made. The Com- 
 mon Law Courts might indeed force the reluctant spouse back to 
 his home but once there it must leave him. But the object of the 
 Spiritual Court was to restore peace to the household, and to 
 engage spouses to render to each other that mutual love and affec- 
 tion which they had vowed at the altar. 
 
 Gradually, no doubt the proceedings of the Ecclesiastical 
 Courts ceased to be characterized by that paternal solicitude for 
 the welfare of those who sought its aid, which at first rendered 
 them the fittest tribunals for the settlement of matrimonial dis- 
 putes. In process of time they became in effect mere lay tribunals 
 precided over by laymen, and the spiritual punishments, which ori- 
 
STEAMS SETTLEMENTS. 
 
 239 
 
 ginally they were able to invoke in aid of their decrees, ceased to 
 have any' terrors for their objects. The term restitution of con- 
 jugal rights came to mean nothing more than a return to cohabit- 
 ation in a dwelling in the same house. But notwithstanding this 
 alteration of their character, the Ecclesiastical Courts continued 
 to preserve the exclusive cognizance of all suits of a matrimonial 
 nature which they had held from the earliest times, and the ordi- 
 nary tribunals made no attempt to interfere with them in the 
 exercise of this jurisdiction. 
 
 How far at Common Law the husband had a right to the cus- 
 tody of his wife seems to have been doubted in some of the earlier 
 cases. See Eex v. Mary Mead, 1 Bun. 542, Rex v. Lister, 1 Str. 
 478. But in ex-parte Sandilands, 21 L. J. Q. B. 342, the Court of 
 Q. B. refused an application on the part of the husband for a writ 
 of habeas corpus to bring up the body of his wife, it appearing 
 upon the affidavit, that she was staying with her son against whom 
 the application was made, by her own consent, and that no coercion 
 or imprisonment had been used towards her. Lprd Campbell, C. J., 
 on that occasion said : — " If this writ were to go, and the lady 
 " were to be produced in Court, she would be at liberty to follow 
 "her inclination, and to return to her son's protection, and we 
 " could not make an order upon her to return to her husband. The 
 " constitution of this country has wisely pointed out a tribunal 
 "where such a subject may be dealt with; and if the applicant 
 ".shews that his wife has no good cause for living apart from him, 
 " there will be a decree in the Ecclesiastical Court that she shall 
 " return to him, and reside in his house, bed and board being re- 
 " stored. But here it is clear on the affidavits that the lady is 
 " under no restraint. The case of infants is totally different, for 
 "there the father has a right to the custody of his child; and if 
 " he is deprived of that right, and the child be of tender years, 
 " the Court will order the child to be restored to his father ; but 
 " the Court has no power to restore a wife to her husband, and a 
 " writ of habeas corpus in this case, if granted, would be wholly 
 " nugatory. It is enough, however, to say that the Court has no 
 "power to grant the writ." 
 
 Assuming, therefore, as I must assume, that this Court has 
 merely the ordinary jurisdiction of the Superior Courts in England, 
 it follows from what I have said that as a general rule, a suit for 
 restitution of conjugal rights does not lie on the Civil side of the 
 Court. The petitioner, however, in the present case rests her 
 claim on the circumstance that being a Chinese she cannot sue in 
 the Ecclesiastical Court, and that her only remedy is on the Civil 
 side of the Court. Ana it is urged that although suits of this 
 nature have always in England been left to the determination of 
 the Ecclesiastical tribunals, still the powers of the ordinary Courts 
 of the country are sufficiently comprehensive and elastic, to autho- 
 rize them to interfere whenever a fitting occasion arises to call for 
 their intervention. 
 
 Now it appears to me that this argument is founded on purely 
 speculative considerations and that it involves a pure assumption. 
 It is difficult now to say positively, why the Common Law Courts 
 
 Hacket*, 
 
 Ag. C. J. 
 
 1871. 
 
 Lim Chyb 
 
 Peow 
 
 v. 
 
 Wee Boon 
 Tek. 
 
240 
 
 CIVIL OASES. 
 
 Hackett, 
 
 Ao. o. J. 
 
 1871. 
 
 Lim Chte 
 
 Peow 
 
 v. 
 
 Wee Boon 
 Tek. 
 
 refused to interpose their authority to compel the cohabitation of 
 husband and wife, and in many other questions of a matrimonial 
 nature, but it seems to me just as reasonable to suppose that the 
 abstention arose from the feeling that these matters were beyond 
 the proper scope of their powers, and that they could only be pro- 
 perly dealt with by tribunals which could act upon the consciences 
 of suitors, as that it was solely owing to the circumstance of mar- 
 riage being deemed a sacrament. I do not therefore feel myself 
 justified, from any speculation as to what might possibly have 
 been the policy of the law in fixing the boundaries of the juris- 
 diction of the various tribunals of the country, or from any opinion 
 I may entertain as to the expansiveness and elasticity of the com- 
 mon law in extending it beyond those limits which precedent and 
 authority have assigned to it. 
 
 As Baron Parke observed in Egerton v. Broivnlaw, 4 H. L. C. 
 123, "it is the province of the statesmen and not the lawyer, to 
 " discuss, and of the Legislature to determine, what is best for 
 " the public good and to provide for it by proper enactments. It 
 " is the province of the judge to expound the law only : the writ- 
 " ten from the Statutes ; the unwritten or common law from the 
 " decision of our predecessors, and of our existing Courts upon 
 " the principles clearly to be deduced from thein by sound reason 
 " and just inference, and not to speculate what in his opinion is 
 " best for the community." 
 
 It is easy to illustrate the difficulties which might arise from 
 admitting the principle that a judge is authorized, when an injury 
 has been done, for which the law gives no remedy, to enlarge his 
 jurisdiction, to meet the exigencies of the case. I will suppose the 
 case of there being no Court here possessing Admiralty Jurisdic- 
 tion, a supposition which might at any time be realized. Would 
 it be competent to the Judge on the ground that there was no other 
 tribunal empowered to deal with Admiralty cases, to assume to 
 himself on the plea of necessity, Admiralty jurisdiction? This, I 
 think, could scarcely be contended for. It is clear that every Court 
 is bound to exercise its jurisdiction within the limits imposed upon 
 it by law, and that those limits cannot be exceeded except by the 
 authority of the Legislature. 
 
 I am aware that Sir Benson Maxwell considered himself 
 bound by the suggestion which was made by Dr. Lushington, in 
 the case of Ardaseer Cursetjee v. Perozeboy, when that learned Judge 
 said : " We should 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 amongst them [the Parsees] ;" and 
 he goes on, "such remedies we conceive that the Supreme Court, 
 " on the Civil side, might administer, or at least remedies as nearly 
 " approaching to them as circumstances would admit." 
 
 But it must be remembered that in using this language, Dr. 
 Lushington is speaking of the Courts of India. Now the Courts 
 of India have special powers conferred upon them with reference 
 to native laws which this Court does not possess. As Doctor Lush- 
 ington observes : " The Civil Courts of India can bend their ad- 
 " ministration of justice to the laws of the various suitors who seek 
 
STRAITS SETTLEMENTS. 
 
 241 
 
 " their aid. They can administer Mahomedan law to Mahomed- 
 " ans, Hindoo law to Hindoos." No such powers have been 
 conferred upon this Court, and the omission from the Penang Char- 
 ter of the clauses of the Indian Charters, authorizing the judges to 
 decide in certain matters according to Hindoo or Mahometan law, 
 is remarkable and significant. The maxim evpressio unius, exclusio 
 alterius seems to me to apply, especially when we consider that 
 both the Indian Charters and our own emanated from the same 
 department of the State. I am, therefore, of opinion that Dr. 
 Lushington's suggestion however just it may be as applied to the 
 Courts of India, is quite inapplicable to a Court constituted like 
 our Supreme Court. 
 
 But it may be said the parties are in the position of foreigners, 
 and the aid of the Court is sought in a matter arising out of the 
 contract of marriage which is juris gentiwm, and they are entitled 
 to relief on the ground of comity. It is true, as Lord Stowell 
 observed of marriage, that there is a, jus gentium upon this matter, 
 a comity which treats with tenderness, or at least with toleration, 
 the opinion and usages of a distinct people in this transaction. In 
 this Court the marriages of Chinese, Hindoos and Mahomedans 
 have always been recognized, if contracted, in accordance witb 
 their respective laws. In questions as to the legitimacy of offspring 
 and for other purposes, these unions ought, no doubt, to be upheld. 
 But a totally different question seems to me to be raised, when the, 
 petitioner asks the Court to exercise its jurisdiction to meet the 
 case of an injury which she alleges she has sustained. 
 
 The observation of Justice Story, upon a similar question, 
 seems to me, deserving of citation : " It is universally admitted 
 "and established," says this learned Judge "that the forms of 
 " remedies, the modes of proceeding and the execution of 
 " judgments, are to be regulated solely and exclusively by the laws 
 " of the place where the action is instituted ; or as the civilians 
 " uniformly express it, according to the lax fori. The reasons for 
 " this doctrine are so obvious, that they scarcely require any illus- 
 " tration, each nation is at liberty to adopt such forms and such 
 " a course of proceeding as best compats with its convenience and 
 "interests, and the interests of its own subjects, for whom itslaw3 
 " are particularly designed. All that any nation can, therefore, be 
 "justly required to do, is to open its own tribunals to foreigners, 
 " in the same manner and to the same extent, as they are open to 
 " its own subjects, and to give them the same redress as to rights 
 " and wrongs which it deems fit to acknowledge in its own Muni- 
 "cipal Code for natives and residents." [Story Gonfl. of Laws, 
 s.s. 556, 557.] 
 
 On the whole, I am opinion that the suit for restitution of 
 conjugal rights is, by the law of the Colony, and by the constitu- 
 tion of the Supreme Court, a remedy peculiar to the Ecclesiastical 
 side of the Court, and that the Judge, on the Civil side, has no 
 jurisdiction in such .a suit. 
 
 Plea allowed. Suit dismissed, [a] 
 
 Haokett, 
 
 Aq. C. J. 
 
 1871. 
 
 Lim Chyb 
 Peow 
 
 V. 
 
 Wee Boon 
 Tek. 
 
 [a] Vide Shaik Madar v, Mharrah, March, 5, 1875, — vnfri. 
 
242 CIVIL OASES. 
 
 SHAIK EBRAHIM BIN ALLEE v. COHEN. 
 
 Penang. A promissory note [in Malay charaoters] payable to a person, or the agent of 
 
 such person, is to be taken as payable to such person or bearer, and is negotiable ana 
 
 Hackett, Jt can be pleaded as ^ set off. 
 1871. 
 M ""Too This was an action on the common indebitatus counts- The 
 
 _ defendant pleaded three pleas. 1st, never indebted. 2nd, accord 
 and satisfaction. 3rd., set off. At the trial, it appeared that the 
 set off was on a promissory note in the Malayan language, made 
 by the plaintiff to one Tuan Shaik Awady Ambarrah Beernadahee, 
 who endorsed the same to the defendant. The note was not pay- 
 able to " order " or to " bearer," but simply to "Tuan Shaik Awady 
 " or the agent of the said Tuan Shaik Awady." . 
 
 C. W. Bodyh, on behalf of the plaintiff, admitted the note to 
 have been made as stated, but contended that it was not negotiable, 
 as it was not payable to " order " or " bearer." Byles on Bills of 
 Exchange, 62, 113 & 114, and if not negotiable, the defendant 
 could not maintain an action on it against the plaintiff, and if_ he 
 could not maintain such an action, he could not set it off against 
 the plaintiff's claim. 
 
 R. C. Woods, junr., for the defendant, coutended that the words 
 " or the agent of the said Tuan Shaik Awady" was equivalent to 
 " bearer," and if payable to bearer, it was negotiable,_ and the 
 defendant could maintain an action on it against the plaintiff, and 
 Consequently set it off against the plaintiff's claim. 
 
 Hackett, J. I think, as the parties were natives and could not 
 express themselves, though they intended the note to . be negotia- 
 ble, that the words " or the agent of the said Tuan Shaik Awady " 
 must be taken to be equivalent at least to " bearer," and the note 
 on the whole negotiable. 
 
 Rodyh on this, asked for a non-suit which was accordingly 
 
 entered. 
 
 * 
 
 Plaintiff non-suited, [a] 
 
 Xj^k MAHOMED JOONOOS v. SAIBOO. 
 
 PiPenang Judgment in an action of trespass, where the title to the freehold, has been put in 
 
 S\ ' tissue, and decided on, is an estoppel to a subsequent action of ejectment for the same 
 
 "J 
 
 IIackett J*- ' an( ^' provided there has been a trial and verdict in such first action ; but where the 
 1871 ' ' judgment in such action of trespass is only by consent, this operates no more than a 
 
 ;_" judgment by default, and is no estoppel. 
 
 Y* June 13. The Statute 8 & 9 Vict., c. 106, does not apply to this Colony. 
 
 Jr " " f Twelve years uninterrupted possession is, by the Limitation Act XIV. of 1859 , 
 
 J sufficient to maintain an ejectment. The above named Limitation Act is retro- 
 / spective. 
 
 This was an action in ejectment. The locus in quo had been 
 conveyed originally to three persons and their heirs, without any 
 further words to shew how they took, whether as tenants in com- 
 mon or not. Two of the three, made an agreement with the plaintiff 
 to sell their shares to him. The defendant claimed through the 
 last survivor of the three persons first mentioned. 
 
 [a] See also Broom's Commentaries, p. 443, and Yates v, Sherrington. 11 M. & 
 "W. 42 ; ». «, in error 12 M, & W, 855, 
 
STRAITS SETTLEMENTS. 
 
 243 
 
 Mahomed 
 Joonoos 
 
 v. 
 Saiboo. 
 
 The plaintiff having brought this action, the defendant inter HA0 ™J T, J 
 alia pleaded a plea of a judgment recovered by him against the ' '_ 
 
 present plaintiff, in an action of trespass, concerning the very same 
 land in dispute now, and prayed judgment if the plaintiff could 
 maintain this action. 
 
 The plaintiff joined issue. 
 
 R. C. Woods, jr., for the plaintiff. We admit the judgment men- 
 tioned in the plea, but submit that the plaintiff is not estopped 
 thereby, as the judgment there, was in an action of trespass, 
 whereas the present one is in ejectment, and judgment in an action 
 of trespass cannot possibly be an estoppel to an action of ejectment 
 even though the same land be in dispute in both actions. 
 
 C. W. Rodyk [Ross with him], for defendant. I submit that 
 the judgment in the former action which was bj consent, is a 
 complete bar to this action. Doe v. Wellsman, 18 L. J. Ex. [N. 8.~\ 
 277. The judgment in that case was delivered by C. B. Pollock, 
 he there says : " on the argument this point was amongst others, 
 " fully argued. We think it unnecessary to give an opinion on 
 " any of the other objections, being satisfied that this ought to 
 " prevail. Assuming that there was an estoppel, and that it could 
 " be replied to such a plea [as to which we say nothing] , it was 
 "an estoppel, only to the possessory title of John Doe, &c." 
 
 [Hackett, J. That is under a query. The Court there does 
 not say that it is an estoppel, but " assuming that there was an 
 "estoppel."] 
 
 That case was decided as the estoppel only, applied to part of 
 the time and was consequently bad,- the inference therefore from it, 
 would be that if the es'toppel extended to the whole time, it would 
 be a complete bar. 
 
 [Hackett, J. Not at all.] 
 
 The case cf Wittaker v. Jackson, L. J. Ex. [iV. <§.] 181, also 
 shews that the judgment is a complete bar; and the case of 
 Kitchen v. Campbell, 8* Wils. 304, is to the same effect, but it was 
 a ca3e relating to personal property. 
 
 Woods in reply. The cases cited are inapplicable. It is clear 
 the judgment is no bar. 
 
 June 17. Boss, for the defendant. The question here is 
 whether the plaintiff is estopped by the former judgment in an 
 action of trespass, the land in both cases, being the very same. In 
 the notes to the Duchess of Kingston's case, [2. Sm. L. C. 702], it 
 is stated : " one of the chief authorities as to the effects of a pre- 
 " vious verdict in an action inter partes is Outram v. Morewood, 3 
 " East, 346, in which the principles and authorities on which this 
 " part of the law of estoppel depends, are stated with great force, 
 *' learning and clearness by the L. C. J." It then sets "out the 
 pleadings, and goes on : "the question," said Ellenborough, C. J., 
 " is whether the defendants, the husband and wife, are estopped 
 " by this verdict and judgment from averring, contrary to the title 
 " there found against the wife, that the coal mines now in question 
 " are parcel of the coal mines bargained and sold by the indenture 
 " abovementioned. The operation and effect of this finding, if it 
 " operates at all as a conclusive bar, must be by way of estoppel," 
 
01V1L OASES. 
 
 HaOkett, J. 
 1871. 
 
 Mahomed 
 Joonoog 
 
 v. 
 
 Saiboo. 
 
 and further on he says : "the question then is, is the wife herself 
 " estopped by this former finding to aver to the contrary. In 
 Brook, tit. Estoppels, p. 15 [citing 33 H. C. 6, 7, 19, 50; and 
 see also Bro. Estate, 158, 2 E. 4, 17.], it is said to be "agreed 
 " that all the records in which the freehold comes in debate shall 
 " be estopped with the land, and run with the land, so that a man 
 " may plead this as party, or as heir, as privy, or by que estate. 
 " But it is said, that by the ' freehold coming in debate,' must be 
 " meant a question respecting the same, in a suit in which the 
 " freehold is immediately recoverable as in an assize or writ of 
 "entry. I answer that a recovery in any one suit upon issue 
 " joined upon matter of title, is equally conclusive upon the sub- 
 " ject matter of such title, and that a finding upon title in trespass 
 " not only operates as a bar to the future recovery of damages for 
 " a trespass founded on the same injury, but also operates by way 
 " of estoppel to any action for an injury to the same supposed 
 "right of possession." This case I submit, is exactly like the 
 present one. 
 
 [Hackett, J. "Was the title in question in the former suit ? 
 [former pleadings read] . The boundaries mentioned, in both de- 
 clarations are exactly the same and the pleas put the title in issue]. 
 
 It is true trespass docs not depend on title, but on possession, 
 but in the former suit, the title was directly put in issue. In Sm. 
 L. C, p. 704, it is stated : " see further Eastrnure v. Lawes, 5 
 " Bing. N. C. 450, from which case it appears, as was indeed 
 "always clear on principle, that a verdict negativing the right 
 " of a defendant stated in his plea, estops him in a subsequent 
 " action from asserting that right as plaintiff against the same 
 " party." That is exactly our case, the marginal note of the 
 case is, " When a verdict is found against a defendant, on a plea 
 " of set off, he is estopped from suing the plaintiff for the demand 
 " specified in the plea of set off." Tindal, C. J. there says : 
 " the question is whether, after a precise issue has been found 
 " against the plaintiff, he may bring an action and agitate the 
 "whole matter over again. Consistently with the decision in 
 " Outram v. Morewood, I cannot see how an estoppel can be set 
 " aside on the grounds set forth in this replication." There are ' 
 several other cases, but I think, it is quite unnecessary to cite 
 them. 
 
 [Hackett, J. I will call on Mr. Woods now.] 
 
 Woods. _ There has not been one direct authority cited. All 
 the cases cited in which the rule as to estoppels applied, were 
 either judgment in an action of trespass against another action of 
 trespass, or judgment in ejectment against a subsequent action 
 of ejectment, but there is not a single decision in favour of the 
 defendant's contention. In the case of Doe v. Wellsman, 18 L. J. 
 Ex. 277, the first case cited, the Judges there say that they will 
 not decide the question. If Smith and Brooke are so clear, why 
 were they not taken notice of in this case, especially on a demur- 
 rer ? Pollock, C. B. there says : " assuming that there was an 
 " estoppel, m this case all went on supposition. It was an action 
 tor mesne profits, and such an action is usually brought after 
 
Straits settlements. 
 
 24& 
 
 ejectment. As there are no eases in point, it is but fair to pre- 
 sume in our favour. 
 
 * [Hackett, J. I see a case of Doe v. Wright, 10 Ad. & E. 7 s 6S, 
 which shows this is an estoppel.] 
 
 That case is not applicable. There is a great difference 
 between trespass and ejectment. The first depends on the posses- 
 sory right for damages simply, but the second on title, it is a 
 mixed action, and is not brought for damages, but for recovery of 
 the land itself. 
 
 [Hackett, J. The pleas in the former action, put the title in 
 issue.] 
 
 The cases cited by the other side are not in point, both actions 
 were for trespass, and I admit that in such a case there is an 
 estoppel. The plea of liberum tenementum is not a bar, I might 
 be lessee only and yet maintain an action of trespass. If there be 
 an estoppel in this case, then of course, it must be vice versa, and 
 if a man loses an action in ejectment, he cannot subsequently 
 bring one of trespass. The case of Wiltaher v. Jackson, 83 L.J. 
 Ex. 181, certainly at first sight appears conclusive, but on examina- 
 tion, it will be found to be really not in point. If it is any autho- 
 rity at nil, it is against the defendant. Both actions there were 
 for trespass, and yet the whole Court did not agree to the estoppel, . 
 for Martin B. dissented. I have looked over all the books on 
 trespass and ejectment, and can find no authority for the defend- 
 ant's contention. What is stated in Smith's L. C. is nothing 
 more than the general deduction from the /authorities admitted. 
 The case in Bingham's Report is one of contract and is not appli- 
 cable. You need not plead a set-off, but if you do, and then lose 
 it, of course it is a bar, both the set-off and second action being_ 
 for the same money debt. The Court ought to decide in plaintiff's 
 favour as. there is no decision against him. 
 
 [Haekett, J. Do you mean to say the title was not in issue in 
 the former action.] 
 
 Incidentally only. 
 
 [Hackett, J. No, it was diroatly put in issue by the 
 pleas.] 
 
 A recent case in the authorized Law Reports, shews us how 
 careful we must be in matters of title ; it was an extraordinary 
 case, a landlord lost as against his tenant an action in ejectment. 
 ' [Hackett, J. My impression is, that the former consent to 
 judgment was merely formal ; but what is the effect of the record ? 
 If he consented to judgment on plea of " not guilty," it would be 
 no bar ; but here there was a plea of title in issue and judgment 
 for plaintiff on all the pleas : this is altogether different.] 
 
 There is no direct authority for holding this as an estoppel. 
 
 [Hackett, J. I go on the general principle. He consents to 
 judgment on all pleas thereby denying that he has any claim to 
 the land.] 
 
 That only refers to the produce of the land, but not to the 
 land itself. 
 
 [Hackett, J. The third plea was to the land, and issue was, 
 joined on all the pleas.] 
 
 Hackett, J. 
 1871. 
 
 Mahomed 
 Joonoos 
 
 v. 
 Saiboo. 
 
246 
 
 CIVIL CASES. 
 
 Hackett, J. 
 1871. 
 
 Mahomed 
 
 JOONOOS 
 v. 
 
 Saiboo. 
 
 The consent is insufficient, no evidence was gone into. 
 [Hackett, J. His confession is sufficient, as when judgment is 
 signed by default [a] . I am certain the consent was not intended 
 to act as an estoppel, but the records cannot be got over. The 
 defendant in his plea claims the freehold and afterwards comes 
 into Court, and gives up his claim to the land. We are bound by 
 the legal effect of such judgment. Lord Ellenborough in the 
 case cited by Mr. Ross, says " that a recovery in any one suit upon 
 " issue joined upon matter of title, is equally conclusive upon the 
 " subject matter of such title, and that a finding upon title in 
 " trespass, not only operates as a bar to the future recovery of 
 "damages for a trespass founded on the same injury, but also 
 " operates by way of estoppel to any action for an injury to the 
 " same supposed right of possession." The matter in question, 
 and substance in both actions being the title to the land, the form 
 of action does not matter. On the whole, I think the judgment 
 in the former action is a bar to this action.] 
 
 Woods upon this, asked to be allowed to go on with the facts 
 of the case, as the judgment on the estoppel would be a very 
 great hardship on his client, and also asked to have the question 
 reargued. This having been allowed, and evidence adduced, the 
 question was now reargued. 
 
 Ross, for the defendant. There are three points in this case — 
 1st, whether the original conveyance to the three persons and 
 their heirs, was a joint tenancy. This I believe, is admitted by 
 the other side, — 2nd, whether the agreement by two of the three 
 to sell their shares to plaintiff, severed the tenancy ; and Brdly, 
 whether the plaintiff has been in possession of the land for the 
 last twenty years. As to the 2nd point, I submit the joint tenancy 
 was not severed by the agreement relied on. The Statute of 
 Frauds requires a writing for anything concerning land, and the 
 subsequent Act VIII. and IX. Vic, c. 106, requires all transactions 
 required by the Statute of frauds to be in writing, to be by deed. 
 This Act it is submitted, extends to the Straits. The agreement 
 relied on is an agreement to sell, not an absolute sale, and°is there- 
 fore bad. 
 
 [Hackett, J-— It is a good severance in equity.] 
 _ Yes, the plaintiff cau in equity call on the parties to perform 
 their agreement, but it is bad in law, Musgrave v. Dashwood, 
 2 ^e™. 6 $- Actual alienation is necessary to sever the tenancy, 
 f Step. Com. 349; Wms. Eeal. P. [9th ed.] 132; Partridge v. 
 54 ; Brown v. Raindal, 3 Vesey 258. If this agree- 
 then we have a claim according to the laws of 
 
 63. 
 Com 
 Powlet, 2 Atk 
 ment is of no avail 
 
 pint tenancy to the whole land. As to the third point, I submit 
 there is no evidence to shew that plaintiff has had possession of 
 the land tor the last twenty years. 
 
 i a ^ds.— The twenty years possession by the plaintiff of this 
 land, has been clearly proved. The agreement is good and has 
 completely severed the joint tenancy. It is not necessary that it 
 a deed, as the Statute of frauds simply requires a 
 
 should be 
 
 0] Williams' P. p., pp. 92, 93-see also the judgment herein, 
 
STRAITS SETTLEMENTS. 
 
 247 
 
 I submit, does not extend Hackett, 
 
 ' 1871. 
 
 106, 
 
 estoppel was now further 
 eject- 
 
 writing, and the Act 8 & 9 Vict., c 
 here. 
 
 June 24th. The question of 
 argued. 
 
 Woods. — A judgment recovered is not pleadable in 
 ment [a], 
 
 [Hackett, J. — Why not ? Under the old law you could do so, 
 but not under the modern procedure.] 
 
 The modern procedure is under the Common Law Procedure 
 Act, Act, 15 & 16 vict., c. 76, s. 207, but this Act does not extend 
 here. Teher is no estoppel in this case, the pleadings in the two 
 actions are quitedifferent, and by the declaration in the first 
 action, the time is limited. 
 
 [Hackett, J. — You put the whole freehold in issue in that 
 action.] 
 
 Yes, but that was only as to the time mentioned in the decla- 
 ration.*! ought to have demurred to this replication, and if decided 
 against me, to plead nul tiel record. The case of Outram v. More- 
 wood, cited by the other side, was an action of trespass, which 
 was estopped, by a prior action of trespass. There is not the 
 least doubt as to this. According to the old law, any number of 
 actions of ejectment might be brought for the same land, as 
 there might have been a demise subsequently to the first action, 
 Adams on Ejectment, 286 ; this old authority is followed by Roscoe 
 and Cole, which is the latest work on the subject. If a person 
 is a free holder, he is not so by the judgment of the court, but 
 because he happens to be so. Cole on Ejectment, 77. I submit 
 this is no estoppel, the declaration in the former action, limited 
 the time, and is no bar when the question of possession is raised. 
 I can only find one case in favour of the defendant, and that is, 
 an anonymous one reported in 3 Leon. 194, of the time of Eliza- 
 beth, and the reporter might be wrong. I can no where find that 
 Leonard was considered an authority or that he was a Sergeant. 
 The case is not on all fours, and is not noticed in Harrison or 
 Fisher, but is simply cited in the case of Doe v. Wright, 10 Ad. 
 & E. 768 [6] 
 
 \Hackett, J. — That case is just the converse of this.] 
 
 Yes*, and it has never been since reported or followed. In 
 Saunders, it is stated, in a second action of ejectment, one might 
 give evidenee of a former action of ejectment. The case in Bin- 
 gham is not only one on contract, but has according to Fisher's 
 Digest, title " judgment recovered," been since over ruled by the 
 case of Brokenshire v. M organ, 9 M. & W. 111. It was said that 
 even if judgment in former action had been by default, still it was 
 a bar ; this I submit, is not so, Howlett v. Tarte, 31 L. J. C. P. 
 146, Williams, J. there says, there is no authority for saying 
 that judgment by default is a bar to a subsequent action, and 
 
 Mahomed 
 Joonoos 
 
 v 
 Saiboo. 
 
 [a] This is because there is no pleading in ejeotment, which does not apply here, 
 See Broom's Max.,p. 36. 
 
 [!>] Also in Qwtram v, Jtwuxtad, auprk, 
 
248 
 
 CIVIL CASES. 
 
 Hackett, J 
 1871. 
 
 Mahomed 
 Joonoos 
 
 v, 
 Saiboo. 
 
 ■ Byles, J. says, " it is sufficient to say there is no authority on this 
 " point." In Mayne on Judgments, it is stated that if judgment 
 is obtained by mistake, equity will set it aside. This Court is 
 both a Court of Common Law and Equity, and not separate,— 
 Hormajee v. Droye, Morbon's Ind. Rep. 197 ,' Rex v. Wollee, 
 Ibid. 221; and these cases are supported by Graven v. Hadden, 
 3 L. E. P. C. 707, [1st Dec] as to Ceylon. In England there are 
 two Courts, but here it is not necessary that this should be so. 
 The question I submit, in this case, is one of evidence, and not one 
 of judgment recovered. 
 
 Ross. There is no precedent to guide us in this case, but it 
 must be argued by analogy. If in trespass, the plaintiff had 
 been plaintiff, and lost his case, there is no doubt that would be 
 an estoppel. Wittaker v. Jackson, 33 L. J. Ex. 181, Pollock, C. B. 
 there says, " This rule was obtained on the ground that the Judge, 
 " at the trial improperly rejected evidence to contradict an es- 
 " toppel. It appears to me that the record if it could have been 
 " pleaded, wns clearly an estoppel; but as it could not be pleaded, 
 " it was conclusive in evidence. What the defendant wanted to 
 " do, was to try the question over again." This I submit is just 
 the case here. The plaintiff simply wants " to try the question 
 " over again." There is no doubt that both actions relate to the ' 
 same land. The defendant in the first action pleaded a plea of 
 " liberum tenementum," and then abandoned it. In the case of 
 Buchla,nd v. Johnstone, 23 L. J. C. P. 105, an action of trover was 
 held to be a bar to an action for money had and received. In the 
 case of Graven v. Hadden cited by the other side, the Court went 
 on the practice. Here I submit there are separate Courts, and in 
 a Court of Law, equitable questions cannot be tried. 
 
 Woods in reply. All the cases cited were actions of trespass 
 against subsequent actions of the same kind. The time was 
 limited in the first action, whereas it is no such thing here. There 
 was also no evidence at the trial of the former action of trespass. 
 
 Cur. Adv. Vult. 
 
 September 19. Hachett, J. — This is an action in the nature 
 of an ejectment brought to recover the possession of a piece of 
 land situate at Tanjong Tokong in Penang, described in the peti- 
 tion as abutting on the east on the sea, on the west on Mr. Tes- 
 serand's ground and a small road, on the north on Mr. Tesserand's 
 ground and a Chinese burial ground, on the south on land formerly 
 of Mr. Brown and now of.Hoh Leng, which the defendant is 
 charged with knowingly retaining wrongful possession -of. 
 
 The defendant has pleaded ; first, the general issue ; secondly, 
 that the lease is not the plaintiff's ; thirdly, liberum tenementum, or 
 a freehold in the defendant ; and fourthly, a plea by way of estop- 
 pel which is as follows : — 
 
 " And for a fourth plea, the defendant says that the plaintiff ought not 
 
 to be admitted to say that he is entitled to the possession of the land in his 
 
 ''declaration mentioned or to maintain this action because he says that 
 
 " before this suit, he, the defendant, brought an action against the now plaintiff 
 
 " m the Penang Division of the Supreme Court for the same cause of action 
 
STRAITS SETTLEMENTS. 
 
 249 
 
 Mahomed 
 Joonoos 
 
 V- 
 Saiboo. 
 
 " as in the declaration mentioned, and such proceedings were thereupon had Hackett, J. 
 " in that action ; that afterwards and before this suit, it was considered by the 1871. 
 
 " judgment of the said Court that the now defendant was entitled to the 
 
 " possession of the said land, and should recover possession of the said land, 
 " and afterwards and before this suit by virtue of the said judgment, the 
 " defendant entered in possession of the same, and the said judgment still 
 " remains in force, and this the defendant is ready to verify. "Wherefore he 
 " prays judgment, &c." 
 
 Upon all these pleas the plaintiff has taken issue. 
 _ The defendant put in evidence the record of the case upon 
 -which he relies in support of the plea of estoppel. From this 
 recoisd it appears that the defendant on the 22nd of March, 1871, 
 brought an action of trespass against the present plaintiff in 
 which he alleged, " that he on or about the 1 7th day of December, 
 " then last past and divers other days and times between that day 
 " and the commencement of the action, with force and arms broke 
 " and entered certain land belonging to the then plaintiff situate 
 " at Tuiloh Ayer Eajah in the island of Penang bounded on the 
 " east by the sea 255 feet ; west by Mr. Tesserand's ground and 
 " a small road 475 feet, north by Mr. Tesserand's and the Chinese 
 "burial ground in a crooked direction 1,398 feet, and on the south 
 " by Mr. Brown's ground 1,275 feet." The declaration then went on 
 to charge the present plaintiff with pulling and carrying away 
 betel nuts, cocoanuts and other fruits then growing on the said 
 land and with other acts of waste, for which the present defendant 
 claimed $100 damages. The defendant in the suit, [the present 
 plaintiff] , pleaded first, not guilty ; secondly, that the land was not 
 the property of the plaintiff ; thirdly, a free hold in the defendant ; 
 and fourthly, that the fruit, &c, were not the property of the 
 plaintiff. Issue was taken on these pleas, and the cause came on 
 for trial, on the 23rd June, 1871, when the defendant confessed the 
 action, and judgment was entered by consent of both parties for 
 f 15 damages. 
 
 The present defendant contends that this confession of the 
 previous action, is an estoppel and bar to the plaintiff in the pre- 
 sent suit, and the decision on this point depends upon the question 
 whether the same cause of action was at issue in the previous 
 action as that which is now sued for. 
 
 The principles which govern the effect of a previous verdict in an 
 action between the same parties are clearly stated by Lord Ellenbo- 
 rough, C. J., in Outram v. Morewood, 3 Bast 346, which was an action 
 of trespass for breaking and entering a certain close and digging coal 
 there. The plea alleged a conveyance of the locus in quo to the per- 
 sons through whom the defendant claimed, and further that the 
 coal mentioned in the declaration was part of the coal so bargained 
 and sold. The plaintiff replied by stating that the plaintiff had 
 sued the defendant in trespass for breaking and entering the same 
 identical coal mine. The defendant pleaded title, and averred 
 that the coal in the declaration in that action was part of the coal 
 bargained and sold as aforesaid. That the plaintiff traversed the 
 last mentioned averment ; that issue was joined in the traverse, 
 and the issue found for the plaintiff, and that judgment there- 
 upon followed, and the plaintiff prayed judgment, &c, &c, 
 
250 
 
 CIVIL OASES. 
 
 HacHett, ; 
 1871. 
 
 Mahomed 
 Joonoos 
 
 a. 
 Saiboo, 
 
 . Demurrer and Joinder. The replication was held good. The law 
 of estoppel is thus stated in the judgment of Lord Ellenborough 
 (p. 354) " a recovery in any one suit, upon issue joined in matter 
 " of title is equally conclusive upon the subject matter of such 
 " title" ; and " a finding upon title in trespass not only operates 
 " as a bar to the future recovery of damages for trespass founded 
 " on the same injury, but also operates by way of estoppel to any 
 " action for an injury to the same supposed right of possession." 
 His Lordship cited a case from Leonard [Anon 3 Leon. 194], 
 where the defendant in an action of trespass quare clausumf regit, 
 pleaded a former recovery in an ejectione firme brought by himself 
 against the plaintiff for the same land, and the plea was held 
 to be an estoppel, for that the possession was bound by the re- 
 covery. 
 
 Mr. Woods for the plaintiff has contended, that the doctrine 
 laid down in Outran v. Morewood [a] does not apply, because this 
 is an action of ejectment, and as he maintained a verdict inter 
 partes is no bar to a fresh ejectment, and that any number of other 
 ejectments may be brought by the same party for the same pre- 
 mises. This may be so, and that peculiarity in ejectment arose 
 from the facility of varying the title of the plaintiff by alleging a 
 different demise or a demise on a different day, so that the title 
 might always be made to appear different. But if the second 
 declaration exactly resembled the first it is difficult to see why 
 upon recognized principles, a previous judgment should not be 
 pleadable. In Doe v. Wright, 10 Ad. & E. 763, it was held that a 
 defendant was estopped by a judgment against him in ejectment, 
 from pleading Uberum tenementum in an action brought against 
 him for the mesne profits. And in the case in Leonard a plea by 
 a defendant in trespass of a former recovery by him in ejectment 
 brought for the same piece of land, was held to be an estoppel, for 
 that the possession was bound by the recovery. The question 
 in the present case does not seem to me to resemble either that in 
 Doe v. Wright or in the case from Leonard. Iii the present case, 
 it appears that the now defendant brought an action against the 
 present plaintiff for breaking and entering the locus in quo. The 
 defendant in that case pleaded amongst other pleas, a freehold in 
 the premises, upon which issue was joined. If indeed there had 
 been a verdict upon that issue, I think the plaintiff would have 
 been estopped from bringing his present action. But that was 
 not the case ; on the day of trial the defendant agreed to confess 
 judgment, and by consent judgment was entered for $15 with a 
 stay of execution. Now it seems to me impossible to contend 
 that this judgment by confession can have the same effect as 
 judgment after verdict upon an issue between the parties in which 
 the title to the land was in question. This judgment by confes- 
 sion is in effect, nothing more than a judgment by default, that 
 is to say the defendant withdraws his pleas and admits the plain- 
 tiff's cause of action as set forth in his declaration. Now what is 
 the cause of action stated in the declaration, it is the breaking and 
 
 [a] 3 Bast. 965. 
 
STRAITS SETTLEMENTS. 
 
 251 
 
 Mahomed 
 
 JOONOOS 
 
 V. 
 
 Saiboo. 
 
 ' 
 
 entering tlie land of the plaintiff, and carrying away certain fruits. Hackett : 
 We must therefore take it as conceded, that the defendant in the 1871 , 
 former suit admitted the land to be the land of the plaintiff, but 
 only so far as was necessary to support the action of trespass. 
 And as the mere possession of the land gives a right to maintain 
 trespass, I do not think the present plaintiff is to be taken as 
 having, by his confession, admitted any thing more than the bare 
 naked possession of the then plaintiff. And I therefore think he 
 is not estopped by the former judgment from bringing the present 
 action. The case of Howlett v. Tarte, 31 L. J. 0. P. 146, shews 
 that a defendant, by allowing judgment to go against him by de- 
 fault in an action to which he has a good defence, is not estopped 
 from pleading such defence in a subsequent action against him by 
 the same plaintiff, if such defence be not inconsistent with any tra- 
 versable averment in the declaration in the former action. Ap- 
 plying that principle to the present case, I do not think the claim 
 to the right of possession set up by the present plaintiff is incon- 
 sistent with the allegation of a de facto possession in the decla- 
 ration of the petition in the former suit. I therefore think that 
 on the issue riiised by the fourth plea there must be judgment for 
 the plaintiff. 
 
 I have now to- consider the issue raised by the three first 
 pleas which put in issue the plaintiff's title. It appears from the 
 documentary evidence put in, that the land now in dispute was 
 conveyed to three persons named Panjang Emeh, Allang Gandel, 
 and Lebby Drawey, as joint tenants in fee, by a deed, dated the 
 26th day of November, 1 844. Panjang Emeh survived the other 
 joint tenants, and assuming that there was no severance, would 
 have become entitled to the whole land by right of survivorship. 
 Panjang Emeh died about the year 1852, and his widow Fatimah 
 administered. In the year 1869, a petition was filed on the 
 equity side of the Court by Essah, the widow and administratrix 
 of Abdul Rahnee, one of the sons of Panjang Emeh, against 
 Patimah as the administratrix of Panjang Emeh, for the adminis- 
 tration of the estate of Panjang Emeh. The defendant put in her 
 answer but instead of the accounts being taken in the usual way, 
 I find that the matter was submitted to arbitration, for what 
 reason I am unable to say, as I should have thought that the ac- 
 counts could have been taken much more cheaply and efficiently 
 by the Officer of the Court. And the arbitrator having made his 
 award, the award was on the 12th May, 1870 made a rule of Court, 
 A writ of fi. fa. then issued out of the Court in pursuance thereof, 
 and the Sheriff in accordance with the writ, caused the land now 
 in dispute to be put up to auction on the 23rd of October, 1870. 
 At the sale, the person through whom the defendant claims was 
 declared to be the purchaser, and the land was subsequently, on 
 the 13th December, 1871 conveyed to the defendant. The defen- i 
 dant's title therefore is claimed throu gh Fatimah the a dministratrix 
 of Panjang Emeh, and if it is true that Panjang Emeh, as the | 
 survivor, became entitled to the shares of the joint-tenants, then i 
 the title of the defendant would primd facie appear to be good. • 
 The plaintiff, however, asserts that there was really a severance o£ _X 
 
252 
 
 CItIL OASES. 
 
 Hackett, J 
 1871. 
 
 Mahomed 
 Joonoos 
 
 v. 
 Saieoo. 
 
 : the joint-tenancy, and he contends that the other joint-tenants, 
 Allang Gandel and Lebby Drawey sold their respective shares to 
 him, and effectually, although apparently informally, conveyed the 
 same to him, so that there was an actual alienation on their part. 
 The plaintiff's evidence upon this head is that twenty four or 
 twenty five years ago he purchased Allang Gandel's shares from 
 him for $50 and that on the occasion of the purchase, a Malay 
 paper containing the contract was drawn up by Lebby Drawey 
 and signed by Allang Gandel. A Malay paper has been put in 
 evidence which purports to be this contract, the translation of 
 which is as follows : 
 
 " In the year 1263, on Thursday, the seventh day of the month of Rabil- 
 " hakir (25th March, 1847). Be it known that a Malay man of the name of 
 " Allang Gandel came and directed me to have a paper made and given into 
 " the hands of Mahomed Joonoos. I, Allang Gandel, do hereby sell a piece of 
 " compound land in the district of Tanjong Tokong held in partnership by 
 " three persons, Panjang Emeh, Lebby Drawey and me the said Allang 
 " Gandel, the grant thereof is numbered 232 1, and it is my share that I have 
 " sold unto Mahomed Joonoos for the sunT'of fifty dollars I have received 
 " from the hands of Mahomed Joonoos, and the agreement between me, Allang 
 " Gandel and Mahomed Joonoos is, that when I, Allang Gandel, return from 
 " Pulo Lancawai, I will make out a grant and give the same unto Mahomed 
 "Joonoos without question, or answers in future days. Written in the 
 " presence of the undersigned witnesses." 
 
 ". This is the mark of the hand of me, Allang Gandel, a true Token." 
 " Attested by Lebby Drawey, attested by witness Pahlang Bawah." 
 
 The plaintiff further states that about a year subsequent to 
 this, he purchased Lebby Drawey's share for $40 and that a paper 
 similar to the preceding was drawn up and signed by him, and 
 <U3iafcj3ver since that^timehefth^jgkint^] has been in possession" 
 
 S of the shares uT^£ he~Ta^3j Ehus purchased"15y^rnr; -— —-- 
 
 The plaintiff "contendsTEatTthe landVas~effectually conveyed 
 to him by these documents. But although the Act 8 & 9 Vict., 
 c. 106, is not in force here, yet it appears to me to be impos- 
 sible to regard this document as a valid conveyance. It is 
 certainly not a grant, not being under seal, and it cannot, I 
 think, be regarded as a feoffment for two reasons, first, because 
 it does not contain words implying an actual conveyance, and 
 secondly, because the essence of a feoffment is the solemn and 
 formal livery of seizin of which the writing was, by the common 
 . law merely the evidence, [although by the Statute of Frands a 
 writing became necessary for the transfer of any greater interest 
 in land than an estate at will,] and^there is no evidence in this 
 case of a formal livery of seizin. [But the plaintiff further con- 
 tends that he has, at all events, acquired a good title by length of 
 possession. It is clear that by Stat. 21, Jac. I. an uninterrupted 
 possession for twenty years, not only gave a right of possession 
 which could not be divested by entry, but also gave a right of 
 entry, bo that if a person who had such possession was turned 
 out of it, he might lawfully enter and bring an ejectment for its 
 recovery; upon which he would be entitled to judgment The 
 period of limitation which I have mentioned is that which 'in ac- 
 cordance with English law was in force here prior to the Indian Act 
 M V , ot J.S59. ,tsy that Act, however, it was enacted that « no suit 
 
STRAITS SETTLEMENTS. 
 
 2S3 
 
 Mahomed 
 
 JOONOOB 
 
 v- 
 
 Saiboo. 
 
 " shall be maintained in any Court of Judicature within any part Hachmt. J. 
 " of British India, unless the same is instituted within the period ^ _ 
 "of limitation thereinafter made applicable to a suit of that 
 " nature, and the periods of limitation and the suits to which the 
 " same respectively shall be applicable, shajl be the following, that 
 " is to say ... 12. To suits for the recovery of immoveable pro- 
 " perty to which no other provision of this Act applies, the period 
 " of twelve years from the time the cause of action arose." This 
 Act therefore, as to all actions subsequent to the act, swept away 
 the English law which previously existed, and for a period of 
 twenty years, in suits for the recovery of land, substituted a period 
 of twelve years : since that Act therefore twelve years of uninter- 
 rupted possession forms a positive prescription, and the impression 
 which seems to have prevailed at the bar during the argument, 
 that the Act of 1859 did not apply in this case, seems to me to be 
 erroneous.^ Its retrospective effect is clear from the 18th section, 
 by which " all suits to which the provisions of the Act are appli- 
 " cable that shall be instituted after the period of two years from 
 " the date of the passing of the Act, are to be governed by the Act 
 "and no other law of limitation." According to the evidence of 
 the plaintiff he farmed the land himself after the purchase from 
 the two joint tenants, and then let it out to Sitamby. -Mahomed 
 Ibrahim, however, differs somewhat in the account he gives. He 
 says that after the purchase from Allaug Gandel and Lebby 
 Drawey, Mahomed Joonoos used to manage the land, and that 
 Panjang Emeh [the other purchaser] used also to rent out the 
 land. But he states that his brother Sitamby farmed the land 
 from the commencement. He also said that he rented the land 
 from Joonoos about 8 years ago for a period of 5 years. Sitamby, 
 it appears, died 8 years ago, and at that time $14 were due by him 
 for rent, which sum, Ibrahim states, he paid to Joonoos. On cross- 
 examination this witness stated that Sitamby first rented the land 
 for 10 years from the three joint-tenants, and afterwards from 
 Mahomed Joonoos and his father. The date of the death of 
 Panjang Emeh is not fixed positively but it seems to have occurred 
 about the year 1852. Mat AMb states that he has seen the 
 plaintiff exercising authority over the land in dispute for the last 
 10 or 11 years. yThe evidence of the plaintiff's witnesses has not 
 been contradicted, in any material part, by the witnesses for the 
 defendant, and I think that the plaintiff has succeeded in shewing 
 that he was in possession of the shares in the land purchased by 
 him from the joint tenants for more than twelve years prior to the 
 entry of the defendant. I therefore think that there must be 
 judgment for the plaintiff for two-thirds of the land described in 
 the deed, of the 26th of November, 1844. ^ 
 
 / 
 
 Judgment for plaintiff. 
 
254 CIVIL CASES. 
 
 MAHOMED ALLY v. SCULLY. 
 
 Penano. An action for trespass and false imprisonment, the defendant pleaded a former 
 
 acquittal for the same causes of action by the Police Magistrate. 
 
 Hackett, J. Held, on demurrer, that the plea was bad, as the Statute 9. Geo. IV., c. 31, does 
 1871. not extend to this Colony. 
 
 A Constable who arrests and imprisons a, person who enters into a police station 
 
 June 21. in an intoxicated state, and creates a disturbance therein; is justified in so doing, 
 
 although he acted without a warrant, by the 86th section of Act XIII. of 1850 and 22nd 
 
 section of Act XL VIII of 1860. 
 
 The plaintiff having recovered judgment on the first count, and the defendant on 
 the second count, the Court, by virtue of sections 102 of Act XIII. of 185G and 29 of 
 Aot XLVIII of 1860, allowed the defendant his full costs against the plaintiff, but 
 refused to allow the plaintiff any oosts. 
 
 The plaintiff having demurred to the plea of the defendant [a police officer], and 
 the demurrer being allowed, he was allowed his full oosts of such demurrer against the 
 defendant. 
 
 This was an action to recover damages for an assault and 
 battery, and also for an assault, battery, and false imprisonment. 
 The declaration was as follows : — 
 
 " The plaintiff by Isaac Bond, his Advocate and Attorney, sues the 
 " defendant, for that the defendant on the 11th day of February 1871, [mali- 
 " ciously and without any reasonable or probable cause] [a] assaulted and 
 " beat the plaintiff. 
 
 " And the plaintiff also_ sues the defendant, .for that the defendant on 
 " the day abovenamed [maliciously and without any reasonable or probable 
 " cause] [a] assaulted and beat the plaintiff, took him into custody, and 
 '* caused, him to be imprisoned in a police office. 
 
 " And the plaintiff claims, &c, &c." 
 
 The defendant to this pleaded "not guilty" by Act XLVIII. of 
 1860, section 22, and Act XIII. of 1356, section 86 ; and a second 
 plea, which was in the following words : — 
 
 " And for a second plea as to the alleged trespass in the said declaration 
 
 " mentioned, the defendant says that after the commission of such trespass 
 
 " to wit, on the 27th day of February last past, upon the complaint of the 
 
 plaintiff before then made by him of the said trespass, the defendant was 
 
 brought before Duncan Clerk Presgrave, -Esq., then being a Justice of the 
 
 Peace for the Colony of the Straits Settlements, and Magistrate of Police 
 
 in and for Prince of Wales' Island ; and therefore the said D C Pres- 
 
 grave, Esq being such Justice of the Peace and Magistrate of Police 
 
 as aforesaid, did then dismiss the said complaint, upon the hearing thereof, 
 
 on the ground that the said offence was not proved, whereby the defendant 
 
 then became, and still is, released from the said action, and this the defen- 
 
 " dant is ready to verify." 
 
 The plaintiff joined issue on the first plea and demurred to 
 
 the second, the marginal note of the demurrer being as follows • 
 
 A matter of law intended to be argued is, that the dismissal of 
 
 the complaint referred to in the defendant's plea in the Police 
 
 Magistrate sCouri :, is no bar to a civil action for assault and 
 
 "false imprisonment." The defendant joined in demurrer. 
 
 Bond, in support of the demurrer, contended that a dismissal 
 by a Magistrate was no bar to an action for the same cause of 
 action m the Supreme Court ; and although in England there was 
 an enactment, the Statute 9, Geo. IV. c 31 remiiri™ 1 , ™7-% I 
 of such dismissal, and made that ^kSf^je^S^ 
 
 Tl^SlT. %! plea ' as ifc did 110t extendh - ™ 
 
 XLV C Sl/o h f eS 186 W 0? rdS ^ EUbse 1 uentl r ad <^ * accordance with Section 29, Act 
 
Scully. 
 
 STBAITS SETTLEMENTS. 25S 
 
 0. W. Bodyk, in support of the plea, contended that the Act Haoketi, J. 
 did extend here and cited 9, Geo. IV., c. 74, s.s. 46 & 125, and the 1 f^ 
 cases of Bradshaw v. Vaughan, 30 L. J. C. P. [N. S.] 93 s.e. 9. Com. Mahomed 
 Ben. [N. 8.} 103 '; Reg. v. Mrington, 31 L. J. M. C. [JV./S.] 14; s.e. 1 Ally 
 Best & S. 688 ; and Bullen and Leake's Precedents in PI. a ?■ 
 [2nd erf.], p. 672 [a]. 
 
 Boftrf in reply contended that the Act 9, Geo. IV, c. 74, did 
 in no way extend the Act 9, Geo. IV., c. 31, to the East Indies. 
 
 Haehett, J.,heldthatthe Act 9, Geo. IV., c. 31, did not extend 
 to the East Indies, and consequently allowed the demurrer with 
 costs. 
 
 The case then went to trial on the merits, when the plaintiff 
 had judgment on the first count-with one cent, damages and the 
 defendant had judgment on the second count [&]. 
 
 Bodyk on this asked the Court to allow co3ts to his client, 
 but not the plaintiff. 
 
 Bond having objected, 
 
 Bodyk cited sections 112 of Act XIII. of 1856 and 29 of Act 
 XLVIII. of 1860. 
 
 The Court thereupon gave the defendant his costs against the 
 plaintiff. 
 
 PATIMAH & ORS. v. D. LOGAN & OES. 
 
 The law of England was introduced into this Settlement immediately on possession Penano 
 
 thereof being taken in the name of the King of England by and for the use of the late 
 
 East India Company : all laws [if any] previously existing, thereupon immediately Hackett J 
 ceased. The circumstance that possession was taken by an Officer of the East India Com- jg»j ' 
 
 pany does not prevent the transfer of the sovereignty and dominion of the Island to the ' 
 
 Crown of England, especially as the rights of the Crown over all the territories of the a™*™,!™ a 
 Company are preserved by the Act 53, Geo. III., cap. 155, sec. 93. * 
 
 The fact, that when possession was taken of this Settlement there were a few wan- 
 dering fishermen on the Island, does not affect the general rule of law in such cases, 
 inasmuoh as they could not be regarded as the inhabitants of a settled country with laws 
 of their own, and who are entitled to the benefit of them, until changed by competent 
 authority. 
 
 The law of England was certainly imported into this Settlement by the Charter of 
 1807, if not earlier. 
 
 The competency of witnesses, is to be determined by the law of the forum ; so that 
 though, by Mahomedan law, concubines are incompetent witnesses to prove a divorce, 
 still that is no reason why their evidence should not be received in a Court of Justice in 
 this "Settlement, where, by English law, they are competent. 
 
 A testator directed that any legatees or devisees " proceeding to law in any Court 
 or Courts for their said shares" should lose their legacies. 
 
 Held, the direction was void, as property is inseparable from the right to institute 
 legal proceedings and the protection of the law, and it was repugnant and inconsistent 
 with the gifts. 
 
 The testator gave certain personal property [naming them] to certain legatees. 
 In an afterpart of his Will he gave the whole of his personal property to his executors 
 upon certain trusts, without excepting the property so first bequeathed away. 
 
 [o]. See also in Criminal Cases, Ordinance 5 of 1870, s. 37. If the defendant 
 had been convicted even, it would be no bar. See Broom's Legal Maxims 
 [3rd Ed.], p. 313. As to the construction of s. 46 of 9 Geo. IV, c. 74, see Reg. v. Khoo 
 Qhee Boon. Criminal Kulings, Vol. II of these reports. 
 
 [6] As to the justification of the arrest and imprisonment, see 3 Car. & P. 
 21—25 ; 4 Car. & f. 308 ; 2. M. & W. 477 ; 8. Moore, 362 ; 4. N. & M, 
 469 ; 11. Q. B. 311—24 ; i2. Camp. 358 ; 9. Car. & P. 262 ; Broom's Com : P. 
 712—13. 
 
256 CITIL OASES. 
 
 Hackett, J. BtU, the latter portion did not override the former as being irreconcilable with it, 
 1871. or on the principle that it denoted a later intention ; that rule only applies on failure of 
 every attempt to give the whole such a construction as will render every part of the 
 
 FatimaH & "Will effective. 
 
 oes. He further directed that the rents and profits of his estates, after deducting 
 
 v. expenses of collection and management, should be divided into twenty-four shares, and 
 
 Logan & oes. to be held upon trust for the benefit of his children and grandchildren, whom he named, 
 and their issues. These shares he then proceeded to distribute among his children and 
 grandchildren in certain proportions, and finally directed as follows : " I direct that 
 " the annual income of the said, share or shares so set apart for my sons and grandsons, 
 " and their respective issues in the said trust estate and premises, shall be paid to the same 
 " son or grandson during his life, and from and after his decease, that hjs said share or 
 " shares shall be held in trust for all such sons born in_my lifetime, at such ages and 
 " times as I might by any writing under mv™Eand or by my "Will appoint, and in default 
 " of such appointment, &c, in trust for aTmy children, Too being a son shall attain the 
 " age of twenty-one years, or being a daughter shall attain that age or marry, in equal I 
 " shares, and if there shall be but one such child, the whole to 'be in trust for such child." * 
 " Held, that the direction was not void on the ground of remoteness. 
 He further devised eleven pieces of land in Penang, which he particularly described, 
 to trustees, and directed the same be called the " Whakoff of Mahomed Noordin." He 
 further directed his trustees out of the rents and profits of such lands, to pay for ever 
 the sum of $20 monthly to the managing hody of a certain school ; the sum of $60 
 monthly to his daughter, Tengah Chee Mah, and her lawful issue during their natural 
 lives ; and also the sum of $40 monthly for the maintenance of one of his sons and his 
 wife. He then gave the residue of such rents and profits upon trust as follows : " To 
 " expend for the yearly performance of kandoories and entertainments for me and in my 
 " name to commence on the anniversary of my decease, according to the Mahomedan 
 " religion or custom, such kandoories and entertainments to continue for ten successive 
 " days every year, and also in the performance of an annual kandoorie in the name of all 
 " the prophets, and to expend the same in giving a kandoorie or feast according to the 
 " Mahomedan religion or custom, to the poor for ten successive days in every year from 
 " the anniversary of my decease to the extent of three hundred dollars, including the 
 " costs of lighting up the mosque or burial-place of my deceased mother and the school- 
 " rooms thereto adjoining ; and also to give kandoories or feasts to the poor aforesaid once 
 " in every three months to the extent of one hundred dollars ; and provided there should 
 " remain any surplus monies, then the same is to be expended in purchasing clothes for 
 " distribution to the poor." 
 
 Held, [firstly] that the trust for the school was a good charitable bequest and 
 therefore valid. 
 
 Held, [secondly] that the gift to Tengah Chee Mah and her issue, was a gift to her 
 for life ; for her sole and separate use, with remainder to such of her children as were 
 in existence at the time of the testator's death, as joint tenants for life ; and the word 
 " issues" was used therein in the sense of "children" and was a word of purchase and 
 not of limitation, but as the gift was for life only, the children born after testator's death 
 could not be let in. 
 
 Held, [thirdly] that the gift of the residue of the rents and profits for kandoories, 
 &c, was not a charitable gift, but void as tending to a perpetuity. 
 
 Held, [fourthly] that the gift for clothes to the poor was a good charitable gift, and 
 as the surplus monies with which it was to be paid was sufficiently certain, the gift of the 
 surplus was valid. 
 
 The testator gave a legacy to Mahomed Mashoredin Merican Noordin and his issue, 
 and directed that if he died without issue, the share was to go over to Abdul Cauder 
 Jellamy and Rajah Bee and their issues in equal shares- He also gave a legacy to 
 Abdul Cauder Jellamy, and directed that in case he died without issue, his share°was to 
 go to Mahomed Mashoredin Merican Noordin and Rajah Bee; during the lifetime of 
 the testator, Abdul Cauder Jellamy died without issue. 
 
 Held, that the words "died, leaving no issue" applied to death in the testator's 
 lifetime, and that the gift to Abdul Cauder Jellamy did not lapse, but the ulterior cross 
 gift took effect as a simple absolute gift. 
 
 The testator in one portion of his "Will devised his lands at Akyab and Tenasserim 
 
 for certain purposes : in a subsequent part he devised "the rest and residue of his estates 
 
 at Penang and Province Wellesley or elsewhere [exclusive of those which he had by 
 
 deed of gift given to his children and grandchildren] " for certain other purposes. 
 
 Held, that there was ino inconsistency in the two clauses, as the words " rest and 
 
 residue excluded what the testator had already given, and the effect of these words 
 not limited by the parenthetical clause. " u 
 
STRAITS SETTLEMENTS. 257 
 
 IP This was a suit for the proper construction of the Will of ^j™*. j - 
 ^Mahomed Noordin, deceased, to have it decided by what law Lis — ; 
 Will was to be construed, for delivery and cancellation of certain Fatimah & 
 deeds, and for other relief and objects which are set forth in the °= s - 
 judgment. The facts and arguments also sufficiently appear LoGAN \ 0BS , 
 therein. 
 
 The case was heard on the 30th and 31st August, 1st, 2nd 
 September, and on this day. 
 
 T. Braddell [Attorney- General] for .plaintiffs. 
 B. liodyh [E. 0. Woods, junr., with him,'] for defendants. 
 
 Cur. Adv. Vult. 
 
 13th March 1872. Hackett, J.— In this case a petition has been 
 filed oti the Equity side of the Court by Fatimah, styling herself 
 the widow of the late Mahomed Noordin and Tengah Chee Mah, 
 his daughter, and the husband of the latter against the Executors 
 and the persons interested under the Will of the late Mahomed 
 NoordinJ a Mahomedan merchant of Penang, who diejl here on |\ 
 the 12th April, 1870. 
 
 The object of the petition is to obtain a decree of the Court 
 declaring that the deceased died intestate as to all "such portion of 
 his moveable or immoveable property as may be found to be dis- 
 posed of, or attempted to be disposed of, in a way contrary to the 
 law of England, or contrary to the Mahomedan law, if the Court 
 finds that the latter law is in force in the Settlement of Penang 
 iu the case of Mahouiedans, and that the estate and effects of the 
 deceased may be distributed under the decree of the Court so far 
 as the Will may be found to be inconsistent with the English or 
 the Mahomedan law,' according to the rules of the English or 
 Mahomedan law. The petition further prays that such of the 
 defendants as have received deeds purporting to have been execut- 
 ed by the late Mahomed Noordin, and purporting to operate 
 as conveyances of lands or" interest in lands, the property of 
 the deceased during his lifetime and which deeds were not 
 delivered during his lifetime, with the intention that the same 
 should operate as conveyances of any interests or estates shall be 
 decreed to bang in the same to be cancelled. The petition also 
 asks for an injunction. At the hearing of the cause there were 
 three preliminary questions argued. First, whether the capacity*, 
 of the deceased to make a Will was to be decided by the Maho- 
 medan or by the English law. Secondly, whether the 11th clause 
 of the Will, which directed that if any of the testator's sons or 
 daughters, &c, disagreed respecting their shares and proceeded to 
 law in any Court for their shares, such, Ac, should only be entitled 
 to five hundred rupees and should forfeit all their shares under the 
 Will, and that the share of any one so disputing, should be divided 
 amongst the rest, is valid. The third question affects Only the 
 plaintiff Fatimah and arises upon a plea which alleges her to have 
 been divorced from the deceased some time before his death . The 
 first question is raised in the 15th, 16th, 17th, and 18th paragraphs 
 of the petition, which are as follows : — 
 
 " 15th. That your petitioners are further advised and charge that there 
 " is no valid residuary disposition of the estate and effects of the said Mahc- 
 
SSg CIVIL OASES. 
 
 i 
 
 HacKett, J. •• med Noordin in the Baid Or any other valid Will, and that in consequence, 
 1871 " the greater portion of the said estate will fall to be distributed according 
 
 " to the statute for the distribution of intestates' estates or by Mahomedan 
 
 Fatimah & ■■ } aWj i n w ]xjch case your petitioners are interested as next of kin of the said 
 oes. u 3 ecease ^_ iQth. Your petitioners further state thai the deceased was 
 T v \ " born in the Settlement of Penang, in the year 1802, before the publication 
 
 i^ogais « oes. „ of the firgt oharter of j us ti C e under Itoyal Letters Patent of 1807 for the 
 " said Settlement, that the Settlement ' was then under the Government of 
 " the Presidency of Port William in Bengal, and subject to the same laws as 
 " that Presidency. V7tk. That in the Presidency of Port William in Bengal, 
 " Mahomedan law is and was admistered to inhabitants professing the Maho- 
 " medan religion, and "that law existed in Penang before the publication of 
 " the first Charter of Justice, and was not altered in this respect by the first 
 " or any subsequent Charter passed under Royal Letters Patent for the 
 ■' administration of justice in the said Settlements. Wherefore your petitioners 
 " are advised and charge that the matter in question of the estate of Maho- 
 " med Nbordin ought to be administered and the estate dealt with according 
 " to Mahomedan law. 18th. That your petitioners are advised and charge 
 " that the said Will is not in accordance with Mahomedan law, and your 
 " petitioners charge that by law, the estate and effects of the deceased 
 " ought to be distributed in certain fixed shares or proportions amongst the 
 " next of kin according to Mahomedan law, subject to such bequests as may 
 " be found in the deceased's Will to be in accordance with Mahomedan law." 
 The defendants in their answer admit that Mahomed Noor- 
 din was born in Peiiang, but do not admit that he was born 
 before the passing of the Charter of Justice of 1807, and there is 
 no evidence whatever as to the exact date of his birth. But they 
 altogether deny that the Settlement of Penang was then [that is 
 previous to 1807] under the Government of the Presidency of 
 Port William in Bengal or subject to the same laws as that Pre- 
 sidency. And they further say that even if the Settlement of 
 Penang was, previous to the said Charter of Justice, subject to the 
 same laws as the said Presidency, such fact does in no way affect 
 the question as to the law by which the said Will ought to 'be con- 
 strued or by which the said estate and effects should be adminis- 
 w-n- • 6 defendants !lls ° deny that in the Presidency of Fort 
 William in Bengal, Mahomedan law is and was administered to 
 inhabitants professing the Mahomedan religion, or that the Maho- 
 medan law existed in Penang before the publication of the first 
 Charter of Justice, or that it was not altered in this respect by the 
 first or any subsequent Charter of Justice. 
 
 In his argument upon this part of the case, the Attorney- 
 UeneraJ, tor the plaintiffs, maintained two propositions, first, 
 that previous to the Charter of 1807, Mahomedan law was in 
 torce in Penang ; and secondly that the Charter made no alteration 
 in the law in this respect. In support of the first proposition, he 
 argued that Penang being a part of the territories of the Raj ah of 
 yuedah a Mahomedan Prince, the Mahomedan law continued in 
 ww + a 1 eSS10n Ulltil ih sllould be- altered by competent 
 
 fS'if Jf c ™ t( : nded that there is no evidence of any 
 
 S?SlV d ; h V' t0 frttoduoe a new one until the 
 publication of the Charter of 1807 
 
 hPin^XTi* m ? that 1 tLi8 P° si Koa ^ untenable. In 1 786, Penang 
 bva g few ll} eSei ?z a ? d cultivated island, uninhabited except 
 SBcXftup^n' »d without any fixed institution, 
 was ceded by the Rajali of Quedah to Captain Light, an officer of 
 
STRAITS SETTLEMENTS. 259 
 
 the East India Company, for and on behalf of the Company. On Hackett, J. 
 
 the occasion of taking possession of the Island, Captain Light 1871 
 
 published the following proclamation : — „ , 
 
 * ° r , Fatimah & 
 
 Proclamation.* OES - 
 
 v. 
 " These arc to certify that, agreeable to my orders and instructions from Logan it obs. 
 " the Honorable Governor- General and Council of Bengal, I have this day 
 " taken possession of this island called Pooloo Penang, now named the 
 " Prince of Wales' Island, and hoisted the British colors in the name of 
 " His Majesty George the Third, and for the use of the Honorable English 
 " East India Company, this eleventh day of August, One Thousand Seven 
 " Hundred and Eighty-six, being the eve of the Prince of "Wales' birthday. 
 
 "In the presence of the under written, 
 
 " Francis Light." 
 
 Immediately after the Island had been thus formally occupied, 
 its settlement commenced, and the enterprise was so successful 
 that in three years from the date of the original settlement, we 
 find Captain Light stating that there was a population of 10,000 
 persons settled in the island, and that this number was being 
 continually increased. 
 
 Here we have the fact that an island virtually uninhabited, is 
 occupied and settled by British subjects in the name of the King 
 of England. The case therefore would seem to fall within the 
 general rule laid down in our law books and which Lord Kingsdon 
 thus expresses in a recent case : " When Englishmen establish 
 " themselves in an uninhabited or barbarous country, they carry 
 " with them, not only the. laws, but the sovereignty of their own 
 " State ; and those who live amongst them and become members 
 " of their, community, become also partakers of and subject to the 
 "•same laws" [2. Moo. P. C, N. S. 59]. But it seems to 
 have been thought that Penang did not come within the operation 
 of the rule to which I have referred for two reasons, first, because 
 the island was not altogether vacant of inhabitants ; and secondly, 
 because it was taken possession of on behalf of the East India 
 Company and was therefore not directly subject to the English 
 Crown. But it can scarcely be seriously contended that the few 
 wandering fishermen who were found on the shores of the island, 
 could be regarded in the same light as the inhabitants of a settled 
 country with laws of their own, and who are entitled to the bene- 
 fit of them until changed by competent authority. Neither do 
 I think that the circumstance of possession of the island being 
 taken by an officer of the East India Company, for and on behalf 
 of the Company, prevented the transfer of the sovereignty and 
 dominion of the island to the Crown of Great Britain and Ireland. 
 Nothing can be clearer than the determination of Parliament to 
 preserve the undoubted sovereignty of the Crown of England over 
 the territorial acquisitions of the Company. This is shewn by the 
 declamatory clause in Act 53, Geo. III., c. 155, s . 95 : " Provided 
 " always that nothing herein contained shall be construed to 
 " extend to prejudice or affect the undoubted sovereignty of the 
 
 * This proclamation was published for the first time in the October number of the 
 Journal of Indian Archipelago, 1850, p. 629, and was apparently obtained from the 
 Government records. — J.W.N.K. 
 
V. 
 
 Logan & orb. 
 
 S80 017IL CASES, 
 
 Hackett, J, « Crown of the United Kingdom of Great Britain and Ireland in 
 137L " and over the slid territorial acquisitions." And indeed it is 
 Patimah & difficult to conceive how any English Company could, without the 
 ors. clearest and most positive expression of the intention of the Legis- 
 lature, be made exempt from that allegiance which all British sub- 
 jects owe to the laws of their country. 
 
 But it has also been argued by the Attorney-General, that 
 Penang was a dependency of Fort William in Bengal, and there- 
 fore subject to the same laws as that Presidency. And as by the 
 laws in force in Bengal, Mahomedans were entitled in all matters of 
 contract, inheritance, or succession, to the benefit of their own law, 
 Mahomedans in Penang must be held entitled to the same privilege. 
 In support of his proposition he has cited 13 Geo. Ill, 
 c. 63, s. 38, which empowers the Governor-General and Council at 
 Port William to make Rules and Ordinances for government of 
 places subordinate thereto, and 21 Geo. III., c. 70, s.s. 17 and 18. 
 But with regard to the first mentioned Act, it is sufficient to 
 observe that no laws or regulations ever were made in pursuance 
 thereof which affected the Settlement of Penang ; indeed it is 
 not a little remarkable that for many years, the Indian Government 
 was of opinion that it had no power to legislate for the island, 
 and it is only about the year 1800, that we find the Advocate- 
 General of the Indian Government expressing his opinion that the 
 Governor-General was authorized to enact laws, civil and criminal, 
 for the government of Prince of Wales' Island in the same 
 manner as he did for the Province of Bengal. 
 
 And as to Act 21 Geo. III., c. 70, s.s. 17 and 18, they in terms 
 a PPly> on ty to the jurisdiction of the Supreme Court at Port 
 William, over the inhabitants of Calcutta, and therefore do not 
 affect the question. 
 
 The Attorney-General also called my attention to what he 
 terms an ordinance of the Governor-General in Council which lie said 
 has been overlooked by all the Judges. It is found in a letter of 
 instructions addressed by the Chief Secretary to the Indian Govern- 
 ment to Sir George Leith, Lieutenant-Governor of the island, 
 dated 15th March, 1800. 
 
 In this letter under the heading of " Administration of Civil 
 "and Criminal Justice" the Governor-General in Council says: 
 "16th. m The laws of the different people and tribes of which the 
 inhabitants consist, tempered by such parts of the British law as 
 are of universal application, being founded on the principles of 
 raW justice, shall constitute the rules of decisions in the 
 Courts, [a] But independently of the objection that this regu- 
 lation is contained m a mere letter of instructions, the paragraph 
 which follows, shows that it was not intended to operate as a bind- 
 ing law, but was simply a direction to frame regulations in 
 accordance with the principle thus laid down. In paragraph 1 7, 
 the Governor-General goes on : « You will accordingly proceed to 
 
 ™Sf° n ? 5* fch + t adi r Nation of justice tJ the native 
 inhabitants founded on the above principles." [a] 
 
 [a] See Preface, fc, time of Sir George Leith, Bt., 1800-1803. 
 
STRAITS SETTLEMENTS. 261 
 
 And it is quite certain that Mr. Dickens, who was sent about Hackett, J. 
 the same time to act as 'Judge at Penang, never regarded the ' 
 
 instructions contained in the letter as having the force of law. Fatimah & 
 
 Sir iBenson Maxwell, in the case of Regina v. Willans [a] OBS - 
 seemed to think that Penang could not be considered a British Lo gan& 0Eg> 
 Colony in the ordinary sense of the word, and expressed his 
 opinion that Capt. Light and his companions were a mere gar- 
 rison, and that having regained the temporary nature and object 
 of their, inhabitancy, the law of England can hardly have been 
 made the lex loci by them ; but with all respect for the opinion of 
 that learned Judge, I think the facts do not support it. Capt. 
 Light was not merely the commander of a gurrison, but was also 
 an able administrator under whose rule the infant Settlement pro- 
 gressed so rapidly that, as has already been seen, in three years 
 * from its foundation, it contained, a population of 10,000 people. 
 
 But, as has been observed by Sir B. Maxwell in the case above 
 quoted, whatever ought de jure to have been the law of the land 
 when the Colony was founded, it is quite clear that for the first 
 twenty years of its existence, no body of known law was in fact 
 recognized as the law of the place. This appears clearly from 
 a report made by Mr. Dickens. Writing in 1803, this gentleman 
 says. "His Excellency in Council has been heretofore informed, 
 " that Prince of Wales' Island, prior to its cession in 1786, was 
 " under the dominion of a chief who governed arbitrarily and not 
 "by fixed laws. It is now my painful duty to state, that it has 
 " so continued to be governed without fixed laws, for upon the 
 " hour of my arrival on t'nis island, there were not any civil or 
 " criminal laws then in existence, and there are not now any 
 '^municipal, civil or criminal laws in force on this island." [6] 
 Unless Penang did not fall within the general rule as to the 
 settlement of uninhabited countries, it would seem more correct 
 to say that there were not any legally instituted Courts to 
 administer the law, than that there were no laws whatever in 
 force. 
 
 The Charter of Jitstice of 1807 S32ins to have set at rest this 
 vexed question of the lex loci of Penang. In India, the Judges 
 have in a long series of judgments, which have not been dissented 
 froin by the Privy Council, held that the first introduction of 
 English law into Calcutta was effected by the Charter of George I., 
 by which, in the year 1726, the Mayor's Court was established, 
 and the Judges of this Settlement have felt themselves bound by 
 the uniform course of authority, to hold that the introduction of 
 the King's Charter had a similar effect here. The question has 
 been re-opened by the Attorney-General, and he has maintained, 
 in opposition to the views I have mentioned, that the King's 
 Charter of 1807 had no effect upon the law of the place, being 
 a mere machine through whose instrumentality the law is enforced. 
 He also relied on the circumstances that the- Court is directed in 
 civil matters, to give judgment, not according to the law of 
 England, but according to justice and right. But, as Sir Barnes 
 
 [a] See Magistrates' Appeals, Vol. III. of these Reports. 
 
 [4] See § 6 of Mr. Dickens' letter of 21st June, 1803— Preface, $c., 1800-1803. 
 
262 CIVIL CASfiS. 
 
 Hackbtt, J. Peacock observed in the case of the Advocate-General of Bengal v. 
 1871 Ranee Samonoye Dorse [9 Moo. Ind.App.39S]-, speaking-ot the 
 Fat^Ih & Charter of George I. [and -his remarks are equally applicable to 
 oes. the Penang Charter of 1807] , " there can be no doubt that it was 
 v - " intended that the English law should be administered as nearly 
 Logan &oks. u ^ the circumstanceg f the place and of the inhabitants should 
 ./| "admit. The words 'give judgment according to justice andright,' 
 ' " in suits and pleas between party and party, could have no other 
 ! I " reasonable meaning than justice and right according to the laws 
 i \ " of England, so far as they regulated private rights between party 
 ,U "and party." But if the current of authority which has flowed 
 * so long in one direction, is to be disturbed, it cannot be in this 
 Court, I am therefore of opinion that qua. cunque via, either on the 
 settlement of the island, or if not then, by the Charter of 1807, „ 
 the law of England was introduced into Penang, and became the 
 • I law of the land, and that all who settled here became subject to 
 that law. It is scarcely necessary to add, that our Charters con- 
 1 tain no provisions corresponding to those of the Indian Charter, 
 I which confers certain privileges on Mahoinedan Gentoos, and 
 therefore that there is no ground to hold them exempt from sub- 
 - ; jection to the law of the place. It follows from what I have said, 
 j that inasmuch as English law has prevailed in Penang certainly 
 ever since the publication of the first Charter in 1807, and 
 Mahomed ISToordin was domiciled here at the time of making his 
 Will and up to the time of his death, that his capacity to make 
 a Will must be decided not by Mahoinedan law, but by the lex loci, 
 which here, is the law of England as it has been modified by the 
 Indian and Colonial Legislatures. And it appears to me that 
 there is no hardship to Mahomedans in holding this. As Sir. B. 
 Malkin observed in Abdullah's Case, it is the fault of native 
 holders of property if any inconvenience results from such a 
 decision. And that the law as then established gives the most 
 unlimited freedom of disposal of property by will, " any man who 
 " wishes his property to devolve according to the Mahoinedan, 
 " 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." [a] The next question arose on the eleventh clause 
 of the Will, which is as follows : " I do hereby strictly direct that 
 " hereafter if any of my sons, daughters, grandsons or grand- 
 " daughters herein mentioned, or any of their issue, disagree with 
 " each other respecting their shares mentioned herein, disputing 
 " to sell my real property, and proceeding to law in any Court or 
 " Courts for their said shares, each or any one of them so doing or 
 " disputing, shall only be entitled to receive the sum of Company's 
 " rupees five hundred, and forfeit all his, her, or their share, that I 
 " haveproportioned in this my Will and have no more claim to my 
 " estate and I direct my executors and trustees to pay the above 
 " sum of Company's rupees five hundred to such disputing son or 
 " daughter, grandson or granddaughter, or their issue, as aforesaid, 
 " and the share or shares of such disputing son or daughter, grand- 
 [o] Vide 
 
 Ecclesiastical Cases, Vol, II of these Reports. 
 
Logan &oes, 
 
 STRUTS SETTLEMENTS. 263 
 
 i 
 " son or grandaughter, or their issue, to be divided amongst the Hackbtt, J. 
 " rest of them whose names are ^mentioned in this my Will." ' 
 
 It has been contended on behalf of the plaintiffs, that the Patimah & 
 clause is void as being repugnant and inconsistent with the? OBS - 
 gifts. 
 
 Mr. Rodyk for the defendant, in opposition to this con- 
 tention, relied upon the case of Cook v. Turner, 14 Sim. 493, in 
 which a clause of revocation and gift, even if the devisees should 
 dispute the Will or the testator's competency to make a will, were 
 held valid. But it seems to me that^he proviso in the present case 
 more resembles that in the case of Rhodes v. Musvjell Hill Land Com- 
 pany [30 L. J. N. S., ch. 509], where the Master of the Rolls de- ' 
 cided that a proviso that if any dispute arose between his devisees, 
 it should be referred to arbitration, and that if any devisee 
 took, proceedings at law or in equity, his estate should go over, was 
 invalid, as being repugnant and inconsistent with the gifts. In 
 that case the Master of the Rolls said : " The effect is the same as if 
 " the testator had said : ' I give you this property and I impose on 
 "'you a condition, that if you resort to any legal proceedings 
 " ' necessary to secure the gift, you shall lose it.'" " Any such stipu- 
 lation would be absurd, as property is inseparable from the right 
 to 'institute legal proceedings, and the protection of the law. "If 
 " it was once ascertained that a party was unable to take legal 
 " proceedings to substantiate his title, the very persons against 
 "whom he was to enjoy the property, would take possession and 
 "keep it, and they would have the advantage of the conditions 
 " and ultimately the protection of the law, as after a certain 
 " time, it would recognize their right to the property." In the 
 present case the devisees and legatees are prohibited from " pro- 
 ceeding to law in any Court or Courts for their said shares." 
 
 It 'seems to me that the very proviso is open to the very same 
 objection as that in Rhodes v. The Muswell Hill Land Company, and 
 that it is, equally inconsistent and repugnant to the devisee. 
 I am of opinion therefore that it is void. The third question is 
 that arising on the plea of Daniel Logan and others of the defen- 
 dants. The plea in effect alleges, that the petitioner Fatimah 
 was duly diyorced from her husband the late Mahomed Noordin, 
 according to the Mahomedan law and religion, and that she was 
 never re-married to him. There is no dispute as to the marriage, 
 and the only question is, whether there was a regular divorce 
 according to Mahomedan law. 
 
 Several witnesses were examined on behalf of the defendants 
 to prove the divorce. Vappoo Noordin, the eldest son, said that 
 he had heard of the divorce andhad seen the paper of divorce, but was 
 not present on the occasion. The witness also proved his father's 
 signature in two boots produced in Court, purporting to be records 
 or registers of the divorce [Exhibits A. & B]. Nina Noordin, the 
 second son, stated that his father was divorced from Fatimah in 
 1852, when she went to live in a separate house in the same com- 
 pound. That he does not believe his father ever cohabited with 
 Fatimah after the divorce. That his father said he divorced her 
 on account of her inattention during his illness. He said that his 
 
264 CIVIL OASES. / 
 
 / 
 Hackett, J. father frequently spoke of the divorce, and that it was thoroughly 
 
 7 • understood in the family that she was divorced. 
 Fatimah & The witness accounts for the fact of Fatiinah's being allowed 
 
 oes. to remain in his father's compound, by the circumstance 1 that her 
 L * 4 aaughters were living there. He further states that in the year 
 "'""'" ' s ' 1865, the daughter CheeMah, having left the house clandestinely 
 in which she was living with her mother, Fatimah, his father, told 
 the witness to go and tell Fatimah " she must leave the house as 
 " she was a divorced woman," and that she was accordingly turned 
 out. The witness however states that Fatimah came to the/house 
 four or five days before the death of Noordin. Nonia Soo Eng 
 states that she livtid in Noordin's house as a concubine for twenty 
 years before his death. She says that Noordin got angry with 
 Fatimah during his illness, because she did not attend to him, and 
 that next day he assembled all the women in the house, and also 
 two men named Alliar and Hadjee Lebby, and directed the wit- 
 ness to bring his bag of rupees. That he then took three rupees 
 and giving them to Fatimah, said " there's your taluk ! Take your 
 " taluk and go ; don't remain here ! " That then her daughter, Mah 
 Chee, came and cried bitterly and said " as you will have nothing 
 " to' do with her, I will take my mother." That Fatimah then went 
 and lived with her daughter. The witness stated on cross-examin- 
 ation that Fatimah lived in the same house, on a different side, 
 with her daughter, and that after a year she removed with her 
 daughter to another house, built in the same compound. The wit- 
 ness states that all the other witnesses to the divorce are dead, 
 except the other, Nonia [next witness] . Noma Ugay Eh, another 
 concubine of the testator, gave much the same description of the 
 divorce. She says that the testator gave three rupees to Fati- 
 mah and said " Here is your taluk ; you and I are no more 
 "man and wife ;" that after taking them, Fatimah went down- 
 stairs and cried. That her daughters also cried. That her 
 eldest daughter asked Noordin if her mother might live with 
 her. That he said he did not care, but that she must leave the 
 house ;that the daughter cried more and more and begged her 
 father to relent. And that at length he said, his daughter might 
 do as she pleased. That Fatimah then went to live in her daughter's 
 apartment, and afterwards went to live in another house. 
 
 The plaintiff Fatimah altogether negatives the statement of 
 these witnesses, and denies in the most positive manner, that she 
 was ever divorced from her husband. But, 1 confess, T don't 
 think any reliance can be placed on her testimony, as she pleads 
 ignorance of certain circumstances with which it is impossible to 
 suppose that she was not acquainted. 
 
 How can it be supposed for instance, that she can have been 
 ignorant of the fact that the belief was prevalent in the house- 
 hold that her husband had divorced her on account of her inatten- 
 tion to him during his illness. 
 
 ..ISwT^/l 1 , tllink u P° n the evidence, it must be 
 assumed that Noordin took care to have the fact of the divorce 
 legistered in Khatib's book, can it be supposed for a moment 
 ™?t< IT S01 ] m ° St mterested in th e matter, knew nothing of it 
 p<uticularly when we couple with it the facts that Fatimah 
 
. Logan & oes. 
 
 STRAITS SETTLEMENTS. 265 
 
 removed to her daughter's apartments, and within a year after went Hackett, J. 
 to live in another house ? The evidence of Tengah Chee Mah, 18 ' L 
 Fatimah's daughter, does not seem to me to be material, as she fatimah & 
 was too young to have known of the divorce at the time it is alleged obs. 
 to have been made. „ "■„ 
 
 Then there was the evidence of Mahomed Ally, a Khatib or priest ' 
 of the Mahomedan mosque. He produces the following paper : — 
 
 Copy of Divorce. 
 
 " In the year 1268, on Tuesday, in the day-time, in the 22nd day of the 
 " month of Shawal, in Penang, Merchant, Mahomed. Moordin Mericayar's 
 " wife's original name was Echee. At the time of the writing of the marriage 
 " paper a name was given and she was called Eatimah Merchant Mahomed 
 '■ NoordinMericayar gave unto that woman three taluks and settled. The 
 " witnesses thereto are, Kazi Haji Hussain, Court Shroff Alliar, and Haji 
 "Lebby. 
 
 " Written by Mahomed Salleh, sonof Macodah Tomby Sahib. 
 
 "Mahomed Noobdin [in Tamil]. 
 "Mahomed Nooedin [in English]." 
 
 and says that he saw Mahomed Noordin sign it. The book in 
 which it is written, is a register of marriages and divorces kept 
 for the Mahomedan community. He says that the entry was 
 made on the day in which it bears date, in Noordin's house and 
 by his desire. The witness stated that the giving of the three 
 taluks was sufficient to constitute a divorce according to the doc- 
 trine of the Safutes. 
 
 The next witness was Hajee Abdul Gunny, a Doctor of Maho- 
 medan law. He stated that if a man gives his wife three taluks, 
 and says he divorces her, the divorce is "good provided that she 
 heard it. This witness said further, that there must be two or 
 three good men as witnesses of the divorce. That these witnesses 
 must say they saw the taluks given. That if a divorce is in 
 writing, it must reach the hands of the wife. That the entry in 
 the book is insufficient, unless the witnesses should come forward 
 and prove that they were present at the time of the divorce. On 
 further examination the witness stated, that if a Mahomedan 
 husband divorces his wife and there is no witness, still the divorce 
 is good. Evidence was given to shew that Mahomed Noordin 
 belonged to the Safute sect of Mahomedans. 
 
 The next witness was a Kazi, Haji Mat Shera. He states 
 that if a man takes three rupees and gives them to his wife-and 
 says, " take your taluk and go," that is a revocable divorce ; but 
 if after the husband's death, the wife was to deny the divorce, it 
 would not be valid, as there would not be sufficient evidence of it. 
 The witness further stated that the evidence of two concubines 
 would not be sufficient to prove a divorce. The result of the 
 whole evidence, I think, is that in the year 1852, Mahomed 
 Noordin wa.s deeply offended with his wife for her alleged neglect 
 of him during his illness, and that in consequence, he summoned 
 all the women of the household and other persons, as witnesses, 
 and in their presence gave her three taluks and formally divorced 
 her, commanding her to leave the house, but on the entreaty of his 
 
266 OIVIL CASES. 
 
 Hackett, J. daughter, lie allowed her to occupy a part of her daughter's apart- 
 
 1 871 - ment until she removed to another house. He also appears to have 
 
 Fatimah & summoned the khatib of the mosque, aud ordered him to make an 
 
 ors. entry of the fact of the divorce in the register of marriages and 
 
 divorces, which entry was doubtless intended to be an enduring 
 Logan & ors. « <• .i c ±. 
 
 proof ot the tact. 
 
 As the Mahomedan law is a foreign law to us and is not, as it is in 
 India, to a certain extent part of the law of the land, there is some 
 difficulty in ascertaining what the law is, in a satisfactory manner. 
 But, I think, it may be sufficiently collected from the evidence of 
 the three learned Mahomedan s who have been examined, that the 
 divorce spoken of by witness ISTonia Soo Eng and Nonia Ugay Eh, 
 was a valid divorce according to the doctrines of the Safutes, the 
 sect to which Mahomed Noordin belonged. 
 
 It is true that such a divorce is said to be revocable. It may 
 be so. But there is no evidence that it ever was revoked. The 
 fact that after the alleged divorce, Fatimah left the conjugal apart- 
 ment and went to live with her daughter in another part of the 
 house, and that subsequently she removed to another house, and 
 never -again returned to live in the house of her husband [except 
 when her husband was on his deathbed] , seems to me inconsistent 
 with the supposition that she was ever restored to the position of a 
 wife. The evidence of Nina Noordin, who states that in 1864, thir- 
 teen years after the alleged divorce, his father told him to order 
 Fatimah to leave the house in which she was living, " because 
 "she was a divorced woman," shews clearly that Noordin himself 
 considered the divorce as binding, and it may be not immaterial to 
 mention as sure evidence of Noordin's estrangement from his 
 former wife, and the mother of his children, that she is not even 
 named in his Will. 
 
 It has also been urged by the Attorney-General that there is 
 not sufficient evidence of the divorce, because the two concubines 
 who testify to having been present, are competent witnesses accord- 
 ing to Mahomedan law. But in my opinion that is no reason why 
 their evidence should not be received in this Court. According to 
 Story [Gonft. Laws, 634], " the course of procedure ought to be 
 " according to the law of the forum where the suit is instituted. 
 "... The admission of evidence, and the rules of evidence, are 
 " rather matters of procedure than matters attaching to the rights 
 " of parties .... and therefore they are to be governed by the 
 " law of the country where the Court sits." And Lord Brougham. 
 states [in Bain v. Whitehaven- Ry . Co., 3 H. L. C. 19] : " As to 
 " the stipulations of contracts, our Courts are bound by foreign 
 " law. But it is a totally different thing as to the law of evidence. 
 " Whether a witness is competent or not ; whether a certain matter 
 " requires to be proved by writing or not ; whether certain evidence 
 " proves a certain fact or not, that it is to be determined by the 
 " law of the country where the question arises, where the remedy 
 " is so ought to be enforced, and where the Court sits to enforce 
 " it." 
 
 I therefore think that the objection to the testimony of the 
 two concubines on the ground of their incompetency, cannot be 
 
STRAINS SETTLEMENTS. 267 
 
 sustained, and on the whole I am of opinion that the plea alleging Hac jkett, J- 
 the divorce has been proved. ' 
 
 I will now proceed to consider those portions of the Will fatimah & 
 which have been attacked by the plaintiffs. 0BB - 
 
 The 6th 'paragraph of the petition was abandoned by the ^J'^ 
 Attorney-General, and need not be considered. 
 
 The 7th paragraph states thatthe testator by his Will, in the 3rd 
 section, bequeathed certain personal property, consisting of house- 
 hold furniture, wearing apparel, plate, crockery, jewellery, and other 
 things, to two of his natural sons, and in a subsequent section of 
 the Will, the whole of the testator's personal estate and effects 
 whatsoever are bequeathed to the executors of the Will in trust, 
 and the petition goes on to charge that the subsequent bequest of 
 the personalty, overrules and renders void the previous bequest to 
 the two natural sons. The sections thus referred to, are as follows : 
 — [3rd and 4th sees, read in extenso.~\ 
 
 The contention is, that these two sections are irreconcilable, so 
 that they cannot possibly stand together, and therefore the 4th 
 section must prevail, on the principle that the subsequent words 
 of the 4th clause are considered to denote a subsequent intention. 
 But this rule, which sacrifices the former of several contradictory 
 clauses, is never applied, but on the failure of every attempt to give 
 to the whole, such a construction as will render every part of it 
 effective [1 Jarm. 445]. Now here we have in the 3rd section, 
 gifts of certain specific parts ilominatim of the testator's personal 
 property, and in the subsequent section, a gift of all his personal 
 estate and effects whatsoever and wheresoever. This, it seems to 
 me, is a case in which the rule, that a devise or bequest in general 
 terms shall not be held to control another devise or bequest made 
 in distinct terms, may be properly held to apply. 
 
 In B or r ell v. Maigh [2 Jur. 229], a testatrix devised all her 
 messuages, cottages, closes, land, and hereditaments atH. to A. and 
 afterwards gave all her copyhold estates and hereditaments at 
 N. and T. and elsewhere. It appeared that the only place besides 
 N. and T. in which the testatrix had copyholds, was H., but Lord 
 Laugdale held that the prior devise, which clearly carried the 
 copyholds at H., was not defeated by the vague expression which 
 followed. Upon the same principle, I think, the specific bequests 
 in the 3rd section of the Will, are not defeated by the general 
 bequest contained in the 4th section. 
 
 The next question is one raised in the 7th paragraph of the 
 petition and arises in the 5th clause of the Will. 
 
 By that-clause, the testator after certain bequests, directs the 
 residue of the property, divided and bequeathed in the 4th clause, 
 to be divided into twenty-four equal shares, and he then proceeds 
 to distribute these shares among his children and grandchildren 
 in certain proportions, and gives one of these shares to his grand- 
 son Abdul Cauder Jellamy. Abdul Cauder Jellamy having died 
 in the lifetime of the testator without issue, it is contended that 
 his share lapsed, and I think there can be no doubt that his share 
 did so lapse, and that it falls into the general residue of the 
 -testator's estate. 
 
268 Civil oases. 
 
 Hackett, J. The next question arises on the 6th section of the Will. By 
 
 1871- that section the testator devised eleven pieces of land in Penang, 
 Patimah & particularly described in his Will, to trustees, and directed that 
 oks. the lands should be called the " Whakoff of Mahomed Noordin;" 
 " and he further directed his trustees, but of the rents and profits of 
 
 ' the said lands, to pay for ever the sum of twenty dollars monthly 
 to the managing body of a school in Chulia street, Penang; also 
 the sum of sixtydollars monthly to the petitioner, Tengah Chee Mah, 
 and her lawful issue during their natural lives, the sum of forty 
 dollars monthly for the maintenance of one of his sons and his 
 wife. The testator then gave the residue of the said devised 
 premises upon trust as follows : " To expend for the yearly per- 
 " formance of kandoories and entertainments for me and in my 
 " name, to commence on the anniversary of ruy decease according 
 " to the Mahomedan religion or custom, such kandoories and 
 " entertainments to continue for ten successive days every year, 
 " and also in the performance of an annual kandoorie in the name 
 " of all the prophets, and to expend the same in giving a kan- 
 " doorie or feast according to the Mahomedan religion or custom, 
 " to the poor, for ten successive days in every year, from the anni- 
 " yersary of my decease, to the extent of three hundred dollars," 
 " including the cost of lighting up the mosque or burial-place of 
 " my deceased mother and the school-rooms thereto adjoining. 
 " And also to give kimdoories or feasts to the poor as aforesaid, 
 "once every three months, to the extent of one hundred dollars, 
 " and provided there should remain any surplus moneys, then the 
 " same is to be expended in purchasing clothes for distribution to 
 "the poor." 
 
 The petitioners maintain [see 10th paragraph of petition] that 
 this devise is bad in law, and that the said eleven pieces of land 
 should fall in the residue of the testator's estate. 
 
 _ Now this is a devise to trustees upon certain trusts which 
 I will take seriatim. First, then there is a trust in favor of a school, 
 built by the testator " for the learning in English, Hindoostanee, 
 "Malay, Tamil, Malabar, and the Alkoran" which seems to 
 me a good charitable gift and therefore perfectly valid. Then 
 there is a trust for the support and maintenance of testator's 
 daughter, Tengah Chee Mah, the sum of sixty dollars per 
 month to be paid to her and her lawful issues during their natu- 
 ral lives, for their sole and separate use, without power to dispose 
 of the same by way of anticipation. Here the testator evidently 
 intended to make a provision for his daughter and her children 
 But the manner in which it is to be carried out, is not very 
 intelligible. Prima fade, it is a gift to his daughter and her 
 children jointly, but then there are the words " for their and 
 her sole and separate use without power to dispose of the 
 "same in the way of anticipation," and besides there is the com- 
 mencement of the clause containing ;the gift in which it is said to 
 « w 1° » t SU?P °1 an x 1 mainten f nee °f m J daughter, Tengah Chee 
 hoS n°T g £ a i S tWT ^*2™™*7 object of the testator's 
 bounty. On the whole I think, I shall best effectuate the testator's 
 intention by holding it as a gift to his daughter for life, for her 
 
STRAITS SETTLEMENTS, 269 
 
 sole and separate use, with remainder to such children as were in HaC j|^j T ' J ' 
 existence at the time of the testator's death as joint tenants for — ' 
 life. The word "issues' seems to be used in the sense of Fatimah& 
 " children." At any rate it must be construed as a word of pur- °bs. 
 chase and not of limitation, and as only life estates are given to logan&obs. 
 the " issues," I do not think the gift can be construed so as to let 
 in children born after the testator's death. Then there is a sum 
 of forty dollars per month to be paid to Shaik Meydin for the 
 maintenance of Beebee and Habib Mahomed Merican Noordin in 
 accordance with the terms of a certain marriage settlement. Upon 
 this no question has been raised. * Then there is the trust of the 
 residue of the rents and profits of the subject of the devise, and 
 I have to express my regret that the question of the validity of 
 these trusts were not more fully argued. The purpose of this trust 
 seems to be of a ceremonial, religious, and also of a festive nature. 
 They are described by the testator as " kandoories and entertain- 
 " ments for him and in his name, to commence on the anniversary 
 "of his decease according to the Mahomedan religion or custom." 
 In another place he speaks of " an annual kandoorie in the name 
 " of all the prophets," and also of a " kandoorie or feast accord- 
 " in^ to the Mahomedan religion or custom to the poor for ten 
 " successive days every year from the anniversary of my decease." 
 The clause concludes by directing that kandoories or feasts shall 
 be given to the poor as aforesaid once in every three months, to 
 the extent of one hundred dollars, and directs that any surplus 
 which should remain, shall be expended in purchasing clothes for 
 distribution to the poor. This clause was not discussed at any 
 length, and I have no means of knowing the meaning of the word 
 kandoorie except from the context, as there was no evidence on 
 the point. But the whole object of this clause seems to be to 
 provide funds for certain ceremonial entertainments to be given 
 in honour of the testator, in accordance with the Mahomedan 
 religion or custom. As the gift is to last for ever, the question 
 arises whether it is charitable or not, as if it is not, it is void as 
 tending to a perpetuity. No evidence was given" to shew the 
 nature and object of these feasts and kandoories, and whether 
 they are enjoined by the Mahomedan religion, and I am therefore 
 left to form my opinion from the words of the Will itself, and 
 I confess that looking at the description of the objects of the testa- 
 tor's bounty in the most liberal manner, it does not appear to me 
 that they can, in any sense of the word, be called charitable. 
 I do not see how it can be of any public utility to give feasts even 
 when those feasts are to be enjoyed by the poor. For although 
 it would be good charity to give alms to the poor, a feast can 
 scarcely be regarded in the same light. On the whole I am of 
 opinion that the gifts in ihe clause are not charitable, ■ and that 
 they are therefore void. 
 
 The only remaining question on this part of the Will is, as to 
 to the gift of the surplus monies " to be expended in purchasing 
 " clothes for distribution to the poor." When a testator gives 
 funds for purposes which are illegal or unattainable, and gives 
 what may remain after providing for those purposes to a purpose 
 
V. 
 
 Logan & oes. 
 
 670 CIVIL CASES. 
 
 Hackett.J. which is legally good, the question of the validity of the gift of 
 1871 ■ the surplus would seem to depend on whether the exact amount 
 
 Fatimah & to be laid out on the prior purposes, is either specified or can he 
 oes. ascertained [Chapman v. Brown, 6 Ves. 404; Limbrey v. Gurr 
 6 Mad. 1 51] . The language of the testator here, is not very clear, 
 but I think the clause may be construed, without doing violence 
 to the language used, by holding that the words " to the extent of 
 " three hundred dollars" apply to the whole preceding clause, so 
 that there, would be an annual gift of that amount for all the 
 purposes previously mentioned. Then comes the gift of one 
 hundred dollars once in every three months, for giving feasts' to 
 the poor, about- which there is no doubt, and then we have the 
 gift of the surplus. If I am right in this construction, the testator 
 would have given altogether the sum of seven hundred dollars 
 annually for the kandoories or feasts, and the surplus, if any 
 should remain, was to be expended in purchasing clothes for the 
 poor. According to this reading of the clatise, the surplus is per- 
 fectly capable of being ascertained, and there is therefore no 
 objection to it on the ground of uncertainty, and as the gift seems 
 to me to be a good charitable gift, I am of opinion that the gift of 
 the surplus is valid. 
 
 The next question arises upon the 7th clause of the Will. 
 By that clause, the testator devises to his trustees all the rest and 
 residue of his real estate in Penang or Province Wellesley or else- 
 where, [exclusive of what he had by deeds of gift given to his 
 children and grandchildren] upon the following trusts. That 
 his trustees should lease or let the said lands for any terrn not 
 exceeding seven years, and should hold the nejLiacome thereof, 
 after deducting the expenses of collection and' management, and 
 divide _it, into the twenty -four shares, which shares were to be 
 held upon trust for the benefit of his children thereinafter 
 named and their issue. The testator then proceeds to distribute 
 these twenty-four shares amongst his children and grandchildren 
 in certain proportions, and finally directs as follows: "I direct 
 " that the annual income of the said share or shares so set apart 
 " for my said sons and grandsons, and their respective issues in 
 " the said trust estate and premises, shall be paid to the same 
 " son or grandson during his life, and from and after his decease, 
 " that his said share or shares be held in trust for all such ones^ ki 
 " rfc&m. of his children and remoter issue born in his lifetime at 
 " such ages and times asj^ may by any writing iinder his hand or 
 " by his Will appoint, and in default of such appointment, &c, in 
 " trust for all hjs children who being a son shall attain the age of 
 " twenty-one years or being a daughter shall attain that age or 
 " marry, in equal shares, and if <thgH> there shall be but one such 
 " child, the whole to he in trust for such child." Then comes 
 a hotchpot clause, and then there are cross^remainders between the 
 different devises. jx .fcift/V 
 
 -Upon this devise, the Attorney-General has contended in the 
 first place that" it is void from remoteness. But I confess I am 
 unable to see in what manner it violates the rule against perpetu- 
 ties. The land is giveoto the trustees iu trust to pay the annual 
 
 ^ 
 
STRAITS SETTLEMENTS, 
 
 871 
 
 income to his sons,\&p), for their lives, and from and after their de- 
 cease to hold their respective shares in trust for all or such one or 
 more of his children or remoter issue horn in his lifetime at such ages 
 and times as each of his sons,&c.,may,by wrrEmgunder his hand or by 
 his Will appoint, and m default of appointment, &c, intrust for allhij 
 cTfildren. Sow the effeet of this devise is, to each of his sonsjy&e! 
 a life estate in his share and a power of appointment among ins 
 chil drcn or remoter is sue born in the lifetime of the tenant foF 
 life, which, as the appointees are persons competen t to hav e taken 
 directly under tti eVV jXU seems to me a perrectTy goocTTimitation. 
 "" Tn*e~JLfBorn^^General then contended that certain of the 
 shares given in the seventh clause of the Will have lapsed. 
 
 First, as to " one share" which is directed to be set apart and 
 held in trust for his son, Mahomed Mashoredin Mexican Noordin, 
 and his issue, but in case he should die leaving no issue, then his 
 share to go to the use of Abdul Cauder Jellamy and Rajah Bee 
 a nd their iss ne in equal shares ; and secondly as to the " one share" 
 directed to be held apart, and held in trust for Abdul Cauder 
 Jellamy and his issue but in case he should die leaving no issue, 
 then his said share to go to the use of Mahomed Mashoredin 
 I Merican Noordin and Rajah Bee and their issue in equal 
 shares: Abdul Cauder Jellamy having died in the lifetime of 
 t he testator without issue, the petitioners contend tnafHEIie said 
 Snares faff into the u ndispos ed residue of the testator's estate. 
 There are two questions here, first, as to the share of Ma- 
 homed Mashoredin Merican Noordin. The testator directs 
 that if he should- die leaving no issue, then his share 
 should go to Abdul Cauder Jellamy and. Raj ah Bee and their issue. 
 Mahomed Mashoredin M. Noordin has survived the testator and has 
 become entitled to his share, and as_the_£yeni in which the gift o ver 
 is to take effect, m aynever occur^ it isprgm a^^to d iscus s the que tP 
 tioftw-hfit h.er thejs pJ3a a dielelaVing hoissue n apply fco'the eontin- '' 
 gency happening as well after as before the death of the testator. 
 Secondly, as to the originaTshare of Abdul Cauder Jellamy. The 
 testator gives it to his grandson, Abdul Cauder Jellamy, and his 
 issue. But in case he should die leaving no issue, then his said share 
 is to go to the use of Mahomed Mashoredin M. Noordin and 
 Rajah Bee and their issue in equal shares. The petitioners. contend 
 r that this share has lapsed by the death of A. C. Jellamy in the life- 
 time of the testator, and that the gift over does not take effect. 
 But it appears to me that this is not so. ' The testator gives these 
 shares to his ch ildren and grandch ildren in strict settlem ent, and 
 subsequently provides for the event of any-of Uis childjS nwho su r- 
 vived hinp leaving no issue to take under the trustsof the Will. 
 Now it appears to me that this furnishes a reason for supposing 
 that the testator in giving over the share of A. C. Jellamy on his 
 death without issue intended to refer to his death in the lifetime of 
 the testator, because the event of his surviving the ,testator and 
 having no son or daughter to take his parent's share is fully prov i- 
 ded fo r in the general clause establishing cross-remainders 
 between" all the devisees under tEe^portion of the Will. But 
 however this may be, there is high authority for holding that the 
 
 Hackett, J. 
 1871. 
 
 Fatimah & 
 
 OES. 
 V. 
 OS AN & OES. 
 
272 
 
 CIVIL CASES. 
 
 Haokett, J. 
 
 1871. 
 
 Fatimah & 
 
 OKS. 
 V. 
 
 Logan & obs. 
 
 Penang. 
 
 hackett, j 
 1872. 
 
 March 18. 
 
 words " die leaving no issue" apply to death in the lifetime of 
 the testator. The general rule mentioned in Jarman [2 Jarm. 
 713] that where the gift is to a designated individual, with 
 a gift over in the event of his dying without having attained 
 a certain age, or under any other prescribed circumstances, and the 
 event happens accordingly in the testator's lifetime, the ulterior 
 gift takes effect immediately on the testator's decease as a simple 
 absolute gift, seems to me to apply. I therefore think that there 
 is no lapse in this case and that the gift over takes effect. The 
 petitioners further contend that the gift in the 7th clause of the 
 Will of the rest and residue* of the testator's real estate in 
 Penang and Province Wellesley or elsewhere, is inconsistent with 
 that contained in the 4th and 5th clauses of the Will, by which 
 the testator disposes of all his real and personal estate in 
 Akyab and in the Tenasserim Provinces. But I confess I am 
 unable to see the inconsistency. The words " rest and residue" 
 exclude what the testator has already given, and the effect of 
 these words does not appear to me to be affected by the parenthe- 
 tical clause, " exclusive of those which I have by deeds of gift 
 given to my children and grandchildren." I am therefore of 
 opinion that the gift in the 4th and 5th clauses is not affected by 
 the disposition contained in the 7th clause of the Will. 
 
 MUNICIPAL COMMISSIONEES v. TOLSON. 
 
 A plea claiming a right-of-way under the Prescription Act 2 & 3 Wm. IV., 
 Cap. 74, is had on demurrer, as this Act does not extend to the Straits Settle- 
 ments. 
 
 This was an action of trespass. There were several pleas. 
 The fourth plea was as follows : " And for a fourth plea the 
 " defendant says that, at the time of the alleged trespasses, 
 "Walter Gillespie, James Gillespie, and William Lorrain Hill 
 " were possessed of land whereof the occupiers for 20 years 
 " before this suit enjoyed as of right and without interruption, 
 " a way on foot and with horses and other cattle and with 
 " carriages from a public highway over the said close of the 
 " plaintiffs to the said land of the said Walter Gillespie, James 
 " Gillespie, and William Lorrain Hill, and from the said land of 
 " the said Walter Gillespie, James Gillespie, and William Lorrain 
 " Hill over the said close of the plaintiffs to the said public high- 
 " way, at all times of the year, for the more convenient occupa- 
 tion of the said lands of the said Walter Gillespie, James 
 " Gillespie, and William Lorrain Hill ; and that the alleged tres- 
 " passes were a use of the said way by the defendant as a servant 
 " of the said Walter Gillespie, James Gillespie, and William 
 " Lorain Hill, and by their commands and under their authority." 
 
 The plaintiff demurred to this plea and joined issue on the 
 others, the marginal note of the demurrer being as follows: 
 " A matter of law intended to be argued is, that the title by which 
 " the right-of-way is in and by the said plea claimed to have 
 " been obtained, is unknown to the law ; and that the facts in 
 " such plea disclosed, give no right or title to the parties [as whose 
 
STRAITS SETTLEMENTS. 273 
 
 " servant and by whose command and under whose authority the Haokett, J. 
 ''defendant acted] to commit the trespass complained of, and ' '"" 
 " cannot therefore justify the defendant himself in so doing." Municipal 
 
 The defendant joined in demurrer. Commhs. 
 
 B. Rodyk, in support of the demurrer, contended that the T ''• 
 plea was bad, as the Prescription Act 2 & 3 Win. IV, c. 71, on 
 which it was founded, B. & L. 811 [3rd ed,\, did not extend to 
 the Straits. 
 
 Bond, contra, contended that the plea was good, as the Act 
 did extend, and there was no reason why it should not extend. 
 
 Hnckitt, J., held that the Act did not extend ; for if it did, 
 ■it would work great hardship among the ignorant natives of the 
 place, and therefore the plea was bad. 
 
 Demurrer allowed with, costs, [a] 
 
 KO BO AN v. PUNGHULU SHAIK BEENAN. 
 
 By section 29 of Act X LVIII of 18G0, in an action against a Police Officer for any Penanci. 
 
 thing done, or intended to be done, by him in the execution of his duty, it is not only 
 
 necessary to allege in the pliadin^s that he acted maliciously and without reasonable Hackett, 
 
 and probable" c tuse, but it must clearly bo made out, by evidence, that the officer so 1872. 
 
 acted. . 
 
 Therefore, in an action a,'imrt a Pjri/hulu for asnnlfc and false imprisonment, Aprils. 
 
 although it was clearly proved by the plaintiff that he was assaulted aiKl imprisoned, and . 
 
 that the defendant in so acting against him, had no reasonable or probable cans, - ', yet, 
 as no actual m ilioo on the pirlof the Piuighulu was shewn, the defend mt had judg- 
 ment with costs. 
 
 This was an action for assault and false imprisonment. The 
 plaintiff was a trader at Nebong Tebal in Province Wellesley. 
 The defendant was the Punghuln, or Chief Police Officer, of that 
 district. The plaintiff was suspected, though without any real 
 foundation therefor, of smuggling opium; whereupon the Super- 
 intendent of Police in Province Wellesley wrote to the defendant 
 a letter to take plaintiff into custody. The defendant accordingly 
 did so, but afterwards, by orders of his said superior officer, 
 released him. This was the trespass complained of. The defendant 
 pleaded the general issue, relying on section' 29 of the Police 
 Act 48 of 1860. 
 
 Bond for plaintiff. 
 
 D. Logan [Solicitor-General] for defendant. 
 
 Cur. Adv. Vv.ll. 
 
 April 24. Hachett, J. — This is an action to recover damages 
 for an assault and false imprisonment. The assaxilt and imprison- 
 ment were clearly proved. But the question is, was the defendant 
 justified by Statute. The defendant relied on a letter he had 
 received from his superior officer, and on the 29th section of 
 Act 48 of 18G0— but, as far as the letter is concerned, that 
 can afford no justification. The principal part of section 29 of 
 Act 48 of I860, and on which the defendant relies, is in the 
 following words : '< and in every such action, it shall be expressly 
 
 [a] See judgment in. this case, infro, p. 277. 
 
274 
 
 CIVIL OASES. 
 
 Hackett, J. 
 
 1S72. 
 
 Ko Bo An 
 
 v. 
 
 PuNQHULTJ 
 
 Shaik Bee- 
 nan. 
 
 " alleged in the plaint that the act complained of was done malici- 
 " ously and "without reasonable or probable cause, and if at the 
 " trial of any such action, upon the general issue being pleaded as 
 " hereinafter provided, the plaintiff shall fail to prove such allega- 
 " tion, he shall be nonsuited., and a verdict shall be given for the 
 " defendant." 
 
 Now, in this case I must confess there was no " reasonable 
 " cause," but I also think that the act was not done " malici- 
 " ously." I think that the letter to the defendant from his superior 
 officer is an answer to the charge of malice. The defendant 
 felt himself bound by his superior's orders, and was not acting of 
 his own accord. These words are not in Act XIII. of 1856 or any' 
 of the English Statutes. The only protection the constables and 
 those acting under the Act had, by that Act, was the notice there- 
 in mentioned ; but the protection afforded under section 29 of 
 Act 48 of 1860 is more extensive, [a] The acting "maliciously 
 "and without reasonable or probable cause," must be clearly 
 proved, and it cannot be presumed on the evidence brought forward 
 by the plaintiff. *■ 
 
 Judgment for defendant with costs. [6] 
 
 CHAN GUAN TAK v. CHIN KIM FAT & ANOK. 
 
 Penang, In a case of scire facias to revive a judgment, it ia too premature and irregular 
 
 to arrest the defendant before the time allowed by the scire facias to shew cause, has 
 
 Hackett, J. expired, and the defendant will be discharged from custody. If judgment is recovered 
 1872. against two, and one shortly after, is adjudicated insolvent, and the judgment is there- 
 
 after sought to be revived, the scire facias need not issue against the insolvent judg- 
 
 May 27- ment-debtor, but only against the other. 
 — — . Semble. If the rule, in a motion to set aside proceedings for irregularity, is made 
 
 absolute, and nothing is said about costs in the motion paper, costs will not be allowed. 
 Query. — Do the rules of Court in England and the Statute 13 Edw. I., o. 45 
 [West 2], extend here ? [c] 
 
 In this case, a scire facias to revive a judgment, and a writ 
 of arrest were issued against the first defendant. 
 
 C. W. Bodyh having obtained a rule to shew cause why they 
 should not be set aside for irregularity, and for certain defects 
 appearing in the affidavit on which they were granted, 
 
 D. Logan [Solicitor-General] now shewed cause. The 2nd 
 paragraph of the affidavit on which the rule was granted, I submit, 
 is bad. The Indian Act of Limitation gives 12 years. 
 
 [HackbU,J. — The judgment is revived by Statute of West 2' 
 [13 Edw. I., c. 45] and not by the common law.] 
 
 I submit that that Statute is applicable here ; it has always 
 been acted on both here and at Singapore. However, the judg-' 
 inent is revived in time by the 19th section of Act XIV. of 1859 
 [the Indian Act of Limitation] . That section states " no proceed- 
 
 [o] Section 29 has been repealed and re-enacted by section 47, Ordinance I of 1872 
 
 [6] Also see Thebbut v. Holt, 1 Car. & E. 282; Schiebel v. Fairlain i B & 
 
 P. 392 ; Lewis v. Morris, 2 C. & M. 712 ; Smith v. Eggington, 7 A. & E. 1G7 ■' Crozer 
 
 v. rilling, 4 B. &C. 26; 2 Pearson on PI. 584; Butley v. Bethume, 5 Taunt 580 
 
 Broom's Com. 072, 725-32 ; Mitchell v. Jenkins, 5 B. & Ad., 588. ' 
 
 [<Q See Bemben v. Curpen Keechee, 18th June, 1872, infra, 
 
STRAITS SETTLEMENTS. 275 
 
 " ings shall be taken to enforce any judgment, decree, or order of Hackett, J. 
 "any Court established by Royal Charter, but within 12 years im - 
 " next after a present right to enforce the same shall have accrued Chan Guan 
 " to some persons capable of releasing the same, unless in the Tak 
 " meantime such judgment, decree, or order shall have been ^ 
 " duly revived, or some part of the principal money secured by H & N AN or. AT 
 " such judgment, decree, or order, or some interest thereon, shall 
 " have been paid, or some acknowledgment of the right thei-eto 
 " shall have been given in writing , signed by the person by whom 
 " the same shall be payable, or his agent, to the person entitled 
 " thereto or his agent; and in any such case, no proceedings shall 
 " be brought to enforce the said judgment, decree, or order, but 
 '■ within 12 years after such revivor, payment, or acknowledgment, 
 " or the latest of such revivors; payments, or acknowledgments, 
 " as the case may be," &c, &c. The plaintiff's affidavit shews that 
 part of the mone3 r was paid. The scire facias is nothing more 
 than a proceeding to revive the judgment. The 3rd paragraph 
 states an objection that the names of both deponents should have 
 appeared in the jurat, and that they were severally sworn. This 
 objection would have been fatal in England, but not here, and the 
 cases on this point, such as Pardoe v. Ferrett, 5 M. & Gr. 291,. and 
 Cobbett v. OU field, 16 M. & W. 469, are no authorities, as they 
 were decided solely on the rules of Court, and there are no such 
 rules here. The 5th paragraph states that it should appear that 
 the affidavit was explained: this objection is untenable, as there is 
 a memorandum in the affidavit that the same was explained. The 
 6th paragraph states that the judgment being recovered in the 
 Court of Judicature cannot be revived in this Court. By the 
 Charter and Ordinance, the cases in the late Court are to be con- 
 sidered as pending in this Court. Tidd's Practice, p. 1105, is 
 a complete answer to this objection. The remaining objections are 
 immaterial. 
 
 C. W. Rodyh, in support of the rule. The judgment ought 
 to have been revived within a year and a day. Such is the 
 practice of this Court. 
 
 [Hackett, J. — How do you explain the Statute of West 2 ?] 
 . In ChitLy's Arch. Q. B. Prac. 1113 [14th erf.], it is stated 
 that the judgment must be revived within a year and a day. [a] 
 
 [Hackett, J. — That is at common law. The Statute 13 Edw. 
 I, enacts " that all matters inrolled, to which the Court can give 
 " effect, shall have such force, that it shall no longer be necessary 
 " to implead upon them ;• but if the plaintiff come into the Court 
 " within a year, he shall have execution forthwith ; or if he come 
 " after the year, a scire facias is to issue to warn the defendant 
 " to appear and to shew cause why the said matters inrolled 
 " should not be executed; and if be shew no cause, or if he do not 
 " appear, then the Sheriff shall be commanded to cause the said 
 " matters inrolled to be executed," thereby giving the scire facias.'] 
 
 That Statute does not apply to this Colony. It has always 
 been the practice of this Court to state the names of the defend- 
 
 [a] See Williams' Personal Property, p. 94. 
 
aw. civil cases. 
 
 Hackett, J. ants in ihe jurat, and that they were severally sworn. The rules 
 
 18?a - as to nffidavits are very strict. Thc-cases that the other side anti- 
 
 Chan Gtjan cipated I would cite, as well as Houlden v. Fassen, 6 Bing. 236, are 
 
 Tak applicable. 
 Chi KimPa [Hackett, J< — All those cases turned on the rules of Court.] 
 
 & anor. 1 submit that the practice of this Court is the same. Then there 
 
 are divers interlineations in the body as well as in the jurat of the 
 affidavit, which make the whole affidavit void, and therefore it 
 cannot be read. In re Worthington, 5 C. B. 511 ; re Page, 5 D. 
 & L. 475 ; re Fagan, 5 C. B. 436 ; Williams v. Clough, 1 Ad. & 
 E. 376 ; Chambers v. Barnard, 9 Dowl, 557. The affidavit also 
 ought to have been explained ; the memorandum therein is insuffi- 
 cient ; it is not signed by the Chinese Interpreter [a]. The judg- 
 ment cannot be revived in this Court, and the cases cited by the 
 other side are inapplicable. The plaintiff should have brought an 
 action in this Court on the judgment of the Court of Judicature 
 [2 Saunders, 72d.] 
 
 [Hackett, J. — Supposing judgment was recovered in an action 
 a day before the Supreme Court Ordinance came into operation, 
 would the plaintiff have to go to all the expense of bringing an 
 action on that judgment?] 
 
 Yes, there is no help for it.. Then the seire facias itself is bad. 
 The judgment was against two, and the scire facias should have 
 been issued against both ; and issuing it only against one makes 
 it bad. [Panton v. Hall, 2 Salk. 597]. The insolvent could then 
 plead that he was an insolvent. 
 
 [Hackett, J. — Why should the plaintiff go to such expense?] 
 
 Because the debt is a just one. A scire facias is not amendable, 
 Baynes v. Forrest, 2 Strange 892 ; Vavasor v. Bails, 1 Salk. ' 52. 
 Lastly, the defendant, Chow Ah Piang, the joint contractor of the 
 plaintiff, having been adjudicated an insolvent, the debt against 
 the defendant, Chin Kim Fat, is extinguished [King and another v. 
 Hoare, 14 L. J. Ex. [N. 8.] 29] [6]. 
 
 Logan in reply. The scire facias is good [Tidd's Prac. p. 934]. 
 
 [Hackett, J. — That does not apply ; the proceedings there men- 
 tioned are before final judgment.] 
 
 If the Court decides against me, then the only question 
 is about costs, and I submit as the motion is not for costs, none 
 can be given [2 Arch. Q. B. Prac. 277 [c]. 
 
 [Hackett, J. — Is not the arrest too premature and irregular ? 
 The scire facias commands him to shew cause in five dnys; the 
 judgment is not revived until than, and can the defendant then 
 be arrested now P ] 
 
 _ _ The arrest is not in execution, but only t d hold him to bail [d] ; 
 it is only as a security. 
 
 Hackett, J.— No, the order expressly stales it is under the 4th 
 section of the Debtors' Ordinance 22 of 1870, which relates to 
 
 [a] But see Margeili v. Touffroy, 1 Dowl. dl 
 Ex \b-] Also see ex-parte Higgins, 27 L. J., Q. B. 27, and Phillips v. Wari, 32 L. J. 
 
 [>] See Rex v Sheriff of Middlesex, 2 Dowl 5 
 
 AjSJ2erToT£li{ WdUn t01 ^ tlM » eTC * » ™* be «* &> 
 
STRAITS SETTLEMENTS. 277 
 
 arrest after judgment only. I think the arrest is too premature Hackett, J. 
 and must be set aside for irregularity, but I think the scire facias IS/ ~ " 
 is good. Iu the case of Panton v. Hall there were two writs of Chan Guan 
 scire facias, and this was held bad as it was like two actions Tak 
 instead of one. If a judgment is recovered against two jointly, c hin k' im ;f. it 
 and cne dies before execution, and before judgment is revived, &anok, 
 the^ scire facias is issued only against the survivor, and not 
 against him and the representatives of the deceased ; so by analogy 
 I think the one being adjudicated an insolvent, is in the eye of 
 the law the same as his dying) and the scire facias only issues 
 against the other, [a] 
 
 Rule absolute, without costs. [6] 
 
 MUNICIPAL COMMISSIONERS v. TOLSON. 
 
 Dedication, so as to constitute a public right-of-way, will not be presumed, Penang. 
 
 unless the fasts of the case are such as to shew that the owner of the soil intended ■ 
 
 to do so. User alone, for however long a period, is not conclusive on the point ; it Hackett, J. 
 
 may be rebutted by shewing that the state of the title was such that dedication 1872. 
 
 was impossible, or by facts shewing that the owner had no such intention. 
 
 A landing-place from the seaside to a highway, is prima facie also a highway; April -<• 
 but the presumption is not absolutely necessary, and may be rebutted as above 
 stated. 
 
 Trustees of land for a special purpose have no power to dcdicats it as 
 a highway. 
 
 A private right-of-way over land granted for a special purpose, will be 
 presumed after user for several years , where its user as a private right-of-way, 
 would not be inconsistent with the purposes for which the land was granted. 
 
 The formation and constitution of the municipal body, considered. 
 
 This whs an action of trespass. The facts and arguments are 
 fully set forth in the judgment. The case was heard on the 12th 
 to 15th, 18th to 23rd, 25th and 20th April, and on this day. 
 
 B. Rodyk for plaintiffs. 
 Bond for defendant. 
 
 Cur. Adv. Vult. 
 
 June 8. Hackett, J. — The plaintiffs in the present action are 
 the Municipal Commissioners of Prince of Wales' Island and the 
 defendant is the manager of the firm of Messrs. Lorrain, Gillespie 
 and Co., merchants of Penang. 
 
 The action has sprung out of disputes which have arisen 
 between the plaintiffs and the defendant, in respect of the right 
 to use a place called Church Street Ghaut, a passage running 
 from Beach Street to the sea and bounding the premises used by 
 Messrs. Lorrain, Gillespie and Co., the defendant contending that 
 this ghaut is a public highway, and that he has therefore the 
 right to open gates into it in any part of the adjacent premises, 
 
 [a] But sec Cocks v. Bremer, 11 M. & W. 51 ; Farder v. Kikerley, 2 M. & G. 
 760, s c. 3 So. N. E. 13S. 
 
 [&] See further as to tho arrest being premature, Alston v. Underhill, 2 DqwI 20. 
 
278 
 
 CIVIL CASES. 
 
 Hackett, 
 1872, 
 
 J. 
 
 Municipal 
 Commks. 
 
 V. 
 
 TOLSON. 
 
 and the plaintiffs denying that the ghaut is a public highway or 
 that the defendant has the right contended for. 
 
 The action is one of trespass, breaking and entering a close of 
 the plaintiffs' culled Church Street Ghaut, situate in George Town, 
 Penang, and for taking up, breaking down, and removing two 
 boards of the plaintiffs, fixed to the said close, for which tres- 
 passes the plaintiffs , claim $100 damages. The defendant has 
 pleaded, first, not guilty ; secondly, not possessed ; thirdly, a plea 
 of the public highway. The fourth plea has been held bad on 
 demurrer [a], and the fifth plea claims private right-of-way by 
 non-existing grants over the close in question. 
 
 About the two first pleas there is no difficulty ; it is clear that 
 the trespass was committed by the defendant's orders, and there 
 must therefore be judgment for the plaintiffs upon that plea, nor 
 do I think that there is any doubt that the plaintiffs have estab- 
 lished a sufficient title to enable them to sustain this action against 
 a wrongdoer. Trespass is founded upon possession, Graham v. 
 Peat, 1 East 243, 246 ; Lee v. Stevenson, E. B. & E., 512, and 
 the party in possession will make but a prima facie case sufficient 
 to entitle him to a verdict by proof of such possession in himself 
 and of entry by the defendant. There must therefore be judg- 
 ment for the plaintiffs in the second plea also. Then we come to 
 the third plea, which is ns follows : " The defendant says that at 
 " the time of the alleged trespass there was, and' of right ought to 
 " have been, a certain common and public highway into, through, 
 " over, and along the said close for all persons to return, pass, and 
 " repass on foot and with horses and other cattle and with car- 
 " riages at all times of the "year at their free will and pleasure. ' 
 " Wherefore the defendant having occasion to use and using the 
 " said way, because the said boards or fences had been and were 
 J' wrongfully erected across the said highway and obstructed the 
 " same, pulled down the said boards or fences which are the tres- 
 " passes alleged." . 
 
 The plaintiffs have taken issue on this plea, and I have there- 
 fore to decide whether upon the evidence, Church Street Ghaut is 
 or is not a highway, as alleged by the defendant. Highway is 
 said to be the genus of all public ways, of which Lord Coke says 
 there are three kinds, a footway, a foot and a horseway, and 
 a foot, horse, and cart way, Co. Lilt. 50 a. Mr. Smith [2 L. C. 13(i] 
 defines it as " a passage open to all the king's subjects," as it is 
 
 to all the king's 
 The present plea claims a right of 
 
 persons on foot and for 
 
 clear that eyerj passage which is open ale jure 
 subjects must be a highway 
 passage of the most extensive kind for 
 horses and other cattle and for carriages. 
 
 A way is usually constituted a public high-way by a dedica- 
 tion of _ it by the owner of the soil to the public use. And this 
 dedication may be presumed from circumstances. Thus, where 
 the owner of the soil suffered the public to have the free passage 
 of a street in London, though not a thorough fare, for eight years 
 without any impediment, it was held a sufficient' for presuming 
 clerelection to the public, Trustees of Rugby Charity v. Merry- 
 la] See ante p. 272, 
 
STRAITS SETTLEMENTS. 
 
 279 
 
 Municipal 
 
 Commes. 
 
 v. 
 
 TOLSON. 
 
 weather, 11 East 375. So, where a street communicating with Hackett, J. 
 a public road at each end had been used as a public road for four is ' 2, 
 or five years, it was held the jury must presume a dedication 
 James v. Dean, 3 J5im</,-447 ; see per Mansfield 0. J., Woodyer v. 
 Hadden, 5 Taunt. 125. 
 
 The defendant's case rests principally upon evidence of user, 
 and it is contended on his behalf that from the uninterrupted 
 user of the ghaut for the last sixty or seventy years, it must be 
 presumed that it was dedicated to the public as a highway. 
 
 The plaintiffs on the other hand, contended that the title and 
 history of the ghaut explain the user, and rebut the inference 
 which is sought to be drawn from it. They submit that in every 
 case the facts must be such as are sufficient to shew, that the owner 
 meant to give the public a right-of-way over his soil before 
 a dedication by him will be presumed. 
 
 Has there then been in the present case, user by the public 
 for a sufficient length of time of the close in question as a public 
 highway from which a dedication on the part of the owner, 
 whoever he may be, is to be inferred? and secondly, was the state 
 of the property and .the title such as lo make such a dedication 
 possible ? A great quantity of evidence, both documentary and oral, 
 has been adduced by both sides in order to sustain their respective 
 views, and I will now deal with the facts so far as they appear to 
 be material to the present question. 
 
 In the year 1800, it became manifest to the Local Govern- 
 ment of Prince of Wales' Island, that it was necessary to establish 
 an organization for the purpose of laying out and keeping the 
 town in order, and accordingly, at the suggestion of the then 
 Lieutenant-Governor, Sir George Leith, the principal European 
 and native inhabitants of the town met, and elected a Committee, 
 which was to levy assessments for the purpose of raising streets, 
 and making drains in the new town, which Committee was to be 
 presided over by a Government officer to be named by the then 
 Lieutenant-Goveriioi\ This Committee was aided in its efforts 
 by the Government, which gave money and land to assist them in 
 carrying out their views. At a meeting of the Committee held on the 
 4th January 1801, estimates were proposed for making streets and 
 drains, and it was also proposed that a ghaut should be made 
 opposite to the street leading out of Beach Street. It is important 
 to bear in mind that at this time the land on the seaward side of 
 Beach Street, was still unappropriated, and was called a mud bank, 
 and one of the objects of the Committee seems to have been to 
 have this mud bank covered with " puekka godowns." The 
 Committee therefore asked the Government for permission to sell 
 •this land, reserving sufficient space for the markets. The Govern- 
 ment having given the necessary permission, it appears from the 
 records of the Municipality that the mud bank to the eastward 
 of Beach Street was put up for auction, in lots, and sold in the 
 month of February 1801. The land upon which the godowns of 
 Messrs. Lorrain Gillespie and Co., stand, was purchased by a 
 Mr. Perkins, as well as the ground which now forms Church Street 
 Ghaut. But on the 30th March subsequently, the ground now form- 
 
280 
 
 CIVIL OASES. 
 
 Municipal 
 
 COMMB3. 
 
 v. 
 
 TOLSON. 
 
 Hackett, J. i n o- Church Street Ghaut, was repurchased by the Committee from 
 J * " Mr. Perkins for the purpose of making it into a ghaut opposite 
 
 to Church Street. At the same meeting of the Committee when 
 the Church Street Ghaut was repurchased, it was resolved that 
 a wall three feet wide and three feet high should be made between 
 (he ghaut and the adjoining ground as soon eis possible. 
 
 It is important to recollect that at this time [1801], the town 
 of George Town, properly so called, was not yet actually in 
 existence. It existed in great measure only on paper, in the 
 designs of the Surveyors. That which is now the eastern side of 
 Beach Street, a line of shops and godowns filled with merchandize, 
 was only an unsightly bank of mud, unavailable for any useful 
 purpose until it should be filled in and reclaimed. The ghauts, or 
 at least many of thein, existed only in name, and the streets to the 
 west of Beach Street were still in process of formation. This is 
 clear from a resolution of the Committee of Assessors of the 30th 
 August, 1801 : " That the Company's convicts be ordered to finish 
 " Bishop Street and Church Street, after which Mr. Brown be 
 " allowed 30, and that the remainder of the convicts be employed 
 "upon the ghauts;" and on the 28th September following, we 
 find the Committee approving of a contract for filling up the 
 Chulia Street Ghaut. On the 23rd November, 1801, it was agreed 
 that two hundred and fifty dollars be paid for filling up the Prison 
 Ghaut, and on the same clay it was resolved that a wall should be 
 made between the ghaut at the end of Church Street and Captain 
 Farquharson's premises, one half to be paid by the Commissioners 
 and the other half by Captain Farquharson's agents. It may be 
 remarked that in the grant of the Church Street Ghaut, it is 
 described as being bounded on the south by Captain Farquharson's 
 land, which would be the site of Messrs. liOrrain, Gillespie and 
 Co's godowns. 
 
 To proceed with the history of Church Street Ghaut, we find 
 
 the Committee of Assessors in their meeting of the 25th June, 
 
 1802, requesting that an application should be made to the 
 
 Government for grants to the public of the landed property 
 
 belonging to them in George Town, and that the giants be made 
 
 m the "names of the public at large, them and their administra- 
 
 "™ ni succession." In accordance with this request, on the 
 
 2nd October, 1802, the Lieutenant-Governor issued grants of the 
 
 land which had been reserved for the purpose, to the inhabitants 
 
 ot George Town, to ihem and their representatives in perpetuity. 
 
 The grant of t h e Church Street Ghaut has been produced, from 
 
 which I take the following details. George Town is described by 
 
 the following boundaries : « From the north-east angle of the point 
 
 extending along the sea beach to the westward of the'Penano- Eoad, 
 
 and including all grounds beyond the Penang Eoad which enter 
 
 immediately upon it. From the beach in a southerly direction 
 
 to the first bridge, from' thence following the northern bank of 
 
 the Prangm in an easterly direction to the sea, and from thence 
 
 sxleotthe town to the north-east point." The 
 
 "for the express purpose of establishing 
 
 a revenue to be applied to the repairing streets, ghauts, and 
 
 " along the east 
 grant is stated to 
 
STRAITS SETTLEMENTS. 
 
 281 
 
 Municipal 
 Commbs, 
 
 v. 
 Tolson. 
 
 "other public works in the said town," and the subject of the Hackett 
 
 grant is described as " a piece of ground situated on the east side 2 " 
 
 " of Beach Street denominated Church Street Ghaut, George Town, 
 
 " bounded to the eastward by the sea and measuring on that side 
 
 " thirty-eight feet, bounded to the westward by Beach Street and 
 
 " measuring on that side thirty-eight feet, bounded to the north- 
 
 " ward by Messrs. Abbott and Maitland's giound and measuring on 
 
 " that side one hundred and thirty feet, and bounded to the south- 
 
 " ward by Captain Farquharson's ground, and measuring on that 
 
 " side one hundred and thirty feet, but without power to sell or 
 
 " dispose of the same unless required by Government." 
 
 The grants of the other ghaut were, mutatis mutandis, in the 
 same terms as that of the Church Street Ghaut. 
 
 In connection with the grants of the ghauts, it may be con- 
 venient to refer to the title-deeds of Messrs. Lorrain, Gillespie and 
 Co., which have been put in by the defendant, and to the argument 
 which defendant founds upon the terms of those deeds. The 
 orginal grant is dated the 2nd November, 1801, eleven months 
 before the date of the grant of the Church Street Ghaut to the 
 inhabitants of George Town. It is a grant by the Lieutenant- 
 Governor of Prince of Wales' Island, to the executors of Mr. John 
 Perkins, and it describes the ground as bounded to the northward 
 by Church Street Ghaut, and measuring on that side eighty-five 
 feet. 
 
 Upon this description Mr. Bond has founded the argument 
 that, at the time of the grant, Church Street Ghaut was already 
 is existence, and had probably been in existence for some time, and 
 that the natural inference is, that it had been previously used as 
 a public ghaut or means of access to the sea, and consequently 
 that it had been dedicated to the public as a highway, and was 
 in effect a highway, at the time the grant was made [2nd November, 
 1801]. 
 
 Much stress has been laid on the word ghaut as shewing that 
 the place was for the use of the public. The word ghaut or ghat 
 is, I believe, Hindustani, and whatever its literal meaning may 
 be fin one dictionary I see it defined as "an entrance to 
 a country"], it seems to be used here and in Calcutta, to mean 
 a landing-place. Now I quite agree that prima facie there is some 
 reason to think that a landing-place leading from the sea to 
 a public highway, would be also a- highway ; biit I do not think that 
 the inference is absolutely necessary, and I think that it might 
 be rebutted by evidence shewing that it could not have been 
 dedicated as a highway, or that it was in fact not so dedica- 
 ted. 
 
 In the present case, it is clear from the documentary evi- 
 dence, that in the year 1801, the town was only in process of 
 formation ; the streets and drains were designed, but were not yet 
 made, and the bank to the eastward of Beach Street was not yet 
 filled in ; and as to the Church Street Ghaut, up to the 30th March, 
 1801 it formed a portion of the land purchased from Government 
 by Mr. Perkins, and then repurchased from him by the Committee 
 of Assessors, so that it is clear that any presumption that it had 
 
282 
 
 CIVIL OASES,, 
 
 Hackett, J. 
 1872. 
 
 MuNIOIPA-L 
 
 COMMES. 
 
 V. 
 
 Tolson. 
 
 been for sometime previously used as a highway, is conclusively 
 rebutted. 
 
 We have now arrived at the period when the land on which 
 George Town stands, which had been up to that time vested 
 in the Local Government, was transferred by them to the persons 
 who had purchased from the Committee of Assessors. The Com- 
 mittee of Assessors were appointed by the people, with the excep- 
 tion of the Chairman who was nominated by the Government^ and 
 to this Committee the Government entrusted power to lay out the 
 town in the manner most suitable to the requirements of the inha- 
 bitants. With this object in view, the Committee were author- 
 ized to form streets, to sell the adjacent lands in lots, and to 
 establish a system of drainage. The Government also consented 
 to make the inhabitants of the town a present of certain reserved 
 lots adjacent to the sea, which were called ghauts, and which we may 
 therefore suppose were intended to afford the inhabitants of the 
 town access to the sea at several different points in the town. It 
 seems to have been thought desirable wherever Beach Street was 
 crossed by a principal street, that there should be a ghaut which 
 should afford a direct approach to the water. This, I think, appears 
 clearly from the original plan of the town referred to in the Muni- 
 cipal documents, in which the ghauts are called the public ghauts. 
 
 It appears from what I have said, that the Government land 
 which now forms George Town was dealt with in these different 
 ways by the Committee of Assessors with the consent of the 
 Government. First, the streets Avere laid out and implicitly dedi- 
 cated to the public ; then there was the land which was allotted 
 to purchasers who obtained grants from the Government ; and lastly 
 there were the lots reserved by the Committee of Assessors, for 
 the use of the inhabitants of George Town, and called public 
 ghauts, for which also grants were issued by the Government. 
 
 It has been argued by Mr. Bond that these public ghauts, as 
 they were called, could have been only ghauts for the use of the 
 public, and therefore highways. But it appears to me that although 
 the ghauts were clearly intended for the benefit of the inhabitants 
 of George Town, it does not follow that they were on that account 
 to be regarded as highways of the same nature as the streets of 
 the town. The history of the formation of the town shews that 
 the ghauts were regarded as something different from the streets. 
 The streets were laid out and designated by the name of streets, 
 and dedication was presumed. If it had been intended to con- 
 stitute the ghauts into mere highways, nothing would have been 
 simpler than to have mapped them out and called them by the 
 names of streets or lanes or ghauts, and the dedication would 
 have been presumed. 
 
 But here we have first a reservation of certain lots, after- 
 wards called ghauts, and then a formal grant of these ghauts to 
 the inhabitants of George Town for certain special purposes. 
 
 I think therefore that it appears from the way in which 
 these ghauts were originally created, that although they wcro 
 undoubtedly formed for the benefit of the inhabitants, partly no 
 doubt to afford them easy access to the sea, that they were not 
 
STRAITS SETTLEMENTS. 
 
 283 
 
 intended to be merely highways or streets. The terms of the Hackett, J. 
 ghauts themselves leave no doubt upon that point. 
 
 The object of the grant is expresslyfor the purpose of rais- Municpial 
 itig a revenue to be applied to the repairing streets, ghauts, or Commbs. 
 other public works in the said town, an object quite inconsis- t^son. 
 tent with their dedication as highways in the ordinary sense of 
 the word. It may be quite true, and probably was the case, that 
 the ghauts were intended as passages to the sea ; but if they were 
 once dedicated to the public as highways in the ordinary sense, 
 and in the only sense which can benefit the defendant, it would 
 clearly be utterly impossible to raise revenues from them in any 
 way : no mode of raising a revenue could be derived which would 
 not amount to an obstruction in the case of a highway. 
 
 The truth seems to be that it was thought that the assess- 
 ments necessary for the making of the streets, drains, and other 
 public works of the newly-formed town would press heavily on 
 the people, and the ghauts were granted to the inhabitants in 
 order to relieve them from excessive assessments. And it appears 
 from the records of the Municipality, that from the commence- 
 ment, the Committee proceeded to utilize some of the ghauts by 
 erecting rice bazaars and other markets on them ; but there is no 
 evidence that Church Street Ghaut was used in the same way, or 
 that any revenue was derived from it until many years after- 
 wards. I find, however, in the early records, valuations of the 
 property of the Committee of Assessors, in which the ghauts are 
 valued as forming part of the assets of the Committee. There is 
 one of the 31st December 1802, in which Church Street Ghaut is 
 put clown as worth $500. 
 
 In April, 1806, I find another valuation, in which Church 
 Street Ghaut is put down as worth $1,000. 
 
 Some of the ghauts continued to be rented down to [accord- 
 ing to the municipal documents] the year 1836 or 1837, but they 
 do r.ot appear to have yielded an increasing revenue, as I find 
 that in the assessors' accounts for the year 1814, they are repre- 
 sented as producing only §104 a year, being less than the rents 
 obtained in the first years after their formation. It is clear 
 therefore, whatever the cause may have been, tbat in the earlier 
 days of the history of George Town, the ghauts were by no means 
 a profitable property for the inhabitants, and did not go far to 
 realize the objects for which they were created. 
 
 I will now consider the evidence of user upon which Mr. 
 Bond relies, as raising the presumption of the dedication of 
 Church Street Ghaut as a highway. 
 
 The evidence on this point is not so old as the documentary 
 evidence, and does not extend further than about the year 1810. 
 Mr. Ibbetson, -who was formerly Governor of the Settlements, 
 recollects Church Street in the year 1810, when the Government 
 „ Offices ghaut, were placedin the premises occupied by Messrs. 
 Lorrain, Gillespie and Co. "According to his evidence, the ghaut 
 was then used as a thoroughfare by the public, and there was no 
 obstruction to such user. He does not recollect that the ghaiits 
 were under any control. 
 
28-i 
 
 CIVIL OASES. 
 
 HACKETTj J. 
 
 1872. 
 Municipal 
 
 L'OMJIKS. 
 
 V. 
 ToLSON. 
 
 Then we have the evidence of Mr. Rodyk, who was id the 
 employment of the Government in the year 1809, and remembers 
 Church Street Ghaut. According to his evidence, the Church 
 Street Ghaut was in a very bad state of repair. It was, he says, 
 muddy. Boats used to come alongside the ghaut and land their 
 goods. There was a small thannah [police station] in each ghaut 
 to prevent gambling. He always knew the ghauts to be used as 
 public thoroughfares and has seen carts going down the ghauts. 
 
 Mr. W. Lewis, formerly Resident Councillor at Penaug, and 
 residing here ever since 1826, has known the ghauts ever since 
 his arrival, as public thoroughfares. He states that in his time 
 they were never let. On cross-examination he stated that he 
 recollected the Church Street Ghaut being made use of as a sort 
 of police compound ; that there were always large quantities of 
 bricks and firewood in the Church Street Ghaut. 
 
 Mr. JSTairne, a resident in Penang since 1834, who has godowns 
 adjacent to Church Street Ghaut, states that he has always known 
 Church Street Ghaut to be used as a thoroughfare for lauding and 
 shipping goods, that he has seen carts go up and down, and that 
 he never knew of any obstruction. On cross-examination, he 
 stated the ghauts have been let out for different purposes, that he 
 was a Municipal Commissioner from 1855 to 1859, and that during 
 that period Church Street Ghaut was let out, subject to a right- 
 of-way for people in the middle, that the sides of the Church 
 Street Ghaut have been constantly obstructed by bricJss being 
 placed against his wall, that he remonstrated, against the 
 obstruction, that he had one gate opening on the ghaut, and that 
 he wished to open another lower down, but that he had no right. 
 
 Mr. Magness, formerly Inspector of Police, recollects tie 
 Church Street Ghaut since 1847. He" states that he has seen 
 people and carts go up down the ghaut without any obstruction, 
 and also that he has seen bricks piled up in the ghaut opposite to 
 the defendant's godown ; that he considered the ghaut a thorough- 
 fare, as he had constantly seen people going up and down. 
 
 Mahomed Hashim, a native clerk in the employ of the 
 Municipality, states that he remembers when the municipal 
 office was in the building adjoining Church Street Ghaut, in 
 Mr. Mitchell's time [previous to 1849J ; that he recollects collect- 
 ing rents for Church Street Ghaut for bricks, boats, and firewood 
 stored there ; that carriages and carts used to be registered in 
 the ghaut; that people were in the habit of using the °\haut as 
 a thoroughfare. n 
 
 Mr. W. Padday, a resident of Penang for the last twenty-six 
 years, states he has always known Church Street Ghaut to be 
 a thoroughfare. 
 
 Mr. Vappoo Noordin, a native of Penang, and a Municipal 
 Commissioner, about forty years of age, states that as long as he 
 can recollect, the ghauts have been used as public thoroughfares 
 tor carts as well as for foot passengers. 
 
 Mr. Raphael Jeremiah recollects Church Street Ghaut for 
 
 than fifty years. He states that the ghauts were used by 
 
 ■■" " i3 and as public thoroughfares; and 
 
 more 
 
 the public for 
 
 landing 
 
 goods 
 
STRAITS SETTLEMENTS, 
 
 285 
 
 Municipal 
 
 COMMES. 
 
 V. 
 TOLBON. 
 
 that there used formerly to be a watchman's box in each ghaut; Hackett, J 
 he states that in rainy weather, the ghauts were muddy, and that 1S7a " 
 it was difficult to pass through them at such times. 
 
 Abdul Wahid was in the employment of the Committee of 
 Assessors forty years ago, and knew the Church Street Ghaut 
 well. He states that, as long as he can recollect, goods have been 
 landed at the ghauts, and people used to go up and down the 
 ghaut at pleasure. He stated that the custom-house was in 
 Messrs. Lorrain, Gillespie and Co.'s premises, and that goods- were 
 landed at the ghauts and taken through the custom-house. 
 
 Hoosainsa, a Government pensioner, remembers Messrs. 
 Lorrain, Gillespie and Co.'s premises more than thirty years ago, 
 when the custom-house was there [this was in 1816]. He states, 
 that during his time in Penang, the ghauts were always used for 
 landing goods and as a public thoroughfare. 
 
 Chin Ah Heng, a carpenter, states that for the past twenty 
 years he has been in the habit of getting his wood from the sea- 
 side over Church Street Ghaut, and that he has never been 
 interfered with in so doing. This witness called the ghaut by the 
 name of lane. He stated in cross-examination, that he was in the 
 habit of carrying his timber through the centre of the ghaut, and 
 that as long as he could recollect there were bricks and stones on 
 the sides of the ghaut. 
 
 Heap Keat and Mr. Gentle gave evidence of the user of 
 Market Street* and China Street Ghauts. 
 
 Mr. M. A. Anthony stated that the China Street Ghaut has 
 always been used in the same way as any of the streets, and that 
 it was a regular stand for buffalo carts. In cross-examination he 
 stated that the ghauts were kept in very bad order. 
 
 Lim Sim Kay, a Chinese merchant, stated that he knew the 
 ghauts for the last thirty years, that they were used as public 
 thoroughfares, but that they were much neglected. 
 
 Ibrahim, a timber merchant in Eope Walk, states that he 
 has stored timber in the Chulia Street Ghaut ever since 1825 ; 
 that he has seen carts going up and down the ghauts, and goods 
 landed and shipped, and that they were used as public thorough- 
 fares. He afterwards said that there was a dispute about his 
 placing timber in the ghaut, and he got permission to do so; that 
 it was decided that he might leave the timber on the ghaut until 
 it should be carted away. 
 
 Mr. Herriot, one of the Municipal Commissioners, a resident 
 in Penang for thirty-four years, gave evidence as to the user of 
 the ghauts generally, but stated that they were never repaired in 
 the same way as the streets or roads. 
 
 Ong Ah Thye, spirit farmer, was in the habit of importing 
 molasses from Province Wellesley, and used the Church Street 
 Ghaut for a landing-place for twenty years past. 
 
 Ong Choon Swee, an importer of rice, has known Church 
 Street Ghaut to be used as a thoroughfare as long as he can 
 remember [he is now fifty-two] . 
 
 Several other Chinese merchants testified to the general uses 
 of the ghauts for landing and shipping goods, for the last thirty 
 
CIVIL OASES. 
 
 1872 
 
 Municipal 
 Comhbs. 
 
 v. 
 Tolson. 
 
 Hackmt.J. years, and stated that it would be a great inconvenience to the 
 public if the ghauts were closed. 
 
 Mr. Peel, the Government Surveyor, gave evidence as to the 
 present state of the ghauts. All the ghauts would seem to be 
 obstructed in various ways, some by wood, stones, and bricks, 
 some by boats, and many of them by buildings. None of them 
 seem to be free of obstructions of some sort, such as in a highway 
 would be deemed nuisances. He describes St. George's Ghaut 
 as being encumbered with pipes, boats, carts, wood, planters' fire- 
 wood, some sheds, and in the lower part, an open drain. All the 
 ghauts, St. George's Ghaut included, are described as being in 
 a dirty state. 
 
 Mr. Eagleshame, the acting Secretary to the Municipal Com- 
 missioners, states that the ghauts were used for storing various 
 articles, such as timber, firewood, brick, and lime. 
 
 Mr. Presgrave, Secretary to the Municipal Commissioners, 
 states that the ghauts were rented down to 1836; but as I have 
 already said, it does not appear from the records that Church 
 Street Ghaut was amongst those which were rented. The witness 
 read a rosolution of a general meeting of the landholders of 
 George Town on the 3rd July, 1805, in which there was the follow- 
 ing recitals : " It having been taken into consideration the best 
 " mode of keeping the ghauts and streets clean and in repair, and 
 " the rents of the property belonging to the public appearing to be 
 " 1,380 dollars per annum," the resolution then went on to approve 
 of a proposal for carrying out of the proposed works. He also 
 read a, resolution of the Assessors of the (5th August, 1805, accord- 
 ing to which the renters of Armenian Ghaut were to be charged 
 $15 monthly. According to the evidence of Mr. Presgrave, the 
 idea of raising a revenue from the ghauts seems to have been 
 revived in 1851, when the then Committee began to think seriously 
 of making the ghauts a valuable source of income to the town ; 
 but they seem to have been doubtful of their town powers, and 
 the matter seems to have been discussed for some years. At 
 length they seem to have obtained it legal opinion, and in 1859 
 Church Street Ghaut was rented. It does not seem however to 
 have been the intention of the Commissioners to stop up the 
 ghauts, and they appear all along to have believed that tne public 
 had a right of passing over the ghauts, and that they were to be 
 rented snbject to the public right of passage. Mr. Presgrave 
 states that the ghauts were kept up in a certain measure" but 
 that they were not repaired in the same way as the hio-h roads. 
 He also states that during his time [over twenty years! he has 
 seen the ghauts constantly obstructed by bricks, timber, and other 
 things. 
 
 _ We find scattered through the records of the Municipality, 
 various notices which shew that the ghauts were not altogether 
 neglected. On the 24th July, 1808, there is an advertisement for 
 proposals of repairing 'the streets, wharves, and drains. On the 
 2nd November, 1809, there is a notice cautioning people against 
 allowing stones, red earth, firewood, &c, landed at the public 
 ghauts, to remain there more than twenty-four hours And in 
 
STRAITS SETTLEMENTS. 
 
 287 
 
 1872. 
 Municipal 
 
 G'OHMRS. 
 TOLSON. 
 
 October, 1808, there is reference to the collection of the rents of Haokem, J. 
 ghauts in Beach Street. In August, 1801, it was proposed to the 
 Committee of Assessors by the Government, that they should fill 
 up and carry out the public ghaut between the custom-house 
 and Mr. Hallyburton's premises [Church Street Ghaut] ; and as it 
 was stated to be a work which would materially benefit the pub- 
 lic, it was agreed that the Committee should on their part carry 
 out the puckka drains, as being a fair proportion of the expenses 
 to be borne by them. On the 4th December, 1811, we find that 
 Mr. R. Caunter is desired by the Committee to get tlie drain made 
 in Church Street Ghaut as soon as possible, as the Government 
 intend filling up and carrying out that ghaut as soon as the drain 
 is completed. From the two last entries, it would appear that 
 as late as 1811, Church Street was not yet filled in, and that the 
 work was ultimately done by the Government. In 1813, it seems 
 that Church Street Ghaut had been added to, as there is a com- 
 plaint made by Mr. Hallyburton on the 19th February, 1813, of 
 the damage done to his premises in consequence of the addi- 
 tion. 
 
 On the 5th October, 1814, the Government wrote to the Com- 
 mittee of Assessors, prohibiting attap sheds being built on the 
 public ghauts, and directing that all buildings of that description 
 then standing should be immediately removed. 
 
 I have now mentioned the parts of the evidence which 
 appear to me to affect the question of user. And I think that the 
 general result may be shortly stated as follows : that ever since 
 1810, Church Street Ghaut, as well as the other ghauts, has been 
 used as a thoroughfare by the public, both for carts and for foot 
 passengers; that there was never any attempt to~ obstruct the- 
 public in the exercise of this user ; but as far as can be judged 
 [for the evidence of the case is necessaiily somewhat vague, as it 
 rests on the testimony of witnesses depending on their recollection 
 of facts many years old], the ghauts were in a dirty state [Mr. 
 Rodyk said that in 1810, Church Street Ghaut was in a very bad 
 state, that it was mud ; and Raphael Jeremiah gave evidence to 
 the same effect] and could not have -been repaired in a # way 
 the streets of a town are usually repaired, and that they were 
 constantly encumbered by various articles, such as bricks, 
 firewood, &c, and in many cases by sheds. It also appears from 
 the evidence that while Market Street, Chulia Street, and Arme- 
 nian Street Ghauts, were rented for various purposes, Church 
 Street Ghaut was not rented out until 1859 ; at least it does not 
 appear fom the municipal records that it ever was rented until 
 that date. 
 
 Upon this evidence, Mr. Bond contends that it must be pre- 
 sumed that there was a dedication of Church Street Ghaut to the 
 public as a highway, not merely that the public had acquired 
 a right of passing over a complete and absolute dedication of the 
 whole soil of the ghaut, so that it could not be used for any other 
 
 purpose. 
 
 Now assuming that the evidence of user, if unrebutted by 
 other evidence, would be sufficient to raise a presumption of the 
 
CIVIL OASES. 
 
 1872. 
 
 Municipal 
 Commbs. 
 
 v. 
 TOLSON. 
 
 Hackett, J. dedication of Church Street Ghaut as a public highway, I will 
 proceed to consider the grounds relied upon by the plaintiffs, as 
 shewing that there was and could have been no intention of dedi- 
 cating the close as a highway. 
 
 First, it is urged by the plaintiffs, that in every case the 
 facts must be such, as are sufficient to shew that the owner 
 meant to give the public a right of way over his soil before 
 a dedication by hiui, will be presumed, and that the user is 
 not conclusive. Thus in Woodyer v. Hadden, [5 Taunt. 125.] 
 where the plaintiff erected a street leading out of a highway 
 across his own close, and terminating at the edge of the defen- 
 dant's adjoining close, which was separated by the defendant's 
 fence from the end of the street for twenty one years, during 
 nineteen years of which the houses were completed, and the street 
 publicly watched, cleansed and lighted, and both footways and 
 half the houseway paved at the expense of the inhabitants ; it was 
 held that the street was not so delicated to the public, that the 
 defendant pulling down his wall might enter it at the end 
 adjoining to his land and use it as a highway. Cases were also 
 cited to shew that nothing done by a lessee without the consent 
 of the owner of the fee, will give a right of way to the public. 
 Thus in Wood v. Veal, [5 B. & A. 454.] which was an action of 
 trespass, &c, there was a justification under a public right of way, 
 it appeared that the place in question, which was not a thorough- 
 fare, had been under lease from 1719 to 1818, but had been used 
 by the public as far back as living memory could go ; and had 
 been lighted, paved and watched under an Act of Parliament, 
 in which it was mentioned as one of the streets of Westminster ; 
 and that the plaintiff who enclosed it after 1818, had previously 
 lived for twenty-four years in its neighbourhood. But it was 
 held, that even "under these circumstances the jury were justified 
 in finding that there was no public right of way, in as much as 
 there could be no dedication to the public by the tenant for 
 ninety years, nor by any one, except the owner of the fee. 
 
 The general principle, to be derived from the cases, seems to 
 be that in order to constitute a valid dedication to the public, of 
 a highway by the owner of the soil, there must be an intenlion to 
 dedicate an animus dedicandi, of which the user by the public is 
 evidence and no more. But it is sufficient to shew that there has 
 been such a user by the public as satisfies the Court or jury that a 
 dedication to the public was intended by the owner whoever he 
 might be. # In Reg. v. East Marie, [11. Q. B. 877] , where a road had 
 been originally set out under a private inclosure Act over part of 
 the waste of a manor, and had been used by the public generally 
 ever since it had been so set out, being a period of fifty years, and 
 a portion of the waste had been allotted to the lord in respect of 
 Lis interest in the soil, it was contended that the soil of the road 
 had been taken out of the lord and transferred to no other person, 
 and that therefore there was no owner or none against whom a 
 dedication could be presumed, for that, there must have been an 
 owner who knew that he was so, or his consent to the public user 
 could not be presumed ; and that if the Crown were the owner, 
 
STRAITS SETTLEMENTS. 
 
 289 
 
 Municipal 
 
 COMMRS. 
 
 V. 
 TOLSON. 
 
 stronger evidence would be necessary to raise a presumption Hackbtt, J 
 of a dedication than if the owner had been a private person. J '" 
 But the Court of Queen's Bench held, that a dedication 
 might be presumed even against the Crown, from long acquie- 
 scence in public user, and that the jury were rightly directed to 
 consider whether the owner, whoever he might be, had consented 
 to the public user in such a manner as to satisfy the jury that he 
 intended to dedicate a highway to the public. Lord Denman, C. 
 J. there observed, " Enjoyment for a great length of time, ought 
 " to be sufficient evidence of dedication unless the state of the 
 " property has been such as to make dedication impossible." In 
 Reg. v. I'ettie, [4 B. & B. 737] it was laid down that when there 
 is satisfactory evidence of such user of a road, as to time, manner 
 and circumstances, as would lead to the inference that there was a 
 dedication by the owner of the fee, if it was shewn who he was, it 
 is not necessary to enquire who the individual was, from whom the 
 dedication necessarily inferred, from such user first proceeded ; 
 and when such user is proved, the onus lies on the person who 
 seeks to deny the inference from it, to shew negatively that the 
 state of the title was such that dedication was impossible, and 
 that no one capable of dedicating existed. It is, however, to be 
 observed, that it is not enough to establish the right of the public 
 that the persons using the way reasonably believed from the 
 conduct of the owner, that they acquired a right to it ; an actual 
 intention on the part of the owner to dedicate, must be shewn. 
 The last proposition is supported by the cases of> Banaclough v. 
 Johnson, 8. Ad. '& E., and Ferrand v. Milligar, 7 Q. B. 750. On the 
 whole, I think, the cases shew that user alone, for however 
 lengthened a period, is not conclusive, and that it may be rebutted 
 either by facts shewing that it was not the intention of the owner 
 to dedicate, or by shewing that owing to the state of the title, 
 dedication was impossible. I now come to the consideration 
 upon which the plaintiffs' counsel mainly rested, and which may 
 be stated thus : that Church Street Ghaut was the subject of a 
 charitable trust, and that inasmuch as its dedication as a public 
 highway was inconsistent with the purposes of the trust, that a 
 dedication could not be presumed. It is said that Church Street 
 Ghaut was granted to the inhabitants of George Town, for the 
 express purpose of establishing a revenue for the repairs of the 
 streets, ghauts and other public works, and that, as a dedication 
 of the ghauts as a highway would be a breach of trust on the 
 part of the trustees which would not be implied, and therefore 
 "that the presumption of dedication is rebutted. 
 
 It has been objected by Mr. Bond in the first place, that the 
 grant which creates the charitable trust is void and therefore the 
 major premises of the argument is unsound. The grant in the 
 present case being to the inhabitants of George Town and their 
 representatives in perpetuity, it is argued that the gift is void, 
 inasmuch as the inhabitants of George Town are not capable of 
 taking by grant, being unincorporated. For this position he relies 
 upon the passage in Duke, [Duke's Charitable Uses, p. 184] where 
 it is said " that a gift to a parish by deed to a charitable use is 
 
m 
 
 CIVIL CASES, 
 
 Municipal 
 
 COMMES. 
 
 V. 
 TOLSON. 
 
 Hackett, J. " void, but a devise by a will is good." It appears to me tbat this 
 1872- passage must mean that the grant is void at law, as it is laid down 
 in Sheppard's Touchstone, p. 237. " If a grant be made to the 
 " parishoners of Dale [of land] it is void, and so also of a grant of 
 " land to the Church Wardens of a parish." But grants of a 
 charitable nature have always been supported in equity, see Duke, 
 p. 355. " But this we are to take as out of question, that a depo- 
 " sition of lands, rents, monej', goods, &c, may be by act executed 
 " in a man's lifetime, or by his Will at his death to charitable uses, 
 " within the intent and purview of this Statute [Stat. 43 Eliz.]. . . . 
 "Albeit there be defect in the deed, or in the Will, either in the 
 " party trusted in the use where he is misnamed, or the like ; or in 
 
 " the parties for whose use, &c And therefore if a copyholder 
 
 " doth dispose of a copyhold, but to the charitable use without a 
 " surrender, citing Tufnely. Page, 2 Aik 37 : and in divers such like 
 " cases, when the donor is of capacity lo dispose, and Kath such an 
 " estate as is airy way disposable by him, this Statute shall supply 
 " all the defects of assurance," and in page 356, Duke, " It hath 
 " been agreed and resolved to be within the intent and purview to 
 
 " this Statute to order and decree the same in all the 
 
 " ease hereafter following ; that is to say where one 
 
 " gives land to the Church Wardens of .a parish [who are by law not 
 
 " capable to take it by grant] to charitable uses So where 
 
 " land is given to repair highways to the parishoners of Dale." 
 It appears, therefore, from the passages in Duke last cited, that 
 when there is a defect in the assurance, creating the trust from 
 such a cause as the grantee being incapable of taking, that a 
 Court of Equity will step in and aid the defect in favor of the 
 charity. The question arose in the case of Christ's College, •Cam- 
 bridge, 1 Wm. Blackst. 90. In that case it appeared that Mr. 
 Tancred by deed, conveyed his estate to Geoffees, to the use of 
 himself for life, remainder to his first and other sons in tail, 
 remainder to certain officers of Christ's College, to maintain cer- 
 tain students there in the sciences of physic and divinity, and 
 four students of law at Lincoln's Inn. By his Will he confirmed 
 the deed, but fearing the Statute of Mortmain might defeat it, he 
 ordered in case the said uses or any of them should be contrary 
 to law, the estates so settled should go to other objects. On an 
 information hy the Attorney-General to establish this charity, 
 thare arose two questions: the first. of which was, whether this 
 was a conveyance to charitable uses under the Statute Eliz. and 
 therefore to be aided by the Court of Chancery. Lord Henlev 
 [then Lord Keeper] said, "The conveyance is admitted to be 
 ^ detective, the use being limited to certain officers of the corpora- 
 ^ tion and not to the corporate body ; and therefore there is a want 
 « -u P .t rS °^ % f m P er Petual succession. The only doubt is, 
 
 whether the Court should supply this defect for the benefit of the 
 « T 1 ! ^der the Statute of Elizabeth. And I take the uniform 
 ^ i ule of this Court before and after the Statute of Elizabeth, to 
 
 nave been, that where the uses are charitable, and the person 
 
 has in hrmself full power to convey, the Court will aid a defective 
 
 conveyance to such uses." 
 
STRAITS SETTLEMENTS. 
 
 291 
 
 I think there can be no doubt the purpose for which Church Hackett, J, 
 
 Street Ghaut was granted, constituted a good charitable trust, 
 [see Aity.-Genl. v. Heel is, 2 S. & St. 76 ; Tisrt. Girt. v. AUy.-Genl, 
 6 Dowl. 13GJ, and therefore that the defect in the grant would be 
 aided by a Court of Equity. For this reason, I think that Mr. 
 Bond's objection, although valid as regards the legal effect of the 
 grant, does not affect the charitable trust which must be held to 
 attach to the land. 
 
 Church Street Ghant therefore, having been, according to this 
 view, granted to the inhabitants of George Town for charitable 
 purposes, had the trustees or whoever were in possession of the 
 land, power to dedicate it to the public as a highway ? 
 
 It appears from the history of the Municipality that by the 
 desire of the Government, the people of the town elected a certain 
 members of representatives called the Committee of Assessors to 
 whom was entrusted the care of the town in all matters concern- 
 ing the drainnge, the making and repairing of streets, and all 
 similar matters. The Committee of Assessors was also authorized 
 to assess the inhabitants for public purposes, and it exercised a 
 general control over the town, and amongst its other charges 
 it seems to have had charge of the ghautg. Indeed, it was on the 
 application of this Committoe that the Government granted out 
 the ghauts and the other lots in the town. This body was not 
 incorporated and was therefore incapable of taking by grant. It 
 was originally a purely voluntary body, at least I have not seen 
 any law or regulation recognizing its existence. I believe there 
 was a Regulation of the Government in Council on the. subject in 
 1827, but I have not had an opportunity of seeing it. Then came 
 Act XII. of 1839, which authorized the Chief Civil Officer of the 
 Settlement to make assessments to a certain amount, and to 
 appoint officers to collect such assessments. And the next import- 
 ant Act on the subject was, Act IX. of 1840, which also provided 
 for the assessment of the town and for the watching, repairing 
 and lighting the roads, streets, &c. This Act also directed the 
 Civil Authority of the Settlement to appoint a Municipal Com- 
 mittee to make order for the performance of the Act and em- 
 powered it to mnke rules and regulations. But this Committee 
 was not incorporated and no property was vested in it. Then 
 came Act XIX. of 1856, which vested in the Municipal Commis- 
 sioners all property, however, acquired by the Commissioners, &c, 
 and then vested in them or any other persons in trust far them, to 
 be held by them as Trustees for the purpose of the Act. But it 
 was not until Act XXVII. of ] 856, that the Municipal Commis- 
 sioners were constituted into a corporation with perpetual suc- 
 cession and a right to sue and be sued. It is clear that they 
 would not previously to their incorporation, have acquired their 
 right to property, except in their individual capacity. It is 
 probable therefore that the legal estate in the ghauts remained in 
 the E. I. Company, the grantors, down to 1856, subject of course 
 to the trust which they had themselves created. The Committee 
 of Assessors or Municipal Committee or by whatever names these 
 different bodies may be designated, may be regarded as the agents, 
 
 1872. 
 Mdnicipal 
 
 C DMMBS. 
 
 V. 
 TOLBON. 
 
292 
 
 CIVIL CASES. 
 
 1872 
 
 Municipal 
 
 Commrs, 
 
 v. 
 
 TOLSON. 
 
 Haokmt, J. ae ti n g for and on behalf of the trustees of the charity. Assuming 
 then,°that they were to all intents and purposes, as far as the 
 ghauts were concerned, the agents of the trustees, had they or 
 their principals power to dedicate the ghauts to the public as 
 highways ? Mr. Bond urges that they had, and cites the Rugby 
 Charity case, 11 Bast, 375. But that case is very shortly reported 
 in a note, and the facts do not appear, and I may remark, that 
 Parke J. observed in Bex v. Leake, 5 B. & Ad. 469, that " the 
 " Trustees in the Rugby case were only trustees as to profits and that 
 " they acted as ordinary owners." Mr. Bond also referred to Surrey 
 Canal Co. v. Hall, 1 M. & Gr. 392. But that was a dedication by a 
 Canal Company which stands in a different footing from trustees 
 for public purposes, as they are masters of their own property. As 
 was said in that case, though they may be answerable to the rest 
 of the proprietors for failure of duty, there is no reason why the 
 public may not by use, gain a right as against them, as well as 
 against any other individuals, Mr. Bond then urged, that 
 although the ghauts were granted to the town for the express 
 purpose of establishing a revenue, yet that as the mode of raising 
 the revenue was not pointed out, it did not necessarily follow that 
 the revenue was to be raised directly from the ghauts themselves, 
 and that it might well be, that it was contemplated that the user 
 of the ghauts as highways, would enhance the value of the 
 adjacent property, and by increasing its rateable value would 
 thus indirectly enlarge the revenue. But although this con- 
 struction is ingenious, I confess, I am unable to read the grants 
 in this way. It appears to me that the words, " for the express 
 " purpose of establishing a revenue/' means, that the revenue was 
 to be raised out of the ground itself and not indirectly out of some 
 other piece of ground whose value might possibly be increased by 
 using the ghauts as a highway. . I think in construing the mean- 
 ing of the words " establishing a revenue" we should regard the 
 ghauts as the proximate and not the remote cause of the revenue 
 to be raised, and it appears to me clear, from the words of the 
 grant, that the intention was, that the ghauts should be made use 
 for the express purpose of raising a revenue in aid of the town. 
 How that revenue was to be raised was not stated. That was left 
 to the discretion of the town people themselves, and as has been 
 seen in the earlier days of the history of the town, a revenue was 
 raised from the markets and shops which were established in some 
 of the ghauts. Not indeed in Church Street Ghaut, but although 
 this ghaut was not made use of for any purposes of profit, I 
 think the original trust still clings to it, and tliat the Com- 
 mittee of Assessors or the Municipal Committee or whoever 
 were the persons acting as or on behalf of the trustees, were 
 bound by the original trust. The duties of trustees for 
 public purposes, and their right to dedicate property entrusted 
 to them, to the public as a highway, was discussed in the 
 case of the King v. Leare, 5 B. & Ad. 469. In that case the 
 Commissioners for drainage being authorized by an Act to make 
 drains and dispose of the earth in forming banks on the sides 
 thereof, made a drain, and with the earth taken from it, made a 
 
ST RAIT S SETTLEMENTS. 
 
 293 
 
 TOLSON. 
 
 bank on one side of it, which had been used for twenty-five fears Hackett, J. 
 as a public highway ; it not appearing tbat. the cleaning of the 2 ' 
 
 drains or any other purpose of the Act, had been or was likely to Municipal 
 be interfered with by any such user of the soil, it was held that a Commrs. 
 dedication might be made by the Commissioners upon the case. It 
 is necessary to be observed that the question decided was mainly 
 one of fact, the law on the subject being clearly laid down by 
 Parke, J. as follows,: "If the land were vested by the Act of 
 " Parliament in Commissioners so that, they were thereby bound to 
 " use it for some special purpose, incompatible with its public use 
 " as a highway, I should have thought that such trustees would 
 " have been incapable in point of law, to make a dedication of it; 
 " but if such use by the public be not incompatible with the objects 
 " prescribed by the Act, then I think it clear, that the Commis- 
 " sioners have that power." But the learned Judge after carefully 
 considering the duties imposed on the Commissioners by the Act 
 of Parliament, came to the conclusion that there was nothing in- 
 consistent with those duties in the dedication of the land to the 
 public as a highway. Mr. Justice Littledale, however, differed in 
 opinion with the rest of the Court, and his remarks are worth 
 citing. He said, "certain powers are given to the Commissioners 
 " to deal with the land mentioned in the Act in the manner there 
 " prescribed, and under their power they have made a bank which 
 "is subservient to the. purpose of the drainage. Over a part of 
 " this bank the road in question extends. It is true that the 
 " bank has not, for a great number of years, been practically used 
 " to give any further protection or support of the works than it 
 " did when first made, and probably it never may be wanted in 
 " any other state than that in which it now is. But I cannot take 
 " judicial notice of that, and I cannot say but at some future time 
 " it may be wanted for the works of the drainage, in such a man- 
 " ner as that it could not be used beneficially for those purposes if 
 " there was a common highway over it. And I think the Commis- 
 " sioners had no power to dedicate to the use of the public as a 
 " highway, land which they were entrusted with the ownership of, 
 " for a special purpose, and for which special purpose this land 
 " may at some future period be requhvd." 
 
 Now applying the principles laid down in Rex v. Leake, and the 
 present case, it seems to me that the dedication of Church 
 Street Ghaut to the public as a highway, would be altogether 
 inconsistent with the purposes for which the ghaut was granted. 
 It was probably contemplated that the ghaut would be made use 
 of by the public in the manner in which it has, namely, as a means 
 of access to and from the sea. But it was evidently the intention 
 of the Government that it should also be the means of raising a 
 revenue for the benefit of the town, whether by tolls or by rents, 
 it is not material to inquire, but it was granted for the express 
 purposes of revenue. If the ghauts were once dedicated as a 
 highway, there was an end to any revenue to be derived from it in 
 any way. There could be no tolls, no sheds or buildings, no 
 obstruction of any sort, and therefore no means whatever of rais- 
 ing a revenue. It has been held, indeed, that a highway may be 
 
294 
 
 CIVIL OASES. 
 
 Haokett, J 
 1872. 
 
 Municipal 
 Commbs. 
 
 v. 
 TOLSON. 
 
 dedicated with obstructions or impediments which, if made in an 
 existing highway, would be a nuisance [a]. But the defendant 
 must here prove a dedication of the whole close as a. highway, or 
 he has failed to make out his case. The issue raised is, highway 
 or no highway, and ordinarily speaking where a road rims between 
 fences, the whole space between the fences is considered as high- 
 way. [E. v. Wright, 3 B. & Ad. 681], and any contracting or nar- 
 rowing of the road is a nuisance. For instance, supposing the 
 dedication in the present case to be established, the Commissioners 
 if they erected sheds or suffered goods to remain for any lenglh 
 of time on the ghaut, would be guilty of causing a nuisance. In 
 fact any effort to utilize the ghaut for purposes of profit would be 
 illegal, once it was established as a highway. 
 
 Mr. Bond has further urged that the Act XIV. of 1856, which 
 vested the property in the Municipal Commissioners has put an 
 end to the trust created by the Grant of 1802. The 4th section 
 of that Act is as follows : " All property moveable and immove- 
 " able purchased or otherwise acquired before the passing of this 
 " Act by the Commissioners or other persons, however, designated 
 " heretofore lawfully administering thef uuds applicable to theCon- 
 " servancy and improvement of the said town, &c, and now vested 
 " in them or any other persons in trust for them for any such pur- 
 " poses, shall, after the passing of this Act, be vested in the Muni- 
 " cipal Commissioners for the said towns, &c„ as trustees for the 
 " purposes of this Act." The purposes of the Act are in the pre- 
 amble, stated to be, to make better provision for the conservancy 
 
 and improvement of the several stations of the Settlement 
 
 of P. W. Island, Singapore and Malacca, and to invest the Muni- 
 cipal Commissioners for each of the said towns and stations 
 with the powers hereinafter mentioned. Then in section 6, it is 
 said, that the Commissioners with the consent of the Local Govern- 
 ment may lay out and make new streets and roads, &c. I presume 
 the argument on this point is, that the Commissioners under the 
 powers of the Act have dedicated this ghaut and made it into a 
 street, But it appears to me that the evidence of what occurred 
 subsequently to 1856, is opposed to any presumption of dedication. 
 It is in evidence that for some time previous to 1856 the Municipal 
 body had contemplated letting out the various ghauts, and we find 
 that in 1859, less than three years after the Municipal Commis- 
 sioners came into existence [the Act 27 of 1856 was not 
 passed until 20th December, 1857], Church Street Ghaut was 
 rented out, a fact which conclusively rebuts any presumption of 
 its dedication as a highway. I think, therefore, even admitting 
 that the Act of 1856 empowered the Commissioners to dedicate 
 Church Street Ghaut to the public as a highway, that there is no 
 satisfactory evidence of such dedication. 
 
 It is also said by Mr. Bond that only a portion of Church 
 Street Ghaut is included in the Grant of 1802, and that the new 
 portion is not subject to the trusts of the grant and therefore may 
 be the subject of a dedication as a highway. But it seems to me 
 
 lerl a L £c S ll e iZ?: reStnJ °^ mUE ^ 8E. & B.10 54j andKora Wt v. (W 
 
STRAITS SETTLEMENTS. 
 
 295 
 
 Municipal 
 
 CoMMRS. 
 
 V. 
 TOLSON. 
 
 that even agreeing that one portion of the ghaut is not subject to Hackett, J, 
 
 the trusts of the grant, still this does not help the defendant inas- 18/2 ' 
 
 much as he is bound to show that the whole ghaut is a highway, 
 
 apart from the difficulty of holding that the trustees, whoever 
 
 the3 r were, intended to dedicate one portion and not to dedicate the 
 
 other, the evidence of user being precisely the same with regard to 
 
 both the old and new portion of the ghaut. 
 
 On the whole case,- 1 am of opinion, that previous to 1856 the 
 Municipal Committee had no power to dedicate the Church Street 
 Ghaut as a public highway, inasmuch as such dedication would 
 have been altogether inconsistent with the purposes for which the 
 ghaut was granted. Any dedication of the ghaut as a highway in 
 the full sense of the word, would have put an end for ever to any 
 revenue to be derived from it. 
 
 And as to what has occurred since 1856, I think the whole 
 evidence rebuts the idea of any dedication being intended. The 
 account given by the witnesses of the state of Church Street Ghaut 
 in modern times, of the bad state in which it was kept, of the con- 
 stant obstructions in the shape of piles, of bricks, timber, firewood 
 and other articles, allHhis seems to me to negative the idea that 
 the Municipal Commissioners intended to dedicate the ghaut to 
 the public as a highway. 
 
 But in deciding this, I wish to guard against being undei'stood 
 to decide anything more, whether the public may not ha^e ac- 
 quired a right of passage over the ghaut, subject to certain restric- 
 tions is a question into which it is unnecessary to e:iter, as it is not 
 in issue. All I intend to decide is that I do not consider that 
 Church Street Ghaut has been dedicated to the public as an 
 ordinary highway. 
 
 I now come to the fifth plea, [the fourth plea having been 
 held bad in the demurrer] [a] in which the defendant relies upon 
 a private right of way on foot and with horses and other cattle and 
 with carriages from the highroad over the Church Street Ghaut 
 to the premises occupied by Messrs. Lorrain, Gillespie and Co., 
 and vice versa. 
 
 The evidence in the case shewed, that for a long time, cer- 
 tainly ever since the year 1810, and probably previous to that date, 
 there was a gate in the premises now occupied by Messrs. Lorrain, 
 ■Gillespie and Co., opening in the Church Street Ghaut, and that 
 this gate has been used ever since by the o ;<-npants of these pre- 
 mises as an ordinary access to them for ail purposes. The user, 
 therefore, has been for a sufficiently lung period of time to support 
 the presumption of a grant of private right of way. But Mr. Rodyk 
 has contended, that the whole evidence tends to shew that there 
 was only a permissive user of this right of way, and that you are not 
 to make the same presumption in the case of trustees for public 
 purposes as you would in the case of private individuals. He 
 also cited the Attorney-General v. Magdalene College, 2 House of 
 Lords Ca. 189, to shew that it was only in the case of the property 
 being parted with for a valuable consideration, that the rights of 
 
 [a] ante p, 272. 
 
296 
 
 CIVIL CASES. 
 
 ToLSON. 
 
 Hackett, J. those entitled to trust property would be barred by the Statute of 
 
 1872, Limitations. 
 Municipal N° w with regard to the point that the user was only permis- 
 
 Commbs. sive I can find no evidence in the case to support that view. The 
 neer has the ordinary use of- a gate for every purpose for which it 
 was required, and no permission was asked or granted. 
 
 But Mr. Eodyk relies on the circumstance that for a very long 
 period the premises now occupied by Messrs. Lorrain, Gillespie 
 and Co., were occupied by the officers of the Municipality and that 
 under those circumstances the same inference cannot be made as 
 if the premises had been occupied by strangers, and that it might 
 well be, that the Municipal Committee permitted this use of the 
 gate in question without intending thereby to confer any right of 
 way. But with reference to this argument, I think, it is suffi- 
 cient to observe that it is in evidence that on the opposite side 
 of the ghaut, to Lorrain, Gillespie and Co's premises, in the pre- 
 mises occupied by Mr. Nairne, there is a gate which has been in 
 existence for a great many years, and as to which there never has 
 been any question as to the right of way. This fact seems to me 
 to rebut the inference which Mr. Rodyk wishes to draw as a mat- 
 ter of fact, namely, that it was only the accident of the Committee 
 having their offices in Church Street Ghaut, which caused the 
 gate opening on the ghaut to be tolerated, whereas, in fact, we 
 have it clearly established that a similar gate, with a like right of 
 way, existed in the opposite premises which were in the possession 
 of persons unconnected with the Municipal body. 
 
 As to the argument, that presumption against trustees for 
 public purposes is not clearly made, and the effect of the Statute 
 of Limitations as concerns trust property, I will deal with them 
 both together. And first, I think it necessary to point out what 
 strikes me as a fallacy in Mr. Rodyk's reasoning. He has argued 
 this part of the case by analogy to cases in which the trust pro- 
 perty has been alienated by the trustees, and the question has arisen 
 asto whether the entire cestui que trusts should be bound by the 
 alienation. The question here is whether it was altogether incon- 
 sistent with the purposes of the trusts that a right of way should 
 be granted over the trust property. This latter question seems to 
 me to differ somewhat from the other. The analogous case to 
 those cited by Mr. Rodyk would be, if the Commissioners had sold 
 or leased Church Street Ghaut; in fact, had altogether deprived 
 the town of the use of it, and the people of the town disputed 
 their right to do so. The present question seems to me to resemble 
 somewhat that which arose in Rex v. Leake, whether it was con- 
 sistent with the purposes of the trusts that a right of way should 
 be granted. J 
 
 «. ^ return once more to the early history of the town we find 
 that the ghauts were placed opposite the principal streets inter- 
 
 | eC K?fw aCh %**' ^' * thint ' there can *e no reasonable 
 doubt that one of the objects of their institution was to afford the 
 inhabitants of George Town easy access to the sea. They were to 
 all intents and purposes public ghauts, i. e., public landing places. 
 m doubt- they were stated m the grants to be granted fir the' 
 
STRAITS SETTLEMENTS. 
 
 297 
 
 express purpose of establishing a revenue a,nd their user must, I 
 think, have been restricted in accordance with the terms of the 
 grant, but when we look at the manner in which they were formed, 
 their early history, their mode of using their position with regard 
 to the town and their name, it is impossible to avoid the conclu- 
 sion that although intended to aid the revenue, they were also 
 meant for the general convenience of the people of the town. Now 
 this being so, was there anything in the nature of the trust to 
 prevent the' trustees from granting the owners of conterminous 
 property reasonable access to the ghaut ? Is the ghaut to be 
 viewed in the same way as enclosed premises, which might be 
 seriously damaged by the allowance of such an easement ? Would 
 it be a breach of the trust to permit such an encroachment on 
 their right ? I think not, I think it was quite within the scope of 
 the discretion of the trustees or the persons managing the pro- 
 perty, to permit the owners of the adjoining lots reasonable access 
 to the ghaut, and that there would be nothing inconsistent with 
 the trust in such a user of the ghaut, and we find that, in fact, in 
 most of the ghauts, such gates have existed as far back as the 
 time of living memory. 
 
 For this reason, I think, that it was quite, consistent with the 
 original purpose for which the ghaut was established, to grant a 
 right of way over the ghaut, and with regard to the upper gate 
 the defendant has made out his plea. 
 
 But the plaintiffs in the petition allege two trespasses, the 
 breaking down of two boardings, one of these was at the upper 
 gate of which I have been speaking, and the other was at a 
 gate much lower down in the ghaut. This gate stands in a 
 different position from the other. It has only recently been 
 opened, and it stands in a part of the property which was 
 not in existence at the original grants, having since been 
 reclaimed and filled in. Strictly speaking, therefore, the 
 plea alleging a grant previous to 1802, could not be supported 
 by" a proof of right of way over property, which did not come into 
 existence until many years after the alleged grant. But apart 
 from this legal difficulty, I do not find that the evidence in sup- 
 port of this second right of way is sufficiently clear and distinct. 
 There is no doubt that the gate has only been made recently, and 
 not sufficiently long ago to confer a right, but then it is said that 
 before the wall was made in that part of the ghaut, we were in 
 the habit of passing and repassing over the ground in question, 
 and thus acquired a right of way. If user of this sort were 
 shewn for a sufficient length of time, no doubt it would establish 
 a right of way, but there is no evidence as to the length of time 
 that this use was made of the lower portion of the ghaut, and I 
 am, therefore, of opinion that the defendant has not succeeded in 
 supporting his plea as regards the lower gate. 
 
 On the whole case, there must be judgment for the plaintiffs. 
 
 Hackett, J. 
 1872. 
 
 Municipal 
 
 COMMKS. 
 
 V. 
 ToLSON, 
 
298 CIVIL CASES. 
 
 ABDUL WAHAB BIN MOHOMAT ALLI 
 v. 
 SULTAN ALLI ISKANDER SHAH, 
 
 [SULTAN OF JOHORE]. [a] 
 
 Malacca. A foreign Sovereign Prince, who remains in this country for a protracted time, is 
 
 entitled to no greater exemption from the jurisdiction of the Courts of this Colony, 
 
 Nokeis, E, than his Ambassador would have been : and if he engage in mercantile transactions, 
 
 1843 . such as borrowing money in his private capacity, on a promissory note, he is liable to 
 
 be sued thereon in such Courts, and cannot claim exemption on the grounds of his being 
 
 May 4. a Sovereign Prince. 
 
 Action against the defendant, Sultan of Johore, [6] on a 
 promissory note. Plea to the Jurisdiction, that defendant was a 
 Sovereign Prince, recognized as such by the Straits Government 
 by their treaty with Johore. Replication that the debt was for 
 money lent the defendant, and entrusted to him in his private 
 capacity, and not as Sultan, and that there was nothing in the 
 treaty to exempt the defendant from liability under such circum- 
 stances. The facts appear in the judgment. 
 
 J. R. Logan, for plaintiff. 
 
 C. Bawmgarten, for defendant. 
 
 Cur. Adv. Vult. 
 
 Judgment was delivered this day by 
 
 Norris, R. This is an action of Assumpsit on a promissory 
 note alleged to have been made by the defendant in favor of the 
 plaintiff for $971,174. The defendant pleads to the Jurisdiction 
 of the Court and claims exemption as a Sovereign Independent 
 Prince, Sultan of Johore, and the heir and successor of the late 
 Sultan, who by treaty, dated 2nd August, 1824, ceded the Island 
 of Singapore to the English East India Company. 
 
 The plaintiff replies in substance, that there is nothino- in the 
 treaty referred to, from which it can be interpreted or inferred 
 that the defendant should be at liberty to engage in mercantile 
 affairs at Malacca, buying on credit or taking up money on loan 
 under the irresponsibility to which he lays claims. 
 
 This is perfectly true; there is nothing in the treaty leading 
 to such an inference, no stipulation for an allowance, to th? 
 defendant m particular of greater privileges than are conceded 
 by the law of nations to independent Sovereigns in general I 
 must look therefore to general principles and precedents, in order 
 to ascertain whether the defendant in the present instance can be 
 diction reg aS alto S ether exempt from the Court's Juris- 
 
 For the defendant, reference has been made to Vattels 
 Treat™ on the Law of Nations, Book 1, Chap 1. s.s 4, £ i & 6, 
 
 [a] This case, together with the following one ako n Mni„„„„ „ r . , , 
 General v. De Wind,-] the papers regarding which were Tot.lv S- , i™\ [^ to ™°y- 
 of the work, and consequently long after ofiuffitfcT^ >L ■ "^ at this P eriod 
 their importance.-J.W.N.K. ciassiticatmu, aie only inserted on account of 
 
 [6] Now styled Maharajah of Johore, G. N. 25 June 1868, 
 
 s 
 
STRAITS SETTLEMENTS. 
 
 299 
 
 wherein it is laid down" that " every nation which governs itself, f^ 
 
 "under what form soever, without dependence on any foreign 
 
 " power, is a Sovereign State ; " that those states are equally to be Abdul Wa. 
 " accounted Sovereign States which have united themselves to HAB > &0, 
 " another more powerful by an unequal alliance ; and that, conse- Sultan op 
 " quently, a weak State, which in order to provide for its safety, Johobe. 
 " places itself under the protection of a more powerful one, and 
 " engages, in return, to perform several offices equivalent to that 
 " protection, without, however, divesting itself of the right of 
 " Government and Sovereignty, does not, on this account, cease 
 " to rank among the Sovereigns, who acknowledge no other law than 
 " that of nations." These principles are undeniable, but of too 
 general a nature to throw much light on the present question. 
 The 7th Chapter, 4th Book of the same work which treats of the 
 rights, privileges and immunities of Ambassadors and other 
 public ministers, seems more to the purpose, and section 108 
 of that Chapter, introduces the question as to the rights and 
 privileges of a Sovereign in a foreign country. " It is asked," 
 says the author : " What are the rights of a Sovereign who happens 
 " to be in a foreign country, and how the master of the country 
 " is to treat him ? If that prince be come to negotiate or to treat 
 " about some public affair, he is doubtless entitled in a more 
 " eminent degree to enjoy all the rights of Ambassadors. If he 
 " be come as a traveller, his dignity alone, and the regard due to 
 " the nation which he represents and governs, shelters him from 
 " all insults, gives him a claim to respect and attention of every 
 " kind, and exempts him from all jurisdiction. On his making 
 " himself known, he cannot be treated as subject to the common 
 " iaws,; for it is not to be presumed that he has consented to such 
 " a subjection ; and if a prince will not suffer him in his dominions 
 " on that footing, he should give him notice of his intentions. 
 " But if the foreign prince forms any plot against the safety and 
 " welfare of the State, in a word if he acts as an enemy, he may 
 " very justly be treated as such. In every other case he is entitled 
 "to full security, since even a private individual of a foreign 
 " nation has a right to expect it." These principles also are not 
 to be contested, but they do not seem to embrace precisely 
 such a case as the present, that a Sovereign Prince, not come, 
 as a ■ mere traveller or temporary visitor, but resident for 
 the last six or seven years and, for aught, that appears to the 
 contrary, permanently settled and acting, it may be said, as 
 his own Ambassador in the British dominions. Under such 
 circumstances, the rights, privileges and immunities of an 
 Ambassador would seem to be abundantly sufficient, and all that 
 such a prince so situated could reasonably claim. Accordingly, 
 in the next paragraph, Mr. Vattel quotes the example of "Peter 
 " the Great, who when determined personally to visit foreign 
 " countries in quest of the arts and sciences to enrich his empire 
 " travelled in the retinue of his own Ambassodors," that' extraor- 
 dinary man thus intending, it may be presumed, to intimate, that 
 as he couRl not, during the protracted visits which he contemplated, 
 consistently claim greater privileges than those of an Ambassador, 
 
300 
 
 CIVIL CASES. 
 
 Noeeis, E. 
 1843. 
 
 Abdul Wa. 
 hab, &o. 
 
 v. 
 Sultan of 
 
 JOHOBE. 
 
 so he had no design to shelter himself under the plea of sovereign- 
 ty, from the just consequence of an abuse of those privileges. 
 Now the exemption of an Ambassador as such, from all civil and 
 criminal jurisdiction in the foreign country where he is called 
 upon to exercise his high functions is universally admitted by all 
 civilized nations, and the reasons are given at length, in the 92nd 
 section of the last quoted chapter of Vattel and section 1st of the 
 chapter next following. And this necessary independence which 
 protects the person of an Ambassador from an arrest under legal 
 process, extends also, as observed in section 113 of the 8th Chapter, 
 to " his retinue, his baggage, his necessaries, everything which be- 
 " longs to his person in the character of a public minister, every- 
 " thing which is intended for his use or which serves for his own 
 " maintenance and that of his household, everything of that kind 
 " partakes of the minister's independency, and is absolutely exempt 
 "from all jurisdiction in the country. Those things, together 
 "with the person to whom they belong, are considered as being 
 " out of the country." In the next section, however, it is added, 
 and the restriction is especially important with reference to the 
 present case. " But this exemption cannot extend to such property 
 '' as evidently belongs to the Ambassador under any other relation 
 ' than that of minister, What has no affinity with his functions 
 'and character, cannot partake of the privileges which are 
 ' solely derived from his functions and character. Should a 
 ' minister, therefore, [as it has often been the cage] embark in 
 ' any branch of commerce, all the effects, goods, money and debts 
 ' active and passive, which are connected with his mercantile 
 'concerns, and likewise all contests and law-suits, to which 
 ' they may give rise, fall under the jurisdiction of the country, [a] 
 ' And although, in consequence of the minister's independency, 
 ' no legal process can, in these law-suits, be directly issued against 
 'his person, he is nevertheless, by the seizure of the effect's 
 ' belonging to his commerce, indirectly compelled to plead in his 
 ' own defence. The abuses which would arise from a contrary 
 ' practice, are evident. What could be expected from a merchant 
 ' vested with a privilege to commit every kind of injustice in a 
 ' foreign country ? There exists not a shadow of reason for ex- 
 ' tending the ministerial immunity to things of that nature. If 
 ' the Sovereign who sends a minister is apprehensive of any incon- 
 ' venience from the indirect dependency in which his servant thus 
 ' becomes involved, he has only to lay on him his injunctions 
 ' against engaging in commerce, an occupation, indeed, which ill- 
 ' accords with the dignity of the ministerial character." And 
 then follows a qualification restricting the liability to seizure even 
 in these cases, to such of the minister's effects as really belong to 
 or are connected with his commercial concerns and have no 
 relation to his public character. 
 
 Now if such be the liabilities incurred by an Ambassador, who 
 abuses his public privileges for private purposes, can it be reason- 
 ably contended that a Sovereign Prince who is permanently resi- 
 
 [o] But see Taylor v. Best, 23j L, J, C. P. [n, s.] 89. 
 
STRAITS SETTLEMENTS. 
 
 301 
 
 NOEEIB, E. 
 
 1843. 
 
 HAB, &C. 
 V. 
 
 Sultan op 
 
 JoltOEE. 
 
 dent in a foreign country, enjoying the full protection of its laws, 
 is exempt from all legal responsibility, when he lays aside as it 
 were, his sovereign character and descends to the level of an or- Abdul Wa 
 dinary subject, by engaging in mercantile transactions wholly un- 
 connected with his royal station? I think not. Under such circum- 
 stances, he may fairly be presumed to have waived, to that extent, 
 his exclusive privileges, and by voluntarily entering into contracts 
 with common men, to have impliedly given his assent to those laws 
 to which all contracting parties are of necessity, answerable ; for 
 where there is no mutuality of rights and remedies, there can be no 
 legal contract. And as, on the one hand, a Sovereign thus con- 
 tracting would probably not scruple, or at least would think him- 
 self entitled to demand legal redress for a breach of any such 
 contract, so, on the other, he must, on the principles of even- 
 handed justice, be considered as impliedly acquiescing in the 
 other party's legal right to redress in case of need.. Now the 
 instrument on which the present action is founded, is a contract 
 of this description, viz., a promissory note importing upon the face 
 of itj that it is given in consideration of money advanced by the 
 plaintiff to the defendant for the purposes of trade ; and for the 
 enforcement of such trading contract, the defendant's effects are 
 in the ordinary course of law, and with the qualification above 
 mentioned, liable, in my opinion, notwithstanding his sovereign 
 character, supposing that to have been satisfactorily proved. 
 Whether, then, the evidence on this head is sufficiently conclusive, 
 is now the important question for consideration. I will, however, 
 first advert to a few cnses which have been brought to my notice 
 as, apparently, parallel to the present, but all of which are, in my 
 opinion, distinguishable from it. The first is the case of Hussein 
 Shah, the father of the present defendant and late Sultan of 
 Johore, who, it appears, was sued in May, 1833, before this Court, 
 at Singapore, and whose plea to the Jurisdiction was allowed by 
 Sir B. Malkin. But in that case, the sovereign character of the 
 defendant was undoubted, and there was nothing to shew that the 
 action arose out of a trading transaction, [a] 
 
 The next case was that of the present King of Purlis and 
 Queclnh, which occurred in August, 1834, when the King was sued 
 in the Court at Malacca for upwards of 1,300 dollars for repairs 
 done to his house, and whose plea to the jurisdiction, viz., that he 
 was a Sovereign Prince residing here by compulsion and, against 
 his will, [b] was allowed by Sir B. Malkin. In the present instance 
 it is not pretended that the defendant is under any compulsion, or 
 that he is other than a perfectly voluntary resident. 
 
 The third case occurred in December of the following year, 
 1835, also at Malacca, when Syed Saban, King of Rumbow, was 
 sued for a trifling sum of 60 dollars, and whose plea to the Juris- 
 diction, viz., that he was a Sovereign Prince, and had arrived only 
 two days previously at Malacca, to transact certain political business 
 with the British Government, was allowed by theEesidentCouncillor 
 
 [a] See Munden v. Duke of Brunswick, 10 Q. B. 656, 662. 
 
 [6] See Ishmahel Lammana v. East India Co., and In Be Trebeck, ante p. 4, and 
 Nairne v. Rajah of Quedah $( anor,, ante p. 145. 
 
802 CIVIL CASES. 
 
 Norms, B. Mr. Garling. In that case, it does not appear, as in the present, 
 1843 - either that the debt arose in the course of trade, or that the resi- 
 
 AbdulWa- dence of the defendant was other than political and temporary. 
 
 hab/&c, The case of the defendant's mother, who was sued in this Court 
 
 y- in November, 184 1 , on a promissory note for 1,600 dollars, and whose 
 
 Johobe° F P lea to the Jurisdiction as Queen Dowager of the late Sultan, was 
 properly overruled by Mr. Salmond, on the ground that even the 
 Queen Consort of England was entitled to no such privilege, I 
 merely notice as being, I believe, the only other instance of these 
 Royal pleas in this Court. 
 
 For argument's sake, I have hitherto assumed the fact of the 
 defendant's sovereignty as either admitted or proved ; but although 
 the replication does not in terms, deny the defendant's allegation 
 in that respect, it can scarcely be said to admit it, and the docu- 
 ments put in by the defendant, in order to establish the fact, do not 
 appear to me sufficiently conclusive on the point. The original 
 treaty made with the defendant's late father by the East India 
 Company, is nothing to the purpose, and the language of the 
 Governor's Notification, dated 16th September, 1840, though some- 
 what ambiguous, does not necessarily import more than that the 
 Government had acknowledged the defendant's claim to the property 
 at Singapore, adverted to in the 8th Article of the Treaty. The 
 terms are as follows : — 
 
 " NOTIFICATION. 
 
 Mahomed Alii, eldest son of the late Mahomed Shah, Sultan of Johore, 
 having arrived at this station, it is hereby notified to all whom it may con- 
 cern, that he is looked upon by the British Government, in every respect, as 
 the successor »f his late father, and entitled to all the property ivpon the 
 ground granted to the late Sultan by the East India Company, situated at 
 Campong Glam, and more particularly, adverted to in the 8th Article of the 
 Treaty entered into by the late Sultan -with John Crawford Esq., as the 
 Representative of the East India Company, on the 2nd day of August, 1824. 
 
 By Order of the Hon'ble the Governor, 
 
 T. CHURCH, 
 
 „. „„',,„ , Resident Councillor. 
 
 Singapore, 16th September, 1840." 
 
 Had this document been intended as a formal recognition 
 [a] of the defendant's sovereignty, it would, no doubt, have been 
 couched in more decided terms. It would, probably, have run 
 somewhat as follows : Tunko Alii, Sultan of Johore, and son, &c, 
 having arrived, &c, " is looked upon by the British Government 
 " as Sultan of Johore and in every respect," &c. Bat in its present 
 shape, it can scarcely be construed into more than an acquiescence 
 in the defendant's claim to the piece of ground specified. Had 
 the defendant ever been proclaimed or acknowledged as Sultan by 
 his alleged subjects at Johore, one would have thought there 
 would have been no difficulty in establishing the fact "by indis- 
 putable evidence, and it would be violating an important Wal 
 principle to admit as sufficient proof, evidence of a secondary con-. 
 
 [a] See Lim Guan Teet v. Tunkoo Akobe, 21th April, 1882, jnfri. 
 
STRAITS SETTLEMENTS. 
 
 303 
 
 sideration, when the best, for aught, that appears, might easily Nobbis, B. 
 have been adduced. 1843. 
 
 On the whole, then, I am of opinion, that the Court has juris- . „ ~~ m -. 
 t i- . . . , ,1 r - -r > , ■ ,. ■> , . Abdul WA- 
 
 clicuon to enquire into the case ; and I may, in conclusion, mention HAE; & . 
 
 as an additional argument for its interference, that the defendant 
 and his mother are known to have availed themselves freely of the. 
 instrumentality and assistance of the lower courts here, as com- 
 plainants both in civil and criminal matters, and that too, I am 
 sorry to add, on a late occasion at the Police office, in a way which 
 reflected anything, but credit on all who were concerned in or 
 advised the prosecution. The plea to the jurisdiction is, there- 
 fore overruled, and the defendant must plead to the merits. 
 
 Plea overruled- 
 
 Sultan ov 
 Johore. 
 
 A plea of infancy at the time of making the contract, was 
 then filed ; and upon issue being joined, and evidence heard on 
 both sides, judgment was given for the plaintiff for the amount of 
 his demand, with interest, and costs. 
 
 ATTOENEY-GENERAL v. De WIND, [n] 
 
 The Crown, under the Malacca Land Act 26 of 1861, has power to commute the 
 tenth payable in kind by landholders in that Settlement, into a money payment ; and 
 that, whether the landholder be a " prescriptive tenant" or not- 
 
 Query. What is a "prescriptive tenant" in Malacca, and within the aforesaid 
 Act? 
 
 This was a special case for the opinion of the Court, touching 
 the liability of the defendant, a landholder in Malacca, to pay a 
 sum of $ 44.85^ [somewhat in the nature of an annual quit-rent] 
 in money, by order of the Governor, in lieu of payment in kind, as 
 had previously been the practice under the Portuguese and Dutch 
 Government, and subsequently even of that of the British. The 
 facts set out in the case, fully appear in the judgment. The fol- 
 lowing exhibits referred to therein, are here set out at full length. 
 
 Malacca. 
 
 Hackett, 
 
 Ag., C. J. 
 
 1868. 
 
 January 7. 
 
 EXHIBIT A. 
 
 Whereas Johannes Bartholomeus De 'Wind, by virtue of certain Grants 
 issued by the preceding local Governments, referred to in a certificate, dated 
 25th August, 1797, and signed by J. Belmont, J. Rappa, J. Hamel and J . B. 
 Westerhout, Executors of Abraham De Wind, deceased, and countersigned by 
 C. M. De Groot, one of the members of the College of Justice at Malacca, by 
 virtue of legal powers in that Court invested by the then existing Government, 
 which certificate states that the lands called Pangor, Passal, Tadon, Moerli- 
 mow, Duyong, Sercam, Ayer Towah and Kassang, are given over to John 
 Jacob Bartholomeus and Abraham De Wind, as heirs of the aforesaid 
 Abraham De Wind, and whereas two of the said heirs, named Jan Jacob De 
 Wind and Abraham De Wind have since died, and the said lands devolved 
 to the aforesaid Johannes Bartholomeus De Wind. 
 
 [a] This decision is now inserted solely on account of its importance and original 
 character. See note [a] ante, p. 298. 
 
304 
 
 CIVIL CASES. 
 
 Hackett, 
 
 Aa., C, J, 
 
 1868. 
 
 Attornbt- 
 Genebal 
 
 v. 
 De Wind. 
 
 Whereas by further reference, it appears, that tlie aforesaid A. De Wind 
 inherited the same from his father Claas De Wind as per title deed registered 
 in the College of Justice, 30th August, 1785, and that the said Claas De Wind, 
 on 8th April, 1752, purchased of Hendrick Nicolaage that part of the land 
 called Poongor [alias old Malacca] extending from the river of Duyong to 
 Tanjong Pallas, on the sea-beach, but that inland the extent was not known 
 on account of the deep jungle preventing the right measurement of it. Pur- 
 thermore, that the aforesaid Hendrick Nicolaage, purchased the aforesaid 
 land called Poongor boundaries as above stated, of Calicaula Chitty, the 29th 
 June, 1733, which deed of 1733 refers to another of the 13th June, 1731, which 
 is not to be found amongst the records, the book for that year being missing, 
 and whereas the said Claas De Wind inherited of Maria Altheer, his wife, 
 that part of the land called Passal, &c, extending from the last mentioned 
 boundary [viz., Tanjong Pallas] to the Sercam River, being about 6J miles 
 on the sea-beach, but that inland the extent was not known on account of 
 the deep jungle which prevented the measurement of it, and whereas by fur- 
 ther reference to the records of 17th January, 1750, a deed of sale is registered 
 wherein the said Maria Altheer purchased these said lands of Joshua Koek. 
 And whereas by a former deed of sale, dated 5th July, 1735, the said Joshua 
 Koek purchased these lands by public auction, and whereas the said land was 
 the property of Kalikanlas as per deed of sale, dated 2nd June, 1708, purchased 
 of Commera, and whereas the said Oommera purchased the said lands 14th 
 October, 1699, which book of record is not to be found. 
 
 And whereas the said Claas De Wind inherited of Maria, his wife, that 
 part of the lands called Tadoong, Moerlimow and Kassang, extending from 
 the last mentioned boundary [via., Sercam River] to the Kassang River, 
 being about 7i miles along the> sea-beach, but that inland the extent was 
 unknown on account of the deep jungle which prevented the measurement 
 of it. 
 
 And whereas by further reference, the said lands were purchased of 
 Miraudge Chitty, 6th March, 1759. 
 
 And whereas the said Miraudge Chitty purchased the said lands of Moeto 
 Mara Chitty, 13th January, 1747, Moeto Mara Chitty purchased it at auction 
 28th July, 1745. 
 
 And whereas on further reference to the records the said lands were 
 purchased by Bellaysom at auction, 19th April, 1 735 and 14th May, 1735. 
 This deed of sale refers to a deed of sale, 19th Febuary, 1727, when Calie- 
 kaulie purchased it from Hone Qua. 
 
 And whereas the said Hone Qua had a deed of sale, dated 29th August, 
 16b9, the book containing this deed is not to be found. 
 
 Whereas the said Johannes Bartholomeus De Wind stands possessed of 
 the nght of levying from the tenants on all the land stated in the said docu- 
 ment one-tenth of the produce of the said land on the terms and conditions 
 therein provided. 
 
 And whereas the said Johnnes Bartholomeus De Wind being willing and 
 desirous of transferring and making over to the Honorable East India 
 Company, all the rights, benefits, privileges and emoluments enjoyed under 
 a /fu referred t0 , m the aforesaid documents on certain consideration. 
 And the Honorable the Governor in Council of Prince of Wales' Island, 
 bmgapore and Malacca, acting on behalf of the said Honorable East India 
 Company, being on hispart willing and desirous to receive the said rights, 
 i.Tr, 1 v P -?T g6S ^ nd emoluments The following agreement is entered 
 H^JSTw? pw ^rtholomeus De Wind on the one part, and by the 
 PaZt v^f U l l6 I t0 % ^l qU ^ Got ™-, and Honorable Samuel 
 
 Garlmg, Squire, one of the Resident Councillors of Prince of Wales' Island 
 Singapore and Malacca, on the other part, that is to say— ? 
 
 Johannes Bartholmeus De Wind, on behalf of himself and heirs relin 
 
 Ttt Eas r Tndos r ;^ U ^f ^ mpM1 J °l Mer <*- te °* ^BngW trading 
 to the liast Indies all the rights, title and advantages re.-ultinS to him from 
 the possession of the deeds or documents aforesaid , which are now herewith 
 KrrfP^^'wi Samuel Garling, Esquire, on the part of the 
 Oroveinment oi Prince of Wales' Island, Singapore and Malacca with tlie 
 regular transfer of the same endorsed thereon. Malacca, with tne 
 
STRAITS SETTLEMENTS. 
 
 305 
 
 The Honorable Robert FnUerton, Esquire, and Honorable Samuel Garling, 
 Esquire, as Governor and Council, on the part of the United Company of 
 Merchants of England, trading to the East Indies herby acknowledge to have 
 received the deeds, .title, privileges, advantages and benefits aforesaid, and in 
 consideration thereof, hereby convenant and agree to pay to the aforesaid 
 Johannes Bartholomew De Wind and his heirs fcr ever, so long as the Settle- 
 ment of Malacca remains under the British Flag, the sum of sicca rupees four 
 thousand, per annum, by such instalments as may be mutually agreed on. 
 
 It is mutually convenanted an 1 agreed that the payment of the instal- 
 ment herein before provided for, shall commence on the first of November, 
 eighteen hundred and twenty-eight, from which day the right of levying the 
 one-tenth of the produce from the lands shall be vested in the Government- 
 acting for the Honorable East India Company, and for ever cease on the 
 part of the aforesaid Johannes Bartholomeus De Wind and his heirs. 
 
 And wherea3 in case the Settlement and territories of Malacca should, 
 be hereafter transf erred to any other Power, Government do bind themselves 
 previously to retransfer to the present holders or their heirs, all deeds, privi- 
 leges, rights, benefits and emoluments now delivered, and will put them in 
 possession of all rights and advantages derivable therefrom. 
 
 As the said Johannes Bartholomeus De Wind has rented to others the 
 privileges of collecting the tenth in certain produce of the aforesaid lands, 
 it is agreed that the officers of Government shall receive from the contractor, 
 the stipulated sum due from the said Lim Hingoan in lieu of the tenth up to 
 the expiration of the term of contract. 
 
 This agreement made and entered into at Malacca, this fourteenth day 
 of March in the year of Our Lord, one thousand eight hundred and twenty- 
 eight. In witness of which the said Johannes Bartholomeus De Wind, on 
 the one part and the said Honorable Robert Fullerton, Esquire, and Honora- 
 able Samuel Garling, Esquire, as Governor in Council, have set our hands 
 and seals. 
 
 (Signed) R. FULLERTON, [L. S.] 
 
 ( „ ) S. GARLING, [L. S.] 
 
 ( „ ) J. B. De WIND, [L. S.J 
 
 Signed, sealed and delivered where 
 no stamps are used, in the pre- 
 sence of 
 
 (Signed) A*. A. VELGE. 
 ( „ ) D. KOEK. 
 
 Witness to the Governor's signature, 
 
 (Signed) EDWARD LAKE, Captain. 
 ( „ ) M. P. BUNBERY, Captain. 
 
 Hackett, 
 
 Ag., C. J. 
 
 1SC3. 
 
 Attorney- 
 General 
 
 V. 
 
 De Wind. 
 
 EXHIBIT B. 
 
 Statement of the ages of the six surviving children of the late Johanne3 
 Bartholemeus De Wind, Esquire, gentleman of Malacca, up to the period of 
 his death which occurred on the 13th February, 1842. 
 
 Abraham Adrian De Wind. . 
 
 fBorn 21st May, 1820, 21 years, 8 
 
 ^ months and 23 days. 
 
 Catherine Maria Ferrier, widow of the *) 
 late Major Ferrier, 48th Regiment, I Born 2nd July, 1821, 20 years, 7 months 
 M. N. I., Resident Councillor of f and 1 1 days. 
 Malacca J 
 
SOS 
 
 CIV IL OASES. 
 
 Hackett, Rosalie Catherine Bowman, wife of ( ^ 
 
 Ag., C. J. Mr. S. Bowman, Engineer, Borneo ) Born 28th June, locSl, 1U years, t 
 1868. Co., Limited, New Harbour, Singa- J months and 16 days. 
 
 Attorney. P ° re ' 11™!! (Born 21st March, 1836, 5 years, 10 
 
 General Edmund Robert De Wind | months and 23 days. 
 
 v. f Born 11th March, 1837, 4 years, 11 
 
 De "Wind. Arthur Hughes DeWind £ months and 2 days, 
 
 „ _,. , f Born 5th December, 1839, 2 years, 2 
 
 John Bartholemeus De Wind £ months and 8 day s. 
 
 EXHIBIT C. 
 
 Whereas great inconvenience being apprehended as likely to arise from 
 the delay in carrying into operation the agreement hereinbefore recited, to so 
 late a period as the 1st November, next, it is mutually covenanted and 
 agreed that the payment of the instalment provided for, shall commence on 
 the 1st July, 1828, from which day the right of levying the one-tenth of the 
 produce of the lands, as well as all other privileges, benefits, rights and 
 emoluments, shall be vested in the Government acting for the East India Com- 
 pany, and for ever cease on the part of the aforesaid Johannes Bartholomew 
 
 DeWind. _ „,_,..,,,„ 
 
 (Signed) S. GARLING. 
 
 J, B. De WIND. 
 
 Malacca, 3rd June, 1828, 
 
 EXHIBIT D. 
 
 From 
 
 To 
 
 The Resident Councillor 
 
 at MALACCA. 
 
 A. A. De WIND, Esq. 
 
 Sir, 
 
 On behalf of the British Government, I do myself the honor of submit- 
 ting to you as owner of one-eighth share of the lands of Candang Allye, &c, 
 the following proposal in regard to these lands, to the effect that a new 
 covenant be entered into by you with the Government, transferring all rights, 
 titles and interest that you may possess in these lands in perpetuity to the Bri- 
 tish Government, receiving the annuity that is now paid in perpetuity also, and 
 not contingent, as it now is, on the following conditions, viz : for so long as 
 the Settlement of Malacca remains under the British Flag, when in case the 
 Settlement shall be transferred to any other power, the annuity shall cease, 
 and all deeds, privileges, rights, benefits and emoluments transferred to Gov- 
 ernment, shall be transferred to their holders or their heirs. 
 
 This latter contingency, viz. the transfer of Malacca by the British to 
 any other Power, or its relinguishment by the British Government, is an 
 event of such a very improbable occurrence, that it is difficult to perceive 
 what advantages former holders of these deeds, rights, &c, are to gain by a 
 retention of the clauses in the present covenants, containing these conditions. 
 Whilst by their excision and the contract to be entered into by both parties 
 being a simple one of exchange, the considerations given on both sides being 
 in perpetuity, unfettered by other conditions, the advantages to all parties 
 will be great. I need hardly state that the object in view from the present 
 proposal, is the great good that must eventually accrue to this Settlement, 
 in which all parties must participate. 
 
 I would beg to point out a few that would result from the lands annuit- 
 ants' entering into the covenant now proposed, Government would be put in 
 a position to enable holders of commutation deeds, which are more of the 
 nature of leases, and that too of but a very limited period, not now averaging 
 
STRAITS SETTLEMENTS. 
 
 307 
 
 more than 10 or 11 years than anything else, to exchange these valueless 
 titles into deeds in perpetuity, whereby land would be held in fee simple 
 which from the conditions contained in the present covenants cannot now be 
 done, and not on lease as now, subject to revision and possible raising of rent 
 at the expiry of the lease. Whilst from the superior value of the titles, the 
 value of the land would be considerably increased, from the greater security 
 of the title, substantial parties belonging to the place would be more willing 
 than they now are, to invest their capital in agricultural pursuits, whilst the 
 facility of procuring lands at Malacca on the same footing as now obtains at 
 Penang, Province Wellesley, and Singapore, where the system of selling lands 
 out-right in fee simple, only introduced lately, has succeeded so well and with 
 great benefit to all parties, would attract foreign capital and enterprize, all 
 of which cannot fail to prove of vast benefit to Malacca, and raise it from its 
 hitherto depressed state consequent on the peculiarity of its land tenures. 
 
 May I request your careful consideration of the proposal now made to 
 you, and which so materially affects for good the interest of yourself, your 
 descendants, and the Settlement at large, and in hopes of a favourable reply, 
 
 I have the honor to be, 
 
 Sir, 
 
 Tour most obedient Servant, 
 
 (Signed) I. FERRIEE, 
 
 Resident Councillor. 
 
 EXHIBIT E. 
 
 Malacca, 30th September, 1853. 
 
 To 
 
 The Honorable CAPTAIN PERRIER, 
 
 Resident Councillob, 
 
 &c, &c, &c, 
 
 MALACCA. 
 Sir, 
 
 I have the honor to acknowledge the receipt of your letter under date the 
 30th ultimo, submitting on behalf of the British Government, a proposal to 
 me as proprietor of one-eighth share of the lauds at Candang Allye, &c, to 
 the effect " that a new covenant be enteied into by me with the Government, 
 " transferring all rights, titles, and interest that I may possess in these lands 
 " in perpetuity to the British Government, receiving the compensation that 
 " is now paid in perpetuity also and n °t contingent, as it now is on the f ollow- 
 " ing conditions, viz : for so long as the Settlement remains under the British 
 " Flag, when in the event of the Settlement being ceded to any foreign power, 
 " the annuity shall cease and all deeds, privileges, rights, benefits and emolu- 
 " ments transferred to Government, shall be retransf erred to their holders or 
 " to their heirs." 
 
 In reply, I beg to say that, after a careful consideration and mature 
 deliberation of the terms proposed, it is not within my power to meet the 
 wishes of the Government, and I must, therefore, respectfully decline entering 
 into any new convenant. The transfer of this Settlement to any other power 
 or it3 relinquishment by the British Government is an era not at all likely to 
 occur, although by no means impossible, and I do not perceive any advantages 
 to be derived from the present proposal, either to myself or to those who 
 with me participate in equal shares m the lands above referred to. 
 
 I have the honor to be, 
 
 Sir, 
 
 Tour most obedient Servant, 
 
 (Signed) A. A. PeWINP, 
 Malacca, 3rd October, 1853. > 
 
 Hackett, 
 
 Ag., C. J. 
 
 1868. 
 
 Attobney- 
 
 CtENEKAL 
 V. 
 
 Db Wind. 
 
CIVIL OASES. 
 
 HlCKETTj 
 
 Aa., C. J. 
 
 1868. 
 
 Attoknet- 
 General 
 
 De Wind. 
 
 T. Braddell [AHorney-General] for the Crown. 
 
 E. 0. Woods, senr., for the defendant. 
 
 Cur. Adv. Vult. 
 
 On this day judgment was delivered by 
 
 Eackett, Ag., C. J. This is a special case for the opinion of 
 the Court, and is intended to raise the question whether a commu- 
 tation of the payment in kind due by the defendant in respect of 
 certain lands in the district of Malacca, to a money payment, 
 made by the Governor of Prince of Wales' Island, Singapore and 
 Malacca, under Act 26 of 1861, is valid. 
 
 The tenure of land in Malacca seems to be different from that 
 at Singapore and Penang, and required to be dealt with by 
 Government in an exceptional manner. For instance, when Act 
 16 of 1839, providing for the assessment of landholders in the 
 Straits Settlements was passed, a special exception was made in 
 favour of those who held their lands by prescription in the district 
 of Malacca. 
 
 In a minute by Lord Auckland on the land question in the 
 Straits, he says, speaking of Malacca : 
 
 ._ "The Portuguese and Dutch, seem to have left the cultivators as they 
 
 " found them The tenth of the produce is by the old law of the country, the 
 
 " tax due to the State, and the property of the land is acquired on clearing the 
 
 "jungle 
 
 " We have not interfered with those whom we found in possession under 
 "these circumstances, who appear to form a poor and scanty population of 
 "village agriculturists, but we have by the Malacca Land Regulation passed 
 " by the Penang Government as Regulation IX. of 1830, assumed to the State, 
 " the absolute property in all waste or forest land." [a] 
 
 I regret that I have been unable to obtain a sight of this land 
 Eegulation, which might have explained provisions in some of the 
 Indian Acts with reference to Malacca which, without extrinsic 
 evidence as to their meaning, are not without difficulty. 
 
 However, I think, we may take this as certain, that previous 
 to the cession of Malacca to the English, the Government title over 
 the whole or the greater part of the province [that is, the riahtto 
 exact one-tenth of the produce from the cultivators of the soil] was 
 transferred to certain persons, who were in possession of this title 
 when Malacca was ceded to the East India Company, and who 
 were therefore actually the lords of the soil. One of the most im- 
 portant of these middlemen was J.B. De Wind, the defendant's father. 
 a-k i A • y ear ,. 1828 > fch e Government having found considerable 
 difficulty m dealing with the lands in Malacca, in consequence of 
 their subjection to this burden, entered into an arrangement with 
 
 SfjrT °* S '> wWch the ^ were t0 receive fi sed annuties in 
 Com an surrender of their rights to the East India 
 
 °, n e f foe persons who thus surrendered their rights, was the 
 defendants father, J. B. De Wind. "o""^ 
 
 tXT £ an fT ent did not P rOTe t0 ^ a satisfactory settlement, 
 theiri^hf* r ? aCe 'T? f U l e l iersona "ho thus surrendered 
 their lights [and amongst them J. B. De Wind] were only tenants 
 
 P- lwj 229° ^^^ ^ 0me 'P° ndence ' « Avenue Administration, 8.S., 1844, 
 
STRAITS SETTLEMENTS. 
 
 309 
 
 for life, a circumstance which immediately raised a question, and, 
 in the second place, there was a condition inserted in these agree- 
 ments, that, in the event of the cessation of British rule in Malacca 
 every person so transferring his rights should resume them, [a] 
 Iu the result, this condition seems to have in effect nullified 
 the surrender, and prevented the Government from dealing freely 
 with the land encumbered as it was, with this cause of re-entry on 
 the cessation of British rule in Malacca. 
 
 In the year 1853 [J. B.De Wind having in the meantime died] 
 the Government endeavoured to prevail on the defendant as repre- 
 senting one-eighth share of his father's estate, to enter into a new 
 covenant, transferring all his rights to the Government in per- 
 petuity, and receiving the annuity in perpetuity also. To this pro- 
 posal the defendant returned a decided negative. 
 
 I now come to the facts and questions stated in the special case. 
 " The defendant abovenamed is one of the six surviving heirs of 
 the late Johannes Bartholomew De Wind, formerly of Malacca. 
 The said Johannes Bartholomeus De Wind, who had only a life 
 interest in the lands hereinafter mentioned [according to the pro- 
 visions of the Will of his father Abraham De Wind, bearing date, 
 7th November, 1793, and codicil bearing date, the 19th day of 
 November, 1796, the saidlands being inalienable by his descendants or 
 heirs] entered into an agreement under his hand and seal, dated at 
 Malacca, the 14th day of March, 1828, with the then United Com- 
 pany of Merchants of England trading to the East Indies, which 
 .agreement is hereafter set out as a part of this case. [6] 
 
 That at the time the said Johannes Bartholomeus De Wind 
 entered into the agreement, dated 14th March, 1828, the defendant 
 Abraham Adrian De Wind was a minor, as was also his sister 
 Catherine Maria ; the other heirs of the said Johannes Bartholo- 
 meus De Wind were born subsequent to the date of the said agree- 
 ment, and their respective ages at the death of their father in 1842, 
 were as set out in the memorandum annexed to this petition 
 [marked B.] [c] 
 
 A further agreement was afterwards on the 3rd day of June, 
 1828, entered into by the same parties, which further agreement 
 is also set out as a part of this case, [d] 
 
 The said Johannes Bartholomew De Wind died in the month 
 of February, 1842. 
 
 After the defendant's ancestors received the title deeds set out 
 in the agreements above referred to, the defendant's ancestors 
 occupied and cultivated certain portions of the lands referred to 
 in the said title deeds, and after Government received possession 
 of the said several title deeds, the defendant continued to occupy 
 and cultivate pai-ts of the said lands, and other parts were allowed 
 by the defendant to lie waste for several years and were afterwards, 
 i. e., since January, 1862, recleared of the jungle and cultivated by 
 the defendant. 
 
 That on the 30th September, 1853, the Government through 
 
 Hackett, 
 
 As., C. J. 
 
 1368. 
 
 Attobney- 
 Genebal 
 
 V. 
 
 De Wind. 
 
 [a] See Mbram # ors. v. De8ouza,ante-p. 27. [c] 
 [6] Vide Exhibit A., ante p. 303. [d] 
 
 Exhibit B., ante p. £05. 
 Vide Exhibit C, p, 806. 
 
310 
 
 CIVIL OASES. 
 
 Hackett, 
 
 Ag., C. J. 
 
 1868. 
 
 Attorney- 
 General 
 
 V. 
 
 De Wind. 
 
 Captain Ferrier, then Resident Councillor at Malacca, submitted to 
 the defendant, as owner of one-eighth share of the said lands, a pro- 
 posal for the transfer of all rights so possessed by the defendant in 
 these lands in perpetuity to the Government, receiving the annuity 
 now paid in perpetuity also, and other provisions as will more fully 
 appear on reference to the official letter of the said Resident 
 Councillor, and copy of defendant's reply thereto, which are here- 
 after set out as part of the case, [a] 
 
 The Honorable the Governor of Prince of Wales' Island, 
 Singapore and Malacca, by virtue of the powers in him vested by 
 Act of the Legislative Council of India, No. XXVI. of 1861, 
 entitled " An Act to regulate the occupation of land in the settle- 
 " ment of Malacca" commuted the payment to which the defendant 
 was liable under section 3 of the said Act XXVI. of 1861, for the 
 occupation of the said lands for a money payment of one cent, and 
 a yearly quit-rent at the rate of 25 cents per acre, on the following 
 lands : — 
 
 Ayer Moley 
 Sempang 
 Tadong 
 Allay 
 
 108 acres, 2 roods, 39 perches. 
 34 „ 5 „ 
 
 9 „ 1 22 „ 
 
 11 „ 3 13 
 
 163 
 
 39 
 
 the above being situated beyond four miles from the town of 
 Malacca. 
 
 _, And the rate of 45 cents per acre for the following lands 
 situate beyond two miles, but within four miles from the said 
 town: 
 
 Allay ... 8 acres, 2 roods, 8 perches. 
 
 The amount due for the above commutation is $44.85£. 
 Act XVI. of 1839 and XXVI. of 1861, are to be taken as part 
 of this case. 
 
 The defendant contends that he is a prescriptive tenant within 
 the meaning of the reservation in section 12 of Act XVI of 1839 
 and in sections 1 and 3 of Act XXVI. of 1861, and as such 
 prescriptive tenant, he is not liable to pay any rent or dues to 
 Government other than a payment in kind of one-tenth of the 
 produce of the lands occupied by him, and the defendant tendered 
 to brovemment «s such tenth, a sum of money larger than that now 
 claimed as commutation. 
 
 The plaintiff contends that under the Acts above referred to, 
 the defendant is bound to pay to Government as a commutation 
 of tenth or other rents or dues payable to Government, the sum for 
 Governor payment has been commuted by the Honorable the 
 
 It has been agreed upon by the parties, that if judgment 
 should go for the plaintiff, this case should be read as if the de- 
 fendant were solely to be liable for the amount claimed $44.85^. 
 
 [a] Exhibits D, & E., ante pp. 306, 307. 
 
STRAITS SETTLEMENTS. 
 
 311 
 
 Under the circumstances aforesaid, it has been determined by 
 the plaintiff and defendant to concur, and they do respectively 
 concur in the statement of facts herein contained for the opinion 
 of this Honorable Court under the provisions of the Act of the 
 Legislative Council of India, No. XVII. of 1852. 
 
 The parties, therefore, pray the opinion of this Honourable 
 Court whether the defendant is such prescriptive tenant as to all 
 the lands so occupied or as to any part thereof. 
 
 And if so, whether he is exempt from commutation under the 
 Act XXVI. of 1861. 
 
 And, whether he is such prescriptive tenant or not, whether 
 the payment due by him for the occupation of the said lands, is not 
 liable to be commuted by His Excellency the Governor and to 
 have been commuted by His Honor the late .Governor of the 
 Settlement, and whether the defendant is not bound to pay to the 
 plaintiff the sum now rated for $44.85 i yearly, at the end of every 
 year, so long as the said commutation may remain in force." 
 
 It appears, therefore, that the defendant and those through 
 whom he claims, have from a time, long anterior to British rule in 
 Malacca, occupied and cultivated certain lands in that district, 
 and that other lands were allowed by the defendant to lie waste 
 for several years and were afterwards [since January, 1862] 
 cleared and cultivated by him, and he contends that he is a pres- 
 criptive tenant as to all such lands, and as such prescriptive 
 tenant, is only liable to pay to Government one-tenth of the pro- 
 duce in kind. 
 
 Upon this contention the first point which arises is, what is a 
 prescriptive tenant ? 
 
 Now title by prescription as applied to corporeal heredita- 
 ments is strictly speaking unknown to the English law. In the 
 case of corporeal hereditaments the only prescription known, is 
 that negative prescription which arises from the bar which may 
 be pleaded under the Statute of Limitation. 
 
 The Acts XVI. of 1839 and XXVI. of 1861 both mention 
 tenants by prescription, as existing in Malacca, and evidently 
 contemplate a species of tenants holding by a title peculiar to that 
 district, but I no where find any definition of the meaning of the 
 term, and it is only inferentially, and by reviewing the history of 
 that district that I am unable to conjecture in what sense the 
 word has been used. From Lord Auckland's Minute which I have 
 already referred to, it appears that under the old law of Malacca, 
 the property in the land was acquired on clearing the jungle, sub- 
 ject to the payment of one-tenth to the State, and he goes on to 
 say that the East India Government did not interfere with the 
 persons whom they found in possession of and cultivating the soil. 
 I think it probable therefore that when the term " tenants by pres- 
 " cription" is used in the Act of 1861, it is applicable to persons 
 who without grant, lease or title-deed of any kind, had acquired 
 by occupancy and cultivation, a sort of prescriptive title to the 
 lands they held ; and who were in possession at the time Malacca 
 became subject to the East Indian Government. But although, I 
 thinks there is reason to believe that the framers of the Acts of 
 
 Hackett, 
 
 As,, C. J. 
 
 1868, 
 
 Attobnet- 
 
 Geneeal 
 
 V. 
 
 De Wind, 
 
312 
 
 CIVIL CASES. 
 
 Hackett, 
 
 Ag., C. J. 
 
 1868. 
 
 Attorney- 
 General 
 
 v. 
 De Wind. 
 
 1839 and 1861, when they speak of tenants by prescription, had 
 in view, persons who derived their title from long and uninter- 
 rupted possession, yet as there was no argument on the subject at 
 the bar and no authorities referred to, I do not feel myself at 
 liberty to pronounce an opinion on the first question in the case, 
 viz., whether the defendant is a tenant by prescription. But in 
 the view vshich I have taken of the other questions submitted for 
 the opinion of the Court, it is in fact unnecessary to express any 
 opinion on the point. 
 
 The second and third questions in substance" come to this, 
 whether, as a prescriptive tenant or not, the defendant is liable to 
 have the payment due in respect of the lands occupied by him as 
 stated in the special case, commuted by the Governor. And this 
 question depends on the construction of sections 8 and 4 of Act 
 XXVI. of 1861. The preamble of this Act recites the expediency of 
 removing all doubts as to the power of Her Majesty to convey in 
 fee simple in the district of Malacca, the lands which certain 
 rights and interests were surrendered to the East India Company in 
 theyears 1 828 and 1829, and of otherwise amending the law relating 
 to the occupation of land in Malacca. The first section then goes 
 on to provide that the lands in the district of Malacca, in which 
 certain rights and interests were surrendered to the East India 
 Company in the yea.rs 1828 and 1829, on condition that a certain 
 amount then settled and agreed upon shall be paid by the Govern- 
 ment annually, so long as the British rule in the said district con- 
 tinued, to every person making such surrender, and on condition 
 also that every such person, in the event of the cessation of the 
 British rule in the said district, should resume the rights then 
 conditionally surrendered to the British Government, are hereby 
 vested in Her Majesty the Queen, her heirs, &c. [saving always any 
 rights or interests lawfully vested in any under-tenants or cultivators 
 holding or occupying any portion of such lands'] . 
 
 The first object, therefore, of the Act of 1861 was to set at 
 rest all doubts as to the right of the Queen to convey in fee simple 
 iu Malacca, and to free the land from the clause which declared 
 that in the event of the cessation of the British rule there,. the 
 original proprietors should resume the rights which they had 
 transferred. And this object seems to me to have been expressed 
 in clear and unmistakable words in the first section of the Act, 
 reserving, however, the rights of actual tenants. 
 
 The third section deals with the cases of tenants, and declares 
 the cultivators and resident tenants referred to in the first section 
 ot the Act, as well as in the district of Nanning, who hold their 
 lands by prescription to be subject to a payment of one-tenth of 
 the produce thereof to the Government; such payment to he made 
 in land, or m tJw form of a sum of mono, j fixed in commutation of 
 the payment m kind; and the section then provides for the manner 
 
 v r^\* i 6r culti y ators aild under-tenants of lands in the 
 
 district aforesaid are to be assessed. 
 
 It is observable that the third section declares prescriptive 
 tenants to be liable to a payment of a tenth in kind or of a sum of 
 money commuted for the tenth in kind, and the fourth section 
 
STRAITS SETTLEMENTS. 
 
 313 
 
 then prescribes the manner iu which this commutation is to be 
 made. The fourth section enacts that it shall be lawful for the 
 Governor of Prince of Wales' Island, Singapore and Malacca to 
 cemmute the payment whether in kind or money, to which any per- 
 son is liable under the third section, for a suin to be fixed at the 
 discretion of the Governor, and for an annual quit-rent. 
 
 Now it is impossible to doubt the meaning of this, section. It 
 is to give the Governor the power of commuting the payment 
 whether in hind or money to which any person is liable under the 
 third section of the Act, and therefore power to commute the 
 payments due from tenants by prescription. 
 
 It certainly does strike me as singular, that the right to fix 
 the amount to be- paid by the tenant by way of commutation 
 should be vested in the Governor solely, and that the tenant should 
 have no voice in the matber. And it is easy to conceive cases in 
 which the exercise of this right might work injustice. But I am 
 bound to take the Act as I find it, and I confess, I cannot arrive at 
 any other conclusion than that the Governor has power in his. 
 discretion, to fix the rate at which the payment in kind due by 
 any tenant by prescription shall be commuted. 
 
 From the special case, it appears that the Governor has com- 
 muted the payment to which the defendant was liable for the 
 occupation of his lands for a money payment of one cent, and a 
 yearly quit-rent at the rate ^of twenty-five cents per acre, and as 
 this commutation has been made in the manner prescribed by the 
 fourth section of the Act of 1861, and there is no suggestion that 
 the rate is excessive, I am of opinon that, whether the defendant 
 be a prescriptive tenant or one of the " other cultivators and 
 " under-tenants" referred to in the third section, the commutation 
 is equally valid, and that he is bound to pay the Government the 
 sum now rated for dollars 44. 85^ yearly at the end of every year, 
 so long as the said commutation may remain in force. 
 
 Judgment/or the plaintiff. 
 
 Hackbtt, 
 
 Aa. C. J. 
 
 1868. 
 
 Attorney- 
 Genehal 
 
 V. 
 
 De Wikd. 
 
 BEMBEN v. CUEPEN KEECHEE. 
 
 Semble. If an action has beffl tried in the Court of Requests, and judgment given Penang. 
 
 therein, such judgment is binding on the parties, and they cannot afterwards come into 
 
 the Supreme Court about the sam:s claim, even if plaintiff was merely non-suited in the Hackbtt, J. 
 
 lower Court. 1872. 
 
 This was an action of detinue for certain cows, &c. The 
 defendant simply pleaded the general issue, and at the trial, in 
 person, adduced evidence denying the plaintiff's property in the 
 cows. 
 
 Bond on behalf of the plaintiff, objected to the evidence, and 
 contended that by the Eules of Court such evidence could not be 
 given under the general issue. 
 
 [Hackett, J. Yes, but I don't suppose you will press it in this 
 case.] 
 
 June 18. 
 
su CIVIL CASES. 
 
 Hackett, J. In the course of the case it appeared tha* the Commissioner 
 1872. f the Court of Bequests had tried a case between these parties 
 for the very same things now claimed, in which the plaintiff lost 
 
 Bemben 
 
 v. his case 
 
 Curpen [Hackett, J. If this case has been already tried in the lower 
 
 Kbechee. Cour ^ and the defendant has obtained judgment, I will not enter- 
 tain this suit, as the judgment there is binding on the parfaes. 
 Supposing a plaintiff sued in the County Court and lost, could he 
 afterwards sue in the Superior Court?] 
 
 I submit he could, if he was only non-suited. A non-suit is 
 no bar to an action being retried. 
 
 Hackett, J. I think not ; if he was non-suited, he should sue 
 again in the same Court. 
 
 It afterwards turned out that the case was not regularly tried 
 in the Court below, and the plaintiff had judgment, [a] 
 
 COOMAEAPAH CHETTY v. KANG OON LOCK. 
 
 Penano. The Lord's Day Act, 29, Car. II. c. 7, as far as contracts are concerned, applies to 
 
 ' both Christians and non-Christians in this Colony. 
 
 Hackett, J. 
 
 1872. Borrowing money and giving a note for it, even by a tradesman, is not a thing 
 done in the course of his ordinary calling ; but it would be otherwise, if given for good 
 
 June 19. so id according to the ordinary calling of the vendor. 
 
 To a plea stating that a note was made on Sunday, the plaintiff replied, that after 
 making the note, the defendant promised to pay. 
 Meld, on demurrer, that it was bad. 
 Semhle. The penal portion of the Act does not apply. 
 
 Declaration on a promissory note. Summons issued under 
 Act V. of 1866. 
 
 The defendant, having obtained leave to appear and defend, 
 pleaded inter alia, the following plea : — 
 
 " And for a third plea, the defendant says, that before and at the time of 
 " the making of the promissory note, and promise of the defendant in the de- 
 " claration mentioned, he, the defendant, was and still is a tradesman, carrying 
 " on his business in China Street in George Town, in Penang, under the firm 
 " or chop of " Teng Thye," and that the said promissory note and promise in 
 " the declaration mentioned, was signed, and made, and completed by the 
 " defendant on a Sunday, to wit Sunday, the 10th day of March, in the year of 
 " Christ, one thousand eight hundred and seventy-two [6], and that the same 
 " was signed, made and completed by the defendant. In the exercise of the 
 " worldy labour, business or work of the ordinary calling of the defendant as 
 " such tradesman as aforesaid, and that the same was not a work of necessity 
 " or charity ; and that the 9th day of March, 1872, therein mentioned, was 
 " only inserted at the plaintiff's request, as he was afraid he could not recover 
 " the monies due thereon, if the proper date was inserted ; wherefore, the 
 
 [o] See Boutledge v. Uislop, 29 L. J. M. C. 90. If a case has once been decided 
 by the Court of Requests, no appeal lies to the Supreme Court from such decision. 
 Maxwell Prac. of the 0. B. page 7, Maxwell on Magistrates, p. 34, The procedure 
 is laid down by sec. 10 of the Appeals Ordinance XII. of 1879. 
 
 [6] The Court is bound to take judicial notice that a particular day of tho month 
 falls on a Sunday, Hanson v, Shakalton, 4 Dowl. 48. 
 
STRAITS SETTLEMENTS. 315 
 
 " defendant says, that the said promissory note and promise in the declaration Hackett, J. 
 " mentioned, was, and is void in and by the law." 1872. 
 
 The plaintiff demurred to the plea, the marginal note of the °chetty H 
 demurrer being as follows : — u. 
 
 Kang Oow 
 
 " A matter of law intended to be argued, is, that so much of the Statute, Ajock. 
 " 29. Car. II. c. 7, as relates to the observance of the Lord's Day, does not 
 " apply to Chinese, Mahomedans, or Hindoos, being non-Christians residing in 
 " this Colony." 
 
 The plaintiff also replied to this in the words following : — 
 
 " And for a second replication to the defendant's third plea, the plaintiff 
 " says, that after the making, signing, and completing of the said promissory 
 " note and promise, to wit on the 10th day of April, 1872, the defendant paid 
 " the plaintiff, the sum of dollars thirty-three [$33] in part payment of the 
 " said promissory note, and in part performance of the said promise, and that 
 " thereafter, to wit, in the commencement of the month of May, 1872, the 
 " defendant verbally promised to the plaintiff, to pay to the plaintiff, the sum 
 " due on the said promissory note and promise aforesaid." 
 
 The defendant demurred to this replication, the marginal note 
 of the demurrer being as follows : — 
 
 " A matter of law intended to be argued is, that part payment or an ex- 
 " press promise as herein alleged, can give jio original right of action, if the 
 " obligation on which it is founded, [in this case the illegal promissory note 
 " and promise,] could never have been of itself enforced." 
 
 The plaintiff joined in demurrer. 
 
 Bond, for the plaintiff. The first question in this case, is, 
 whether the Statute 29 Car. II, c. 7 extends to the Straits or not, 
 if it does not, then there is no necessity to go into the other de- 
 murrer. By this Statute, men are to occupy themselves in 
 religious duties. I submit this Act is not applicable, it is impossi- 
 ble to carry out its provisions here. At the settlement of the 
 Colony, English Law was imported, but this was only the common 
 law, and such Statute law as are applicable. It is absurd to say 
 it does extend. 
 
 [Hackett, J. It has never been in force, the shops b ere, I be- 
 lieve, are always open.] 
 
 Tes. In fact, if it applied, it would create a .great field for 
 information. In Forsyth's Opinions on Constitutional Law, p. 2, 
 in talking of Nova Scotia, and as to what Statutes apply to a 
 Colony, it is laid down, that Statute Laws are imported into a 
 Colony according to circumstances, charter, or usage. Our 
 charter, says nothing as to this, and there is no usage or circum- 
 stance by which it might be said, that the Act is applicable. The 
 non-Christians carry on their business on Sunday, and there is no 
 Act of the Legislature to support the Lord's Day Act. In page 18 
 of the same work, it is said, the Common Law of England is ap- 
 plicable to the Colonies, but as regards Statutes is a question of 
 fact, and depends on circumstances. This Act is, by reasonable 
 construction, inapplicable. In The Mayor of Lyons v, The East 
 
316 CIVIL OASES. 
 
 Hackbtt, J. India Co., 2 Moore P. C. 0. 472, it was held that such law only 
 
 1872 - extended, as were applicable to the place. According to the 
 
 Coo^Tapah language of Lord Brougham in that case, the Lord's Day Act is 
 
 Chettt manifestly inapplicable to this Colony. In The Advocate-General 
 
 v - of Bengal v. Ramasormay JDorsee, 2 Moore P. C. C. 22, the law of 
 
 KA Look ° N f el ° de se was held to be not a PP licable to India. Sir Barnes 
 Peacock in that case, says the charter not necessarily determines 
 the law of the place. The religion of the different races, being at 
 variance with the English Law, the Court has allowed it to prevail. 
 The judgment of the Calcutta Supreme Court was upheld by the 
 Privy Council in this case. The inference, therefore, would be, 
 that such laws as are inconsistent with the custom of the popu- 
 lation here, are altogether inapplicable. In the case of Abraham 
 v. The Queen, decided in Calcutta in 1868, on appeal from the 
 Eangoon Court, and reported in 1 B. L. E. App. Cr. p. 17, it was 
 held, that the Lord's Day Act did not extend in Criminal Cases to 
 British Burmah. In Maxwell on Mag. [2nd Ed.] p. 187, it is 
 stated, that the religion of the non-Christians here, made way for 
 the law to be suspended in their favor, and it would be unjust to 
 apply Acts relating to Christians to non-Christians. This is a 
 very strong passage, and it would not be contrary to public policy 
 to hold, that the Statute is not applicable. In England, it is 
 hard to enforce this Act, and they are talking of repealing it. I 
 submit on the authorities, that the Lord's Day Act is not applicable 
 to the Straits ; its provisions cannot be enforced, and if it could 
 even, it would affect the largest portion of our community. 
 
 C. W. Bodyh, for the defendant. The plea is good. The only 
 question is whether the Lord's Day Act extends here. If it does, 
 the plea is good. It is submitted that the Act does extend. In 
 Abraham v. The Queen, 1 B. L. R., App. Cr., p. 17, which was decid- 
 ed on a case stated by the Rangoon Recorder, the Recorder takes 
 it for granted, that the Act extends to Civil suits, but not to Crimi- 
 nal ones. Sir Barnes Peacock, who delivered the judgment says, 
 that the Act is not applicable to criminal cases, but saj r s nothing 
 as to civil suits. The inference, therefore is, that the Act applies 
 to civil suits. . In Noordin's Will case [a], your Lordship in citing 
 Lord Kingdon's judgment says, that the natives partake of the 
 English Law, and also, that by the charter, all who settle here 
 become subject to that law, and the natives cannot be held exempt, 
 there being nothing in our charter exempting them, as is the case 
 with the Indian one. It is strange, that neither charters, or 
 Ordinances, make any provisions for the natives, it was therefore, 
 evidently intended that the lex loci was to extend to all; if this was 
 not intended, there would surely have been a speoial provision for 
 it. Theie is also a case of Mohindronauih Hitter v. Kysolauth 
 Bannerjee, 1 Coryton's Rep., p. 1, where it was held that holidays 
 and festivals affect contracts. Unfortunately, no one has these 
 reports, but there is a note of this case in Cowel and Woodman's 
 Indian Dig. p. 337. I submit this case must be entirely governed 
 by the law merchant, and not by the religion of the different peo- 
 
 0] Fatimah & on, v. Logan # ors., ante p, 255, 
 
STRAITS SETTLEMENTS. 817 
 
 pie. The passage from Maxwell, is inapplicable, that only refers Hackett, J. 
 to divorces, marriages, &c, but not to the law merchant. In Byles 1872 > 
 on Bills of Exchange, 224>, it is stated, the law merchant respects Coomarapah 
 the religion of the different people. All the cases cited by the Chettt 
 other side relate to, and affect the religion of the different races, _ v - 
 but not contracts. Lord Ellenborough, in Taylor v. Phillips, 3 l^ck/ 1 * 
 East, 155, says, that it would be against public policy not to carry 
 out the provisions of the Lord's Day Act. On the whole then, I 
 submit, the Statute applies. 
 
 Bond in reply. It is absurd to say this Act extends. 
 
 [Hackett, J. Is your contention that the Act does not apply 
 at all, or not to natives only.] 
 
 The demurrer only states that it does not apply to natives. 
 Steamers are constantly coming in and going out on Sundays. 
 
 [Hackett, J. That will not affect the question.] 
 
 I go further, the Act does not extend at all. 
 
 [Hackett, J. In London, the greatest city in the world, work 
 is stopped till Monday morning.] 
 
 Yes, but it is a great hardship on them, and the agitation now 
 is to have this Statute repealed altogether. It is impossible to 
 enforce the Act against Roman Catholics. I submit on the whole 
 the condition of the Colony, will not allow this Act to extend, 
 except with great hardship. 
 
 [Hackett, J. How do the natives manage on Sundays and 
 holidays, there is no Court ?] 
 
 , There are express rules as to the Courts. Sir Benson Maxwell 
 in his work on^ Magistrates says, it is absurd for Chinese, &c, to 
 repair the parish Church. I admit the law in Nbordin's case is 
 sound law, but submit it is not applicable to this case. 
 
 [Hackett, J. The question here is, first, whether the Act ex- 
 tends generally, and second, if so, then does it extend to the 
 natives.] 
 
 In a case in Merivale's Eeports, the Mortmain Act was held 
 not applicable to the Colonies, [a] 
 
 [Hackett, J. If a Colony is composed solely of Europeans, 
 surely it is applicable.] 
 
 This Act is not applicable to Mauritius. 
 
 [Hackett, J. Why not?] 
 
 Because they are mostly Roman Catholics, who do not observe 
 the Lord's Day throughout, they go and enjoy themselves on that 
 day. 
 
 [Hackett, J. I believe that is the practice, but it is not sanc- 
 tioned by the Church. There is a great difference between work- 
 ing and enjoying yourself. What are the words of the Act — Is the 
 Bank within the Act ?] 
 
 I submit not. 
 
 [Hackett, J. A farmer is not within the Act. Reg. v. Silvester, 
 33 L. J. M. C. 79.] 
 
 If the Act was held to apply, then people cannot cross over 
 to the Province, or from the Province here, except they get a cer- 
 
 [a] Attorney-General v. Stewart, 2 Meriv. 163. 
 
318 CIYIL CASES. 
 
 Hackett, J. tificate from a Justice of the Peace. I submit the Act is altogether 
 ^ 2 - inapplicable. 
 
 OoOMARAFAH „ . , ,-, 7 , 
 
 Chbtty w. Adv. Vult. 
 
 V. 
 
 Kano Oon Bond. The second question turns on a demurrer to the 2nd 
 
 replication to the 8th plea. I submit that a subsequent promise 
 to pay is binding, although the original agreement be void. 
 Williams v. Paul, 6 Bing. 653. Here assuming the Act applies, 
 and the note was made on a Sunday, I submit, the subsequent 
 promise made it, binding. 
 
 [Hackett, J. That was on a quantum meruit. You do not say 
 that the defendant kept the money.] 
 
 No, but we state he paid part. Defendant does not deny the 
 note, but pleads exoneration and discharge. It may be taken 
 for granted that money was paid. 
 
 [Hackett, J. There is no allegation in the declaration that 
 money was paid, nor are the money counts inserted.] 
 
 The declaration is in the usual form in actions under Act V. 
 of 1866. 
 
 [Hackett, J. It would make a great difference if the money 
 counts were inserted ; it would have been a quantum meruit. In 
 the case cited, the animals were retained.] 
 
 I would ask to be allowed to amend the declaration by insert- 
 ing the money counts. 
 
 _ Bodyk. In actions under Act V. of 1866, there is no decla- 
 ration until defendant appears, and the money counts ought, then, 
 to have been inserted in the declaration. 
 
 Bond. By the rules of Court, I might amend. 
 
 [Hackett, J. You ought to have inserted the money counts 
 when you filed your declaration.] 
 
 Bodyk. I consent to the amendment asked for, on beino- 
 allowed to put in a special plea, thereto. 
 
 Plaintiff allowed to amend as asked for. 
 
 July 3rd, the petition having been amended, and the facts of 
 the case heard, 
 
 Bond, for the plaintiff. 
 
 t, , T ~U epli ° at j ?' X submi t> is good. The case of Williams v. 
 Paul, 6 Bing 6o3, is exactly in point. Some doubt was thrown on 
 
 ?w Tift" A P ? rke , in - the CaSe 0f Baron Simpson v. Nicholls, 
 3 M. & W. 244, but I submit that will not affect its weight in 
 this case. The evidence brought forward failed to shew that 
 this promissory note was made in the ordinary calling of the 
 defendant The defendant is a rice shop-keeper, and his ordinary 
 calling is to sell and buy rice, and to enter into contracts for that 
 purpose. 
 
 ^v™iTo."/i8r di,y Us been heid -* *»» ™ d - 
 
 [HwfaM, J. In that case, the bill was dated on a Sunday.] 
 
STRAITS SETTLEMENTS. 319 
 
 I submit the plaintiff is not within the statute, he is not Hackett, J. 
 
 a tradesman, but a money-lender. He is a trader, not tradesman. ; 
 
 Hackett, J. Is a merchant a tradesman ?] Coomrapah 
 
 '. .t is difficult to say what is a tradesman. Chettt 
 
 Hackett, J. A tradesman, is a carpenter, shoemaker, tailor, or kanoOow 
 some such person. It seems the Act only applies to the inferior Lock. 
 grade.] 
 
 Yes, it does not seem to have struck the people of the time of 
 Charles the Second, that the Act did not apply to the higher grade 
 of life. An Attorney is not within the Statute, and I doubt 
 whether a merchant is. The Statute does not apply to a stage 
 coach-driver. Sandiman v. Breach, 7 B. & C. 96. The Statute 
 does not apply unless the contract was entered into in the 
 course of a person's ordinary calling. Hiring a boy for the year by 
 the farmer is not within the Statute, Bex v. Whitnash, 7 B. & C. 596. 
 The defendant did not enter into this contract in his ordinary 
 calling, he like other persons had to borrow money if he wanted it. 
 
 [Hackett, J. I don't see how borrowing money is the ordinary 
 calling of a man.J 
 
 Giving a, guarantee is not in the ordinary calling of a man. 
 Norton v. Powell, 4 M. & G. 42. Sending a mare to a farmer to be 
 covered by a stallion, which was accordingly done on a Sunday, is 
 not within the Statute, it not being done by the farmer in the 
 exercise of his ordinary calling. Scarfe v. Morgan, 4 M. & W. 
 270. On these authorities, I submit, that the borrowing of money 
 on a Sunday, is not within the Statute. 
 
 [Hackett, J. The note would have been made in the ordinary 
 calling of a man if, for goods sold on a Sunday.] 
 
 Here the defendant is simply borrowing money, for what 
 purpose, is unknown to the plaintiff. If the note was made on a 
 Sunday, that would not be enough to bring it within the Statute, 
 it must be made in the ordinary calling of the man. Further if 
 made on a Sunday, and in the ordinary calling of the defendant, 
 yet the subsequent promise to pay revived it. 
 
 Bodyk, for the defendant. It has been admitted by the other 
 side, that the ordinary calling of the plaintiff, is to lend money. 
 
 [Hackett, J. You do not state in the plea what the plaintiff's 
 ordinary calling is.] 
 
 No. The principal case quoted, and relied on by the other 
 side is, William v. Paul. This case, if not altogether overruled, 
 has been greatly doubted and shakened in the case of Simpson v. 
 Nicholls. The latter part of the latter case has been wrongly re- 
 ported, and in a note to this case in 5 M. & W. 702, ifc is stated, 
 that it is doubted whether the case of Williams v. Paul can be now 
 considered good law. There is a direct contradiction of the cases 
 cited by the other side, and as Simpson v. Nicholls is a subsequent 
 case, I submit, it must be followed. The second count cannot assist 
 the replication, as it is to the third plea to the first count, [a] 
 
 [a] " Tou cannot transfer to one part of the Record, what ia stated in another." 
 Booth v. Howard, 5 Dowl. P. C. 438 ; Dempster v. Parnell, 3 M. & G. 375 ; McDougal v. 
 Robertson, 4 Bing 441 ; Loclwood v. Nash, 18 C. B. ; 536 ; Hyde v. WatU, 13 L. J. Ex. 
 41. 
 
820 CIVIL OASES. 
 
 Hackett, J. [Hackett, J. T will not trouble you any further on the point, 
 1872 - there is no evidence of a subsequent promise to pay.] 
 
 Coomabapah Hackett, J. This is an action on a promissory note, and the 
 Chetty defendant has pleaded several pleas. The 1st is an express exonera- 
 Kan& Oon ti° n an( i discharge. This plea was not proved. The 2nd is an ex- 
 Lock. oneration and discharge before breach, this plea was also not proved. 
 The third plea is as follows, [reads it.] To this plea, the plaintiff 
 has demurred. It is not contended on the plaintiff's part, that the 
 Act does not apply at all, but only not to Mahomedans, Hindoos, 
 and Chinese. I confess, I find it difficult to hold, if the Act ex- 
 tends, these persons exempt. It is extremely inconvenient to hold 
 a general Act of this kind not applicable to some, as questions 
 might arise between Christians and non-Christians. In India, it 
 has been held in a case cited by Mr. Rodyk, that the non-penal 
 portion of the Act is in force ; at least that is the inference from it. 
 The case stated by the Rangoon Recorder, states, " Assuming that 
 " the Lord's Day Act was in 1863, a part of the law administered 
 "in the High Court at Fort William in its ordinary Civil Jurisdic- 
 " tion, I do not think that it applies therefore in a Criminal Appeal 
 " in the Recorder's Court in Burmah." This case assumed that 
 the non-penal part of the Act was law in India, and nothing was 
 said about this, by the Calcutta Court. No doubt, as far as Chris- 
 tians are concerned, it is very proper that the Act should be in 
 force. Even before the Lord's Day Act, the common law made 
 some things void, and the Act was only for " the better observing 
 " of the Lord's day." For instance, if I sat on Suudays, it would 
 be void. On the ground of public policy, the Act ought to be held 
 in force in all British Colonies, it is only difficult to enforce it 
 against the natives. It would be hard to hold the penal provisions 
 in force, but here, we are considering its effects on contracts 
 simply. The general rule on the question of how far English law 
 applies to the different classes within British territory, was laid 
 down by Lord Kingsdon to be binding on them as far as applicable. 
 In accordance with this, I held in a recent case [a], that the Eng- 
 lish law was imported into Penang at the time it was colonized, 
 and such law was applicable to natives, and I see no reason why 
 tha proper observance of the Lord's Day, should not apply to a 
 Colony under the British Crown. I think, it is the duty of every 
 Christian Government to provide, as far as outward appearance 
 goes, the proper observance of Sunday. I hold this simply with 
 respect to contracts. I don't say the penal provisions apply any 
 more than they do to India. 
 
 There is no doubt, it will be extremely difficult to say, how 
 the Act can be enforced here. I dare say, if the penal portion 
 extended, there would be a general disturbance here, as I believe, 
 all natives work, and open their shops on Sundays. As regards 
 the evidence, the defendant has not made out the note to^have 
 been signed on a Sunday. The note is dated the 9th March, and 
 pnmdfaae the date of the note is the day on which it was made. 
 If this is disputed, the clearest evidence is necessary. The de- 
 
 [«] Fatimah % ors. v. Logan $ ora., ante p. 255. 
 
STRAITS SETTLEMENTS. 
 
 821 
 
 V. 
 
 Kanb Oon 
 Lock. 
 
 fendaut's evidence is altogether unsatisfactory, and there is a Hackett, J. 
 great conflict of evidence. The defence deny the plaintiff is 1872 - 
 Coomarapah Chetty, it is impossible to reconcile the evidence, Coomabapah 
 but the plaintiff is more borne out, and the evidence clearly shews Chetty 
 he is Coomarapah Chetty. The defendant says, the plaintiff 
 offered the money, went away, and returned with it and a pro- 
 missory note, he remonstrated as the proper date was not inserted, 
 that the plaintiff said, it would be void, if dated on a Sunday, 
 and he accordingly signed it. This is an improbable story. 
 Although the Chetties might know something of the law, yet it 
 is impossible for them to be so well versed in the law as to know 
 this. Th last witness for the plaintiff- entirely contradicts the 
 defendant's story. It is not necessary to consider whether the 
 note was made in the ordinary calling of the defendant, but I 
 may say, that the evidence does not shew that it was made in his 
 ordinary calling. The case in Barnewall and Creswell's Report, 
 cited by Mr. Bond, shews that to be the ordinary calling, it must 
 be done frequently, usually, or daily. It is not necessary or 
 absolutely essential to borrow money for purpose of trade. If 
 the note was given for goods sold according to the "ordinary 
 " calling" of the person, then it would be otherwise. It is impos- 
 sible to say, tliis note was made in the " ordinary calling" of the 
 defendant. As regards the replication demurred to, I am disposed 
 to think that tlie promise is void, and the replication bad. It 
 would be monstrous to hold the greater portion of the Act 
 applicable, and it is difficult to draw the line. 
 
 Judgm ent for plaintiff, [a] 
 
 MAH KEOW [bv her next friend Che Em. J 
 v. 
 CHEAH HIT alias LOW TWAY & ORS. 
 
 If a parson is aware he is under 21 years of age, but is ignorant at what age infancy Penano. 
 
 by law ceases, and in such ignorance enters into a contract with another without dis- 
 
 closing the fact of his being under 21, this is not such a fraud on his part, as will estop Hackett, J. 
 
 him from applying to a Court of Equity to set aside such contract. 1872. 
 
 The defence of being a purchaser for value, without notice, is not available unless 
 
 specifically set up by the plea or answer. July 1. 
 
 This was a suit in Equity by Mah Keow, an infant, seeking 
 to have a certain deed of mortgage, signed by her, and mortgaging 
 her land to the defendant, set aside. The grounds on which this 
 was sought were, that fraud and duress had been practised and 
 brought to bear on the plaintiff, by the second and third defend- 
 ants ; and, at the time she executed the deed, she was an infant, 
 under 21 years of age. The defendants, in their answer, denied 
 fraud and duress, as well as the plaintiff being at the time an infant 
 
 [a] See further as to the replication, Wms. Per. Pro., p.p. 71, 72; Bos. & 
 Pul. 252; Lloyd v. Lee, 1 Str. 94; Cockshot v. Bennet t, 2 T. B. 763; and contra, 
 Flight v. Bead, 32 L. J, Ex. 265 ; Earle v. Oliver, 2 Ex. 89, per Parke B. See, 
 however, the judgment of Martin B„ in Flight v. Bead, who dissented from the 
 rest of the Court. 
 
322 CITIL OASIS. 
 
 Haokeot. J. It appeared that the second and third defendants were husband 
 1 _ and wife, and the second defendant was also the elder sister of the 
 
 MahKbow plaintiff; that the second and third defendants were in want of 
 «• money, and requested the plaintiff to execute, with them, a deed 
 
 ° HE < A ,fa S HlT of mortgage to the first defendant for $300, mortgaging her one 
 
 Low Twat half share of the land which she owned jointly with the second 
 & obs. defendant, and which she also then mortgaged. By the deed convey- 
 ing the land to the plaintiff and her sister, the second defendant, 
 each of them had a life interest, with a contingent interest in the 
 share of the otlier of them, on her decease. The plaintiff main- 
 tained that the whole of the money received on the mortgage was 
 taken by the second and third defendants. They, on the other 
 hand alleged that a part of the amount borrowed namely, $98.50, 
 was received by the plaintiff. The evidence of the plaintiff's being 
 under 21, was clear ; that of fraud and duress on the part of the second 
 and third defendants was very weak : there was no evidence what- 
 ever that the first defendant knew of the fraud or duress, or of 
 the plaintiff being, at the time, an infant. 
 
 Bond, for the defendant, contended that the plaintiff had alto- 
 gether failed to make out her case, and that even if what she had 
 tried to prove was true, yet it could not affect the first defendant, 
 who was the chief defendant in the suit, and whose interest was 
 alone affected, as there was no evidence of his participating in the 
 fraud, or duress, or knew that the plaintiff was an infant at the 
 time ; and further, that, even if the first defendant had notice of 
 the plaintiff's infancy, yet the Court would not assist her, for, 
 according to the defendants evidence, which was more to be reli- 
 ed on than the plaintiff's, she had derived a benefit by the 
 moi'tgage. 
 
 C. W. Rodyk, for the plaintiff, contended that her case was 
 clearly proved, and that the first defendants not having notice of 
 the duress could not assist hiin ; and as to the alleged benefit re- 
 ceived by the plaintiff, he submitted on general principles, that 
 even if she derived a benefit, which he submitted she did not, still 
 it not being for necessaries, could not bind the infant, and even in 
 a Court of Equity an infant could avoid his or her contract although 
 he or she derived a benefit by i h , and cited 8m. Man. ofEq. 68. 
 [10 Ed.] 
 
 [Hackett, J. The plaintiff knew she was an infant and yet 
 contracted the debt, did she not thereby commit a fraud on the 
 defendant Low Tway ?] 
 
 C. W. Rodyk submitted that though the plaintiff knew she 
 was not 21, yet she did not know at what age, a person was no 
 longer considered an infant by the English law, and therefore, she 
 had not, committed a fraud- on the defendant named. 
 
 Cur. Adv. Vult. 
 
 September 19. Hackett, J. In this case plaintiff made a mort- 
 gage of her property, in which she had a life interest, and she has 
 now come into Court and asks to have this mortgage deed set aside 
 She alleges, that about four months before the suit was commenced, 
 
STRAITS SETTLEMENTS. 
 
 823 
 
 Cheah Hit 
 
 alias 
 Low Tway 
 
 & ORS. 
 
 the defendant Poh Oh being in embarrassed circumstances, to- Hacebtt, J, 
 gether with bis wife, the defendant Nem Boey, asked her to 1872- 
 -execute, together with them, a certain paper-writing mortgaging Mah Kbow 
 her lands ; but she refused to comply with this request, and there- 
 upon the defendant Poh Oh beat and assaulted her, and then, with 
 force compelled the plaintiff to leave her residence, and then 
 brought her to town to the house of one Mungoh, where the 
 defendant Cheah Hit was at the time, and there all three of the 
 defendants compelled her to sign and seal together with the 
 defendants Poh Oh and Nem Boey, the aforesaid deed of mortgage, 
 which she did through fear, and against her will and consent. But 
 the evidence does not bear this out. The plaintiff entirely failed 
 to mate out the duress. Mr. Aeria, and the other of the witnesses, 
 all say the plaintiff signed the deed willingly, and did not appear 
 to have been forced to do so. On the whole, I think, she has failed 
 to establish'her case for relief on this ground, but the plaintiff 
 also says she is an infant, and the deed on that account is voidable 
 or void, and must be set aside. The law is clear, that an infant 
 is incompetent to enter into any contract, and may at any time 
 apply to set it aside. The defendant Cheah Hit does not set up 
 that he was defrauded, and has not pleaded that he was a pur- 
 chaser for valuable consideration, without notice ; and according 
 to strict law, a person is not entitled to that privilege, unless he 
 pleads it. [a] But in this case, no actual fraud on the plaintiff's 
 part was proved, to entitle the defendant Cheah Hit to retain the 
 mortgage. It has been held, that if an infant, knowing' that he 
 is one, enters into a contract, but conceals the fact that he 
 is an infant, and stands by, he will not afterwards be allowed to 
 set up such infancy, to set aside the contract [6] ; but where he is 
 ignorant of the fact at the time, and remains quiet, by which the 
 person with whom he contracted is nevertheless deceived, still, be 
 can apply to set aside the contract. In this case, I think, there 
 was no fraudulent intent. The plaintiff, no doubt, knew at the 
 time, she was under the age of 21 years, but did not know at 
 what age a person attained his or her majority ; and probably did 
 not know it would have made her deed bad, or what the effect of 
 it on the deed would be. 
 
 I dare say, the greater part of the natives here are not aware 
 of the effect of infancy on a contract ; and I, therefore, think, she 
 is not disentitled to set aside the mortgage as far as she is 
 concerned. It is a hard case on the defendant Cheah Hit, but as 
 the defendant Poh Oh and Nem Boey have a contingent interest 
 in the land mortgaged, he is entitled to retain that as a continu- 
 ing security. The deed, therefore, as far as plaintiff is concerned 
 must be cancelled. 
 
 [a] See Phillip v. Day, 31. L. J. Ch. [N. S.] 321. 
 
 [6] See Nelson v. Stocker, 28 L. J. Ch. [N. S.] 760., 8. 0. 4 De Gex v. Jones, 468. 
 
CIVIL OASES. 
 
 Penang. 
 
 Hackett, J, 
 1872. 
 
 July 2. 
 
 SHAIK LEBBY v. FATEEMAH. 
 
 The boundaries and abuttals of a piece of land mentioned in a deed, are the only 
 things by which a person must be guided in ascertaining the land: and parol evidence, 
 to shew that the boundaries are wrong, and to contradict the deed is inadmissible ; even 
 if in and by the deed itself, the area of the land agrees with the story of the person 
 who wants the evidence admitted. 
 
 ' Land set aside by a deed as Wakoff, for the burial ground of the donor, and hi 8 
 family and relations, is not a charity, as it is not for the benefit of the public, and is . 
 therefore void. The Indian Cases to. the contrary are no authorities here. 
 
 This was an action in ejectment. The defendant relied on 
 a deed of prior date to the conveyance relied on by the plaintiff, 
 by which the lands were set aside as Wakoff, for the burial ground 
 of the donor, and her family and relations. The defendant was 
 the daughter of the donor. 
 
 C. W. Bodyl, for the defendant. The land was dedicated as 
 a burial ground. The plaintiff had not only constructive, but 
 actual notice of this. Such lauds cannot be sold. The deed 
 I submit, created a charity, and such a charity as is recognised 
 by the English Law, Broom's Legal Maxims, p. 18-21. Parry v. 
 Jones, 1. C. B. [N. S.] 345. Plaintiff having notice of the charity, 
 takes subject to it. 8m. Man. of Eq. 100. It might be said that 
 the deed appoints no trustees, but this being a charity, a Court of 
 Equity will assist it: 8m. Man. of Eq. 168; but I submit the 
 deed sufficiently appoints a trustee. Wakoff land cannot be sold, 
 and it is not necessary to use the word Wakoff in creating 
 such a charity. Jewun Doss 8ahoo v. Shah Kubur-ood-deen, 2, 
 Moore'Ind. App. 390. The cases mentioned in 1, Morley'slnd. 
 Dig. 554, and 3 Morley's Ind. Dig. 353, clearly shew this is a 
 charity, and the Court will, accordingly, support it. As to the 
 boundaries, if the Court holds, that parol evidence is inadmissible 
 to contradict them, then I submit the area of the land mentioned 
 in the deed is to guide us. 
 
 Boss, for the plaintiff. The boundaries alone are to guide list 
 If they are wrong, defendant can resort to a Court of Equity, bu. 
 then even, I submit, she would get no relief. Sugden Vendors and 
 Purchaser's [14th erf.] 171; Harvey v. Wood, 2 Vesey, 195. First, 
 admitting the deed is good, I submit this is no charity. To be a 
 charity, it must be something by which the public derive a bene- 
 fit. Boyle on Charitable Uses, 49. Here the burial ground is not 
 . for the public, but for the donor and his family. The authorities 
 are very conflicting on this point. A sum of money given in 
 trust to keep up tombs of donor and family was held in Thompson 
 v. Pritchard, 3 M. & S. 410, in the King's Bench, to be a charity ; 
 but in a subsequent trial of the same case in the Common Pleas, 
 reported in 6 Taunt, 370, the contrary was held by C. J. Gibbs. 
 He there says he holds it in accordance with the opinion of the 
 King's Bench, although he was mistaken in this, yet we have his 
 opinion on the point, and as this is a subsequent case, I submit it 
 must be followed instead of the other, [a] Secondly. The deed 
 is bad. No trustee is appointed. The passage from Smith is 
 very general, but it must be taken only when there actually 
 [a] See Choa Choon Neoh v. Spottiswoode, ante p, 21G. 
 
 is 
 
STRAINS SETTLEMENTS. 
 
 325 
 
 an appointment or an intention to appoint a trustee. This is 
 clearly laid down in Boyle, 237. In this case there is no appoint- 
 ment or intention to appoint a trustee. 
 
 , [Hackett, J. Does not the deed appoint trustees ? I think it 
 ejearly shews who are trustees.] 
 
 The children there named are the cestui que trust and -not the 
 trustees ; they alone are beneficially interested. This is not a 
 charity, to be a charity, it must be a public burial place. I submit 
 on the whole that the deed is bad, and that this is no charity. 
 
 Hackett, J. I think the plaintiff has made out his case. The 
 description and abuttals must solely guide us, and clearly shew the 
 land belongs to the plaintiff. It was said by the other side that 
 this was a mistake. But if so, they must resort to a Court of 
 Equity and not one of law. The defendant cannot adduce parol 
 evidence to contradict the deed, [a] -It was also said that the 
 defendant claims through a deed of prior date to the one through 
 which the plaintiff claims. That is the case, but I think the 
 deed does not create a charitable trust. A great many cases 
 decided in India were cited by Mr. Rodyk, but these cases are no 
 authority here ; as they were decided on the Mahomedan law 
 which is not in force here. I must decide this case by the 
 English law which I had occasion in iNoovdin's Will case [b] to look 
 up, and by that law, though it is difficult to reconcile the cases, 
 yet the subsequent cases shew, that to be a charity, it must be for 
 the benefit of the public. Money given in trust to keep up tombs 
 of donor and family, has been held to be no charity, [c] On these 
 grounds, I think, the plaintiff must have judgment, though I am 
 sorry for it. At the same time, I must say that, I think, he 
 had notice that thin was in Mahomedan point of view, sacred 
 ground, and if he were a good Mahomedan he would give it up, 
 but he is not now acting as a conscientious man. 
 
 Judgment for Plaintiff [d] . 
 
 Hackett, J 
 1872. 
 
 Shaik Lebey 
 
 v. 
 Pateemah. 
 
 NAIRNE V..TUNKU MUD A HUSSAIN, 
 
 In re TUNKU OOSMAN v. NAIKNE. 
 
 The Court will not order the defendant [Executive-Creditor] in an Interpleader Penang. 
 suit, although a bankrupt, to giy.e security for costs. 
 
 Query. — Will the Court order ,a plaintiff, who is resident within the jurisdiction Hackett, . 
 of the Court, and is a bankrupt, to give security for costs, whether he sues on behalf of 1872. 
 
 the trustees or otherwise ; and if he sues on behalf of the trustees, will they he ordered 
 
 to give security for costs. July 11. 
 
 Bond, on behalf of Tunku Oosman, the adverse claimant in an 
 interpleader suit, having obtained a rule nisi on the defendant 
 
 [a] But see Skipwith v. Green, 1. Stra. 610. Jack v. Mclntyre, 12 CI. & Pin. 
 151. Manning v. Fitzgerald, 29 L. J. Ex. 21, & Boscoe's N. P. Ev. 22 [12th ed.J 
 
 [6] Fatimah &, Ors. v. Lofan St, Ors. ante p. 255. 
 
 [e] This very point was decided in Ong Cheng Neo v. leap Cheah Neo Sr Ors-,\/ 
 post p. 326- . 
 
 [d] See further Seraton v. Brown, 4 B- & C. 4S5, 1, Stephen's Commentaries, 
 441 ; Dodd v. Burchall, 31. L. J. [iV. S.] Ex. 364 ; Garrard v. Tuck, 18 L. J. C. P. 
 IN. S-] 338, as to the boundaries and area, and evidence to contradict the deed with 
 espoct to them. 
 
326 
 
 CIVIL CASES. 
 
 OOSMAK 
 V. 
 
 Naibne. 
 
 , [Nairne] in such suit, who was the execution creditor of a third 
 party [Tunku Muda Hussain] , 
 
 Boss on behalf of such defendant shewed cause. We are not 
 bound to' give security for costs, although we might be in insolvent 
 circumstances. This has been decided by a large number of cases 
 ; Macornal v. Johnson, 1 East, 431 ; Well v. Ward, 7 I . R. 756 ; 1 
 Tidd's Prac. 446, 537, citing Sutton v. Sutton ; The United 
 Ports and General Insurance Company v. Hill, 5 L. R. Q. B 395; 
 Benson v. Ashton, 4 L. R. Q. B. 490 ; Sykes v. Sykes, 4 L. R. . P. 645. 
 [Hackett, J. This last named case is against you, and is pre- 
 cisely the same as the present one.] 
 
 'Yes but the subsequent case decided by L. J. Ooekburn, 
 Benson v. yl*7i/on is different. The plaintiff here is suing to pay 
 Lis creditors, and is not, nor are the trustees, I submit on the 
 authorities cited, liable to give security for costs. 
 
 Bond, in support of the rule. The only case that is cited 
 against us is Macornal v. Johnson, and that case turned on a parti- 
 cular Statute. The plaintiff is suing for his creditors and trustees, 
 and the other authorities cited will not assist him. He is bound 
 to give security for costs. 
 
 Hackett, J. You are not for the defendant, but for Tunku 
 Oosman, the plaintiff, in the interpleader suit. If you were for the 
 defendant, you might have some locus standi, but you are not now 
 in a position to ask for security for costs. The rule will be 
 discharged. 
 
 Rule discharged, [a] 
 
 Pbnang. 
 
 Hackett, J. 
 1872. 
 
 July 24. 
 
 ONG CHENG NEO v. YEAP CHEAH NEO & ORS. 
 
 A testatrix made over to her executors " as such," all her estate " hut in trust 
 " always for the purposes hereinafter mentioned." She then disposed of various portions 
 of the estate, and directed her executors to collect the remainder, and to apply and dis- 
 tribute the same, all circumstances considered, in such manner as to them appeared, just. 
 * Held, there was no gift to the executors individually, but only upon trust ; and 
 inasmuch as the objects were not declared, the trust was void, and the property com^ 
 prised therein went to the next of kin. 
 
 The testatrix also directed that the upper story of a certain house should he neither 
 mortgaged nor sold, but kept as " a family residence." No time was mentioned during 
 which the house was so to be kept, nor was the word " family," defined. 
 
 Held, the gift was void for uncertainty, and as tending to a perpetuity. 
 
 The testatrix also left four houses upon trust, to rent the same to two of her exe- 
 cutors, for the period of 40 years, at $100 per mensem, and to renew the lease from time 
 to time, 
 
 Held, the trust was a good one. 
 
 She also directed a sum of $50 ,000 should be lent to the said two executors for the 
 term of 40 years, at 5 per cent- per annum, and to renew the loan from time to time : the 
 interest she declared, should form part of her residuary estate. 
 
 Held-, the trust was a good one. 
 
 She also directed that certain property should he hold on trust, to allow one Lim Ah 
 Yong to reside thereon, free of rent for 40 years, and that after that period, the property 
 was to become his, or his heirs. 
 
 [a] See, however, Doyle v. Anderson, 2 Dowl , 506 ; Andrews v. Morris, 7 Dowl. 
 712, per ColeridgeJ. ; Elliot v. Kendriek, 12 Ad. & E. 507 ; Anonymous, 1 Dowl. 
 300 ; Mason v. Pa Ihill, 2 Dowl. Gl ; Perkins v. Adcoclc, 14 M, & W. 808 ■ Qdatleii v. 
 Ounnart, 24 L, J. [N, S.] C. P. 38. 
 
STRAINS SETTLEMENTS. 327 
 
 Held, that the said Lim Ah Yong had simply a license to live in the premises, and Hackett, J. 
 the gift over was bad, as violating the law against perpetuities. 1872. 
 
 She directed certain plantations to be reserved as a family burial ground, and that 
 
 the same was not to be mortgaged or sold. Ong Cheng 
 
 Held, the gift was void as tending to a perpetuity. Neo 
 
 She also directed that a certain house was to be built on a portion of these planta- v. 
 
 tions, to bo called the " Sow Chong," and in which religious ceremonies to the dead Teap Cheah 
 were to be celebrated. Neo & oks. 
 
 Held, the trust was void as being a perpetuity, and not a charity. 
 
 Evidence of reputation of two persons being husband and wife, even among Chinese, 
 is admissible on a question of marriage or no marriage, and is evidence of such marriage. 
 
 The above decisions, on appeal, affirmed by the Privy Council. 
 
 This was a suit for the proper construction of the Will of 
 Oh Yeo Neo, deceased. The facts sufficiently appear in the 
 judgment. 
 
 T. Braddell, [Attorney-General] for plaintiff. 
 
 B. Rodyk, [D. Logan, Solicitor-General with him] for defend- 
 ants. 
 
 Hackett, J. This is a suit in Equity brought by Ong Cheng f 
 Neo, representing herself to be the sister and one of the next of 
 kin of Oh Yeo Neo, a Chinese woman, who died in Penang, in 
 July 1870, having previously made her Will, by which the defend- 
 ants Yeap Cheah Neo, Khoo Kay Chan, Khoo Siew Jeng Neo, and 
 Lim Cheng Keatwere appointed her executors. 
 
 The testatrix, by her Will, devised and bequeathed, or in the 
 language of the Will, "made over" to her executors all such 
 property and effects as should belong to her at the time of her 
 death, but in trust always, for the purposes thereinafter, to be 
 mentioned. The plaintiff maintains that several of the trusts de- 
 clared by the Will, are bad in law and void, and, therefore, that 
 the subject matters of these trusts are undisposed of by the Will, 
 and formed the undisposed residue of the testatrix's estate, and 
 as such, ought to be distributed among the next of kin of the said 
 Oh Yeo Neo, according to the Statute for the distribution of 
 Intestate's estates, and the object of the suit is to obtain a 
 declaration of the Court to that effect. 
 
 The executors have put in their answer in which_ they- main- 
 tain the validity of the trusts of the, WHir, and deny that the 
 .plaintiff is one of the next of kin of the testatrix. Lim Ah Yong 
 and Wee Sah Neo, two legatees under the Will, have demurred 
 generally to the petition for want of Equity. 
 
 The first question in the suit is raised by the third paragraph 
 of the answer which is as follows : — "We deny it to be true that 
 " the said Oh Yeo Neo left her surviving as her sole next of kin, 
 " according to the Statutes for the distribution of the estates of 
 " intestates, the plaintiff Ong Cheng Neo, her sister, and a niece 
 " named Lim Choon Gek, and on the contrary, thereof, we say that 
 " the plaintiff Ong Cheng Neo was not the sister, nor was the 
 " defendant, Lim Choon Gek, the niece of the said Oh Yeo Neo 
 " deceased, and further that they were not, nor was either of them 
 " such next of kin at the time of the death of the said Oh Yeo 
 
328 
 
 CIVIL CASES. 
 
 Hackett, J. 
 
 ■ 1872. 
 
 Ong Cheng 
 
 Neo 
 
 v. 
 
 YEAP CHEAk 
 
 Neo & Obb! 
 
 / 
 
 " Neo, deceased, and we claim the same benefit of this objection 
 " by way of defence, as if we had pleaded the said matters to the* 
 " said petition." 
 
 It is admitted that the plaintiff and the testatrix were 
 children of the same mother, Cheah Tuan Neo, and the question 
 at issue is whether Cheah Tuan Neo was married to Ong Sye, the 
 father of the plaintiff, or whether she was only his concubine. 
 
 The evidence in support of the marriage is of two kinds — 
 first, the evidence of persons who state they were present at the 
 marriage ceremony ; and secondly, evidence of reputation. Upon 
 the first point several aged Chinese were called, who stated that 
 they were present at the marriage of Cheah Tuan Neo to Ong Sye, 
 about sixty years ago, and that they were always regarded as 
 husband and wife, and as such were received in society. Many 
 other witnesses were called by the plaintiff to prove reputation 
 and, indeed, all the witnesses as well as those for the defendant, as 
 for the plaintiff [with the exception of Khoo Seng Hap whose 
 evidence was unsupported] concurred in saying that Cheah Tuan 
 Ne8 was always treated with the respect due to a married woman, 
 and was regarded as such, xlt also appeared in evidence that after 
 the death of Cheah Tuan Neo, the plaintiff applied for Letters of 
 Administration to her estate, and that, upon the hearing of the 
 petition, the testatrix as the eldest daughter of the deceased, 
 appeared, and herself applied for Letters, but that she subsequently 
 waived her claim in favour of the plaintiff, thus implicitly ac- 
 knowledging her legitimacy. The plaintiff also proved that the 
 testatrix had procured a tombstone from China for her mother's 
 grave, on which were inscribed the words — " Cheah Tuan Neo, 
 " her tombstone, son : Oh Kok Tean ; daughters : On Yeo Neo, 
 " Ong Lim Neo, and Ong Cheng Neo," but there was no mention 
 made of any husband. It is stated that it is unusual to put the 
 husband's "seh" or tribe on the wife's tombstone, and the 
 omission of it in the present case is accounted for as follows : — 
 
 Koh Teng Choon, the Chinese Interpreter of the Supreme 
 Court states that when a woman has one husband, the name of 
 that husband is inscribed, but if she has had two husbands, the 
 name of the last husband is placed, if there is an agreement be- 
 r e6n4he_j>arties interested, but that if they do not agree, then 
 the name ofnetther husband is placed. On the whole, I think, that 
 if any inference is to be drawn from the inscription on the tomb- 
 stone it is favourable to the legitimacy of the plaintiff, as all the 
 daughters are described m the same way, and no difference what- 
 ever is made between them. 
 
 _ _ The defendants contended that the evidence of the marriage 
 is insufficient and they rely on the following circumstances : first, 
 that it is not stated by the witnesses of the marriage that any male 
 re ative gave the woman away ; secondly, that Chea Tuan Neo was 
 taken when dying from the house of the plaintiff Lo that of Oh Yeo 
 
 « Oh ; " a nt tS >?L fi a Vf ^ fU !n eral °? Cheal1 Tuan Neo > *«> ^ 
 Oh [that of the first husband] was inscribed on the lanterns. 
 
 Now, in deciding the question of marriage or no marriaee in 
 
 a case where there is evidence that the partifs have pa3 as* man 
 
 1 
 
STRAITS SETTLEMENTS 329 
 
 and wife for many years, it must be remembered that it does not Hackett, J. 
 merely depend on the greater or lesser weight of the evidence on 1872 - 
 one side, or on the other, or in the balance of evidence as to ong Cheng 
 particular facts. In the case of marriage, there is always a pre- Neo 
 sumption in its favour. Semper presumtor pro matrimowio. As v. 
 
 Lord Lyndhurst observed in Morris v. Dawes [5 Clark & Tin. 163.] ^ Ap p5 EAH: 
 " The presumption of law [in favour of marriage] is not to be lightly E ° Bs ' 
 " repelled. It is not to be broken in upon or shaken by a mere 
 " balance of probability. The evidence for the purpose of repell- 
 " ing it, must be strong, distinct, satisfactory and conclusive." 
 
 In the Breadelbane Case, [1, L. R. Sc. & Div. App. 182] 
 the connection of the persons whose marriage was in 
 question was in its origin illicit, and yet the House of Lords held, 
 that after many years cohabitation with the reputation of husband 
 and wife, it must be presumed that they had been married, although, 
 there was no evidence of an actual marriage. It is true, this was 
 in Scotland, but there seems no reason why the same principle 
 should not hold good, generally. As Lord Cranworth observed in 
 that case : " By the law of England, and I presume of all other 
 " Christian countries, when a man and woman have long lived 
 " together as husband and wife, and have been so treated by their 
 "friends and neighbours, there is a prima, facie presumption that 
 " they really are, and have been what they profess to be. If, after 
 " their deaths, a succession should open to their children any one 
 " claiming a share in such succession as a child, would establish a 
 " good prima facie case, by shewing that his parents had always 
 " passed, in society as man and wife, and that the claimant had 
 " always passed as their child." 
 
 In the present case we have the fact of the marriage proved by 
 witnesses, and even if the evidence of the performance of the mar- 
 riage ceremony be considered not altogether satisfactory, yet there 
 is clear evidence that, after the death of her first husband, Cheah 
 Tuan Neo, lived with Ong Sye as his wife, and was regarded as 
 such by all her relations and friends. The only evidence to con- 
 tradict the evidence of reputation, extending over a period of about 
 sixty years, is that, of the witness Khoo Seng Hap, who alleges 
 that the deceased Yeo Neo spoke to him in terms of disapproval of 
 the connection of her mother with Ong Sye, and called it a shameful 
 affair, but as this is unsupported and is inconsistent with all the 
 other evidence in the case, I don't consider it as worthy of credit. 
 
 The presumption which arises from the evidence of reputation 
 extending over so long a period of time, I do not think is rebutted 
 by the facts relied upon by the defendants. The evidence of the 
 meaning and significance of Chinese customs, [such as carrying 
 lanterns at a funeral] must be much clearer than it has been in the 
 present case to warrant me in inferring from it the non-existence 
 of a previous marriage, in opposition to the strongest evidence 
 from reputation. When the status of marriage has subsisted 
 for more than half a century, and children have been born who 
 always held in the family, the position of legitimate members of 
 that family, it appears to me, that it would be most dangerous to 
 hold that status does not in reality exist, except on the clearest 
 
m s ■ CIVIL OASES. 
 
 Hac™ J. ana strongest evidence. In the present case, I do not think such 
 1S72. evidence has been produced, and I, therefore, feel hound to hold 
 
 0n — bng tTatSie plaintiff has established her rights as one of the next of 
 N Neo kin of the testatrix. «_, 
 
 »'. I now come to the construction ot the Will. _ 
 
 Teap Cheah The first qu esfcion argued is, that which arises in the loth 
 Neo&obb. fl Qf the ^ m by which the testatrix directs as to the re- 
 
 mainder of her real and personal property not already disposed of, 
 that her executors shall receive and collect the same from all 
 persons whatever, and in such manner as to them, may seem pro- 
 per, and directs that they, their heirs, successors, representatives 
 or descendants may apply and distribute. the same, all circumstances 
 duly considered in such manner and to such parties as to them may 
 appear just. Upon this clause, it is contended on behalf of the 
 plaintiff that it is a gift to the executors upon trust, and inasmuch 
 the objects of the trust fail, as the testatrix has not declared what 
 the trusts were, the property comprised in this clause results tor 
 the benefit of the next of kin of the testatrix. The defendants, on 
 the other hand, maintain that it is a good gift of the residue to 
 the executors for their own use, and that no trust is attached to 
 
 The' question involved in this clause of the Will is one which 
 has often occurred, and upon which there are numerous decisions 
 not very easily reconciled. And, indeed, considering the nice dis- 
 tinctions upon which the decisions often turn, and the variety of 
 expressions used by different testators, it is not surprising that it 
 should not be easy to deduce the principles, which should guide 
 one in the construction of any particular Will, which must, in all 
 probability, differ in some respect from any of these, on which 
 decisions have been pronounced. 
 
 In construing any Will, the object, of course, is to ascertain the 
 intention of the Testator, as far as it can be ascertained from the 
 language of the Will itself. And it is the duty of the Court, if 
 the testator has expressed his intention in clear and apt words, and 
 there is nothing in it, contrary to the rules of law, to carry out 
 that intention. But, if the testator, although he may have dimly 
 shadowed forth what his wishes are, does not express them with 
 sufficient certainty to enable the Court to carry them out, it 
 would follow, that so far, as he has failed to explain his wishes 
 with certainty, he must be declared to have died intestate. 
 
 In the commencement of the Will at present under consider- 
 ation, the testatrix expresses her confidence in certain persons and 
 appoints them her executors ; and then gives to them all her pro- 
 perty and effects whatsoever, "butin trust always for that purpose 
 " hereinafter mentioned." The testatrix then goes on to declare 
 certain trusts of a portion of her real and personal estates, some 
 of them being for the benefit of three of the executors, and some 
 for that of other persons. It is also to be remarked that, in the 
 third clause of the Will, the testatrix directs that certain sums of 
 money which were to accrue from the interest on moneys lent, and 
 rents of houses, should, as they accrued, " become part of her 
 "trust estate," and that there is no subsequent declaration of trust 
 
STRAITS SETTLEMENTS. 331 
 
 of this portion of her estate, unless the residuary clause is to be Hackett, J. 
 taken as such. 1872 , 
 
 The general intention of the testatrix is clearly expressed in ong Cheno 
 the first clause of the Will. Her wish was to mate a certain pro- Neo 
 perty in Beach Street, the family residence of the families of her „ "' 
 late husband and his partner, in perpetuity, so that it might be neo & oks. 
 inalienable, and also to secure the perpetual investment in certain 
 hands, of a large sum of money, which was to be part of her 
 trust estate. And it is clear that her executors were appointed 
 for the purpose of carrying out these objects. 
 
 The Attorney-General for the plaintiff has contended, that 
 the residuary estate does not vest in the executors for their own 
 benefit, because it appears upon the whole Will that the gift was 
 to them only in trust. He relied upon the words " having every 
 " confidence in" at the commencement of the Will, and also upon 
 the fact that the property was only given to them as executors, 
 but in answer to that observation, it may be said, that there are no 
 such words in the 15th clause. The whole question here seems to 
 me to resolve itself into this, whether the 15th clause is to be read 
 as so intimately connected with the previous part of the Will, as 
 that it must be read as continuing the trust, which the testatrix 
 had previously created, or whether the gift was an independent 
 one and to be construed by its own terms, without reference to 
 the previous part of the Will. Several cases were referred to by 
 the Attorney-General in support of his view. In Fowler v. Garlike 
 [2 R. & My. 232.], and Vesey v. Janson, [1 S. & St. 69] the gifts 
 were expressly on trust, and in Stubb v. Bayers, [2 Kee. 255.] there 
 was an express declaration in favour of the testator's family. 
 Again in the Corporation of Gloucester v. Wood, [3 Hare. 131.] there 
 was express mention of a purpose of the testator, which could not 
 be ascertained, and in Briggs v. Penny, [21 L. J. Ch. 265.] there 
 were the words " well knowing that he will make a good use, and 
 " dispose of it according to my views and wishes." In Salt Marsh 
 v. Barrett, [30 L. J. Ch. 853.] there was a gift of all the testator's 
 property to his executors, charged with the payment of legacies, and 
 a direction that all their costs and expenses should be borne by 
 his estate, and it was held by the M. R. and L. J. Turner that the 
 executors were trustees for the next of kin. L. J. Knight Bruce, 
 however, was of a different opinion, and thought they took benefi- 
 cially. In that case there were legacies to the executors and also 
 a clause of indemnity, which circumstances were held to negative 
 the intention to benefit them. L. J. Turner based his decision not 
 on the words of the clause containing the gift, which he said, 
 would be sufficient to give the residue beneficially, but on the con- 
 struction of the Will taken as a whole. In Barris v. Fowhes, [33 
 L. J. Ch. 484] there was a gift to an executor of the residue of the 
 testator's estate "to enable him to carry into effect the purposes 
 " of the Will," and Wood V. C. held, that it was a gift for some- 
 thing which the devisee was bound to do, and that it was there- 
 fore a trust. 
 
 Mr. Eodyk for the defendants contended that the executors 
 take beneficially ; that there is nothing in the 15th clause of the 
 
Oxta Cheno 
 
 Teap Cheah 
 Neo & Obs. 
 
 332 CIVIL OASES. 
 
 Hackett, J. Will to shew that a trust was intended, and that, in this respect, it 
 1872. differs from the 1st clause. He cited numerous cases in support of 
 jTtama hiscontention. In Lefoy v. Flood, [4 L. J. Ch._ Report, 1.] the Will 
 Neo was very special and intricate, and its provisions do not at all re- 
 *;,_ semble those of the Will now in question. In Meredith v. Heneage, 
 " [1 Sim. 542.] there was a gift to the testator's wife "unfettered 
 
 " and unlimited" in full confidence that she would give it to such 
 of his father's heirs as she might think most deserving. It was 
 held that the wife was absolutely entitled for her own benefit. 
 But in that case much reliance was placed on the words " unf et- 
 " tered and unlimited." 
 
 But it appears to me that the case which most strongly sup- 
 ports Mr. Eodyk's view of the 1 5th clause is, that of Gibbs v. Rum- 
 sey, [2 Ves. & B. 394] . In that case the testatrix gave her exe- 
 cutors legacies for their care and trouble, and subsequently made 
 a residuary bequest to them describing them by their character of 
 trustees and executors, and also by their names, the same " to be 
 " disposed of unto such person and persons, in such manner and 
 "form, and in such sum and sums of money, as they, in their discre- 
 " tion, shall think proper and expedient." With the exception of 
 describing the executors by name, the residuary gift in Gibbs v. 
 Rumsey, is very similar to that which we are considering, and if 
 the matter rested on the 15th clause only, I should feel myself 
 much pressed by the authority of Gibbs v. Rumsey. 
 
 But in construing this clause and endeavouring to ascertain 
 what the testator intended, I am bound to take the Will as a 
 whole. Now it is clear that the testatrix was anxious to consti-. 
 tute a large portion of her property into a perpetual trust for the 
 benefit of two families. This clearly appears from the 1st, 2nd, 3rd 
 and 4th clauses of the Will. In the 3rd clause, she directs that 
 certain annual payments, of a considerable amount, shall, as they 
 accrue, form portion of her trust estate. But in no subsequent 
 portion of the Will is, any disposition, made of this trust estate by 
 name. There are two modes of accounting for this, either by the 
 supposition that the testatrix, when she had come to the residuary 
 clause, forgot all about her trust estate, or else the residuary gift 
 was to the " executors in the character of trustees. It appears to 
 me that 1 the latter of the two suppositions is the most probable. 
 The testatrix commences her Will, expressing her confidence in 
 the persons whom she names her executors, and to whom she gives 
 all her property, " but in trust always for the purposes thereinafter 
 "to be mentioned." The principal object of her desire seems to have 
 been to keep the bulk of her property together for the benefit of 
 the persons with whom she was living, and to carry out this object 
 she selected the four persons whom she named as her executors. 
 Coupling this circumstance with the omission to declare the trusts 
 of the annual proceeds of the rents of the houses and interest of 
 money lent, I am led to think, that when the testatrix gave these 
 persons the whole residue of her estate, it was given to them in 
 order to carry out the wishes which she seemed to have so much 
 at heart, and not merely for their own use. The opinion is 
 strengthened by the circumstance that the gift is, to the " execu- 
 
STRAITS SETTLEMENTS. 333 
 
 " tors" merely, and not to the persons by name, as was the casein Hackett, J. 
 Oibbs v. Bumsey. -This circumstance in itself would, perhaps, not 1872 - 
 be conclusive, but, I think, it may be taken as some evidence to qwo Cheno. 
 shew that the gift was fiduciary and not beneficial. Neo 
 
 I also think in construing the 15th clause, it is material to *• 
 
 consider the clause which immediately follows. By the 16th nm&Obs? 
 clause, the testatrix states it to be her wish "that her executors 
 " may not be interfered with in the management of her estate, and 
 "that any of them accepting this trust, shall be competent to man- 
 " age it, and that in the management thereof, the wish of the ma- 
 " jority shall prevail." Now, if this clause refers to and is connect- 
 ed with the 15th clause, as I think it is, it seems clear, that the 
 executors take the residue as trustees. Besides, if the testatrix did 
 not intend the gift to the executors to be fiduciary, how can we 
 explain the direction in the 16th clause " that if any of my execu- 
 " tors, from absence, death or any other cause, become incompetent 
 " to aot, that the continuing executors appoint other executors or 
 "trustees in his or their places and stead." Can it be contended that 
 the testatrix meant to give a share of the residue of her estate to 
 persons whom she might never have known, as might be the case if 
 the executors were to hold the residue to their own use, and new exe- 
 cutors were appointed. I may also mention that the words of limit- 
 ation superadded to the gift of the executors, namely, "their heirs, 
 " successors, representatives or descendants," seem to me to confirm 
 the opinion that a trust was intended. The word "successor" 
 used here, seems to show, that the gift of the residue was intended to 
 secure to the persons who might, from time to time, fill the 
 office of executors of the Will, and was not confined to the persons 
 whom the testatrix had named as her executors, and that the gift 
 to them was, therefore, fiduciary and not beneficial. 
 
 Upon consideration of the whole Will, I am of opinion, that 
 this is one of those cases in which a testator shows an intention 
 to create a trust, but has not denoted its objects with sufficient 
 certainty. I think, it is clear, that the testatrix here wished to 
 perpetuate the devolution of her wealth in a certain way, and that 
 she selected her four executors to carry out her wishes. These 
 wishes, she has not expressed, and judging from the indications she 
 has given of her desire in other parts -of the Will, it is probable 
 that if she had expressed them they could not be effectuated, but,* 
 as it is, there being no trust declared of the residue, the executors 
 must be held to be trustees for the next of kin of the testatrix. 
 
 I have now to consider the different trusts, which the testatrix 
 has declared, of the property devised to her executors. 
 
 The first clause is as follows : — 
 
 "As my long experience tells me that nothing tends so much 
 " to the prosperity, happiness and respectability of a family, as keep- 
 " ing its members as much as possible together, it is my wish that 
 " the four shops or houses left by my late husband,should continue to 
 " be the family house and residence of the family of Khoo Sek Chuan 
 "referred to above, and also of any part of the family of Lhn Eeng 
 " Wah, my late husband now risiding in China, who may visit this 
 " Island, and that they shall neither be mortgaged or sold." The 
 
934 CIVIL OASES. 
 
 Hackett, J. Attorney-General has contended that this clause is void for nncer- 
 1872 - tainty and that nothing passes by it, and I confess, that after an 
 Ong Cheng attentive consideration of it, I am unable to place upon the clause 
 Neo - any construction which can be carried out consistently with the 
 "• rules of law. 
 
 Neo & obs H ^ e °hject of the testatrix seems to have been that the four 
 shops or houses left by her husband should remain in perpetuity, 
 the family house of the family ©f Khoo Seek Chuan [who is dead] 
 and also of any part of the family of her late huband now residing 
 in China who may visit Penang. Now, there are two objections to 
 this clause, first, as infringing the rule against the perpetuities, 
 and secondly, if we are to read the clause omitting the prohibition 
 to sell or mortgage, it is open to the objection of uncertainty. If 
 I am asked what is the meaning of the word " family" here, I 
 must confess, I am unable to place a fixed construction on it, or to 
 say what members of the respective families are included in it, 
 whether the word refers to descendants or whether it also includes 
 collaterals. If any authority were required to shew that the word 
 " family," is in itself an uncertain term, it may be found in the cases 
 referred to in Jarman on Wills, pp. 81, 82. But independently 
 of the objection of the uncertainty of the meaning of the word 
 " family," there is no term specified for the duration of this family 
 house, either for any life or lives, or for any term of years, and it 
 seems to me on this ground also, the trust is void for uncertainty. 
 I, therefore, feel bound to declare the trust invalid, and the subject, 
 therefore, falls into the residue of the testatrix's estate. 
 The second clause of the Will is as follows : — 
 " With this object in view [referring to the 1st clause] I direct 
 "my executors, so soon after my death as possible to lease to two of 
 "their number named Khoo Kay Chan and Lim Cheng Keat, their 
 " heirs and assigns, the lower story of the said four houses or shops 
 "that is to say, the whole of the shops, warehouses and all other 
 " places m the premises, now used for such purposes or that may be 
 "added thereto, for a period of forty years, from the day of my 
 " death, at a rent of one hundred dollars per month, for each and 
 every month, durmg the said period of forty years. The upper 
 story of the same four houses to be occupied by the several mem- 
 bers and descendants of Khoo Seek Chuan and LimKeng Wahas 
 already proposed. s 
 
 ' The Attorney-General contended, that this trust is- illegal, and 
 referred to Attorney-General v. St. Catherine's Hall, jfc 381 
 where a condition annexed to a gift, that the rents of tenant should 
 not be raised was held void. But that was on the ground of re- 
 pugnancy and the reason does not seem to me to apply in this case 
 as we have here no gift to which the lease is annexed as a condition 
 and the testatrix had a perfect right to make a lease for aiwnum- 
 berof yearsshe thoughtfit, and at any rent she thought pXx I 
 therefore think, this is a good trust. For the same "reason Tthrnk 
 the trust in the next clause [the third] is also good ' ' 
 
 thous^oltf m S a 6 y t g^nt fiSf^S ""J f f * 
 shops, Khoo Kay Chaland &» ChengXat°, ^SS^^ 
 
STRAITS SETTLEMENTS. 335 
 
 for the same period of forty years, at the rate of interest of five per Haoee * t ' j - 
 cent per annum, to be paid monthly, and she further directs, that l z_i 
 this interest and the proceeds of the rents mentioned in the forego- Ono Cheng 
 ing paragraph, as they accrue, shall become part of her trust estate. »• 
 
 The testatrix would have been able to lend this money for any time Y ^ £ ^ AH 
 she thought fit, and if so, of course, she could • empower her 
 trustees to make a similar loan. I, therefore think, that this is a 
 good power given to the trustees and that it is not opposed to any 
 rule of law. The Attorney-General seemed to think that the latter 
 part of the clause, contained a direction to accumulate, but I can- 
 not agree with him. There is merely a direction, that the interest, 
 and rents, as they accrue, shall form part of the testatrix's trust estate, 
 and as there is no declaration of trust, the interests and rents, &c, 
 to pass to the executors under the general residuary gift. 
 
 The 4th clause directs, that at the expiration of the forty years 
 referred to in the 2nd and 3rd clauses, the executors, or their suc- 
 cessors or representatives, shall make an arrangement as regards 
 leasing the shops and warehouses, and lending out the fifty thousand 
 dollars similar to those already referred to, and that the same pro- 
 cess might be repeated from time to time, and for such periods as 
 the English law might admit of, and at such rates of rent and 
 interest as her executors, their successors or representatives for 
 the time being, might think proper. This clause has been attacked 
 by the plaintiff: as bad in law, and void, but it appears to me, that 
 is a trust which can be carried into effect. Nothing is more com- 
 mon in one part of the United Kingdom [Ireland] than the tenure 
 by lease for a term perpetually renewable. This, I apprehend, 
 may either be for a term of years or for life. If this be so, and 
 if the testatrix herself could have granted this lease with a cove- 
 nant for renewal, after the expiration of each term of forty years, 
 and so on for ever, it seems to me that she had power to direct her 
 trustees to do the same thing. I, therefore, think this trust is a 
 good one, and the same remark applies to the renewal of the loan 
 of the fifty thousand dollars. 
 
 The next clause to be considered is the 7th. By that clause 
 the testatrix directs, that in the event of Lim Ah Yong not wish- 
 ing to live in the family house, in that case, he and his family 
 be allowed to occupy the house in Beach Street, No. 424, free of 
 rent for a period of forty years, from the day of her [testatrix's] 
 death, after which, the property is to become his property, or that 
 of his heirs or assigns. 
 
 Mr. Eodyk who appeared for Lim Ah Yong, appeared to think 
 that the gift of the fee to Lim Ah Yong was void, and he did not argue 
 the point ; but as the construction of this clause does not seem to 
 him to be free from doubt, I propose to give Lim Ah Yong's 
 Counsel an opportunity of arguing the question before I give my 
 decision, [a] And as the same question arises in the igift to Wee Sah 
 Neo in the 8th clause, I also reserve my decision on that clause. 
 
 The next clause of the Will attacked is the 11th. By that 
 clause the testatrix directs, that her two plantations at Batu Lan- 
 chang on which the graves of the family are placed, shall be re- 
 fa] post p. 336. 
 
336 CIVIL OASES. 
 
 Hacmtt, J. served as the family burying place, and shall not be mortgaged or 
 1872. gold- It is con tended by the Attorney-General, that this gift is 
 
 Ong Chen & void as being a perpetuity and not a charity. 
 
 Neo The law in this question seems to have been rather unsettled. 
 
 v - Lord Ellenborough expressed an opinion [See Doe v. Pitcher, 
 
 Y Xso &Om H Taunt, 359] that although a trust to repair and, if need be, re-build 
 a vault and tomb for the testator and his family, was not a charita- 
 ble use, with respect to the party's own interment, 1 it was so with 
 respect to that of his family. But the correctness of that opinion 
 has been questioned, [See Wms. Exors. p. 1000.] and the tendency 
 of recent decisions has been to the effect, that a gift merely for 
 the purpose of keeping up a tomb or a building, which is of no 
 public benefit and only an individual advantage, is not a charita- 
 ble use but a perpetuity, and therefore void. [See Thompson v. 
 Shakespear, 1 Johns. 612., Came v. Ling. 2 de G. F. and J. 75., 
 Richard v. Robinson, 31, B. 144., Hoare v. Osborne, 1 . L. E. Eq. 585.] 
 In accordance with the law as thus stated, I feel bound to hold 
 that the gift of the two plantations is void as in perpetuity. 
 
 The next clause to be considered, is the 14th. By that clause, 
 after providing for her funeral expenses, the testatrix goes on : 
 " and I further direct, that a house termed, Sow Chong, for per- 
 " forming religious ceremonies to my late husband and myself, be 
 " erected on some part of the ground of the four shops, or houses 
 " already so often referred to, and of such size and description as to 
 " my executors may seem fit and proper." It is contended "by the 
 Attorney-General, that this gift also is void, on the ground that 
 it is perpetual. According to the evidence of Koh Teng Choon, 
 the " Sow Chong" is a sort of house in which the ashes of the de- 
 ceased are placed, in fact, a species of tomb ; and that the " Sin 
 " Chew " is a tablet placed in this house. This witness speaks with 
 some authority, as he has a Sin Chew in his own house which, he 
 says, is worshipped. 
 
 This question concerning the Sow Chong and Sin Chew was 
 fully investigated in a recent case, [Choa Choon Neoh v. Spottisvjoode, 
 reported in Woods' Oriental Cases, at Singapore, before Sir Benson 
 Maxwell, [a] [and I am disposed to concur in the conclusions 
 arrived at by that learned Judge, that it is not a charity. This 
 gift must, therefore, be declared void as tending to a perpetuity. 
 
 19th September, 1872. The points reserved, as regarded 
 clauses 7 and 8 of the Will, now came on for argument, and judg- 
 ment. 
 
 Bond, for plaintiff. 
 
 D. Logan, for defendants. 
 
 Eackett, J. — The question in this case which has yet to be 
 decided arises on the 7th clause of the Will which is as follows 
 [reads it] . I have great doubt in construing this clause on account 
 of the ignorance of the person who drew the Will, in the law, and 
 therefore, not able exactly to express what the testatrix wanted. 
 The question, I think, must be decided by general principles. 
 The first thing is to find what was her intention. She evidently 
 [a] ante p. 216. 
 
STRAITS SETTLEMENTS. 337 
 
 wanted the house to be a family house, and as Lim Ah Yong was HAC *g,l T ' J- 
 
 one of the family, she allowed him to stop there for forty years. ' 
 
 The question here is, is it a gift or a license -which the trustee is Ong Cheno 
 ordered to give to Lim Ah Yong. The words " use and occupy" Neo 
 has been held by Lord Eldon to give or transfer the whole pro- Ybap cheah 
 perty, but here on looking at the whole clause, I don't think, the Keo& obs. 
 
 testatrix meant to give more thau a mere license to rent the house 
 
 to Lim Ah Yong, until forty years were over, and that the house [J SrWy 
 was not to be sold or transferred to him till then. Council] 
 
 Forty years seems to be a favourite of the testatrix ; through- 
 out the whole Will she uses the mystical term or number of forty 
 years. The trustees were to keep the property in their hands, but 
 to allow Lim Ah Yong as a matter of favour to live there. Then 
 come the words that the property was given to him in fee without 
 power of alienation. Mr. Bond contends, that this gift in fee is 
 void, on the ground of remoteness as being given after forty years, 
 as the time limited by law was for lives in being and twenty-one 
 years thereafter, or if the time is fixed, must not be more thau 
 twenty-one years. Mr. Logan contends, that this gift is a remain- 
 der and can take effect. If testatrix had said, she gave the house 
 to Lim Ah Yong for forty years, and after that in fee, it would 
 have been good, as it vested in him at once. According to law, 
 if an estate is given in futwro, it cannot be construed as a remain- 
 der; even if one day was wanted, it would not be a remainder, 
 but an executory devise. In Fearne's Contingent Remainders, in 
 the introduction, curiously enough even, that learned and clever 
 author made a blunder, as long as there is any suspense, it is not 
 vested. Mr. Butler, in his notes to Fearne, remarks this blunder. 
 The question is, had the devisee the estate, if he had, it was good 
 as he had power to alienate. But here it was a license, and not 
 a vested estate in Lim Ah Yong, to get the estate, he must wait 
 till forty years after testatrix's death; the lauds, therefore, would 
 be tied up for forty years and the gift is, therefore, void as violating 
 the law against perpetuities. There is no case on all fours with 
 this, but Fearne at page 401 seems to think, such a gift would be 
 void. This applies to the 8th clause also, and the property com- 
 prised in those two clauses therefore fall into the undisposed of 
 residue, and the costs of all parties will come out of the estate. 
 
 The respondent appealed to Her Majesty in Council. 
 
 On 28th July, 1875, the appeal came on to be heard before: — 
 
 Sie James W. Col vile. 
 Sir Barnes Peacock. 
 Sir Montague Smith. 
 Sir Robert P. Collier. 
 
 This is an appeal from a decree of the Supreme Court of th e 
 Straits Settlements [Division of Penang], in a suit in equity, 
 brought by the first respondent, Ong Cheng Neo, against the appel- 
 lants, the executors of the Will of Oh Yeo Neo. Some of the 
 legatees under the Will were also made defendants in the suit. 
 The first respondent claimed to be entitled as the half-sister and 
 
833 
 
 CIVIL OASES. 
 
 Hackett, 
 
 1872. 
 
 J. 
 
 Ong Cheng 
 
 Neo 
 
 v. 
 
 Yeap Cheah 
 
 Neo & OBS. 
 
 [Judgment! 
 of the Privv 
 
 one of the next of tin of the testatrix. She did not dispute the 
 validity of the Will, but contended that the bequest of the residue 
 and some of the specific bequests were void. 
 
 The testatrix and the parties to the suit were Chinese, dwell- 
 ing in Penang, and the real property devised by the "Will is situated 
 in that island. 
 
 The first question raised in the appeal, related to the right of 
 Ong Cheng Neo to maintain the suit. It was not disputed that 
 she and the testatrix were daughters of the same mother, Cheah 
 Tuan Neo ; but it was contended that Ong Cheng Neo was not 
 legitimate. It appears that the testatrix was the only child of 
 Cheah Tuan Neo, by her husband, Oh Wee Kee, who died in 1806. 
 It- is said that in 1809 the widow, Cheah Tuan Neo, married Ong 
 Sye, and that the respondent, Ong Cheng Neo, and a deceased 
 sister, were the offspring of that rnarrhige. The appellants do 
 not deny that the widow and Ong Sye cohabited from 1809 until 
 Ong Sye's death in 1811 or 1812, but they disputed the alleged 
 marriage. A great deal of evidence was gone into upon the ques- 
 tion, to which their Lordships do not think it necessary to advert 
 in detail, since they are perfectly satisfied with the conclusion at 
 which the learned Judge below has arrived, viz., that the marriage 
 was established. 
 
 It was not disputed that Ong Sye and Cheah Tuan Neo lived 
 together as man and wife, and were so treated by their family and 
 friends, nor that the plaintiff and her deceased sister were regarded 
 and treated as legitimate children. So much was this the case, 
 that the testatrix herself had allowed her sister, Ong Cheng Neo, 
 to take out administration to the mother's effects. In addition to 
 strong and consistent evidence of reputatipn, witnesses were called 
 who were present at the marriage festivities; and although some 
 of the usual ceremonies, such as the giving away of the woman, 
 were not distinctly proved to have taken place, there is ample 
 evidence from which, at this distance of time, the performance of 
 them may be presumed. 
 
 The principal opposing evidence came from some members of 
 the family, who say they were not present at any marriage cere- 
 mony and did not know that any had occurred, and of a witness 
 who deposed that the testatrix had spoken of the connection of 
 her mother with Ong Sye as a shameful one. But the Judge 
 below has expressly found that this last witness was not worthy 
 ot credit, and the evidence of the other witnesses relates to facts 
 o± a negative or inclusive character, which the Judge rightly 
 thought, was insufficient to countervail the positive evidence of 
 the witnesses who were present" at the marriage festivities, and 
 the presumption arising from, reputation. 
 
 . It is said that, with the Chinese, the difference between the 
 social status of a wife and that of a concubine, and in the position 
 and treatment of legitimate and illegitimate children, is so slight, 
 that what is termed reputation, affords no satisfactory ground for 
 presuming a marriage. But if this be so, which, however, is not very 
 SJ T tablls .^ d > their Lordships see no reason, in the absence of 
 satistactory evidence to the contrary, why the ostensible relations 
 
STRAITS SETTLEMENTS. 
 
 339 
 
 of the parties should not be referred to a legitimate and correct 
 connection, rather than to an illegitimate and, to say the least, a 
 less correct one. 
 
 The Will in question is drawn in the style of an English Will, 
 and attested according to English law ; and the main question in 
 the suit, via., the effect of the bequest of the residuary estate to 
 the executors, was discussed and argued at the Bar upon the prin- 
 ciples which govern such a bequest in an English will. 
 
 The Will commences as follows : — 
 
 " Know all men by these presents that I, Oh Teo Neo, Chinese single 
 " woman, being of sound mind, do hereby make and publish this my last Will 
 " and Testament. 
 
 " I am now possessed of considerable property in money, houses, lands, 
 " and so forth, and of four shops or houses in Beach Street, numbered res- 
 " pectively 40, 41, 42 and 43, comprised in two bills of sale, registered res- 
 " pectively No. 313 and 1930, and of two Government grants for land reclaimed 
 " from the sea, and forming part and parcel of the four shops or houses just 
 " mentioned, these four shops or houses having been left by my late husband, 
 " Lim Kong Wah, who died about twenty-six years ago. 
 
 " Having no children of my own, and having every confidence in Teap 
 " Cheah Neo, the wife of one of the partners of my late husband, named Khoo 
 " Seek Chuan, with whom I have long lived, in Koo Kay Chan, her son, in 
 " Khoo Siew Jeong Neo, her daughter, and in Lim Cheng Keat, a nephew of 
 " Lim Kong Wah, her son-in-law, I do hereby appoint them the executors of 
 " this my last Will and Testament, and I do hereby make over to them as such, 
 " all property and effects whatsoever that may belong to me at the time of my 
 " death, but in trust always for the purpose hereinafter to be mentioned. 
 
 " 1st. As my long experience tells me that nothing tends so much to the 
 " prosperity, happiness, and respectability of a family as keeping its members 
 " as much as possible together, it is my wish that the four shops or houses left 
 " by my late husband should continue to be the family house and residence of 
 " the family of Khoo Seek Chuan referred to above, and also of any part of the 
 " family of Lim Kong Wah, my late husband, now residing in China, who may 
 " visit this island, and that they shall neither be mortgaged nor sold. 
 
 " 2m,d. With this object in view, I direct my executors, as soon after my 
 " death as possible, to lease to two of their number, named Khoo Kay Chan 
 " and Lim Cheng Keat, their heirs and assigns, the lower story of the said four 
 " houses or shops, that is to say, the whole of the shops, warehouses and all 
 " other places in the premises now used for such purposes, or that they may be 
 " added thereto, for a period of forty years from the day of my death, at the 
 " rent of 100 dollars per month for each and every month during the said period 
 " of forty years. The upper story of these same four houses or shops to be 
 " occupied by the several members and descendants of Khoo Seek Chuan and 
 " Lim Kong Wah, as already proposed." 
 
 The testatrix then in other clauses, [numbered 3 to 14] by 
 way of directions to her executors, makes specific dispositions of 
 portions of her property, principally for the benefit of members of 
 the families of Khoo Seek Chuan, and of Lim Kong Wah, her late 
 husband. 
 
 Some of these clauses raise questions apart from the gift of 
 the residue, which have to be decided in this Appeal. 
 
 The concluding clauses of the will are as follows : — 
 
 " 15th. As regards the remainder of my real and personal property, of 
 " what kind soever, not already disposed of, I direct that my executors shall 
 " receive and collect the same from all persons whatever, and in such manner 
 " as t,o them may seem proper, and J direct that they, their heirs, successors, 
 
 f ackett, J. 
 1572. 
 
 Dng Cheng 
 
 Neo 
 
 v, 
 
 Teap Cheah 
 
 Neo & OKS. 
 
 [Judgment 
 
 of the Privy 
 
 Council.] 
 
340 
 
 CIVIL OASES. 
 
 Hackett, J. 
 1872. 
 
 Onq Cheng 
 
 Neo 
 
 o. 
 
 Yeap Che ah 
 
 Neo & ORS. 
 
 [Judgment 
 
 of thePrivy 
 
 Council.] 
 
 "representatives, or descendants, may apply and distribute the same, all 
 " circumstances duly considered, in such manner and to such parties as to 
 " them may appear just. . „ , . ,, 
 
 " 16th It is my wish that my executors may not he interfered with, 
 "in the management of my affairs, and that any one of them accepting this 
 " trust shaU be competent to manage it, and that m the management thereof 
 " the wish of the majority shaU prevail. I direct that if any of my executors 
 "from absence, death, or any other cause, become incompetent to act, that 
 " the continuing executors appoint other executors or trustees in his or their 
 " place and stead. It is my wish also that each of my executors shall only be 
 " liable for his own acts and intromissions, and not for those oi the others ot 
 "frhffm " 
 
 It will be seen from the Will that the testatrix wished to 
 benefit the relatives of her late husband, some of whom lived in 
 China, and also the family of her husband's partner Khoo beck 
 Chuan, some of the latter being her executors and trustees. 
 
 It was contended on the part of the appellants that the re- 
 siduary clause contained an express bequest to the executors in 
 terms, which imported an absolute gift to them; and a recent de- 
 cision of the House of Lords [Williams v. Arlcle] was cited to 
 establish that in the case of such a devise the Statute of the 11th 
 Geo. IV. and 1st Win. IV. c. 40, had no application. Their Lord- 
 ships entirely concur in that view of the Statute ; but the question 
 of the nature and character of the bequest remains, and it has to 
 be decided, whether, according to the proper and natural con- 
 struction of the language and provisions of the Will in question, 
 regarded as a whole, the intention was to create a trust in tbe 
 residue, or to make a beneficial gift of it to the executors. This 
 question, in all cases of the kind, must be determined, as Lord 
 Cottenham said in Ellis v. Selby [1 Myl. and Cr., 298], upon the 
 construction of the language of the instrument in each particular 
 case. 
 
 In entire accordance with Lord Cottenham's view the present 
 Lord Chancellor, in delivering his opinion to the House of Lords 
 in Williams v. Arklc, said : " Where an express devise of the resi- 
 due is found, the meaning of that residuary bequest must be 
 ascertained by the ordinary rules of constructions." 
 
 In the numerous decisions which are found in the books on 
 this subject, various matters have been relied on as indicia of in- 
 tention on the one side or the other, such as the use of the words 
 "upon trust;" the gift of specific legacies to the executors or 
 trustees ; and the mention of the executors by their proper 
 names. Indicia of this kind, on which eminent Judges have re- 
 lied, may, no doubt, afford in some cases useful aids to construc- 
 tions, but after all, they may, and often must, be modified by the 
 provisions and language of the particular instrument to be con- 
 strued. 
 
 Mr. Hemming, for the appellants, cited what he discribed 
 to be two representative cases on the subject : Morice v. Bishop of 
 Durham; 10 Ves. 335, and Gibbs v. Rumsey, 2 Ves. and Beames 
 394. 
 
 He did not deny the principle laid down by Lord Eldon .in 
 Morice v. Bishop of Durham, that " if the testator meant to create 
 "a trust, and not to make an absolute gift; but the trust is. in- 
 
STJtAITS SETTLEMENTS. 341 
 
 " effectually created, or is not expressed at all, or fails, the next of Hackett, J. 
 " kin take." Indeed, lie cited that case as a leading authority, but 1872, 
 he contended that the present one fell within the decision of Sir qng Cheng 
 W. Grant in Gibbs v. Rumsey, who there held that the words of a Neo 
 residuary clause giving the residue to the trustees and executors "cheah 
 
 " to he disposed of unto such person and persons and in such jj eo & 0BS . 
 
 " manner and form, and in such sum and sums of money as they, in 
 
 " their discretion shall think proper and expedient," did not in the Cj^S?^? 1 * 
 particular will before him import a trust, but an absolute gift to "council.]^ 
 the trustees. 
 
 This case of Gibbs v. Rumsey is the authority on which the 
 Appellant's Counsel most strongly relied, but it is to be observed 
 with regard to it that even if the present Will were not distin- 
 guishable, [a question to be presently considered] Lord Cottenham 
 certainly expressed no approval of the case in Ellis v. Selby, and 
 Wood, V. C, in Buckle v. Bristow, [10 Jurist, 1,095] spoke of it as 
 going to the verge of the law. 
 
 Coming to the Will in question, it will be seen that, in the 
 commencement, the testatrix, after appointing fonr executors, 
 makes over to them " as such" all her property and effects, " but 
 " in trust always for the purposes hereafter mentioned," words 
 which, taken alone, indisputably impress a trust upon the whole 
 property. 
 
 The 1st and 2nd clauses show the desire of the testatrix to 
 keep the family together, and for this purpose she directs the " 
 
 executors to preserve certain houses as a family house, for the 
 residence of the family of Khoo Seek Chuan, and of any members 
 of her late husband's family living in China who might visit 
 Penang ; and she directs what appears to be a beneficial lease of 
 some shops in the lower part of the houses to be granted to two 
 of the executors for forty years. 
 
 By a futher clause the testatrix directs 50,000 dollars to be 
 given on loan to the same executors for forty years, at 5 per cent, 
 interest, but directs that the rents of the shops and their interest 
 shall become part of her trust estate. 
 
 There are numerous other specific bequests, but it appears 
 that they are far from exhausting the estate, and that a large 
 residue will be left. 
 
 The clause disposing of this residue has been before set out 
 at length. In trying to reach its meaning, it is to be observed 
 that it contains no words of gift, but directions to the executors, 
 and that they are mentioned by that title, and not by name. The 
 first direction is to collect and receive the residue ; the next, " that 
 " they, their heirs, succesors, representatives, or descendants, may 
 " apply and distribute the same [all circumstances duly considered] 
 "in such manner and to such parties as to them may appear just." 
 These are neither usual nor apt words of absolute gift ; on the 
 contrary, they indicate an intention to impose a trust to distribute 
 the fund among persons other than, or at all events, in addition 
 to themselves. 
 
 It may be inferred from the rest of the Will that the persons 
 intended to be benefitted were the memhers of the families she 
 
342 CIVIL OASES. 
 
 Hackstt.j. desired to keep together. It was said that the words give an 
 1872.' ^definite and unlimited power of disposition and therefore, 
 n T~ amount to an absolute gift. Bat it is evident from the whole 
 °% C B r a WH that this was not the intention of the testatrix, and that, on 
 •• the contrary, she had in her mind throughout, the desire to benefit 
 
 Yeap Cheah familie s, although she has failed to define her object with the 
 
 [Jud^ent ''^^ThaUhis washer real purpose, and that it was her intention 
 
 of the Privy t te trust to carry { t i nto effect, seems to be apparent both 
 
 Council.] ^ al frame of the willj and its particular provisions 
 
 Looking- only to the bequests to the executors, what appears ? 
 The first bequest vests all the property in the executors « as such 
 and "in trust always" for the purposes thereafter mentioned. 
 Then turning to the residuary clause, the use of words of in- 
 junction instead of those of gift or bequest, the directions given 
 to the executors, not by name, but by the description of my 
 " executors," the nature of these injunctions, viz., to collect the 
 residue and distribute it, after duly considering all circumstances, 
 to such parties as to them, their heirs, successors, &c, may seem 
 •just and the mention of successors in relation to this duty, all 
 negative the supposition that the testatrix intended to sever the 
 residue from the trust with which she had clothed all her property 
 in the hands of her executors, and to make an absolute gift of it 
 to them as individuals. . 
 
 It was said that the learned Judge of the Supreme Court laid 
 too great stress on the inference arising from the clause relating 
 to the management of the estate, and the appointment of new 
 executors and trustees. Undoubtedly, in any view of this case, 
 there were trusts to be performed, which would make such a 
 clause pertinent ; and if there had been plain words of gift to the 
 executors, as in Williams v. Arkle, little weight could be attached 
 to this clause. It is enough for their Lordship to say of it, agree- 
 ing so far with the learned Judge below, that in their opinion, its 
 provisions and language are more consistent with the construction 
 they have put on this Will, than with the opposite view of it. 
 
 It will be seen from the above analysis of the Will in 
 question, that it differs in material respects from that in Gibbs v. 
 Bumsey. There, property, was devised to the executors upon 
 trust to sell and to pay certain legacies, and this was followed by 
 a clear gift of the residue, introduced by the apt words, " I give 
 " and bequeath," to the trustees and executors, whose names were 
 given in a parenthesis, with absolute power of disposition, and 
 without any indication of the families or persons whom the 
 testatrix desired to benefit. This Will, both in its frame and 
 provisions, materially differs from that, now in question. 
 
 Several cases were cited in the argument, in which various 
 forms of expression, conferring unlimited and unconditional 
 powers of disposition, were held to amount to absolute gifts. It 
 is unnecessary, however, to discuss these decisions, or to consider 
 what would be the proper construction of the discretionary power 
 in this Will if it had been coupled with plain words of gift, un- 
 controlled by other parts of the Will. Their Lordships' decision, 
 
STRAITS SETTLEMENTS. 
 
 343 
 
 [Judgment 
 
 of the Privy 
 
 Council.] 
 
 founded on the whole Will, is, that a trust was intended, to be Hackett, J. 
 created, which has failed for want of adequate expression of it. 18?2- 
 
 The decree below has declared several of the specific bequests ong Cheng 
 to he void ; and as regards three of them, the decree is complain- Neo 
 ed of in this appeal. v - 
 
 These are [1] the devis-e of the upper story of the four shops ^ E0 & 0KS 
 in trust for a family residence of the families of Lim Kong Wah 
 andKhoo Seek Chuan, which is declared to be void "for un- 
 certainty and as infringing the rules against perpetuities ;" [2] 
 the devise in the 11th clause of two plantations, in trust to be 
 reserved as a family burying place, with a prohibition against 
 mortgaging or selling the same, which is declared void, as infring- 
 ■ ing the rule against perpetuities ;" and [3] the devise in the 14th 
 clause, directing that a house, termed " SoW Chong," for perform- 
 ing religious ceremonies to the testatrix's deceased husband and her- 
 self, should be erected, as to which the decree declares, " that the 
 " said trust not referring to a charitable object, is void, as infring- 
 " ing the rule against perpetuities." 
 
 In considering what is the law applicable to bequests of the 
 above nature in the Straits Settlements, it is necessary to refer 
 shortly to their history. 
 
 The first charter relating to Penang was granted by George 
 III, in 1807, to the East India Company. It cited that the Com- 
 pany had " obtained by cession from a native prince," Prince of 
 " Wales' Island, and a tract of country in the peninsula of Malacca, 
 "opposite to that Island," that when such cession was made, the 
 Island was wholly uninhabited, but that the Company had since 
 built a fort and a town, and that " many of our subjects and many 
 " Chinese, Malays, Indians, and other persons professing different 
 "religions, and using and having different manners, habits, customs, 
 and persuasions, had settled there." The charter made provision 
 for the government of the Island, and the Administration of Justice 
 there. It established a Court of Judicature, which was to exercise 
 all the jurisdiction of the English Courts of Law and Chancery, 
 " as far as circumstances will admit." The Court was also to 
 exercise jurisdiction as an Ecclesiastical Court, " so far as the several 
 " religions, manners, and customs of the inhabitants will admit." 
 A new Charter was granted by George IV. in 1826, when the 
 Island of Singapore and the town and fort of Malacca were annexed 
 to Pi'ince of Wales' Island, which conferred in substance the same 
 jurisdiction on the Court of Judicature as the former Charter had 
 clone. 
 
 The last Charter granted to the East India Company, in the 
 year 1855, again conferred the like powers on the Court; and this 
 jurisdiction was not altered in its fundamental conditions by the 
 Act of the 29th and 30th Vict., c. 95, and the Order of the Queen 
 in Council made in ptirsuance of it, by which the Straits Settle- 
 ments were placed under the government of Her Majesty as part 
 of the Colonial possessions of the Crown, nor by Ordinance No. 5 
 of 1868, constituting the present Supreme Court. 
 
 With reference to this history, it is really immaterial to con- 
 sider whether Prince of Wales' Island, or, or as it is called, Penang, 
 
3H CIVIL CASES, 
 
 Hackett, J, should be regarded as ceded or newly settled territory, for there is 
 1872 - no trace of any laws having been established there before it was 
 
 Ong Cheng acquired by the Bast India Company. In either view the law of 
 
 Neo England must be taken to be the governing law, so fa.r as it is 
 
 "■ applicable to the circumstances of the place, and modified in its 
 
 Neo & obs H application by these circumstances. This would be the case in a 
 country newly settled by subjects of the British Crown ; and, in 
 
 [Judgment their Lordships' view, the Charters referred to, if they are to be 
 
 CounSn 7 regarded as having introduced the law of England into the Colony, 
 • ' contain the words "as far as circumstances will admit," the same 
 qualification. In applying this general principle, it has been held 
 that statutes relating to matters and exigencies peculiar to the 
 local condition of England, and which are not adapted to the circum- 
 stances of a particular Colony, do not become a part of its law, 
 although the general law of England may be introduced into it . 
 Thus it was held by Sir W. Grant that -the Statute of Mortmain was 
 not of force in the Island of Grenada [Attorney- General v. Stewart, 
 2 Mer. 142.] The subject is discussed at large in Mayor of Lyons 
 v. East India Company, 1 Moore, P. C. 175. 
 
 The learned Judge below has not, however, held the gifts in 
 question to be void on the ground that they infringed any statute, 
 but because they were opposed to the rule of the English law 
 against creating perpetuities. 
 
 Their Lordships think it was rightly held by Sir P. Benson 
 Maxwell, Chief Justice, in the case of ChoaOhoon Neohy. Spottiswoode, 
 reported in Wood's Oriental Cases, [a] that whilst the English 
 statutes relating to superstitious uses and to Mortmain ought not 
 to be imported into the law of the Colony, the rule against perpe- 
 tuities was to be considered a part of it. This rule, which certainly 
 has been recognized as existing in the law of England indepen- 
 dently of any statute, is founded upon considerations of public 
 policy, which seem to be as applicable to the condition of such a 
 place as Penang to England ; viz., to prevent the mischief of 
 making property inalienable, unless for objects which are in some 
 way useful or beneficial to the community. It would obviously be 
 injurious to the interests of the Island, if land convenient for the 
 purposes of trade or for the enlargement of a town, or port could 
 be dedicated to a purpose which would for ever prevent such a 
 beneficial use of it. The law of England has, however, made an ex- 
 ception, also on grounds of public policy, in favour of sifts for 
 purposes useful and beneficial to the public, and which, in a wide 
 sense of the term, are called charitable uses ; and this exception 
 may properly be assumed to have passed with the rule into the law 
 taa r, y \ ^Thompson v. Shalcespear, 1 De Gez, P. & I., 
 
 399 ; Came v. Long, 2 De Gez. P. and I., 75 ] 
 
 The question then is, whether the Judge below is right in 
 
 +>,- + T A 6 ? ?t °t ^ T Mch ^ ktes to the u PP er story of the houses, 
 the testatrix desired to make a family house, appears to Seir 
 
 [a] ante p. 216. 
 
STRAITS SETTLEMENTS. 345 
 
 Lordships to be void on both the grounds mentioned in the decree. Hackbtt, J. 
 The context shows that, in using the word " family," the testatrix 1872, 
 meant at least two families, and that she intended to include not ong Cheng 
 only descendants, but other members. From other parts of the Neo 
 Will and from the evidence, it would seem that children had been cheah 
 
 adopted by members of the family, and, having regard to Chinese jf E0 & OEgi 
 
 family usages, which may be properly taken into consideration in 
 
 construing the Will, it is probable the testatrix meant to include some P V^^p e - nt 
 at least, of these adopted, children, but what natural and adopted "council!^ 
 members of the family she really intended to benefit is left wholly 
 obscure and uncertain. The devise is, therefore, for that reason 
 void. Then the expression of her desire to perpetuate the family 
 and to keep the house for their residence, and the direction that 
 the houses should neither be mortgaged nor sold, clearly denote an 
 intention to create a perpetuity, Their Lordships, therefore, see 
 no ground to disturb the decree with regard to this devise. 
 
 The devise of the two plantations in which the graves of the 
 family are placed, to be reserved as the family burying-place, and 
 not to be mortgaged or sold, is plainly a devise in perpetuity. The 
 only question is whether it can be regarded as a gift for a charita- 
 ble use. The weight of authority is against a devise of this nature 
 being so held in the case of an English Will ; and the only point, 
 therefore, requiring consideration can be, whether there is anything 
 in Chinese usages with regard to the burial of their dead, and in 
 the arrangements for that purpose in Penang, which would render 
 such an appropriation of land beneficial or useful to the public. It 
 is to be observed that the extent of the plantations nowhere 
 appears, and it may be, they contain more land than would be re- 
 quired for the purpose of a family burial ground. In the absence 
 of any information respecting usages of the kind adverted to, and 
 of the extent of these plantations, their Lordships feel unable to 
 say that the decree on this point is wrong. 
 
 The remaining devise to be considered, is the dedication by the 
 testatrix of the Sow Chong house for the performance of religious 
 ceremonies to her late husband and to herself. It appears to be 
 the usage in China to erect a monumental tablet to the dead in a 
 house of this kind, and for the family at certain periods in every 
 year, to place, with certain ceremonies, food before the tablet, 
 the savour of which is supposed to gratify the spirits of their 
 deceased relatives. This usage, with the accompanying ceremonies, 
 is minutely described by Sir P. Benson Maxwell, in his judgment 
 in the case of Choa Ghoon Neoh v. Spottiswoode. 
 
 Although it certainly appears that the performance of these , 
 ceremonies is considered by the Chinese to be a pious duty, it is j 
 one which does not seem to fall within any definition of a charita- 
 ble duty or use. The observance of it can lead to no public advan- 
 tage, and can benefit or solace only the family itself. The dedica- 1 
 tion of this Sow Chong house bears a close analogy to gifts to ' 
 priests for masses for the dead. Such a gift by a Roman Catholic 
 widow of property for masses for the repose of her deceased hus- 
 band's soul and her own was held, in West v. Shuttleworth, 2 Myl. 
 and Eeene, 684, not to be a charitable use, and although not com- 
 
Council.] 
 
 346 • CIVIL OASES. 
 
 Hackett, j. , mg within the Statute relating to superstitious uses to be void. The 
 
 1872 - ' learned Judge was, therefore, right in holding that the devise, 
 
 OncTcheng' heing in perpetuity, was not protected by its being for a charita- 
 
 Neo ; ble use. It is to be observed that in this respect a pious Chinese 
 
 v - is in precisely the same condition as a Roman Catholic who has 
 
 ^STeo & ok" devised property for masses for the dead, or as the Christian of 
 
 ' any church who may have devised property to maintain the tombs 
 
 [Judgment f deceased relatives. [See Richard v. Bobson, 31 L. J. Ch. 896, 
 "cmnrin* and Hoare v - Osborne, L. E. 1 Eq. 585.] All are alike forbidden 
 on grounds of public policy to dedicate lands in perpetuity to such 
 objects. 
 
 Their Lordships' decision on the bequest they have last con- 
 | sidered accords with the judgment of Sir P. Benson Maxwell in 
 ! the case already referred to. It appears to them that, in that 
 / judgment, the rules of English law, and the degree in which, 
 i in cases of this kind, regard should be had to the habits and 
 I usages of the various people residing in the Colony, are correctly 
 ' stated. 
 
 It remains to be observed that this appeal has been heard 
 upon special leave granted by their Lordships after leave to appeal 
 had been refused by the Supreme Court of the Colony. This 
 refusal proceeded upon the opinion of the Court that the power of 
 appeal to Her Majesty and the authority of the Court to grant 
 leave to do so, contained in the Letters-Patent of the Queen of the 
 10th August, 1855, were, abrogated by Ordinance No. 5 of 1868, 
 establishing the present Supreme Court. 
 
 It was admitted by the learned Counsel for the respondents 
 that they could not uphold this decision ; and upon referring to 
 the Ordinance, their Lordships think, the Supreme Court miscon- 
 ceived its effect. It is true that the Ordinance enacts, in the 1st 
 section, that the Court of Judicature established under the Letters- 
 Patent above referred to, is thereby abolished; and that the Letters- 
 Patent shall cease to have any operation in the Colony. But the 
 4th section enacts, that all provisions of Acts of the Imperial 
 Parliament, Orders of Her Majesty in Council, Letters-Patent, &c, 
 in force in the Colony, when the Ordinance came into operation, 
 and which are applicable to the Court of Judicature [i.e., the Court 
 abolished by the Ordinance], or to the Judges thereof, shall be 
 taken to be applicable to the Supreme Court [i.e., the Court estab- 
 lished by the Ordinance] , and to the Judges thereof. The effect 
 of these enactments, taken together, is that whilst the repealed 
 Letters-Patent ceased to have any operation of their own, all the 
 provisions contained in them applicable to the old Court were 
 virtually re-enacted, and made applicable to the new Court which 
 was put in i its place, as effectually as if they had been repeated at 
 length in the Ordinance. 
 
 The other parts of section 4 and section 30 are entirely con- 
 sistent with this interpretation. 
 
 In the result, their Lordships will humbly advise Her Majesty 
 to dismiss the appeal, and affirm the decree of the Supremi 
 Court. But, considering that the questions involved in the suit 
 are novel, and in some respects of the first impression, that the 
 
STRAITS SETTLEMENTS. 347 
 
 litigation has arisen mainly in consequence of the obscure and Hackett, J. 
 
 uncertain manner in which the testatrix has expressed her wishes, 18 ' 2 , 
 
 and that the executors were thereby placed in difficulty with res- ono Cheng 
 
 pect to many of the bequests of her Will, they will make no order Neo 
 
 as to costs. ' .„ "• 
 
 Yeap Cheah 
 
 Neo & OES. 
 
 HUSSAIN SAIBOO v. GOLAM MYDIN ET UXOK. 
 
 A mere deposit of title deeds without any writing referring to them, does not Penanq. 
 create any equitable mortgage, but only a pledge, [o] 
 
 Even if a mere deposit of title deeds as aforesaid, does create an equitable mortgage, Hackett, J. 
 still the person holding them, is entitled to maintain an action to recover the moneys, 1872. 
 
 [for which the title deeds were deposited as a security,]— on the common money counts, ; 
 
 although at the time he retains the title deeds as security. December 2. 
 
 This was an action on the common money counts. 
 
 The defendants pleaded the general issue. At the trial by 
 the plaintiff's own shewing, it appeared that the money was paid 
 by him to one Admacaka, to redeem a certain mortgage made by 
 the defendants to him, who thereupon left the title deeds with him 
 and promised verbally, to execute a valid mortgage of the same. 
 This, they never did, but he, the whole, while retained the deeds. 
 Sometime after, the money not having been repaid, the present 
 action was commenced. The counsel for the defence, thereupon, 
 without cross-examining him or proceeding any further with the 
 case, admitted the truth of the plaintiff's story, but objected that 
 this action could not be maintained. 
 
 Bond, for the defendants. I submit, the plaintiff must be 
 non-suited. First, the advance was to Admacaka, and not to the 
 defendants, and secondly, the deposit of the title deeds created an 
 equitable mortgage. The deposit of the deeds was a security for 
 the money which precluded plaintiff from suing. 
 
 [Hackett, J. A person who is a mortgagee on a bond, although 
 he retains the mortgage, can maintain an action on the bond for 
 the money.] 
 
 I submit he cannot. He is in possession of the property, and 
 no action can be maintained by him. The plaintiff here, before 
 bringing this action, never offered to give up the land, if he had 
 done so, there might have been some ground for his maintaining it. 
 
 [Hackett, J. Have you any authority for your contention ?] 
 
 I have none at hand at present ; as I was not aware that the 
 objection would have been taken. The plaintiff has never even 
 demanded payment, shewing clearly he relied on the security. 
 
 [Hackett, J. There is evidence that he did demand payment ?] 
 
 Yes, but when he made the demand, he did not offer to give 
 up the deeds. 
 
 Boss, for plaintiff. We are quite willing to give up the grants 
 provided the debt is paid. As the parties could not come to an 
 amicable settlement, the present action was brought. 
 
 [a] But see Russell v, Russell, 1 Wh. & T's L. C. in Eq., 440, & notes thereto. 
 
348 
 
 CIVIL OASES. 
 
 J. 
 
 HACKETT, 
 
 1872. 
 
 HUSSAIN 
 
 Saieoo 
 
 GOIiAM My- 
 DIN 
 
 k ANOB, 
 
 [Hackett, J. I think -we had better go on with the case.] 
 Bond. As to the second objection. The money was paid to Ad- 
 macaka and not to the defendant — how can they be sued then ? 
 
 [Hackett, J. The money was pa'id on their account. As you 
 admit the debt, the case had better stop, and the only question is, 
 as to costs; of course, if the action is properly brought, the 
 plaintiff must have his costs. However, I shall give you time to 
 look up authorities and consider the point of law.] 
 
 December 4. Bond, for the defendants. The plaintiff here has 
 entirely mistaken his remedy, which is one in equity and not at 
 law. This is no doubt an equitable mortgage, and his proper 
 remedy is to go to a Court of Equity to ask for a foreclosure or 
 specific performance in assigning the original mortgage to him. If 
 he was a legal mortgagee, the case would be clear ; but here he is 
 simply an equitable mortgagee, and must come to a Court of 
 Equity. I have found no case in which an equitable mortgagee 
 has sued in law. 
 
 [Hackett, J. No ; but the point is, have you found anywhere, 
 that it has been held that the plaintiff is debarred from suing. It 
 is clear on principle. An equitable mortgagee can maintain an 
 action at law for the debt as much as a legal mortgagee can, and it 
 is not necessary for him to go to equity. The only difference is, 
 that the legal mortgagee must sue on the bond in an action of 
 covenant or specialty, whereas the equitable mortgagee sues on the 
 common money counts for money lent and the like.] 
 
 I submit an equitable mortgagee cannot sue at law at all for 
 the debt, as long as he holds the mortgage. 
 
 [Hackett, J. I am of opinion he can. The only difference be- 
 tween a legal and an equitable mortgagee is this, the former has all 
 he contracted for, but the other only an imperfect right. He can, 
 however, in equity compel the mortgagor to give him a full title.]. 
 
 The only authority I can find is, Miller on Eq. Mtges., 68, 
 and then that even is as to costs, citing a case in bankruptcy. 
 
 [Hackett, J. It does not say that he cannot bring an action ; 
 at all events, it is not in your favour.] 
 
 I have not yet seen the case the author refers to ; but pro- 
 bably it might have been an action for the balance after the security - 
 was realised ; of course that he is entitled to sue for. In Tili v 
 Tli ?£ e ' 405 5 r the , Vice-Chancellor in giving judgment, points 
 out the difference [p. 410] between a legal and an equitable mort- 
 gage, and remarks that an « equitable lien gives no right but by 
 tk lao y i( i e -^ hailcellOT Kindersley in Matthews v. Goody, 31 L. J. 
 Eq. 282, is to the same effect. He there says the mode of enforc- 
 ing an equitable mortgage » is by coming to a Court of Equity 
 "to raise money by sale or mortgage." J 
 
 [Hackett, J He expressly states there, that in his opinion, a 
 mere deposit ot title deeds does not create an equitable moptgS.l 
 
 Here there is a parol agreement. s J 
 
 [Hackett, J. Yes, there is no written agreement Tipvp n^ +i, 
 mere parol one is void by the Statute of ifiS? « / ?s \ ^ ?* 
 on land. The deposit only created a pledge oithe title deeds!] g 
 
STRAITS SETTLEMENTS. 
 
 349 
 
 HuSSAIN 
 
 Saiboo 
 
 V. 
 
 Golam My- 
 cin 
 
 & ANOR. 
 
 The plaintiff's only remedy is to get a decree for sale or fore- Hackett, 
 closure, and the mortgagor is entitled to six months' time to pay 1872 - 
 up the money. Parker v. Eousefield, 2 M. & K., p. 419 — this case 
 has since been confirmed by Metier v. Woods, 5 L. J. ch. N. S. 109, 
 The case of In re Fletcher, 2 Montague's Bank Gases, 454, before 
 referred to, seems against me : the equitable mortgagee there 
 did bring an action at law but discontinued. 
 
 [Hackett, J. The case is dead against you] 
 
 I submit it is in my favour, as the case was discontinued. 
 Vice-Chancellor Kindersley in the case mentioned, expressly states 
 what are the remedies of an equitable mortgagee. 
 
 [Hackett, J. Yes, in equity.] 
 
 And at law as well. 
 
 [Hackett, J. No. He was a very careful man — in fact all equity 
 judges are careful — aild never attempted to know anything of law, 
 or to speculate on a person's rights at law.] 
 
 The case in Montague's Reports, clearly supports my conten- 
 tion. The action was discontinued, and the plaintiff went to his 
 proper remedy. There is no report of the case as to why it was 
 discontinued, but probably the Courts of Law refused to entertain 
 the action. The case only proves that an action was brought, but 
 dropped for some reason, unknown. 
 
 [Hackett, J. Suppose a person takes a pledge, he can sue at 
 law. It is so clear that there is no need of any authority on the 
 point, as there is nothing to bar him. If there was an agreement 
 for time, it would be quite another thing, but here there is simply 
 a pledge and no more. I take it that a lender of money can sell 
 the security, and pay himself or bring an action. If the borrower 
 tenders the money, and the lender refuses to give up the security, 
 he has a right to bring an action of trespass.] 
 
 If such is the case, it is harder on the borrower in equity than 
 at law, as equity keeps the tender waiting for six months, whereas 
 he has at law, an immediate right of action. 
 
 [Hackett, J. That is quite a different thing, the six months 
 are given before the property is sold, not before payment of money.] 
 
 Yes, the borrower has all that time to pay the money. I 
 submit if an action for such a thing was commenced at law, 
 equity would restrain it. 
 
 [Hackett, J. A debtor can always protect himself by payment 
 at any moment. It is the duty of evey debtor, immediately after 
 money is due, to pay it ; after that he is liable to the lender at 
 any moment.] 
 
 The plaintiff here is in possession of the property, and yet is 
 allowed to bring an action for the debt. 
 
 Hackett, J. You have only to pay the debt and, he must leave, 
 if he does not, you can sue him in trespass or ejectment. I shall 
 not call on Mr. Boss, as I am quite certain of the point. 
 Ross, for plaintiff was not called on. 
 
 Judgment for plaintiff with costs. 
 
350 OIYIL OASES. 
 
 MAYANDEE CHETTY v. SULTAN MERAOAYAE. 
 
 p The defendant agreed with the plaintiff, that in consideration of Ks. 3,000 lent by 
 
 plaintiff to defendant, that he would repay the same " within eleven days from the safe 
 
 Haceett J. " arrival of his vessel CastU Eden >" at Singapore. The vessel, through his own default, 
 
 ibm' ' never went to Singapore. . 
 
 __" Held, in an action for breach of his agreement, that there was an implied under- 
 
 TWPTnW fi taking on his part that his vessel, the said Castle Eden would go to Singapore, and in- 
 
 asmuch as she, through his default, did not, he was liable for his breach of such implied 
 
 undertaking. 
 
 A person who voluntarily signs a document as surety, cannot set up as a defence, 
 that no money at all passed to him, but simply to his principal, which was well known 
 to the plaintiff. 
 
 Semble. This rule applies even to a joint and several promissory note made by a 
 principal and surety. 
 
 This was an action to recover $480.67i for breach of an agree- 
 ment and on the common money counts. The agreemen tor paper- 
 writing on which it was brought was in the following words : — 
 
 " In the year 1871, on the 1st day of the month of April. Bill of 
 " Exchange [a] for premium note written and given into Shanena Vena 
 " Mayandee Chetty of Rangoon, by us two persons Shena Shinna Meera Lebby 
 " and Sultan Meracayar, Nacodah of the ship Castle Eden also of Rangoon 
 " aforesaid, as follows : — This day we took from you on premium, the sum of 
 " Rupees 1,000, as we have received the said sum of Rupees one thousand in 
 " ready cash, on the safe arrival of our vessel the said Castle Eden, at Singa- 
 " pore, and on production of -this Bill of Exchange by your agent Pana Ravena 
 " Mana Annamaley Chetty, our Nacodah, the said Sultan Meracayar, will 
 " sign the same and within 11 days therefrom pay unto the said Pana Ravena 
 " Mana Annamaley Chetty or to his order, the said principal together with 
 " a premium thereon at the rate of 3 per cent., per mensem, from the date 
 " hereof, and take back this Bill of Exchange, another Bill of Exchange of the 
 " same tenor is written whichever is signed the principal and premium will be 
 " paid and the paper taken back. 
 
 " Shena Shinna Meera Lebby. — Sultan Meracayar." 
 
 The vessel never went to Singapore, although it might have 
 gone. The defendant did not wish it to go, as the money on the 
 agreement would then have become payable. On the defendant 
 refusing to proceed to Singapore, this action was brought for the 
 breach of his agreement in not going there. 
 
 Bond, for the defendant. This action cannot lie for two 
 reasons. 1st. There is a variance between the agreement as 
 alleged in the declaration and the one produced. The breach of 
 contract is alleged in the declaration in not going to Singapore, 
 whereas there is no such contract existing in the paper produced. 
 There is no agreement in the paper produced to go to Singapore. 
 If the vessel was lost before her arrival at Singapore, the money 
 could not be claimed, nor can any action be brought on this paper. 
 
 [Hachett, J. — This is quite a different thing — here the vessel 
 could go to Singapore, and yet by the defendant's voluntary act, 
 she is prevented from doing so.] 
 
 But what, if the vessel was lost before her arrival at Singapore ? 
 v rJh 1 ^ ? J '"T In that case probably the action would not 
 he \b\, but the simple question here is, is there an implied agree- 
 ment in the paper produced to go to Singapore ?] 
 
 [a] See Palmer v. Pratt, 2 Bing 190. 
 Prat^l Kng,^a °" J " ** ^ Ue ° n the common mone y counts. See Pahmr v, 
 
STRAITS SETTLEMENTS. 351 
 
 I submit if the plaintiff voluntarily enters into a contract of Hackett, J. 
 this kind, and does not enter into any agreement to protect 18 
 himself when he could have done so, he must take the consequences Mayandee 
 of the situation in which he has chosen to place himself. The Chettt 
 agreement for payment here is conditional and not absolute, and g *• 
 no action lies till that condition has been performed. 2ndly. If Mebacayab. 
 even there is an agreement to go to Singapore, still I submit 
 defendant is not personally liable. There is evidence that the 
 money was paid for the vessel, and the defendant himself says so, 
 and further that he would pay it if he had moneys belonging to 
 the vessel. The signature of thedefendanttothepaper carriesamere 
 presumption that the money was paid to him, which presumption 
 can be and has been rebutted. Clarke v. Percival, 2 B. & Ad. ; 
 Morgan v. Jones, 1 Or. & J. 162, s. c. 1 Tyr. 21. This latter autho- 
 rity is very strong in my favour. 
 
 C. W. Rodyk, for the plaintiff. There is an implied agree- 
 ment in the paper produced to go to Singapore, and as defendant 
 has voluntarily refused to go, he is liable for the breach of it. Per 
 Willes J., Wilkinson v. Verity, 6 L. B., C. P. 206, Hochster v. De la 
 Tour, 22 L. J., Q. B., [N. SJ] 455. 
 
 Hackett, J. That is not quite analogous, in those cases, there 
 were express promises, and the actions were held to lie for the 
 breach of those promises, though the time for performance had not 
 arrived. I remember, a breach of promise of marriage case recently 
 decided in England, where a man promised to marry a woman 
 on the happening of a certain event ; but before that event occur- 
 red, he refused to abide by his promise ; an action was brought, and 
 it was decided that the action was maintainable, [a] The ques- 
 tion here is not exactly that ; but, is there an implied agreement 
 in this paper to go to Singapore ?] _ 
 
 I submit there is, as the money is to be paid on her arrivalthere. 
 
 [Racket t, J. Yes, I am aware of that ; but is there a positive 
 undertaking to go to Singapore ?] 
 
 I submit there is an implied undertaking to do so, for the 
 breach of which this action lies. 
 
 Bond, in reply. There is no contract to go to Singapore. 
 Then, as to the second point about which nothing was said by the 
 other side. 
 
 [Hackett, J. As to that point, I am against you. The de- 
 fendant has voluntarily signed the paper, and is liable on it. . The 
 case of Morgan v. Jones is not in point.] 
 
 In that case there is an averment that defendant received 
 the money, and yet it was held, this could be rebutted so as to shew 
 that he was not personally liable. 
 
 [Hackett, J. In that case the only evidence of the receipt of 
 the money by the defendant was the paper, and there was no 
 further evidence on it, but here there is evidence that defendant 
 received the money.] 
 
 The money was paid for the vessel and the defendant is sued 
 as if he were personally liable. 
 
 j>] Frost v. Knight, 41 L. J. Ex. [tf. 8.} 78. 
 
352 
 
 CIVIL OASES. 
 
 Hackett, J 
 
 1872. 
 
 Mayandee 
 Chetty 
 
 v. 
 
 Sultan 
 
 Mebacayab 
 
 [Hackett, J. He signed the note voluntarily as he himself 
 admits, and there is evidence that money passed.] 
 
 There is no evidence of money having passed to him. 
 
 [Hackett, J. He admits money passed, and that he signed on 
 behalf of the owner, and is, therefore liable as surety at least for 
 the owner. Morgan v. Jones does not touch the point. I shall 
 consider the other point.] 
 
 Cur. Adv. Vult. 
 
 January 22. Hackett, J. This was an action on a paper pur- 
 porting to be a Bill of Exchange, and the main question' argued 
 was, whether there was a distinct undertaking to sail to Singapore. — 
 the vessel— after the arrival of which at Singapore, the money was 
 to be paid, — had, through stress of weather to put in here and never 
 afterwards, went to Singapore. I had at first considerable doubts 
 as to whether there was a distinct undertaking ; but now, after 
 consideration, I think there is an implied undertaking to go to 
 Singapore. The money, Es. 1,000, was lent on the undertaking of 
 defendant to pay it back to the plaintiff's agent at Singa- 
 pore, on the safe arrival of the defendant's vessel there, and the 
 production of the Bill of Exchange. It is clear, the document 
 would be worthless, if there was no contract to go to the place 
 mentioned. The money was lent, and the defendant can, if there 
 is no contract, defeat the plaintiff's claim by not going. For these 
 reasons, I think, there is an implied undertaking on the part of 
 the defendant, that the vessel was to go to Singapore, and inas- 
 much as she has not, owing to his own voluntary act, but has gone 
 to another place, he. is liable for the breach of his contract. A 
 point was also raised as to the consideration ; but it is clearly not 
 tenable. The security is given by defendant and his principal, 
 and the defendant acknowledges that the money passed to his 
 principal, and it does not matter whether the money was paid to 
 him or his principal only. A surety who signs a note cannot 
 bring parol evidence to shew he did not receive the money. Byles 
 on bills, states that it goes so far that to a joint and several note, 
 it is no defence to say that one of the parties was principal, and 
 the other only surety and that the creditor knew such to be the 
 case, and in a note to this passage he states the same principle 
 applies as to adducing parol evidence to shew such facts, or to 
 shew that a note is conditional when on the face of it, it is abso- 
 lute. Mr. Bond relied on Morgan v. Jones in support of his conten- 
 tion, but that case is clearly distinguishable, for there, there was 
 no consideration whatsoever, but here it is admitted. On the 
 whole, therefore, I think there must be judgment for the 
 plaintiff, [a] 
 
 [a! See Sampson, v. Easterby, 9 B. & C. 505, confirmed it error 6 Bins? 664 • 
 Shrewsbury v. Gould 2 B. & Ad. 487-2, Add. on Con. 969, 972. Courtney v! 
 Taylor, ,7. So. N. R. 765 ; Williams v. Russell, 1 C. B. 429 ; Behn v. Burness, 31 L. 
 J. Q. B. [N. S.] 73 ; reversed in error 32, L. J. Q. B. [jy. 8.) 204 ■ Bealv v Short 
 Ibid, Ex. 281 ■ Ogdm v. Graham, Ibid. Q. B. 26, and eontra-Rashle'y v. South Eas- 
 tern R. Co., 10 C. B. 610 ; followed by Smith v. Harwich, 26 L J OP [N 8 1 257 ■ 
 Harrison , v. James 31 L. J Ex. 248; also see Taylor v. Caldwell, 32 i"L. J- O B' 
 L-"- *-J 164; and as to the second point; see Mauley v. Boyeot, 22 L. J. Q. B. [N. 8.1 265, ' 
 
STRAITS SETTLEMENTS. 853 
 
 MYMOONAH v. HAJI MAHOMED ARIFF. 
 
 An award is not a public or a quasi-judicial document, which, if lost, must be PenanG. 
 
 proved only by producing a copy of it ; but is the same as any other document, and 
 
 can, if lost, be proved by parol evidence, or a copy, or a counterpart thereof, simply. Hackett, J. 
 The rule with regard to secondary evidence of an award, is the same as that with 1873. 
 
 regard to a lost deed, or such like documents. 
 
 January 22. 
 
 This was an action on an award made on a submission made 
 between the defendant and the plaintiff's intestate. The defend- 
 ant pleaded the general issue, 2ndly, no award made, 3rdly, that 
 the submission was revoked before the making of the award. The 
 plaintiff joined issue on all the pleas. 
 
 E. C. Woods, junr., appeared for the plaintiff. 
 
 Bond, for the defendant. 
 
 Hackett, J. This was an action on an award, and the main 
 point argued was as to whether there was sufficient evidence of an 
 award having been made, and I think, there can be no doubt that 
 it was. The award being lost, secondary evidence of its contents 
 was given. Taylor on Evidence, p. 488, states that the general 
 rule is, secondary . evidence of a lost deed may be given, and the 
 party seeking to produce the deed, can give parol evidence or a 
 counterpart or copy thereof, as secondary evidence of it. Mr. Bond 
 for the defendant contended that an award was public or a quasi- 
 judicial document, and could only be proved, if lost, by a copy of 
 it, but T have found nothing in the books to support that view. No 
 doubt the Court must, if there is no copy or counterpart, be satis- 
 fied with parol evidence, before it can hold that there was an 
 award, but this is the same with regard to all other documents, 
 and I can find no difference between an award and any other 
 document. Having stated this, the only question now is, whether 
 there is sufficient evidence of the award. The plaintiff's testator, 
 and the defendant had some matters in dispute between them 
 concerning a piece of land, and referred the matter to one Saiboo, 
 as arbitrator. Saiboo made his award, dividing the land equally 
 between the two. Subsequently to this a further dispute arose 
 • between them as to some accounts, and the plaintiff's testator 
 brought an action for the amount against the defendant, but the 
 action was stopped, and they both again went to Saiboo to 
 arbitrate the matter. Saiboo made his award in writing, requiring 
 the defendant to pay the then plaintiff the amount claimed. After 
 this the plaintiff's testator, [the then plaintiff], employedone Pachee 
 and handed over the award to him. This Pachee is a man of bad 
 character, and was called as a witness by the plaintiff, he produced 
 a paper which he alleged was a copy of the award made by Saiboo, 
 but this paper, as the plaintiff herself admitted, was not a copy of 
 the award. I must confess, I could not arrive at his motive for 
 doing this, and the paper produced by him was a mere forgery ; 
 however Saiboo, the man who made the award, was also called, and 
 he swears positively, he gave his decision in favour of plaintiff's 
 testator, that it was about some accounts, and that he awarded 
 the amount claimed. Saiboo seems a respectable and honest man, 
 and gave his evidence in a most straightforward and impartial 
 
8S4 CIVIL OASES. 
 
 Hackett, J. manner, and I therefore think, I am justified in taking His account 
 
 1873. £ t k e award as true. The lands having been partitioned, the 
 
 Mtmoonah only question now remaining to be decided is, what was the 
 
 v. amount awarded to plaintiff's testator, and with respect to this 
 
 HajiMa- a i S o, I think, I must take Saiboo's account of it as true. There 
 
 H0MEDABirF - will, therefore, be judgment for the plaintiff for the amount 
 
 claimed. [«] 
 
 MOOEOOGAPAH CHETTY v. LIM HONG & ANOE. 
 
 Penang. A defendant in an action under Aot V. of I860, who has been arrested before 
 
 judgment, is entitled to his discharge after the seven days time given by the Act has 
 
 Hackett, J. expired, although the plaintiff has not, and is unwilling to obtain judgment ; and the 
 
 1873. order of arrest on which the defendant was arrested, authorised him to be arrested and 
 
 kept in custody for six months, or till the further order of the Court. 
 
 February 25. 
 
 This was an application by the defendants to be discharged 
 from custody. They had been about a fortnight or more previously, 
 arrested by an order of arrest issued at the request of the plaintiff 
 under Ordinance 22 of 1870, sec. 8. The action was under Act 
 V. of 1866, the " Summary Procedure Bills of Exchange Act." 
 The affidavit on which they grounded their motion, after stating 
 in the first two paragraphs that an order of arrest was issued 
 against them, on which they were arrested, stated, in the third 
 paragraph, that the seven days time given by the Act and sum- 
 mons, had expired ; that they had not obtained leave to appear 
 and defend, and that the plaintiff was at liberty at any moment 
 to sign judgment, although, at the time of the application, he had 
 not done so. 
 
 D. Logan [Solicitor-General], for the plaintiff shewed cause. 
 This is an application by the defendants to be discharged out of 
 custody, and we are now called upon to shew cause why such an 
 order should not be made. I submit that the affidavit does not 
 disclose such a state of facts as to compel us to make an answer to 
 it. 
 
 [Hackett, J. The affidavit rests on the ground that the 
 plaintiff is entitled to judgment, the seven days time having 
 elapsed.] 
 
 _ Yes ; but we have not as yet had judgment, though we are 
 entitled to it. The defendants are not entitled to their discharge 
 until we have obtained judgment. The order of arrest has not as 
 yet expired— six months, was the time mentioned therein, and we 
 are not obliged to sign judgment, no sooner the seven days given 
 by the summons have expired, — we are at liberty to enter judg- 
 ment whenever we like. 
 
 [Hackett, J. Yes, but the Court is at liberty to discharge the 
 defendants, when it thinks the plaintiff is acting improperly.] 
 _ The defendants can only be discharged after we have obtained 
 judgment, until we have done so, they must be detained. 
 
 [Hackett, J. You are entitled to enter judgment, and have 
 not as yet done so. You cannot, I think, by your own unwilling- 
 Co] See Short v. Ficmlt, 3 Jurist. [0. S] 341. 
 
STRAITS SETTLEMENTS. 855 
 
 ness to enter judgment, keep the defendants in custody, when Hackett, J. 
 immediately after judgment, they are entitled to their discharge. _f' 
 The Act onlyallows a defendant to be arrested before judgment; Moobooga- 
 not to keep him in custody for the debt, but simply to secure his PAH Chatty 
 presence. Our Act is not quite so clear as the English one, as the ln 'j 
 f ramer has made a great many additions to it ; but from the English & anob. 
 Act it clearly appears what is meant, [a] I don't think you have 
 any right to detain them, and it would be contrary to the spirit 
 of the Act to do so. I think, the affidavit is perfectly good, and 
 that you are bound to answer it. 
 
 The notice of the application having been served on the plain- 
 tiff, late on the previous evening, time was allowed to his Counsel. 
 
 The defendants were eventually discharged from custody. [6] 
 
 MUNGOOTEE MEERA NINA v. ATHEAN. 
 
 In an action by a j udgment-credltor to redeem three mortgages, and to have the p B wang 
 
 fourth declared void as having been taken after judgment in plaintiff's favour, — the 
 
 bill of complaint stated, that defendant had told plaintiff he had a promissory note for tj; ackett j 
 the money, but took the fourth mortgage as a better security, but defendant, at time of i g-o * 
 taking such mortgage, had notice of the action pending. The bill did not deny the ' 
 
 consideration for the note. On demurrer, it being said by plaintiff that there was p e i 3ruarv 28 
 no consideration for the note, and the defendant asserted that there was, — the Court ' 
 
 overruled the demurrer, and ordered the defendant to answer, so as to do complete 
 justice between the parties. 
 
 Semble. It is no fraud for a. creditor, secured by a promissory note, to take a 
 mortgage in lieu thereof, even if meant to defeat a judgment creditor, of such his 
 debtor, either at law or in equity. 
 
 Query. Is notice of an action pending constructive notice of the judgment ? 
 
 Query. In a suit by a judgment creditor against a mortgagee, to redeem the 
 mortgage, must the mortgagor [the judgment debtor], be made a. party ? 
 
 Query. "Whether the prayer " that justice maybe done as the case shall require," 
 is equivalent to a prayer for general and further relief ? 
 
 This was a suit on the equity side of the Court, wherein the 
 plaintiff sought as a judgment creditor, of one Sheila Merican, to 
 redeem a certain piece of land over which the defendant held four 
 mortgages. The plaintiff was willing to redeem the first three, 
 but not the fourth, which he alleged, was void, as having been 
 made after he had obtained judgment. The defendant had not 
 at the time of the taking of the fourth mortgage, actual notice of 
 the judgment, but had, as the plaintiff alleged, and he denied, 
 notice of the action pending between him [plaintiff] and the said 
 Sheila Merican, which notice he contended, was a constructive 
 notice of the j udginent. The defendant had advanced the money 
 to Sheila Merican on a promissory note, long previous to the action 
 by plaintiff had been commenced, and took the fourth mortgage in 
 lieu only of the promissory note at the time aforesaid. The bill 
 stated these facts, except as to the promissory note — as to which 
 
 [a] See Hume v. Druff, 8 L. E. Ex., p. 214. 
 
 [5] This case was under the Summary Procedure Bills of Exchange Act, which 
 has since been repealed ; but, as according to the present practice, judgment can, in 
 most cases, be obtained after eight days, the same principle probably, would be held 
 applicable. — J. W. N. K. 
 
356 CIVIL OASES. 
 
 Hackett.J. it stated, that defendant had informed plaintiff that he held a 
 
 1873. prom i SS ory note for the money, but took the mortgage only as a bet- 
 
 Mra - ES ter security. It did not allege that there was no consideration for 
 
 mX Nina the note or any other thing to effect the validity of same but 
 
 alleged that no money passed on the mortgage. It did not t>ow- 
 
 Athean. b ^^ . t be declared void at least as against him, 
 
 nor was there a prayer for general relief. To this bill the defend- 
 ant demurred generally for want of equity, [a] 
 
 C W Rodyk, for the defendant. Though no money passed 
 on the mortgage, yet it was not voluntarily made as the defendant 
 by taking it, lost the security of the note which then became merged 
 in the mortgage, and the money due thereon became due on the 
 
 fllackett, J. I will ask Mr. Eoss to support his bill. As the 
 case stands at present, I don't see that the plaintiff has any equity, 
 and if he can shew that he has, then I will call on you.] 
 
 Eoss, for the plaintiff. The plaintiff as judgment creditor has 
 a claim on the land. 
 
 [Hackett, J. Where do you find that ?] 
 
 I have not looked up to see where I can find it, but I take it 
 as a general principle that a judgment creditor has such right, and, 
 I think, the other side will admit this, [b] The bill alleges 
 that defendant before taking the fourth mortgage,_ knew an ac- 
 tion was pending against the mortgagor, and this, I submit is 
 sufficient constructive notice so as to effect the mortgage. Le Neve 
 v. Le Neve, 2 Wh. & Tudor's L. C. in Eq., 43. Anything that 
 is sufficient to put a reasonable man on his guard, is considered a 
 sufficient constructive notice in Equity. Jones v. Smith, 1 Hare. 
 The plaintiff is clearly entitled to have the mortgage set aside as 
 against him. 
 
 Rodyk. The mere fact of notice of the action pending, [admit- 
 ting it for the purpose of this argument] is not sufficient. Robinson 
 v. Davison, 1 Bro. C. C. 63, is in point. Brace v. Duchess of 
 Marlborough, 2 P. Wms. 491 ; Sorrell v. Carpenter, Ibid. 482, and 
 Cooke v. Wilton, 30 L. J. Ch. [N. 8.] 467, are also to the same 
 effect, [c] In Robinson v. Davison, the third mortgagee, who was 
 a defendant with the first mortgagee at the suit of the second 
 mortgagee, while the action was pending, bought in the first — and 
 it was held by the Lord Chancellor, that by so doing he had gain- 
 ed a priority over the second. The same was held in Brace v. 
 The Duchess of Marlborough. In Sorrell v. Carpenter, the Lord 
 Chancellor said : " Where there is a real and fair purchaser without 
 " any notice, it is a very hard case especially in a Court of Equity, 
 " to set such a purchaser aside ; and there being some defect in 
 " part of the proof in deraigning the plaintiff's title, I shall refuse 
 " to give the plaintiff leave to amend or make any new proof after 
 "publication." The defendant, as the Bill admits, was a creditor 
 
 [a] The objection for want of parties was raised ore Unus, see Pratt v. Keith, 33, 
 L. J, Ch. [N. S.] 528. A demurrer ore terms, however, will not he allowed to part of a 
 hill— Shepherd v. Lloyd, 2 Y. & J. 490. 
 
 [b] See Smith Man. of Eq. & 2 8p. Eq. Jur. 
 
 [c] See generally Marsh v. Lee, 1 "W. & T. L. C. in Eq., p. 4Q6 & notes 
 thereto. 
 
STRAITS SETTLEMENTS. 357 
 
 of the mortgagor, when he took the fourth mortgage. He held a Hackett, J. 
 promissory note and therefore, the making of the mortgage, even if 1873 - 
 made to defeat plaintiff's claim, is not such a fraud on him as to Munqootee 
 make the mortgage void. 8m. Man. of Eq. 95, Alton v. Harrison, Meera Nina 
 4 L. E. Ch. App. 622. Barman v. Richards, 22 L. J. Ch. [N. 8.] At ^ ean 
 1106. [a] There is no prayer that the mortgage might be declared 
 void, and, as there is no prayer even for general relief, this 
 relief, therefore, cannot be granted even if the Court thought the 
 mortgage void. Hunter's Suit in Eq. 17, Cockerell v. Dickens, 3. 
 Moore's P. C. cases p. 98. [&] As these prayers are not here, and 
 the mortgage cannot be declared void, the plaintiff, if he wishes to 
 Tedeem at all, must redeem all four or none. Vint v. Padgett, 28 
 L. J. Ch. [N. 8.] 21 ; Sish v. Hopkins, Ambler 793. The defend- 
 ant had a prior legal estate by having the first three mortgages 
 and, therefore, the plaintiff has no right to redeem. 2 Sp. Eq. Jur. 
 662, citing Barratt v. Blake, 2 Ball. & B. 357. Lastly, the Bill is 
 bad for want of parties. Sheila Merican, the mortgagor, having an 
 interest ought to have been made a party. 2 8p. Eq. Jur. 695-6-703. 
 For these reasons the demurrer must be allowed. 
 
 Boss. I think the last objection as to want of parties, perhaps, 
 is the only one that may hold good. The others, I submit, are un- 
 tenable. In Robinson v. Davison and Brace v. The Duchess of 
 Marlborough, the principle there laid down, is a well known and 
 common thing. The third mortgagee has always a right to buy in 
 and tack on to himself the first mortgage, and thereby gain priority 
 over the second, but that does not apply. The cases don't touch 
 the present question in the least. If the defendant had construc- 
 tive notice of our judgment, that will be sufficient to postpone his 
 fourth mortgage. The case of Cooke v. Wilton does not apply, if 
 anything, it is in our favour. It is said that the deed is not void, 
 simply because it was made to defeat plaintiff's claim, and 8m. 
 Man of Eq. 95, was cited, but, if we turn to page 93, we will see 
 that the very contrary is stated, there. Twyne's Case, 1 Sm. L. C. 
 is the leading case on this subject, and at page 19 in the notes, the 
 case of Booth v. Smith, is cited as a very important case on the 
 subject. There it was held, that a conveyance made by a father 
 to his son [in consideration of the son maintaining the father] of 
 all his property, and the conveyance was made to defeat the plain- 
 tiff, a judgment creditor in a suit brought by the plaintiff against 
 the son to set the conveyance aside, that the same was void, and 
 was accordingly set aside. This case, I submit, is exactly in point. 
 
 [Hackett, J. In that case, the son alone, and not the father also, 
 — was the defendant at the suit of the judgment creditor.] 
 
 Yes, and I therefore submit this case is also decisive of the 
 question of want of parties. Alton v. Harrison is entirely a differ- 
 ent case. There the Creditors to whom the mortgage was made 
 had no security for their debt, but the present defendant held a 
 promissory note for the money. The mortgage here is altogether 
 
 [a] Also see Bowen v. Brambndge, 6 C. & P. 1 10, & Mayue on the Penal 
 Code, pp. 152-55, where this is treated as a criminal offence. 
 
 [6] See also King v, Rossett, 2 Y. & J- 33, Topham v, Constantine, 1 Taun, 
 135, MellUh v, Iiichardson, 12, Price 530, 
 
Athean. 
 
 358 CIVIL CASES. 
 
 Hackett, J, f radulent between the defendant and the debtor, as well as between 
 1873. j^jjj an( j tn e judgment-creditor. Booth v. Smith. We have not, 
 Munqootee it is true, prayed that the mortgage might be declared void, but if 
 Meeba Nina we did this, and it was so declared, we would be depriving the 
 J^ jw defendant of his money, but if it is necessary that it should be 
 declared void, then this will be done under the prayer for general 
 and further relief, but again, it is said, there is even no prayer for 
 general relief ; this, however, is not correct. No doubt, there are no 
 words in the bill like " further and other relief," but there is a 
 prayer " that justice may be done as the case shall require," and I 
 submit these words 'are sufficient to let in the relief wanted, as 
 these words refer to the same subject as the general prayer for 
 relief, would have if it had been inserted. The objection that we 
 must redeem all or none, does not hold here as in England, it is 
 necessary that that should be so, as there is always a foreclosure 
 suit before the property is sold ; but here such a thing is never 
 done, if the debt is not paid, the property is there and then sold 
 without any further steps being taken. It is most unfair here 
 for the defendant who already held a security for his money to 
 take a mortgage, especially as we had judgment and wanted to 
 satisfy the same. 
 
 [Hackett, «T. No, it is not at all unfair — by your contention 
 it would be unfair for a creditor to go to his debtor against whom 
 another has judgment : and say to him, pay your .debt to me at once 
 which is there and then paid.] 
 
 There, there would be a consideration for paying off the 
 debt — the debt would be extinguished, but here there is no con- 
 sideration. The plaintiff had a security, and took another, and a 
 better one. The debt was secured on the note, no money was 
 paid on the mortgage, what consideration was there for the debtor 
 giving defendant a better security, [a] 
 
 [Hackett, J. It is a thing of every day occurrence.] 
 
 Fraser v. Johnston, 4 De Gex and Jones, also shews this mort- 
 gage is void. 
 
 _ [Hackett, J. I see the bill does not deny that there was con- 
 sideration for the note.] 
 
 No. This demurrer must be overruled. First, defendant had 
 sufficient notice of our judgment ; secondly, there was no considera- 
 tion for giving the mortgage ; and thirdly, the question as to want 
 of parties is settled by Booth v. Smith, viz. : the execution or judg- 
 ment creditor against the mortgagee. 
 
 _ Bodyk. I only wish to add a few words. Rolinson v. Davison 
 is directly in point to shew that notice of the action pending 
 
 «^1 S X \ g at aU - In a11 the cases 1 uoted by the other 
 side wherethe mortgages on conveyances were held void, and there- 
 of ^ '• W6r - e ^F^ages or conveyances made to creditors. 
 Alton y. Samson i S a direct authority in our favour, the judgment 
 is plain on the subject. L. J. Giffo/d in this case says vfi 
 
 Z^TZIm^^^^" intMs -^ "i^thertsS 
 ot the same kind, the question is as to the bond fides of the tran- 
 
 0] See Goodriclce v. Taylor, 2 De Gex J, & S. 135. i 
 
Athean, 
 
 STRAITS SETTLEMENTS. 359 
 
 " saction. If the deed of mortgages and bill of sale was executed Hackett, J. 
 
 " by Harrison, honestly, for the purpose of giving a security to the 18 
 
 " five creditors and was not a contrivance resorted to for his own mungootee 
 
 " personal benefit, it is not void, and must have effect." As to the Meera Nina 
 
 question regarding the prayer, I submit the words, " that justice may 
 
 " be done, as the case shall require," is not sufficient. In a case 
 
 reported in one of the Law journals, that I have not managed to 
 
 lay my hands' on, a prayer for general relief was omitted, and the 
 
 Court refused to grant any relief than that expressly prayed for, 
 
 and refused leave to amend. The bill does not allege, that there 
 
 was no consideration given for the note, and as it admits there was 
 
 a note, it must be prima facie taken to be for good consideration till 
 
 the contrary is alleged and proved. On these grounds, I submit, 
 
 the demurrer must be allowed. 
 
 Cur. Adv. Vult. 
 
 March 14. Hackett, J. In this case the law authorities are 
 against the contention of the plaintiff. By them, it seems to 
 be no fraud for a debtor against whom a judgment is ob- 
 tained to prefer a particular creditor, and if any mortgage or 
 other deed is made by him to such particular creditor, even 
 with the intention of defeating the judgment creditor, still the 
 mortgage or deed will be good. There are two cases decided 
 iu the Court of Exchequer which are very strong on the subject. 
 One, is Darvill v. Terry, 30 L. J. Ex. [N. S.J 355. [a] By 
 these cases, it is clear, the mortgage here is valid, and regular in 
 law, and I don't know whether the plaintiff has a better right in 
 equity than he has at law. I apprehend that in such a case as 
 this, equity will follow the law. The only question here is, 
 whether there really was any consideration for the promissory 
 note, in lieu of which the mortgage was taken. It does not 
 appear on the bill or demurrer, that there was any consideration ; 
 however, the bill does not say there was none, but simply says no 
 money passed on the mortgage. The law on the subject, as 
 already mentioned, is not only clear on -the authorities, but appears 
 to me to be so, by common sense. The person taking the 
 mortgage being a creditor, is a sufficient valuable consideration 
 to support the mortgage, and such preference of such creditor is 
 not fraudulent. For instance, a creditor who says to his debtor 
 " you have given me no security for my money but a note, and so 
 " as to protect myself, you had better give me a mortgage," which 
 the debtor accordingly does — such mortgage will be good,, as 
 there is sufficient consideration to support it. However, on the 
 facts of this particular case, I would like to consider the matter 
 over again before giving judgment. 
 
 March 22. Hackett, J. said that so as to go into the question 
 of the consideration of the note, and as the petition asserted that 
 defendant had knowledge of the action pending, he thought the 
 best plan was to overrule the demurrer, and for the defendant to 
 answer, the costs being costs in the cause. 
 
 Demurrer overruled, 
 [o] See generally, Mayne on the Penal Code, p. 154, 
 
360 CIVIL OASES. * 
 
 FEUCHAED v. SCHMIDT & OES. 
 
 ' Sinoapobe. Where a vessel is chartered from one port to another, and the charter-party provides 
 
 that the vessel should, at the port of destination, be consigned to certain agents, whose 
 
 Sidobeaves commission for inward and outward cargo is also arranged at certain .rales, it is not in- 
 C. J. cumbent on the master to take a return cargo from such port of destination ; but if he 
 
 1873 . decides to do so, he must take his return cargo through the agents named, and no other. 
 
 Therefore where the master under such a charter is undecided whether he would or 
 
 March 3. would not take in such return cargo, but at the same time held out reasonable expecta- 
 tion to such agents that he would, and the agents in faith of such acts, " circulated" the 
 vessel, and obtained an offer to ship cargo in her, but the master subsequently changed 
 his mind, and left the port without any return cargo, whereby the efforts of the agents 
 were rendered abortive, 
 
 Held, the agents were not entitled to commission at the rate named in the charter- 
 party. 
 
 Query, Could the agents have sued on a quantum meruit ? 
 
 The facts of this case are fully set out in the judgment, and 
 need no opening statement. 
 
 Our. Adv. Vult. 
 
 On this day judgment was delivered by 
 Sidgreaves, 0. J. This was an action by the owner of the ship, 
 the French barque Tranquebar, against the defendants for $1 ,077.27 
 for inward freight as per charter-party, and other incidental charges, 
 the amount of which, and their liability to pay which, is not dis- 
 puted by the defendants, who have paid the amount claimed into 
 Court, less a sum of $423.25, which they claim to retain by way of 
 set-off for commission due to them on outwards estimated charter 
 at 92J francs. The Tranquebar was chartered at London, through 
 Messrs. Galbraith, Stringer, Pembroke & Co., to Messrs. Wright 
 Brothers and Company, of London, for a voyage to Singapore, and 
 the charter-party contained this clause : " The ship to be consign- 
 " ed to Freighters' Agent at the port of discharge, inwards paying 
 "two per cent, on amount of freight due under this charter-party 
 " to be deducted by charterers from first payment, and outwards 
 "on the usual and customary terms." The Tranquebar arrived at 
 Singapore on Saturday, the 26th October, and was put by the 
 captain into the defendants' hands, they being the consignees— 
 the freighters agents under the charter-party. On the follow- 
 ing Monday, they " circulated" the ship in the usual way, and 
 amongst other offers of charter had one from the firm of Behn 
 Meyer and Company, for a voyage from Bangkok to Marseilles at 
 92i francs "all round," that is, inside and outside the bar at 
 Bangkok. The captain, however, did not avail himself of this 
 offer ; he entered into negotiations with Messrs. Hinnekindt, who 
 could have procured him a charter at 90 and 95 francs from 
 Bangkok to Marseilles, but finding that in addition t * the fi™ 
 per cent, which the Messrs. Hinnekindt expected, the defendants 
 also claimed five per cent commission on the same transaction he 
 refused to conclude the charter, and finally left Singapore "seek! 
 " ing," without having concluded any charter at Singlpo^thiwh 
 the defendants or anybody else. The question isf then-are the 
 defendants-havmg done all that they could to procure a charter 
 and havmg, as they allege, offered the captain P thc Test charter 
 
STRAITS SETTLEMENTS. 361 
 
 procurable at Singapore, entitled to charge five per cent, commis- Sidobeaves, 
 sion, as though the charter had actually been accepted ? Some 1873 ' 
 
 evidence was given of the custom in Singapore regarding transac- 
 
 tions of this sort, and it was stated to amount to this, that where Fbtjchard 
 merchants have been employed to "circulate" a ship, they are de gc ^ IDT 
 facto established as agents to procure a charter-party, and that & 0ESi 
 - they are entitled to charge their commission whether the charter- 
 party is effected through them or anybody else. It will be 
 observed, however, that in this case the defendants wish to push 
 the custom one step further, and to establish that where they have 
 done all that they could, and have offered the best charter pro- 
 curable, the captain is either bound to accept it, or if not, they 
 are entitled' to charge their commission upon it all the same as 
 if he had. If they are not entitled to claim a full commission 
 upon this eventuality happening, but Can only sue upon a quantum 
 meruit for work and services actually performed, then they cannot 
 set-off the value of such work and services in this action, inas- 
 much as the very nature of a set-off necessitates an amount 
 already ascertained before hand. 
 
 It is quite clear, however, that whatever may have been the 
 understanding or agreement between the charterers and the 
 defendants as to the employment of the defendants, for the purpose 
 of obtaining a return cargo, such understanding or agreement 
 was not binding on the plaintiff, and it was quite optional on the 
 part of the master whether he accepted a charter in Singapore or 
 not, although if he had done so, it "seems that the defendants would 
 have been entitled to procure it. In Gross v. Pagliano [6 L. E. 
 Ex. p. 9,] an almost precisely similar question arose. The action 
 was on a charter-party made between the plaintiffs, the charterers, 
 and the defendant, the master of the ship, whereby, it was among 
 other things, agreed that, for a certain freight payable by the 
 plaintiffs to the defendant; the ship should proceed with a cargo 
 to San Francisco, and should be then and there consigned to the 
 agents of the plaintiffs, the defendant paying commission " inward 
 " and outward," — the breach alleged was that the defendant did 
 not consign the ship to the plaintiffs agents, and did not pay 
 commission inward and outward. The captain, it appeared, had 
 actually entered into a previous contract to bring home a cargo of 
 goods from Selina Cruz in Mexico to Hamburg, and after discharg- 
 ing the plaintiff's cargo at San Francisco, to which port the ship 
 had proceeded in accordance with the charter-party made with 
 the plaintiffs, she sailed in ballast for Selina Cruz, where the cargo 
 was obtained. The plaintiffs' agents were not employed in obtain- 
 ing the cargo, they had offered the captain a cargo for Europe, but 
 he being bound under his earlier contract, declined to accept it. 
 
 It was held by C. B. Kelly, Bramwell B., and Pigott, B. 
 that the provisions in the charter-party did not impose on the 
 defendant an obligation to accept a homeward cargo for the 
 United Kingdom from the plaintiffs' agents at San Francisco, 
 but merely bound him, if he had determined upon taking a return 
 cargo on board there, to employ them to procure and ship it. In 
 this case, however, the defendants claim to retain from the 
 
362 
 
 CIVIL CASES. 
 
 SlDOREAVES, 
 
 C.J. 
 1873. 
 
 Frtjchard 
 
 V. 
 
 Schmidt 
 
 & OKS. 
 
 account owing from them, to the plaintiffs, the amount of their 
 commission, as though the offer made by them, had been accepted, 
 and this although the Captain has declined it, and has sailed off 
 to procure a cargo elsewhere. In Bead v. Rami, [10 B.& C. 438], 
 the law upon this subject is stated as follows : — 
 
 " A ship-broker who has procured a bargain for the hire of a 
 " vessel is, by the usage in the City of London, entitled to receive 
 "from the owner a certain commission on the amount of freight, 
 "if the contract is perfected, but not otherwise." 
 
 " Held, that where a broker had negotiated the hire of a vessel, 
 " and a memorandum for a charter was signed by the parties, but 
 " the bargain afterwards went off, and the ship was not employed, 
 " the broker could not maintain an action against the ship-owner to 
 " recover the commission or a compensation for his workand labour." 
 
 In Broad v. Thomas, [7 Bing. p.99,] the defendant had employed 
 the plaintiff to procure a charter for the ship Betsy. The plaintiff 
 found one Emden who was willing to charter the Betsy, and 
 signed a paper containing the terms upon which the ship was to 
 be hired ; but before the charter-party could be drawn up, the 
 defendant refused to go on in the business, whereupon the plaintiff 
 commenced this action to obtain payment for his trouble. At the 
 trial before Tindal, C. J., witnesses were called on both sides to 
 shew what was the mercantile usage in such a case. Their testi- 
 mony was conflicting ; but the more respectable stated that the 
 broker was entitled to no remuneration in such a case. The Chief 
 Justice thought that the defendant had a right to exercise an 
 option whether he would engage with the proposed charterer or 
 not, and that as no charter-party was signed, there was no 
 contract to bind the defendant. He left it, however, to the jury 
 to determine whether there was any, and what, custom in such a 
 case. A verdict having been found for the defendant, a new trial 
 was moved for, on the ground that whatever the custom might be 
 when the contract was broken off, by unavoidable accident, the 
 broker ought to be remunerated for his trouble where the business 
 was broken off by the defendant himself without assigning any 
 reasonable cause ; and that, therefore, the jury should have been 
 directed to enquire whether the defendant's refusal to proceed in 
 the charter-party with Emden had been reasonable or un- 
 reasonable. In Hammond v. Holiday, it was laid down* by Best, 
 C. J., that if the duties of a sworn broker be executed in such a 
 manner that no benefit results from them, he is not entitled to 
 recover either his commission or even a compensation for his 
 trouble. Here, the plaintiff procured for the defendant the benefit 
 of a contract with the charterer, for Emden was bound to pro- 
 ceed if the defendant required him. 
 
 'Tindal, C. J. " If the question were again to go before a 
 " jury, it must be left to them on the custom. The rate of pay- 
 " ment in contracts of this kind which are brought to a conclusion, 
 " seems to be higher than would be requisite, as an equivalent for 
 "the trouble of conducting the particular transaction. It is 
 "probably on that ground that the custom has arisen to. allow 
 " nothing when the contract is incomplete." 
 
STRAITS SETTLEMENTS. 363 
 
 It is quite clear, therefore, that the defendants cannot in this Sidobeavbb, 
 
 case claim legally to set off the commission to which they claim ^j 
 
 to be entitled, and it is also clear that even if they were entitled — 
 
 to sue upon a quantum meruit, they could not mate that a valid Petohabd 
 
 set-off against the plaintiff's claim. The verdict will, therefore, be g^^u,,,, 
 
 for the plaintiffs for the amount claimed. & oks. 
 
 In re VAN SOMEEEN. 
 
 A person under twenty-one years of age, will be permitted to be examined, as Penang. 
 
 to his fitness to be a Solicitor, although he will not be admitted to practice before . 
 
 that age. Hackett, J. 
 
 Query. What, if there be special circumstances which make it beneficial for 1S73. 
 
 him to be admitted before attaining twenty-one ? 
 
 Serrible. The mere fact, that an Ordinance is likely to come into operation, March 14. 
 whereby, he will be kept back for eighteen months, or thereabouts, is not such 
 a special circumstance, as will cause the Court to allow him to be admitted. 
 
 This was motion made on behalf of the above-named peti- 
 tioner, R. G. Van Someren, a solicitor's clerk, for the appointment 
 of examiners, as to his fitness to be admitted to practice, as an 
 Advocate and Solicitor of the Court. The petitioner required, 
 but one day to attain his majority. 
 
 B. Bodyk, in support of the motion, contended that, as Ordi- 
 nance 5 of 1873, was about to be passed, requiring: 5 years' service 
 before admission, and as the petitioner had only been 3 years 
 under articles, and a little over a year without, he would, if the 
 Ordinance came into force, be thrown back for eighteen months, 
 or thereabouts, thereby inflicting great hardship on him, as he 
 would, within twenty-four hours, attain his majority. This, he 
 submitted, was a special circumstance, which would cause the 
 Court to allow the petitioner to be examined and admitted — though 
 at present the admission was not asked for — as he was not yet 
 twenty-one ; and cited Ex-parte Tebbs, 9 Dowl, P. C. 151 ; and 
 Ex-parte Bousfield, Id. 616, s. c. 10, L. J. Q. B., [JV. #.] 361. 
 
 E. C. Woods, jr., on behalf of the Bar, opposed the motion, 
 as the petitioner was not of age, and contended that this being 
 the case, no order appointing examiners even could be made, 
 and cited Ex-parte Steele, 33. L. J. Q. B., [N. S.] 326. [a] 
 
 Hackett, J. held that the petitioner could be examined, but 
 not admitted, [except under special circumstances, as in the two 
 exceptional cases cited], before he had attained the age of 
 twenty-one. The mere fact of an Ordinance coming into opera- 
 tion, did not, however, amount to such a special circumstance, 
 as would cause the Court to break through its Eules, as the 
 petitioner was still young, and the fact of his waiting eighteen 
 months was not such a very great hardship, as he could then 
 apply for admission. The motion for examination, was accord- 
 ingly granted, but on turning to the petition and finding it to be 
 one for admission and enrolment, his Lordship refused the appli- 
 cation, but allowed the petition to be amended, and the motion 
 
 renewed. 
 
 Order accordingly, 
 [a] See Ex-$arU Cragg, 6 Dowl., 256. 
 
364 CIVIL OASES. 
 
 OH YEAN HENG v. EASTEEN EXTENSION AUSTEAL- 
 ASIAN AND CHINA TELEGEAPH CO., LD. 
 
 Penang. -A- 11 advertisement in English, published in a local newspaper, is no notice to a 
 
 ' Chinaman who is unable to read that language. 
 
 Hackett J. So where the plaintiff, a Chinaman, after such advertisement, received rent for his 
 1874/ ' premises, of persons who he still then believed to be those he had rented his premises 
 
 ' to, and such receipt of rent was, after certain breaches, of covenant, 
 
 March 28. Held, that there was no waiver of the breaches, as there was no notice of the change, 
 
 and the advertisement did not, under the circumstances, amount to notice. 
 
 A covenant not to assign is a covenant that runs with the land, and the assignee 
 of the reversion may take advantage of any breach of it. 
 
 Where a Company takes a lease of certain premises and covenants not to assign, 
 and subsequently, during the term, is amalgamated with another Company upon which 
 the original Company is dissolved, and the newly formed Company, by the same 
 manager and clerks, occupy the premises, 
 Held, a breach of the covenant. 
 
 B. by deed, leased certain premises to the B. I. E. Telegraph Company for 
 a term of 21 years, which lease contained covenant by the Company not to 
 assign without the consent of B. or his assigns. The B. I. E. Company, in 
 conjunction with the C. S. Telegraph Company and B. A. Telegraph Company, 
 amalgamated, and formed themselves into a new Company, called the E. E. A. & C. 
 Telegraph Company [defendants]. On the amalgamation, the three first companies 
 were dissolved and wound up, but the premises were continued to be occupied by the 
 same manager and clerks of the original company, who had become the servants of the 
 newly formed Company. B. assigned the reversion in the lease and premises to the 
 plaintiff, who, as soon as he found the change of companies, sued the defendants, the 
 newly formed Company, in ejectment. 
 
 Held, he was entitled to recover the premises as assignee of the reversion. 
 ) The Statute 32 Hen. VIII., c. 34, extends to this Colony. 
 
 Ejectment for certain premises in Pitt Street. It appeared 
 that a Mr. Bishop, the former owner of the premises in question, 
 by deed, dated 7th October, 1871, had leased them to the British 
 India Extension Telegraph Company, for a period of 21 years : 
 that in 1873, the British India Company had amalgamated with 
 the China Submarine and the British Australasian Telegraph 
 Companies, and formed themselves into a new Company called the 
 Eastern Extension Australasian and China Telegraph Company, 
 [the defendants] and under that name the defendants had 
 occupied, and were occupying the premises aforesaid : that as soon 
 as the amalgamation was effected, the fact was published in the 
 Pmang Gazette, but in the English language only. On the amal- 
 gamation being effected, the three original companies were dis- 
 solved and wound up, at least, in so far as their business in the 
 East, was concerned. Bishop, on -the 6th April, 1873, sold and 
 conveyed the reversion in the premises to the plaintiff. The 
 plaintiff thereafter collected rents of the defendants, but was not 
 aware that there had been a change, and in fact, his bills to the 
 last, were headed against the original British India Extension 
 Company. The plaintiff was unable to read English, and swore 
 he had no knowledge of the change until receipt on February, 
 1874, of a letter from a Mr. Gott, the Superintendent of the 
 defendant s Company, intimating the fact of amalgamation to the 
 plaintiff. The plaintiff, from that time, refused to receive any 
 further rent from the defendants, and brought this action to 
 recover the premises, by reason of the breach of the covenant to 
 assign. The premises continued to be occupied by the same Super- 
 intendent and Clerks of the British India Extension Company 
 
STRAITS SETTLEMENTS. 365 
 
 though, since the amalgamation, they did so as servants of the HAO f^ T ' J " 
 
 newly formed Company, the defendants. The pleadings not suffi- ' 
 
 ciently and distinctly raising the points at issue, the above facts Oh Yean 
 were shortly agreed on by the parties, and the following questions Heno 
 were raised for the determination of the Court. eastebn 
 
 1st. — Was there a breach of the covenant in the lease, not e. a. & c. 
 to assign without license ? Teleqbaph 
 
 2nd.— If so, had the plaintiff a right to sue? Co -' Ld ' 
 
 3rd. — If he had, was ejectment the proper form of action ? 
 
 4th. — If there was no breach of covenant, were the defen- 
 dants, independently thereof, wrongfully in possession ? 
 
 5th. — Had the plaintiff waived the forfeiture by acceptance 
 of rent after publication of the amalgamation in the Pinang Gazette. 
 
 Bond, for plaintiff. The most convenient question to argue 
 in the first place, is the second. Has the plaintiff the right to 
 sue ? At common law, no doubt, the plaintiff could not bring this c 
 action, but the Statute 32, Henry VIII, c. 34, gives to the Grantees A 
 and Assignees of the reversion, the same rights, as the original / \ 
 lessor, and the Court will have no hesitation in holding that that J j 
 Statute applies to the colony, as, it is an enabling and relieving ' f 
 Statute. It has been settled, however, that the right of re-entry, 
 and consequently of bringing ejectment, is confined to breaches 
 of covenants running with the land, and the question, therefore, 
 here is, is the covenant not to assign without license, a covenant 
 which runs with the land. Formerly some doubts existed on this 
 point, and indeed, it is laid down in text books, Cole on Ejectment 
 and Woodfa.ll on Landlord and Tenant that such a covenant is 
 purely collateral, and does not run with the land. However, all 
 doubts, on the point have been put at rest by the decision of the 
 Court of Queen's Bench, in the case of Williams v. Earle, L. U. 
 2, Q. B. p. 739. In this case, after a very full argument in which 
 the authorities in support of such a covenant being merely colla- 
 teral were cited, it was held by the Court, [Blackburn & Quain, 
 J. J.,] that a covenant not to assign without license is a 
 covenant touching the thing demised, and therefore, a cove- 
 nant running with the land. This case was cited in sup- 
 port of the same position in the argument in Varley v. Goppard, 
 L. E. 7, C. P. 505. This argument extends to the third question, 
 as to the proper mode of suing ; the grantee of the reversion 
 having, according to the Statute, and the decision in Williams v. 
 Earle, the right of bringing ejectment, instead of suing for 
 breach of covenant. 
 
 Secondly, there has been a clear breach of covenant not to 
 assign, under-let, or part with the possession of the premises with- 
 out license. 
 
 The defendants, a Company of whose existence the plaintiff 
 was ignorant, until February, are found in possession of the 
 premises. It is true, that we are not in a position to prove an 
 actual assignment to them, but the Court will presume that they 
 have come into possession, as assignees or under-tenants. Doe d. 
 Himdly v. Rickerbey, 5 Esp. 4 ; Doe d. Batten v. Murless, 
 6 M. & S. 110; Doe d. Morris v. Williams, 6 B. & C. 41. As to 
 
366 OltIL OASES. 
 
 Hackett, J. w hat constitutes a breach of such a covenant, there are several 
 
 1874 cases which, though not altogether similar to the present, yet 
 
 Oh~Yean bear some analogy to it. In Doe d. Dinghy v. Sales, 1 M. & S. 
 
 Hekg 397 it was held that, where the defendant without license, entered 
 
 "• into partnership, with a person to whom he granted the use of the 
 
 fT&c back-chamber, and some other parts of the premises exclusively, 
 
 Teleotaph and of the rest jointly with the defendant, that the lessor was 
 Co., Ld. entitled to re-enter. ,,„,,„„, , . -, 
 
 In Gremslade v. Tapscott, 1 C. M. & R. 55, the lease contained 
 a stipulation, that for every one or less quantity of land, which 
 the lessee should allow to be occupied by any other person without 
 the consent of the landlord, he should pay an additional rent. 
 The lessee, without such consent, allowed some persons to use 
 small portions of the land for the purpose of raising a potato 
 crop. It was held, that this was a breach of the covenant, though 
 it was proved to be the custom of the country, and the lessee had 
 undertaken in the lease to occupy the land according to such 
 custom. In Doe d. Ambler v. Woodbridge, 9 B. & C. 376, letting 
 some rooms, which a covenant forbade the use of, except by the 
 lessee, and his family, was held a breach of such a covenant. 
 In Holland^ v. Cole, 1 H. & C. 67, an assignment to trustees for 
 the benefit of the lessee's creditors was held a forfeiture 
 of the lease, a covenant not to assign without license being con- 
 tained in it. In Tatem v. Chaplin, 1 H. Bl. 133, breach of a cove- 
 nant to reside on the premises, was held a forfeiture of the lease. 
 In Varley v* Coppard, L. R. 7 C. P. 505, Willes, J., held that, the 
 assignment by one partner to another of his share in the joint- 
 tenancy, was a breach of such a covenant, and remarked that 
 it was unnecessary for him to decide, whether, the mere taking 
 in of a partner would constitute such a breach. The case of 
 Deo d. Norfolk v. Hawke, 2 East 481, is also an authority in our 
 favour. There are two cases where marriage, which is clearly form- 
 ing a partnership, has been held to be an indirect breach ef cove- 
 nant and to cause a forfeiture. The first Charnley v. Winstanley & 
 wife, 5 East 266, is a very curious case. There B., the wife, had 
 covenanted with A.., before her marriage, to leave some 
 accounts to arbitration, and to abide the award. B. married 
 before the award was made, which was that B. should pay to A. 
 a certain sum ; B. did not pay, and it was held that as B. had 
 by her own act, i.e., marriage, put it out of her power, to perform 
 the award, the covenant to abide the award was broken. In 
 Craven v. Brady, L. R 4, Ch. App. 296, a testator devised real 
 estate to his wife for life, with proviso, "that, if she should 
 "do, make, or execute any deed, matter, or thing, whereby, 
 "she should be deprived of the rents, profits, or the power, 
 "or right to receive, or the control over the same, so that 
 " her receipt alone should be a sufficient discharge for the same, • 
 " her life estate should cease and determine." The wife married 
 again without settlement, and the Lord Chancellor held affirming 
 the decision of the master of the rolls, that, though there was no 
 actual assignment, a breach of the condition had been committed 
 and the life estate was forfeited. It is admitted that the British 
 
STRAITS SETTLEMENTS. 367 
 
 India Extension Telegraph Company, [the original lessee] has Hackett, J. 
 been dissolved, and so most probably have the other two Com- 18 ^ 4 - 
 panies, out of which the present defendant Company, has been ohYean 
 formed. Can it be said then for one moment, that the present Heno 
 Company is the same, as the original lessee. Not only is there _ ^; ebn 
 a change of name, but the operations carried on are different — e. A. & C. 
 there are different directors, a different body of shareholders, Teleobaph 
 different amount of capital. As to the light in which Courts look Co,j Ll5, 
 upon the effect of the dissolution and amalgamation of Companies, 
 Sterling v. Maitland, 5 B. & S. 840, is a very important case. There 
 the United Kingdom Life Assurance Company covenanted with 
 the plaintiff for valuable consideration to appoint him their agent 
 in Glasgow, jointly with one Seton, and, if they displaced Seton 
 from the agency, to pay the plaintiff a certaim sum. Ten years 
 afterwards, the United Company, transferred its business to the 
 North British Mercantile Insurance Company, wound up their 
 affairs, and dissolved themselves, and, on action brought by the 
 plaintiff to recover the covenanted sum, it was held that the 
 transfer, the winding up and dissolution, constituted a displacement 
 of Seton within the meaning of the covenant. Cockburn, C. J., 
 in giving judgement said : " I look on the law to be that, if a party 
 " enters into an arrangement which can only take effect by the 
 " continuance of a certain existing state of circumstances, there is 
 " an implied engagement on his part that he shall do nothing of his 
 " own motion to put an end to that state of circumstances under 
 " which alone the arrangement can be operative. I agree that if 
 " the Company had come to an end by some independent circum- 
 " stance, not created by the defendants themselves, it might very 
 " well be that the covenant would not have the effect contended for ; 
 " but if it is put an end to by their own voluntary act, that is a 
 " breach of covenant for which the plaintiff may sue. The transfer 
 " of business and dissolution of the Company was certainly the act 
 " of the Company itself, so that they have, by their act, put an end 
 " to the state of things under which alone this convenant would 
 " operate." This is a very strong case for the plaintiff, and on the 
 principle enunciated in it, I would contend, that, if the Court will 
 not presume, as I submit, it will, that the defendants are in 
 possession as assignees or under-tenants, the above case will 
 entitle it to hold that they are in as pure trespassers, and there- 
 fore wrongfully in possession independently of the covenant — 
 which would answer the 4th question submitted to the Court. 
 
 It may be said, that the plaintiff is not placed in a worse 
 position by the defendants becoming his tenants, but this consi- 
 deration, I submit, does not affect the question. It is on the 
 ground, that it is impossible to place the parties in the same posi- 
 tion, that Courts of Equity decline to grant relief against a for- 
 feiture for a breach of covenant not to assign without licence. 
 Sauder v. Pope, 12 Ves. 292 ; Hill v. Barclay, 18 Ves. 63. In the 
 latter case, Lord Eldon said : " There is no difference between 
 " covenants thus resting in damages, and another against the 
 " breach, of-which it is admitted, the Court, will not relieve, a cove- 
 " pant not to assign without licence ; upon which, it is clearly 
 
368 CIVIL OASES. 
 
 Hackett, J. « settled, that if an ejectment is brought upon a right of re-entry 
 
 1874 - « reserved, the lesse.e can nave no relief ; he cannot shew that by 
 
 Oh Tean " the assignment the lessor sustains no damage ; that on the con- 
 
 Heng « trary he, the lessee, is a beggar who could not pay the rent, and 
 
 "• " the assignee a solvent tenant, that the lessor is, therefore, in a 
 
 E. A a"& C. " better position, having two persons answerable to him instead of 
 
 Telegraph « one tenant, under the circumstances I have mentioned. The 
 
 Co., Ld. « answer is, that the Court cannot estimate the damage ; the fact, 
 
 " as it is alleged, may be true at the moment ; but the consideration, 
 
 " whether the lessor is to gain or lose by having a tenant put 
 
 " upon him, must run through the whole continuance of the lease ; 
 
 " it is sufficient that the lessor insists upon his covenant, and no 
 
 " one has a right to put him in a different situation." 
 
 The only remaining- question is, has there been a waiver of 
 the forfeiture by the acceptance of rent by the plaintiff, after the 
 publication of the amalgamation in the Pinang Gazette. If the 
 plaintiff had accepted rent, knowing of the amalgamation, the 
 forfeiture would, without doubt, have been waived, but we have 
 the fact admitted, that he has sworn positively, that the first in- 
 timation he had of the amalgamation, was on the 4th February, 
 when he received a memo, from Mr. Gott, requesting his consent 
 to an assignment of the lease. Now the defendant will hardly 
 contend, that a publication in the Pinang Gazette, a paper published 
 in English, which the plaintiff, a Chinese gentleman, does not take 
 in, and could not read, if he did, is a sufficient publication to him, 
 and it is clearly laid down, that acceptance of rent without know- 
 ledge of the breach is no- waiver. Doe d. Sheppard v. Allen, 3 
 Taunton 78, Roe & Gregson v. Harrison, 2 T. R. 425. 
 
 Boss, fpr defendants. The first question raised by the special 
 case for the Court's decision is, has the plaintiff a right to sue ? 
 It is submitted he has not. He is only the assignee of the rever- 
 sion, and as such, can have no right to sue unless it be shown 
 that the covenant not to assign is one which runs with the rever- 
 sion, or, even admitting that it did, that the Statute of 32 Henry 
 VIII. c. 34, applies to the Straits Settlements. That it is not a 
 covenant running with the reversion is laid down in Cole on Eject- 
 ment [ed. 1.857] 405, & 438. Woodfall on Landlord and Tenant, 
 p. 288, is to the same effect. The case of Stephen v. Gopp, 4. Ex. 
 L. R. 20, might, at first sight, seem to be an authority against the 
 contention of the defendants ; but there it was expressly held 
 that a covenant not to kill game was not a covenant which the 
 assignee of the reversion could take advantage of. The case 
 relied on by the plaintiff, William v. Earle, 3 L. R. Q. R 739, in 
 support of their contention that a covenant not to assign, was a 
 covenant that the assignee of the reversion could take advantage 
 of, is, it is submitted, no authority for the present case. It is 
 distinguishable m several important points. The decision there 
 was to the effect that a covenant not to assign, ran with the land'. 
 The plaintiff, however, was not the assignee of the reversion he 
 was the original lessor, but the 'defendant was the assignee of the 
 lessee, so that case is exactly the opposite of the present case, 
 and the action was not in ejectment, but brought to recover 
 
STRAITS SETTLEMENTS. 
 
 369 
 
 Oh Yban 
 
 Hbno 
 
 v. 
 
 Eastern 
 
 E. A. & C. 
 
 damages for breach of the covenant. There is not the slightest Hackett, J. 
 allusion made to the right of the assignee of the reversion to sue m ' k 
 for breach of such a covenant. Woodfall, in his work, oq 
 landlord and tenant "already referred to, lays it down in most 
 express terms that the assignee of the reversion has no such right. 
 In other parts of this work, the author cites the case of Williams 
 v. Earle, yet it is a strange fact, that in that portion of his work, Telegraph 
 which refers to the rights of the assignee of the reversion, he Co- ' I/D - 
 does not cite or say a word about the case of WilUams v. Earle. 
 It can only be inferred, that he considered it no authority on the 
 question of the rights of the assignee of the reversion. Besides, 
 the case of Williams v. Earle, was referred to in the later case of 
 West v. Bobb, 4, Q. B. L. R. 634, and in a note to this case, it is 
 stated, that Mr. Justice Blackburn, one of the very judges, who 
 had decided Williams v. Earle, protested against the judgment in 
 that case, being taken to have decided more than that the covenant 
 ran with the land and bound the assigns, assignsheiug mentioned ; 
 that fact being expressly pointed out in the judgment of Black- 
 burn, J. This case is, therefore, only an authority to the extent 
 that the lessor can sue an assignee of the lessee for a breach of 
 the covenant not to assign. It is no authority for the converse. 
 Even, admitting, for the sake of argument, that it were, the plain- 
 tiff cannot succeed. The assignee of the reversion has no right 
 to sue at commqn law, for, it was considered to amount to 
 ^maintenance, Spencer's Case, 1 Smith L. C. 51, and the Statute of 
 32 Henry VIII. c. 34, does not apply to the Straits Settlements. 
 It only applies to leases made in England of lands situate there. 
 
 Secondly. — Has there been a breach of the covenant not to 
 assign ? It has not been proved that the British Indian Exten- 
 sion Company executed a deed assigning their interest in the 
 lease. To constitute such a breach of the covenant not to assign, 
 so as to enable the lessor to maintain an action for it, the assign- 
 ment must be by deed. This is required by the Statute of 8 & 9 
 Vict. c. 106, a Statute which has been held to apply to the Straits. 
 
 [Hackett, J. I remember the question arose before me, and I 
 held the contrary.] [a] 
 
 However, it is for the plaintiff to prove the assignment to 
 the defendants by the British Indian Extension Company, Cole, 
 p. 438. There has been no proof of an assignment nor of an 
 underlease, and the only question that can arise, is, has there 
 been a parting with the possession. The plaintiff contends that 
 although, there has been no proof of an assignment, yet, the 
 Court will consider, the defendants are in possession by a legal 
 title, and assume an assignment ; and in support of his contention 
 cited, the case of Doe d. Batten v. Murless, 6 M. & S. 110, which is 
 a very different case from the presenb. It was a case of eject- 
 ment by the vendee of a term sold under a fi. fa, and it was ob- 
 jected on the part of the defendant, that there was no sufficient 
 evidence to shew, that the term was legally vested in him. It 
 appeared by a recital in one of the conveyances to which the 
 
 [a] See Mahomed Joonoos v. Saiboo, ante p. 242, 
 
870 
 
 CIVIL OASES. 
 
 Haoeett, J, defendant was party, that he was the legal personal representa- 
 
 1874. 
 
 Oh Yean 
 
 Heng 
 
 v, 
 
 Eastern 
 
 E. A. & C. 
 
 Teleokaph 
 
 Co., Ld. 
 
 tive of his brother, who was administrator to the father, [the 
 person to whom, the term was granted], and Lord Ellenborough, 
 C. J., in his judgment, very properly, says : " whence it may be 
 " presumed, as against him, either that he obtained Letters of 
 " Administration de bonis non to his father, after the brothers 
 " decease, or that he took the term by assignment from his 
 " brother." The case Doe d. Morris v. Williams, 6 B. & C. 41, is 
 also no authority in the present question.. The facts of the two 
 cases differ ; in Doe d.~ Morris v. Williams, the defendant ceased 
 to occupy the premises, and his son-in-law, Wellings, became the 
 occupier, and, from that time, neither paid rent. Notice to quit 
 was given to Wellings. It was objected on behalf of the defend- 
 ant, that he ought to have been served with a notice to quit. 
 Bayley, J., in his judgment says, " In Doe v. Murless, it was con- 
 " sidered, that, when it is proved that A. is a tenant, and that 
 " upon his quitting the premises, B. takes possession, the latter 
 " may be presumed to come in as assignee of A. In this case, 
 " there was no evidence of payment of rent by Wellings to Wil- 
 " liams, or of any other fact tending to rebut that presumption." 
 Here the British Indian Extension Telegraph Company occupied 
 the premises in question, by their clerks and servants, and on their 
 amalgamation with two other companies, and incorporation under 
 the name of the Eastern Extension Australasian and China Tele- 
 graph Company, Limited, the premises continued to be occupied 
 by the same persons. There has, therefore, been no change of 
 tenants either in law or in fact. If this action had been brought 
 against the old Company, and notice to quit had been given to the 
 new Company, it would be a sufficient notice to the old Company, 
 asthey cannot be permitted tosay,atone time, that they are tenants, 
 and at another time that they are not, but as no such question arises 
 here, the case of Doe v. Williams, does not apply. The plaintiffs have 
 not attempted to prove an underlease, as in fact, there was none. 
 The only breach of the covenant, therefore, that they can assign 
 is, that there has been a parting with the possession of the 
 premises. The case of Doe d. Dinghy v. Sales, 1 M. & S. 297, 
 differs from the present in this important particular. It was there 
 held that a person having entered into partnership with another, 
 and having given him the exclusive possession of a certain portion 
 of the premises, and a joint possession with himself of the rest, 
 had committed a breach of a covenant not to assign. Here the 
 defendants, the new Company is made up of the old Company and 
 two others. The old Company is, therefore, a component part of 
 the new Company, the defendants, and has joint possession of 
 the whole of the premises with the two other Companies who go 
 to form the new Company. There has been no giving up of the 
 exclusive possession of any part of the premises to either of the 
 companies with whom the old Company nmalgamated. In the 
 case of \Greenslade v. Tapscott, 1 Cr. M. & Roscoe, " 55, it was clear 
 that the defendant had parted with the possession, and having 
 covenanted not to do so, he was held liable. The case goes no 
 further than that. The case of Holland v. Cole, 1H.&C 67 was 
 
STRAITS SETTLEMENTS. 
 
 371 
 
 1874. 
 
 Oh Yean 
 Heno 
 
 V. 
 
 Eastern 
 B. A. &C. 
 Teleqbaph 
 
 Co., Ld. 
 
 a case under the Bankruptcy Laws, and has no bearing on the Hao 1 ^ t ' ,j 
 present question. The lessee there executed a deed under the 
 192nd section of the English Bankruptcy Act, 1861, whereby he 
 assigned all his property to trustees, for the benefit of his creditors. 
 In the case of Doe v. Laming, 4 Camp. 73, it was held, that taking 
 in a lodger is not a breach of the covenant not to assign. It is a 
 case cited in all the texb books, and has never been overruled. It 
 is also referred to in the notes to Dumpor's case, 1 Sm. L. C. 43. 
 The case of Doe d. Ambler v. Woodbridge, 9 B. & 0. 376, has been 
 cited as an authority against this decision. The only question 
 there, was, whether a receipt of rent after knowledge of the breach 
 was a waiver of the forfeiture, and it was held that it was hot, as 
 the breach was a continuing one. The forfeiture was incurred, by 
 using rooms in a manner prohibited by the lease, and there seems 
 to have been no question upon that point. The covenant was 
 peculiar and particularly stringent, but, it is submitted that, twist 
 the words as one may, it can never be held to be an authority that 
 the taking in of a lodger is a breach of a covenant, not to assign ; 
 especially, as there is an authority in point, which has never been 
 overruled, and which must be, therefore, considered as law. The 
 case of Gharnley v. Winstanley, 5 East 266, was referred to, to 
 shew that marriage would operate as a forfeiture in such a 
 covenant ; but this would be in direct opposition to the law as 
 laid down in an old anonymous case reported in Moore's Keports, 
 and cited in the notes to Dumpor's case. It is, in fact, no authority 
 on the present question; no inference, even arguing by analogy, 
 can be drawn from it, which bears in the least on the subject in 
 dispute. It was an action in covenant wherein A. declared against 
 B., and her husband, for that B. before her intermarriage cove- 
 nanted with A. to have certain accounts in difference between 
 them, left to arbitration and to abide and perform the award pro- 
 vided it were made during their lives, and A. protesting that B. 
 had not before her intermarriage performed her part of the cove- 
 nant averred that, after making the indenture and the intermarriage 
 of the defendants, the ai'bitrator awarded B. to pay a certain sum, 
 and then alleged a breach for non-payment of such sum. After a 
 verdict for the plaintiff on non est factum being pleaded, it was 
 moved in arrest of judgment, that the marriage of-B. after enter- 
 ing into the covenant to submit to arbitration and before any 
 award made, was a revocation of the arbitrator's authority, and 
 consequently, there could be no breach of an award which he had 
 no authority to make. It was held that although the plaintiff 
 could not recover upon the breach assigned for non-payment of the 
 sum awarded, because the marriage was a countermand to the autho- 
 rity of the arbitrator, yet, as by the marriage itself, B. had by her 
 own act put it out of her power to perform the award, the covenant 
 to abide the award was broken, and the rule was discharged ; 
 Lord Ellenborough, C. J. in his judgment saying that " notwith- 
 " standing, the plaintiff had stated his real grievances informally, 
 " yet if, upon the whole, it appear that the defendant Frances [B] 
 " has committed a breach of covenant, the judgment cannot be 
 " arrested, upon the principle as laid down in Le Bret v. Papillon, 
 
S72 OIYIL OASES. 
 
 Hackett, J. » 4 East 502— that, however, defective the pleadings, and however 
 1874. K imperfect the prayer of judgment on either side may be, we are 
 Oh"ye~an " bound ex-officio to give such a judgment as, upon the whole 
 Heng "record, the law requires us to do." In Craven v. Brady, 4 Ch. 
 "■ Ap. L. E. 296, it was held that marriage operated as a forfeiture; 
 
 E E TT c but fc he facts of that case were peculiar. The wife had altogether 
 Telegraph put it out of her power to comply with the provisions of the will, 
 Co., Ld. an d the Lord Chancellor [Hatherley] says it would have been no 
 forfeiture if she had made a settlement. We do not dispute the 
 authority of the cases of Sanders v. Pope, 12 Vesey 292, and Hill 
 v. Barclay, 18 Vesey, 63, they were both cases in equity, and have 
 no application to the present case. The case of Varley v. Coppard, 
 7 L. R. C. P., is, if anything, in our favour. It is a case the very 
 reverse of the present. There the one partner in going out of the 
 firm assigned over, all his interest to the other, which was held to 
 be a breach, but Mr. Justice Willes specially reserved the point 
 whether the taking in of a partner, which is, we submit, the ques- 
 tion in the present case, was or was not a breach. This shows that 
 he draws some distinction between the cases. 
 
 On the whole, as regards this point the old Company being a 
 component part of the new one, there has been no parting with 
 the possession ; there is a joint holding of the premises by the old 
 Company, and the others under the name of the new Company, and 
 there has been therefore, it is submitted, no breach of the covenant. 
 As regards the third point the contention of the plaintiff is 
 inconsistent with his argument on the first: It is first said the 
 defendants must be presumed to be rightfully in possession, and 
 secondly, that they are in wrongfully, and on this point the case 
 of Sterling v. Maitland, 5 Best & Smith, 840, has been cited, but the 
 case, in fact, has no application to the present one. In that case 
 the United Kingdom Insurance Company dissolve and merged 
 itself in the North British Insurance Company, but here the Bri- 
 tish Indian Extension Company did not dissolve itself. It is in 
 existence at the present time. The three companies, of which the 
 new Company has been made up, were all distinct Companies each 
 in existence at the time of amalgamation, and on amalgamation 
 became the Eastern Extension Australasian and China Telegraph 
 Company which, till then, had no existence ; whereas, in the case 
 was a distinct Company cited the North British Company, in exist- 
 ence at the time, the other dissolved. The old Company, the 
 British Indian Extension Company, the lessee, thus formed a 
 component part of the new Company. 
 
 [Hackett, J. Does not the new Company form a new body 
 altogether ?] 
 
 No. It is an analogous case to the taking in of a part- 
 ner. 
 
 [Hackett, J. There is a great difference between a private 
 partnership and a Company. Shares in a public Company may be 
 bought in the market, whereas in the case of a partnership, no one 
 can be a partner without the consent of all the other partners ; 
 you are, I think, bound to make out that the two companies the 
 British Indian Extension, and the Eastern Extension Company, 
 
STRAITS SETTLEMENTS. 373 
 
 are the same Company, or that the present case is the same as the Hac 1 ^ t ' J ' 
 taking in of a partner.] . 
 
 It is the same Company with two other companies added as Oh Yean 
 partners and a change of name. Whether the taking in of a Heng 
 partner merely, would or would not be a breach of the covenant eastern 
 not to assign, has never been decided. Willes, J. refers to such a e. A. & C. 
 case, but gives no opinion on it in Varley v. Goppard. It is sub- Telegbaph 
 mitted that it would be no breach, and Willes, J. having raised the Co '' D ' 
 point, shews that in his opinion, at least, as already stated, there 
 was some distinction between this and the case of an outgoing 
 partner assigning his interest to the continuing partner. 
 
 [Hackett, J. Suppose the lessor leased the premises to a 
 solvent Company. The question of rent would be important to 
 the landlord, and suppose the directors of the Company make a 
 bargain with an insolvent Company with a different name, — would 
 you contend it would be no forfeiture ?] 
 
 No. As the Companies are distinct. 
 
 Cases like the present must have arisen in England, yet, why 
 can no direct authority on the point be found ? It is simply 
 because counsel must have been decidedly of opinion that it was 
 no forfeiture, and advised their clients not to bring their actions. 
 In the case of Doe d. Norfolk v. Hawke, 2 East 481, the lessees had 
 left the premises altogether and those in, were wrongfully in pos- 
 session, but here the defendants are not wrongfully in possession 
 as the two Companies amalgamated with the British Indian, with 
 whom the lease was made. This distinction must always be borne 
 in mind also, that companies hold possession by their servants, so 
 that the reason given for this covenant, that the lessor is entitled 
 to have only such person as he chooses to lease to in possession, 
 does not apply to the case of a Company. 
 
 The law, as regards the question of waiver, as stated by the 
 plaintiff's counsel is, we admit correct. It is essential that the 
 lessor should have knowledge of the breach at the time he receives 
 the rent, Goodright v. Davies, Cowp. 803, 1. Sm. L. C. 36. The 
 plaintiff has said he was not aware of the amalgamation at the 
 time he received the rent, but the defendants acted fairly and 
 openly, and published the fact of the amalgamation in the local 
 papers and the Government Gazette. The question then is, is the 
 publishing the notice in the papers, sufficient notice. 
 
 [Hackett, J. The notice was published in English, and I think 
 it would be very hard to hold such a publication notice to the 
 oriental population of this place.} 
 
 It would be constructive notice. 
 
 Lastly — Is the action brought in proper form ? It is an action 
 of ejectment, and the plaintiff can only maintain it under the 
 proviso for re-entry. The covenant not to assign is a negative 
 covenant, namely, not to do a certain thing, and it is submitted 
 that the proviso for re-entry, applies only to affirmative covenants. 
 Provisos for re-entry, as they defeat the estate, must be construed 
 strictly. In Doe d. Spenser v. Goodwvn, 4. M. & S. 265, the proviso 
 was on breach of covenants " hereinafter contained," there were 
 no covenants following the proviso, and it was held that the word 
 
374. CIVIL CASES. 
 
 Hackett, J. " hereinafter," could not be read as "hereinbefore" or rejected, 
 
 1874. an( j the defendant had judgment. To the same effect is Doe d. 
 
 OhyTan Abdy v - Stevens, 3 B. & A. 299. It was there held that a proviso 
 
 Hens in a lease giving a power of re-entry if the lessee " shall do or 
 
 v - " cause to be done any act, matter, or thing contrary to and in 
 
 E^IT C. " breach of any of the covenants," does not apply to a breach of 
 
 Tblegkaps the covenant to repair, the omission to repair not being an act done 
 
 Co,, Ld. Trithin the meaning of the proviso. 
 
 In a late case, Phillips v. Bridge, 9 L. E. C. P. 48, the plain- 
 tiffs were also held strictly to the wording of the proviso. These 
 cases shew the construction the Court will put on such provisos ; 
 they will always construe them strictly. In West v. Dobb, 5 L. E. 
 Q. B. Ex. Ch. 46, the words of the covenant and proviso are very 
 similar to those in the present case. It was no doubt left only in 
 the form of a query, whether such a proviso applied to negative as 
 well as to affirmative covenants, but on a perusal of the case, it will 
 be noticed that, although two of the judges [Kelly C. B. & Chan- 
 nell B.] with the caution generally shown by the Bench, preferred 
 to base their decision upon the ground, that there had been no 
 breach of the covenant ; yet, they express a strong opinion in favour 
 of the defendants' contention. If that contention be correct, and 
 arguing by analogy, it is submitted that it is, then, the covenant 
 alleged to be broken, being a negative one, does not come within 
 the operation of the proviso for re-entry, and the plaintiff cannot 
 maintain ejectment, but only an action for damages, should the 
 Court be of opinion, that there has been a breach of the covenant 
 not to assign. It is submitted, therefore, that on all the questions 
 raised, there should be judgment for the defendant. 
 
 Bond in reply. — As to the right to sue and the proper mode 
 of suing, William v. Earle having decided that a covenant not to 
 assign, runs with the land, the only question is, does the Statute 
 Henry VIII. c. 34, apply to the Straits Settlements. There is 
 every reason that it should, and none, that it should not. Being 
 an enabling Statute, it applies here just as the Statute 3 & 4 
 Anne, c.9 which makes promissory notes negotiable, and as to the 
 application of which here, no doubt, has ever been raised. 
 
 That the Court will persume that the defendants are in 
 possession as assignees of the lessees, in addition to the cases 
 already _ cited, the case of Doe d. Hemmings v. Dumford, 2 Cr. & 
 J. 667, is a very strong authority. This was an ejectment for a 
 forfeiture under a covenant to repair, and it was argued for the 
 defendant that no sufficient evidence of privity of estate was given 
 to render the defendant liable under the covenant of the lease as 
 assignee. Bayley B., however, in his judgment said :— 
 
 " I consider that there was sufficient to shew a privity between 
 " the defendant and the lessor, and that the defendant was in 
 " under the lease. The lease was produced, and was at once ad- 
 mitted by the defendant's counsel. The lease came out of the 
 custody of the lessor of the plaintiff, and was executed by the 
 original tenant, and the admission by the defendant shews that 
 he was cognizant of it. The defendant was in possession of the 
 premises, and it turns out that he was in the habit of paying the 
 
STRAITS SETTLEMENTS. 
 
 375 
 
 " rent reserved by the lease. I am of opinion that there were 
 " circumstances which made out a prima facie case of privity." 
 On the point at issue, this case is almost entirely on all fours with 
 the present. With respect to what is a breach of covenant not 
 to assign, the defendants rely on the case of Doe v. Laming, 4 Camp 
 73, where Lord Ellenborough held that taking in a lodger was 
 no breach — and they state that that case has never been 
 overruled. It is true, that it has never been directly overruled, 
 but very strong doubts were cast upon it by the full Court in the 
 case of Greenslade v. Tapscott already cited, and the decision can- 
 not now be looked on, as a guiding precedent. We admit the con- 
 tention of the defendants that provisos for re-entry are generally 
 construed strictly, and we admit also the correctness of the law 
 in the cases cited by the learned Counsel. It is sufficient to say 
 that they are not at all analogoiis to the present case. As to the 
 obiter dicta of Kelly, C. B. & Channel, B. in West v. Dobb, these 
 learned judges seem to have indulged in an excess of astuteness, 
 and with all respect to them, it is submitted, that their suggestion 
 is contrary, not only to common sense but to every principle of 
 law, — and that the distinction attempted to be drawn by them 
 between positive and negative covenants, is purely imaginary. The 
 real question in the present case is this — Is the defendant Com- 
 pany the same as the British Indian Extension Telegraph Company, 
 the original lessee ? Now the course of proceeding when Companies 
 amalagamate, is this — the Amalgamating Companies dissolve them- 
 selves, and are wound up — and out of their ashes, is formed a new 
 Company altogether. So far as the British Indian Company is 
 concerned, this course has been adopted — for one of the facts 
 agreed upon is its dissolution, and there can be no doubt that the 
 other two companies are also defunct. We find then an entirely 
 new Company in possession of our premises — and we must take it 
 that they are in, either as assignees of the British Indian Company, 
 or that the latter has abandoned the premises, and that the Eastern 
 Company finding them vacant, has quietly taken possession of 
 them. In the first of these alternatives, there has been a clear 
 breach of covenant according to the authorities cited; in the 
 second, there has been as clearly an illegal and unwarranted tres- 
 pass committed by the defendants. 
 
 Our. Adv. Vult. 
 
 Hackett, J. 
 1874. 
 
 Oh Yean 
 
 Heno 
 
 v. 
 
 Eabtebn 
 
 E. A. & G. 
 
 Telegraph 
 
 Co., Ld. 
 
 April 2. Hackett, J. This is an action of ejectment brought by the 
 assignee of the reversion to recover possession of certain premises 
 leased by Mr. Bishop to the British Indian Extension Telegraph 
 Co., " Limited." The lease contains a covenant on the part of the 
 lessees not to assign, under-let, or part with the possession of the 
 premises, or any part thereof without the consent of the lessor — 
 and the main questions left for my decision, are, whether there has 
 been a breach of this covenant by the amalgamation of the original 
 lessees' Company, with the present defendant Company,if so, whether 
 the plaintiff has the legal right to sue, and if I should hold, that 
 there has been a forfeiture 3 whether there has been a waiver of 
 
376 CIVIL CASES. 
 
 Hackett, J. such forfeiture. On the last point, I am clear, that there has been 
 
 1874 ' - no waiver ; an advertisement of the amalgamation was no doubt, 
 
 Oh Yean published in the Pinang Gazette ; but it would be going too far to 
 
 Heno hold this notice to a Chinese gentleman unable to read English. 
 
 F *• But, further, the defendant has distinctly sworn that he was un- 
 
 E. A. &C. aware of the amalgamation, till the receipt of Gott's letter in 
 
 Telegbaph February, and the receipts for rent, until that time were made out 
 
 Co., Ld. i n t ne name of the original lessee Company. Mr. Gott, has also 
 
 acknowledged that he gave no notice of the amalgamation to the 
 
 plaintiff, and since February, no rent has been received by the 
 
 plaintiff. 
 
 There being no waiver of the forfeiture, has the plaintiff as 
 assignee of the reversion, the legal right to bring this action ? 
 This greatly depends on whether the covenant not to assign with- 
 out licence, runs with the land or not. Both Cole and Woodfall, 
 state that the assignee of the lessor, has no right to sue for such 
 a breach of covenant ; and, cite Pennant's case to shew that the 
 covenant is merely collateral. I have read Pennant's case ; and I 
 do not think, it warrants the conclusion arrived at by the learned 
 authors ; and I must confess, that I have been unable to discover 
 any direct authority upon which they have based their opinion. 
 One of the authorities cited in support of their contention, is Lucas 
 v. How; but no decision was given in that case. The case of 
 Williams v. Earle, however, seems to support the contention 
 of the plaintiff, it having been held there, that a covenant not- to 
 assign without licence, touches the thing demised, and is there- 
 fore, a covenant running with the land. 
 
 _ Mr. Boss has argued that the Statute 32, Henry VIII., c. 34, 
 which gives the same rights to the assignees of the reversion, as 
 the lessor has, does not apply to the Straits ; but as it is an 
 enabling Statute, I am of opinion, that it does. I think, therefore, 
 on the strength of Williams v. Earle, taken together with the 
 Statute of Henry VIII., that the plaintiff has a right to bring this 
 action. & 
 
 _ Has there then been a breach of covenant on the part of the 
 original lessee Company ? 
 
 This would seem to be a case primce impressiones as neither of 
 the learned counsel, who have argued this case very ably, has been 
 able to cite any case exactly in point. The nearest approach to 
 it, is the .case > of Jarley v. Coppard ; but even then, Willes, J., left 
 the point undecided, whether the taking in of a partner, would be 
 a breach of the covenant. Here, three companies, the British In- 
 dian, China Submarine, and British Australian, carrying on busi- 
 ness m the same bmlding, I believe, in London but with Afferent 
 Boards of Directors ; and I presume, each with a different deed of 
 settlement, amalgamate. I wish I had before me the deed exe- 
 cuted on amalgamation; but as it has not been produced I must 
 take the case as it stands. The lease was made Knly one The 
 British Indian] o the , three amalgamating companies A case 
 
 t?wTco C n^^^^ 
 
 animation. That is, the £ TsZ^mSZT^o 
 
STRAITS SETTLEMENTS. 
 
 377 
 
 other cases. Tasher v. Shepherd [30 L. J., Ex. 207], and 
 Mclntyrev. Belcher, [32 L. J., C. P. 254], also shew how the 
 law regards covenants, entered into by companies and partnerships. 
 In the present case, a fact to my mind of great importance is 
 admitted, viz., that the British Indian Company, the original 
 lessee Company, has been dissolved, and though it does not 
 appear on the record or in evidence, that the other two com- 
 panies have also been dissolved, still it is a natural presump- 
 tion, that for the purposes of this amalgamation, they have 
 also dissolved themselves. Now, the defendants to successfully 
 withstand this action, must shew that the defendants are 
 the same Company as the original lessee Company. Mr. Ross has 
 contended they are, but I cannot agree with him. The fact of the 
 dissolution of the British Indian Company, seems to me, to be quite 
 irreconcileable with such a contention, and when we find that 
 three amalgamated Companies take its place with a new and different 
 board of directors, a new and enlarged body of shareholders, and a 
 new and distinct object in view from that of the British Indian 
 Company, it seems to me, I must say, a contradiction in terms to 
 assert that the new Company is the same as the old one. It is in 
 point of fact an entirely distinct Company. 
 
 The new Company is therefore in possession either with the 
 consent of the original lessee Company, in which case there would 
 be a direct breach of the covenant or they are in, without such con- 
 sent, in which case they are trespassers. 
 
 On these grounds there must be judgment for the plaintiffs. 
 
 Hackett, J. 
 
 1874. 
 
 Oh Yean 
 
 Heng 
 
 v. 
 
 Eastern 
 
 E. A. & C. 
 
 Telegraph 
 
 Co., Ld. 
 
 ATTORNEY-GENERAL v. THIRPOOREE SOONDEREE. 
 
 A gift to a person for the benefit of a temple is a good charitable gift and one the 
 Court will carry out. 
 
 A gift of money to an idol for the benefit of a temple is void as being an 
 absurdity and not a charity. 
 
 This was an information by the Attorney-General to establish 
 a charity and payment of certain legacies to charitable purposes. 
 The subject matters of the suit were [1] as regards certain lands 
 conveyed to Jogmohon Tacoor, deceased, for the benefit of the 
 Hindoo Temple, and [2] the sum of $200 bequeathed by the 
 said Jogmohon Tacoor by his Will to an idol in the temple named 
 " Sree Dhar." The defendant was the administratrix of the said 
 deceased. 
 
 Van Someren for defendant. The grants and the bequest do 
 not constitute a charity, and if not a charity, the gifts are void. 
 A gift to a temple is not a charity and is void. Lewin on Trusts, 
 p. 85, Sir W. Grant in Morice v. Bishop of Durham, 10 Ves. 536, 
 explains what charity is, and the Statute 43 Eliz. c. 4, defines 
 what are charities, also, Tudor on Charitable Trusts, 2nd ed., pp. 
 4-12 [Ed. 1862]. In Thornton v. Wilson, 34 L. J. [N. S.] ch. 667, 
 V. C. Kindersley said : These are not gifts to the ministers person- 
 ally but to ministers for the time being. He does not say however 
 
 Penang. 
 
 POED, J. 
 
 1874. 
 July 23. 
 
378 
 
 CIVIL CASES. 
 
 FOBD, J. 
 
 1874. 
 
 Attorney 
 Genekal 
 
 SOONDEBEE. 
 
 it is not a charity, but the inference is, it must be, or the 
 Mortmain Act would not apply. The cases of Ghoa Choon Neoh v. 
 Spottiswoode [a] and Advocate-General v. Bum Moker, &c, Perry's 
 Oriental Cases, p. 526, are strong authorities to shew this is not 
 a charity as it is not for the benefit of the community. The gift 
 
 sn™n°°™ B of $ 200 to the ido1 " Sree Dnar " b J which is to be purchased a 
 paddy field for the benefit of the said temple is also void. If the 
 gift is to the idol, gift is to nothing which is an absurdity, and tends 
 to a perpetuity — but if to the idol in trust for the temple, it is 
 equally absurd, as it can't be a trustee. 
 
 Bond for plaintiff. This is a valid charity. The construction 
 of the grants is, thatthe gift is to the priest and his successors for 
 the benefit of the temple. Thornton v. Wilson is an authority 
 that this is a charity, or the gift could not have been held void 
 under the Statute of Mortmain. The thing is to find out- if the 
 grantor's object was charitable, and if so, and the charity is 
 sufficiently definite, the Court will uphold it, as the Statute 
 against superstitious uses does not apply here. Miller v. Farmer, 
 1 Merivale 55 ; Attorney-General v. Bishop of Chester, 1 Brown 444. 
 The Court will direct a proper conveyance to be made to the 
 persons it nominates as trustees. Attorney-General v. Tunnard, 1 
 Ambler 353. Story's Equity Jurisprudence, §§. 1151-1152. The 
 gift of $200 to the idol is also charitable. Some allowance 
 must be made for the ignorance of natives who are not able to 
 express themselves clearly — this is a mere ignorant way of ex- 
 pressing a gift to a person in trust for the temple. The idol 
 moreover was an object in the temple, and, according, to Hoare v. 
 Osborn, 1 L. E. Eq. 585, is good. 
 
 Ford, J., held the grants for the benefit of the temple to 
 be good charitable gifts, and made an order for appointment of 
 new trustees and the usual decree in such cases. The gift to the 
 temple he held invalid as being an absurdity and not a charity. 
 
 Penang. 
 
 Ford, J. 
 1874. 
 
 August 4. 
 
 VERAPAH CHETTY v. LIM SWEE CHOE & ANOR. 
 
 The plaintiff having, according to the usual Chettys' Insurance, undertaken the 
 Insurance of ihe defendants' Brig "Woodbine" for certain voyages within a given 
 period, afterwards in consideration of an extra rate of premium for three months paid him 
 by the defendants, granted the defendants license to deviate from the voyage originally 
 insured against. The license to deviate was in writing, but beyond mentioning that 
 the voyage was to be a single voyage to the particular port and back, and that three 
 months extra premium had been received, made no further mention of time. It stated 
 that the risk was to be the same as that mentioned in the original policy The 
 vessel sailed to Eangoon and on her way back was lost, by perils insured against : but 
 at the time she was lost, the three months for which extra premium had been paid 
 had exp red, but the original- time mentioned in the policy was still unexpired. The 
 defendants had not paid extra premium for the period between the termination of the 
 three months and the loss of the vessel, ™ ul ulB 
 
 BcU, the license did not limit the voyage to three monllis-lhat " risk " included 
 the original time, and the vessel being lost within the original period by perils insured 
 against, the same was covered by the Policy. pw">u, ny perns insured 
 
 l«77 hi %r S R naC «w 0n ^- P0l !f y ?. f Assurance clated 8Ul Jarmary 
 1874, on the Brig "Woodbine." The document sued on — « »- 
 
 was an 
 
 [a] ante p. 216, 
 
STRAITS SETTLEMENTS. 379 
 
 ordinary printed Chettys' Insurance, the blanks in which were Forv, J. 
 filled up in writing. The Policy was for four voyages from 1874, 
 Penang to Moulmein and back, with liberty on any two of such Verapah 
 voyages to call at Singapore. The time limited by the Policy was Chettt 
 ten months from its date — the premium being close on 18 per v - 
 
 cent. In April following, the defendants being desirous that the Choe&anor. 
 vessel should proceed to Eangoon instead, in consideration of 
 their paying the plaintiff three months' premium on the sum in- 
 sured, at the rate of 36 per cent, per annum, obtained from the 
 plaintiff a Tamil paper to the following effect : — 
 
 " In the year 1874, on the 4th day of April, this receipt is written and 
 " given unto Earn Ohoo Poh, a Chinaman, and Lim Ohee Choo, a rice shop- 
 " keeper, to wit :" 
 
 "That on the 8th day of January, of the current year, a Bond in iny 
 " favor was granted by both of you, relative to the Insurance of a British 
 " vessel called the " Woodbine," the conditions of which express not the said 
 " vessel is allowed to proceed to Rangoon and back, and whereas for the pur- 
 " pose of her now proceeding to the said port, I have received from you three 
 " months' interest at the rate of three per cent, per hundred per mensem, viz., 
 " $18, as extra premium not referred to in the Bond, and which said sum of 
 " dollars eighteen, I acknowledge to have received from you, and that the 
 " said vessel may have one trip either to proceed to Rangoon or Singapore 
 " and return to this place, and that the risk declared in the said Bond shall 
 " be borne by me." 
 
 (Signed) VERAPAH CHETTT 
 [in Tamil Characters.] 
 
 In pursuance of this license to deviate, the " Woodbine" in 
 that same month of April, sailed for Eangoon; and thereafter 
 left Eangoon on her return voyage to Penang, when she was lost 
 by perils insured against. At the time of her loss, however, she 
 had exceeded three months from the date of the license, though it 
 was still within the teD months mentioned in the original Policy. 
 The defendants refused to pay, maintaining such vessel was covered 
 by the Policy. 
 
 Clarice [van Someren with him] for plaintiff, contended that 
 the license was intended to cover only one voyage, which was to 
 be completed within the three months, and the ten months men- 
 tioned in the Policy had nothing to do with the voyage to Ean- 
 goon— three months to Eangoon and back was the ordinary time. 
 
 Ross, for defendants, contended that as the license was granted 
 four months after the original Policy, it could not be confined to 
 three months. The license was not limited by time but by voyage 
 only, and the plaintiff had by receiving an extra rate of premium, 
 received full consideration for the license. That the " risk" men- 
 tioned in the license, meant the ten months as well. 
 
 Clarke, in reply contended that if it was not intended to con- 
 fine the voyage to three months, there would have been no men- 
 tion of three months' premium, which certainly was inserted. The 
 words relating to three months would have no meaning if defend- 
 ants' construction was correct. Every word on the license should 
 
380 
 
 CIVIL CASUS. 
 
 Ford, J. be construed and given full effect. " Eisk" in the license meant 
 
 187* - s i m ply the kind of perils insured against. No extra premium was 
 
 Vekapah paid after the three months. 
 
 Chetty CW. 4tfo. Fwtf. 
 
 Choe&X August 9th. JW, J., ■ held that the voyage to Eangoon was 
 
 CH0E&AN not limited, by the license, to three months; and "risk" m 
 
 the license included the ten months time— that the vessel being 
 
 lost by perils insured against, within ten months, the loss was 
 
 covered by the Policy, and gave judgment for the defendants. 
 
 The plaintiff having obtained leave to appeal against this 
 decision to the Full Court of Appeal, such appeal came on this 
 day [15th June, 1876] to be heard before Sidgreaves, C. J., and 
 Phillippo, J. sitting by consent of Counsel on both sides, as a Full 
 Court of Appeal. . 
 
 Clarke [van Someren with him] for appellant reiterated their 
 former argument. 
 
 Boss, for respondents, contra. 
 
 The judgment of the Court was delivered by 
 
 Sidgreaves, C. J., — the Court holding that whatever was the 
 intention of the parties; the Court was bound only to regard the 
 language they had used ; that the license was not either in terms 
 or by implication limited to three months, and the "risk" men- 
 tioned therein, included the original ten months. The judgment 
 of the Court below was therefore correct and must be affirmed. 
 Judgment Affirmed. Appeal dismissed with costs. 
 
 Penang. 
 
 Fokd, J. 
 
 1874. 
 
 LIM SIM KAY v. FEASEE & Co. 
 
 Defendants contracted to sell plaintiff a certain number of Pillar or Carolus 
 dollars, and the contract was reduced to writing, and was as follows : — " Sold to Lim Sim 
 " Kay 12,000 Carolus, 110 per cent, if sent by bank, at the earliest steamer's arrival. 
 " Chopped dollars not to be included. Signed p.p. Praser and Co., A. M. "Watson," 
 The defendants then, with plaintiff's knowledge and consent, despatched a telegram to 
 November 3. ^ 6 ^ >aa ^- ' n question as follows : " Carolus dollars agreed 10 per cent., 12,000, if without 
 ' "chops, ship "per first steamer." The bank replied same day by telegraph, cannot 
 *' now sell Carolus under twelve. No picking or refusing allowed. Prioe here twelve, 
 "firm. Reply." 
 
 Held, the sending by the bank of the dollars was a condition precedent to the 
 defendants' liability to the plaintiff : that the reply of the bank refusing to allow 
 *' picking or refusing" was a refusal to send the dollars asked for : and the condition 
 precedent had not been fulfilled. 
 
 Held also, that the sending thereafter by the bank to the defendants of same 
 amount of Carolus dollars, partly chopped and party unchopped for a third party, was 
 also not a fulfilment of the condition precedent. 
 
 The facts of this case sufficiently appear from the judgment. 
 
 Thomas, for plaintiff. 
 
 Boss, for defendants. 
 
 Ford, J. This case is one of a numerous class, which, from 
 the imperfect language in which members of the mercantile com- 
 munity often express their more hurried contracts, cause con- 
 siderable difficulty to the Courts who have to put a satisfactory 
 construction upon them. 
 
STRAITS SETTLEMENTS. 881 
 
 The action is brought by one Lim Sim Kay against Messrs. Fobd, j. 
 Fraser & Co., to recover the sum of $600, the alleged loss incurred ^- 
 by him from a breach by the defendants of an agreement which lim Sim Kay 
 is in the following terms : — v. 
 
 Frasee & Co. 
 
 " Sold to Lim Sim Kay, 12,000 Carolua 110 per cent, if sent by bank at 
 " the earliest steamers arrival. Chopped dollars not to be included, 
 
 6/7/74. p.p. FRASER & Oo. 
 
 A. M. "WATSON." 
 
 To a declaration for the breach of this agreement, averring 
 the performance of the condition precedent that the bank should 
 send the dollars, the defendants have pleaded four pleas ; the 
 first, traversing the agreement ; the second, averring in substimce 
 that the defendants were agents only, and had disclosed their 
 principals, the bank; the third, denying the fulfilment of the con- 
 dition precedent, the sending of the dollars by the bank ; and a 
 fourth, denying that the said dollars were sent to the defendants 
 for plaintiff, but were sent by the bank in pursuance of a 
 contract made by the. defendants with another person. The 
 second of these pleas was struck out upon demurrer, no agency 
 appearing on the face of the agreement, and the Court holding, 
 that, except by means of an equitable plea, such as was allowed 
 in Wake, v. Harrop, 6 H. & N. 768, this defence could not be 
 raised; the fourth plea was also disallowed as not raising any 
 legal defence to the action. The Court, at a subsequent stage of 
 the proceedings allowed a further plea to be added by the defend- 
 ant, alleging that at the time of making the agreement in ques- 
 tion, a further, but repugnant parol term had been agreed to be- 
 tween the parties, viz., that the agreement was subject to the 
 acceptance by the bank of the terms of an offer by the defendants. 
 The Chartered Bank of India, China and Australia, carrying on 
 business at Singapore, was shewn to be the bank referred to in 
 the agreement. 
 
 I may at once clear the case of the many difficulties, with which 
 this added plea of a further parol term, seemed fair to surround it, 
 by saying that, on a careful consideration of the evidence, I think 
 it of too conflicting a character to justify the conclusion, that such 
 a term was clearly understood and agreed upon by both parties. I 
 have little, if any doubt, from the evidence which has been given, 
 that the defendants intended such to be a term of the agreement : 
 but that, this was sufficiently and clearly explained to and accepted 
 by the plaintiff, does not seem to me established. Looking at the 
 fact of the denial by the plaintiff and his agent of such a term, 
 and that there were no further witnesses to the conversations, 
 and that these were carried on in a language foreign to both 
 negotiators, I think it most pi'obable, that no very definite ar- 
 rangement was come to on this point. Rejecting, therefore, the 
 case of the defendants under this head also, the Court has now to 
 consider what were the liabilities of- the defendants, on theface^of 
 
382 CIVIL OASES. 
 
 Pohd, J. the contract itself ; and whether they have discharged them. To 
 1874, aid the Court in arriving at a sound construction of this imper- 
 
 Lim Sim Kay f ectly worded document, it becomes necessary to look, at the 
 v. facts' attending the making of it — to obtain such light as it may, 
 
 Fraser&Co. f rom the surrounding circumstances, without permitting them to 
 vary its terms. If the Court should hold that the defendants 
 were, under the events which happened, bound to deliver these 
 dollars, it is not disputed that they are liable for the breach of 
 their agreement. The facts of the case, excluding the tendered evi- 
 dence of agency as inadmissible, and the introduction of the 
 verbal term, as not sufficiently established, may be taken to be 
 shortly as follows. 
 
 The defendants act generally in Penang as the Agents of the 
 Chartered Bank of India, China and Australia, and either in that 
 capacity, or upon some other arrangements between them as to 
 the sharing of the profits of such transactions, are in the habit of 
 procuring from the bank dollars — known in the market as Pillar 
 or Carolus dollars — for sale at a profit in Penang. The cause of 
 this trade is a special demand for such dollars in Acheen. So 
 early as the 2nd of July, the Bank had sent up a general permission 
 to the defendants to sell 12,000 Carolus dollars at 10 per cent, pre- 
 mium, but no sale seems to have been made in pursuance thereof, 
 and it was not until the 6th of the month, that thcS plaintiff saw 
 the defendants [or rather the manager, Mr. Watson, who conducts 
 the business, and who acted for them throughout,] on the subject 
 of purchasing Carolus dollars. The evidence given, clearly estab- 
 lished, that at this lapse of time from the date of this commission, 
 the defendants could not have acted upon it without a further re- 
 ference to the bank. This point indeed, was not contested serious- 
 ly by the plaintiff, and, indeed, has not much practical bear- 
 ing upon the matter, as the terms of the contract subsequently 
 entered into, embodying the condition precedent " if sent by the 
 "bank," shew, in the opinion of the Court, that a reference of some 
 kind was necessarily contemplated by the parties. 
 
 On the morning of the 6th of July, between 10 and 11 a.m., 
 the plaintiff and his agent,. Lim Key Hee, had one or more inter- 
 views with the defendants, and although very different accounts are 
 given of what then took place, with reference to the alleged dis- 
 closure of agency, and the introduction of a further term to the 
 contract, yet, upon that which remains after deducting these sub- 
 jects, there is substantial accord upon all points, but one— im- 
 mediately to be referred to. An agreement was come to, and the 
 defendants sent a telegram in the presence of the plaintiff and his 
 agent to the bank at Singapore. This telegram was read over to 
 the plaintiff, and notwithstanding the strong effort that was 
 made by him and his agent to establish that it was incorrectly 
 translated to them by Mr Watson, I am of opinion, it was proper- 
 ly translated to lnm This telegram was sent at 11-5 a. m, and 
 
 J^T'^^ *S°^, 8h - p perfirst Gainer." Immediately 
 after the sending of this telegram, the plaintiff leaves the defend- 
 ants premises, but before any reply comes from the bank, sends 
 
STRAITS SETTLEMENTS. 383 
 
 his agent, Lim Key Hee, to insist upon the contract verbally made, Pobd, J. 
 being reduced into writing. This is done in that form of con- 1874 - 
 tract, upon which this action is now brought, and the document l™ Sim Kay 
 handed to the plaintiff. At 3-25 p.m., the bank at Singapore v. 
 telegraphs to the defendants "Cannot now sell Carolus under Fbaser&Co. 
 "twelve. No picking or refusing allowed. Price here, twelve, 
 "firm. Eeply." 
 
 This telegram, the defendants shewed the agent, Lim Key 
 Hee, who, however, insisted that the defendants' contract was a 
 binding one, and refused to pay a higher premium, or forego his 
 rights under it. The defendants disclaimed liability, and then sold 
 12,000 Carolus dollars to one Wee Tet Pack, upon the terms con- 
 tained in the bank's last telegram, and this contract was carried 
 out, notwithstanding the receipt by the defendants of a later tele- 
 gram from the bank at 4-45 p. in., cancelling their order to sell at 
 12 per cent., prices having further advanced at Singapore. The 
 bank sent up by steamer, and as I must hold on the evidence by 
 earliest steamer, within the meaning of the terms of the Con- 
 tract with the plaintiff, 12,000 Carolus dollars Mixed — partly 
 chopped, and partly unchopped. They were consigned to the 
 plaintiff, the bank having no knowledge of the purchaser, and were 
 duly handed over, on arrival, by the defendants, to Wee Tet Pack. 
 The plaintiff demanded them but unsuccessfully. 
 
 Upon these facts, and in addition to the several points before 
 referred to, the defendants contended that they were not liable 
 upon their contract on the grounds : [1] — that the contract was 
 an entire one and for unchopped dollars only, and the dollars sent 
 being mixed, they were not the plaintiff's ; [2] — that earliest 
 steamer meant first steamer, and the steamer that brought these 
 dollars was not the first steamer ; [3] — That the terms " if sent by 
 " bank" in mercantile usage, always imply the condition " at the 
 '■' option of the sender." I have already stated my opinion to be 
 that, the evidence doe3 not support the defendants' second conten- 
 tion, it being clear, I think, that, the Medina — the vessel which 
 brought these dollars — might fairly have been the earliest practi- 
 cable steamer for sending them ; and I am also of opinion that 
 such a term as " chopped dollars not to be included," does not 
 imply that entirely in the subject matter of a purchase, which 
 would preclude a purchaser from breaking the bulk of his consign- 
 ment, and excluding from it, such portion as, might not comply 
 with the terms of his order. Tf the bank had sent up these 
 dollars or any other number of Carolus dollars in response to the 
 defendants' telegram, dated at 5 minutes after 11, 1 am clearly of 
 opinion the plaintiff might hare picked therefrom only such as 
 were unchopped. The only evidence to sustain the third line of 
 defence, was that of Mr. Allan, of the firm of Sandilands, Buttery 
 & Co., and, as his view of mercantile usage in this particular, 
 was questioned by Mr. Francis Mackie, of Messrs. Boustead & Co., 
 the Court cannot hold such a custom of interpretation even 
 approximately established. The defendants, are, therefore thrown 
 back upon their third plea for their real defence of this action. Was 
 or was not the condition precedent upon which this contract 
 
384 CIVIL OASES. 
 
 Pobd, J. hangs, fulfilled ? Did the bank send up the dollars, the subject 
 18 ^ 4 - matter of the contract of sale ? Now, in considering this question, 
 
 LimSimKat it i s manifest that the bank had to send some parcel of Carolus 
 v. dollars, and necessarily some parcel concerning which some 
 
 Feaseb&Co. previous communication must have been made by the defendants. 
 The words of this contract could not embrace every parcel of 
 Carolus dollars, which the bank might be pleased to ship to 
 "Penang by first steamer. Dollars sent in pursuance of an order 
 to the bank from another person ; dollars consigned to the defend- 
 ants for other purchasers and over which the defendants had no 
 control ; or dollars consigned to the defendants for other persons 
 of whose purchases from the bank bhey had no previous notice. 
 Such dollars, although clearly " sent by bank," would still by 
 obvious reasoning not be the subject of the contract between this 
 plaintiff, and the defendants. It is, therefore, absolutely necessary 
 from the words of this condition precedent, to imply that some 
 communication was to pass between the defendants and the bank, 
 something to fix the exact subject matter of the contract, the 
 sending or non-sending of which was to render binding or other- 
 wise the contract of sale itself. !Now the only communication we 
 find to have been made between the defendants and the bank, upon 
 the subject of the plaintiff's contract — a communication, it will 
 also be- remembered, ' made in the presence of, and submitted to 
 the plaintiff — was the telegram sent at 11-5 a.m. This was in 
 these terms " Carolus dollars agreed ] per cent, if without chops 
 " ship per first steamer." This telegram seems to the Court, of 
 the utmost importance, as identifying the character of the parcel 
 which the bank was to send ; and the bank's reply and subsequent 
 action of equal importance in determining whether the condition 
 precedent was fulfilled by them or not. If the bank had sent 
 Carolus dollars in reply to this telegram, whether mixed or other- 
 wise and whether at a higher or lesser rate of premium, the Court 
 would have held the defendants bound under the terms of their 
 contract to have handed over all unchopped dollars to the plain- 
 tiff, that is to the number of 12,000. 
 
 Neither the defendants nor the bank, indeed, had a right to 
 impose a term upon the plaintiff, which was not within the four 
 corners of his written agreement, and, so far as the answer to 
 this telegram contains an imposition of a higher rate of premium, 
 or any other term inconsistent with the contract with the plaintiff , 
 its effect can be nothing. But the telegram of the bank contains 
 something more It deals with something, which is within the 
 tour corners of the agreement, viz., the sending of the dollars. To 
 some extent and irrespective of any question of a mercantile 
 usage of certain terms-which usage, I have held, not to have been 
 proved-some option is left to the bank. This is a necessarv 
 imphcation from the language used. The defendants mSS 
 escape liability, because the bank refused to comply w?th every 
 term of their proposal or offer, but if the bank refuse to coS 
 with that which asks them to send the particular parcel of doTlars 
 required, How can the defendants be held responsible? Now the 
 telegram of the defeadants' of 11-5 a.m., sufficiently identifies 
 
STRAITS SETTLEMENTS. 
 
 385 
 
 the character of the Carolus dollars the bank was to send, and they F °^4 
 
 had contracted to sell. These were to be unchopped. " If with- ' 
 
 " out chops" is the description of the telegram and, read with the Lim Sim Kay 
 
 language of the contract itself " chopped dollars not to be includ- ^ & Co 
 
 " ed," this shews, in my opinion, with sufficient clearness, that it 
 
 was a parcel from of 12,000 unchopped dollars or a parcel, from 
 
 which the plaintiffs might pick their 12,000 unchopped dollars, 
 
 which the bank was to send. Now what was the reply of the 
 
 bank to this? It was in, these words : " Cannot now sell Carolus 
 
 " dollars under twelve no picking or refusing allowed." What is this 
 
 but a refusal to send the dollars, the subject of the defendants 
 
 mandate and of this contract ? I am unable to read this 
 
 telegram in any other light. Such a communication as that of 
 
 the telegram of 11-5 a.m., was imperative upon the defendants 
 
 from the terms of the condition precedent itself. The bank in 
 
 reply refuse to obey the mandate, and, I am of opinion, therefore, 
 
 that this condition precedent was not fulfilled, and the defendants 
 
 are thus protected from the liability, otherwise imposed upon them, 
 
 and become entitled to judgment upon their third plea. As this 
 
 litigation, has, however, been brought about, by the imperfect and 
 
 inaccurate character of the language the defendants have used — 
 
 an inaccuracy in which the plaintiff, from his being a foreigner 
 
 and ignorant of the English language, cannot be said to have 
 
 been a participator — the Court will, in this instance, exercise its 
 
 discretion as to costs, and directs that the judgment be for them 
 
 without costs. 
 
 SHAIK MADAE v. JAHAEEAH. 
 
 The Court has no jurisdiction, on its civil side, to entertain a suit for restitution 
 of conjugal rights by Mahomedans. 
 
 This was a suit on the civil side of the Court, by a husband 
 against his wife, for restitution of conjugal rights. The defend- 
 ant pleaded to the jurisdiction. 
 
 The plaintiff appeared in person. 
 
 Van Someren, for defendant. The Court has no jurisdic- 
 tion. The Ecclesiastical side can only be resorted to in cases of 
 Christian marriages. The civil, or plea side, does not recognize 
 a suit for restitution of conjugal rights. The Supreme Court 
 Ordinance V. of 1873, section 44, gives matrimonial jurisdiction, 
 but it is the jurisdiction under the charter of 185.5, and is exactly 
 the same as section 23 of the old Court's Ordinance V. of 1868, 
 which has been held to confer no jurisdiction. Lim Chye Peow v. 
 Wee Boon Teh. [a] 
 
 Ford, J., held, the case was concluded by the authority cited, 
 and allowed the plea, — dismissing the action, but without costs. 
 
 [o] Vide suprd, p. 236. 
 
 Penang. 
 Foed, J. 
 March 5. 
 
386 OIVIL OASES. 
 
 JEMALAH v. MAHOMED ALI AND OES. 
 
 Penang. The Statute 3 & 4, ffm, IV., Cap. 27, is law in this Colony. 
 ' In cases of immoveable property, or any interest therein in the nature of chattels real, 
 
 Ford, J, the limitation imposed by section 1, clause 12, of the Act XIV. of 1859, runs against 
 1875. ' *he administrator of a deceased person, from the date of the death of the intestate, as tf 
 ' there was no interval of time between his death, and the grant of Letters of Adminis- 
 
 April 30. tration. 
 
 Action of ejectment. The facts sufficiently appear in the 
 judgment. 
 
 Duhe, for plaintiff cited Gary v. Stephenson, 2 Salk. 421; 
 Murray v. Bast India Company, 5 B. & Aid. 204 ; Curlews v. Earl 
 of Mornington, 37 L. J. Q. B. N. S. 439; Sturgis v. Baroll, 
 6 H. & N. 120 ; and Burdick v. Garrich, 5 L. E. ch. App. 233. 
 
 Ross, for defendants, cited Act XX. of 1837 and 3 & 4 Wm. 
 IV. Cap. 27, sec. 6. , 
 
 Cur. Adv. Vult. 
 
 June 30. Ford, J. This is an action of ejectment, brought' 
 by the administratrix of one Nayen, for the recovery of certain 
 lands now in the possession of the defendants, and which, upon 
 the view taken by the Court, of the character of certain alleged 
 payments of money by the defendants to the plaintiff, have been 
 adversely in their possession from the date of the death of intes- 
 tate Nayen, who died in the year 1852. The plaintiff, who is the 
 wife of the deceased, did not take out letters of administration to 
 his estate until the year 1873, a period of 21 years. 
 
 The property, in respect of which the action is brought, is 
 freehold in its nature, but under the Indian Act XX. of 1837 is, 
 as far as regards its transmission on the death of the person bene- 
 ficially entitled, to be taken to be of the nature of chattels real. 
 The defendants raise the objection that the Indian Limitation 
 Act XIV. of 1859 runs against the administrator from the death 
 of the intestate, that being the time the cause of action arose, 
 and, if this is so, it is clear that 12 years— the period required by 
 section 12 of the Act from that event— having expired, the plain- 
 tiff has no cause of action. The question is one of considerable 
 importance, it being obvious, that if the contention of the defend- 
 ant is erroneous, the Statute is a mere nullity as against the 
 owners of land or immoveable property taking by descent, there 
 being no hindrance to any of the next of kin, taking out at any 
 time letters of administration, either, original or de bonis rum, and 
 defeating any title acquired by adverse possession. 
 
 flprf,2 e - CI T C S ed v^ ^ S Plaintiff for this intention, are cases 
 decided m the English Courts and have without exception, refer- 
 ence to pure personal estate only-a class of property which, 
 
 %Zl S arad f ' ? r fi elj like1 ^ t0 find its ™J «to the hand 
 of another except under ^character of a trust, and in which case 
 the Statute does not run. The cases are not of a very conclusive 
 character, perhaps the strongest of them, being that of BurdicTv 
 Gamck in which, although the case was determined upon t^ 
 principle of the person pleading the Statute, being in a fiduciary 
 
STRAITS SETTLEMENTS. 38? 
 
 relation to the deceased. Lord Chancellor Hatherly treated the Pomj, J. 
 point as a settled one. The question raised here, could not be 1875 ' 
 raised in England, real estate at once devolving on the heir at the Jbmalah 
 death of his intestate, and a special clause in the Limitation «■ 
 
 Act of 3 & 4 Wm. IV., c. 27, s. 6 ; providing, in cases of impure ^£&™ 
 personalty such as chattels real, that " an administrator claiming 
 "the estate or interest of the deceased person, of whose chattels he 
 "shall be appointed administrator, shall be deemed to claim as if 
 "there had been no interval of time between the death of such 
 "deceased person and the grant of the Letters of Administration." 
 The Court has to consider what the law in this matter is here, 
 where all interests in land or immoveable property, are of the nature 
 of chattels real, for purposes of devolution, there being no similar 
 clause to section 6 of the English Act, in Act XIV. of 1853, which 
 simply enacts that the period of limitation " to suits for the re- 
 " covery of immoveable property or of any interest in immoveable 
 " property, to which no other provision of the Act applies, shall be 
 "the period of 12 years from the time the cause of action arose." I 
 should have had no hesitation, but for the authority of the Eng- 
 lish cases cited, in holding that, even in cases of pure personal 
 estate, the cause of action arose, not at the time where a bene- 
 ficiary actually took out Letters of Administration, but from the 
 time in which he was in a position fco do so. These cases, however, 
 have no application to chattels real, the date of the administrator's 
 title to which, as has been pointed out, is specially provided for, 
 and, in the absence of local authority, I should, upon both the 
 grounds of inconvenience and reason, follow the English law, in 
 respect of this class of cases. But there is a farther equally satis- 
 factory ground upon which the decision of the Court in this case 
 rests, namely, that in its opinion s. 6 of the Act of the 3 and 4 
 Wm. IV., c. 27, is still law in these Settlements. Sir Benson Max- 
 well, one of the ablest and most painstaking judges that have sat 
 in this Court, many years ago, decided . in the case of Regina v. 
 WUlans, [a] that the English law [subject to certain modifications 
 carefully generalized in that judgment] was introduced into these 
 Settlements by the Court Charter of 1826 ; and, I am of opinion, 
 that not only was that so, but that the effect of that Charter and 
 of the rules of law regulating the rights of settlers in ah unoccupied 
 country, was to carry here the benefit of all English laws subse- 
 quently enacted, up to the date, at least, of the creation of a special 
 legislative body having legislative authority in these Settlements. 
 There may, indeed, be a question, as pointed out by Sir Benson 
 Maxwell in the judgment alluded to, whether the Charter of 1855 
 did not carry with it" the law of England, modified, indeed, by subse- 
 quent Indian legislation, up to this latter date. But that question 
 there is no need to determine, for, by a reference to the authorities, 
 I find that the Legislative Council of India was established by an 
 act later than the 3 and 4 Win, IV., c. 27, vis., that of the 3 and 4 
 Wm. IV., c. 85, and no laws were made under it until April of the 
 ensuing year [1834]. I am of opinion, therefore, that the 6th sec- 
 fa] See Magistrates' Appeals, Vol. III. of these Reports, 
 
S88 CIVIL OASES. 
 
 Fobd, J. -fcion f fche English Statute being unrepealed, either directly or by 
 7 ' irresistible inference from subsequent legislation, is still in force 
 
 Jemalah in these Settlements, and that, in the case of immoveable property, 
 »■ or any interest therein, in the nature of chattel real, the limitation 
 
 AlTHes to suits im P osed h J section 12 of Act XIV. of 1859, runs as if there 
 had been " no interval of time between the death of a deceased 
 "person and the grant of Letters of Administration" in other words, 
 runs against the administrator from the date of the death of the 
 intestate. There will be, therefore, a verdict for the defendants in 
 this case, [a] 
 
 LEE AH YIM v. CHEO AH MO & OES. 
 
 A gale of property during a lis pendens is void altogether ; but if the property 
 
 Singapore. wag , prior to the lis pendens, subject to a charge or mortgage, such charge or mort- 
 
 gage is not affected "by the lis pendens. 
 
 Sidobeavbs, jf the purchaser of such property during the lis pendens, redeems the charge 
 
 C J. or mortgage as part of the means by which he pays his purchase money, he will, — 
 
 1876. [although he may have taken a conveyance direct from the party engaged in the 
 
 lis pendens, which conveyance makes no reference to the redemption of the charge or 
 
 January 8. mortgage — and, although he takes no assignment of the charge or mortgage 
 from the original party holding the same] — be entitled to a lien over the property, 
 the subject of the lis pendens, up to the extent he redeemed the prior -charge or 
 mortgage. 
 
 The plaintiff had commenced an action against the defend- 
 ant, Cheo Ah Moh, relative to certain lands at Campong Glam ; 
 while the suit was pending, the defendant sold the land to one 
 Syed Massim. Before the commencement of the action, however, 
 the defendant had mortgaged the land to one Kurpen Chetty, and 
 at the time of the aforesaid sale to Syed Massim, the land was 
 under mortgage to the said Kurpen Chetty. Syed Massim, on 
 purchasing the said land, paid off Kurpen Chetty his mortgage, 
 and then, on paying the balance, [a very small amount] to the 
 defendant, obtained from the defendant direct, a conveyance of 
 the land to himself [Massim] . There was no assignment of the 
 Chetty's mortgage by him to Massim, but the same was con- 
 sidered as satisfied, and cancelled. The plaintiff, on getting judg- 
 ment in the said action, commenced this suit to set aside the sale 
 to Syed Massim as having been affected by the Us pendens, and 
 obtained a decree declaring the said sale bad. On a subsequent 
 day, the attention of the Court, being called to the point, the 
 Court amended this decree, by declaring that Syed Massim had a 
 hen over the property sold for the purchase money advanced by 
 him. On the application of the plaintiff, a re-hearing was granted 
 as touching the subject of this amendment by the Court, and the 
 question whether, under the circumstances, Massim really had 
 such a hen or not, was now argued. 
 
 J. D. Vaughan, for plaintiff. 
 
 Donaldson, for defendants. 
 
 Cur Adv. Vult. 
 
 LimifeLAcfx^ 
 
 * d eSS toIndia - See ***** v - *^ ^h^SSJSSs 
 
STRAITS SETTLEMENTS. 389 
 
 Judgment was now delivered by Sidgbeaves, 
 
 Sidgreaves, C. J. The question involved in the re-hearing of JLg- 
 
 this case was, whether the Court had acted rightly in varying '. 
 
 the original decree, by declaring that Syed Massim, the purchaser Lee Ah Yim 
 of the Campong Malacca property, had a lien upon that property „ v - 
 for the amount of the purchase money paid by him, enabling Ah ^ & 0BS> 
 Moh to pay off the mortgage of Kurpen Chetty. It was contended 
 on behalf of the plaintiff that, inasmuch as the sale to Syed 
 Massim had been declared void, as having taken place after the 
 establishment of a lis pendens, between plaintiff and defendant, 
 he could have no claim whatever upon the land in question, but 
 must look to his vendor Ah Moh for the re-payment of the pur- 
 chase money. A valid charge, however, had been established 
 upon the land by the mortgage to Kurpen Chetty nine months 
 before the commencement of the lis pendens, and if matters had 
 remained as they were, and there had been no sale to Syed 
 Massim, the Court, in making a decree, would have had to make 
 it subject to the lien by Kurpen Chetty upon the land, for 
 the amount of his advance to the mortgagor. Syed Massim 
 undoubtedly purchased the land from Ah Moh after the concur- 
 rence of a lis pendens, and though it was a direct sale by Ah Moh 
 to Syed Massim, it was a sale by Ah Moh, for the avowed pur- 
 pose of clearing off the mortgage, and the mortgagee was paid 
 then and there, the amount of his mortgage debt by Syed Massim 
 before any of the purchase money reached Ah Moh. If the sale 
 is void to all intents and purposes, as contended by the plaintiff, 
 then Kurpen Chetty still remains the mortgagee of the land in 
 question, and has improperly received the amount of his mortgage 
 money, and being liable to refund that to Syed Massim, he would 
 have recourse to his lien upon the land to enable him to do so. 
 Otherwise the plaintiff would be placed by this void sale in a so 
 much better position, that he would obtain the land free altogether 
 from the lien, and that too at Syed Massim's expense. The case 
 of Bellanny v. Sabine, 26 L. J., Ch. [N. S.] 797, to which I referred 
 in my previous judgment, bears me out, however, in considering 
 that the lis pendens does not prevent the lien of Syed Massim 
 from attaching. Syed Massim is bound by the decree, he forfeits 
 his contract and all the benefit arising from it. The doctrine of 
 lis pendens is that after its establishment, neither party to the 
 litigation can alienate the property in dispute so as to affect his 
 opponent. In this case the defendant did attempt to alienate 
 the property in dispute by a sale to Syed Massim, and by the de- 
 cree, that sale is set aside altogether. But Syed Massim went 
 further than the mere contract for the purchase of the land. On 
 the faith of the bond fides of the transaction, he paid the purchase 
 money, and out of that the Chetty was paid the full amount of 
 his claim, and the Chetty transferred the whole of his interest, so 
 far as he could, to Syed Massim. I think, therefore, as I thought 
 before, that Syed Massim acquired at all events the same interest 
 in the land that Kurpen Chetty had. To hold otherwise would 
 ice, as it appears to me, to carry the doctrine of lis pendens fur- 
 ther than it has yet been carried. It is hard enough upon Syed 
 
390 
 
 CIVIL CASES. 
 
 Sidgeaeves, Massim, that he should lose the benefit of his contract altogether, 
 c - £■ without any default on his part, hut it would be very much harder 
 
 " if, in addition to that, he were deprived of possibly the only means 
 
 Lee Ah Yim of obtaining the repayment of the purchase money which he had 
 "• bond fide advanced on the faith of the contract being carried out. 
 
 The decree therefore, as amended will stand. 
 
 Cheo Ah 
 Mo & OBS. 
 
 MUSHEOODIN MERICAN NOORDIN v. SHAIK ETJSOOF. 
 
 Penang. The defendant having received an impertinent message from the plaintiff in 
 
 reference to another matter altogether, in a spirit of resentment^vvrote an anonymous 
 
 Phillippo, letter to the Superintendent of Police, charging the plaintiff with having poisoned his 
 
 J. late wife, and expressing a hope that he would be taken into custody, and the matter 
 
 1876. enquired into. At the trial the defendant could not, and in fact did not attempt 
 
 to, prove the truth of his assertions — he, however, gave evidence of certain facts which 
 
 June 8. were suspicious attending the woman's death, and that reports to the same effect as that 
 
 stated in the letter, were generally circulating in town, concerning the plaintiff. 
 
 Held, the communication was not privileged, and the defendant was liable in 
 damages" for libel. 
 
 This was an action to recover $10,000, for libel : the facts 
 and arguments sufficiently appear in the judgment. 
 
 Clarke, for plaintiff. 
 
 Ross, for defendant. 
 
 September 7. Phillippo, J. In this case the plaintiff sued the 
 defendant to recover damages for libel, on account of an 
 anonymous letter written by the defendant to Mr. Plunket, the 
 Superintendent of Police, which letter is as follows : — 
 
 To 
 
 " The Hon'Me Plunket. 
 " The woman named Bring was poisoned by Chay Mut Din, alias 
 " Mushroodm Mencan Noordin, and carried away her corpse to Pulo Ticoos 
 " at night— why does he not arrested, because he is a rich man's son. This 
 " news was well known in town. No examination was made up to this day 
 " because he is a rich man's son. I hope you will, at once, take bun to custody 
 and enquire it. 
 
 " Tours, 
 
 " A. C." 
 
 There is do doubt that in this letter there was defamatory 
 matter amply to maintain this action unless the letter could be 
 justified in law or unless the circumstances under which it 
 was written were such as to make the communication 
 privileged. If this communication had been made b y the defend- 
 ant m an honest belief that he was performing his duty in making 
 it, and I was convinced that it was fairly made by him in the 
 discharge of what he believed to . be a public duty, I should have 
 no hesitation in holding that it was privileged, even although it 
 contains charges or statements that the defendant is unable to 
 
 E ' S?t in S- ° 0U H rL 1 * - made the sub J" ect of an a ^°n °i 
 libeL But in this case the letter itself displayed, in my opinion a 
 
 certain animus against the plaintiff, especially consfdering the 
 
 relationship of the parti es _it was proved that there h^fbeen 
 
STRAITS SETTLEMENTS. 
 
 391 
 
 NOOKDIN 
 V. 
 
 Shaik En- 
 
 gOOF. 
 
 differences between the plaintiff and defendant— and the defend- Phulippo, 
 ant could not deny, in fact, he admitted that he would not have ^„ 
 
 sent the letter in question to Mr. Plunket, but for his having ' 
 
 received what he considered an impertinent message from the'MusHEooDiN 
 
 plaintiff, and no one who observed the demeanour of the defendant Meeican 
 
 in the witness box could help coming to the conclusion that the 
 
 defendant sent the letter in question on account of feelings of 
 
 resentment towards the plaintiff. I do not consider, therefore, 
 
 that the communication was made by the defendant bond fide or 
 
 fairly in the discharge of what he believed to be a public duty, and 
 
 therefore, he is liable in damages to the plaintiff unless he could 
 
 have justified his having written the letter on the ground of its 
 
 truth. This he has not attempted nor did he raise any such 
 
 defence by plea, but he has endeavoured to shew in reduction of 
 
 damages that there were suspicious circumstances attending the 
 
 death of the woman referred to in the letter, and there were 
 
 reports of the same nature circulating at the same time with 
 
 regard to the conduct of the plaintiff. I think, that the defendant 
 
 has succeeded in shewing that the plaintiff by his own imprudence 
 
 to say the least of it, brought the greater amount of damage which 
 
 he alleges on himself, and that even if the defendant had not 
 
 made the communication he did to the police, the matter was one 
 
 involving suspicion and requiring investigation, and would probably 
 
 have been investigated. Besides this, the charge upon which he 
 
 was arrested was not made upon the letter in question, but upon a 
 
 sworn information made by the defendant to the Superintendent 
 
 of Police, and corroborated to some extent by Mr. Green, the last 
 
 medical attendant of the woman Ering, and {he statements made 
 
 in the Information are not alleged to have been false. At the 
 
 same time, however, the defendant was not justified in bringing so 
 
 serious a charge against the plaintiff as he did in the letter to the 
 
 Superintendent of Police, through irritation caused by what he 
 
 considered an impertinent message, and he must pay the penalty 
 
 for his unjustifiable act, as he is unable to prove the truth of his 
 
 assertions. As the plaintiff brings this action in some degree to 
 
 vindicate his character, I think it right to state that no evidence 
 
 has been brought forward to shew that poison was wilfully 
 
 administered to the woman referred to by any one, much less that 
 
 the plaintiff had anything to do with administering it, and all the 
 
 suspicious circumstances alleged are entirely consistent with his 
 
 innocence of the serious charge made against him. 
 
 The plaintiff claims $10,000 damages. Had he been free 
 from any blame in the matter, and had there been no foundation 
 whatever for the charge made in the letter in question, I should 
 have been disposed under the circumstances to have given more 
 substantial damages than I am now prepared to do. Taking 
 everything into consideration, I consider, that I shall be doing 
 what is right between the parties, and in the interests of the 
 whole community, by assessing the damages to be paid by the 
 defendant to the plaintiff at the sum of $500. 
 
 There will, therefore, be a verdict and judgment for the 
 plaintiff for $500. 
 
392 CIVIL OASES. 
 
 NEOH CHIN TEK & OES. v. TAN BEOW. [a] 
 
 Penang. Part payment does not take a case out of the Statute of Limitations, [Act XIV. 
 
 v — ppo ° fl The ] defendant's absence out of the jurisdiction does not prevent the Statute 
 j-hillip , ru uning, where he might have been served with a summons. . ,,, 
 
 ! «« Semble. The provision in Act XIV. of 1840 regarding part-payment "impliedly 
 
 — repealedby the provisions of the Limitation Act XIV. of 1859, which limits acknowledge 
 November28. ments of Statute barred debts, to acknowledgments m writing. 
 
 Action for goods sold and delivered, money lent and on 
 accounts stated. Plea, the Statute of Limitations," viz., three 
 years. The plaintiffs relied [1] on a part-payment made by 
 defendant within that period ; [2] the defendant's absence beyond 
 the jurisdiction. 
 
 Thomas, for plaintiffs. 
 
 Van Someren for defendant [in forma pauperis.] 
 
 Cur. Adv. Vult. 
 
 December 13. Phillippo, J. In this case the question arose 
 as to whether part-paymenb of a debt would prevent the opera- 
 tion of Indian Aet XIV. of 1850 as to the residue. As I had very 
 great doubts on the subject, I reserved the point in order to consider 
 the Indian cases, and authorities upon the subject. It appears from 
 Thomson's Limitation of Civil suits [page 246], that a provision 
 by which "a part-payment on account of principal or interest" 
 was allowed to give rise to a new period of limitation, was purposely 
 omitted from the Indian Act. 
 
 Since the passing of that Act, part-payment has had no effect 
 in taking a case out of the Statute of Limitations, until the passing 
 of Act 9 of 1871, which, however, is confined to_ certain special 
 cases. The cases upon the subject are colleoted in Broughton's 
 Civil Procedure Code [pages 550 & 567]. Thomson's Limitation 
 of Civil Suits [p. 246 et seq.~\ 
 
 In the case of Rajah Jevara Das v. Richardson, 2 Madras 84, 
 referred to in Thomson [p. 247], Mr. Justice Bittleston made the 
 following observations with which I entirely concur :— 
 
 " The part-payment of a debt has no effect in preventing the operation of 
 Act XIV. of 1859 as to the residue. The prescribed period of limitation 
 begins to run as soon as the debt is payable ; and, obviously, the payment of 
 a part of the debt does not, in any degree, lessen the period during which the 
 balance has been payable. But according to the decisions of the English 
 Courts since the Statute of James, a part-payment has been treated as au 
 acknowledgment of the debt, amounting to, or affording evidence of a new 
 promise to pay the balance. It is upon this ground only that part-payment 
 has, according to English law, the effect of giving a new period of limitation 
 from the date of the part-payment. But section 4, of the Indian Act expressly 
 gives a new period of limitation in the case of a written acknowledgment of a 
 debt, while it is wholly silent as to any such effect arising from part-payment ; 
 though in the Act there are two instances, Clause 13, of Section 1, and 
 Section 6, in which the original period of limitation is made to run from the 
 last payment on account. A reference to the English legislation on the same 
 
 [a] It is more than likely that when this caso was decided, the Court was not 
 aware of the like decision of Maxwell, C. J. at Singapore, in re : Mahomed Qhouse v. 
 lialia, ante p. 214 
 
STRAITS SETTLEMENTS. 
 
 393 
 
 subject strongly supports the view, that the Indian Legislature did not 
 intend that payment of part of a debt should give to the creditor a new period 
 of limitation from that time. Before the statute 9, Geo. IY. C. 14, the de- 
 cisions had established three modes whereby a case might be taken out of the 
 operation of the Statute of Limitations. These were, first, acknowledgment 
 by words, secondly, a promise by words, and thirdly, part-payment, and that 
 Statute since it provided that no acknowledgment or promise by words only 
 should be sufficient for that purpose, and that nothing therein contained 
 should take away the effect of any payment, clearly applied to the first and 
 second methods only, and not to the third, so that when the English Legis- 
 lature took away from parol acknowledgments, the effect which had been 
 given to them by the decisions, they expressly reserved the effect of part- 
 payment. Again, the Statute 3 and 4, Wm. IV. c. 42, s. 5, uses language 
 very similar to that of the 4th section of the Indian Act ; but it expressly 
 puts acknowledgment by writing, and acknowledgment by part-payment on 
 the same footing, and gives a new period of limitation from the one as well as 
 from the other. The Statute 9, Geo. IV. was expressly extended to India by 
 Act XIV. of 1840, and the Indian Legislature must be taken to have had 
 before them, not only that Act, but, also the other Acts of the English Legis- 
 lature upon the same subject, when they were framing the Act XIV. of 1859. 
 With these Acts then before them, they have expressly provided for the 
 single case of an acknowledgment in writing, giving to that the same effect 
 which it has, by the English law, and so doing, have impliedly excluded every 
 other acknowledgment — an acknowledgment by part-payment just as much 
 as an acknowledgment by words only." 
 
 A second objection was taken in this case, namely, that the 
 defendant was admittedly residing out of the jurisdiction of the 
 Court ; but as he might have been served with a summons under 
 section 32 of Ordinance V. of 1868, this objection is not available 
 tinder section 13 of Act XIV. of 1859. 
 
 There must, therefore, in this case be judgment for the 
 defendant. 
 
 Phillippo, 
 J. 
 
 1876. 
 
 Neoh Chin 
 Tek & OES. 
 
 v. 
 Tan Beow. 
 
 CHEAH OON HEAP v. CHOAK KONG WHAT. 
 
 In an action for malicious prosecution, it is no defence to say, that the defend- Penang. 
 
 ant acted on what he was told. Before laying a criminal information, he is bound 
 
 to enquire, and test the information given him ; and if he neglects to do so, he acts Phillips, J. 
 without reasonable and probable cause. 1877. 
 
 This was an action to recover $1,000 damages for a false and 
 malicious charge preferred in the Police Court by defendant 
 against the plaintiff's wife, two female children and servants. 
 
 Plaintiff and defendant resided in the same row of houses in 
 Penang Street, one dwelling only intervening between them. The 
 defendant being annoyed by stones thrown into the Court-yard of 
 his house, his suspicions were aroused against plaintiff's household, 
 and he obtained the assistance of the police to watch the premises. 
 Prom information defendant obtained by this course, he preferred 
 an information before the Magistrate against the female members 
 of plaintiff's family. The defendant failed to prove his case, and 
 the present action resulted. 
 
 Thomas, for plaintiff. 
 
 Ross, for defendant. 
 
 Phillips, J. It is not sufficient defence to say to this Court, 
 I acted upon what I was told. Before laying a Criminal Inf orma- 
 
 July 18. 
 
394 
 
 CIVIL OASES. 
 
 Phillips, J, tion, a person is bound to enquire, and test the information given 
 "Ll him, and if he neglect to do so, he brings his case before the 
 
 ' Magistrate at his own will. In this case had the defendant 
 
 Cheah Oon examined into the evidence, before he commenced proceedings, he 
 
 Heap WO uld have discovered that he could not substantiate the charge. 
 
 Choak Kong I cannot entirely acquit the defendant from having acted malicious- 
 
 What. ly, and without reasonable and probable cause, which has resulted 
 
 in bringing disgrace, in the eyes of his fellow-countrymen, to the 
 
 plaintiff and his family. The defendant has evidently been actuated 
 
 by idle female gossips, and absurd superstitions, which I should 
 
 not have supposed, a Chinese, in defendant's station in life, and a 
 
 long resident of an English Colony, would have given credit to." 
 
 He has declined to express any regret for the injury he has in- 
 flicted on the plaintiff for dragging his family into a discredit- 
 able position before the public, and for this conduct, I must give 
 more than nominal damages. 
 
 Damages $50. [a] 
 
 Penang. 
 
 Wood, J. 
 1877. 
 
 Sept. 26. 
 
 VERNON ALLEN v. MEERA PULLAY & ORS. 
 
 An agreement made between two persons, each of whom was desirous of obtaining 
 a certain contract, that they should not tender against each other ; that one should do 
 so, and if he got it, should hand same over to the other, in consideration of payment of 
 a commission at a certain rate — hut which contained no clause, making it obligatory on 
 that other to make the tender, or restraining him from having a share, directly or 
 indirectly, in the tender of anybody else — is not void for want of mutuality, or as 
 being in restraint of trade. 
 
 An agreement, the stamp of which is cancelled, under Ordinance 8 of 1873 with 
 Only the date, but not also with name or initials, is not *' duly stamped" within the 
 meaning of that Ordinance. 
 
 Held, by the Privy Council, however, [reversing the judgment of the majority of 
 the Pull Court of Appeal of the Colony] that the Collector had power under sec- 
 tion 26 of the Ordinance, to rectify the omission. 
 
 This was an action to recover the sum of $8,420.85, as 
 damages for breach of agreement, and on the common money 
 counts besides costs of suit. • The agreement on which the action 
 was brought, was in the words and figures following : 
 
 ■nr'ii 1 * is this day mutuallv agreed upon between Vernon AUen, of Province 
 " Wellesley, on the one part, and Verepa Pully, [meaning thereby the defend. 
 antMeera Pullay], Shaik Ibram [meaning thereby the defendant Shaik 
 Ibrahim] and Hajee Matt Salay, [meaning thereby the defendant Hajee 
 Mahomed Salleh] on the other part ; that should Vernon Allen obtain the 
 "contract for supplying the Dutch at Acheen through Messrs. Katz Brothers 
 oi Fenang, that he is to hand over the contract to the second party in this 
 agreement, [as above-named] and that they, the second party, are to pay to 
 Vernon Allen, the first party, a commission, on all payments for supplies, 
 at the rate of two-and-a-half per cent. Should the second party, in this 
 agreement or any one of them get the above contract from the above or any 
 one else they, the second party, are to pay to Vernon Allen the sumof tw^ 
 and-a-half per cent, commission on all payments for suppHes or further 
 should they or any one of the parties i/ttis agreement Tppiy anytW 
 whatever for the Dutch at Acheen, they or any one of them agree to W to 
 Vernon AUen a commission of two-and-a-half per cent. i/all Ly and 
 everything, they may supply, Vei-non AUen also agreeing to nandovei to 
 them, the second party any contract for suppHes he may m any wav obtain 
 they paying ham according to the forementioned terms of WiiTagTjement 
 [aj See NelUgan y. Wemyss $ anor., 13th July, 1883, infri. 
 
STRAITS SETTLEMENTS. 395 
 
 " In witness hereof, we have hereunto fixed our mark or signatures in the Wood, J. 
 " presence of 1877. 
 
 [Signed] " MICHAEL JOSEPH SCULLY. Allen 
 [ „ ] "AHAMAD BINABDULLA, Meeea'pul- 
 
 LAY & OBS. 
 
 m Arabic characters. 
 
 [ „ ] " VERNON ALLEN. 
 
 " MEERA PTJLLAT, his marlc. 
 [ „ , ] " KANA SHAIK IBRAHIM, 
 m Tamil characters. 
 
 [ „ ] " HAJEE MAHOMED SALLEH, 
 in Arabic characters. 
 
 " The tenth day of August, 1875." 
 
 It bore a stamp of 50 cents., which was cancelled only with 
 the date. At the trial, the plaintiff tendered the agreement in 
 evidence. 
 
 Van Someren, for the defendants, objected to its admission on 
 the ground that the agreement was not duly stamped. He relied 
 on section 25 of the Stamp Ordinance 8 of 1873, and section 12, 
 para. 2, and contended that the agreement in question being 
 cancelled by the date alone being written on it, was insufficient, as 
 the stamp should hare been cancelled by the plaintiff, [as the 
 person first signing it] writing on or across it, his name or initials. 
 
 Ross, for the plaintiff contended that the agreement was, at all 
 events, capable of being produced in evidence, after being duly 
 stamped, and a penalty paid under section 26. 
 
 , Wood, J. I think that the agreement is not duly stamped, 
 because it was, although stamped vvith a stamp of sufficient 
 amount, not sufficiently cancelled, by writing the date only ; but 
 I think that under section 26 of the Act, it can be stamped by the 
 Collector, if satisfied that it was not intended to evade the law, 
 for I consider that it is not " duly stamped" — duly stamping 
 meaning, in an instrument of this kind, stamping with a stamp of 
 sufficient amount, and duly cancelling such stamp as pointed out 
 by the section. 
 
 The Court then adjourned for the day. On the following 
 morning the agreement was again tendered in evidence, and it 
 appeared that, in the interval, the plaintiff had had a stamp penalty 
 of f 1, together with a new 50 cents stamp affixed to the agree- 
 ment, and these stamps cancelled by the Collector of Stamps with 
 his name and date. • 
 
 Van Someren again objected to its admissibility. The Court 
 overruled the objection. The case proceeded, and on the conclusion 
 of the plaintiff's case, 
 
396 CIVIL CASES. 
 
 Wood, J. Van Someren contended that the agreement was void for two 
 
 18l?7, reasons. 1st., There was no mutuality. The contract was binding 
 
 Allen on the defendants to pay 2£ per cent., but not on plaintiff, to per- 
 
 v. form his part of the contract. Lees v. Whitecombe, -5 Bing. 34, 
 
 Mkeea Pul- SyJces v. Dixon, 9 A. & B. 693, Smith on Contracts, p. 119, Ghitty 
 
 lay & oes. Qn Q on i rac f /S} p_ 13 e t sea m> 2nd., the agreement was in restraint of 
 
 trade. Broom's Commentaries, p. 363 ; Young v. Timmins, 1 Cr. 
 
 and Jervis 33. 
 
 Evidence for the defence was then gone into. On the con- 
 clusion of this evidence, on 
 
 2nd October. Wood, J. To the argument of Mr. Van 
 Someren that the contract is void, for want of mutuality and in 
 restraint of trade, I hold that there is mutuality, and that it is 
 not in restraint of trade within the meaning of the cases. Chitly 
 on Contracts, pp. 13, 14, & 616. I hold that the judgment 
 must be against the defendants. 
 
 The defendants thereafter obtained a rule, calling on the 
 plaintiff to shew cause why an appeal should not be allowed. 
 
 Boss, shewed cause. 
 
 Van Someren, in support of Rule. 
 
 Cur. Adv. Vult. 
 
 7th January, 1878. Wood, J. In this case, arule was obtained, 
 calling on the plaintiff, to shew cause why an appeal should not be 
 allowed from the ruling of the Judge, sitting at Penang, to the 
 Supreme Court of the Straits Settlements sitting as a Court of 
 Appeal. 
 
 The action was brought by the plaintiff against the defendants 
 on the Plea Side of the Supreme Court to recover damages for 
 breach of an alleged agreement, whereby, it was contended, that 
 defendants had promised to pay to the plaintiff a certain commis- 
 sion, in the event of their obtaining from the Dutch Government, a 
 contract for the supply of beef cattle. 
 
 After hearing the case, I decided that judgment must be for 
 the plaintiff, and awarded damages to the amount of $6,279131. 
 Several points of law arose on the trial, and questions had previ- 
 ously arisen on demurrer, which were argued before Mr. Justice 
 Phillips. After the trial, Mr. Van Someren for the defendants, 
 obtained a Rule calling upon the plaintiff to shew cause why an 
 appeal should not be allowed from the judgment given herein on 
 the ground, 1st., of material evidence being improperly received, 
 2nd., of such judgment being erroneous in point of law. On the 
 rule coming on for argument, Mr. Ross, the Counsel for the 
 plaintiff, shewed cause. 
 
 With respect to the points of law raised at the trial so much 
 has been already said, that it is needless now to repeat it and it 
 may be sufficient for me to say that nothing has passed in argu- 
 ment which, in any way, alters my view as expressed at the trial 
 nor, indeed, am I now desired by the Counsel on either side to dweli 
 upon these points any further : and as these points appear to me 
 to be such as are fairly arguable, and not by. any means frivolous 
 
STRAITS SETTLEMENTS. 897 
 
 or trifling, the defendants have, in my- judgment, almost as of right Wood, J. 
 the privilege of appeal, and I should, as I think, greatly misap- lsn - 
 prehend my duties, did I not freely grant to them on these Allen 
 grounds, so far as in me lies, the right to appeal. But, independ- *. 
 
 ently of these grounds it was contended, on behalf of the plaintiff, Meee ^ P^l- 
 that it would he impossible for the Judge to grant the rule as LAT 0BS ' 
 asked for, if he should be of opinion that there was in existence, 
 no such Court as the Court of Appeal of the Straits Settlements. 
 On this point Mr. Eoss contended as follows: — 
 
 Before the time of the passing of Ordinance 5 of 1873, two 
 separate jurisdictions existed in the Straits Settlements, with two 
 judges, one for each jurisdiction — oneof these judges was the Chief- 
 Justice of the Straits Settlements, the other the Judge of Pen an g, 
 each had his own Court, and they could not, by law, sit together. 
 
 Ordinance 5 of 1873, for the 1st time constitutes a Supreme 
 Court of the Straits Settlements. 
 
 Section 2 constitutes the Supreme Court, which it is declared 
 shall " consist of and be holden, by and before the Judge to be 
 " called the Chief -Justice of the Straits Settlements, a Judge to be 
 " called the Judge of Penang, a Senior Puisne Judge and a Junior 
 " Puisne Judge." 
 
 Section 3 declares that it shall "consist of 2 divisions, one to 
 " be held at Singapore and Malacca and one at Penang." 
 
 Section 8 defines the presiding judges of each division. 
 
 Section 21 provides that writs, &c, are to be tested in the 
 name of the judge presiding over the division of the Court where 
 the process is issued. 
 
 Section 83 constitutes the Court of Appeal, and it is there 
 provided: "That the Supreme Court shall be a Court of Appeal 
 " with jurisdiction to hear and determine appeals in such matters, 
 
 " tried before any of the Judges of the said Court 
 
 " as may be prescribed by law." 
 
 By Section 84 " Such Court of Appeal shall be constituted as 
 " follows : — 
 
 " 1st. — A Pull Court of Appeal to consist of all the four 
 " Judges or of not fewer than three Judges, and to be presided 
 " over by the Senior Judge present." 
 
 " 2nd. — A divisional Court of Appeal to consist of the pre- 
 " siding Judge and Puisne Judge at the Settlement where held." 
 
 By section 85, appeals in all matters heard or tried before 
 either of the presiding Judges, shall ordinarily be heard before a 
 Pull Court of Appeal. 
 
 By section 86. The full Court of Appeal shall assemble for 
 the hearing, &c, of appeals once every year at Singapore, and once 
 every year at Penang, at such times as the presiding judges may 
 appoint, and special Pull Courts of Appeal may be held at any Set- 
 tlement by order of the presiding j udges, whenever occasion may 
 arise for the' same. 
 
 Sections 89, 90, 91 and 92, which relate to divisional Courts 
 of Appeal, clearly contemplate divisions and presiding judges, 
 while section 93 which relates to magistrates' appeals, orders them 
 to be heard before presiding judges. 
 
398 CIVIL OASES. 
 
 Wood, J, After tie passing of this Ordinance No. 17 of 1876 was passed 
 
 1877 ' to amend Ordinance 5 of 1873. By section 2 of this Ordinance, 
 
 — The Supreme Court is reconstituted. It is provided that " the 
 
 L r EN " Supreme Court shall be held before two Judges," and a third if 
 
 Meeba Pul- appointed — but does not in terms give the powers of a presiding 
 
 lay & oes. j U( jg e to any of the new judges, and in particular does away 
 
 with the office of Judge of Penang, and substitutes no other judge 
 
 with his exact powers— section 4 provides for the testing of writs 
 
 in the name of the Chief-Justice— section 8 referring to appeals 
 
 from the decision of magistrates, — substitutes in direct words, a 
 
 Judge of the Supreme Court, at any Settlement, for the presiding 
 
 judge. 
 
 Thus, it was argued, taking together the two Ordinances, it is 
 clear thatOrdinance 5 of 1873, constitutes a Court with two divisions 
 and two presiding judges, and directs that the Supreme Court so 
 constituted, shall be a Court of Appeal. Ordinance 17 of 1876, 
 reconstitutes the Court, and as clearly takes away the divisional 
 character of the Court. Thus this element of the constitution 
 of the Court failing, the Court as a Court of Appeal, must fail 
 also. 
 
 Act No. 9 of 1874 which merely supplies machinery to the 
 Court of Appeal established in 1873, stands and falls with it, and it 
 may be remarked that by section 1 of the Rules and Orders of the 
 Supreme Court, it is clear, that the judges, contemplated, presiding 
 judges, as persons who were requisite to fix the times of sitting of 
 divisional Courts of Appeal. 
 
 Mr. Van Someren in support of the Rule, contended that the 
 Court of Appeal still existed, since by sections 83 and 86 of 
 Ordinance 5 of 1873, a Court of Appeal is constituted. The 
 question is whether these sections, have been repealed by Ordi- 
 nance 17 of 1876. If such repeal is effected, it is by implication, 
 and not by express word. That such a repeal is not readily to be 
 admitted, is shewn by the Rule of law, which requires tha.t the 
 Court shou d lean against any construction of an Act of the Legisla- 
 ture which tends to repeal an institution of known importance and 
 value. Broom's Legal Maxims, ed. 1858, p. 26. But Ordinance 
 17 of 1876, not only names the Ordinance of 1873, but-it deals with 
 certain specified sections of it. Thus, section 9 of the Ordinance of 
 1876 specifically enacts that the Ordinance of 1876 " shall be con- 
 " strued with, and as part of the Ordinance of 1S73." Thus, in 
 case of any inconsistency being shewn to exist between the pro- 
 visions of these two Ordinances, the Court will read the intention 
 so as to give effect to both ordinances. It is in fact, reasonable to 
 hold that the Court of Appeal still exists. The inconsistencies 
 are not so very great, but that they may be reconciled— further 
 the inconsistency would be one sided, for it may well be contended' 
 that there does exist a Court of Appeal at Singapore— in as much 
 as there is a presiding judge at that Settlement. " Presiding" 
 inasmuch as he does preside, whether over a division or not is not 
 material. ' 
 
 The Interpretation Act of 1867, throws some light on anv 
 supposed involvement in language, by enabling us to read in the 
 
STRAITS SETTLEMENTS. S99 
 
 -construction of an Act, singular for plural and plural for singular. Wood, J. 
 It may well be contended, that there does exist a Court of Appeal, 18W - 
 for section 83 of the Ordinance of 1873, says, in express' words : "The Allen 
 " Supreme Court shall be a Court of Appeal " and the Ordinance of v. 
 
 1876, does notcontradict it. It does notdestroy the Supreme Court, Meera Pul- 
 though it cannot be denied that the constitution of the Court is LAY 0ES " 
 varied ; yet, if we are to obey the provisions of the Ordinance 
 of 1873, it must still be a Court of Appeal, and the existence 
 of this Court must be supported, if we desire to carry out the 
 direct expression of the Act of 1873 "ut res magis valeat quam 
 " pereat." 
 
 Again, by section 84 of the Ordinance of 1873, there is to be 
 a full Court of Appealif three Judges can be got. By the Interpreta- 
 tion Act above alluded to— No. 14 of 1867, the "Judge" shall 
 mean " any JuJfge of the Supreme Court for the time being," and as 
 the Ordinance of 1876 contemplates the appointment of a 3rd Judge, 
 when he is so appointed, the materials for a Full Court of Appeal 
 exist within the Colony. If there is no Court of Appeal in the 
 Colony, there can be no appeal to the Privy Council, under Statu- 
 tory enactment, for by the Appeal Act of 1874, section 47, clause 2, 
 no such appeal can be had, except from an order of the Court of 
 Appeal. 
 
 Although by section 86, the presiding judge is to order the time 
 of the sitting of the Court — yet, for the reasoning above adverted to, 
 " presiding," does not necessarily mean, — " presiding judges of 
 " division," — but judges de facto and actually presiding. 
 
 In the course of the argument, it was suggested, that since by 
 the Ordinance of 1873, the Supreme Court is a Court of Appeal, and 
 although it can and sbould be called into existence as a Pull Court 
 by Presiding Judges, who no longer are in existence, yet, as a 
 Court of Appeal, it has an inherent power of appointing its own 
 time of meeting by consent of all, or a majority of its members. 
 Mr. Ross opposed this view on the ground, that section 84, by the 
 use of the words " such court," plainly showed that it could only 
 be composed of materials, which are no longer in existence, that 
 the words " four Judges " mean four of the Judges created by the 
 Ordinance, or by the words " not fewer than three Judges," must 
 mean, three of such four Judges, and not udges of any sort, but 
 judges of a specific sort. That it is an extravagant construction 
 to suppose that a Court which up to the appointment of the last 
 Judge, may, by no legal enactment be a Court of Appeal, should 
 become so, at once, by the appointment of a new judge. 
 
 It could not be .contended that section 83 of the Ordinance of 
 1873, could stand alone. Sections 83 and 84 must go together 
 and if they provide a machinery which has been destroyed by a 
 late Ordinance ; the machinery — failing — the Court of Appeal 
 must fail also. The preamble of the Ordinance of 1876 shows that 
 that Ordinance is imperfect " as pending arrangements " for the 
 reconstitution of the Supreme Court, and lastly, thaC even in Sing- 
 apore the Chief Justice, is not in a proper sense, a " presiding " 
 Judge; for, there is no one over whom he can be said to 
 preside. 
 
400 CIVIL OASES. 
 
 Wood, J. Such being the arguments before me, I am asked to refuse 
 
 " ' this rule, if I am satisfied that there is in existence no Court of 
 
 Allen Appeal within the Colony. For very obvious reasons, I should be 
 
 v. desirous not to give an opinion on this point, and partly because 
 
 la EB & PnL * m y ex P ress i n g an opinion on this matter, is immaterial, inasmuch 
 
 as an appeal might at once be had against my ruling, but more 
 
 particularly, because I may be expressing an opinion respecting 
 
 the action of a Court of which I am only a single member, ah 
 
 opinion, which ought only to be given — which, can authoritatively 
 
 only be given — after full argument and consultation between all 
 
 the members of the Supreme Court. , 
 
 Still looking at the provisions of Ordinance 9 of 1874, which, 
 for the purpose of this application, must be regarded as still capa- 
 ble of application, it is clear to me, that parties to a suit have a 
 right to require of a Judge sitting alone, a fair expression of opinion. 
 By section 4 of this Ordinance of 1874, it is provided that on 
 the matter of appeal, coming on for hearing, " the question of 
 " such right, shall be argued by the parties or their counsel, and 
 " decided by the Court on the day fixed, &c." 
 
 By section 5, it is provided that " If the rule is discharged 
 
 the appellant may set the rule down for argument 
 
 " before the Full Court of Appeal." 
 
 Taking these two sections together, it seems to me clear, that 
 although the refusal of the Court is immaterial to the right of the 
 parties to appeal— yet, that, it is the intention of the Ordinance that, 
 the Court should decide the matter submitted to them, and thus, 
 that on such a rule as this being argued, points of law should be 
 fully and exhaustively discussed, and the opinion of the Judge 
 plainly expressed. 
 
 Acting on this view, I have accordingly held it to be my duty 
 to deal with the points of law raised in the case, and in particular 
 with the point of law, as to whether the Court of Appeal given by 
 the Ordinance of 1873 still exists. ° 
 
 The points of law have been already dealt with, but on the 
 point of whether the Supreme Court of the Straits Settlements is 
 still a Court of Appeal, a point which of necessity is, so far as this 
 case is concerned, now, for the first time raised, I am asked to 
 give a decided opinion, and to this request, I freely accede. To the 
 best of my judgment, the argument rests altogether within a very 
 narrow compass. By section 83, the Supreme Court as there 
 established, is to be a Court of Appeal by section 84. It is declared 
 of what "such 'Supreme Court, when sitting as a Court of Appeal, 
 shall consist. That is to say, of the four Judges created by that 
 Ordinance, m* two Presiding Judges, and two Puisne Judges or of 
 not fewer than three of , as Iread it, such Judges-and the subsequent 
 whole structure of the Act shews that the Supreme Court of 1873 
 is a Supreme Court of two divisions. For the proper settWmt 
 of points of law arising in either of these two CourTo ^UeSent 
 authonty, some Court of Appeal in the Colony, migh^^ looked 
 upon as reasonably necessary, and the Supreme Court, of which 
 these are portions would seem to be at once the most obil3 
 the most reasonable. Indeed, the Supreme Court of 1873 sitting 
 
STRAITS SETTLEMENTS. 401 
 
 as an aggregate of all its Judges, appears to me to have no other Wood, J. 
 function or entirety, except as such Court of Appeal, for the idea of 1877, 
 the Supreme Court of 1873 — sitting with its full Bench as superior Allen 
 Courts of Law, sit in other places — has never been entertained v, 
 by the public or the profession, nor, as far as I can see, been contem- Meeba Pul- 
 plated by the Ordinance of 1873. LAT 0B8- 
 
 The Ordinance No. 17 of 1876, by section 2, most unmis- 
 takeably destroys the divisional character of the Supreme Court, but 
 creates no new Court of Appeal — and as the Supreme Court when 
 sitting in appeal, consists as it appears to me tinder section 84 of 
 the Ordinance of 1873 of such divisions, the Ordinance of 1876, by 
 destroying the materials of the Court, must be held to destroy its 
 existence also. 
 
 It seems to me to be plain as the demonstration of any fact in 
 physics. A Court consists of certain constituent elements, — if 
 those elements are destroyed, the Court is destroyed also. I am 
 not aware of any principle or maxim in the construction of statutes 
 which can aid us. We cannot, that I am aware, in any way, build 
 up a new Court of Appeal, on the ruins of the old Supreme Court, or 
 create a new Court of Appeal by analogy with the old one. Believ- 
 ing as I do, that the Ordinance of 1876, destroys the materials 
 which go to form the old Court of Appeal, I am compelled to 
 believe that the Supreme Court is as a Court of Appeal destroyed 
 also. 
 
 I am happy to think that this expression of opinion, is of no 
 material injury to the defendants in the cause below. They have 
 still their rights of appeal, and if the matter is set down for hear- 
 ing before the Court of Appeal, I may then submit with deference, 
 to the ruling of my brethren, or possibly be convinced by abler and 
 sounder reasoning than that which it has been my duty to express. 
 
 I am thus, as it would appear to me, obliged tojrefuse the rule in 
 the form asked for. "Whether the Supreme Court exists in an 
 aggregate form, and is capable of dealing authoritatively with the 
 ruling of a single Judge, so as to enable the defendants to raise this 
 question by resorting not to a Court of Appeal, but to a Court in 
 Banc, I express no opinion, for the matter was not raised in argu- 
 ment. 
 
 It would, indeed, seem by no means an unreasonable supposi- 
 tion that the Act of 1876, by creating a Supreme Court without 
 divisions, intended to provide the public with the more simple and 
 familiar machinery of a Court in Banc in exchange for the anoma- 
 lous, and, it might seem, now unnecessary institution of a Court of 
 Appeal, but whatever, on first consideration, may be the views of 
 the profession on this matter, the subject is one of importance to 
 the public at large, and it would be well in any subsequent legis- 
 lative enactment, that this power of the Supreme Court to hold 
 sittings in a collective form, as a Supreme Court in analogy with 
 the power and practice of other Courts of superior jurisdiction at 
 home and in other colonies, and not as a Court of Appeal — should 
 be dealt with in some definite manner and either absolutely recog- 
 nized or absolutely withheld. 
 
 This rule is therefore discharged with costs. 
 
OIYIL OASES. 
 
 Wood, J. 
 1877. 
 
 Allen 
 
 v. 
 
 Meera Pul- 
 
 lay & OBS. 
 
 The Courts' Ordinance III. of 1878, having subsequently been 
 the defendants availed themselves of section 7 1 thereof, 
 and appealed against the judgment of the Court below of 2nd 
 October, 1877. • 
 
 The appeal now came on to be heard 
 Appeal, consisting of Sidgreaves, C. J., 
 
 10th February, 1879. 
 before the Full Court of 
 Ford and Wood, J. J. 
 
 Van Someren, for appellants contended, the agreement was 
 not duly stamped and could not be rectified under section 26 — 
 that the agreement was void for want of consideration, want of 
 mutuality, and as being in restraint of trade. 
 
 Boss, for respondent contra, in respect of the restraint of 
 trade, cited Jones v. North, 19 L. R., Eq. 426. 
 
 Cur. Adv. Vult. 
 
 14th February, 1879. The Court being divided iu opinion, 
 the following judgments were delivered : — 
 
 Wood, J. Upon the point of the stamp. The opinion I now 
 entertain is much the same as that expressed on the trial. Under 
 the provisions of s.s. 12 & 25, the agreement in question 
 having been stamped with the stamp of proper amount, but that 
 stamp not having been cancelled in the manner pointed out, the 
 document in question was clearly not " duly stamped" within the 
 meaning of the Act. 
 
 When ultimately tendered iu evidence, it appeared before the 
 Court, with the old stamp, still uncancelled, and bearing upon it a 
 stamp of $5. put on by the Collector of Stamps, and the question 
 then arose whether it was admissible in evidence, and upon this 
 point, I hold as I held at the trial, that it was. Section 26 
 provides as follows : — 
 
 Clause 1. " If any instrument required by law to be stamped, 
 " shall have been signed or executed by any person without its 
 "being duly stamped, and special provision to meet such case, is 
 " not made in this Ordinance, the Collector of Stamps, if satisfied 
 " that there was no intention to evade payment of the proper 
 " Stamp duty, may direct such instrument " to be properly stamped 
 " as follows" : — 
 
 _ Clause 2. " If the instrument be produced to the Collector 
 " within one week from the time of its execution, it may be 
 "properly stamped, on payment of a fine of five dollars, or double 
 " the amount of proper stamp duty, if that amount does not exceed 
 " five dollars." 
 
 Clause 3. " If, produced after one week but within 3 months 
 
 " a fine of twenty dollars, or four times the amount of proper 
 
 " stamp duty, if that amount does not exceed twenty dollars " 
 
 Clause 4 « If, produced after 3 months, a fine of fifty 
 
 dollars or ten times the amount of proper stamp duty, if that 
 
 amount does not exceed fifty dollars." It is clear that this 
 
 document being not duty stomped could he properly stamped-by 
 
 the Collector— and it is admitted, on M hfnA? + w^. ' 
 
 admitted, on all hands, that it 
 
 was 
 
STRAITS SETTLEMENTS. 403 
 
 properly stamped — but there arises the question, is it then Wood, J. 
 admissible in evidence, it still being not duly stamped within the 18y7 ' 
 meaning of sections 12 & 25. Let us first call in aid the general Allen 
 objects and provisions of the Ordinance in question, and subject it ■». 
 
 may be to imperfections and omissions, the general object and M3 ^?i F ^' 
 intention can only in reason and in justice, be as follows: To 
 provide for a revenue, and to enable persons who have failed to 
 stamp their documents in the manner pointed out by the Ordi- 
 nance, without having had any intention to evade the payment of 
 the stamp duty, to avail themselves of the documents, which re- 
 quire a stamp to enforce their rights or to escape the penalty 
 inflicted for not stamping in the manner pointed out by the 
 Ordinance, upon payment of a penalty. And that section 26 is 
 intended to qualify the rigour of sections 12 & 25, in the interests 
 of simple reason and justice. Section 26 above adverted to, 
 enacts that a document not duly stamped may be properly 
 stamped, on payment of the requisite amount of penalty — which 
 payment of penalty, it is conceded, has been made, and the docu- 
 ment comes for us as one properly stamped. In my judgment, the 
 word " properly" means what in ordinary language it is -known to 
 imply, viz : " in a proper manner" — proper in manner and form — 
 " not improperly in any respect" — " properly to all intents and 
 purposes" — " properly to meet the ends of justice and objects of 
 the Act," and that to hold that properly stamped means with a 
 proper stamp, is to apply, not only a forced signification to the 
 words, but a signification which is contrary to the fair and reason- 
 able intention and object of the Act. Indeed, I should say, that 
 properly stamped was for all the purposes of this Act, synonymous 
 with duly stamped — but that the use of the word duly stamped 
 would be improper, inasmuch as by a previous section, it has 
 received a technical and forced construction, having relation to 
 contemporaneous cancellation, whieh makes it inapplicable here. 
 Thus, I cannot but consider that the document so stamped was 
 duly receivable in evidence. That the stamp ordinance in question 
 is unfortunately imperfect, that it is oppressive and penal to a 
 degree which leads • to notorious and unchecked disregard of its 
 provisions and penalties, is much to be regretted, but forms no part 
 of the reasoning which guides me in this judgment. I look to 
 the general provisions and objects of the Act, to the fair meaning 
 of the word " properly" and to the canons of construction, which 
 require us to deal strictly with Tax Acts in the interests of the 
 public in general, to provide and to provide only for the carrying 
 out of the Ordinance, when the results of such carrying out are 
 faulty, partial or unreasonable only when such Ordinance speaks 
 in terms which are clear and unambiguous. 
 
 As to the general result of the appeal, I think that the judg- 
 ment of the Court ought to be for a new trial, without costs, 
 on the following grounds : — 
 
 The appeal is made by the defendants, on the ground of the 
 improper reception of evidence by the Judge on the trial of the 
 case, which being an error of judgment, on the part of the Court, 
 entitles the defendants ex debito justitia? to a new trial, and no 
 
404 
 
 CIVIL OASES. 
 
 1 Wood J. 
 1877. 
 
 Allen 
 
 v. 
 
 Meera PtrL- 
 
 LAT & OES. 
 
 more, and as a miscarriage of justice, has occurred. I thmk the 
 Court has. no reasonable authority to give to the defendants a 
 greater privilege or right than by well established authorities he 
 ought to have. Archbold's Practice, p. 1505, and the authorities 
 there cited, show that the improper reception of evidence by the 
 Judge is ground for a new trial, and, presumably for no more, 
 except under such special circumstances, as do not arise here but 
 the reverse, seeing that, although by the judgment of this Court, 
 the Court below, on a new trial, could not, without violating the 
 principle laid down by this Court of Appeal, admit the document 
 — on payment of penalty, yet non constat that in so clear a case of 
 hardship as this — the Governor would not, under the powers given 
 by section 31 of the Act, sanction its having the proper stamp 
 affixed to it — which might, it is presumed, make it admissible 
 in evidence. 
 
 Ford, J. I concur in the judgment of the Court below in all 
 points raised by this appeal, except that raised under the pro- 
 visions of the Stamp Ordinance 8 of 1873. 
 
 I confine my. concurrence, however, with the decision that 
 there was sufficient consideration and mutuality to sustain this 
 contract, to that part of the contract actually sued upon, and for 
 the explanation of some latent ambiguity in which parol evidence 
 was admitted, shewing that Mr. Allen did tender for the Dutch 
 contract then in the market, with an understanding with the 
 appellants, that they should not tender. The question whether 
 the contract is valid in respect of future dealings, is a different 
 one and not now before us. 
 
 The question, however, of the admissibility in evidence of the 
 contract itself, arose at the trial, and is now before the Court for 
 consideration, the objection having been taken that the document 
 was not duly stamped within the meaning of the Stamp Ordi- 
 nance, and was, therefore, inadmissible under the provisions of 
 the 25th section. 
 
 That section requires, as is admitted, unless some further 
 provision in the Ordinance exists for rectification — that the 
 document shall be duly stamped under the provisions of section 
 12, which enacts that " no instrument liable to stamp duty under 
 " Schedule A" — a schedule which embraces the class of document 
 in this case, " shall not be deemed duly stamped, unless the 
 " official stamps be, of not less than the proper amount of duty 
 " required by this Ordinance, and unless such stamp shall have 
 " been cancelled, in the manner required by this Ordinance," i. e., 
 as is provided by the second sub-section " by the person who shall 
 " first execute the instrument, or issue or deliver it out of bis 
 "hands, custody or power. Writing or marking in ink on or 
 " across the same, his name or initials, or the name or initials of 
 " his firm, or pnncipal, together with the date of his so writing 
 " or marking, so that every stamp shall be effectually cancelled 
 and rendered incapable of being use d for any other instru- 
 " ment. J 
 
 The facts of the case are short and simple. The contract iu 
 question was properly stamped as to amount, but the stamp was 
 
STRAITS SETTLEMENTS. 40& 
 
 not cancelled. Upon an objection being raised at the trial, the Wood, J/ 
 document was taken to the Stamp Office, and under the powers 1877 ' 
 supposed to be conferred upon the office by the provisions of sec- Allen 
 tion 26, the Collector put or caused to be put on a new stamp of «■ 
 
 10 times the original amount, and cancelled the stamp so put on. MEEB f PtJI '- 
 The question is, whether under that section, the Collector could 
 so rectify the original error of non-cancellation as to make this 
 document duly stamped and admissible in evidence. 
 
 The Court below held that he could, and received the document. 
 It is not disputed that, except under the provisions of section 26, 
 the Collector has no such power, and it is, upon the proper con- 
 struction of that section, the question must be determined. I 
 need hardly say, that in reading the proper construction of a 
 clause which may be ambiguous in language, the Court calls to 
 its aid all those rules which may serve to show what the intention 
 of the legislature is. 
 
 The section 26 is as follows : — 
 
 1 . " If any instrument required by law to be duly stamped, shall 
 " have been signed or executed by any person without its being 
 " duly stamped, and special provision to meet such cases, is not 
 "made in this Ordinance, the Collector of Stamps, if satisfied there 
 " was no intention to evade payment of the proper stamp duty, 
 " may direct such instrument to be properly stamped as fol- 
 " lows : — 
 
 2. " If the instrument be pi-oduced to the Collector within one 
 " week, from the time of execution, it may be properly stamped, on 
 " payment of a fine of five dollars, or double the amount of proper 
 " stamp duty, if that amount does not exceed five dollars. 
 
 3. " If, produced after one week but within 3 months, a fine 
 " of twenty dollars or four times the amount of proper stamp duty 
 " if that amount does not exceed twenty dollars. 
 
 4. " If, produced after three months, a fine of fifty dollars or 
 " 10 times the amount of proper stamp duty, if that amount does 
 " not exceed 50 dollars." 
 
 I am unable, I confess, to find in the language itself of the 
 26th section, any reason to conclude that, the power given to the 
 Collector to direct an instrument to be properly stamped, neces- 
 sarily implies that, when properly stamped, it is duly stamped, 
 although, doubtless, if the context or rather provisions of the Act 
 was not such as to indicate a different intention, such an applica- 
 tion of the word " properly," as would make it synonymous with, 
 or inclusive of " duly," might be sustained. 
 
 But I confess the language of the whole of the section, when 
 taken together, implies to my mind, if not very clearly, yet, still a 
 different intention, an intention which I think is strongly fortified 
 by other provisions in the Ordinance, and the conclusions which 
 correct reason would draw from them. 
 
 I call attention first to what I may call the fortifying evidence 
 of the position that the Collector was not intended to have a power 
 of cancellation ; but could rectify only unstamped or insufficiently 
 stamped instruments in the class of unduly stamped instruments 
 brought to him under this section. 
 
406 CIVIL CASES. 
 
 Wood, J. The section excepts from its operation cases, for which special 
 
 1877. provision has been made, and, under section 21 of the Ordinance, 
 
 A ~ N unduly stamped bills of exchange, promissory notes and orders, 
 
 v. are specially provided for. An express power is there given to the 
 
 Meera Pul- Collector to stamp a fresh and cancel the stamp put on, " and every 
 
 lay & oks. l( gucli instrumen t so stamped as aforesaid, shall have the force 
 
 " and validity in law, as if it had been duly stamped before the 
 
 " same, was signed or issued." 
 
 The doctrine expressio unius exclusio altemis at once presents 
 itself to the mind, on seeing this provision made for bills of 
 exchange and promissory notes, but excluded from the class of 
 instruments provided for by section 26, and its application to the 
 case under consideration, is further strengthened by a reference 
 to the marginal notes of the two sections. That to section 26 
 runs " Collector may stamp instruments not duly stamped in cer- 
 " tain cases on fine" ; that to section 21 runs " Bills of Exchange, 
 " &c, not stamped, how rectified." 
 
 It should also be observed that section 12 when setting forth 
 the classes of documents to be duly stamped before execution, gives 
 an express power of cancellation to the Collector. But the position 
 that section 26 only intended to give a partial power of rectifica- 
 tion is, I think, further strengthened by the provisions of section 
 13. The penalty by that section for non-cancellation is absolute 
 — it is a fine not exceeding $100. No penalty is attached to non- 
 stamping or insufficiently stamping an instrument in any portion 
 of the Ordinance unless presented for correction ; section 13 
 carefully making it a mere breach of " duty" to execute an instru- 
 ment without the proper stamp duty, whereas, as I have said, 
 non-cancellation is eo instanti a punishable offence. That the Col- 
 lector was not intended to have a power to relieve upon his own 
 responsibility from a penalty of this land is, I think, also a rea- 
 sonable inference. These manifestations of intention, seem to me, 
 borne out by the language of the 26th ssction itself. I have 
 already called attention to the differences in its marginal note 
 from that of section 21 which, mutatis mutandis, if an absolute 
 power of rectification was intended, would naturally have run in 
 the same words. Every reference in the section [see particularly 
 clauses 2, 3 & 4] associate the words " proper and properly " with 
 the amount of stamp duty. Clause I puts the Collector in motion 
 only when he is " of opinion there is no intention to avoid the 
 " proper stamp duty" — an intention which could not be inferred 
 from the non-cancellation or imperfect cancellation of the stamp, 
 although an intention to pay no stamp duty by taking the uncan- 
 celled stamp off might— and he is then only to direct the instru- 
 ment to be properly stamped. The words "unduly stamped" 
 applied to the instrument when brought by the person seeking 
 relief, are apttyenough used, for whether defective in stamping or 
 cancellation, it is under section 12 unduly stamped. If the inten- 
 tion was to make a stamp unduly stamped in the point of can- 
 cellation, duly stamped in every particular when properly stamped, 
 the section might have said so in plain words, or given the Col- 
 lector a perfect power of rectification as under section 21 and 
 
STRAITS SETTLEMENTS. 407 
 
 section 12. Looking at these considerations and to the special Wood, J. 
 penalty imposed by section 13 on non-cancellation, I think, it may 
 well have been in the mind of the Legislature in its zeal to pro- Allen 
 tect the revenue under system of adhesive stamps, to have limited v. 
 
 the relief the Collector could give to cases it specially provided Meee ^ Pul - 
 f or. Such at least seems to me to be the intention to be gathered 
 from what the Legislature has said, and I do not feel justified, 
 therefore, either upon the grounds of the inconvenience of another 
 construction or any consideration of the more general pui'pose of 
 the Ordinance, in amplifying the word " properly" so as to nega- 
 tive that intent. The Respondent must, I think, be left to any 
 remedy he may have under section 31, which apparently empowers 
 the Governor to sanction any instrument being duly stamped after 
 execution, a power, which has frequently been exercised in Singa- 
 pore, where doubts have long been current as to the power of the 
 Collector, under section 26. I regret exceedingly to have to come 
 to such a decision, feeling how unreasonable may be the penalties 
 which may attach, as in this case, to an error in so apparently 
 trivial a matter as non-cancellation of a stamp ; but I fear the 
 community will never be free from the possibility of such an incon- 
 venience until some more satisfactory means are found of protect- 
 ing the revenue than that of rendering unduly stamped instru- 
 ments inadmissible in Courts of Justice. One method of protection 
 against the loss sought to be provided against by requiring the 
 cancellation of adhesive stamps, and of at the same time remedy- 
 ing what may become a public inconvenience, would be the return 
 to the system of impressed stamps for such documents as they are 
 suited to. 
 
 Sidgreaves, C. J. In this case the Court of Appeal were 
 unanimous in considering that the agreement was properly admit- 
 ted in evidence, if duly stamped, but on the question of its being 
 duly stamped under the Stamp Ordinance 1873, we reserved our 
 judgment. 
 
 After mature deliberation, I have come to the conclusion that 
 the agreement was not duly stamped, and, therefore, could not be 
 admitted in evidence under section 25 of the Stamp Ordinance. 
 In my opinion the Court below was debarred by the express words 
 of the Ordinance from receiving the agreement, as evidence in any 
 civil proceeding, before the Court. The words of that section are 
 as follows : — 
 
 " Except as otherwise provided by this Ordnance, no instrument for which 
 " any duty shall be payable under this Ordinance shall be received as creating, 
 " transferring, or extinguishing any right or obligation, or as evidence in any 
 '• civil proceeding in any Court of Justice in the Colony, or shall be acted 
 " upon in any such Court or by any Public officer, or shall be registered in any 
 " public office or authenticated by any public officer, unless such instrument 
 " shall be duly stamped. Provided that every instrument liable to stamp 
 " duty, shall be admitted as evidence in any criminal proceeding, although it 
 " may not have the stamp required by this Ordinance affixed thereto." 
 
 Therefore, unless the instrument tendered in evidence, is duly 
 stamped it must be rejected. There can be no doubt as to what 
 
408 
 
 CIVIL CASES. 
 
 Wood, J. duly stamping consists in, for we have an express definition of it 
 1877 - in the first part of section 12 : — 
 
 Allen 
 
 v. 
 
 Meeba Pul- 
 
 LAY & OK3. 
 
 " No instrument liable to Stamp Duty under schedule A, shall be deemed 
 • " duly stamped unless the affixed stamp be of not less than the proper amount 
 " of duty required by this Ordinance, and, unless such stamp shall have been 
 " cancelled in the manner required by this Ordinance." 
 
 In the case under consideration, the document tendered in evi- 
 dence bore the proper amount of stamp duty, but the stamp had 
 not been cancelled as directed by the above section. Clearly, there- 
 fore, it was not duly stamped, and, when first tendered in evidence, 
 was rejected. The case was adjourned and resumed the following 
 day, and then the document was again tendered in evidence. During 
 the adjournment the document had been taken to the Collec- 
 tor of Stamps under section 26, which is as follows : — 
 
 Clause I. — " If any instrument required bylaw to be stamped shall have 
 been signed or executed by any person, without its being duly stamped and 
 special provision to meet such case, is not made in this Ordinance, the Col- 
 lector of Stamps, if satisfied there was no intention to evade payment of the 
 proper stamp duty, may direct such instrument to be properly stamped as 
 follows : — 
 
 Clause II. — If the instrument be produced to the Collector withia one 
 week from the time of its execution, it may be properly stamped on payment of 
 a fine of five dollars, or double the amount of proper stamp duty, if that 
 amount does not exceed five dollars. 
 
 Clause III. — If produced after one week but within three months, a fine 
 of twenty dollars, or four times the amount of proper stamp duty, if that 
 amount does not exceed twenty dollars. 
 
 Clause IV. — If produced after three months, a fine of fifty dollars, or ten 
 times the amount of proper stamp duty, if that amount does not exceed 
 fifty dollars." 
 
 The Collector acted upon the 4th clause of that section, and 
 directed that a fine of ten times the amount of proper stamp duty 
 should be imposed; and stamps to that amount were affixed to the 
 document. It was then received in evidence. 
 
 Now, according to my construction of the Ordinance the docu- 
 ment was inadmissible in evidence, unless it was duly stamped, 
 and the only question would be therefore, whether it was so duly 
 stamped or not. As the document bore the proper amount of 
 stamp duty in the first instance, the Collector has, if what he has 
 done has had the effect of converting it into a duly stamped in- 
 strument, the power of condoning the non-cancellation of the 
 stamp by simply imposing a penalty. Whence does he get that 
 power ? not from the Ordinance as it appears to me. There his 
 powers are strictly limited, and they only arise upon this contin- 
 gency, viz,, that he is " satisfied that there was no intention to 
 " evade payment of the proper stamp duty." But how can there be 
 any intention to evade payment of the proper stamp duty, when 
 the proper stamp duty has already been paid ? and even if that 
 contingency does arise, his powers are -limited to directing the 
 instrument to be properly stamped, and, according to my construc- 
 tion of those words, it simply means that if the Collector is satisfied 
 that there has been no intention to evade payment of the proper 
 
STRAITS SETTLEMENTS. 409 
 
 stamp duty he may direct, subject to certain penalties, the proper w °°£> J - 
 
 amount of stamp duty to be affixed. I do not see, however, how ; 
 
 the non-cancellation of an instrument properly stamped can be Allen 
 cured in this manner. A power of cancellation is given by the "■ 
 
 21st section to the Collector in the case of bills of exchange or L E ™& ^" 
 
 promissory notes, if brought to the stamp office to be stamped 
 
 within three days from the date thereof, but no such power is [Judgmentof 
 given by the 26th section. The object of the Legislature, appears ^ u ^ r jT^ 
 to me, to have been to protect the Revenue by enforcing the can- 
 cellation of the stamp in the first instance, and they sought to do 
 that in two ways ; first of all by attaching a penalty of $100 to 
 non-compliance with the provisions of the order regarding cancel- 
 lation, and secondly, by enacting that no instrument bearing a 
 stamp not properly cancelled, shall be received in evidence in any 
 civil proceeding in any Court of justice in the Colony. The fact 
 that the first protection to the Revenue against fraud given by 
 the Ordinance has been made no use of, and indeed, has been 
 practically abandoned, does not release those who have to adminis- 
 ter justice in our Courts from enforcing the second. If these 
 artifical attempts in local ordinances to carry out particular 
 purposes, operate harshly and injuriously, it is for the Legislature 
 to alter them, not for the judges, by a strained construction, to 
 attempt to remedy the evil . 
 
 Note. — The majority of the Court were of opinion that the 
 proper course to pursue was to direct a verdict to be entered 
 for the defendants, leaving the plaintiff to move for a new trial, 
 if he thought fit, on such grounds as he might be advised. 
 
 The Respondent appealed to Her Majesty in Council. 
 On 24th January, 1882, the appeal came on to be heard 
 before : — 
 
 Lv>ed Blackburn. 
 Loes Watson. 
 Sib Barnes Peacock. 
 Sik Robert P. Collier. 
 Sir Richard Couch. 
 Sir Arthur Hobhouse. 
 
 Mr. Mayne, appeared for appellant. 
 
 Mr. Charles, Q. C. and Mr. Mansel Jones, for Respondents. 
 
 Sir Richard Couch. The suit which is the subject of the 
 present Appeal, is brought upon an agreement made between the 
 plaintiff and the defendants by which it was agreed that if the 
 plaintiff should obtain the contract for supplying the Dutch at 
 Acheen, through Messrs. Katz Brothers of Penang, he was to hand 
 over the contract to the defendants, and that the defendants were 
 to pay to the plaintiff a commission on all payments for supplies 
 at the rate of 2\ per cent. ; and should the defendants or any one 
 of them get the contract, then they were to pay to the plaintiff 
 
4iO CIVIL OASES, 
 
 Wood, J. 2^ per cent, commission on all payments for supplies ; and further 
 
 1877. that if the defendants or any one of the parties to the agreement 
 
 AlIen should supply anything for the Dutch at Acheen, they agreed to 
 
 v. pay to the plaintiff a commission of 2 \ per cent. The plaintiff's 
 
 Meeba Pul- case wagj that the defendants became the sub-contractors for the 
 lay & obs. SU ppiy f cattle to Messrs. Katz for the Netherlands India Govern- 
 
 [ judgment of ment at Acheen, and he claimed payment of the sum of $8,420 
 the Privy f r commission. 
 
 Council.] rji^g d e f en( i an ts 5 in the first instance, demurred to the declara- 
 
 tion, which demurrer was overruled, and they were allowed to 
 plead ; and having pleaded pleas which went to the merits of the 
 case and denied the right of the plaintiff to recover, but which 
 are not material to be considered in this Appeal, the case came on 
 for trial before one of the Judges of the Supreme Court of the 
 Straits Settlements, division of Penang. At the trial the agree- 
 ment was tendered in evidence ; and it appeared upon the face of 
 it to bear a stamp of 50 cents, with a cancellation only by the 
 figures " 10/8/75." 
 
 Now the Ordinance 8 of 1873, in force in the Straits Settle- 
 ments, provides by section 12 that, " No instrument liable to stamp 
 " duty under schedule A," — which schedule included an agreement 
 of this description, — " shall be deemed duly stamped unless the 
 " official stamp be of not less than the proper amount of duty re- 
 " quired by this Ordinance, and unless such stamp shall have been 
 " cancelled in the manner required by this Ordinance ;" which 
 manner is stated in the second sub-section to be " by the person 
 " who shall first execute the instrument, or issue or deliver it out 
 " of his hands, custody, or power, writing or marking in ink on or 
 " across the same his name or initials, "or the name or initials of 
 " his firm or principal, together with the date of his so writing or 
 "marking, so that every stamp shall be effectually cancelled and 
 " rendered incapable of being used for any other instrument." The 
 omission was that, although the date of the cancellation appeared 
 on the stamp, the initials had not been written. 
 
 The learned Judge adjourned the trial, and appears to have 
 suggested that the parties might, if they thmight fit, take some 
 steps to remedy the defect under section 26 of the Ordinance ; and 
 accordingly on the next day, the trial being resumed, the agree- 
 ment was produced bearing upon the face of it a stamp of five 
 dollars with the date " 27/9/77," the word "penalty," and signed 
 " P. Jones," he being the Collector. 
 
 Here it will be convenient to refer to the provisions of the 
 Ordinance which were made use of in getting this additional stamp 
 affixed. Section 25, by reason of which the document was in the 
 first instance refused to be received in evidence, provides, " Except 
 " as otherwise provided by this Ordinance, no instrument 'for which 
 " any duty shall be payable under this Ordinance shall be received 
 " as creating, transferring, or extinguishing any right or obliga- 
 " tion, or as evidence in any civil proceeding in any Court of -justice 
 " in the Colony, or shall be acted upon in any such Court or by 
 " any public Officer, or shall be registered in any public office or 
 « authenticated by any public Officer, unless such instrument shall 
 
STRAITS SETTLEMENTS. 411 
 
 " be duly stamped," with a proviso that it may be admitted in w °°?> J - 
 
 evidence in a criminal proceeding, although it may not have the 
 
 stamp required by the Ordinance. Then section 26 says, " If any Allen 
 
 " instrument required by law to be stamped shall have been signed «■ 
 
 " or executed by any person without its being duly stamped, and ^^4 ors~ 
 
 " special provision to meet such case is not made in this Ordinance, ' 
 
 "the Collector of Stamps, if satisfied that there was no intention [Judgment of 
 
 " to evade payment of the proper stamp duty, may direct such *j!j e Pt \JZ. 
 
 " instrument to be properly stamped as follows : — If the instru- ounci 
 
 " merit be produced to the Collector within one week from the time 
 
 " of its execution, it may be properly stamped on payment of the 
 
 " fine of five dollars, or double the amount of proper stamp duty 
 
 " if that amount does not exceed five dollars. If produced after 
 
 " one week but within three months, a fine of twenty dollars, or 
 
 " four times the amount of proper stamp duty if that amount does 
 
 " not exceed twenty dollars. If produced after three months, a 
 
 " fine of fifty dollars, or ten times the amount of proper stamp 
 
 " duty if that amount does not exceed fifty dollars." It was under 
 
 the last clause that the stamp of five dollars in this case was 
 
 affixed. Upon the agreement being so produced before the learned 
 
 Judge he held that it was admissible in evidence ; and finding 
 
 against the defendants upon the questions raised by the pleas, he 
 
 gave judgment for the plaintiff. From that judgment there was 
 
 an appeal to the Supreme Court under a provision in the Ordinances 
 
 which gives an appeal on a matter of law ; and the majority of 
 
 the learned Judges of that Court, there being two besides the 
 
 Judge who originally tried the case, held, that the agreement was 
 
 still not admissible in evidence and reversed the judgment for the 
 
 plaintiff, and directed a judgment to be entered for the defendants. 
 
 From that judgment the present appeal is brought. 
 
 The sole question is, whether this was not a case to which 
 section 26 of the Ordinance applied, and whether the agreement 
 was not, by reason of the stamp having been affixed by the Collec- 
 tor under that section, properly admitted in evidence. That sec- 
 tion is, in its terms, apparently intended to apply to all cases 
 where the document has not been duly stamped, and for which a 
 special provision had not been previously made, there being special 
 provisions in the Ordinance for bills of exchange and other docu- 
 ments ; and the words " without being duly stamped" would include 
 not only cases where there was no stamp at all, or where the stamp 
 was an insufficient one, but where, by inadvertence or accident, 
 the stamp had not been properly cancelled. There might be many 
 cases in which, from some mistake, there would not be a cancellation 
 strictly within the term of the section, and where it would be more 
 reasonable to give the parties an opportunity of remedying the de- 
 fect in the stamp than even in cases where something had been 
 done deliberately. Then, the words "not being duly stamped" 
 being intended apparently to include all those cases, the section 
 goes on to say that the Collector, if satisfied that there was no in- 
 tention to evade payment of the proper stamp duty, may direct 
 such instrument to be properly stamped. If the word " properly" 
 is to be read, as it may fairly be, as meaning, not a stamp of the 
 
4i2 OlVIL CASES. 
 
 Wood, J. proper amount but properly stamped in all respects, not only of 
 
 1S77 - the proper amount but properly cancelled, and stamped in such a 
 
 Allen wa J as *° niake it admissible in evidence, then what may be 
 
 v. reasonably considered to be the intention of the Ordinance, namely^ 
 
 Meeea Pul- that provision should be made for admitting documents which, 
 lay & obs. ijjj^jgk some caus e or other, had not been properly stamped, 
 
 [Judgmentof admissible in evidence, would be carried out. On the other hand, 
 the Privy jf the word " properly" is to have a limited meaning, and is not 
 Council.] ^ Q k e rea( j as -being duly stamped, the effect would be this : that 
 an opportunity is given to parties to go to the Collector and to pay 
 the penalty, get the document stamped, and then, when they have 
 got it stamped, if the defect was want of cancellation, it still 
 could not be used in evidence ; but if the defect was the want of 
 a stamp, it might perhaps be used. The object of this clause in 
 the Ordinance, coming as it does immediately after the 25th sec- 
 tion, appears to their Lordships to be to provide for cases which 
 it would be most reasonable to provide for ; namely, that persons 
 should not lose the power of suing upon an agreement or a docu- 
 ment, because there* had been some omission with reference to the 
 stamping of it ; that if the penalty was paid, they could then 
 make use of the document to enforce their rights. This would 
 further appear to have been the intention from what is done by 
 section 30, because the legislature appears to have provided in 
 cases of this kind two modes of remedying the defect. The 
 parties may go to the Collector, and on paying the penalty they 
 may get a document stamped in such a way that it can be made 
 use of ; but if they omit to do that, if the defect is not discovered, 
 as it may sometimes not be, until the document is actually pro- 
 duced in Court, then it is provided that the Court may receive in 
 evidence an instrument not bearing the stamp prescribed by the 
 schedule on payment of the proper amount of stamp duty, to be 
 determined by the Court. The Court may do what the Collector 
 might do, and it is observable here that the Court is empowered 
 to receive the document in evidence upon payment of the amount 
 of stamp duty, but it is not necessary before it is received in 
 evidence that the stamp should be cancelled. There is a direction 
 afterwards that the officer of the Court shall cancel it ; but it is 
 not a condition precedent to its being received in evidence. It 
 would be properly received, and the omission afterwards to cancel 
 it would not make it less receivable : it would have already been 
 received. In the case of its being produced in Court and the 
 penalty being paid, it is to be received in evidence without the 
 formal cancellation which, it is said ought to have been made 
 under section 26, and which could not be made. Why should 
 there be any difference between the remedy given to the party in 
 the one case and in the other ? The whole scope of the provision 
 appears to be this : that under section 25, the document beino- 
 declared not to be receivable in evidence unless it is duly stamped 
 the legislature says, Now, that being the state of things, a remedy 
 shall be provided ; and if the party pays the penalty which is pre- 
 scribed and the stamp is affixed, then the decument may be made 
 us« of. The construction which was put upon the Ordinance by 
 
STRAITS SETTLEMENTS. 
 
 413 
 
 the learned Judges of the Lower Court, instead of being a reason- Woo £ ) . J - 
 able and natural construction of its provisions, is in reality a '"' 
 
 forced one ; and some of their observations appear almost to show Am,en 
 that they felt that to some extent it was a forced construction. v. 
 
 Their Lordships therefore", are of opinion that the document Meeba Pttl- 
 
 was properly received in evidence by the learned Judge, and they 
 
 will humbly advise Her Majesty that the judgment of the Court [Judgment of 
 on the Appeal be reversed, and that the judgment of the first ^ e Pr ^y 
 Judge do stand. The Respondents will pay the costs of the ouncl '-' 
 Appeal, and the Appellant will receive back his deposit. 
 
 KHOO TIANG BEE ET UXOR v. TAN BENG GWAT. 
 
 This Court will not recognize the right of an adopted son to share in an intestate's Singapore. 
 
 estate. 
 
 Ford, 
 
 This was a demurrer to a statement of claim, praying for the *$£' J ' 
 
 administration of the estate of the above-named deceased. " 
 
 Cur. Adv. Yult. October 9. 
 
 On this day, judgment was delivered by 
 
 Ford, ag. C. J. This is a suit praying the administration by 
 the Court of the estate and effects of one Tan Eng Chek, deceased, 
 and a demurrer to the petition has been filed upon the ground 
 that the 2nd petitioner is only an adopted daughter of the intestate 
 and as such has no interest in his estate and effects. 
 
 The defendant, it would appear, had obtained Letters of 
 Administration to the intestate's estate, from a Resident Councillor 
 at Malacca, in the year 1862, upon the strength of being an adopted 
 son of the deceased, but the questions which might arise out of 
 that grant, are not material for consideration in the present case, 
 the question here being confined to the rights of the female plain tiff. 
 It is stated, however, that although the defendant has administer- 
 ed as adopted son of the deceased, he would, were such adminis- 
 tration defective, be entitled to administer as his nephew. 
 
 The rights of an adopted child to share in the estate and 
 effects of an intestate adoptive father have been the subject of 
 several decisions in the Supreme Court of these Settlements, in 
 cases of administration of the property of Chinese, among whom, 
 the custom of adoption largely prevails, but these cases have not 
 unfortunately been decided uniformly. 
 
 It is net disputed that the same law is, however, applicable to 
 each Settlement. 
 
 ,The tirst case of which we have any public notice is that of 
 In the goods of Abdullah, tried by Sir Benjamin Malkin in 1835 ; [a] 
 and the next a case of "In re Chee Siang Long's Estate" tried by 
 Sir William Norris in 1843. Both the learned Judges, in these 
 cases, decided that an adopted son or daughter of an intestate 
 Chinese was to be preferred to the nephew, and it may be taken, I 
 think, from their observations in the case, that they would have 
 held adopted children of either sex entitled equally with other 
 
 [a] Ecclesiastical cases, Vol. II. of .these Reports. 
 
414 OIVIL OASES. 
 
 Fobd, children of the intestate — supposing such classes to co-exist. Sir 
 ag. C. J. William Norris, in terms, followed the reasoning and conclusions of 
 __ Sir Benjamin Malkin, and each rested his decision on the expres- 
 Khoo Tiano sions of indulgence and protection to be afforded to the various 
 Bee & anok. nations resorting to these Settlements, contained in the Charters 
 Tan Beng constituting the Court, those of 1807 and 1826. It was admitted 
 GLwat. that this degree of protection and indulgence was not very clearly 
 defined, but the learned Judges saw no objection in the case of 
 Chinese to the admission of the custom of adoption amidst our 
 laws of inheritance. The language of the Charters, [and in this 
 respect the subsequent Charter of 1 855, does not differ from prior 
 ones, and its terms are still applicable to the Court as since con- 
 stituted] shortly epitomized, established a Court of Judicatuie, 
 which was to exercise all the jurisdiction of the English Courts of 
 Law and Chancery, " as far as circumstances will admit," and jur- 
 isdiction as a.n Ecclesiastical Court, "so far as the several religions, 
 "manners, and customs of the inhabitants will admit." 
 
 These cases were followed, I think, in order of date by the 
 case of "In the goods o/Meh Allang" decided .by Sir Benson Max- 
 well in 1868, in which, administration was refused to' an adopted 
 daughter in favour of collateral next of kin ; and this case is the 
 one, I apprehend, referred to by that learned Judge a few months 
 after in the case of Regma v. Willans, [a] as decided in ignorance of 
 the previous decisions, but still upon further consideration, a 
 decision he deemed correct. 
 
 In the case of Regina v. Willans — not, however, a case in 
 which the question of adoption immediately arose, Sir Benson 
 Maxwell had occasion to reconsider the whole question of what 
 law was in force in these Settlements, and in a most elaborate 
 judgment, whilst agreeing with Sir Benjamin Malkin's view, that 
 the law of England was that introduced by the Charters into these 
 Settlements, held that the exceptions and indulgences in favor of 
 the manners and customs of foreign races, locating themselves here, 
 were not to be determined by an unregulated application of the 
 language creating such exceptions as the Court in its discretion 
 might seem fit, but by those principles and rules of the law of 
 England, applicable to possessions such as these ; and that, under 
 English law, the necessary modifications in favor of the natives of 
 t these Settlements could be met by the application of the law of 
 Comity to foreigners commorant in British territories, and that, 
 under this principle of Jurisprudence, no modification such as 
 would so fundamentally alter the English law of Inheritance as to 
 admit adopted children as objects of succession could be made. 
 , The principle of "Comity," or as some writers have perhaps. too 
 hastily called it " Private International Law," was held by Sir Ben- 
 son Maxwell, as I understand his able and elaborate judgment, to 
 govern the 'admissible circumstances' under which the inhabitants 
 of these Settlements were to have the benefit of modifications of 
 English law, in favor of their own habits and usages, and the 
 words of the Charter, if of any effect, were but confirmatory of 
 
 [a] Magistrates' Appeals, Vol. III. of these Reports, 
 
STRAITS SETTLEMENTS. 
 
 418 
 
 V. 
 
 Tan Beno 
 
 GrWAT. 
 
 this customary legal concession. The principles of this decision Po o D j 
 were again applied by the same learned Judge, in the case of ^i^. ' 
 
 Ghoa Ghoon Neoh v. BpotUswoode [Woods' Oriental Gases] [a] 
 
 where determining the effect of a gift by a Chinese for the perform- Khoo Tiang 
 ance of " Sinchew" ceremonies, the learned Judge holding it to be Bxi; AN ' oE " 
 void, as infringing the law against perpetuities. So much of his 
 decision, as pronounced the law of England to be in force in this 
 Colony, and declared the degree in which in cases of the kind, regard 
 should be had to the habits and usages of the various people resid- 
 ing in it, to be correctly stated, has been expressly confirmed by 
 the Privy Council in the case of Ong Cheng Neo v. Yeap Gheah Neo 
 & ors. [6 L. R. P. C. p. 38] , [6] but whether modifications in favor 
 of the habits and usages of foreign races dwelling here are to flow 
 from the express provisions to that end in the Charter itself, or to 
 follow as the sequence of the introduction of English law under 
 the principle of Comity, as laid down in Begina v. Willans, was not 
 a question directly before their Lordships, and I gather from the 
 language of their judgment [p. 393] that their Lordships considered 
 such modifications might not only flow from the language of the 
 Charter, but even a third source, viz., that principle of law which 
 attached to subjects of the British Crown settling in a new country 
 such modifications in the law of their original domicile as the 
 circumstances of the place required. The application of this latter 
 principle would certainly meet with some difficulties having regard 
 to the actual circumstances under which our present population 
 has found its way here, but they say : — 
 
 "With reference to this history, it is really immaterial to con- 
 " sider whether Prince of Wales' Island, or, as it is now called, 
 " Penang, should be regarded as ceded or newly settled territory, for 
 " there is no trace of any laws having been established there, before 
 " it was acquired by the East India Company. In either view, the 
 " law of England must be taken to be the governing law, so far as it 
 " is applicable to the circumstances of the place, and modified in its 
 " application by these circumstances. This would be the case in a 
 " country newly settled by subjects of the British Crown ; and, in 
 "their Lordships'- view, the Charters referred to, if they are tobere- 
 " garded as having introduced the law of England into the Colony, 
 " contain in the words, 'as far as circumstances will admit,' the 
 " same qualification." 
 
 It is to be observed that from whatever source the modifica- 
 tions of English Law in favor of native usages and customs come, 
 they do not reach us in a compact body of very well ascertained 
 rules and decisions. The words " as far as circumstances will 
 " admit," necessarily leave some scope for the discretion of aCourt in 
 the application of English Law to the ever varied circumstances 
 of new Settlements, and even the application of the principle of 
 comity fails as a guide, immediately we have to travel off a 
 few well beaten tracts. The fabric of International Comity, 
 or private international law, seems to me to have but com- 
 paratively few stones of its foundation yet laid, and in the 
 
 [o] ante p. 216. [6-] ante p. 326. 
 
418 CIVIL OASES. 
 
 Ford, absence of Statute Law on the subject— which, until greater 
 ag. C,J. exigencies arise from the intercourse of nations and the mix- 
 1877 - ture of races, than any now existing we can hardly expect, 
 Khoo Tiano — must, it seems to me, even with this available source as 
 Bee & anor^ a guide, be left to the discretion of the various Courts, who 
 Beno ma y ^ave to determine the extent of modifications in favor of 
 Owat N i the customs and usages of natives settling within their jurisdic- 
 tion. Modifications made in the case of a numerous race inhabit- 
 ing Settlements such as these, might well be refused to two or 
 ■ three of their number domiciled in London. Sir Eobert Phillimore 
 in his work upon International law [Vol. IV., p. 11,] even says of 
 it : — " It is a matter for rejoicing that it has escaped the procrus- 
 " tean treatment of positive legislation, and has been allowed to 
 " grow to its fair proportions under the influence of that science, 
 " which works out of conscience, reason and experience, the great 
 " problem of Law in Civil Justice." 
 
 The temptation to adopt the more clearly defined principle of 
 Jurisprudence, applied by Sir B. Maxwell in Begina v. Willans, is 
 a natural one, but, attentively as I have considered that very 
 able judgment, I am yet not satisfied that under the principle of 
 Comity, it is possible to range all the modifications that might be 
 required to meet the circumstances of these Settlements. The 
 principle, however, of attentively regarding what modifications 
 the law of England has refused to make in favor of the foreigner, 
 seems to me of the soundest and the best of all restraints upon a 
 really irregular application of that discretion which Sir Benson 
 Maxwell condemned. By common consent, iadependent nations 
 have determined that Comity disregards all Foreign law, whether 
 in the garb of religion, usage, or otherwise, in respect of heirship 
 or succession to immoveable property, and although the peculiar 
 circumstances of these Settlements have let in the case of other 
 than the 1st wif e of Mahomedans to a departure from this principle, 
 or, to quote the language of Sir Ben son Maxwell in Regvna v. Willans 
 — to, perhaps, the " stretching beyond its legitimate limits a well 
 " established principle," — I think that principle so sound a one, and 
 well settled that a strong case of injustice or oppression should be 
 shown, before a Court should decline to have its discretion guided 
 by it. But whether or not injustice or oppression of sufficient gravity 
 to lead to this exception in favor of a Mahomedan's second or 
 other wives, has been made out, the practice of allowing them to 
 share in the husband's estate, is too well established to be now 
 shaken. But that a case of such injustice, or oppression, can be 
 made out in the case of the custom of adoption, which would 
 counterbalance the weight and soundness of that policy, which is 
 i embodied in the rule of English law which would exclude such a 
 ,custom amongst its laws of inheritance, I do not think. The in- 
 troduction or the custom would be to add one more to the many 
 conflict of laws which in Settlements composed of so many 
 diverse races, are continually arising ; to introduce a principle, still 
 further foreign to those general laws of succession which prevail 
 in them ; and, as far as I can see, without any potent counter- 
 balancing advantage. The custom is also one of Chinese law in 
 
STRAITS SETTLEMENTS. 
 
 417 
 
 FoBD, 
 
 ag. C. J. 
 
 1S77. 
 
 Bee & anoe. 
 
 V. 
 
 Tan Beno 
 Gwat. 
 
 respect of which, we are imperfectly acquainted with, and have 
 not the means of more perfectly ascertaining. It is in itself highly 
 undesirable to multiply laws of inheritance in any country, but, per- 
 haps, more especially over small Settlements such as these. That Khoo Tiang 
 uniformity in such a matter, contributes to the diffusion of a 
 knowledge of, and certainty in, the law itself, is also of the greatest 
 advantage. 
 
 For these reasons and fortified by those decisions which have 
 determined that laws affecting succession to immoveable pro- 
 perty, are of general, and not merely local policy, and are not un- 
 adapted to the conditions and wants of races similarly placed to 
 those here, I am of opinion it is my duty to follow the decision of 
 Sir Benson Maxwell rather than those of his predecessors. Neither 
 do I see sufficient reason to depart from this view in this case, 
 because the claim is to personal or moveable and not immoveable 
 property. I should, have some difficulty, perhaps, were I to limit 
 myself only by the somewhat unsettled obligations of Comity as to 
 the rights of foreigners commorant in purely personal estate, but 
 calling to the aid of the Court that discretionary power which, it 
 seems to me, it must sometimes exercise upon grounds of policy, 
 and which is fully accorded to it, both under the words of the 
 Charters introducing English Law into these Settlements and 
 under the general principle of English Law by which its provisions 
 have effect in these Settlements, " as far as circumstances admit," 
 I think, I am correct in coming to a similar conclusion in the 
 matter of personal estate. The circumstances of inconvenience 
 or injustice in^aeclining to recognise this practice of adoption, do 
 not seem to me sufficiently grave to call for the modification of 
 English Law, as sought. Indeed with an absolute testamentary 
 power, and that full knowledge of the terms under which Chinese 
 settle in this Colony, which this and previous decisions may be 
 supposed to give, it will be hard to make out much semblance of 
 their existence. 
 
 The demurrer must be allowed. 
 
 CTJREIEE v. LEE PEE CHTJAN & OES. 
 
 If a Bill of sale refers to a list of the articles assigned, but no copy of the list is re- 
 gistered along with the copy of the bill of sale under the Ordinance 22 of 1870, Sec- 
 tion 18, the registration and bill of sale are void against an execution creditor. 
 
 The object of the Ordinance 22 of 1870, Bection 18 et seg. is the same as the 
 English bilk of sale Act, 
 
 This was an interpleader. The defendants herein, the execu- 
 tion creditors, had obtaine d judgment against one Matthew Mclntyre, 
 and had seized certain household and office furniture and other 
 goods belonging to him. Prior to the judgment and seizure, the 
 said Matthew Mclntyre had executed a bill of sale, by way of 
 mortgage, of the said furniture and goods to the claimant herein, 
 to secure a sum of $3,000, due by him to the claimant. The bill 
 of sale referred to a list of the articles mortgaged, and to the 
 original bill of sale a list was attached. A copy of this bill of 
 
 Penang. 
 
 Wood, J. 
 1878. 
 
 January 21. 
 
419 
 
 CIVIL OASES. 
 
 Wood, J., 
 1878. 
 
 CURRIEB 
 
 V. 
 
 Lee Fee 
 Chuan 
 
 & QBS. 
 
 sale had been registered under the Ordinance 22 of 1870, sec- 
 tion 18, in the Eegistry of the Supreme Court, with the usual 
 affidavit ; but no copy of such list was filed along with the copy of 
 the bill of sale. The list referred to property seized by the execu- 
 tion creditors. 
 
 Thomas, for the execution creditors, contended, that the bill 
 of sale was void, as a copy of the list referred to in the bill of 
 sale had not been filed. The Ordinance 22 of 1870, sec- 
 tion 18, required that any schedule or list referred to by the bill 
 should be registered, whether the same was annexed as part 
 thereof or not. 
 
 Van Someren, for the claimant, contended that the Ordinance 
 22 of 1870, section 18, was not so stringent, and severe as the 
 Bills of sale Act at home, as it omitted the words " null and void 
 " to all intents and purposes." These words being omitted in the 
 Ordinance, the bill of sale was merely irregular, and the omission, 
 an oversight, but could easily be put to rights by annexing a copy, 
 as the original existed, and as the omission did not prejudice the 
 execution creditors. The Ordinance also contained no preamble 
 like the English Act, which distinctly tells one the object and 
 reason of its being passed. That object was evidently not the 
 object of the Ordinance, as the preamble is omitted, and the words 
 referred to, also omitted. Miller & Collier on Bills of Sale, 
 [ 3rd ed.J pp. 26, 27, 28. 
 
 Wood, J. I am of opinion that the bill of sale referring to 
 a list of articles, a copy of which was not registered, the registra- 
 tion was void, and the bill of sale also. I consider that the object 
 of the Legislature, although not expressed in a preamble as in the 
 Imperial Act, was to protect the general body of creditors, and 
 that it is incumbent upon a person who takes a bill of sale from 
 another, to obey the requirements of the Act, which states that he 
 is to register " the lists referred to," in the bill of sale, and that 
 failing to do so, the omissions against the spirit, and letter of the 
 Ordinance 22 of 1870, section 18. The judgment must be for 
 the execution creditors. 
 
 VEITCH v. DE MOENAY. 
 
 PenANG. A declaration that the plaintiff was the Colonial Surgeon of this Settlement, and 
 
 as such had charge of and was responsible for the good management, order aiid con- 
 
 Wood, J., duct of the General Hospital at Penang and the Hospital at Butterworth, Province 
 
 1878. Wellesley, and for the proper medical treatment of the patients therein, and that the 
 
 defendant, with intent to injure the plaintiff, falsely and maliciously spoke and pub- 
 January 28. lished of the plaintiff, in relation to the General Hospital, the words following :— " It 
 
 " stunk ; it stunk," and averring in an innuendo, that the defendant thereby meant 
 that the General Hospital was so badly and negligently managed and conducted under 
 the plaintiff, that the Hospital stunk, whereby the plaintiff was injured in his reputa- 
 tion as a medical man, and in his office of Colonial Surgeon in charge of the Hospital — 
 and with the like intent, also falsely and maliciously spoke and published of the plaintiff 
 in relation to the Hospital at Butterworth, the words following ; " People are sent in 
 " curable, and sent out incurable," and averring in an innuendo, ' that the defendant 
 thereby meant that patients were sent to that Hospital curable, but owins- to the nesli- 
 
STRAITS SETTLEMENTS. 419 
 
 The above words were spoken by the defendant in the presence of the plaintiff, and Wood, J., 
 several other gentlemen, in reference to the general state of and matters connected with 1878. 
 
 these public Hospitals : no express reference was made to the plaintiff therein. 
 
 Held, the communication was privileged, and in the absence of actual malice, an Vbitch 
 action did not lie therefor. v. 
 
 De BIobnat. 
 
 This was an action of slander. The declaration in the first 
 count stated, that at the time of the committing.of the grievances 
 hereinafter mentioned, the plaintiff was in the service of the 
 Colonial Government of the Straits Settlements, as Colonial Sur- 
 geon and Senior Medical Officer in charge of the Government 
 Hospitals in Penang and Province Wellesley, and, as snch, was 
 responsible for the good management, order and conduct of the said 
 Hospitals, and the defendant falsely and maliciously spoke and 
 published of the plaintiff, in relation to the Government General 
 Hospital in Penang aforesaid, the words following, " It stunk, it 
 " stunk," meaning thereby that the said Government General 
 Hospital was so badly and negligently managed and conducted 
 under the plaintiff's superintendence, that the said Hospital stunk : 
 whereby the plaintiff was injured in his credit and reputation as 
 a medical man, and in his said Office of Colonial Surgeon and 
 Senior Medical Officer, in charge of the said Hospitals. 
 
 The second count began as the first and continued, " and as 
 " such was responsible for the good management, order and con- 
 " duct of the said Hospitals, and the proper medical treatment of the 
 " patients therein, and defendant falsely, &c, spoke, &c, of the 
 " plaintiff, in relation to the Government Hospital at Butterworth, 
 " the words, &c. : " People are sent in curable, and sent out in- 
 " curable," meaning thereby that patients are sent into Butter- 
 " worth Hospital curable, but owing to the negligence and unskil- 
 " ful treatment they receive there, they are sent out incurable, 
 " whereby the plaintiff was injured, &c," as before. 
 
 The defendant demurred to this declaration, on the ground 
 that it did not disclose a sufficient right of action in the plaintiff to 
 maintain this action. The plaintiff joined in demurrer. 
 
 Clarke, for the demurrer. Neither of the counts shew a suffi- 
 cient cause of action. The words themselves are not defamatory, 
 and do not refer in terms to the plaintiff, either expressly or 
 impliedly. There must always be an averment of the manner in 
 which the words spoken, as connected with the person alleged to 
 be slandered. Solomon v. Lawson, 15 L. J. Q. B. [~N. S.] 253. 
 
 Ross, for the declaration, was not called on. 
 
 Wood, J. The question is whether the declaration sufficiently 
 avers that the words spoken, were spoken of the plaintiff, and not 
 of the conduct of the Hospitals, as a matter distinct from any 
 direct imputation of blame attaching to him. The words impute 
 mismanagement and negligence : they do not in themselves refer 
 to the plaintiff, but the declaration states they were spoken of him. 
 Whether they did, or did not, is a matter of enquiry ; but on this 
 declaration, it must be taken to be sufficiently averred that they 
 did. Tbe demurrer will be overruled. 
 
 Demurrer overruled. 
 
 29th January, 1878. The case was now gone into on its 
 
420 CIVIL OASES, 
 
 Wood, J., merits. The defendant pleaded not guilty, and also admitted 
 1878 * that the words were spoken, but denied the meaning assigned to 
 V^h them, and averred the truth of same. It appeared from the 
 v. evidence that the words were spoken by the defendant in the pre- 
 
 De Moknat. sence f the plaintiff, in a general conversation among several 
 gentlemen, at the George Town Club, in reference to the general 
 state of the Hospitals. No express reference was made to the 
 plaintiff in this conversation, although it imputed blame some- 
 where. The plaintiff considered these remarks reflected on him, 
 and in answer to a question put during the trial, said, that he 
 held himself responsible, as medical officer having them in chargef 
 for the proper conduct of the Hospitals. On the conclusion o, 
 the plaintiff's case, 
 
 Clarice, for defendant, moved for a non-suit, on the grounds 
 that the communication was privileged, as being a matter of pub- 
 lic interest commented on, and there was no proof of actual malice 
 beyond that implied from the falseness of the words spoken. 
 Howard v. Harrison, 7 L. R. C. P. 606, also that the statement 
 was not directed towards the plaintiff nor necessarily affected him. 
 
 Ross, for plaintiff, submitted that the allegations in the decla- 
 ration were proved, and this was not a privileged communication. 
 Dairies v. Duncan, 9 L. E. C. P. 396 ; Dixon v. Hilliard, 9 L. E. 
 Ex. 879. 
 
 Wood, J. As was obvious from the opening of the case, the 
 plaintiff has failed to shew actual malice on the part of the defend- 
 ant towards the plaintiff, nor has it been shewn that the words 
 used referred to the plaintiff personally — nor — if indeed, such, 
 a proposition was capable of proof — that the plaintiff was responsi- 
 ble for any misconduct in the public hospitals, of which he was 
 not himself guilty. But irrespective of the question of truth, 
 the plaintiff's case shewed that the statements complained of 
 were such as the law of England considers a privileged com- 
 munication. They were free statements concerning a public 
 institution, made by one of the public, to a person who had a 
 direct interest in the matter, among other persons having also a 
 general interest in the subject. Such freedom of discussion — 
 the freest discussion of public institutions — and it might be said 
 of public characters, and the officers of the Grown in connection 
 with these institutions — imputing though they might, blame on 
 the individual, or the institution in question, if free from personal 
 malicious feeling — were — as being consistent with the well-known 
 privileges and liberty of the subject — not actionable at law. 
 There will therefore, be a non-suit in this case. 
 
 Non-suit. 
 
STRAINS SETTLEMENTS. 421 
 
 SALMAH AND FATIMAH, INFANTS, BY THEIR NEXT 
 FRIEND SHAIK OMAR v. SOOLONG. 
 
 A Sho.fi female who has arrived at puberty', may lawfully renouuce the tenets of Sxngapoeb. 
 that sect, and embrace those of the Hanifa. 
 
 According to the Hanifa sect, a girl who has arrived at puberty, is legally emanci- Sidgbeaveb, 
 pated from all guardianship, and is at liberty to marry whom she chooses, whether her C. J., 
 equal or otherwise. 1S78. 
 
 An Arab Shan female, having arrived at puberty, was desirous of marrying a • 
 
 Kling Mohamedan ; her Guardian or W'ali, refused to consent to the marriage, on the February, 26. 
 
 ground, that she being an Arab, and so considered of a superior caste, could not marry 
 
 any person other than of her own nationality. The girl went through the ceremony 
 
 of marriage with the man, without her guardian's consent, and the guardian obtained 
 
 an injunction from this Court restraining the consummation of the marriage. On a 
 
 first motion to dissolve the injunction, the Court refused to do so, the girl being then 
 
 still a Shafi, according to which sect a virgin could not contract marriage at any age, 
 
 without her guardian's consent. The girl then renounced the tenets of the Shafi sect, 
 
 and embraced those of the Hanifa, and then renewed her application. 
 
 Held, that her change of sects was valid ; and, as a Hanil'i, she being of the age of 
 puberty, was emancipated from all guardianship, and at liberty to marry whom she 
 chose, and the injunction was dissolved with costs. 
 
 Mahomed Ibrahim v. Gulam Ahmad, 1 Bom. H, C. Rep. 239, followed. 
 
 This was a suit by the next friend of the above-named infants, 
 in their names as plaintiffs, against the defendant, their mother, 
 for an injunction restraining the consummation of an alleged 
 marriage between the second named infant plaintiff, with one 
 Ismail, a Kling Mahomedan. An interim injunction had been 
 granted, and the mother moved for its dissolution, which was 
 refused. New circumstances having thereafter arisen, a second 
 motion was made for that purpose, which is the one reported. 
 The facts giving rise to the motion, and the nature of the affida- 
 vits and evidence in the case, sufficiently appear in the judgment. 
 It is only necessary to add, that the infants appeared to be 
 merely nominally plaintiffs, their uncle, the next friend, being 
 really the plaintiff — there was no reason, however, to doubt the 
 hond fides of his proceedings. 
 
 Bond [Bunlop, with him] for defendant in support of the 
 motion. 
 
 Donaldson, for plaintiffs [the next friend] opposed it. 
 
 Cur. Adv. Vult. 
 
 On this day, judgment was delivered by 
 
 Sidqr eaves, C. J. This was a motion to dissolve an injunction 
 originally granted on the 4th April, restraining the consummation 
 of a marriage between one Fatimah and Ismail, without the con- 
 sent of the "Court, on grounds declared upon affidavit. The matter 
 was subsequently argued before me in Court, on a motion to dis- 
 solve the injunction, but the motion was refused on the grounds 
 then stated, in a written judgment which I delivered. The present 
 motion came on upon further affidavits that the girl Fatimah had 
 renounced the Shafi, and adopted the tenets of the Hanifa sect, 
 and also of Dr. Rowell, that she was npparently of the age of 17 
 years, and quite marriageable. The motion to dismiss the injunc- 
 tion was resisted on the ground that the proposed marriage was 
 not an equal one, and that inasmuch as Fatimah was the daughter 
 
422 
 
 CIYIL OASES. 
 
 C.J 
 
 1878. 
 
 Salmah 
 
 &. ANOR. 
 
 if. 
 
 SOOLONO. 
 
 Sidgreaves, of an Arab fatter, although of a Malay mother, and that Ismail 
 •was a Mohamedan Kling, the marriage was not a valid one -with- 
 out the consent of the Wali or Guardian of the gild, who in this 
 instance, is Shaik Omar, the paternal uncle of Fatimah, and refuses 
 to give his consent to it. The question of equality was argued 
 before me, and although considering the necessitous circumstances 
 of the girl, the marriage would, in every other respect, be advan- 
 tageous to her, yet in point of caste, she being the daughter of an 
 Arab father, would be considered as superior to Ismail, her intend- 
 ed husband. The circumstances of the girl Fatimah and the 
 relations which her guardian has hitherto had towards her, appear 
 from the affidavit of Soolong, mother of Fatimah : — 
 
 " I the said Soolong for myself say, I am a Malay, and was married about 
 twenty years ago to one Shaik Allie hm Awal Thalap, by whom I had three 
 daughters, bom during the first three years subsequent to my marriage, 
 namely Zannah, who is since dead, and Salmah and Fatimah, the plaintiffs 
 above-named. 
 
 " 2. My husband, the said Shaik Allie, died about three years after the 
 birth of my youngest daughter, the above-named Fatimah, leaving me in such 
 a state of penury, that I was obliged to apply to relations and friends for 
 assistance to enable me to defray the expenses of his funeral. 
 
 "3. After the death of my husband, the said Shaik Allie, I went into 
 service as a nurse in different families and supported my children by my 
 earnings until my sister Mandak, wife of one Mohamed Mustan, took them 
 to live with her. \ This was about four years after my husband's death, and 
 my children, the plaintiffs above-named, have from that time lived with the 
 said Mandak, and been maintained entirely at the cost of the said Mohamed 
 Mustan down to the time of his death, which happened about seventeen 
 months ago, and since"then at the cost of the said Mandak. 
 
 " 4, I have, since the death of the said Shaik Allie, been twice married, 
 and am now the wife of one Mohamed Imbee, but the circumstances of 
 neither of my husbands were sufficiently affluent, to enable me to support my 
 daughters, the plaintiffs, besides the children of which, I am the mother by 
 my subsequent husband. 
 
 " 5. The affidavit of Shaik Omar bin Sahlaf , filed in this cause, has 
 been translated and explained to me, and I deny the statement made in the 
 second paragraph of the said affidavit, that the plaintiffs and myself have 
 since the death of the said Shaik Allie, been mainly supported by the said 
 Sliaik Omar. From the date of my husband, the said Shaik Allie's death, the 
 said Shaik Omar has not in any way, contributed to my support, and to the 
 best of my information and belief, all that the said Shaik Omar has ever done 
 for my daughters, the plaintiffs, was to make them a present of a Sarong 
 and twenty-five cents apiece, and I further say that the plaintiffs, my 
 daughters are not, to be best of my information and belief, possessed of 
 household property situate at Campong Glam or elsewhere, or of any property 
 whatsoever. 
 
 " 6. The said Shaik Omar, with the exception of one visit which he made 
 about five years ago, has been continuoiisly absent from Singapore for up- 
 wards of ten years. On the occasion of his last' visit to Singapore, he wished 
 to take my daughters, the plaintiffs, with him to Batavia, but they refused to 
 leave Singapore. The said Shaik Omar is not a pure Arab. He was born in 
 Singapore and his mother was a native of Kotah in Sumatra." 
 
 Fatimah appeared in the witness-box and stated that she 
 contracted the marriage with Ismail at her own wish, and that it 
 was her wish that he should be her husband. 
 
 It does not appear from any of the affidavits put in by those 
 who are opposing the marriage, nor from any evidence adduced in 
 Court, what is to become of this girl in case of opposition to the 
 
STRAITS SETTLEMENTS. 
 
 423 
 
 C. J., 
 1878. 
 
 Salmah 
 
 & AN0K. 
 
 u. 
 
 SOOI/ONG. 
 
 marriage being successful. Apparently, she is to remain unmarried Sidgeeaves. 
 and indigent for the rest of her life, unless she abandons her pre- 
 sent lover with "whom she has already gone through the ceremony 
 of marriage, and marries an Arab, inasmuch as all others are said 
 to be forbidden her. 
 
 In my previous judgment, I referred to the case of Molvamed 
 Ibrahim v. Gulam Ahmed, [1 Bombay High Court Eeports] as 
 illustrating at pp. 239, 240, the distinction between the Shafi and 
 the Hanifa sects, and the difference of the law relating to their 
 marriage contracts. 
 
 It is contended, however, that although the girl is now a mem- 
 ber of the Hanifa sect, and has arrived at nubile years, she is un- 
 able to contract a marriage without the consent of her guardian. 
 The principal authority upon this point was Syed Mohamed bin 
 Shaik bin Sahil, Mufti of Johore, who made two affidavits to the 
 following effect : — 
 
 4. I am thoroughly conversant with the Mohamedan Law of Marriage, 
 having been educated in the Mohamedan Law at Hydermsut in Acabia, and 
 have been for the last six years and upwards, Mufti or Mohamedan Judge of 
 Johore. 
 
 5. According to the Mohamedan Law, the Wali of Mohamedan female 
 would, [the father and grandfather being dead, and there being no elder bro- 
 ther of full age] be the' paternal uncle, and no valid marriage of such female 
 can be contracted without the presence and consent of her Wali, but if the 
 Wali were resident in another country, twenty-four hours' journey by foot or 
 forty-five miles by sea, the Kazi or Judge, if duly appointed as such by the 
 Government of the country and not otherwise, might act as Wali. There is 
 no Kazi in the Straits Settlements, and the pretended marriage contracted 
 between the plaintiff Fatimah and the said Ismail, in the absence of her Wali 
 as set forth by the deponent, Shaik Omar, is null and void, 
 
 " 6. According to the Mohamedan law, an Arab female cannot inter- 
 marry with a Mohamedan of any other nation, without the consent of her 
 Wali, whether he is in the country or absent, and, if absent, his written 
 consent must be obtained, and for this reason also, the pretended marriage of 
 the plaintiff, Fatimah, is invalid. 
 
 In his second affidavit made on the 7th day of August, 1877, 
 after Fatimah had renounced the Shafi, and joined the Hanifa 
 sect, he says : — 
 
 I agree that a Shafi woman, after attaining puberty can, with the consent 
 of the Kazi of the country, for a reason, but not otherwise, enter the Hanifa 
 sect, and that the legalty of her subsequent marriage will be determined by 
 that law, and I agree also that a virgin, after " attaining puberty, can contract 
 '• a valid marriage without the consent of her father or guardian, subject oidy 
 " to this condition, that it be what is known as Koofoo or equal, but neither 
 " by the Shafi nor Hanifa Law can a virgin contract a valid marriage that is 
 " not " Koofoo," without the consent of her parent or guardian, and it that 
 " parent or guardian has been absent, and the marriage contracted by the 
 " Kali as Wali, the parent or iguardian has the power to separate the parties 
 " on his return until there has been issue of the marriage.." 
 
 " According to both Shafi and Hanifa, an Arab woman is not " Koofoo" 
 " with an " Ajab" which includes both Klings and Malays, and accordingly no 
 " marriage between the plaintiff Fatimah and Ismail can be valid, without the 
 " consent of the Wali or Guardian of the said Fatimah who, in this case, is 
 " Shaik Omar bin Awath bin Thabah, her father's brother." 
 
 " I cite as my authority for the statements of Mahomedan Law above 
 " given, the " Aldorul-Muktar," of Imam Hanifa, the great authority of the 
 
424 
 
 CIVIL CASES. 
 
 SlDGBEAVES, 
 C. J., " 
 
 1878. 
 Salmah 
 
 & ANOE. 
 
 ■0. 
 SOOLONG. 
 
 " Hanif a sect, at the chapter in " Wali" p. p. 458-9 and 498, which I now pio- 
 " duce for the information of this Honorable Court." 
 
 Now the principles of Mahomedan Law as stated here, do not 
 appear to me to agree with, those laid down in the case above 
 referred to, nor with those of the leading writer npon the principles 
 of Mahomedan Law. 
 
 In Hamilton Hidaya, Vol. 1, p. 95, the chapter on " Guardian- 
 " ship and Equality," commences thus : — 
 
 " A woman who is an adult, and of sound mind, may he married by 
 virtue of her consent, although the contract may not have been made or 
 acceded to by her guardian ; and this, whether she be a virgin or a Siyeeba. 
 This is the opinion of Haneefa and Aboo Toosoof as appears in Tahie 
 Rawayet. It is recorded from Aboo Yoosoof, that her marriage cannot be 
 contracted except through her guardian. Mohamed holds that the marriage 
 may be contracted, but yet its validity is suspended upon the guardian's 
 consent ; on the other hand Malik and Shaf ee assert that a woman, can, by 
 no means, contract herself in marriage to a man in any circumstance, whether 
 with or without the consent of her guardians, neither is she competent to, 
 contract her daughter or her slave, not to act as a matrimonial agent for any 
 one, so as to enter into a contract of marriage on behalf of her constituent ; 
 because the end proposed in marriage, is the acquisition of those benefits 
 which it produees, such as procreation, and so forth ; and if the performance 
 of this contract were in any respect, committed to women, its end might be 
 defeated, they being of weak reason, and open to flattery and deceit. 
 Mohamed argues that this apprehension is done away by the permission of 
 the guardian, being made a requisite condition. The reasoning upon which 
 the Tahir Rawayet proceeds in this case is that, in marrying, the woman has 
 performed an act affecting herself only and to this she is fully competent, as 
 being sane and adult and capable of distinguishing good from evil, whence it 
 is that she is by law capacitated, to act for herself in all matters of property 
 and likewise to choose a husband; neither does a woman require her guardian 
 to match her for any other reason than as she may, by that meanB, avoid the 
 imputation which might be thrown upon her modesty if she were to perform 
 this herself, for all which reasons, a woman, contracting herself in marriage 
 is valid, independent of her guardian, although it should be an unequal match; 
 but yet, in the latter case, the guardian is at liberty to dissolve the marriage. 
 It is recorded as an opinion of Haneefa and Aboo Toosoof, that the marriage 
 is illegal if there be an inequality between the parties. It is also recorded 
 that Mohamed, afterwards adopted the sentiments of the two elders upon 
 this point, and agreed with them, that the marriage here_ treated of, is- law- 
 ful, and that its validity is not suspended upon the approbation of the 
 guardian." 
 
 Now amid a good deal that is confusing and perplexing in 
 this paragraph, I think we may deduce from it that Mohamed 
 finally adopted the opinions' of Hanifa and Aboo Yoosoof as enu- 
 ciated in the opening of the Chapter that ; " A woman who is an 
 " adult and of sound mind may be married by virtue of her own 
 " consent, although the contract may not have been made or ac- 
 " ceded to by her guardian." 
 
 In Macnaghten's Principles of Mohamedan Law, it is laid 
 down at p. 64 : " The marriage of a free adult and discrete damsel 
 " with a man equal in condition of life, is good and valid, without 
 " the permission of her guardian, but the guardian may object if 
 " there be not equality between the parties." At p. 268, however, 
 he says ; " According to the Nigaya, the marriage of a free-woman 
 " possessing mature judgment is valid without the consent of a 
 
STRAITS SETTLEMENTS. 
 
 425 
 
 C.J. 
 
 1878. 
 
 Salmah 
 
 <fc AN OB. 
 
 V. 
 SOOLONQ. 
 
 " guardian, although contracted with one not equal in point of Sidgreaves, 
 " condition." And then in a note he refers to a previous case to 
 show that this is not correct. To Baillies' Digest I have already 
 referred in uiy previous judgment. 
 
 In a work on the Mahomedan Law published in 1873, by 
 Shama Churim Sircar, the Tagore Professor of Law, appointed by 
 the Calcutta University, the principles of which he says, in the 
 preface, have been deduced from the Hedaya and the Fatawa-i 
 Alaingiri, and occasionally from Hark-ul-Vikayah-Jami-ur-Raumg 
 and other works of great weight, authority is to be found for the 
 support of either proposition contended for. In his Treatise on 
 guardianship in marriage, at p. 334, he says. : — If a female on 
 attaining puberty, "contracts herself in marriage without the con- 
 " sent of her guardian, and the match be unequal, her guardian 
 " has a right to object with a view to set the marriage aside." 
 
 And he refers to Macnaghten in a note as an authority for 
 that proposition. At p. 320, however, afc the commencement of 
 the same Chapter, he says : " [a] The marriage of a free and adult 
 " woman [contracted] without [the interference of] a guardian is 
 " valid even though the match be unequal, and though the guardian 
 " may make an objection with respect to the latter. By the men- 
 " tion of a free and adult woman, it is intended that marriages of 
 "minors, and slaves are not valid; for it is agreed by all, that 
 "guardians are necessary for the validity of their marriages." 
 [Shark-ul-Vikayah with Chalpi, Vol. II, p. 332.] 
 
 This work is quoted as an authority in the Bengal Law Reports, 
 High Court, Vol. XIII, p. 162, and at p. 300 in his Chapter on 
 marriage, I find the following : " Except Islam" and freedom, 
 "equality in any other respect is not invariably observed in Ajam 
 " or in a country other than Arabia." 
 
 I have referred to all the translations that have been put in, 
 but I have failed to deduce any more satisfactory conclusion from 
 them than from the text books. 
 
 The case, however, to which I have already referred, Mahomed 
 Ibrahim v. Gulam Ahmad, seems to me to explain the difficulty 
 which one meets with in referring to these different authorities. 
 It is impossible to lay down any general proposition which shall be 
 true of the different Mohamedan sects, inasmuch as the law and 
 the custom which apply to the one do not apply to the other. The 
 learned Judges who decided that case must have had ready access 
 to all the authorities bearing upon the subject, and the result of it 
 is embodied in one short paragraph at p. 239. 
 
 " Hanifa and Shafi are the most celebrated of the four schools into 
 " which orthodox Mohamedans are divided. They are considered by each 
 " other to be equally orthodox in a spiritual sense, the differences between 
 " them relating only to their expositions of temporal law, as deduced from the 
 " Koran and other sources to which orthodox Mohamedans refer for their 
 " religious tenets. The respective followers or disciples of Hanifa and Shaft, 
 " under the denomination of Hanifites and Shafites, profess to be governed in 
 " their temporal affairs by the opinion of those founders of their sect or 
 " school, and the acts of these followers are, accordingly, treated as lawful or 
 " the contrary. For the purpose of this case it is only necessary to refer to , 
 
426 
 
 CIVIL GASES. 
 
 SlDOREAVES, 
 C.J. 
 
 1878. 
 Salmah 
 & ANOB. 
 
 V. 
 SOOLONG. 
 
 " one point of difference. Tlie Hanifites hold that a girl who arrives at 
 "puberty, without having been married by her father or guardian, is then legally 
 " emancipated from all guardianship, and can select a husband without re- 
 s' ference to his wishes. The Shafites, on the other hand, hold that a virgin, 
 " whether before or after puberty, cannot give herself in marriage without the 
 " consent of her father. The effect of a lawful change from the sect of Shafi 
 " to that of Hanif a, would be to emancipate the girl, who had arrived at 
 " puberty, from the control of her father, and to enable her to marry without 
 " consulting his wishes or obtaining his consent." 
 
 Now the words used here " legally emancipated from, all 
 " guardianship and can select a husband without reference to Lis 
 " wishes" are very strong, and, it appears to me, that I should be 
 acting in direct contravention of this decision, if I held that, on 
 the ground of unequality, this girl Fatimah was still subject to 
 her guardian, and that she could not select a husband without 
 reference to his wishes. I have no doubt that she has arrived at 
 a marriageable age, and I find on the authority of the case above 
 referred to, that her change from the Shafi to the Hanif a sect, was 
 a perfectly valid one. In' accordance therefore, with what have 
 been held to be the tenets of the Mohamedan law relating to 
 marriage contracted by persons belonging to the Hanif a sect, I 
 find that the girl Fatimah is now legally emancipated from all 
 guardianship, and that she can select a husband without reference 
 to his wishes, and the injunction restraining her from doing so, is 
 now dissolved with costs. 
 
 In re SHEEIFF OF PENANG. 
 
 Penans. It is a rule of construction, of a Statute or Ordinance., that the provisions 
 
 therein, cannot refer to powers and authorities not in esse, at time of its coining 
 
 Wood, J. into operation. 
 
 1878. Therefore, although by the Courts Ordinance 5 of 1873, the Sheriff is 
 
 empowered and required to execute all warrants and process of the Court, yet, 
 
 March 12. as he was neither empowered nor required thereby to execute distress warrants, 
 
 he could not be required to execute such warrants, issued under the Distress 
 Ordinance of 1876, in which latter Ordinance, he is not specially named as an 
 officer. 
 
 The Sheriff is not a " bailiff or other officer," within the meaning of the 
 Distress Ordinance. 
 
 This was a rule obtained by Mr. H. C. Vaughan, Deputy-Be- 
 gistrar of the Court, calling on Mr. J. B. D. Bodyk, Sheriff of Pe- 
 nang, to shew cause why he refused to execute a distress warrant, 
 issued by the Deputy-Eegistrar, under the provisions of the Distress 
 Ordinance 14 of 1876. 
 
 Van Someren, showed cause on behalf of the Sheriff. 
 
 H. C. Vaughan supported the rule. 
 
 Wood, J. In this case, on behalf of the Sheriff, it is urged, that 
 on a fair construction of the Distress Ordinance of 1876, it must 
 be concluded, that although the distress was to be executed by the 
 " bailiffs and officers" of the Court — " officers," meant officers 
 other than the Sheriff. In this view I concur. A 1 though by the 
 Ordinance of 1873, the Court may require the Sheriff to execute. 
 
STRAITS SETTLEMENTS. 427 
 
 writs, warrants, orders, &c, yet I consider that this provision has re- Wood, J. 
 ference to warrants and orders, &c, which the Court might then, 1878 , 
 at the time of the passing of the Ordinance, make ; but did not, inreSHEMFP 
 and could not, in accordance with a well-known rule of construe-: of Penang. 
 tion, refer to powers and authorities, not then in esse. 
 
 I consider the point to turn on the construction of the Dis- 
 tress. Ordinance of 1876, and seeing that the Sheriff was not only 
 not named in the Ordinance, as an officer thereunder, but, in 
 section 12, cl. 2, and section 23, is clearly distinguished from 
 " bailiffs and other officers" — and looking also at the dignity of 
 the Office, I hold that the Ordinance of 1876, did not contemplate 
 the employment of the Sheriff personally in the carrying out of a 
 distress, and decide in his favour. 
 
 Rule discharged. 
 
 S. A. VAN SOMEEEN v. BOON TEK & CO. 
 
 * 
 
 A person who knows a parcel contains a particular kind of articles, which are Penang. 
 
 of appreciable value, hut, on asking its value, is not told same, but who neverthe- 
 
 less accepts, without reward, such parcel to transmit to another, is hound to use Wood, J. 
 *' such care and diligence, as persons ordinarily use in their own concerns, and 1878. 
 " such knowledge and skill they have." 
 
 His duty under such circumstances is, to return the parcel to the person who April 16. 
 gave it to him, or keep it till he can communicate with that person, or the person 
 to whom it is to be transmitted ; but his accepting such parcel and thereafter 
 handing it to the carrier, without taking a parcel receipt, bill of lading or other 
 security therefor, is strong evidence of negligence, directly or proximately, result- 
 ing in the loss of such parcel, and for which he is liable. His handing it to his 
 clerk to hand to the carrier, without telling his clerk that the parcel contained 
 valuables, who, in consequence, did not inform, the carrier thereof, is an addi- 
 tional element of such negligence. 
 
 This was an action to recover f 351.50, being the value of jewel- 
 lery lost through the negligence of the defendants. The plain- 
 tiff was a planter in Deli, Sumatra ; the defendants were general 
 store-keepers in Penang, and, to a large extent, acted as agents for 
 planters in Deli. The plaintiff and defendants had had large deal- 
 ings with each other for several years, and the defendants had, 
 during that time received, without charge, various things for the 
 plaintiff, from different persons, and had. sent them on to the 
 plaintiff by the steamers running to Deli, by handing them to the 
 super-cargo on board such steamers, with instructions to hand them 
 to the plaintiff at Deli. No loss had heretofore occurred in the 
 transit of such goods from the defendants' hands to the plaintiff. 
 The jewellery in question, were ordered by the plaintiff, of one 
 Mr. Motion, of Singapore, with instructions to hand them to the 
 defendants at Penang. Mr. Motion accordingly sent the jewellery 
 to the defendants, by the hands of one Mr. Campbell: the defend- 
 ants received the parcel of Mr. Campbell, who told them it contain- 
 ed jewellery. The plaintiff also had written to the defendants to 
 say that a parcel of jewellery would be handed them from Sin- 
 gapore, and he asked them to forward same on to him. The plain- 
 tiff did not communicate the value of the articles to the defendants, 
 nor was Mr. Campbell, though asked by the defendants, able to 
 give its value. The defendants, through a clerk of theirs, in the 
 
428 
 
 CIVIL CASES. 
 
 Wood, J., 
 
 1878. 
 
 Van 
 
 SoMEREN 
 V. 
 
 Boon Tek 
 & Co. 
 
 usual way, handed the parcel to the super-cargo on board the 
 Colonel Phayre, with instruction to hand same to plaintiff at Deli, 
 but took neither bill of lading nor parcel ticket, or other receipt 
 therefor. The parcel never reached the plaintiff, and could not be 
 traced further than up to the time, when defendants' clerk handed 
 it to the super-cargo on board the Colonel Phayre as aforesaid. 
 The plaintiff claimed the value of the parcel from the defendants, 
 who declined to admit their liability. 
 
 Thomas, for defendants, contended that the defendants 
 although they received the box in question with knowledge that it 
 contained jewellery, yet as no knowledge was communicated to 
 them of tbe value of the goods though asked for, they were not 
 responsible, they having forwarded in the usual and reasonable 
 way of business, under the circumstances, by delivering it to the 
 super-cargo, without a bill of lading. He also contended that the 
 super-cargo of the Colond Phayre having received the things 
 on board, the owners of that steamer were liable, and were capa- 
 ble of being sued, so the defendants were not the proximate cause 
 of the loss. 
 
 Anthony, for plaintiff. 
 
 Wood, J. I am of opinion that the parcel having been de- 
 livered to defendants, and accepted by them, as bailee without 
 reward, for the purpose of forwarding it to Deli, with a knowledge 
 that it contained jewellery, but without any knowledge of its 
 value, they were bound to use " such care and diligence, as persons 
 " ordinarily use in their own concerns, and such knowledge and 
 " skill as they had," and that, thereupon, they were bound to ship 
 this parcel of unknown, though appreciable value, as goods of value 
 are ordinarily shipped, viz., with the security of a bill of lading 
 and not otherwise — they cannot by merely shipping it as an ordi- 
 nary newspaper, because they were unable at the time to declare 
 its value, relieve themselves of the obligation to send it in a man- 
 ner which was practically safe — but bound to keep it or return it, 
 until by communication with the consignor or consignee, they 
 were able to send it with reasonable safety. Beal v. South Devon 
 Railway, 5 H. N. 881 et sea., cited in Cogge v. Bernard, 1 Smith 
 L. Cases, 196. Inasmuch as there is evidence that inquiry was made 
 after the loss, but the parcel was never traced beyond the vessel, 
 the loss I consider, resulted directly from the direct negligence 
 of the defendant. 
 
 It is further to be remarked that the defendants not having 
 mentioned to their clerks, or the clerks of the ship, the fact of the 
 case containing jewellery, is an additional element of negligence, 
 m all probability, directly affecting the loss of the packet. There 
 must be judgment for the plaintiff. 
 
 Judgment for thu plaintiff. 
 
STRAITS SETTLEMENTS. 
 
 429 
 
 AMEEEAN v. CHE MEH alias ISMAIL. 
 
 The rule that a tenant is estopped from denying his landlord's title, applies to 
 every case of landlord and tenant, irrespective of the character in which the landlord 
 acts. 
 
 Therefore, where A took certain land on a monthly rental from B, both parties 
 believing the land to be Mosque land, and B then acting as trustee of such lands ; but 
 it afterwards appeared the land was not Mosque land, but the private property of B's 
 grandfather,- whose Executor B was; and B thereupon sold the land as the private 
 property of his grandfather, 
 
 Held, that B's assignee, C, under such sale, could recover such lands in ejectment 
 from A, who was estopped from denying B's title as such JExecutor to such land, and 
 also the title of his assignee, C. 
 
 This was an action of ejectment. The defendant had been 
 let info possession of the land by one Hajee Abdul Cader, who was 
 then acting as trustee of the Mahomedan Mosque, and so let the 
 land, under the belief it was Mosque land. Subsequently he dis- 
 covered the land was his grandfather's own property, of whom he 
 was Executor. He accordingly, as Executor of his father, sold 
 the land to one Baban Abdul Cader, whose Executor the plaintiff 
 was. The question was whether the defendant was estopped from 
 denying the plaintiff's title, he claiming through the defendant's 
 original landlord, although in a totally different character. 
 
 Clarke, for the defendant, contended there was no estoppel, 
 inasmuch as the defendant was not disputing his landlord's title, 
 but as Executor of his grandfather, he, however, requested further 
 time to look up the point. 
 
 Wood, J. The point of estoppel will be reserved, by consent, 
 for further discussion. I hold, for the present, that the defend- 
 ant is estopped from denying that the plaintiff has no title to the 
 land, nor can he dispute the title of the person from whom he had 
 the land, nor his right to determine the tenancy or re-enter. The 
 defendant's disclaimer and setting up a contrary title, makes it 
 not necessary to determine the tenancy— that granting that 
 defendant contracted with the plaintiff as trustee, this position of 
 trustee was not material, or disputable by defendant; but he 
 must restore the land to the assignee in law of the person who 
 leased it to him, leaving the question of the application of the 
 proceeds to be decided by the prdper tribunal. 
 
 Penano. 
 
 Wood, J., 
 1878. 
 
 April 29. 
 
 July 26th, 1878. Clarice, for the defendant. Independently of 
 the question of estoppel as between the original lessor and the 
 original lessee, — where the lessor, not having title, except by 
 estoppel, assigns, the lessee is not bound to surrender to the 
 assignee of the lessor. 
 
 A trustee, and a possessor of the legal estate, as absolute 
 owner, are different persons, and a person, although estopped as 
 against the trustee, yet when the trustee claims, not as a trustee, 
 but as absolute owner, the lessee is not bound to surrender, but 
 may dispute this new and strange title — as in fact being a 
 different title. Hughes v. Hughes, 15 M. & W. 703 ; Philips v. 
 Pearce, 5 B. & C. 433 ; Rennie v. Robinson, 1 Bing 147 ; Doe on D. 
 Higginbotham v. Barton, 11 Ad. & E. 307. 
 
430 
 
 CIVIL OASES. 
 
 Wood, J. 
 
 1878. 
 
 Amekan 
 
 V. 
 
 Che Meh 
 
 alias 
 
 Ismail. 
 
 Wood,' J. I do not think that those eases apply, they being 
 only illustrations of the right of the lessee to deny the existence 
 or validity of the assignment of the reversion. I consider that in 
 this case, it has been already decided that as a fact, the assign- 
 ment to the plaintiff was aii assignment in terms of the locus in 
 quo, of which a lease had been granted and for which rent had 
 been paid. I am still of opinion the defendant is estopped, and 
 judgment must be for the plaintiff. 
 
 Judgment for plaintiff. 
 
 11th February, 1879. The defendant' appealed against this 
 judgment, and" the appeal now came on before the Full Court of 
 Appeal consisting of 
 
 Sidgreaves, Knt., C. J. 
 
 Ford & Wood, J. J. 
 
 The ground on which the defendant appealed was, that the 
 ruling of the Court below to the effect that the defendant was 
 estopped from disputing or denying the title of the plaintiff to the 
 land in question, on thS" ground that the plaintiff was the 
 Executor of the assignee of the defendant's landlord, was erro- 
 neous in point of law. 
 
 Clarke, for Appellant, reiterated his former arguments, and 
 cited Cole on Ejectment, p. 219 [1857] . Philips v. Pearce, 5 B. & C. 
 433, Bennie v. Robinson, 1 Bing 147 ; Hughes v. Hughes, 15 M. & W. 
 703; and Doe on D. Higginbotham v. Barton, 11 Ad. & E. 307. 
 
 [Ross, for Respondent was not called on.] 
 
 Judgment was delivered hy the Chief Justice, to the effect 
 that the Court was unanimously of opinion that the Appellant was 
 estopped, and affirmed the judgment below. 
 
 Appeal dismissed with costs. 
 
 Penang. 
 
 Wood, J. 
 1878. 
 
 May 1. 
 
 PAKEER MAHOMED v. KHOO HOCK LEONG & ORS. 
 
 A plaintiff, although he he entrusted with the prosecution of the suit for the 
 benefit of others jointly with himself, but who is the sole plaintiff on the record, is 
 debarred from further prosecuting the suit, if he, for valuable consideration , paid 
 him, enters into an agreement to withdraw same. Such an agreement is a valid 
 one, and constitutes a good answer to the further prosecution of the case. 
 
 This was a suit to restrain the defendants from carrying on a 
 Wyang, next the plaintiff's house, and so creating a noisy nuisance 
 to the plaintiff and the other neighbours. The action was brought 
 in the plaintiff's name, but was actually prosecuted by the neigh- 
 bours, who had clubbed together for the purpose. An interim 
 injunction had been granted. 
 
 Van Someren, for plaintiff, opened the case that this was a 
 noisy nuisance and purposed to prove it by direct evidence, but he 
 also opened the following facts : that plaintiff, by his agreement 
 with the defendants, for valuable consideration, had agreed to sell 
 
STRAITS SETTLEMENTS. 
 
 431 
 
 Pakeeb 
 Mahomed 
 
 v. 
 Khoo Hock 
 
 his land and withdraw the suit, and consent to a motion for a Wood, J, 
 
 dissolution of the injunction. But that notwithstanding this x ^ 
 
 agreement, plaintiff now having as he considered, just grounds for 
 
 continuing the suit for the benefit of his neighbours, does so. It 
 
 was suggested, with consent of both parties, that the validity of 
 
 this agreement as an answer to the suit, as a preliminary point, l^qng&obs. 
 
 be first tried. 
 
 Boss, for defendants, put in the agreement and formally proved 
 it. The plaintiff was also called*, he admitted the agreement, but 
 alleged he was desirous of prosecuting the suit for the benefit of 
 his neighbours, who had entrusted him to bring the suit, and that 
 he had made the agreement without their advice or consent, in 
 fact he had been induced by defendants to enter into it. 
 
 Wood, J. No further evidence being called, I am of opinion 
 that the agreement put in is not voidable on the ground of any 
 fraud, and that it is binding on the plaintiff, and as such is a bar 
 to the suit and good as a defence. The bill will be dismissed, and 
 the injunction dissolved. 
 
 NARAINAN CHETTY v. ABDUL RAHMAN, alias KAFFREE. 
 
 A defendant being sued at law for money lent, &c-, on the common money 
 counts, pleaded that he had before the commencement of the action, sued the 
 plaintiff in equity, for an account which included the monies sued on in the action, 
 and such suit was still pending, and in support of his plea, produced the records of 
 the two cases, from which it appeared that..though, some of the items were* the 
 same, yet the equity suit was based on a fiduciary relationship alleged to exist 
 between the plaintiff and defendant, and claimed peculiar relief, relating to several 
 matters— 
 
 Seld, that the two suits were not for the same cause of action, and the plea was 
 overruled. 
 
 This was an action to recover a certain sum of money.on the 
 common money counts. The defendant had commenced a suit 
 in equity against the present plaintiff, for an account of monies 
 lent by hi m to defendant, and received by him from the Colonial 
 Treasury, as well as by sale of the defendant's property, held by 
 plaintiff on mortgage. The defendant was a Government con- 
 tractor. The money lent by plaintiff, and for which this action 
 was brought, was lent to enable defendant to carry on his con- 
 tracts. The receipts shewn in plaintiff's accounts, were amounts 
 received by him from the Treasury. The defendant pleaded in 
 this action the pendency of the equity suit. The records in both 
 suits were produced. 
 
 Eoss, for plaintiff. 
 
 Van Someren, for defendant. 
 
 Wood, J. Looking at the records of both suits at law and 
 in equity, no other evidence being tendered, I hold that the causes 
 of action are not the same, but that plaintiff sues at law for a 
 legal cause of action, while defendant sues in equity for equitable 
 causes of action only. Plaintiff on the money counts, defendant 
 for account, based on a fiduciary relation between plaintiff and 
 defendant, and for. certain and peculiar relief. I give judgment 
 for the plaintiff on the plea. 
 
 Penano. 
 
 Wood, J. 
 
 1878. 
 
 May 1. . 
 
432 
 
 CIVIL OASES. 
 
 TEEMAH v. MAT TOH DIN. 
 
 Penano. A conveyance which was executed by one person to another, on the underatand- 
 
 ' in°- that it should not operate as such, till the purchase money therein mentioned 
 
 Wood, J. was paid, . 
 
 1878. Held, to be only an escrow, and inoperative to convey any interest, until the 
 
 money was paid — although the conveyance was, on the face of it, an out and out one, 
 
 May 2. and purported to acknowledge receipt of the purchase money. 
 
 Action of detinue for title deeds. The deeds were the deeds 
 of the defendant's land, of which she had' possession, but it 
 appeared that she had conveyed the land to the plaintiff. The 
 defendant alleged that the purchase money had never been 
 paid, and the conveyance was not intended to operate till 
 then. The deed acknowledged receipt of the purchase money, but 
 the evidence shewed it had not been paid, and the deed was not 
 intended to operate until the money was paid. 
 
 Duke, for plaintiff. 
 
 C. W. Bodyh, for defendant. 
 
 Wood, J. I hold that the circumstances attending the delivery 
 shew that the deed to the plaintiff was intended to act as an escrow : 
 or in other words, delivery conditioned on the payment of the pur- 
 chase money. I think Gudgen v. Nolle, 8 E. & B., 986, 8. C. 26 L. J. 
 Q. B. [N. S.] 36, cited in 1 Selw., 1ST. P. 576, is in point, and give 
 judgment for the defendant. 
 
 Judgment for defendant. 
 
 KADER BEE & ANOR. v. KADER MUSTAN & ORS. 
 
 Penano. A gift of an estate in lands, which is attempted to be controlled by restraint 
 
 against alienation, is not void in its entirety, but the restraint alone is void, and the 
 
 Wood, J. gift will be upheld as if the restraint had never been imposed. 
 
 1878. A testator, so far as could be gathered from the language of his Will, devised 
 
 lands to trustees in trust for 60 years, to receive the income therefrom, and divide 
 
 May 2. the same among his four children, but strictly restrained the trustees and benefi- 
 ciaries from alienating the said lands during that period. He further provided, 
 that on the death of any children leaving issue, such issue should take their 
 parent's share. 
 
 Held, that the gift for 60 years and restraint on alienation was void, that the 
 children took equitable estates in fee, free from all restrictions. 
 
 The testator directed that $20 per year, from the aforesaid income, before the 
 same was divided among his children as aforesaid, should be sent to his country, 
 without specifying to whom the money was to be paid, or for what object. 
 
 Held, the gift was void, on the ground of uncertainty. 
 
 Suit to have a proper construction placed on certain clauses 
 of the Will of one Kader Saiboo, deceased, to have the same 
 declared void, and the property comprised therein distributed 
 among the next of kin; for an account of the defendant's admi- 
 nistration of the estate, and for further and other relief. 
 
 The defendants Kader Mustan and Saboor Mydeen, were 
 executors under the Will. The plaintiff and the other defendants 
 were the children and next-of-kin of 'the testator. The Will, 
 
STRAITS SETTLEMENTS. 433 
 
 dated 31afc July, 1875, was in Tamil, and being translated was, Wood, J. 
 omitting unnecessary parts, as follows : — 18 " 8- 
 
 " As I have entailed them, no one can sell for the coming 60 years, the & anoe. 
 " property which I acquired during the life time of my former wife, v . 
 
 " viz., one piece of land at Permatang Kuching, one at Bagan Jermal, and Kadek Mtts- 
 " the third at Penang, on which I now live. I have four children, two males tan & oes. 
 "and two females [names here set out.] The executors will divide the 
 " income received from the said lands after paying" for expenses, and after 
 " paying otherwise as herein directed, into four equal shares, and give them 
 " to the legatees, provided they are obedient to the executors. In case 
 "of married children, should they leave any children behind them, their 
 "children will also get their share : if they leave no children, the other three 
 "children will divide the income between them. During the aforesaid 60 
 " years, and during the time of my grandsons and grand daughters, the pro- 
 " perty will be enjoyed as above ; after that it will be arrranged as it pleases 
 " them. Kader Mustan, the executor, will keep with him the portion belong- 
 " ing to the unmarried children ; and when they attain their majority, and 
 "a3k him for their share, he will have to give it them, after paying 
 " expenses and producing to them accounts for the same. From the aforesaid 
 
 " income, twenty dollars a year shall be sent to my country The said 
 
 " exeputors have power to appoint other executors in their stead. All the 
 " inmates of the house shall be obedient to Kader Mustan, the executor, 
 " and if they are disobedient, he shall act according to his own discretion. 
 " During the sixty years, even if the executors and legatees agree to sell the 
 " property, they cannot do so. The executors shall consult in all what they 
 " do, my younger brother Sayee Mallay." 
 
 The testator died in August following. The present suit 
 was a friendly one ; and the defendants submitted their interest 
 to the Court. 
 
 Van Someren, for plaintiffs. 
 
 C. W. Bodyh, for defendants. 
 
 Cwr. Adv. Vult. 
 
 October 7. Wood, J. In this case, I ara desired by all the 
 parties to the suit to put a construction on certain clauses in the 
 Will of the deceased Kader Saiboo. It is contended, or I should 
 rather say submitted, without contention, by all persons interested, 
 that those clauses are void, and consequently that the testator is 
 intestate as to the lands affected by such clauses, leaving; them to 
 fall into the residuary estate. I may premise, that there being no 
 real contention in this case, but on the contrary, all parties 
 desiring for many natural reasons, to enjoy the property free from 
 restriction, it has devolved upon the Court to meet the arguments 
 of the litigants, with ' a view to performing the simple duty of 
 carrying into effect the Will of the testator, so far as may legally 
 be done without regarding the convenience or inconvenience to 
 the parties interested under such Will, and without regarding 
 whether it be, or be not, a wise, reasonable or a politic settlement 
 of property. With this view, I have'had the whole Will before 
 me, and as much depends upon the language and the very mean- 
 ing of certain words in the Will, I have made some enquiry into 
 the correctness and aptness of translation of some few passages 
 in it. The Will in question, omitting introduction and irrelevant 
 matter, and following the translation of the Will as originally 
 made, is as follows : [Here the Will was read.] On the Will as 
 
434 CIVIL OASES. 
 
 Wood. J. thus set out, some few matters appear, which have either been, no 
 18 ^ 8 - doubt unintentionally omitted in the statement 'of the case, as it 
 
 KadebBee appeared in the pleadings, or not very aptly translated. These 
 
 & anok. omissions or corrections, although not very material, yet still help 
 
 K "• to illustrate or explain the Will in some few particulars. Thus, 
 
 tan & obs?" by reference to the Will at length, it appears that Kader Mustan, 
 one of the executors is a son of a younger brother Sayee Mallay, 
 which Sayee Mallay, it is declared, the executors shall consult iu 
 what they do ; and also, that the executors shall have power to 
 appoint other executors in their stead, a provision which although 
 inapplicable to executors strictly so called, is obviously directly- 
 applicable if applied, to executors acting in the character of 
 trustees. 
 
 With reference to modification of translation, T have, by 
 consent of the parties to the suit, submitted the Will to the 
 present Tamil Interpreter of the Court, and as might reasonably be 
 inferred, the words "Aslhave entailed," are erroneously translated, 
 and the words should be " As I have authorized" [my executors]. 
 This word " entailed" of very peculiar force, if applied to an 
 English Will, has thus no special or particular force whatever. 
 
 It would also appear, that the word " executors" does not 
 mean Executors of a Will, but rather "persons authorized" or 
 "persons empowered," the strict word "executors" being not a 
 faithful, but as we may apprehend under the circumstances, not 
 an inapt translation. Having premised thus much, and in direct 
 reference to the contention of the parties interested, that the 
 provisions in question are void, I am of opinion that the provisions 
 in question are not strictly speaking vqid, and that it would be 
 improper to set at nought the manifest objects and intention of 
 the testator, because some incidents attached thereto are, by the, 
 law of this Colony, impossible of application. My reasoning in 
 this matter is shortly expressed as follows : Taking as a leading 
 principle, the well known maxim as given in 2 Jarman on Wills, 
 [Edon. 1861, p. 766,] "that when a testator's intention cannot 
 " operate to its full extent, it shall take effect as far as possible," 
 we are naturally led to consider what are the specific objects 
 of the provisions in question, and which of them are, consistently 
 with acknowledged authorities, capable, and which are incapable, 
 of being supported and permitted to take effect. As it would 
 appear, several objects are "plain enough, 1st. The limitation of 
 a legal estate in the lands in question to the executors and 
 trustees and their assigns. 2nd. Equitable estates in the children 
 and their issue after them, subject to what exact limitations will 
 be the subject of more minute enquiry hereafter. 3rd. The sub- 
 ordination of the cestui que trust to the direction of the trustees. 
 4th. Eestraint of alienation and subordination to the discretion 
 of the trustees for 60 years ; and it may be, the lives of the 
 children and grandchildren of the testator. 
 
 These then, being the testator's objects, I think the following 
 conclusions may be fairly drawn : 
 
 1. That the executor's [as trustees] and their assigns talce 
 a legal estate. The expressions, " The executors will divide the 
 
STRAITS SETTLEMENTS. 435 
 
 ^income received from the aforesaid lands, after paying for Wood, J. 
 f expenses and after paying otherwise as is herein directed, in ^f" 
 
 ' four equal parts, and give them During the 60 years, even kadee Bee 
 
 'it the executors and legatees agree to sell the land, they cannot &anob. 
 " do so," are sufficient, in accordance with well known princi- „ "■ M 
 pies of construction, to shew that the executors are intended to T A A D N E & obT" 
 have the legal estate. 2. That the children are intended to take 
 estates of some sort ; but it will be better for the present to defer 
 the _ consideration of this point. 3. The expressions which 
 subject the persons beneficially interested to the control of the 
 trustees, may raise some slight question, owing to some apparent 
 variation of intention on the part of the testator, as to whether 
 both executors or one alone, Kader Mustan, is to have this 
 authority; but still there is enough in the Will to shew that 
 both executors and Kader Mustan in particular, are to have this 
 authority — " The executors shall divide the income and give it 
 "to the legatees provided they are obedient to the executors. 
 " All the inmates of the house shall be obedient to Kader Mustan, 
 " the executor, if they be disobedient, he shall act according to 
 , " his discretion," and it may be assumed, that Kader Mustan 
 being a nephew, and Safoor Mydeen a son and legatee, there is a 
 presumable inference that in all matters concerning himself, the 
 son is not to judge ; though otherwise in matters in which he is 
 not concerned. 4. The expressions which impose restraint of 
 alienation, and subordination to the Will of the trustees, pervade 
 the Will, and are no less the leading idea of the testator, than the 
 ground relied on for treating this provision as affecting with 
 invalidity the whole bequest. The testator says : " As I have 
 " authorized them, no one can sell the property for the coming 
 " 60 years. During the aforesaid 60 years, and during the 
 "time of my grandsons and granddaughters, the property will be 
 " enjoyed as above," [referring to the payment of the income to 
 children and grandchildren]. "During the 60 years, even if 
 "the executors and legatees agree to sell the property, they 
 " cannot do so," expressions which leave no doubt as to the 
 testator's general meaning. 
 
 Having now, so far as I can see, the leading provisions of the 
 Will before us, and with' reference to the position of the parties 
 concerned that these provisions are. void, it is proper to review 
 the application of that rule against perpetuities and remoteness, 
 on which they rely for establishing their position. There is little 
 doubt of the restraint of alienation, and the postponement of 
 absolute dominion over the property in question, contemplated by 
 the Will in question, being void ; but the error in the reasoning 
 of the parties concerned, seems to me to be this : It is not 
 because a provision, which is void, is involved in other provisions 
 like an impossible factor in an algebraical expression, that the 
 whole provision is vitiated — but the Courts have always endeavour- 
 ed, within fairly defined limits, to prevent the entire failure of 
 the testator's scheme of disposition ; and where two fairly dis- 
 tinguishable classes of provisions are contained in the Will, one of 
 which is void, and the other valid, the valid one shall prevail, and 
 
436 CIVIL OASES. 
 
 Wood J. /\he other fail— -not that both shall fail together. Thus, where 
 
 1878 - / lands are devised to A in fee simple, or in fee tail, a, declaration or 
 
 KadbbbJe a condition that he shall not alien is void, as being inconsistent 
 
 & anobj with the estate given, and the obvious intention of the testator, 
 ■"• ' in favor of the legatee, prevails in part ; and as it appears to me, 
 ^tan & ois S " t ne question specifically before me is, whether estates are confer- 
 red, which are attempted to be controlled by a void restriction 
 against alienation, or whether the two provisions of conferring 
 estates and restricting alienation, are so indissolubly connected, 
 as to stand or fall together. The law upon such points as these, 
 is always somewhat involved, and it is difficult to hit upon precise 
 eases which are, either in point as to the facts, or lay down with 
 sufficient precision, the exact principle which prescribesthe ratio 
 decidendi. But I hold it to be sound law, that wherever, in a 
 Will, definite estates are either expressly given, or may be, by the 
 operation of rules of construction and of law, inferred, decla- 
 rations or conditions in restraint of alienation, or unfettered enjoy- 
 ment may justly be held to be void, if inconsistent with the 
 estates given, but not to affect with invalidity the grant of those 
 estates themselves, — and more particularly, with reference to the 
 Will in question, where equitable estates in fee tail are granted to 
 individuals, restraint of alienation for 60 years is void, as inconsist- 
 ent with the due enjoyment of such an estute tail. I have, as I 
 said before, a difficulty in citing cases which point out with 
 sufficient clearness, this distinction; but I apprehend, it needs but" 
 to be enounced to be considered just and sound. Nor can I find, 
 after a somewhat lengthened examination of the authorities 
 which illustrate the rule against perpetuities, any case which 
 opposes the position which I have ventured to put forth as the 
 ratio decidendi of this case. .Thus, bearing this principle in mind, 
 let us see how the facts of this case are capable of application, a 
 consideration which leads us to the deferred question of the 
 quantity and quality of the estates conferred upon the persons 
 beneficially interested under the Will. The Will itself contains 
 these provisions in favour of the children, and their issue : " I 
 
 "have four children The executor will divide the 
 
 " income received from the lands, after paying expenses, &c, in four 
 " equal parts, and give them to the legatees, provided they are 
 " obedient to the executors. In case of married children, .should 
 " they leave any children behind them, their children will also 
 " get their share ; if they have no children, the other 3 children will 
 " divide the income between them. Kader Mustan, the executor, 
 "will keep with him the portions belonging to the unmarried 
 " children. If the unmarried children attain their majority and ask 
 " him for their share, the said Kader Mustan will have to give them 
 " their'share." These are all the provisions in the Will from which 
 we can glean the intention of the testator, as to the quantity and 
 quality of the estates intended to be conferred on the children, and 
 imperfect as may be the provision, we have to deal with it as best we 
 may. Were it allowable for the Court, to mould the Will differently, 
 to suit a guiding principle of the Will, namely, to restrict alienation 
 and impose control to the utmost possible extent, it would pro- 
 
STRAITS SETTLEMENTS. 4&7 
 
 bably result in a declaration of limitations of estate in common to Wood, J. 
 the four children for life, with remainder to the first and other 1878, 
 heirs of the body in tail general, with cross remainders over to Kader Bee 
 the four children, and ultimate reversions in fee, to the testator's & akob. 
 right heirs — so modified by the alternation of estates at law and K £ Mus 
 in equity, as to elude the operation of the rule in Shelley's Case, ^& obs!" 
 and to confer upon the trustees, ample powers of control, dicta- 
 tion and restraint, for the lives at least of the four children. But 
 it is manifest, that this is beyond the power of the Court ; and 
 we must be content to deal with the provisions, such as they are 
 clearly shewn to be, by the simple use of the language used, and 
 its obvious inferences. As to this, there appears to me but one 
 deduction to be drawn, the effect of which is much to simplify 
 
 I the legal effect of the Will, at the expense no doubt, of some por- 
 tion of the testator's intention. It may be doubtful whether on 
 a fair construction of the Will, the testator's words can be inferred 
 to confer on the four children, estates for life. I incline to the 
 construction, I might even say they do, in my judgment, confer 
 such estates, but, inasmuch as the estate for life is an equitable 
 estate, and the subsequent provisions are intended also to confer 
 equitable estates of inheritance on the heirs of the body of such 
 children, these estates for life, by the force of the rale in Shelley's 
 Case, merge in the estate of inheritance of the children, and con- . 
 fer this estate of inheritance at once upon the tenant for life. 
 The result is a simple one : By the operation of the laws of this 
 Colony, which make land a chattel real for purposes of devolution, 
 the effect is to give to the children, absolute equitable interests, 
 free from all question of entailment, and free from all subsequent 
 remainders, and restraints of alienation or control by executors, 
 as incidents inconsistent with such absolute interests — leaving the 
 four children equitable tenants in common absolutely, of the land 
 in question. 
 
 The decree will be a declaration by the Court, to the effect 
 that under the provisions of the Will, the testator bequeaths the 
 lands in question to the executors, absolutely in trust for the four 
 children, as tenants in common, of undivided four parts ; a decree 
 which will, of course, be embodied in definite and technical words 
 of limitation. 
 
 The only remaining question is, as to the gift of $20, ordered 
 to be sent annually to India. As to this, although possibly the 
 gift might have been sustained, had the Court been of opinion 
 that the proceeds of the estate could be subjected to the control 
 of the executors for reasons which it is hardly necessary to dis- 
 cuss at length — yet, the exeuutors having, as I think, no control 
 over the proceeds in the land in question, this bequest fails for 
 uncertainty as to the object of the gift, upon simple and well 
 known principles of law. 
 
43S CIVIL OASES. 
 
 ADOOMEH KAKAH a. LEBBY DAIN. 
 
 p , No action can be maintained in the Supreme Court against a Kali or Mahome- 
 
 _ ' dan priest, for divorcing a person from his wife contrary to Mahomedan Law, as it 
 Wood J * s a ma ** er 'wholly beyond the powers and jurisdiction of the Court. 
 1878. 
 
 This was an action to recover $100 damages against the 
 
 May 6. defendant, a Kali or Mahomedan priest, for improperly and against 
 the Mahomedan Law, dissolving the plaintiff's marriage with his 
 wife, and divorcing him from his wife at her request, but during 
 his absence. The parties appeared in person. On the plaintiff's 
 case being opened, 
 
 Wood, J. I am of opinion that, this Court cannot decide this 
 matter as being beyond its powers and jurisdiction. The plaintiff 
 must be non-suited. 
 
 Non-suit. 
 
 SYED AWAL BIN OMAE SHATRIE v. SYED ALI BIN 
 OMAE AL JUNIED & OES. 
 
 Singapobe. ■ in arbitrator who had made and signed his award, ready for delivery, is 
 functus officio : and any subsequent alteration he may make is merely nugatory. 
 
 didgkeaves, ^ Q g^^j.^ on a submission of all matters in difference, is no bar to the recovery 
 
 1 Q^ a * of a demand, which existed as a claim at the time of the reference, but was no t then 
 a matter in difference. 
 
 1878. 
 
 June 10. Section 2 of the Limitation Act XIV. of 1852, is more extensive than section 25 
 
 of the English Act 3 & 4 William IV., c. 27, which is expressly limited to escpms 
 trusts. 
 
 Semble. Section 2 of the Act XIV. of 1852, applies to cases of implied and con- 
 structive trusts, as well as express trusts. 
 
 An executor, who, in accordance with bin testator's Will, takes possession of 
 property which, by the Will, is devoted to certain special objects which, are void in 
 law, with the intention of so applying the property, but subsequently misappro- 
 priates the same — cannot, when he is sued, and the objects of the testator are 
 sought to be declared illegal, and the property to be applied in payment of legacies 
 or to the next-of-kin, plead the Statute of Limitation, although more than 12 years 
 have elapsed, as there is an implied or constructive trust in favor of the legatee 
 or next-of-kin, and the case falls within section 2 of the Limitation Act XIV. of 
 1852. Such a suit, is not a suit for a legacy, but one to compel th e executor who 
 has clothed himself with a trust, to account for breaches of trust, [a] 
 
 Phillippo v. Munnings, 2 My. & Cr., 309, followed. 
 
 Suit for the administration of the estate of one Syed Omar, 
 deceased, brought by plaintiff as administrator of one Syed 
 Haroon, the son of the deceased, against the defendant Syed Ali, 
 as the surviving executor of the deceased. The other defendants 
 were the next-of-kin of the deceased, or their legal personal repre- 
 sentatives. The facts and arguments, which occupied several days, 
 sufficiently appear in the judgment. 
 
 Bond, for plaintiff. 
 
 Donaldson, for defendants Syed Ali and Sherifa Eatimah.' 
 
 T. Braddell, [Attorney-General] for the other defendants. 
 
 [a] See Mmtan Bee v. Shina Tomby ) infra. J " <£^ 
 
0E9. 
 
 STRAITS SETTLEMENTS. 439 
 
 Cur. Adv. Vult. 
 
 October 23rd. Sidgreaves, C. J.. — This was a petition by Sidgheaves, 
 Syed Awal bin Omar Sbatrie, of Singapore, Administrator de bonis <£*• 
 
 non of Syed Haroon bin Omar al Junied against the defendants, '. 
 
 praying that the real and personal estate of Syed Omar, deceased, Syed Awal 
 may be administered under the directions of this Court, for the * IN ° MAE 
 direction of the Court as to the construction of the Will, and for bHA ™ IB 
 further relief . The matters in dispute arise out of a Will made Syed Am bin 
 by one Syed Omar bin AH al Junied, so far back as the 21st of ° MAB Al 
 September, 1852, the said Syed Omar having died in the month of " '" 
 November of the same year. His executors were Syed Ali bin 
 Mohamed al Junied, cousin of the testator, and Syed Abdulla and 
 Syed AH, sons of the testator, and they proved the Will on the 
 10th January, 185:1 It is alleged in the petition that Syed Ali bin 
 Mohamed al Junied did not intermeddle with the estate of the 
 deceased, and died in December, 1858, leading two the last named 
 executors him surviving. According to the petition, these two 
 duly collected and got in the personal estate of the testator, as also 
 divers large sums of money, on account of the said testator's im- 
 moveable estate ; and the plaintiff charges that they misappro- 
 priated and converted to their own use a greater portion thereof. 
 The petition further states that both Syed Ali and Syed Abdulla, 
 subsequently absconded from Singapore. The defendants, by 
 their answers, deny the appropriateness of the term absconded, 
 but admit that they left Singapore and resided out of the jurisdic- 
 tion of the Court. The said Syed Abdulla died in Arabia, on or 
 about the month of May, 1865, having previously by Will, appointed 
 the defendants, Syed Junied and Syed Aboobaker, to be his exe- 
 cutors. After the death of the said Syed Abdulla, the surviving 
 executor Syed Ali, gave a power of attorney to the executors of. 
 Syed Abdulla, to enable them to act for him in certain 
 matters, under the Will of Syed Omar, the testator. The petition 
 sets out the Will of the testator, and the persons described as the 
 heirs of the testator are his wife Sherifa Alweeah, the sons, 
 Abdulla, Ali, Haroon Junied and Aboobaker and his daughters 
 Zena, Sherifa Fatimah, and Katijah. The petition states that the 
 said Syed Haroon, son of the testator, survived him and duly attained 
 his maturity, and thereafter intermarried with Sherif aFatimah binte 
 Ali al Junied, and by her had one child which pre-deceased him ; 
 that after the said Syed Haroon attained his maturity, the exe- 
 cutors of the said testator paid to him, one-eighth share of the two- 
 thirds of the residue of the testator's moveable property, in terms of 
 the testator's said Will, and also paid to him one-eighth share of the 
 eight-ninths of the rents of the said testator's houses and other 
 immoveable property, mentioned in his Will as subject to certain 
 limitations. The petition further states : — 
 
 13. That the said Syed Haroon died in the month of February, 1860, 
 intestate, and Letters of Administration de bonis non of his estate and effects 
 were, on the 31st day of May, 1876, granted by this Court to the plaintiff 
 Syed Awal Bin Omar Shatrie, but, with the exception of dollars 1,809 and 
 cents 40, no further share of the said rents was ever paid by the said execu- 
 tors to him, the said Syed Haroon or to his legal representatives. 
 
OKS. 
 
 440 CIVIL OASES. 
 
 Sidgbeaves, 17. The plaintiff charges that a share of the estate and effects of the 
 
 C. J. said testator, absolutely vested in the said Syed Haroon, upon his attaining 
 1878, his maturity as aforesaid. 
 , — — 18. The plaintiff also charges that the surplus of the one-third of the 
 
 Syed Awal testator's moveable estate amounted to dollars one hundred and twenty-eight 
 bin Omar thousand five hundred and fifty-one, and cents sixty -three and a half, and that 
 Shatbie ^g testator's said executors the said Syed Ali and Syed Abdulla, never in- 
 „ v / vested the same as directed by the said testator, but appropriated the same to 
 
 bTED ali bin ^gjj. own usej an( j pgj^j no p^ thereof to the said Syed Haroon or to his legal 
 Junied & representatives, and the plaintiff as such administrator as aforesaid, claims to 
 have the share thereof to 'which the said Syed Haroon was entitled with inter- 
 est thereon, charged against the share or shares of the testator's estate which 
 the said executors or either of them are entitled, or that the defendant the 
 said Syed Ali or he and the executors of the said Syed Abdulla, or either of 
 them may be decreed to pay the same to the plaintiff. 
 
 19. The plaintiff as such administrator de bonis non of the estate and 
 effects of the said Syed Haroon, deceased, claims to be entitled to a share of 
 the testator's houses and other immoveable estate mentioned in his said Will, 
 as subject to the respective limitations of 70 and 20 years, also to a one-eighth 
 share of eight-ninths of the rents and profits thereof from the end of the Ma- 
 homedan year 1275, less dollars 1,809 and cents 40, paid by the said executors 
 to the said Syed Haroon to account thereof prior to his decease. 
 
 20. The plaintiff also claims as such administrator to be entitled to a 
 share of the surplus of the one-ninth of the rents and profits of the testator's 
 said houses and other immoveable property directed by the testator to remain 
 in the hands of his executors for the purposes before mentioned, which sur- 
 plus in the Mahomedan year 1278 amounted to dollars 10,936 and cents 33, 
 and was appropriated by the said executors to their own use. 
 
 21. The plaintiff as such administrator as aforesaid, also claims to be en- 
 titled to a share of the testator's land in High Street and of the several houses 
 and buildings thereon erected, and of the surplus rents and profits thereof. 
 
 22. That the houses and other immoveable estate mentioned in the said 
 Will, situated in High Street, as also the houses and other immoveable estate 
 therein directed, to be subject to certain limitations for 70 years as hereinbe. 
 fore mentioned, and the property by the said "Will made subject to certain 
 trusts or limitations for 20 years is, of very great value, producing as the plain- 
 tiff believes a net rental of over dollars three hundred per month. 
 
 23. That the said term of 20 years has now expired, and the plaintiff is 
 advised and believes that the limitation of 70 years in the Will mentioned, is 
 illegal and void, and that the property subject thereto ought to be realized and 
 divided amongst the testator's heirs. 
 
 24. That the plaintiff is also advised and believes that the bequest of the 
 testator's land and houses in High Street is illegal and void, and that the same 
 ought co be realized and divided amongst the testator's heirs, viz., his children. 
 
 25. The plaintiff is, however, advised and believes that in consequence of 
 w-?! 8 ?? •■?' 1 uestl0Ils arising upon the legality and construction of the said 
 Will, the said properties cannot properly be sold, save under the direction of 
 this Honorable Court. 
 
 _ The defendants by their pleas and answers relied upon three 
 principal grounds of defence, 1st.— That the plaintiff's claims 
 were barred by an award made in 1864, and made subtantially "be- 
 tween the same parties, as those now before the Court and in res- 
 pect of the same causes of action. 2ndly.—Bj the Statute of 
 Limitations, and 3rdhj.—By the laches and acquiescence of the 
 plaintiff. 
 
 Further questions arose regarding the construction to be put 
 upon certain portions of the Will, but inasmuch as it was conced- 
 ed on both sides that the translations were imperfect, it was agreed 
 that those questions should stand oyer for thepresent, and that the 
 matters should be argued upon the three grounds I have above indi- 
 
STRAITS SETTLEMENTS. 
 
 441 
 
 cated. I propose in the 1st place to deal with the question of the Sidgbeavjss, 
 award. c - J - 
 
 This question depends upon certain matters that took place ' 
 
 in 1864. In June of that year, the present plaintiff and Sherifa Syed Awal 
 Fatimah binte Ali bin Mahomed al Junied, his wife, were complain- B ™ ° MAB 
 ants in a suit in which Syed Abdnlla bin Omar al Junied was HA ™ IE 
 defendant, which was as follows : Syed Ali bin 
 
 Omar Al 
 
 " In the Court of Judicature of Prince of Wales' Island, Singpoore ^o™ & 
 
 and Malacca. 
 
 Division of Singapore and Malacca. 
 
 On this 29th day of June, A. D. 1864. 
 
 Between Syed Awath bin Omar Shatrie 
 of Singapore, Merchant, and Sherifa 
 Fatimah binte Alley bin Mohamed 
 al Junied, his wife, 
 Complainant. 
 
 AND 
 
 Syed Abdulla bin Omar al Junied 
 of Singapore, Merchant. 
 Defendant. 
 
 Unto the Honorable 
 
 The Judges of the said Court. 
 
 The Petition of the Complainant 
 above-named. 
 Sheweth, 
 
 That on. or about the day of August in the year 1858, your 
 
 petitioner, the said Sherifa Fatimah binte Alley bin Mohamed al Junied was 
 married to Syed Haroon Bin Omar al Junied, then of Singapore, Merchant, 
 now deceased, and thereby became and was at the date of the death of the 
 said Syed Haroon bin Omar al Junied, the lawful wife of the said Syed 
 Haroon bin Omar al Junied. 
 
 That the said Syed Haroon bin Omar al Junied departed this life at 
 Singapore, on or about the 26th day of February, in the year of Christ 1860, 
 without having made any last Will or Testament, and having sundry property 
 and effects within the Jurisdiction of this Hon'ble Court. 
 
 That the said Syed Haroon bin Omar al Junied, left no children him 
 surviving, and his next-of-kin according to the Statutes for the distribution of 
 the Estate of intestates were at the time of his death, and are your petitioner 
 Sherifa Fatimah binte Alley bin Mohamed al Junied and his mother Sherifa 
 Alweea and four brothers and three sisters, and your petitioner Sherifa 
 Fatimah binte Alley bin Mohamed al Junied, as the widow of the said Syed 
 Haroon bin Omar al Junied, is entitled to one-half of his personal estate and 
 effects. 
 
 That, at the date of the death of the said deceased, your petitioner 
 Sherifa Fatimah binte Omar bin Alley al Junied, was an infant under the age 
 of twenty one years to wit of the age of seventeen years.. 
 
 That, on the fifth day of April in the year of Christ one thousand eight 
 hundred and sixty, the defendant obtained from this Honorable Court, Letters 
 of Administration to the estate and effects of the said Syed Haroon bin 
 Omar al Junied, and he thereupon entered on the administration of the said 
 Estate and Effects. 
 
 That, on the 18th day of June, A.D. 1860, the defendant filed an Inventory 
 of the estate and effects of the said deceased, and on the 29th day of 
 October, A.D. I860, he filed a supplementary Inventory, both of which Inven- 
 tories, your petitioners believe and aver to be very incorrect and defective. 
 
 That, on the 24th day of July, A.D.1861, the said defendant filed an ac- 
 count of his intromissions with the said Estate, shewing a balance of Spanish 
 Dollars four thousand three hundred and fifty-one, and cents thirty, in favor 
 
442 CIVIL CASES. 
 
 Sidgkeaves, of the said estate, and your petitioners aver and believe that the said account 
 
 C, J. is very incorrect and defective, but your petitioners are unable to point out 
 
 1878. the specific inaccuracies and defects until a further account has been filed. 
 
 ■ That, on an examination of the said Inventories and accounts, it appears, 
 
 Sted Awal there are upwards of Spanish Dollars 9,000 apparently good debts due to the 
 
 bin Omab sa i,j estate, and 21 pieces or parcels of land, situated in the town of Singapore, 
 
 Shatkie belonging to the estate, together with various other goods, chattels and 
 
 o ?■ effects, which have not yet been accounted for. And your petitioners believe 
 
 Omab™ tllat P ro P ert y aild effects to the amount of at least Spanish Dollars 30,000, 
 
 Ju ed ^ have not yet been accounted for. 
 
 0Bg That your petitioners have frequently desired the said defendant to file 
 
 an additional account of his intromissions with the said estate, hut he 
 
 neglects and refuses to do so, and your petitioners verily believe that the 
 
 said defendant is using the monies belonging to the said estate in his trade 
 
 or business of a merchant. 
 
 That neither your petitioners nor either of them have or has "received any 
 payment or advantage from the said estate, although the defendant obtained 
 his Letters of Administration upwards of four years ago. 
 
 Your petitioners, therefore, pray to have the assets 
 of the said Syed Haroon bin Omar al Junied, 
 administered in this Court, to have their costs of 
 suit, and for that purpose that all proper directions 
 may be given and accounts taken, and that your 
 petitioners may have such other or further relief 
 in the premises as to your Lordships may seem fit, 
 and that justice may be done as the case shall 
 lequire, and further that the usual process of this 
 Honourable Court may be issued against the said 
 defendant, commanding the said defendant to ap- 
 pear in this Honourable Court, and answer in the 
 premises, so that justice may be done as the case 
 shall require, and to Lordships shall seem meet." 
 
 The defendant put in an answer to this petition in July of the 
 same year, admitting that, on the 5th day of April, 1860, he 
 obtained a grant of Letters of Administration to the estate and 
 effects of the said Syed Haroon, and thereafter acted in the admi- 
 nistration of the said estate and effects — along with his answer 
 he filed certain accounts, the first being headed " Sherifa Fatimah 
 " binte Ali bin Mahomed al Junied, in account current with Syed 
 " Abdulla bin Omar al Junied, Syed al bin Omar al Junied, and Syed 
 " Haroon bin Omar al Junied, executors to the estate of Syed Ali 
 " bin Mohamed al Junied, late of Singapore, deceased." 
 
 Now although Syed Ali bin Mohamed al Junied was the father 
 of Sherifa Fatimah, and Syed Abdulla, one of his executors, yet no 
 reference was made to this in the petition which was limited to 
 the estate of Syed Haroon. A second account was filed, the head- 
 ing being " Syed Haroon bin Omar al Junied in account current 
 " with Syed Ali bin Mohamed al Junied, Syed Abdulla bin Omar 
 " al Junied, and Syed Ali bin Omar al Junied, executors to the estate 
 " of Syed Omar, late of Singapore, deceased." A third account was 
 headed : " In the estate of Syed Haroon bin .Omar al Junied, late 
 " of Singapore, deceased, in account current with Syed Abdulla bin 
 "Omaral Junied, administrator to the said estate." This, it will 
 be observed, is the account that was particularly asked for by the 
 petition ; and finally an account headed " Sherifa Fatimah binte 
 " Ali bin Mohamed al Junied, in account current with Syed Abdulla 
 " bin Omar al Junied," showing a final balance due to her of 
 
JUNIBD & 
 OBS, 
 
 STRAITS SETTLEMENTS. 443 
 
 $3,304.81|. On Thursday, 15th December, 1864, an order of Sidgbeaves, 
 Court was made, whereby it was ordered tbat all matters in °-JJ.- 
 difference between the said parties, be referred to the award, arbi- __' 
 trament and final end and determination of Syed Mohamed bin Syed Awal 
 Alwee al Hadad and Syed Salim al Sree, and in case the arbitra- = 1N 0mae 
 tors should not be able to agree concerning the making of the said Bha ™™ 
 award then, and in such case to the umpirage and final end and Sted Ali bin 
 determination of Syed Hassan bin Alwee bah Eekman as umpire, ° MAE Al 
 On the 13th January, the arbitrators made the following award. 
 
 _ " All honors to God the only one God. This is what we Syeds have 
 weighed and decide to the best of our abilities. After enquiring into the 
 complaint of Syed Awath bin Omar Shatree and his wife Sherif a Fatimah 
 bmte Ally bin Mahomed al Junied, against Syed Abdulla bin Omer al Junied, 
 and examined the account books kept by Syed Abdulla bin Omar al 
 Junied. Whereupon that which must go to Syed Haroon bin Omar al Junied 
 from the estate net, after deducting expenses, is twenty-three thousand and 
 nine hundred and eighty-nine Reals and eighty-five cents, [23,989 Reals 85 
 cents,] the share of Sherif a Fatimah aforesaid, is one-fourth which amounts to 
 five thousand nine hundred and ninety-seven Reals and forty-six cents, [5,997 
 Reals 46 cents.] 
 
 Her share from her deceased father Syed Ally bin Mahomed al Junied's 
 estate, in rents and other ways, ending in the month of Rabualakir in the year 
 one thousand two hundred and eighty [1280] as per account kept by Syed 
 Abdulla bin Omar al Junied, which have been examined, after deducting pay- 
 ments to her, there appears a balance in her favor of fifty-four Reals and 
 seventy-eight cents, [54 Reals 78 cents.] 
 
 In regard to the complaint by Syed Awath bin Omar and Sherif a Fatimah, 
 the two aforesaid against Syed Abdulla aforesaid about her share from her 
 deceased husband Syed Haroon's share in the rents of houses and land that 
 are remaining," and the accounts of the balance of the one-third of the rents 
 remaining. We, Syed Mahomed bin Alwee al Hadad and Syed Sallim bin 
 Alwee al Sree, do disagree in these matters, we therefore, refer these matters 
 to the [Umpire] third party Syed Hassan bin Alwee bah Rekman. 
 
 In regard to the costs of this suit, also in regard to the request of Syed 
 Abdulla bin Omar al Junied, that trustees be appointed over the estate of 
 Sherif a Fatimah, we disagree between us two, therefore we refer this matter 
 also unto Syed Hassan aforesaid. 
 
 This is all what appears plain and clear to us Syed Mahomed and Syed 
 Sallim, as per order of Court, given by the Judge, dated the 15th day of 
 December, 1864. 
 
 Written and done at the Port of Singapore, on the 14th of Shaban, 1281 
 [corresponding with the 13th January, 1865.] 
 
 Sd. The signature of Syed Mahomed bin Alwee al Hadad. 
 Sd. The signature of Syed Sallim bin Alwee al Sree." 
 
 On the following day, the 14th January, the Umpire made 
 the following award upon certain matters, upon which the two 
 Arbitrators could not agree : — 
 
 " All praises to God who is a true and just Judge. What I know about 
 the matters upon which Syed Mahomed bin Alwee al Hadad and Syed Sallim 
 bin Alwee Sree do disagree, which is in relation to the claim of Syed Awath 
 bin Omar al Shetree and Sherifa Fatimah binte Syed Alley bin Mahomed al 
 Junied, against Syed Abdulla bin Omar al Junied for her share from the 
 estate of her late husband Syed Haroon bin Omar al Junied, from the rents 
 of houses and lands that remains, and the accounts of the balance of the one- 
 thirdof rents collected, I understand, and to cut this matter in two, I decide 
 to put an end to these disputes, I award fourteen thousand Reals [14,000] to 
 
444 CIVIL CASES. 
 
 Sidgeeaves, put a stop to all manner of claims that Sherifa may have under the interest 
 C. J. of her late husband Syed Haroon bin Omar al Junied, and with that which 
 1878. Syed Mahomed and Syed Sallim aforesaid have awarded above, via, five 
 
 thousand nine hundred and ninety-seven Reals [5,997] and forty six cents [46] 
 
 Syed Awai together with the balance in her favor from her late Father's estate, fifty-four 
 
 bin Omae Reals [54] and seventy-eight cents [78] as above written makes a total of what 
 
 Shateie i s to be paid to her twenty thousand Reals [20,000] and fifty-two Reals [52] and 
 
 „ ''. twenty-four cents [24] and all manner of claim or suits that may hereafter be 
 
 OmaeAl™ raised by Syed Awath bin Omar and Sharifa Patima binte Ally the aforesaid 
 
 Junied & ^ wo P el ' sone or by their Attorney, or their heirs against Syed Abdulla bin 
 
 0ES Omar al Junied, or against the heirs of Syed Haroon, or by Syed Abdulla the 
 
 aforesaid, or the heirs of Syed Haroon aforesaid, against Syed Awath and 
 
 Sherifa Patima, the two aforesaid, or their heirs such suits or claims are to be 
 
 void, nor are they to be entertained or admitted. 
 
 In regard to the costs of this suit each party to bear his own costs. 
 In regard to the request of Syed Abdulla bin Omar aforesaid about 
 Trustees, is left to the pleasure of tbe Judge. 
 
 • This is what I understand and what has entered into my senses, acting 
 under the order of the Judge, dated the 15th day of December, 1864. 
 
 Done and written at the Port of Singapore, on the 15th day of Shaban, 
 1281, carry with the 14th of January 1865. 
 
 Sd. The signature of Syed Hassan biu Alwee bah Rekman. 
 
 May God enlighten me." 
 
 It is rather- curious that in these two awards no reference 
 wh.ate.ver is made to Syed Omar's estate, the contention of the 
 defendants being that although the petition refers only to Syed 
 Haroon ? s estate, of which Abdulla was the sole Administrator, 
 yet that the claim of Syed Haroon, upon Syed Omar's estate, 
 of which latter estate, Abdulla was Executor, conjointly with, 
 two others, was taken into consideration by the Arbitrators 
 and Umpire and decided upon ; and it is also curious that 
 after these awards had been executed by the arbitrators, two 
 other papers or writings were added, which do directly refer to 
 the claims of the petitioners upon the estate of Syed Omar. The 
 1st additional writing is tacked on in the original as it were to 
 the award of the Umpire, but manifestly after the Umpire had 
 executed the award. I do not see how, in accordance with decided 
 cases, I can do anything else, but hold that it forms no part 
 of the award. The law upon the subject, is succinctly stated 
 in Russell on Awards, 5th edition, p. 134. " As soon as 
 " the award, is made the authority of the arbitrator haying 
 " once been completely exercised, according to the terms of the 
 " reference, is at an end ; he is not at liberty after executing the 
 " award to exercise a fresh judgment on the case, and alter the 
 " award in any particular. If he does so, in fact, the alteration 
 " will be merely nugatory, and the award as originally written 
 " will stand good ; his act will be like a mere spoliation by a 
 " stranger, he is so entirely functus officio, that he cannot even 
 " correct a manifest error, in the calculation of figures. " The 
 submission provides, that the arbitrators and Umpire shall make 
 and publish their award in writing, ready to be delivered to the 
 said parties, or either of them, as shall require the same, — but to 
 quote again from Russell, p. 243 : " So far as the validity of the 
 " award is effected it would, in general be considered as published 
 
ORB. 
 
 STRAITS SETTLEMENTS. 446 
 
 " as soon as the arbitrator has done some act, whereby he becomes Sidgreaveb, 
 "fundus officio, and has declared his final mind, and can no °- jj: 
 
 " longer change it, i.e., as soon as he has made a complete award." '. 
 
 And in accordance with the cases of Brown & Vawser — 4 East Syed Awal 
 584, and Henfree v. Bromley, 6 East 310, I must hold, tliat the BIN ° KAK 
 award haying once been complete by the first signature of the Sha J eie 
 Umpire, and being then ready for delivery, there was an end of SybdAlibin 
 the Umpire's authority. The second paper, dated the 14th January, ° MAK Al 
 is clearly inadmissible upon the same principles ; and indeed, it J ' ' r ' 
 purports to be nothing more than an explanation of the nature of 
 the award. 
 
 I have no doubt, however, that this award was a final and 
 conclusive judgment between the parties, as to all matters refer- 
 red by the submissisn. I have no doubt moreover, that the award 
 has been acted upon by the parties, and it was made between the 
 same parties as in the present suit, and in respect of the same 
 cause or causes in action, undoubtedly, it is an effectual bar to 
 the present suit. An award however on a submission of all mat- 
 ters in difference, is no bar to the recovery of a demand which, 
 though it existed as a claim at the time of the reference, was not 
 then a matter in difference, Russell, p. 500, and to the same effect 
 in Chitty's Archbold's Practice, 12th edition, p. 1,704: "It has 
 " been held, that a reference of all matter in difference between 
 " the parties, does not preclude one of the parties from afterwards 
 " suing for a cause of action- subsisting at the time of the reference, 
 " if such matter were not a matter in difference between the parties, 
 " nor laid before the Arbitrators," 
 
 In considering therefore, whether the present suit commenced 
 in June, 1877, is barred by the award made in the suit in 1864, it is 
 clear that it can only operate as such a bar, if it is between the 
 same parties and in respect of the same cause or causes of action. 
 It is, of course, clear that nominally the parties are not the same, 
 but it is contended that practically they are so. The petition of 
 1864 contains no reference to the dual position of Syed Abdulla 
 as sole administrator of Syed Haroon and Executor of Syed Omar. 
 It refers exclusively to his dealings with the estate of Syed 
 Haroon, and the prayer is to have the assets of the said Syed 
 Haroon administered in this Court, so that we may consider that 
 the suit of 1864 between Syed Awath and Sherifa Patimah his 
 wife, was brought against Syed Abdulla for the sole purpose of 
 haying the estate of Syed Haroon administered under the direc- 
 tions of the Court. Neither does the defendant in his answer, filed 
 on the 10th of August, 1864, seem to treat the matter in a differ- 
 ent light ; besides being administrator to Syed Haroon and Exe- 
 cutor of Syed Omar, he was also co-executor with his brother to 
 the estate of Syed Ali bin Mohamed al Junied, father of Eatimah, 
 and wife of Syed Awath. It is on that account, no doubt, that 
 Syed Abdulla has filed these various accounts along with_ his 
 answer; but I cannot gather from his answer that he considers 
 himself in any way called upon to account in respect of his Exe- 
 cutorship of Syed Omar's estate, except as regards assets that 
 have come into his hands as Administrator of Syed Haroon in 
 
446 OIVIL OASES. 
 
 Sidgreaves, respect of Syed Haroon's estate. In the answer there are only 
 c - J - two references to Syed Omar's estate. In the first he says : — 
 ia18. 
 
 Syed Awal " It is true that the defendant, on the 24th day of July, 1861, filed an ac- 
 
 bin Omab "count of his intromissions, with the said estate, showing a balance of 
 
 Shateie " $4,351.30 in favour of the estate, but it is not true that the said account 
 
 v. " was or is incorrect or defective, but on the contrary thereof, the defendant 
 
 Syed Ali bin " avers, that the said account is correct and complete, and that the complain- 
 
 Omae Al " an t s have always had, and now have the fullest access to the books and 
 
 Junied & « acC ounts of the estate of the said Syed Haroon, and to the books and ac- 
 
 oks. .. coun tg of the estate of his late father Syed Omar bin Ali al Junied, and to 
 
 "the books and accounts of the father of the complainant Sherifa Fatimah 
 
 " binte Ali bin Mohamed al Junied, and have had every means of ascertain. 
 
 " ing if there were any and what defects and inaccuracies in the said 
 
 " accounts." 
 
 In the second, after referring to a certain family arrange- 
 ment, he says : — 
 
 " And in furtherance of this arrangement, when the complainants were 
 " married, the defendant paid to the complainant Sherifa Fatimah, &c, the 
 " whole amount of the sums accrued due on the share of her late husband 
 " Syed Haroon's father's estate, whereas if the affairs of the family had been 
 " administered, according to English law, these rents would have been credited 
 "to the estate of Syed Haroon, &c, in which case the complainant Sherifa 
 " Fatimah, &c, would have been entitled to a half share therein only instead 
 " of to the whole, the said amount then in the defendant's hands as Adminis- 
 " trator of Syed Haroon, &c, Syed Haroon's estate, representing the balance 
 " due to Syed Haroon out of the estate of his late father, Syed Omar, &c, at 
 " the time of the death of the said Syed Haroon bin Omar al Junied." 
 
 We cannot gather then either from the petition or the answer 
 that Haroon's claim to. his unadministered share in his father's 
 Will, was one of the matters in dispute between the parties, before 
 the arbitrators and Umpire. The submission is general, and the 
 award [without the explanatory additions which, I consider, form no 
 part of the award] contains no reference to it. If the estate of 
 Syed Omar had been fully administered and the whole of Syed 
 Haroon's share had been received into the hands of Syed Abdulla 
 as his executor, then undoubtedly the whole could have been re- 
 covered against Abdulla as assets which had come into his hands, 
 but if the estate of Syed Omar had not been fully adminis- 
 tered and Syed Abdulla as administrator of Syed Haroon, had 
 not received the share of Syed Haroon, it is exceedingly 
 unlikely that he would have wished to make himself liable 
 by anticipation for what he had not received. That the estate of 
 Syed Omar had not been fully administered at the time of the 
 making of the account, the Will itself and the undisputed portions 
 of the petition of 1877 put, I think, beyond all doubt. The con- 
 clusion to which I am drawn is that after the execution of the 
 award something happened, some communication probably was 
 made to the Umpire which induced him to think that it would be 
 a good thing to relieve Syed Abdulla as one of the executors of 
 Syed Omar from all further claims upon that estate, so far as 
 Sherifa Fatima, widow of Syed Haroon and wife of the present 
 petitioner, were concerned. Hence the foot-note and the subsequent 
 
STRAITS SETTLEMENTS. 447 
 
 paper which I consider were abortive attempts on the part of the Sidskeaves. 
 Umpire to do that which he had no authority whatever to do. I ^g_" 
 
 hold, therefore, that the award is no bar to the prosecution of the . 
 
 present suit by the petitioner. Syed Awal 
 
 I now proceed to consider whether the petition of the plaintiff g™J^ E 
 can be said to be barred by the Statute of Limitations or by the ■ .„. 
 laches and acquiescence of the plaintiff. These grounds may be Sybd Ali bin 
 taken together, for although a Court of Equity when it has con- j*£™v& 
 current Jurisdiction with the Courts of Common Law, will act in ^es" 
 obedience to the Statute, yet when the demand is of a purely 
 equitable nature, it will follow a rule of its own, to use the language 
 employed in Story's Equity Jurisprudence, 10th edition, section 529. 
 
 " When the demand is not of a legal nature but is purely equitable, or 
 " when the bar of the Statute 'is inapplicable, Courts of Equity have another 
 " rule, founded sometimes on the analogies of the law where such analogy 
 " exists, and sometimes upon its own inherent doctrine not to entertain stale ' 
 
 " or antiquated demands, and not to encourage laches and negligence." 
 
 And in section 1520, 
 
 " The Statutes of Limitation where they are addressed to Courts of 
 " Equity as well as to Courts of Law, as they seem to be in all cases of con- 
 " current Jurisdiction at Law and in Equity [as for example in matters of 
 " account] to which they directly apply ,seem equally obligatory in each Court. 
 " It has been very justly observed that in such cases, Courts of Equity do not 
 " act so much in analogy to the Statutes as in obedience to them ; in a great 
 " variety of other cases, Courts of Equity act upon the analogy of the Limi- 
 " tations of Law 
 
 " But a defence, peculiar to Courts of Equity, is founded upon the mere 
 " lapse of time, and the staleness of the claim in cases where no Statute of 
 " Limitations directly governs the case.' In such cases, Courts of Equity act 
 " sometimes by analogy to the law, and sometimes upon their own inherent 
 " doctrine of discouraging for the peace of society, antiquated demands, by 
 " refusing to interfere, when there has been gross laches in prosecuting rights 
 " or long and unreasonable acquiescence in the assertion of adverse rights." 
 
 As the objects sought to be obtained by this suit, would be 
 absolutely unattainable in a Court of law, the demand may be 
 looked upon as of a purely equitable nature, and to be decided 
 upon, entirely by the rules existing in Courts of Equity. The 
 matter arises out of a Probate of the Will of Syed Omar bin Ali 
 al Junied, granted so far back as the 10th of January, 1853, to 
 Syed Ali bin Mahomed al Junied, Syed Abdulla bin Omar, and 
 Syed Ali bin Omar, the Testator having died on the 6th of Novem- 
 ber, 1852. The law in force in this Colony regarding the grant- 
 ing of Probate and Letters of Administration, is denned by section 
 48 of Ordinance V. of 1873, which enacts that 
 
 " The practice in granting Probates and Letters of Administration shall 
 " be as at present, with such modification as may be seen to be necessary to 
 " do justice among the various classes of the native inhabitants, according to 
 " their several religions and customs, and subject to such rules and orders as 
 " may, from time to time be made by the Court under section 51." 
 
 For the regulations as to the conduct of Executors and Ad- 
 ministrators, we still have to refer to the Letters -Patent of the 
 10th of August, 1855— the case of Yeap Cheah Neo v. Ong Cheng Neo, 
 
0RS, 
 
 448 CIVIL OASES. 
 
 Sidokeates, L. B. P. C, appeal cases, vol. VI. p. 381, [a] having decided that 
 °- J - although. Ordinance V. of 1868, enacted that the Court of Judica- 
 1878 , ture established under the Letters Patent above referred to, was 
 Sted Awal thereby abolished, and that the Letters Patent should 'cease to have 
 bin Omak an y operation in the Colony, yet that the effect of the 4th section 
 Shateie an( j ^ e j g £ sec ti on taken together was that, whilst the repealed 
 StedAubin Letters Patent ceased to have any operation of their own, all the 
 Omar Al provisions contained in them applicable to the Old Court, were 
 Jitnied & ^i r t U ally re-enacted and made applicable to the New Court which 
 was put in its place, as effectually as" if they had been repeated at 
 length in the Ordinance. The regulations above referred to con- 
 tained in the Letters Patent are as follows : 
 
 " And we do further ordain and require that the Court shall fix certain 
 " periods when or within which all persons, to whom probates of Wills and 
 " Letters of Administration shall be granted by it shall, from time to time, un- 
 " til the effects of the deceased person shall be fully administered, pass their 
 " accounts relating thereto before the Court. And in case the effects of the 
 " deceased shall not be fully administered within the time for that purpose so 
 " fixed, then or at an earlier time if the Court shall see fit so to direct, 
 " the person or persons to whom the same respectively shall be granted, 
 " shall pay and deposit the balance of money belonging to the estate of the 
 " deceased, then in his, her or their hands, and all money, &c, in manner 
 
 " therein directed And we require that the said Court shall, 
 
 " from time to time, make such order as shall be just for the due administra- 
 " tion of the assets, and for the payment or remittance thereof as occasion 
 " shall require to or for the use of any person or persons, whether resident or 
 "not resident in the said Settlements, who maybe entitled thereto or any 
 " part thereof as creditors, legatees, or next-of-kin or by any other right or 
 " title whatsoever." 
 
 It is contended, however, on behalf of the defendants that the 
 Court has no longer power to discharge the duties imposed upon 
 it, and that even although it should consider that an order for the 
 due administration of the assets should be a just order, yet it is 
 to be debarred by the laches of the plaintiff, and of those who 
 have preceded him in his present office from making such an order. 
 On the part of the plaintiff, section 2 of Act 14 of 1859 was re- 
 lied upon as taking the case at all events, out of the operation of 
 the Statute of Limitations : 
 
 " No suit against a trustee in his lifetime, and no suits against his repre- 
 " sentatives for the purpose of following in their hands the specific property 
 " which is the subject of the trust, shall be barred by any length of time." 
 
 And it was contended on behalf of the defendants that this 
 section was not applicable to the present suit, but that it was 
 governed by the 11th sub-section of section I : 
 
 " To suits in cases governed by English law upon all debts and obliga- 
 " tions of record and specialities and to suits for the recovery of any legacy 
 " a period of 12 years from the time the cause of action arose." 
 
 It was urged that no express trusts were created by the terms 
 of the Will as regarded the 70 years clause, that the executors 
 took no estate on trust, but that the beneficiaries took an absolute 
 
 [a] ante p, 337. 
 
STRAITS SETTLEMENTS. 449 
 
 estate on the death of the testator, and that similarly the 20 years Sidgmaves, 
 clause of the Will is also illegal and void. As was pointed out, ^ 
 
 however in the argument, the section above referred to was much ' 
 
 stronger than the English Act 3 & 4 Wm. IV., section 25, which 8™ Awal 
 enacts that : bin Omab 
 
 Shatbie 
 
 " When any land or rent shall be vested in a trustee upon any express Sted Am bin 
 " trust, the right of the_ cestui que trust or any person claiming through him Omae Al 
 " to bring a suit against the trustee or any person claiming through Junikd & 
 "him to recover such land or rent, shall be deemed to have first ac- obs. 
 
 " crued, according to the meaning of this Act, at and not before the time 
 " at which suchland or rent shall have been conveyed to a, purchaser for a 
 " valuable consideration, and shall then be deemed to have accrued only as 
 " against such purchaser and any person claiming through him." 
 
 The question as to the construction of the Will has been held 
 over, pending the determination of the Court upon these prelimi- 
 nary points. It is quite clear that whatever the decision of the 
 Court may be as regards these clauses, they have been adopted and 
 acted upon by the executors as being fully operative. At the time 
 of the death of the testator, the heirs who were to be beneficially 
 interested under the Will, were all or many of them minors, and 
 the whole of the property bequeathed for their benefit was taken 
 possession of by the executors, and the rents received for the pur- 
 pose, we must presume, of carrying out the trusts implied or con- 
 structive of the Will. They are charged in the petition with hav- 
 ing fraudulently abused their position, for the purpose of defraud- 
 ing the persons beneficially interested under the Will, and of mis- 
 appropriating the funds which came into their possession as exe- 
 cutors, lb would certainly be strange if they could now be al- * 
 lowed to turn round and say : " It is true that under a Mahome- 
 " dan Will, which was never intended to come into an English 
 " Court of Justice, we have received and misappropriated large 
 " sums of money intended for your benefit, under the impression 
 " that we were trustees for you under the Will, but as we are ad- 
 " vised that by English law those bequests will probably be held 
 " void, we must decline to consider ourselves as trustees at all, and 
 " decline also to give any account of the money which we have so 
 " misappropriated." It appears to me that such a doctrine as 
 that would hardly be considered as adopting such modifications of 
 our own practice, as may seem to be necessary to do justice among 
 the various classes of the native inhabitants according to their 
 several religions and customs or to be in conformity with the regu- 
 lations as to the conduct of executors and administrators which I 
 have already quoted from the Letters Patent. Even if the various 
 bequests contained in the Will could be construed as amounting 
 simply to bequests of legacies, it would still be difficult to contend 
 that, under all the circumstances set out in the petition, they had 
 not assumed the character of a trust fund, and so would render 
 the executors acting as trustees liable for a breach of trust. In the 
 case of Phillippo v. Munnmgs, 2 Mylne & Craig, p. 309, a specific 
 legacy of £400 was bequethed upon certain trust for the mainte- 
 nance and education of John Buskall, till he should attain 24 years 
 of age, when it was to be paid to him. If he died before attain- 
 
480 CIVIL OASES. 
 
 Sidgreavbs, ing 24 years of age, then it was to be paid to the plaintiffs. He 
 
 ^■ 3 - died in the year 1800, under the age of 24 years, but it was not 
 
 __ till the year 1834, that the plaintiffs filed their bill against the exe- 
 
 StedAwal cutor. The defendant, by his answer, admitted the principal 
 
 bin Omar f ac ts 5 but claimed in bar of the suit the same benefit of the statute 
 
 hatbie Q £ limitations, and of the laches of the plaintiff's in putting their 
 
 Step Ali bin claim in suit as if he had pleaded the same in bar to the bill. Upon 
 
 Omab al argument, the defendant's counsel using language very simila r 
 
 ^ to that which was used in argument in the present case, said : — 
 
 " The 40th section of the recent Statute of Limitations, 3 & 4 Wm. IV., 
 " C, 27, is a complete bar to the plaintiff's demand in this suit. It will be 
 " argued for the plaintiffs, that this is not a suit for a legacy, but a suit to 
 " make the defendant answerable as a trustee. That argument however goes 
 " too far ; for every executor is a trustee, and every suit for a legacy is a suit 
 " to compel the performance of a trust, and if the argument were to prevail, 
 " the consequence would be, that there would be no case to which this part of 
 " the statute could apply and the express provision which the Legislature has 
 " made, would be entirely inoperative." The Lord Chancellor : — " A man 
 " who being in possession of a fund which he knows to be not his own, thinks 
 " proper to sell it, and apply the produce to his own use certainly does not 
 " come before the Court under circumstances which entitle him to much in- 
 " dulgence, and the only question is whether by the Statute which has been 
 " referred to, I am prohibited from entertaining this suit to make him 
 " responsible for that breach of trust. The whole fallacy of the defendants 
 " argument consists in treating this suit as a suit for legacy. Now the 
 " fund ceased to bear the character of a legacy as soon as it assumed the cha- 
 " racterof atrustfund. Suppose the fund had been given by the Will to anybody 
 " else, as a trustee, and not to the executor ; it would then be clearly the case 
 " of a breach of trust. In this case, the executor when he severed the legacy 
 " from the general personal estate, could not pay it over to any other person, 
 " he was bound by the direction of the testator to hold it, upon certain trusts 
 " until the legatee attained 24. What he would have done by paying it to a 
 " trustee he has done by severing it from the testator's property and appro- 
 " priating it to the particular purpose pointed out by the Will. 
 
 " It is impossible to consider that the executor so acting, is acting as an 
 " executor ; he has all this while, been acting as a trustee. 
 
 " This suit must be considered not as a suit for a legacy, but as a suit to 
 ".compel a party to account for a breach of trust ; and it is clear, therefore, 
 " that it is not within the terms of the Act in question." 
 
 So in the present case, I think, it may fairly be said that the 
 executor has been acting as a trustee in receiving the rents and 
 profits of the testator's estate upon the implied trusts of the Will, 
 and that this suit may be considered, not as a trust for a legacy, 
 but as a suit to compel parties to account for breaches of trust. 
 
 In considering the question of laches, each case must of course, 
 stand upon its own individual merits and be governed by the pecu- 
 liar circumstances applying to it and in taking those circum- 
 stances, into consideration in the present instance, it is im- 
 possible to leave out of sight the fact that this is almost entirely 
 a family matter, that the Will and the bequests contained therein 
 were of an essentially Mahomedan character, and that the wishes 
 of the testator as expressed therein could only be carried into 
 effect by carrying it out as a family arrangement, and keeping aloof 
 from Courts of Law. Syed Haroon, the person beneficially entitled, 
 on whose account the present claim is made, and the young widow 
 who survived him, must have had every reason to suppose, and to 
 hope that the two acting executors, the sons of the testator, and 
 
STRAITS SETTLEMENTS. 451 
 
 the brothers of Syed Haroon himself specially appointed by their Sjdqbbavbb, 
 father, to protect the interests of their infant brothers and sisters, j^; 
 
 would prove faithful to the trust and confidence reposed in them, 
 
 and carry out the intentions of the testator without the necessity Syed Awal 
 of an appeal to a Court of Law. But even if they had hecome sus- ^"biIT 
 picious of the conduct of the executors, matters had become so in- v. 
 vol red that it was almost impossible to seek redress with any Syed Ali eim 
 chance of obtaining it. When Syed Haroon died in 1860, Sherif a j^ D A & 
 Fatimah, his widow, was only 17 years of age ; it was impossible, bs, 
 therefore, for her to take out Letters of Administration to her late 
 husband, and the result was that they were granted to Syed 
 Abdullah, who was not only one of the two acting execu- 
 tors of Syed Omar, but also one of the executors of Syed Ali 
 bin Mohamed al Junied, the father of Sherifa Fatimah. Thus, 
 Syed Abdulla, as regaids this widow of 17 years of age, stood 
 in the position of administrator to her husband, executor to 
 her husband's father and executor to her own father. In 1864, 
 however, the year that she came of age, and being then married to 
 Syed Awath, the present plaintiff, she did bring the suit which 
 has already been set forth against her brother-in-law Syed 
 Abdulla. That seems to have been all that was possible for her 
 and the present plaintiff, to have done at the time. They proceed- 
 ed against Syed Abdulla as the administrator of Syed Haroon, but 
 to recover the share to which Syed Haroon was entitled under 
 the Will of his father Syed Omar, or to have that estate duly 
 administered, it would have been incumbent upon Syed Haroon's 
 administrator himself to have taken the initiative. Now as Syed 
 Ali the other acting executor, under Syed Omar's Will, had left 
 Singapore for Arabia in 1862, Syed Abdulla was the only acting 
 executor under that will, so that to effect the object sought for, a 
 suit would have been necessary by Syed Abdulla, administrator of 
 Syed Haroon, against Syed Abdulla, executor of Syed Omar. He 
 left Singapore himself in the year 1865, dyingin Arabia in May, the 
 same year. I do not think that it can possibly be contended, that up 
 to the death of Syed Abdulla, at all events, either Syed Haroon or 
 Sherifa Fatimah can be said to have been guilty of laches, in not 
 attempting to do that which was practically an impossibility. 
 
 After the death of Syed Abdulla, the suit brought by Sherifa 
 Fatimah in 1864, was revived against Abdulla's executors Syed 
 Junied and Syed Aboobaker, and is stated to be still pending in 
 this Court. This revived suit seems to have proceeded very slowly. 
 The petition was filed on the 6th of November 1866, demurrer 
 was joined to the suit by the executors, on the 17th of July 1867, 
 and on the 18th of April 1868, an affidavit was filed by the defend- 
 ants in support of a motion for the examination of a material and 
 necessary witness about to leave the Settlement. On the 11th of . 
 June 1870, another petition was filed by the present petitioner and 
 Sherifa Fatimah his wife, stating amongst other things that Sherifa 
 Fatimah had obtained a grant of Letters of Administration to the 
 estate and effects left unadministered of the said Syed Haroon, 
 and had thereby become the legal personal representative of the 
 said Syed Haroon, and praying that the said suit might be revived 
 
452 CIVIL OASIS. 
 
 Sidgbbaves, against Sherifa Fatimah, as the administratrix de bonis non of the 
 jg^ said Syed Haroon. It was urged that the bringing these various 
 ' suits and not proceeding with them, could not be treated as in any 
 
 Syed Awal way operating to prevent the bar of the Statute of Limitations or 
 
 J Sha° MAE °^ ^ acnes 5 but I think that in considering the whole question as 
 
 „. ' to whether the parties have been guilty of laches or not, all their 
 
 Syed Ali bin acts are of importance, and that bond fide though abortive 
 Omae al attempts to enforce their rights cannot be left out of considera- 
 obs. tion. The difficulties that must have arisen in ascertaining and 
 settling the rights of the various parties interested under the 
 Will, appear from an attempt that was made to settle them in 
 December, 1875. An Indenture spoken of as a deed of arrange- 
 ment was made on the' 31st of that month, between Syed Ali bin 
 Omar al Junied, late of Singapore, merchant, but at present resid- 
 ing at Mecca in Arabia of the first part, Syed Junied, and Syed 
 Aboobaker of the second part, Sherif aNoor, wife of Syed Salim, Syed 
 Hamid, Sherifa Zena,wife of Syed Agil, Syed Omer bin Abdulla 
 al Junied, Sherifa Sara binte Abdulla al Junied, Syed Haroon, 
 Syed Abdulrahman, Sherifa Ayesha of the 3rd part, Syed Salim, 
 late of Singapore, but at present residing at Hydramont in Arabia 
 of the 4th part, Syed Mohamed, Syed Agil, Syed Hussain, and 
 Syed Omar of the 5th part, Sherifa Shaika widow, of Singapore, 
 of the 6th part, Sherifa Bohya, wife of the said Syed Hamid of 
 the 7th part, Sherifa Fatimah of the 8th part, and the said Syed 
 Junied of the .9th part, the said Syed Aboobaker of the 10th part, 
 the said Syed Abdulrahman of the 11th part ; and the said Syed 
 Alwee and Syed Omar of the 1 2th part. This deed recited what 
 had taken place before the death of Syed Abdulla and that he 
 died in May, 1865, without having completed the administration of 
 the said estate, or finally divided the residuary personal estate of 
 the said testator among the persons entitled thereto under the 
 said Will, that since the death of the said Syed Abdulla 
 until the month of April, 1875, the said Syed Junied and Syed 
 Aboobakar received the rents and profits of the real and leasehold 
 estates of the said testator under a power of attorney from the 
 said Syed Ali. After some further recitals of different family 
 arrangements and the difficulties, there were in carrying them out 
 the deed goes on to say : 
 
 "And wheieas in consequence of the difficulties in the construction of 
 '"the Will of the said Syed Omar deceased, and the confused state of the 
 " accounts of the estate of the said Syed Omar, deceased, left by the said Syed 
 " Abdulla upon his death, great disputes and differences have arisen between 
 " the parties entitled under the Will, and the said Syed Ali as executor of the 
 "said Syed Omar and the said Syed Junied and Syed Aboobakar as executors 
 " of the said Syed Abdulla, the said parties or some of them claiming from 
 " the said Syed Ali and the executors of the said Syed Abdulla, large sums in 
 " respect of the personal estate of the said testator, said to have been received 
 " by them or one of them, and also of the rents of the said real and leasehold 
 " estates said to have been received by them or one of them, and on or abdut 
 " the 15th day of December, 1874, a suit was instituted in the Supreme Court 
 " of the Straits Settlements, division of Singapore, in which the said Syed Ali 
 "was plaintiff and the said several persons parties hereto of the 2nd, 4th, 
 " 6th, 7th, 8th, 9th, 10th, and 11th parts, were defendants and also another 
 "suit of the said Court in which the said Syed Ali was plaintiff and 
 "the said Syed Junied, and Syed Aboobaker were defendants. And whereas 
 
STRAITS SETTLEMENTS. 
 
 453 
 
 the said several persona parties hereto, being desirous of putting an end 
 ^ to the said law suits and all further family dissensions, disputes and dis- 
 ',', .*i8"«nients, such litigation between members of one family being contrary 
 " w-ii /*u rit ? f their religion, and the express directions contained in the 
 " Will of the said Syed Omar deceased, have mutually come to the arrangement 
 " hereinafter contained ; And whereas it is considered that Syed Haroon, a 
 " son of the deceased having died in infancy and without issue by the terms 
 "of the said Will, the share which he would have taken in the estate of the 
 " testator became vested in his several brothers and sisters who survived him, 
 " and further that any claim which his widow and administratrix might 
 '^have upon the estate of the said Syed Omar, has been already settled by 
 " arbitration, but the parties to these presents have agreed to set aside monies 
 " to answer any claim on the part of the said admininistratrix and to enter 
 " into the mutual indemnities in respect thereof hereinafter contained." 
 
 This last recital summarily disposes of the claims of the present 
 plaintiff, but the first point having yet to be the subject of a 
 judicial decision and having found that the claims which his widow 
 and administratrix might have upon the estate'of thesaid SyedOmar, 
 had not been settled by arbitration, it may be considered as prema- 
 ture. It is quite clear, however, that after the death of Syed 
 Abdulla, the sole acting executor with the surviving executor in 
 Arabia and the executors of the deceased acting executor acting 
 under a power of attorney from Syed Ali the absent surviving 
 executor, very great difficulties indeed would be placed in the way 
 of Sherif a Eatitnah and her husband the present plaintiff obtaining 
 a recognition or settlement of their claims. Great delay took 
 place, no doubt, but up to 1875 at all events, all the rest of the 
 family seem to have equally participated in the delay and from 
 the same causes. The question seems to be whether this delay can be 
 excused or justified by peculiar circumstances, and it seems to me 
 that taking all the circumstances into consideration, a strong case 
 has been made out in excuse and justification of the delay, and that 
 this Court as a Court of Equity cannot either on the ground of laches 
 or acquiescence dismiss the plaintiff's suit. Upon all the grounds 
 therefore argued before me I find in favor of the plaintiff. 
 
 SlDSKEAVES, 
 
 C.J. 
 
 1878. 
 
 Bted Awal 
 
 BIN OMAB 
 
 Shateie 
 
 V. 
 
 Syed Ali bin 
 Omar it 
 
 JUNIED& 
 OR8. 
 
 TUNKOO MOODA NYAK MALIM v. 
 TEK & OES. 
 
 KHOO TEAN 
 
 The limitation to an aotion for goods sold and delivered, where there is no writing, Penans, 
 
 other than the receipt for the goods, is 3 years under sub-seotion 9, Clause I. of Act 
 
 XIV- of 1859, as the non-payment of the price of the goods, is merely a hreaoh of Wood, J. 
 
 contraot. 1878. 
 
 This was an action for pepper sold and delivered by the plain- 
 tiff to the defendants, five years before suit. The defendants 
 pleaded the Statute of Limitation, namely, 3 years. The plaintiff, 
 was a foreigner, and had never come to this country. The defend- 
 ants were residents of Penang. The pepper was delivered at 
 Acheen in Sumatra. 
 
 Van Someren, for defendants contended that the debt was 
 barred by the Indian Act XIV. of 1859. The Act of James must, 
 and has been considered to have been abolished by this Act. The 
 
 May 9, 
 
454 CIVIL CASES. 
 
 Wood, J. plaintiff's absence is nothing. Thompson on Statute of Limita- 
 
 18 78 - tions, p. 284 & 285, citing Shoobol Eoolal v. Domim, 10 W. E. 
 
 Tunkoo 253, and Venkatta Saba v. Giri Ammal, 2 Mad. H. C. Reports 
 
 Mooda Nyax 113 — also section 13 of the Act. Thus the period of 3 years 
 
 Malim b ag ruQj atl( j so the remedy barred by section 1, sub-section 9, 
 
 Khoo'tean which enacts " to suits for the breach of any contract the 
 
 Tek & obb. "period of three years from the time when the breach of con- 
 tract in respect of which the suit is brought first toot place, unless 
 "there is a written engagement to pay the money lent, or interest 
 " or a contract in writing signed by the party to be bound thereby 
 " or by his duly authorized agent." There is no contract in writ- 
 ing, and so the case does not come within sub-section 10, which 
 is the same as section 9, except that it refers to written engage- 
 ments or contracts which could have been registered and which 
 were not registered within six months, the only contract being 
 the receipt put in, signed by the Nacodah. Sub-section XVI. 
 v which applies to all suits for- which no other Limitation is pro- 
 vided, is inapplicable to the present case, as sub-section 9, applies 
 to it. That sub-section 9 is the one that is applicable, is clear 
 from Thompson on, Statute of Limitation, p. 133-4, citing Lall 
 Mohun Holdar v. Mahabit Kattu, 9 W. R. 193, and Woonkur Pershad 
 Bustobe v. Phool Komarie Buhee, 7 W. R. 67-68. This is only the 
 case of a breach of contract, and the breach of contract existed 
 on September 22nd, 1873. There is no contract in writing. 
 Lakshmawbjan v. Swasamy, 4 Mad. H. C. Rep. 216, cited in 
 Thompson [appendix] p. 383. Part payment does not take it out 
 of the Statute of Limitations, Thompson, 246-248. 
 Thomas, for plaintiff, contra. 
 
 Wood, J. The case is merely one of breach of contract, and 
 falls within sub-section 9, of section 1, of the Limitation Act 
 XIV. of 1859, and is barred, being over three years. 
 
 Judgment for defendants. 
 
 LIM MAH YONG v. J. A. ANTHONY & ORS. 
 
 Penakg. The Court is not bound by the translation of a Will, which is attached to the Pro- 
 bate, if such translation is incorrect — but may look at the true translation, and go into 
 
 Wood, J. evidence to find what the true translation is. 
 
 1878. Probate is granted by the Superior Courts to the Will of a testator, and not to the 
 
 ~ ' translation of same, although made by the Interpreter of the Court. 
 
 This was a suit to have it declared that, on the true transla- 
 tion of the Will, of one Lim Kong Wah, deceased, the plaintiff was 
 entitled in fee to certain lands, which the defendants as receivers 
 of one, Oh Yeo Neo, deceased, had taken possession of, as part of 
 the property of the said_ Oh Yeo Neo. Probate had been 
 granted to the Will of the said Lim Kong Wah, a great many, years 
 ago, and at that time, a translation was made by the then Inter- 
 preter of the Court, and which was attached to the petition for 
 Probate, at time of the application for same. A copy of this 
 
STEAITS SETTLEMENTS. 
 
 455 
 
 translation was in the usual course attached to the Probate when 
 it was issued. The plaintiff contended that this Probate transla- 
 tion was incorrect, and that, on the correct translation, he was 
 entitled to the property. Probate had not been obtained to the 
 Will as newly translated. The bill set out these facts. The defend- 
 ants demurred. 
 
 Van Someren, for the defendants, and in support of the demur- 
 rer. The plaintiff sets out that Probate was granted of the Will, 
 and that by the translation of it, attached to the Probate, a certain 
 construction, adverse to him is apparent, whereas in truth, and in 
 fact, and according to the true translation, as he alleges, of the Will, 
 the words used by the Testator, give to him an absolute interest. 
 It is submitted, however, that the translation of the Will attached 
 to the Probate, should be held to be the true translation, and that 
 of which probate was given, and the alleged correct translation 
 could not be looked at, Williams on Executors, p. 461 [4th Edn.~\ 
 
 Boss, in support of the Bill. 
 
 Wood, J. I consider that with the authority of L' Fit v. 
 L'Batt, 1 P. Williams, 526, before me, which lays down that 
 " Probate is granted by the Spiritual Court of the Will, and not 
 " of the translation, which translation, a Spiritual Court has no 
 " power to make," that judgment must be for the plaintiff on this 
 joint. 
 
 It is directly stated in the petition that Probate was given 
 of the Will, and that the translation was merely attached thereto, 
 leaving the Court to the plain inference, that the Spiritual Court 
 had acted in conformity with its true power of granting Probate 
 of the written language of the testator, not of the written language 
 of the clerk, who, for the information of the public, makes the 
 translation ; and that, consequently, errors in this translation were 
 not errors in a record, but errors in a matter which is no part of it. 
 The demurrer must be overruled. 
 
 "Wood j J. 
 .1878. 
 
 Lim Mah 
 
 Yono 
 
 v. 
 
 Anthont 
 
 & OBS. 
 
 CHARTERED MERCANTILE BANK OF INDIA, &c, 
 
 v. 
 LETCHMAN CHETTY & ANOR. 
 
 It is now settled law, that the holder of a joint, or joint and several bill or pro- 
 missory note is, in dealing with it, affected by knowledge acquired, even after taking 
 the bill or note, as to which of the parties liable is principal and which is surety. 
 
 Giving of time to the principal under such circumstances, for valuable considera- 
 tion, but without the surety's knowledge, operates to discharge the surety. If the 
 surety under these circumstances is aware of the fact of time being given, but does 
 not dissent from it, he will not be discharged. 
 
 A creditor in giving time under such circumstances to the principal, without the 
 surety's consent, may, also without the surety's consent, nevertheless, reserve his rights 
 against the surety, and he will not be discharged. 
 
 The nature and facts of this case are fully set out in the 
 judgment. 
 
 Clarice, for plaintiff. 
 
 Van Someren, for defendant, Anamalay Chetty. 
 
 Penano. 
 
 Wood, J 
 
 1S78. 
 
 July 18. 
 
 Cur. Adv. Vult, 
 
456 CIVIL CASES. 
 
 Wood, J. November 7. Wood, J. This was an action for a balance of 
 
 1878, $6,023.16, besides interest due on a joint and several promissory 
 
 Chartered note for $12,000, made by both, the defendants. The case as 
 
 Mercantile against Letch man Chetty went by default, but the defendant 
 
 Bank, &c. Anamalay Chetty pleaded. 
 
 Letchman 1st- — On equitable grounds that he made the note as surety 
 
 Chetty only for the 1st defendant, of which the plaintiffs had notice, and 
 & anoe. ^at t k e plaintiffs, whilst holders of the uote received for good and 
 sufficient consideration from Letchman Chetty, in lieu of part of 
 the, balance, a bill of exchange for $5,000, drawn by Letchman 
 Chetty on his principals, Letchman Chetty and Anamalay Chetty 
 payable at Negapatam, and for the balance received and accepted 
 from the said Letchman Chetty, an assignment of several judg- 
 ments obtained by the plaintiff and others on his behalf, against 
 divers persons whereby the defendant Anamalay was released 
 and discharged. 
 
 2nd. — Another equitable plea repeating the fact of the surety- 
 ship and the knowledge of the plaintiffs thereof, and alleging that 
 the plaintiffs without the knowledge and consent of the defendant 
 Anamalay, and for a good and sufficient consideration, gave time 
 to the defendant, Letchman Chetty, whereby the defendant 
 Anamalay was discharged. 
 
 3rd. — A similar equitable plea alleging that the plaintiffs 
 obtained of the defendant, Letchman Chetty, certain securities for 
 the monies due on the note, but the plaintiffs deprived the defend- 
 ant Anamalay, of the benefit of such securities, by negligently 
 parting with the same, whereby the defendant was released and 
 discharged. 
 
 On the trial of this case the third plea was practically 
 abandoned, and as to the judgments received, it was clear that 
 they were taken as collateral security only, and not in discharge 
 of any principal sum ; the contention in reality taking place, on 
 that part of the 1st and 2nd plea, which alleged that time had been 
 given to the principal, for good consideration, without the know- 
 ledge and consent of the surety, by the plaintiff taking from the 
 principal a bill of exchange ; drawn by the principal on certain 
 persons in Negapatain, and payable there. That this bill was, in 
 fact, a suspension of the remedy against the principal Letchman 
 Chetty, and a giving of time was also hardly disputed — but it was 
 urged that it was done without the consent of the surety, and that 
 therefore the surety was discharged. 
 
 4.-U T^Ja 01 ? 0n this P° intma y easily be disposed of . "When 
 the plaintiffs began to press for payment, both the defendants 
 attended at the office of the manager of the plaintiffs' bank. 
 JJetendant Anamalay had been repeatedly pressed for payment, 
 j7 1 !!^ ed ^ t ,^¥ d nomon ey, that he was not principal, 
 and that the plaintiffs had already received notes and iudgments 
 sufficient to repay themselves— and generally that he ought not 
 
 T™^* ^ Letchman Chetty was then pressed for pay- 
 ment, and the defendant Anamalay Chetty also. The defendant 
 
STRAITS SETTLEMENTS. 457 
 
 Letchman was then pressed to draw, a bill of exchange on Nega- Wood, J. 
 patam, the other defendant, Anamalay being present, fully cogniz- 1878 - 
 ant of the whole transaction, and expressing no dissent. I have Chabtebed 
 no hesitation in saying that the consent of the defendant to this Mbbcantile 
 transaction was fully established, and that the inference is un- Bank > &c - 
 avoidable that in such a transaction as this, a matter really bene- Letchman 
 ficial to himself as releasing him from immediate pressure, his Chettt 
 dissent not expressed was tantamount to an actual and expressed & anob. 
 consent, and the judgment must be for the plaintiff on all the 
 issues. Although the matter of fact at issue in this case is, 
 comparatively speaking, simple, so much matter of law was touched 
 on at the trial, that I felt that a considered judgment was called 
 for, in order to set at rest, and inform the public mind as to what 
 really is the mercantile law of England and of this Colony, with 
 respect to several matters affecting the relation of debtor, surety 
 and creditor. 
 
 It would naturally occur to any ordinary mind that where 
 money is lent by a person to any two persons upon their joint and 
 several promissory note, the lender is entitled to consider that the 
 note expresses the nature of the contract, and justifies him in 
 ignoring any special relation which may be existing between the 
 parties liable, viz., the relation of principal and surety. That, in 
 lending money to two persons, as it is a matter of indifference to 
 the lender who is the person benefiting by the loan, and who is 
 the mere surety, he looks to them both, and has a right to shut 
 his ears and his eyes to any complicated connection which modi- 
 fies the relation, which is established by the note given — the equal 
 and independent liability of each of the makers of the note for the 
 full amount of the note, and that he is justified on the note becom- 
 ing due to treat with each of the parties liable as he pleases, with- 
 out reference to their relations inter se. 
 
 Accordingly, Mr. Eobilliard,the manager of the plaintiffs' bank, 
 Mr. Nina Merican Noordin, Mr. Vapoo Noordin, Verapah Chetty 
 and Moona Verapah Chetty are strong in their conviction of the 
 soundness of this view of the right of a lender of money on such 
 a joint and several note as this, and that they regard the makers 
 of the note as joint principals, whether or not, they knew or sus- 
 pected, or had grounds for believing that such a relation as 
 principal and surety existed between such makers, treating this 
 matter of knowledge, as a matter immaterial to themselves. 
 
 Mr. Nina Noordin, a banker carrying on large operations, is 
 specially strong in this matter. He says : "lam a-banker, I have 
 " lent monies to Chetties a great deal. I have had more than 
 " $50,000 out at a time. The custom is to consider both Chetties 
 w as principals. I never heard of the idea of a surety — hut only of 
 "principals. Both are treated alike. If the doctrine of principal 
 " and surety applied to Chetties who signed notes, I should never lend 
 " him a pice." 
 
 As this practice, I may say this misunderstanding of the law 
 as applied to such a case as the one before us, is so strongly enter- 
 tained by a portion at least, of the mercantile community, I have 
 deemed it not inappropriate to direct the attention of persons 
 
458 CIVIL OASES. 
 
 Wood, J. concerned in such transactions, to a few points of law, with a view 
 187 »- to their guidance in future. 
 
 Thus, it is now decided law that the holder of a security, is in 
 
 MercYntm dealing with the security affected by knowledge acquired after 
 
 Bank, &c. taking the security as to which of the parties liable on the security 
 
 "" is principal, and which is surety. Oriental Financial Corporation v. 
 
 c£ettt N Overend Gurney & Co., 7 L. E. Ch. App. 152, citing and corament- 
 
 &ANOR. i n g on Oakeley v. Pasheller in the House of Lords, reported 10, 
 
 Bligh 548 & 4 CI. & Fin. 207. 
 
 The somewhat delicate relations which are, by the law of 
 England, declared to exist between principal, surety, and creditor 
 are thus adverted to in Story's Equity Jurisprudence, Vol. I., page 
 251 [Ed. 1861.] Mr. Justice Stqry in treating of constructive 
 fraud, Chapter VII. section 258, observes : 
 
 " By constructive frauds are meant such acts or contracts, as although not 
 originating in any actual evil design, or contrivance to perpetuate a positive 
 fraud, or injury upon other persons, are yet, by their tendency to deceive or 
 mislead other persons, or to violate public or private confidence, or to impair or 
 injure the public interest, deemed equally reprehensible with positive fraud, 
 and, therefore, are prohibited by law as within the same reason and mischief 
 as acts and contracts done malo animo. 
 
 Section 323. There are many cases of persons standing in regard to each 
 other in the like confidental relations [as trustees and cestui que trust] in 
 which similar principles [of stricted good faith] apply " 
 
 On the whole, the doctrine may be generally stated, that whenever confi- 
 dence is reposed, and one party has it in his power in a secret manner for his 
 own advantage to sacrifice those interests which he is bound to protect, he 
 will not be permitted to hold any such advantage. * 
 
 Section 324. The case of principal and surety, however, as a striking illus- 
 tration of this doctrine, may be briefly referred to. The contract of suretyship 
 imports entire good faith and confidence between the parties, in regard to the 
 whole transaction. Any concealment of material facts, or any expression or 
 implied misrepresentation of such facts, or any undue advantage taken of the 
 surety by the creditor, either by surprise or by withholding proper inform- 
 ation will, undoubtedly, furnish a sufficient ground to invalidate the contract. 
 Upon the same ground the creditor, is in all subsequent transactions with the 
 debtor, bound to equal good faith with the surety. If any stipulations, therefore, 
 are made between the creditor and the debtor, which are not communicated to the 
 surety, and are inconsistent with the terms of his contract, or are prejudicial to 
 his interests therein, they will operate as a virtual discharge of the surety, from 
 
 the obligation of his contract " 
 
 _ Although at first view the doctrines on this subject may seem to be of an 
 artificial, if not of an arbitrary character, yet, upon closer investigation, they 
 will be perceived to be founded in an anxious desire of the law to apply the 
 principal of preventive justice, so as to shut out the inducements rather than 
 to rely on mere remedial justice, after a wrong has been committed. By 
 disarming the parties of all legal sanction and protection for these acts, they 
 suppress the temptations and encouragements which might, otherwise, be 
 found too strong for their virtue. 
 
 It is upon this ground that if a creditor, without any communication with 
 the surety and assent on his part, should, afterwards, enter into any new contratt 
 with the principal, inconsistent with the former contract, or should stipulate m a 
 binding manner, upon a sufficient consideration for further delay or postpone- 
 ment of the day of payment of the debt, that will operate in equity as a discharge 
 of the surety." * 
 
 Into the question of what are the circumstances under which 
 a surety is discharged except, upon the points before us, would be 
 beyond the limits of such a judgment as this, That the, law of 
 
STRAITS SETTLEMENTS. 
 
 459 
 
 principal and surety, in particular, as to the discharge of the surety, 
 by time being given to the principal, has been carried too far, 
 has been the opinion of many judges, but it is a matter of well 
 established law. This point is thus treated of in The Oriental 
 Financial Corporation v. Overend Gurney & Co. 7 L. E. Ch. 
 Appeals, 147, wherein the judgment 'of Sir E. Malins, V. C, is 
 thus expressed in giving judgment in the Court below : — 
 
 " I entirely concur with the opinion of many learned Judges, indeed, I may 
 say, almost every _ Judge who has expressed an opinion on this subject, that 
 this doctrine of discharging the surety by giving time to the principal, is not 
 a doctrine founded upon high principal. It is a doctrine which, as I have had 
 an opportunity of learning from other Judges, is not generally acquired in. 
 It has in many of the judgments I have referred to, been lamented by the 
 Judges that it had become U rule ; but it has become so fixed a rule, that it is 
 impossible to interfere with it. Still, I think, it is equally clear that itis not a 
 rule which is to be extended, and I entirely concur in the observation of Sir 
 Anthony Hart in Hulme v. Coles [2 Sim. 12], that the principle of discharging 
 a surety by giving time to the creditor is a refinement of the Court of Equity, 
 and that he would not refine upon it." 
 
 Lord Hatherly, L. C. in giving judgment in the Court of 
 Appeal, remarks on the above judgment of Malins, V. C.,page 150, 
 as follows : — 
 
 " It was suggested and the learned Vice-Chancellor seems to have given 
 some weight to the suggestion, that the basis on which this principle rests, 
 has never been fully understood, and that it would have been better had the 
 Court ab initio decided, not that the surety should be absolutely released, but 
 that he should be put to prove his injury, and be allowed damages for any 
 injury he might have sustained, and that, therefore, the authorities which 
 have proceeded upon this principle are in no way to be extended. 
 
 I do not feel myself at liberty to comment upon the propriety or impro- 
 priety of a principle, which, more than half a century ago, was stated by 
 Lord Eldon in Samuell v. Howarth [3 Mer. 274] to have been long established, 
 and which has been continually acted upon since that time, and is as well 
 settled and established as any other principle of the Courts of Equity. I 
 think that sometimes the cases are a little open to this observation ; that 
 they do not all of them, especially the later cases, clearly and distinctly shew 
 in what way the principle was established and brought to bear. But, un- 
 doubtedly, if we look to the earlier cases, amongst which I might cite espe- 
 cially Oakeley v. Pasheller [10 Bli. 548] the principle is laid down very clearly 
 that if you agree with the principal to give him time, it is contrary to that 
 agreement that you should sue the surety, because if you sue the surety you 
 immediately turn him upon the principal, and therefore your acts breaks the 
 agreement into which you have entered with the principal. It is not simply 
 neglecting to sue the principal which would have any effect upon the surety, 
 but there must be a positive agreement with the principal that the creditor 
 will postpone the suing of bvm to a subsequent period. 
 
 To shew that this is the principle, we have only to refer to another class 
 of cases, which, down to one very late case, clearly and distinctly established 
 that it is competent to the creditors to reserve all their rights against the 
 surety, in which case the surety is not discharged, and for this reason, that 
 the contract made with the prin cipal is then preserved, because the creditors 
 have engaged with the principal not to sue him for a given time, but subject 
 to the proviso that the creditors shall be at liberty to sue the surety, and so 
 turn the surety upon the principal without any breach of the engagement 
 with the principal. I say that this doctrine has been always recognised down 
 to a late period, because Lord Truro threw some doubts upon it in the case of 
 Owen v. Roman, [3 Mac. & G. 378]. 
 
 But Lord Cranworth, in giving judgment in that case on appeal to the 
 Bouae of Lords [4 H. L. C. 997] said : there could be no doubt about the case 
 
 Wood, J. 
 1878. 
 
 Chartered 
 Mercantile 
 Bank, &c. 
 
 v. 
 
 Letchman 
 
 Chettt 
 
 & ANOE. 
 
4fio CIVIL CASES. 
 
 "Wood J before the House, and that he did not think he should have entered into any 
 1878. ' discussion of theoase, haditnot been for the doubt thrown by Lord Truro upon 
 
 the principle that you migh tretain the surety, if that formed part of the 
 
 Chartered original contract as to not suing the principal ; and Lord Cran worth said 
 Mercantile that he thought it right to protest against the doubt, because he thought the 
 Bank, &c. doctrine was perfectly clear and established." 
 
 V. 
 
 L Chettt N In referring to the question of the time at which the knowledge 
 
 & anor. of the relation was communicated to the creditor, and dwelling 
 upon the facts of the case of Oakeley v. Pasheller above adverted 
 to, he continues, p. 152 : 
 
 "There remains one point upon which Mr. Cole pressed me very strongly 
 he argued that Overend Gurney & Co., at the time.when they took the bills 
 knew nothing of this, but believed the plaintiffs to be the principals in every 
 sense of the word as between themselves and McHenry, and as between them 
 and Overend Gumey & Co., and he argued that their position could not be 
 altered by their being afterwards informed of Che existence of a different 
 arrangement, and he cited an authority. Hx-parte Graham [5, De G. M. & 
 G. 356]. Now in that case the Lords Justices asked if there was any authori- 
 ty to shew that knowledge acquired, subsequently to the engagement, would 
 fix upon the creditors, the obligation of seeing to the interests of the surety ; 
 and counsel citing none, it seeme to have been held that in that case, the 
 discharge did not take place. But Oakeley v. Pasheller [10. Bli. 548 ; 4 01. & F. 
 207.] is a precise and direct authority upon the point, and being in the House 
 of Lords is, of course, above that of this Court, or that of the Lords Justices. 
 
 That is a case distinctly and plainly in point ; and I apprehend that the 
 hardship involved in the principle, is not so great as Mr. Cole represents. 
 There is really no hardship in the case, and that is one reason why I proceed- 
 ed at some little length to shew that the doctrine was not at all infringed 
 upon by the right of the creditor to reserve his remedies against the surety. 
 
 The defendant here could have freed themselves from all difficulty what- 
 ever, by reserving their rights against the plaintiffs, and if that had been done, 
 the case would have fallen within the principle of Owen v. Homan [4 H. L. C. 
 997], and would have been free from all difficulty." 
 
 I have thus endeavoured to bring before the parties interested 
 in this or a like class of cases, the condition of the law as laid 
 down by the best and the latest authorities. The last quoted 
 remarks of Lord Hatherly, L. C, clearly shew that the hardship 
 and supposed unreasonableness of the law, will not be found so 
 great as it was contended at the trial on behalf of the plaintiff, 
 and the large class of lenders of money, that it was. The 
 creditor can, if he pleases still while giving time to the principal, 
 reserve his right against the surety, in what form and manner it 
 would be, foreign to the duty of the Judge specifically, to point 
 out. There will, accordingly, be judgment for the plaintiffs on all 
 the issues. 
 
STRAITS SETTLEMENTS. 461 
 
 McGREGOR & ANOR. 
 
 v. 
 
 TANJONG PAGAR DOCK CO., LIMITED. 
 
 The defendants, wharfingers and warehousemen at Singapore, were employed by Singapore. 
 
 the plaintiffs to moor all plaintiffs' vessels coming into port, alongside their wharf, 
 
 and to receive from such vessels all goods intended to he landed at Singapore and to Sidgbeaves, 
 warehouse them. In order to enable the defendants to know what goods were to be C. J. 
 thus received by them, the plaintiffs' agents at Singapore furnished them, on or about 1878. 
 
 the expected arrival of such vessel, with the manifest ; this manifest the defendants 
 
 copied into a book kept by them for the purpose, and then returned it. On receipt of July 24. 
 the goods by the defendants, they entered, them in a separate book, and within a fort- 
 night thereafter sent in to the plaintiffs' said agents, a return of all goods so landed and 
 warehoused ; this return had columns also shewing all goods damaged, short landed 
 and overlanded. In the course of the defendants' employment, they having first been 
 furnished with a manifest as usual, received certain goods from a vessel of the plaintiffs* 
 called the Glenlyon, and in so receiving these goods, they received certain goods which 
 were not intended for Singapore, hut for another port, and which were not on the 
 manifest : these goods they entered, along with the other goods received, into their 
 books as usual, but in their return to the plaintiffs' said agents, they omitted all men- 
 tion of these overlanded goods ; these overlanded goods should, according to their 
 practice and the form of the returns, have been placed in the overlanded goods column 
 thereof. The consignees of these goods at such other port not having received their 
 goods, called on the plaintiffs for compensation for their loss — the plaintiffs' said agents 
 then enquired of the defendants if such goods were with them, but were, through for- 
 getfulness of the fact, told that they were not. Some six months after, on a return 
 being sent in by defendants to plaintiffs' agents, of all goods in their possession, for 
 which rent was due, the overlanded missing goods appeared. The plaintiffs thereupon 
 sued the defendants for damages for negligence in overlanding the goods, and for not 
 informing plaintiffs or their agents thereof, within a reasonable time. 
 
 Held, that there was an implied contract by the defendants, and a duty cast upon 
 them, to report to the plaintiffs or their said agents, within a reasonable time, as to 
 overlanded goods in their possession ; and that, under the circumstances, they were 
 guilty of negligence in that respect, and were liable to the plaintiffs in damages 
 therefor. 
 
 Where a plaintiff has been guilty of negligence, which has, in fact, contributed to 
 the loss complained of, yet, if the defendant could in the result, by exercise of ordinary 
 care and diligence, have avoided the mischief, the plaintiffs' negligence will not excuse 
 him [defendant]. 
 
 Radley v. London and North Western Ry. Co., IX. E. App, Cases, 754, followed. 
 
 Action for negligence. Plea not guilty. The facts giving 
 rise to this case are so fully set out in the judgment that they 
 need no mention here. 
 
 Bond, for plaintiffs. 
 
 Davidson, for defendants. 
 
 Cwr. Adv. Vult. 
 
 On this day, judgment was delivered by 
 
 Sidgreaves, C. J. In this case which was tried before me on 
 the Summary Side of the Court, the particulars of the plaintiffs' 
 claim are set out as follows in the particulars of demand ; 
 
 " The plaintiffs claim dollars four hundred and eighty and cents thirty- 
 three, the damage sustained by them by reason of the defendants' negli- 
 gence in overlanding at Singapore in April, one thousand eight hundred 
 seventy-six, eighteen cases and one truss alpaca umbrellas, cargo ex S. S. 
 Glenlyon portmarked Manila, and in keeping the same in their warehouse 
 at Singapore aforesaid for an unreasonable time, to wit over six months. 
 
m CIVIL OASES. 
 
 Sidgrbavbs The plaintiffs also claim the said sum of_ dollars four hundred and 
 
 C. J. ' eighty, and cents thirty-three, for damages sustained by them, by reason of 
 1878. the defendants' gross negligence in discharging and landing at Singapore 
 
 in April, one thousand eight hundred and seventy-six, from the S. S. Glenlyon, 
 
 McGbboob without the authority of" the plaintiffs, other goods than those mentioned in 
 
 & anoe. the manifest of the said ship for Singapore, to wit eighteen cases and one 
 
 *• truss of alpaca umbrellas, and in keeping the same in their warehouse at 
 
 Tanjono Singapore, and not informing the plaintiffs thereof for an unreasonable 
 
 Paqab Dock ^ me> to y^t over six months. 
 
 The plaintiffs also claim the said sum of dollars four hundred and 
 eighty, and cents thirty-three, for that the defendants for fee and reward 
 in that behalf, agreed with the plaintiffs to discharge from the said S. S. 
 Glenlyon and Btore in the godowns at Singapore, only such goods as were 
 on board the said ship and mentioned in her manifest for Singapore, 
 whereas the defendants landed from the said ship and stored in their godowns 
 eighteen cases and one truss of alpaca umbrellas portmarked Manila, and 
 not mentioned in the said manifest for Singapore, and kept the same for an 
 unreasonable time without informing the plaintiffs thereof, whereby the 
 plaintiffs sustained damage to the amount claimed." 
 
 The defendants simply deny their liability upon any of the 
 grounds alleged. This case is an exemplification of the difficulty 
 of trying cases of this nature without regular pleadings, there 
 being nothing to direct attention to the real issues in the case 
 before the trial, and such issues having to be ascertained during 
 the progress of the case instead of being clearly defined before- 
 hand. 
 
 In the present case the plaintiffs, the owners of the Glenlyon, 
 seem to be really suing through their Agents, Messrs. Martin, 
 Dyce & Co., for a breach of contract by the defendants in not 
 reporting to them within a reasonable time, the fact that the 
 merchandize referred to in the particulars had been overlanded, 
 and was lying at their wharf. 
 
 The Glenlyon arrived at the Tanjong Pagar wharf, on the 16th 
 of April, 1876, with cargo for the plaintiffs' agents at Singapore. 
 It was their custom on receiving the manifest to send it either to 
 the Tanjong Pagar Dock Company's office in town, or direct to 
 the wharf for the defendants to copy the manifest into their books, 
 so as to enable them to check the cargo as it entered into their 
 godowns. On the present occasion, Messrs. Martin, Dyce & Co., 
 received the manifest the mail before the arrival of the Glenlyon, 
 and sent it down to the wharf, and that manifest seems to have been 
 duly entered into the books kept for the purpose by the defendants. 
 Now there can be no doubt what the object of sending that mani- 
 fest was, it was to inform the defendants of the cargo that was 
 to be delivered in Singapore, and an intimation to them that any 
 cargo landed from the Glenlyon, and not described in that manifest, 
 ought not to have been so landed. This was following the usual 
 course of dealing between the plaintiffs' agents and the defend- 
 ants, since the former became agents for the Glen line of steamers 
 some years before, and it is very important to ascertain, clearly, 
 what that course of dealing was, because the question to be decided 
 here is whether an implied contract had arisen between the parties 
 out of the previous course of dealing. There was clearly no 
 express contract between them, and I cannot infer from the slight 
 evidence offered upon that point that there was any such invaria- 
 
STRAITS SETTLEMENTS. 463 
 
 ble certain and general custom in the matter as would bind the Sidgbbavm, 
 defendants. To use the words of Lord Tenterden, C. J., however, c - J - 
 in Mazette v. Williams, 1. B. & Ad. 423: "The only difference ^ 
 " between an express and implied contract is in the mode of sub- McGeeoob 
 " stantiating it. An express contract is proved by an actual agree- & anor. 
 "ment, an implied contract by circumstances and the general course TaN j ONO 
 " of dealing between the parties ; but where a contract is once p A a^B J °Docr 
 " proved, the consequences resulting from the breach of it must be Co. 
 "the same, whether it be proved by direct or circumstantial 
 " evidence." 
 
 I do not find that the actual landing of the cargo was one of 
 the duties imposed upon the defendants — in fact, the evidence aJl 
 points the other way, viz., that the landing was effected by the 
 officers of the ship with the assistance of coolies supplied to them 
 for the purpose by the defendants — the duties and responsibilities 
 of the defendants, seem to have commenced from the landing of 
 the cargo from the ship's side on to the whart. 
 
 Upon this point, and as to the course of dealing by the de- 
 fendants on and after the receipt of the cargo, we have the evi- 
 dence of Mr. Rose, who was at that time foreman, warehouseman 
 of the Tanjong Pagar Dock Company. He says : — " When a ship 
 " comes alongside, the Captain or Chief Officer often asks for coo- 
 " lies and we supply them. They are sent on board the ship, and 
 " an officer is put at each hatchway to tally the cargo, and one of 
 " the crew is sent down below to point out to the coolies the different 
 " port marks and the goods to be landed here. They are then 
 " hoisted on to the stage and landed on the wharf. They are then 
 " taken charge of by the godown coolies. Each godown haa its 
 " own coolies. The wharfinger does not take charge of the cargo 
 " till it is landed on the wharf." So far as regards the landing 
 and delivering the cargo on to the wharf, and in order to see that 
 they have only got the right cargo delivered, a tally is kept by 
 the defendants of all the goods so received by them, this tally 
 being entered into what is called an Index-book. Thus they have 
 two books, one being the bookintowhichthemanifest is copied, and 
 which shows them what goods they ought to have received, and 
 another the Index-book which shows them what goods they actually 
 have received. 
 
 In the manifest sent down by Messrs . Martin, Dyce and Co., and 
 which was copied into the defendants' books for the purposes be- 
 fore mentioned, all the cargo to be landed in Singapore was dis- 
 tinctly specified, and also all the cargo which was to be landed in 
 Singapore for transhipment to other ports. The manifest included 
 goods to be landed in Singapore for transhipment to Hongkong, 
 Samarang, Brisbane and Macassar, — it did not include the goods, 
 now in question which are marked L. R., bore the Manila port- 
 mark, and were intended to have been landed in Hongkong for 
 transhipment to Manila, and were in effect landed here by mistake. 
 It is obvious that by looking at the manifest book and then at the 
 Index-book, the defendants could have perceived at once that they 
 had taken cargo into their godowns on the 16th April, which 
 was not intended to have been landed at Singapore. As to what 
 
464 CIVIL OASES. 
 
 Bidobeaves, -was next to be done according to the usual course of dealing be- 
 18?8 - tween the parties, Mr. Eose tells us in his cross-examination by 
 
 McGebooe Mr. Bond, " the manifest was copied into our books. We take 
 
 & anoe. " our Index-book with the manifest-book, and see if they agree. 
 
 "• " It is a long time ago, I don't remember if they agreed. If they 
 
 Paqab J I>ock " don't agree we send down a memo, to the Agents, of the points in 
 Co. " difference. The Index-book indieates all that has been received 
 " from the ship — there is an Index-book to each godown. These 
 " goods mnst have been therefore, in the Index-book. As a rule, 
 " we compared the manifest with the Index-books. I don't recol- 
 " lect having done so on this occasion — if I had done so I should 
 " probably have found that cargo had been landed here which 
 " ought not to have been landed. If I had found that we had 
 " cargo which should not have been landed here, I would have re- 
 " ported. I knew from what vessel the goods had been landed. 
 " I saw the cargo marked " Manila" for transhipment, and that 
 " was quite sufficient for me." 
 
 The next feature of the transaction relates to the " Return" 
 which, in the ordinary course of business, was sent to Messrs. 
 Martin, Dyce & Co., by the defendants, a fortnight after the land- 
 ing of the cargo. Upon this point Captain Smith says : " We have 
 " adopted the custom for convenience sake of sending returns to 
 " the agents of the ship. We generally put in those that are 
 " chafed, damaged, short landed, or over-landed, anything that 
 " will be useful to the agents. We do not profess to put tran- 
 " shipped cargo at all — we do, as a point of fact, send up these 
 " memos." 
 
 In cross-examination, however, Captain Smith somewhat 
 qualified his previous statement by saying : " We sometimes put 
 " transhipped cargoes in our returns — any that requires particular 
 " attention." Mr. Campbell [of the firm of Martin, Dyce & Co.] 
 says, that if cargo is overlanded, they expect the defendants to let 
 them know as soon as possible. They have no other means what- 
 ever of finding that out, unless from the defendants. If goods 
 meant for transhipment and not in the manifest are landed, they 
 ought, he says, to be returned as ' overlanded.' If they are in the 
 manifest and not landed they ought to be returned as "short 
 landed," and for doing all this, he says, defendants receive pay- 
 ment according to a fixed scale of wharfage and coolie-hire. It 
 is clear, therefore, that this sending in of the return, whether a 
 custom adopted for convenience or for any other purpose, was a 
 mode of dealing established between the parties, and one upon 
 which the plaintiffs' agents were accustomed to rely for the con- 
 duct of their business. The return which was sent in upon this 
 occasion and which was headed— "Memo, of cargo landed Ex S. S. 
 " Glenlyon from London" contained the marks and numbers of 
 such cargo as was " Broken," " Damaged," " Chafed," " Short 
 landed" and " Overlanded/' It contained no entry of the parti- 
 cular goods in question, which had then been lying for a fortnight 
 in the Company's godown, and no notice of its being there was 
 sent to Messrs. Martin, Dyce & Co., until -the 11th of November, 
 1876, when a memo, of goods lying in the defendant's godown sub- 
 
STRAITS SETTLEMENTS. 465 
 
 ject to rent, was sent to the plaintiffs, and amongst them were Sidobeaves, 
 included the goods which had been lying there since the 16th of ^ 8 ^j 
 
 April, and respecting which, the present action is brought. ' 
 
 Messrs. Martin, Dyce & Co., had had enquiries made respecting McGkboob 
 their missing goods from their correspondents in Manila on the &ANOB - 
 21st August, and the shipping clerk says that he went down to the Tanjonq 
 wharf the day after that letter was received to make enquiries. He Pagab Dock 
 says that he spoke to Mr. Rose, the warehouseman, and asked him Co - 
 if the goods marked L. R. had been landed, giving him the num- 
 bers and marks, and Sir. Rose said they had not been landed. He - 
 says that he saw Mr. Rose again on the 18th September and again 
 asked whether those goods had been landed in Singapore, and 
 Mr. Rose told him they were not. Mr. Rose flatly contradicts the 
 shipping clerk upon this point, but with a number of other matters 
 to attend to, and no particular reason, perhaps, for recollecting 
 this, it is quite possible that it may have escaped his memory. 
 The shipping clerk, however, could hardly be mistaken upon 
 such a matter. It is almost a certainty that Messrs. Martin, 
 Dyce & Co., on receipt of their letter of the 21st August from 
 Manila, would send to make enquiries of the defendants as to the 
 missing goods, and the shipping-clerk would be the proper person to 
 make such enquires. From the general course of dealing between 
 the parties — the sending down the manifest to the defendants, the 
 copying of the manifest by the defendants into their books, the 
 keeping of the Index-book, and the sending the Returns for the 
 purposes mentioned by Captain Smith and Mr. Campbell to the 
 plaintiffs' agents, I infer that there was a duty, arising ex con- 
 tractu cast upon the defendants to report within a reasonable 
 time as to " overlanded" cargo to the plaintiffs' agents. Captain 
 Smith in his re -examination says that as regards transhipment 
 goods, if they are not mentioned in the manifest, he should 
 pay no attention to the manifest — the manifest are often erro- 
 neous : " If goods concerning which no mention is made in the 
 " manifest are landed, we should hold them until a shipping-order 
 "was sent us by the consignees of the vessel. It would not 
 " occur to us to give any special notice because it so frequently 
 " happens." But then, if that is so, what is the use of the mani- 
 fest at all ? If it is not to be relied upon, why do they enter it into 
 their books? What is the Index-book kept for, and why do they 
 send a Return which, under these circumstances, would be more 
 likely to mislead than to guide? When the plaintiff's agents 
 received that Return of the 30th of April, with no entry under 
 the ' overlanded' column, it was tantamount to a statement that 
 no goods had been overlanded ; and I can see no reason why 
 transhipment goods should be treated in a different manner 
 from other goods. All the goods intended for transhipment 
 and to be landed here, were distinctly specified in the manifest, 
 and the fact that these goods were not mentioned therein, was 
 a distinct intimation to the defendants that they were not to be 
 landed here. They could see at a glance by comparing their man- 
 ifest book wih the Index-book that these goods had been over- 
 landed, whether they were intended for transhipment or not, and 
 
466 CIVIL OASES. 
 
 Sibgreaves, yet by sending in a Return a fortnight afterwards, they leave the 
 
 °-/- plaintiffs' Agents to suppose that no goods whether for tranship- 
 
 ment or not, had been overlanded. Even if it were not their cus- 
 
 McGkeqor torn to take any notice of overlanded goods meant for tranship- 
 & anob. men t, there is no evidence whatever that they informed the plain- 
 Tanjong tiffs' Agents of that fact — on the contrary, by their acceptance of 
 
 Paqae Dock the manifest and the sending in the Return, they led the plaintiffs' 
 Co - agents to suppose that such a return could be entirely depended 
 upon. There is nothing in the printed regulations issued by the 
 Tanjong Pagar Dock Company, inconsistent with such an implied 
 contract, as I have gathered from circumstances, and the general 
 course of dealing between the parties. 
 
 As regards the other point that was relied upon by Mr. Da- 
 vidson, viz., that the plaintiffs themselves had been guilty of neg- 
 ligence, and that the doctrine of contributory negligence applied, 
 I think, that even if such negligence had been proved much more 
 clearly than it was, the defendants would not have been thereby 
 excused. The case of Radley v. London and North Western Railway 
 Co., 1 L. R. App. Cases, p. 754, quoted by Mr. Bond, establishes 
 the proposition that though a plaintiff may have been guilty of 
 negligence, and although that negligence may, in fact, have 
 contributed to the accident which is the subject of the action, yet, 
 if the defendant could, in the result by the exercise of ordinary 
 care and diligence have avoided the mischief which happened, 
 the plaintiff's negligence will not excuse him. The defendants 
 in this case could, easily by the exercise of ordinary care and 
 diligence, have avoided the mischief which happened, and as they 
 have not exercised it, they are liable to the plaintiffs for the 
 damages occasioned thereby. There will, therefore, be judgment 
 for plaintiffs with costs. 
 
 YAHATAH MERICAN v. KHOO HOCK LEONG & ORS. 
 
 Penans. The Court will, at the suit of a private neighbour, restrain, by perpetual injunction, 
 the performance of a "Wyang or Chinese Theatre in a house adjoining his, so as not to 
 
 Wood, J. be a nuisance to him. 
 1878. 
 
 July 29. This was a suit to restrain the performance of a Chinese 
 
 Wyang next the plaintiff's house, as being a noisy nuisance. The 
 evidence shewed clearly that the performances were very noisy, 
 so much so that in the plaintiff 's house, one could hardly sleep, or 
 be heard talking in an ordinary tone. An interim injunction had 
 been granted. 
 
 Van Someren, for plaintiff. 
 
 Ross, for defendants. 
 
 Wood, J. On the principles recognised in Walker v. Brewster, 
 5 L. R. Eq. 25 and Inehba Id v. Robinson, 4 L. R. Chf Appeals, 388, 
 cited for the plaintiff, I hold that the complaint made in this bill, 
 as to noises made by the performers at the Wyang, are a nuisance, 
 as interfering with the ordinary enjoyment by the plaintiff of his 
 
STRAITS SETTLEMENTS. 
 
 467 
 
 house, more especially as regards conversation and sleep therein — 
 and I decree accordingly in the general terms given in Walker v. 
 Brewster, 5 L. E., Eq. 34, leaving the matter of special nuisance 
 to be proved, on an application to commit. 
 
 Perpetual irvjwicticm decreed. 
 
 Wood, J. 
 1878. 
 
 Yahayah 
 
 Merman 
 
 ■ll. 
 
 Zhoo Hock 
 Lbong & OBS. 
 
 SHEDUMBEUM CHETTY v. SHAGAPAH CHETTY. 
 
 The Court will not stay an action on a oovenant in a mortgage bond, until 
 after the hearing of an equity suit, brought by the defendant against the plaintiff, to 
 have such bond cancelled, as having been obtained by fraud. 
 
 Clarice, for the defendant had obtained a Eule to shew cause, 
 why the proceedings in this action should not be stayed until 
 after the hearing of an equity suit between the same parties. It 
 appeared that the present action was brought on a covenant in a 
 mortgage bond, for the balance of the money thereby secured, 
 after deducting the nett proceeds of the property mortgaged and 
 sold by plaintiff under the bond. The defendant had commenced 
 a- suit in equity to have the bond cancelled as having been obtained 
 through fraud. 
 
 Van Someren, for plaintiff, shewed cause and cited Pearce v. 
 Robins, 26 L. J. Ex. 183 [JV. #.] as being precisely in point — and 
 cases cited in 2 Arch. Practice p. 1370 [Uthed.] 1870. 
 
 Clarice, in support of the Eule. 
 
 Wood, J. The Eule must be discharged. 
 
 PlNANO. 
 
 "Wood, J. 
 1878. 
 
 October IS. 
 
 LETCHMAN CHETTY v. NAEAINAN CHETTY. 
 
 Where an agreement is made for the re-payment of money on the arrival of a cer- Penan&. 
 tain ship at a certain port, and the voyage the vessel is to pursue, is clearly pointed out, 
 
 Held, her arrival at that port was a condition precedent ; and no re-payment could be Wood, J. 
 required, although the vessel was unable through stress of weather and bankruptcy of 1878. 
 her owner, to complete the voyage. 
 
 Such vessel having been sold on the bankruptcy of her owner, and the purchaser October 21. 
 having repaired and re-fitted her, and sent her on his own account to the same port as that 
 mentioned in the aforesaid agreement, but by a different route, 
 
 Held, the arrival of the vessel at such port, on such second voyage, was not a per. 
 formance'of the condition mentioned in the agreement, as it was a new voyage, and not 
 the one contemplated by the agreement. 
 
 This was an action to recover $1,906.42 due on an agreement 
 of conditional loan. The agreement was between the plaintiff and 
 defendant at Penang, and was in the Tamil language, and, as trans- 
 lated, read as follows :— " On the 8th day of the month of Panguine, 
 " in the year Yaswaree, corresponding to the 19th day of March, 
 " 1878, the sum of $3,600 on premium, is due to Nawana Muna, of 
 " Penang, by the firm of Seena Thana Shawana, being the amount 
 " received on the insurance of two vessels named " Mainrasee," 
 "belonging to Shayna Muna Shayna, and the red vessel 
 
468 
 
 CIVIL OASES. 
 
 Wood, J. 
 1878. 
 
 Letohman 
 
 Chetty 
 
 i>. 
 
 Naeainan 
 Chettt. 
 
 " Mahomed Bundar Sultanee," belonging to Suna Ltina Nagattu 
 " Merican of Porto Novo, on a single mariner's risk, to sail to 
 " Aeheen, and from thence to Nagore or Negapatam. For the said 
 " sum of dollars three-thousand six-hundred, the said vessel shall 
 " set sail, proceed from hence, and safely arrive into Aeheen ; there 
 " take in betel nut and goods, set sail, and sail again safely to the 
 " port of Nagore or Negapatam. On receiving instructions of the 
 " safe arrival of the said vessel, and the landing of the betel nut 
 " and goods, within three months from this date, then the said 
 " sum of $3,600 — with premium, at the rate of 1 £ and £ per cent, per 
 " month, shall be paid as follows : $1,800 with premium towards 
 "the " Mainrasee " and $1,800 with premium towards the Red 
 " Barque, and will take back this paper bearing premium. In case 
 " the vessels arrive there, and information of the same does not 
 " reachhere above Smonths, then the principal and premium shall be 
 "paid for the excess days. [Sd.] SeenaThanaShawanaNarainan 
 "Chetty. Theriskof ShaynaMunaShayna'sshipisonitself,andthe 
 " red ship the risk is on the cargo, inclusive of the boat while dis- 
 " charging cargo. [Sd.J Narainan Chetty." — " Nawana Muna" 
 was the plaintiff's firm and " Seena Thana Shawana," the defend- 
 ant's. It appeared that the defendant had become the under- 
 writer, and insured the hull of the ship " Mainrasee" [properly 
 named "Mariner's Hope,"] and the cargo only on board the 
 barque " Mahomed Bundar Sultanee," and in order to protect 
 himself, had insured himself with the plaintiff's firm. The 
 Chetties' usual way of dealing in insurance matters was, to advance 
 the money insured for, and to get repayment thereof subject to 
 the risk. The "Mahomed Bundar Sultanee" arrived safely at 
 Nagore, having performed her intended voyage ; and the plaintiff 
 was paid by the defendant the $1,800, and premium due therefor. 
 The "Mainrasee" or "Mariner's Hope" got to Aeheen, loaded 
 betel nut and other cargo, and was on her way to Negapatam, 
 when having met very bad- weather, she sprung a leak, and was 
 otherwise disabled, and had to put back into Penang on the 28th 
 July, 1878. The present action was brought to recover the $1,800 
 and premium alleged to be due on this vessel, as the three months 
 had elapsed. At the time of the commencement of this action, in 
 fact, up to the time of trial, neither the " Mainrasee" nor her cargo 
 had reached Negapatam or Nagore. On her putting back into 
 this port as aforesaid, her owner became bankrupt, and she was 
 sold by the mortgagee [the defendant's firm] and fetched much 
 below the amount she was mortgaged and insured for. Her cargo 
 was greatly damaged, and was sold here for the benefit of the 
 shippers thereof. These facts appearing from the pleadings, and 
 admission of the parties at the trial. 
 
 Boss, for plaintiff contended that the agreement was a Bot- 
 tomry Bond, and as there had not been a total loss, the plaintiff 
 was entitled to recover. Marshall on Insurance— 575 [4th ed.] 
 Thompson v. Royal Exchange & Insurance Go., 1 M. & S 30 Castle v 
 Playford, 7 L. E. Ex. 98, reversing 5 L. R. Ex. 165. ' 
 
 Van Someren, for defendant contended the agreement was not 
 a Bottomry Bond at all. It was one for a conditional re-payment 
 
STRAITS SETTLEMENTS. 
 
 of money, which condition, through, no default of the defendant, Wood, J. 
 had not been performed, and cited Palmer v. Pratt, 2 Bing. 185. ^f.' 
 
 Wood, J. held, that the arrival at Nagore or Negapatam was letchman 
 
 a condition precedent, that as the condition had not been per- Chbtty 
 
 formed through no fault of the defendant, the action was prema- „ *• 
 
 ture, and non-suited the plaintiff with costs. Cmity* 
 
 The plaintiff having brought a second action for the same 
 claim, such second action came on to be heard on the 24th June, 
 1880, before Ford, J. 
 
 Besides the above, the following further facts appeared from 
 the pleadings and admission of parties. The "Mainrasee" or 
 " Mariner's Hope" had been sold at public auction by the mort- * 
 gagee, as aforesaid, and was purchased by one Anamalay Chetty, 
 for the defendant's firm of Seena Thana Shawana. That the de- 
 fendant's firm repaired and re-fitted the vessel, procured fresh cargo, 
 on freight, from a new "set of shippers, and had proceeded direct 
 to Negapatam, where she arrived on the 18th February, 1879. The 
 voyage was entirely for the defendant's firm's benefit, and not 
 merely his as an underwriter or insurer. He had not re-insured 
 the vessel for this voyage to plaintiff, and had paid plaintiff no 
 premium since the date of the original agreement. On these 
 facts, 
 
 Boss [E. W. Presgrave with him] for plaintiff contend- 
 ed, that the arrival at Negapatam on the original voyage, was 
 not a condition precedent, and cited Castle, v. Playford, 5 L. R. Ex. 
 165, reversed on Appeal 7 L. E. Ex. 98, and if it were, at all 
 events, the subsequent arrival of the vessel, was a performance of 
 the condition, and the money was now payable. 
 
 Van Someren, for defendant submitted, that the document was 
 somewhat ambiguous, but the construction to be put on it was, 
 that it was a voyage and a time policy in one — such a policy 
 could be effected — Gamble v. Ocean Marine Insurance Company, 
 1 L. R. Ex. Div. p. 8, on appeal 1 L. R. Ex. Div. p. 141. 
 That as regarded the time, the vessel was disabled within the 
 period, and incapable of performing her voyage. That the 
 arrival of the vessel on the first voyage was a condition pre- 
 cedent. Palmer v. Pratt, 2 Bing 185, the contract was that if 
 the vessel, through any but fraudulent causes, did not reach 
 Negapatam within 3 months, the money was not to be returnable. 
 As regarded the voyage, he further contended that the subsequent 
 arrival of the vessel at that port was not a performance of the 
 original condition. She arrived there on a second voyage, which 
 was not a continuation of the old but a new voyage. Wooldridge 
 v. Boydell, 1 Douglas 16, Bottomley v. Bovill, 5 B. & C. 210 and 
 Way v. Modigliani, 2 T. R. 30 — that the old voyage was from 
 Penang to Negapatam via Acheen, and was broken on the way 
 from Acheen to Negapatam. The subsequent voyage was a new 
 voyage from Penang to Negapatam direct, and the vessel was then 
 laden with absolutely new cargo, in fact, it was not the voyage 
 intended, or what the under-writers meant to insure by the agree- 
 
470 
 
 CIVIL CASES. 
 
 Ford, J. 
 1878, 
 
 Letchman 
 
 Chettt 
 
 v. 
 
 Nabainan 
 Chettt. 
 
 ment sued on— that no fraud being alleged against defendant, the 
 plaintiff was not entitled to recover. 
 
 Boss, in reply contended, that the agreement was a mere con- 
 tract to pay a certain sum of money on arrival of the vessel at 
 Negapatam. It was not a contract of insurance, and whether the 
 voyage was a new one or not, the money way now payable. 
 
 Ford, J. held that judgment must be for the defendant, on 
 the ground that the voyage in which the vessel had arrived at 
 Negapatam, was not the one contemplated by the contract of 
 insurance. 
 
 Judgment for defendant with costs. 
 
 Penano. 
 
 "Wood, 3. 
 1878. 
 
 November 1. 
 
 TAN KIM KENG v. MUNICIPAL COMMISSIONEES. 
 
 The notice to be given under section 126 of the Conservancy. Act 14 of 1856, 
 must state the name and address of the intended plaintiff and his solicitor ; it 
 must s+ate the time and place where the trespasses complained of, took place ; and 
 that an action is intended to be brought, otherwise the same will be bad and 
 treated as no notice to the Commissioners. 
 
 A notice headed " Notice of Action," but not otherwise, intimating an action 
 would be brought, is sufficient. 
 
 This was an action to recover damages for obstructing a 
 water course. The defendants, among other things, pleaded that 
 no notice of action as required by section 126 of the Conservancy 
 Act 14 of 1856, had been given. The section is as follows : — 
 
 " No writ or process shall be issued out against, or served upon the 
 " Cominissioners or any of their officers, or any person acting under the 
 " direction of the Commissioners, for anything done or intended to be done, 
 " under the powers of this Act, until the expiration of one month next aft er 
 " notice in writing shall have been delivered or left at the office of the Co m- 
 " missioners, or at the place of abode of such person explicitly stating the 
 " cause of action, and the name and place of abode of the intended plaintiff, 
 '* and of his attorney, or agent in the cause ; and upon the trial of any such 
 " action, the plaintiff shall not be permitted to go into evidence of any cause 
 •' of action except such as is stated in the notice so delivered, and unless such 
 " notice be proved, the Court shall find for the defendant." 
 
 Clarke, for plaintiff, put in a notice served on the defendants' 
 Secretary, but which did not give the address of the plaintiff 
 or his solicitor, as required by the section. He also put in a 
 further notice, which was served on the Secretary, which supplied 
 these particulars, but, except that it was headed " Notice of 
 Action," did not intimate that an action would be brought. 
 
 Eoss, for defendants, contended both notices were bad— the 
 first as it omitted the address, and the second as it did not state 
 that an action would be brought. He relied on Lovelace v. Curry, 
 7T.E. 631, Mason v. Birkenhead Commissioners, 6 H. & N. 72, 
 B.C. 29, L. J. Ex. 407— the second notice was also bad, for it 
 ^■o 11 *™ e hme and P lace - Mart ™s v. Upcher & another^ 3 
 P. 62 fe«T. Jordein, 4 Q. B. 585, 8. C. 12 L.J. Q. B. 
 L-N. S.J 234. The first notice is void, and the second notice fur- 
 
STRAITS SETTLEMENTS 471 
 
 ther, avoids or waives the first. The Commissioners could not Wood, J. 
 act on the second notice, for they would not, with certainty, know 1878 " 
 what to do. It is also void for the grounds above stated as not t an Kim 
 stating the time and place where the act was committed, not Kenc 
 giving intimation of the action, and not giving the name and % rPAl 
 
 address 'of the attending parties to the action. Commes. 
 
 Clarke, for the plaintiff. The notice in question, No. 2, is 
 good, as it is headed " Notice of Action." 
 
 Wood, J. I consider the case of Mason v. Birkenhead Com- 
 missioners, 29 L. J. Ex. [N. S.] 407, is decisive on the point, that 
 notice of the intention to bring this action not being given in 
 either notice, each notice is bad. 
 
 Plaintiff non-suited. 
 
 RAMSAMY v. NARAINEN CHETTY. 
 
 Where a party recovers judgment in the Court of Requests with costs, and a large Penano. 
 
 portion of his costs are disallowed on the ground that such costs are beyond the Court's 
 
 jurisdiction and practice to allow, no action lies in the Supreme Court for such extra Wood, J. 
 costs. 1878. 
 
 The judgment of the Court of Bequests is final ; and except as is provided by sec- 
 
 tion 12 of the Appeals Ordinance IX. of 1874, cannot be reviewed by, or sued on, in this December 16. 
 Court. 
 
 Query. — Whether the Court of Requests has power to allow a successful party 
 costs incurred by him for witnesses' expenses, Solicitors or Counsels' fees, carriage hire 
 and the like ? 
 
 This was an action to recover $113.90 for costs incurred by 
 the plaintiff in defending an action in the Court of Requests, 
 brought by the now defendant, and which was decided in 
 his, [the now plaintiff's] favour. The Commissioner of the 
 Court of Requests while deciding in the now plaintiff's favour, 
 considered he had no power to award him costs beyond the scale , 
 allowed by the practice in that Court, and suggested that the 
 plaintiff had his remedy for such costs by suing in this Court. 
 This action was then brought. 
 
 Anthony, for defendant submitted that the action did not lie, 
 and cited Austin v. Mills, 23 L. J. Exch., [N. S.] p. 40. 
 
 The plaintiff appeared in person. 
 
 Wood, J. I consider that by the Court of Requests 
 Act 29 of 1866, and section 12 of Ordinance 9 of 1874, the 
 Court of Requests judgment in this matter is final, except the 
 party dissatisfied, makes application to this Court to call for the 
 proceedings of the Court of Requests, and asks for a rehearing, 
 or in some way to set right the matter under the latter enactment, 
 so as to " secure substantial justice between the parties." 
 
 Mr. H. C. Vauffhan, the acting Registrar, then stated that some 
 communication had taken place between himself and the Commis- 
 sioner of the Court of Requests about this matter — that the 
 Comissioner of the Court of Requests had told him [which 
 Mr. Anthony agreed to as being correct] — that the only costs 
 avowed, as matter of practice, by the Court of Requests, were 
 
472 
 
 CIVIL OASES. 
 
 WoODj J. 
 
 1878. 
 
 Eamsamt 
 
 ■o. 
 
 Nakainen 
 
 Chettt. 
 
 merely the Court fees, — leaving the parties to bear the actual 
 expenses of their witnesses, counsel, and incidental expenses of 
 carriage hire and so forth — that the Commissioner considered 
 himself powerless to allow the present costs which were of that 
 nature, except the matter were decided by adequate authority to 
 the contrary — and he was desirous for a decision on this point. 
 
 Wood, J. I consider I am unable to decide that question 
 in this Court, on such a plaint as the present — the matter is prac- 
 tically an appeal against the judgment of the Court of Eequests, 
 ■which must be brought before me in accordance with the provi- 
 sions of the section 12 of Ordinance 9 of 1874 already referred 
 to. I think that according to the stated practice, grave_ injustice 
 is done to the plaintiff, or any person in whose favor a judgment 
 is given, but I strongly incline to the opinion, that as costs can 
 only be given by Statute, there is no action for costs, [except 
 they be given by Statute] at common law — and that there is no 
 remedy, however great the injustice, for a person who is not al- 
 lowed his reasonable and necessary costs of defending or main- 
 taining an action. 
 
 Judgment for defendant. 
 
 SEE BONG LIM & ANOE. v. KAM BENG CHAN". 
 
 Penano, An attorney or agent has no power to substitute another for himself, where 
 
 the original power of attorney gives him no power to do so : the nominee of the 
 
 "Wood, J. attorney, under such circumstances, has therefore no right to sue in the name of 
 
 1878. the original principal. 
 
 A letter from one person to another, directing the latter to demand or sue a 
 
 December 17 third party, is a sufficient power to enable the latter to sue such third party in the 
 
 name of the writer. 
 
 The limitation applicable to a olaim for hire or freight of a junk, under a charter- 
 . party which is in writing, but not under seal, is six years, under clause 16, section 1. 
 of Act 14 of 1859. 
 
 If a plaintiff recover in the Supreme Court a sum within the jurisdiction of the 
 Court of Bequests, he will — unless there are special circumstances to justify his suing 
 in the Supreme Court — be allowed his costs only, according to the scale and practice of 
 the Court of Eequests. 
 
 This was an action for freight of the junk " Mah Glay"— a 
 seagoing boat of 50 tons burden. The defendant among other 
 things pleaded, that the plaintiff's cause of action did not accrue 
 within three years next before action. The action was brought 
 by one Koh Twah, who claimed to be the substituted Attorney of 
 one Tan Puan, who was the attorney of the plaintiff, See Bong 
 Lira. _ It did not appear that the original power of attorney from 
 plaintiff to Tan Puan, gave Tan Puan power of substitution. 
 
 Anthony, for the defendant, objected that Koh Twah, who was 
 called and produced the substituted power of attorney, was not 
 authorized in bringing the action. 
 
 Duke, for plaintiff — contra. 
 
 Wood, J. I am of opinion that if the original power of 
 attorney does not name the witness as attorney, and no power 
 was given therein to substitute another attorney, that document 
 did not empower the witness to sue, 
 
STRAITS SETTLEMENTS. 
 
 473 
 
 Wood, J. 
 
 1878. 
 
 Kam Beng 
 Chan. 
 
 It subsequently appeared that the said Koh Twah also 
 brought this action, because the plaintiff personally, had written 
 to him from Singapore, to demand payment of defendant. He seeBon* 
 produced the letter lS"^, 
 
 f^hony, submitted that that did not confer a right to sue. 
 
 Wood, J. held that the letter was a sufficient power. 
 
 Anthony, then relied on the Statute of Limitation. He admitted 
 that the action was brought on a charter-party, not under seal, for 
 the charter of the junk, for two months, at $28 per month— but 
 contended that as the charter-party was dated 12th February, 1874, 
 and the summons was taken out only on 22nd November 1878 
 more than three years after, the claim was barred. 
 
 Duke, contra. 
 _ Wood, J. I am of opinion that the charter-party being in 
 writing, not under seal, the case comes within clause 16, section 1. 
 of the Indian Act of Limitation 14 of 1859, and that six years is 
 the period. 
 
 December 19. Anthony, for defendant, now asked leave to call 
 the attention of the Court to Thompson on Limitation, p. 129, citing 
 9 Weekly Eeporter, Civil Eulings, p. 193, Sir B. Peacock delivering 
 judgment of full Court of Appeal, ibid 195, on the point of limitation. 
 
 Duke, for plaintiff contended, that a junk was not a boat 
 within the meaning of the Act— the junk being a small ship 
 impelled by sails, of 52 tons burden, decked, and intended as its 
 
 charter-party shewed, for .voyages beyond the port of Penang 
 
 whereas a boat was a vessel ordinarily impelled by oars, though 
 occasionally by sails. 
 
 [Wood, J. I am still of opinion that the 6 years limitation 
 must prevail.] 
 
 The case proceeded and eventually terminated in the plain- 
 tiff's favour, in the sum of $9.69 only. 
 
 Anthony asked that as the plaintiff had recovered an amount 
 within the jurisdiction of the Court of Eequests, his costs should 
 be allowed him only according to the scale and practice of that 
 Court. 
 
 Wood, J. The verdict will be for the plaintiff, with costs as 
 in the Court of Eequests. 
 
 ATTOENEY-GENEEAL v. GEEGOEY ANTHONY. 
 
 The provisions of section 37 of the Court's-Ordinance 5 of 1873, are imperative on Penang. 
 
 every Solicitor to take out his annual certificate, and as no remedy is provided by the 
 
 Ordinance for the non-observance of this section, and the Crown has a pecuniary inter- Wood, J. 
 
 est thereunder, by reason of the Stamp Duty imposed, the Attorney-General may sue 1878. 
 
 for same, under the Crown Suits Ordinance 15 of 1876. , ' 
 
 December 21. 
 This was a proceeding under the Crown Suits Ordinance 15 
 of 1876, and was brought as a test action to decide certain ques- 
 tions pending between the Government and the Penang Bar, as to 
 
474 
 
 CIVIL CASES. 
 
 Wood, J. 
 1878. 
 
 Attorney 
 General 
 
 v. 
 Anthony. 
 
 the latter's liability to pay their license, under the Court's Ordi- 
 nance 5 of 1873. 
 
 D. Logan [Solicitor-General] for the Crown. Previous to 
 coming into operation of Ordinance 5 of 1873, no fee was payable 
 yearly by advocates and attornies, but, for the first time, by sec- 
 tion 37 of this Ordinance, it is enacted that : " Every practising 
 " Advocate and Attorney of the Supreme Court, so long as his name 
 " remains on the roll of advocates and attornies, shall, within the 
 " first seveii days of every year, take out a certificate to practice as 
 " an Attorney of the Supreme Court." Up to the present time, un- 
 til this year, the practitioners have taken out their yearly certifi- 
 cates. By section 42 of the Ordinance in question, a penalty is 
 imposed. The argument on behalf of the Bar is, that the disabi- 
 lity mentioned in section 42, is the only penalty or disadvantage 
 . imposed by the Act, and that the language of the Statute does not 
 impose any duty or obligation. There is no money penalty im- 
 posed by the Act. He referred to Holgate v. Slight, 21 L. J. Q. B. 
 74 as bearing on the point. 
 
 Van Someren, for defendant. The argument on behalf of de- 
 fendant is, that the Act does not prescribe a duty, but simply 
 enacts that if a person does not take out a certificate, he shall not be 
 able to maintain an action for his fees. No obligation exists on 
 the Bar to take out such a certificate, and no duty being imposed, 
 nodebt has been incurred. The old Act 37 Geo. III., c. 90, sections 
 30 and 31, and the 6 and 7 Vic. c. 73, section 102, are the English 
 Statutes from which our Act is taken. .This section 102, corres- 
 ponds with section 40 of our Act, but no case can be found where 
 a Solicitor has been held liable to the Crown for not taking out 
 his certificate. Section 34 of our Ordinance preserves the status 
 of an attorney, and the words in sections 37 and 40 " shall" are 
 not imperative. King v. Inhabitants of Birmingham, 8 B. & C. 
 29, 34. If imperative, it is only enforceable by the means pro- 
 vided in section 40. 
 
 [Wood, J. I may call your attention to Shepherd v. Hill, 11 
 Ex. 55, s. c. 25 L. J. N. S. Ex. 6, and Reg. v. George Buchanan, 8 
 Q. B. 883, cited in Maxwell on Statutes p. 365.] 
 
 Here the Ordinance distinctly prescribed a remedy, which is 
 its own peculiar remedy, and therefore the only one, viz., the dis- 
 ability to bring an action for fees-section 42. 
 
 Wood, J. On this case, according to the authorities specifi- 
 cally referred to in Maxwell on Statutes 367, 370, more particularly 
 the cases of Shepherd v. Hill, 25 L. J. Ex. 6, s. c. 11 Ex. 55, as com- 
 mented on and 'explained in The Vestry of St. Pancrasr. Battersly, 
 2 C. B. N. S. 477, s. c. 26 L. J. C. P. 246, the judgment must be 
 for the Crown. I have no doubt, that the words of section 37 im- 
 pose upon every practising advocate, the duty of taking- out a cer- 
 tificate ; which, as it involves the payment of $50 for stamp, gives 
 the Crown a direct pecuniary interest in the performance of this 
 duty. The subsequent section 42 only imposes upon the advocate 
 not taking out his certificate, a disability in that he cannot sue 
 for his costs in an action against his client, but there is no remedy 
 given by the Ordinance, which covers or indeed at all affects 
 
STRAITS SETTLEMENTS. 
 
 475 
 
 the right conferred on the crown by section 37. The duty being 
 imposed, and the crown having an interest in the matter, the 
 Attorney-General may enforce it, under the Crown Suits Ordi- 
 nance, by suing for the stamp which is unpaid. 
 
 Judgment for plaintiff. 
 
 Wood, J. 
 1878. 
 
 Attobney- 
 
 Genebal 
 
 V. 
 
 Anthont. 
 
 LIM MAH YONG v. J. A. ANTHONY & OES. 
 
 A testatrix directed that in the event of the plaintiff not wishing to live in a oer- Penano. 
 
 tain family house provided by her, he and his family should be allowed to occupy free of 
 
 rent, for 40 years, certain other premises, after which period, these latter premises were Wood, J. 
 
 to be his or his heirs or assigns, but neither he, nor they, were allowed to mortgage or 1879. 
 
 sell the same. 
 
 Held, the plaintiff and his family had only a license to live in the house, and that a January 14. 
 
 personal occupation was required. 
 
 The Court, however, declined to express an opinion as to who all the word '■ family" 
 included, considering that it would be premature to do so. 
 
 This was a suit to restrain the defendants, Receivers of the 
 estate of Oh Yeo Neo, deceased, from selling premises No. 
 424, Beach Street, which was devised by the 7th clause of 
 the Will of the said Oh Yeo Neo as follows : — " In the event of 
 " the said Lim Mah Yong not wishing to live in the family house 
 " hereinbefore mentioned, he and his family should be allowed to 
 " occupy the premises No. 424, Beach Street, free of rent, for a pe- 
 " riod of 40 years from the day of my death, and thereafter the said 
 " house should become his property or that of his heirs or assigns, 
 •' but neither he nor they should be allowed to sell or mortgage the 
 " same." The defendants considered the gift to the " family" to 
 occupy, was void, and as regarded the plaintiff, a personal occu- 
 pation was intended. The gift over, after the 40 years, had been 
 already held void by this Court, [a] 
 
 Boss, for plaintiff. The use of the word " occupy" gives an 
 estate for life — here it is limited to 40 years, but there is no ob- 
 ligation of personal occupation of the house for that period. Re- 
 gina v. Inhabitants of Eatington, 4 T. R. 177 ; Whittam v. Lamb, 12 
 M. & W. 813 ; Babbitt v. Squire, 24 L. J. ch. N. S. 203. 
 
 Van Someren, for defendants. There is no real contention, 
 but the decision of the Court is sought for guidance of the receiv- 
 ers. 
 
 1st. — The clause confers only a license as was held by the 
 Court, see Sir- W. Hackett's judgment Ong Cheng Neo v. Yeap 
 Cheah Neo, Straits Law Reports p. 320. [a] " Family" is inde- 
 finite, Ibid p. 580, on appeal, 6 L. R. P. C. 381, Hawkins on Wills, 
 p. 89— but it is sought to obtain the decision of the Court as to 
 its meaning 2ndly "Family" is prima facie "children." Snow 
 v. Tweed, 9 L. R. Bq. 622 ; Lambe v. Emez, 10 L. R. Eq,. 267 ; on 
 appeal, 6 L. R. ch. App. 597. 
 
 [a] ante p. 326. 
 
476 
 
 CIVIL CASES. 
 
 Wood, J. 
 1879. 
 
 Lim Mah 
 Yong 
 
 ■(/. 
 
 Anthony 
 
 & OKS. 
 
 The clause is either void as regards the " family," though not 
 as regards the plaintiff, or " family" must mean children, not in- 
 cluding collaterals or adopted children. 
 
 3rdly. — Personal occupation by the plaintiff is required. 
 Straits Law Reports, p. 358, Maclaren v. Stainton, 29, L. J. Ch. E". 
 S. 442 ; Babbitt v. Squire, supra. 
 
 Boss, in reply. 
 
 Wood, J. — Looking at the wholo of the 7th clause of this 
 Will, reference being had also to the 1st clause thereof, which 
 speaks of the family house thereby provided, I am of opinion, per- 
 sonal occupation was intended, and that the Will conveyed only 
 a license to the plaintiff to occupy, and not an equitable estate for 
 years. 
 
 The testatrix by clause 1, obviously refers to a residence of 
 the family in the house devised, and the terms " live in the house," 
 give meaning to the words " be allowed to occupy," which follow : 
 and the words which import that after the term of forty years the 
 property is to be "his property, or that of his family," imply 
 that before the expiration of that term, no estate which is equiva- 
 lent to property, shall vest in him. 
 
 I consider that the use of the word " family" does not violate 
 the bequest, but in dealing with the word " family," any expres- 
 sion of the Court as to the meaning of the word, would be obiter 
 dictum, not arising in this case, and I should desire to guard 
 myself against defining "family,". until a case may arise in which 
 the point is really in issue. 
 
 It is obvious, that in the case of collaterals or adopted child- 
 ren, questions of difficulty might arise, and it is desirable that 
 these interests should be represented, and their rights supported 
 by well considered arguments. 
 
 It is sufficient for the purposes of this case, for me to adjudge 
 that the testatrix has given to the plaintiff, Lim Ah Yong and his 
 " family," a license to occupy ; or in other words, a right to per- 
 sonal occupation for the term of forty years. 
 
 July 15. On a difference arising between the parties, on the 
 drawing of the decree, the Court this day directed that the words, 
 " and not by his or their agents, licensees or tenants," should be 
 inserted between the words "personally," and " occupy." Costs of 
 all parties to come out of the estate. 
 
 Penan a. 
 
 "Wood, J. 
 1879. 
 
 January 17, 
 
 RAHMAN CHETTY v. & McINTYRB & ORS. 
 
 Where it appeared that the plaintiff was unable to serve a writ of summons on a 
 defendant out of the jurisdiction, owing to the great expense whioh would necessarily 
 be attendant thereon, without a likelihood of his being repaid— the Court ordered a 
 renewal of the writ, although it was not stated that the claim was not barred by Limi- 
 tation. 
 
 Inability to serve a writ of summons, owing to pecuniary reasons, is a " good 
 " reason" within the meaning of section 44, Ordinance 5 of 1878. 
 
 Doyle v. Kaufmann [3 L. R. Q. B. Div. 7 & 340] distinguished. 
 
 This was an action to recover f 4,500 for money lent, &c. The 
 writ of summons was issued on the 7th December, 1877, and 
 
STRAITS SETTLEMENTS. 
 
 477 
 
 sequestration of defendants' property was granted the same 
 day. 
 
 Thomas, for plaintiff now moved, under section 44 of Ordi- 
 nance 5 of 1878, [a] for a renewal of the writ of summons, and 
 of writ of sequestration, against the defendants, A. Mclntyre, C. 
 Mclntyre and C. Fyleberg — three of the defendants who had not 
 yet been served. The affidavits he moved on stated that the 
 cause of action arose here — that all the defendants, save and 
 except the three abovenamed, had been served — and the reason 
 for their not being served was, that they were residents of Sumatra, 
 and it would require leave of the Court and a special bailiff to do 
 so, which would necessitate expense — that as the defendants had 
 no property here, and a judgment of this Court would not be likely 
 to be enforced at Sumatra, the plaintiff had had no wish to incur 
 expense in suing those defendants, without a likelihood of reim- 
 bursing himself out of their property ; but now that some of their 
 property had come within the jurisdiction, he was desirous of 
 sequestering this, and serving them with the summons, and pro- 
 ceeding to final judgment. 
 
 Wood, J. I allow the application — I have, however, some 
 doubts in the matter. It is certain that the plaintiff might have 
 served the defendants, but for the expense and difficulties attend- 
 ing such proceedings, but as the Act allows me to renew the writ 
 " for other good reason" — such as I presume the practical diffi- 
 culties in the way, to be — I make the order. Tt seems to me that 
 much mischief and injustice might result from renewing a sum- 
 mons which had expired, and so keeping alive an action which 
 was barred by the Statute of Limitations — and inasmuch as the 
 affidavits are silent on this point, it might be fairly inferred that 
 the debts were incurred more than three years ago, and so a new 
 summons would be too late ; but I think this view is not neces- 
 sary for the Court to consider. The defence of the Statute of 
 Limitations might never be made by the defendants even to the 
 action, and the defendants also might move to set aside the order 
 of renewal, on the ground that the Court should not so renew the 
 writ where service might have been and was not affected, even 
 although it was most inconvenient for the plaintiff to do so, and the 
 other " good reasons" might be accident and not neglect, even for 
 pecuniary reasons. The late case of Doyle v. Kaufmann, [3 Q. B. 
 Div. 7 & 340], is opposed to this — but there, there were no 
 " other good reasons," and it may be taken the plaintiff wilfully 
 did not serve the writ, without any extenuating circumstances, 
 such as there are here. I consider that the Statute of Limitations, 
 being a statutable defence somewhat contra bonos mores when 
 
 IV] The Section is as follows : " No original writ of summons shall be in force 
 for more than twelve months from the day of the date thereof, including the day 
 of such date; but if any defendant therein named shall not have been served 
 therewith, the plaintiff may, before the expiration of the twelve months, apply to 
 the Court for leave to renew the writ ; and the Court/ if satisfied that reasonable 
 efforts have been made to serve such defendant, or for other good reason, may 
 order that the original or concurrent writ of summons be renewed for six months 
 from the date of such renewal, and so from time to time during the currency of the 
 renewed writ." 
 
 Wood, J. 
 
 1879. 
 
 Rahman 
 
 Chbttt 
 
 v. 
 
 McIntybs 
 
 & OBS. 
 
478 
 
 CIVIL OASES. 
 
 Wood, J. 
 3879. 
 
 Rahman 
 
 Chettt 
 
 v. 
 
 McInttee 
 
 & OES. 
 
 applied to mercantile transactions — is a defence pleadable, or not, 
 at the will of the defendant ; and does not make a debt ipso facto, 
 void. See Bailey v. Owen, 9. W. E. 128 ; and Nayer v. Wade, 31 
 L. J. Q. B. 1. I incline to think therefore that there is a difference 
 in this case, from the points decided in Doyle v. Kaufmarm — that 
 the absence of the defendants in a place like Sumatra, is a " good 
 " reason" for not serving, on the score of expense — and there is 
 this further point, that the action has been all along kept up 
 against the other defendants, against whom a judgment would 
 certainly be obtained, if for a good cause of action. 
 
 Order accordingly. 
 
 TAN KIM KENG & ANOE «. MUNICIPAL 
 COMMISSIONEES. 
 
 Penang. 
 
 Wood, J. 
 1879. 
 
 August 19. 
 
 A notice under section 126 of the Conservancy Act 14 of 1856, which states that 
 the defendants had, in a certain month, obstructed the plaintiff's watercourse, and 
 thereby had prevented the water flowing to the plaintiff's mill, by reason of which he 
 had to give up working his mill, sufficiently implies that it is a continuing trespass, so 
 as to enable the plaintiff to proceed, although the obstruction was put up a long 
 while before. < 
 
 A person acquires no easement or right to the flow of water, which runs in an 
 artificial oourse, although such course may be connected with a natural stream, the 
 water of which flows into the artificial course. 
 
 This was an action for obstruction to plaintiffs' flow of water. 
 The defendants among other things pleaded : 1. That no notice in 
 writing was given under Indian Act XIV. of 1856. 2. That the 
 act complained of was not committed within 3 months after 
 accrual of the alleged cause of action. 
 
 Van Someren put in the notice which was dated 20th 
 November, 1878, and which stated that in March, 1878, the 
 defendants had obstructed the plaintiffs' watercourse, and had 
 prevented the water of the stream flowing to the plaintiffs' mill 
 and had thereby compelled them to stop working their mill — the 
 action was commenced on 13th February, 1879. He contended 
 that the statement of claim and notice, sufficiently shewed that 
 the act complained of was a continuing act, which existed up to 
 the time of the commencement of the action, though occasioned 
 by the building of a brick drain of pipes, &c, long before this. 
 
 Boss, in support of defence. The notice is not distinct in 
 saying this is a continuing injury, but the statement of time is 
 essential. Martin v. TJpsher, 11 L. J. Q. B. [N. S.] 291, which was 
 followed by Breeze v. Jordein, 12 L. J. [N. S.] Q. B. 234. 
 
 Wood, J. I am of opinion that the notice and statement of 
 claim sufficiently describe the cause of action as a continuing 
 trespass. The plea on this point will be over-ruled. 
 
 December 16. The case now came on before Ford J. on the 
 merits. It appeared that the watercourse which supplied the 
 
STRAITS SETTLEMENTS. 
 
 479 
 
 plaintiffs' mill was an artificial course, but was connected with 
 a natural stream. 
 
 Van Someren [E. W. Presgraye with him] for plaintiffs 
 submitted, that tbe artificial course being connected with the 
 natural stream, the same must be treated as a natural water 
 course, and the plaintiffs could maintain their action. They 
 relied on Sutcliffe v. Booth, 32. L. J. Q. B. [N. S.] 136 ; and 
 Nuttall v. Branwell, 2.L. E'. Ex. 1. 
 
 Boss, for defendants relied on Arkwright v. Gell, 5 M. & W. 
 232. 
 
 Ford, J. held that Arkwright v. Gell, applied, and that the 
 works were artificial when the easement was acquired. The 
 Court, however, adjourned the case, for the production of records 
 to shew who built the artificial course. 
 
 Ford, J. 
 1879. 
 
 Tan Kim 
 
 Keng & 
 
 ANOR. 
 1). 
 
 Municipal 
 
 COMMRS. 
 
 December. 19. Ford, J. considered that as the watercourse 
 was artificial, the plaintiffs must be non-suited, as they had no 
 right to have the artificial watercourse kept up for them. 
 
 Non-suited. 
 
 LIM PEK TEE v. LIM TEET & OES. 
 
 The term " servant " in clause 2, section 1 of the Limitation Act 14 of 1859, 
 applies to domestic or menial servants only — and is not applicable to a claim for wages 
 by the supercargo or nacodah of a ship. 
 
 The limitation of 3 years, under clause 9 of seotion 1, is the limitation applicable to 
 such a claim. 
 
 This was an action to recover [mter alia] wages which the 
 plaintiff alleged to be due to him as supercargo or nacodah of the 
 defendant's barque " Eleanor." The defendants among the de- 
 fences pleaded that the plaintiff's cause of action did not accrue 
 within one year next before action. By section 1, clause 2 of Act 
 
 14 of 1859, it is enacted that, for " suits to recover 
 
 " the wages of servants,, artizans, or labourers, the period of one 
 " year from the time the cause of action arose" 
 
 Van Someren, for plaintiff, contended that the claim was not 
 for wages as servant. That the word " servant " in clause 2, sec- 
 tion 1, of the Limitation Act 14 of 1859, applied only to menial or 
 domestic servants, and was ejusdem generis, with " artizans and 
 " laborers," and cited Thompson on Limitation,, pages 85, 86 and 
 87, and the cases there cited. 
 
 E. W. Presgrave, for defendants, contended that " servant " 
 referred to in clause 2 of section 1, meant servant of any kind, 
 wherever the relation of master and servant existed, and not ser- 
 vants ejusdem generis with " artizans and laborers." He further 
 contended, that if clause 2 did not apply, then clause 9 of sec- 
 tion 2 gave the plaintiff 3 years only in which to sue, and a great 
 portion of the claim would still be barred. 
 
 Wood, J. I am of opinion that the term " servant " means 
 domestic servant, or at least does not mean a clerk or nacodah or 
 
 Penang. 
 
 "Wood, J. 
 1879. 
 
 October 23. 
 
OITIL OASES. 
 
 & OBS. 
 
 ■Wood, J. manager. I consider that the principle of rioscitur a sociis applies 
 
 1879> and reduces the generality of the expression " servant " to a more 
 
 LimPekTee specific kind of service. I think 3 years, under clause 9 of sec- 
 
 v. tion 2, is the term of Limitation, applicable to the case, as it is 
 
 Lim Tbbt s i m piy a dispute as to a contract of service. I shall, therefore, 
 
 give leave to the defendants to amend their plea of the Statute, by 
 
 inserting three years, instead of one. 
 
 Order accordingly. 
 
 The amendment having been made, and the case proceeded 
 with, judgment was given for the defendants on the merits. 
 
 ALLEE [in name of Sir Thomas Sidgreaves, C. J.] 
 
 v. 
 SAMAN & AM)E. 
 
 Penano. 
 
 Wood, J. 
 1879. 
 
 October 27. 
 
 An administration bond to a former Judge of the division of the Supreme 
 Court, cannot be enforced in the name of the Judge presiding in that Settlement. 
 Such latter Judge is not a " successor" of the Judge of the division. The proper 
 remedy in such a case is to have the bond assigned by such former Judge, or his 
 legal personal representatives. 
 
 Demurrers should be brought forward by way of motion for judgment, under 
 the Civil Procedure Ordinance 1873. 
 
 Semble. The Court of Probate Act [1857] 20 & 21 Vict. c. 77 does not apply 
 to the Straits. 
 
 This was an action on an administration bond against the 
 defendants as sureties therein. The bond was given in the 
 estate of Allang Tajah, deceased, for the due administration of 
 the said estate by the administrator. It was alleged in the state- 
 ment of claim that the administrator had wasted the estate. The 
 action was brought by Allee, next-of-kin of the deceased, but the 
 bond being in the name of the late Sir William Hackett, Judge of 
 Penang, the plaintiff commenced the action as above headed, — 
 Sir T. Sidgreaves there mentioned, being the Chief Justice for 
 the time being, and Sir William Hackett having left the Colony 
 and died, 
 
 The defendant put in a demurrer to the statement of claim 
 which was now argued. 
 
 Van Someren, for defendant, moved for judgment on the 
 demurrer. 
 
 Duke took a preliminary objection that the practice adopted 
 in this case in moving for judgment on the demurrer, was errone- 
 ous, except at the weekly sittings, — he relied on section 313 of the 
 Civil Procedure Ordinance 1878. 
 
 [Wood, J. That provision does not interfere with the specific 
 practice in cases of demurrer pointed out by section 119 and the 
 following sections.] 
 
 Van Someren, in support of demurrer. There are two points to 
 be discussed. 1st, no relief can be given on the plaintiff's state- 
 
STRAITS SETTLEMENTS. 
 
 481 
 
 ment of claim. 2nd, plaintiff has no authority to sue in the name 
 of the Chief Justice. The Probate Act in England [1857] gives 
 authority by section 83 for the Ordinary to assign the bond. 
 Section 10 of Ordinance III. of 187S, gives the Court here the 
 authority and jurisdiction as the High Court of Justice at home. 
 Section 14 of the same, gives power to grant Probate and Admi- 
 nistration, but the proceedings here are informal. 1 Williams 
 on Executors, p. 354 [ed. 1873]. Henley v. Knight, 14 Q. B., 
 p. 240, s. c. 19 L. J. Q. B., p. 3. There is no authority which 
 enables an action to be commenced by the mere locum tenens of 
 the Ordinary, Sir Thomas Sidgreaves. There is no such person as 
 a Judge of this " division" of the Supreme Court. The divisions 
 are done away with, and there is no section of any new Act- 
 dealing with the Judges of the Supreme Court, now being existing 
 law, which gives to the Judges or Chief Justice of the Supreme 
 Court, the status of a Judge of the Division-Court under the Act 
 V. of 1873. If plaintiff wishes to sue he can sue by assignment 
 from the personal representatives of Sir William Hackett, in whose 
 name the bond is made. It is also not stated in the statement of 
 claim that any leave has been obtained from His Honor Sir 
 Thomas Sidgreaves to sue in his name, even if he had power to 
 grant any such assignment. 
 
 Duke, contra. The bond although made to Sir William 
 Hackett, is for payment of the money to Sir William Hackett " or 
 " his successor," the divisional Judge. Sir Thomas Sidgreaves is 
 a successor to Sir William Hackett. 
 
 Wood, J. The plaintiff cannot sue in the name of Sir 
 Thomas Sidgreaves, C. J., but should sue in the name of the 
 personal representative of Sir William Hackett, after assignment 
 properly made. I regret that the law does not enable me to apply 
 even the Probate Act of England, 1857, and in the absence of any 
 Act applicable to this Colony, which enables me otherwise to deal 
 with the matter, the law of England, as shewn to exist up to the 
 date of that Act, and which required the bond to be put in suit by 
 the personal representatives of the obliger of the bond, must 
 prevail. The demurrer will be allowed, but there will be no order 
 for costs. There will idso be a stay of proceedings for 6 months 
 in order to enable the nominal plaintiff to obtain a proper assign- 
 ment from the representatives of Sir William Hackett. 
 
 Demurrer allowed with costs, [a] 
 
 [a] See In the goods of Lebby Long, Ecclesiastical Cases, Vol. II. of these 
 Beports. 
 
 Wood, J. 
 1879. 
 
 Allee 
 
 V. 
 
 Saman 
 
 & ANOR. 
 
482 CIVIL CASES- 
 
 TAN TYB & ANOR. 
 v. 
 UNION INSURANCE SOCIETY OF CANTON. 
 
 Singapore A person effecting a Marine Insurance on goods, may insure for an amount over 
 
 ' and above the actual value of the goods, to cover charges and a reasonable valuation 
 
 Sidgreaves for profits ; but an excessive valuation for profits, is a material fact to the risk of the 
 
 C J ' policy and should be disclosed to the insurers. 
 
 1879." The non-disclosure of an excessive valuation, is a ground for avoiding the policy 
 
 altogether. 
 
 November 12. 
 
 Ionides v. Pender, 9 L. E- Q. B., 531 — discussed. 
 
 Action to recover $9,000, on two Policies of Insurance on 
 certain cargo shipped by plaintiffs on board the Magnolia. 
 The facts and points raised, sufficiently appear in the judgment. 
 
 Davidson*, for plaintiffs. 
 
 Donaldson [Dunlop, with him] for defendants. . 
 
 Cur. Adv. Vult. 
 
 On this day judgment was delivered by 
 
 Sidgreaves, C. J. This was an action on two Marine Policies 
 of Insurance to recover sums of $6,500 and $2,500 respectively on 
 Insurances effected by the plaintiffs with the defendants by their 
 agents, A. L. Johnston & Co., upon certain timber shipped by the 
 plaintiffs in the Magnolia for a voyage from Singapore to Shan- 
 ghai, which timber was wholly lost during such voyage by the 
 perils insured against. 
 
 The defendants pleaded several pleas, but rested their case at 
 the trial upon the last three pleas, the last two, however, raising 
 the defences that were principally relied upon — they were as 
 follows : — 
 
 " That at the time of the defendants subscribing the said policies res- 
 pectively and becoming such insurers as alleged, the plaintiffs wrongfully 
 concealed from the defendants a fact then known to the plaintiffs and unknown 
 to the defendants, and material to be known to the defendants, and material 
 to the risk of the said policy, that is to say, that the amount to be insured 
 upon the said goods respectively, and the valuation of the same in the said 
 policies respectively was greatly in excess of the real value of the said goods 
 respectively. Secondly, that at the time of the defendants subscribing the 
 said policies respectively and becoming such insurers as alleged, the plaintiffs 
 wrongfully concealed from the defendants a fact then known to the plaintiffs 
 and unknown to the defendants, and material to be known to the defendants, 
 and material to the risk of the said policy, that is to say, that the plaintiffs 
 were the shippers of a large quantity of other goods, to wit, timber by the 
 said vessel Magnolia, parts of which said goods were insured by or on behalf 
 of the plaintiffs under other policies with other persons or companies for 
 large amounts, and that such amounts and the valuations of the said goods 
 in such policies were, and are greatly in excess of the real values of the goods 
 intended to be covered by the said policies respectively." 
 
 The insurances effected altogether by the plaintiffs for the tim- 
 ber upon this voyage with different companies amounted to $38,000, 
 and it will be seen that the pleas assert that this was an excessive 
 over-valuation of the timber both as regards the amount covered 
 by the two Insurances effected with the defendants, and the whole 
 
STRAITS SETTLEMENTS. 483 
 
 amount covered by all the insurances, that the fact of there being Sidobeaves, 
 such over-insurance was a matter material to be known by the ^g' 
 
 insurers at the time of effecting such insurance, and that it was ' 
 
 wrongfully concealed from them. Tan Ttb & 
 
 The case of Ionides v. Pender, 9 L. E. Q. B., 531, was relied T*' 
 upon by the defendants as establishing the proposition that if the Union In- 
 facts set out in the pleas could be proved, the Insurances would be SUEANCE So - 
 void. It was not attempted to be shown that there was any ac- Canton. 
 tual fraud attempted by the plaintiffs, as was imputed to the 
 insured in the case referred to, where the evidence wentto showthat 
 the vessel was purposely scuttled — on the contrary, the Magnolia 
 was a general ship in which the plaintiffs had no interest beyond 
 their portion of the cargo, and was commanded by a Captain in 
 whom the defendants' agents placed every confidence. The conten- 
 tion on the part of the defendants was almost exclusively con- 
 fined to attempting to establish the fact that there was an exces- 
 sive valuation of the timber, and that such excessive valuation was 
 a materia] fact which the assured were bound to, but did not, dis- 
 close. As stated by Blackburn, J. in the case of Ionides v. Pen- 
 der : " It is perfectly well established that the law as to a contract 
 " of Insurance differs from that as to other contracts, and that a 
 " concealment of a material fact, though made without any fraudu- 
 " lent intention, vitiates the policy. We agree that it would be too 
 "much to put on the assured the duty of disclosing everything which 
 " might influence the mind of an underwriter. Business could hard- 
 " ly be carried on if this was required. But the rule laid down in 
 " Parsons on Insurance, vol. lp. 495 that all should be disclosed, which 
 " would affect the judgment of a rational underwriter governing 
 "himself by the principles and calculations on which underwriters 
 " do in practice act, seems to us a sound one. We do not think any 
 " of the cases cited by Duer are in a contravention of it ; and apply- 
 " ing it to the present case, there was distinct and uncontradicted 
 " evidence that underwriters do in practice act on the principle that 
 " it is materia] to take into consideration whether the over-valuation 
 " is so great as to make the risk speculative. It appears to us a 
 " rational practice. We think, therefore, that the Judge could not 
 " do otherwise than leave this question to the jury, and that their 
 " verdict was not against the weight of evidence and should not be 
 '" disturbed." 
 
 Such being one of the grounds, therefore, upon which policies 
 of Insurance may be vitiated, it remains for us to enquire whether' 
 in the case now under consideration, there was such an excessive 
 valuation as would constitute a fact material to be known to the 
 Insurers. 
 
 There can be no doubt that although a reasonable valuation 
 for profits, over and above the actual value of the timber, would 
 be unobjectionable and need not be disclosed, yet that an exces- 
 sive valuation for profit, is a fact material to the risk of the 
 policy, and material to be disclosed to the insurers. What that 
 excessive valuation consists in, is a matter to be determined by a 
 consideration of all the circumstances of the case. 
 
CIVIL OASES, 
 
 SlDGREAVES, 
 
 C. J. 
 
 1879. 
 
 Tan Tye & 
 
 ANOE. 
 
 v. 
 
 Union In- 
 
 subance So. 
 
 CIETT OP 
 
 Canton, 
 
 Mr. Henderson, of the firm of Boustead & Co., who act as 
 agents for various Insurance Offices, says that it would depend 
 upon circumstances what amount would be sufficient to make 
 disclosure necessary. In ordinary cases he should say from 20 to 
 25 per cent, was ample margin for profit, but he states that of 
 shipments from here northwards, he has no knowledge, that in 
 cases of shipments of timber to China, he should certainly consider 
 it necessary to be informed if the estimated profit were over 25 
 per cent, but that fie knows nothing of the profits in the timber 
 trade to China, and is only giving his own idea, not the practice of 
 the office. Mr. Traser, whose firm is interested in the insurance 
 in question to the extent of $15,000, considers it material for under- 
 writers to know the amount of over valuation when it is to a great 
 extent, and considers 15 % homewards and 25 % outwards the 
 limit at which he should expect to be informed. Neither he nor 
 Mr. Henderson, however, nor indeed any witness called, professes 
 to be speaking from any experience they have had, nor of any 
 practice that can be said to prevail in Singapore. Mr. G-ilfillan is 
 more liberal and would not consider that a profit of 25 per cent, 
 would call for explanation, though 50 per cent, would, and in cases 
 between those two amounts he would pass from the grade of 
 indifference to that of certainty, but he qualifies even this state- 
 ment as to 50 % by saying that the timber trade used to involve 
 a great deal of risk and delay in settlement, it was a long trans- 
 action at both ends, and large profits were sometimes made. 
 
 Mr. Barclay Eead, a partner in the firm of A. L. Johnston 
 & Co., agents for the defendant, after saying that he should 
 consider 15 % profit to Europe would be an outside cover, says 
 that there is no custom as regards produce to China, he has never 
 been told yet, he has never asked, it is always supposed that the 
 insured is putting on a reasonable profit. Assuming that the 
 concealment from the insurers of an excessive valuation of the 
 timber and the expected profit to be derived therefrom would 
 vitiate the policies, we now proceed to enquire whether or not in 
 the present case there was such an excessive valuation. 
 
 The total amount, as before stated, of the insurances effected 
 JK i £ et ? aber sH PP ed h 7 the Plaintiffs in the Magnolia, was 
 |d8,000, of this $14,000 was upon policies effected with Messrs 
 Hooglandt & Co., and $15,000 upon policies effected with Messrs. 
 Madame, Fraser & Co. 
 
 T^' re P resentm g the insured value of the timber shipped on 
 
 ' Magnolia by the plaintiffs, it becomes necessary to 
 
 actual value of the timber so shipped in order to 
 determine whether or no the over-valuation, if any, of the timber 
 and of the profits to be derived from the sale of it at Shanghai 
 was excessive. s 
 
 The timber shipped by the plaintiffs was composed of Ballow 
 andDarroo beams, pieces of Eranjie wood and planks. Three 
 documents were put m to prove the quantities of timber so 
 shipped a copy of the ship's manifest, a memorandum enclosed in 
 a letter from the plaintiff's lawyer, Mr. Koek, to the Captain of 
 the ship, declaring the measurements of the timber for freight 
 
 board the 
 ascertain the 
 
STRAITS SETTLEMENTS. 485 
 
 and the invoice. As regards the pieces of Kranjie wood, these Sidgbbavbs, 
 documents all agree that there were 50 pieces, as regards the' IjLg" 
 
 planks, according to the manifest the number was 1,899, according '. 
 
 to the memorandum and the invoice the number was 1,995, but Tan Tte & 
 no particular question was raised as to that, although the value of AN0K - 
 those pieces was a matter of considerable discussion. Union In- 
 
 It was admitted by Mr. Davidson that there was an over- sttbancb So- 
 valuation on the Kranjie wood of 48f per cent, and on the planks 0IETT or 
 of 43%. With regard to the Ballow and Darroo beams the Canton - 
 quantities alleged to have been on board varied very considerably 
 in the three documents, according to the ship's manifest, the 
 quantity was 579 tons, 47 cubic feet, according to the memo- 
 randum the amount was 483 tons, according to the invoice the 
 quantity was 818 tons. It will be seen at once that there is a 
 remarkable discrepancy between the memorandum and the invoice 
 as to the number of tons on board, between the measurements 
 insisted 'upon by the plaintiff as being the correct measurements 
 for freight, and the measurement put forward in the invoice as 
 being-the correct measurements for sale. The invoice is dated 
 the 20th May, and the memorandum was forwarded in a letter 
 dated the 21st May, to the following effect: — 
 
 " Dear Sir, 
 
 As instructed by Messrs. Tan Tye & Co., I do hereby give you notice that 
 in terms of the arrangement entered into between you and them, they will 
 pay you freight on the beams and planks shipped in the Magnolia, on the 
 measurement specified in the memorandum herewith appended, and they 
 request you to make an entry of the measurement on the Bills of Lading — ■ 
 should you not comply with their request, they will hold you responsible for 
 all losses and damage which they may sustain by reason of your refusal. 
 
 Tours faithfully, 
 
 (Sd.) Edwin Koee, 
 Advocate of the Supreme Court, S. S. 
 
 This letter appears to have been written in consequence of 
 disputes having arisen between Tan Tye and the Captain of the 
 Magnolia as to the quantity of timber actually on board, the 
 Captain saying that there was more timber in the ship than Tan 
 Tye wanted x o pay freight for, and Tan Tye saying that there 
 was not. With regard to the " arrangement" referred to in the 
 letter. Captain Cater in his evidence taken de bene esse says :— 
 
 " We measured with a string round, which we divide 1 into 
 '■' four for the sides, and if the log was of unequal size, we measured 
 " in three places and took the average. I could not swear whether 
 " there was more or less timber on board than shewn by our 
 "measurements, but I feel pretty positive that there was not more, 
 " if the way of measurement was correct — this was the only way 
 " we measured it and it was the way according to agreement." 
 
 The invoice showed a valuation upon the timber therein 
 specified of 130,026.08— to this was added $2,882.70 for "charges," 
 waking the total $33,088,78— this would make the insurance on 
 
486 CIVIL CASE& 
 
 Sidgbeavjss, profit a little over 15 %. But it was strongly urged on the part 
 
 f *■ of the defendants that the invoice could not he accepted as con- 
 
 7 • taining the correct quantities in the face of the memorandum 
 
 Tan Tte & forwarded through Mr. Koek to the Captain, and that even assuui- 
 
 anob. i n g £ ne i nvo i C e to be correct as to quantity, the valuations were 
 
 Union In- grossly over-estimated. As regards the measurements it will be 
 
 suRANCE So- seen, comparing the memorandum and the invoice, that the 
 ciettof num ber of pieces of Ballow and Darroo is put down in both at 
 Canton. exac ^ T ^he same, viz., 1,733. In the manifest the number of pieces 
 is put down at 1,663, but there was a dispute as stated in the Bill 
 of Lading with respect to 70 other pieces — the addition of these 
 would make up the number also to 1,733. These beams, however, 
 were partly square and partly octagonal — the Ballow timber was 
 composed of 438 square pieces and 443 octagonal — the Darroo of 
 462 square and 390 octagonal. It is evident that the reduction of 
 a square piece of timber to an octagonal piece, although not 
 decreasing its value, would considerably diminish its hulk and the 
 difference between a piece of timber cut square,, and the same 
 piece cut into an 8 sided piece was estimated by Mr. Maclean, the 
 Manager of the Singapore Saw Mills, at 44 per cent. 
 
 In measuring for freight the object was to ascertain the ac- 
 tual cubical contents of the timber and for this purpose the mode 
 described by Captain Cater of measuring with a string was adopt- 
 ed. In measuring for sale,, however, the octagonal pieces were 
 considered as being square pieces, and we require therefore the ad- 
 dition of 44 per cent, to ascertain the actual cubical contents. It 
 is obvious that, as nearly half the Ballow and Darroo timber was 
 composed of 8 sided pieces, the pieces themselves being of irregular 
 sizes, the difference between the measurements for freight and for 
 sale would be very considerable, and the apparent discrepancy 
 between the measurements in the memorandum and the invoice 
 could be satisfactorily explained, and were satisfactorily explained. 
 As regards the value fixed upon the Ballow and Darroo timber in 
 the invoice, it was quite clear that unless the timber was "dressed" 
 as stated by the plaintiffs, it was greatly over-estimated. Accord- 
 ing to the defendants, the timber was only roughly dubbed with 
 an axe as it came from the jungle, und in that state put on board. 
 Captain Smith says that he buys timber of that sort of all lengths 
 from 25 to 60 feet in length, up to 1 2 inches in diameter, and 30 
 feet in length, that it would be 20 cents a foot. — f rom 30 to 40 feet 
 in length, a little more, but 25 cents a cubic foot is the most he 
 ever paid. 
 
 The price charged in the invoice for the Ballow is 66 cents 
 per cubic foot, and for the Darroo 54 cents per cubic foot, and the 
 contention on the part of the plaintiffs is that this timber was 
 dressed, i. e., prepared for use by being cut true square and 8 
 sided by carpenters previous to shipment. That the prices charged, 
 if the timber were dressed, were not unreasonable, appears from 
 the evidence of various witnesses, especially from that of Mr. Lyon, 
 who says that he has been doing a good deal of building during 
 the last four years, and has bought and sold a good deal of timber. 
 He fixed the price of dressed Ballow timber last year at from 60 
 
STRAINS SETTLEMENTS. 4S7 
 
 » 
 
 to 65 cents per cubic foot, and dressed Darroo at from 56 to 60 Sidgbeaves, 
 cents per cubic foot. The mean price, therefore, for the Ballow ^^ 
 
 would be 62£ cents or 3£ cents less than that charged by the plain- ' 
 
 tiffs, and the mean price for the Darroo 58 cents or 4 cents more Tan Tye & 
 than that charged by the plaintiffs. There were 41 8 tons of Bal- AN ° B - 
 low, and as 3£ cents per cubic foot would equal $4 @ 75 per ton, Union In- 
 the total amount for the 418 tons, viz., §731.50 would represent the subance So- 
 amount charged by the plaintiffs in excess of Mr. Lyon's charge. C ™ TT 0F 
 But on the Darroo the plaintiffs charge was 4 cents per cubic foot 
 less than Mr. Lyon's, and as there were 400 tons of Darroo, the 
 difference would bo $800 in favor of the plaintiffs, so that in the 
 total charges for both kinds of wood, the plaintiffs' price would be 
 less than Mr. Lyon's by $68.50. Mr. Davidson, however, does not 
 put his case quite so strongly as that — he gives the cost price of 
 the Ballow and Darroo, adds to it the proportion of charges and 
 'then comparing the total with the amounts insured, shows that 
 the Ballow is under — insured to the amount of one per cent, and 
 the Darroo over — insured to the amount of 18 £ per cent, or on the 
 two kinds an insurance of 7 A per cent on profit 
 
 It was sought on various grounds, to impugn the testimony of 
 Tan Tye and his witnesses that this timber was so dressed, but I see 
 no ground to doubt the substantial accuracy of their statements. 
 Tan Tye himself, Tao Pan and Ung Beng Hong, his clerks, all 
 swore that it was so, and Seh Ing Leang, clerk to Messrs. Harri- 
 son & Co., the shippers, who says, he went on board 5 or 6 times in 
 consequence of the dispute between the Captain and Tan Tye's 
 men about the measurements, gave evidence to the same effect. 
 To show that the plaintiffs did deal at times in dressed timber, 
 Mr. Cameron was called, who stated that his firm did a good deal 
 of business in timber, chiefly with Mauritius, and that he had con- 
 tinually been buying timber from the plaintiffs. He produced a 
 bill of the plaintiffs for February, 1879, in which occurs the 
 following item. 
 
 " 41 Ballow and Darroo beams measuring 1,348-cubic feet ; at 
 " 55 cents = $74.40." 
 
 That this was for " dressed" timber we know from Mr. Came- 
 ron's evidence, but there is no use of any terms in the bill to indi- 
 cate that it was so dressed or prepared in any way. 
 
 The absence, therefore, of any such term in the invoice can- 
 not be fairly used as an argument a gainst the plaintiffs state- 
 ment. 
 
 Two letters were put in by Mr. Davidson from the- consignees 
 of the cargo to the plaintiffs' agents at Shanghai to show the bond 
 fides of the whole transaction. Tan Tye admitted that this was 
 the first time that he had shipped dressed timber to Shanghai, and 
 he said that he had it done upon this occasion by the advice of his 
 agent as he would not get a good price for it whfen not dressed. 
 In the first of the two letters, dated the 8th June, 1878, the 
 plaintiffs' agent writes: "your favor of the 17th of 4th moon [18th 
 May] came to hand on the 4th of 5th moon contents noted .... 
 I hear you have chartered a vessel from Messrs. Harrison & Co., to 
 load 1,000 tons of cleaned timber. As regards the Kranjie and 
 
488 
 
 CIVIL CASES. 
 
 1879. 
 Tan Tte & 
 
 ANOK. 
 V. 
 
 Union In- 
 subance So- 
 ciety of 
 
 Canton. 
 
 Sidgreaves, the planks, I see no reason to donbt from the evidence that the 
 c - J- cost prices were, as charged in the invoice, and the amount of over 
 insurance admitted upon them seems correctly estimated; The 
 insurance effected upon the total amount of the timber shipped by 
 the plaintiffs amounting only to about 15 per cent, it is obvious 
 that the fourth plea cannot be supported. 
 
 The third plea raises the specific question whether the admitted 
 over-insurance for profit of 43§ per cent, on the Kran jie and 43 
 per cent, on the planks was such an excessive insurance as would 
 vitiate the two policies now sued upon. 
 
 Following the case Ionides v. Pender, I should, had there been 
 a Jury, have left that question for their consideration as being a 
 matter for them after taking into consideration all the circum- 
 stances of the case. There being no jury, however, I have to de- 
 cide the matter as well as I can upon my own responsibility. The 
 case of Ionides v. Pender has been strongly relied upon by the de- 
 fendants as showing that such an over-insurance would so vitiate 
 the policies — It is important, therefore, to consider what that case 
 actually decides. 
 
 It appeared that the prices of the goods put on board in the 
 case referred to including cost, charges and insurance amounted in 
 the whole to something less than £8,000, whilst the various insur- 
 ances on the goods including profits amounted to about £14,000, an 
 insurance of commissions of £1,500 and a further insurance of 
 £1,000 on safe arrival, or an insurance of £16,500 on goods worth 
 less than £8,000. Taking into consideration that, as the learned 
 Judge in delivering judgment stated: "the vessel sank at sea 
 '' under circumstances making it very difficult to understand how 
 ' she came to sink unless purposely 'scuttled, this over-insurance 
 ' must be admitted to have been of a rather startling character. 
 ' One matter which was particularly noticed was the insurance 
 ' upon 222 casks of spirits — the cost charges and insurance upon 
 ' them amounted to £793— and for insurance they were valued at 
 ' £2,800." Blackburn, J., in delivering judgment said : " the de- 
 fendant called underwriters, who gave evidence, without any 
 ' objection being made, that it was material to underwriters to 
 ' know the extent of the over-valuation when it was to such an 
 ' extent as appeared in this case. They also stated in effect that, 
 ' when the valuation was excessive, the risk was considered a 
 ' speculative risk, which one class of underwriters would not take 
 ' at all and another class would take, but only if a sufficient 
 'premium w*,s offered; that 25 per cent, was not unusual, and 
 
 ' £ hat ^ n ° ne Case 30 per cent - had been taken h J the first ' class > 
 'but beyond this it would be speculative risk. My brother 
 
 ' Hannen, in summing up, pointed out to the jury that the valu- 
 ation of goods for the purpose of insurance might fairly and 
 
 ' proper,- be made, taking into account not only the original cost 
 
 ' of the goods but adding an estimate of the anticipated profits if 
 the goods arrived at their destination; and that opinions might 
 vary as to the profit to be made on a particular venture He 
 
 'advised them not to find the valuation excessive unless they 
 thought the goods were valued with an addition of profit greater 
 
STRAITS SETTLEMENTS. 4Sd 
 
 " than could be expected to be realised under any circumstances Sidgkeaves, 
 " which could be reasonably contemplated. This may perhaps be ^gj 
 " too favorable to the assured, as it makes the question whether - — ■ 
 " there is an excess valuation or not depend on whether the valua- Tan Tyb & 
 " tion was so high as to amount, in part at least, to a wager, but AN 1J OE ' 
 " no objection on that ground can be taken by the plaintiffs. And Union- In- 
 " we think that the evidence here was such as to justify the jury stjrance So- 
 " in finding that the valuation of the spirits at least was excessive canton* 1 
 " according to this definition, and this finding cannot be considered 
 " as against the weight of evidence." 
 
 What the learned judges in this case decided therefore was, 
 that they would not grant a new trial on the grounds that the 
 judge who tried the case, was wrong in leaving the matters to the 
 jury, that they were not prepared to say that the jury would have 
 been justified in saying that a valuation of £16,500 upon less than 
 £8,000 or more thau 100 per cent, was excessive, yet they thought 
 that at all events the jury were justified in finding that a valua- 
 tion of £2,800 upon £973 or close upon 200 per cent, was excessive, 
 and that the finding could not be considered as against the weight 
 of evidence. 
 
 The case just referred to, leaves the law upon the subject as 
 it stood before, and it is thus iaid down in the last [1877] edition 
 of Arnold on Marine Insurance, page 303 — immediately after refer- 
 ring to the case of Ionides v. Pender, " In fixing the valuation of 
 " goods," Lord Ellenborough says, " the assured may add to the 
 " first cost the premium and commission, and, if he sees fit, the pro- 
 " bable profit ; or, as he elsewhere puts it, he may stipulate that in 
 case of loss, the loss shall be estimated according to the value of 
 " like goods at the port of delivery." The learned judge thus dis- 
 tinctly admits that the assured may value his goods in the policy, 
 so as greatly to exceed the invoice price, in order to cover the 
 expected profit. And indeed, as Mr. Stevens remarks, " this is 
 " the real advantage that valued policies on goods hold out to 
 " merchants." Conformably, therefore, with the law as I under- 
 stand it, and taking into consideration the evidence adduced on 
 behalf of the defendants by the witnesses who were called not to 
 establish a custom nor even a practice, but to state what they 
 think ought to be the practice under circumstances which, in their 
 experience, have never before arisen, I find myself brought to the 
 conclusion that the 3rd plea of the defendants as well as the others 
 has not been made out and the verdict must be entered for the 
 plaintiffs. 
 
 KADER MYDIN & ORS. v. HADJEE ABDUL KADER. 
 
 The Attorney-General is a necessary party to a suit relating to a charity, although Penang. 
 
 there may be trustees of the charity, capable of enforcing or protecting its rights. 
 
 Wood, J. 
 
 This was a suit to have it declared that certain lands were 1880. 
 
 the subject matter of a charitable devise, under + he Will of one 
 
 Kader Mydin, otherwise called Captain KLing, deceased. The June '• 
 
490 
 
 CIVIL CASES. 
 
 Wood, J, 
 1880. 
 
 plaintiff claimed to represent the charity, being the heir of the 
 late Trustee. On the case being called on, 
 KadebMy- Thomas, for defendant, tooka preliminary objection that the 
 
 din & oes. Attorney-General should have been a party to the suit, and the 
 "■ petition instead of being a petition should have been by way of 
 
 dul kIdee" information — he contended that the Attorney-G-eneral should be 
 made a party as the charity was of a permanent , and not of a 
 temporary nature ; and there was also a prayer for the removal of 
 the defendant the de facto trustee of the charity, and a decree of 
 this Court would materially a,ffect the funds of the charity. The 
 charity was a charity of a public nature being for Mahomedans 
 generally — for the whole of the community of Mahomedans. He 
 cited Lewin on Trusts [Edn : 1861], p. 599; Tudor on Charities, 
 p. 161 ; Wellbeloved v. Jones, 1 Simon & Stuart, p. 40 ; Lord 
 BiOmilly in Ware v. Cumberland, 20 Beav. 503 ; Waldo v. Caley, 15 
 Ves., cited in Wellbeloved v. Jones. The general proposition is, that 
 the Attorney-G-eneral must be a party, where the charity is gene- 
 ral or permanent, and the trustees are not a regular body. 
 
 Van Someren for the Bill. The objection is premature. The 
 suit is in reference to two pieces of land — the one in grant 239 is 
 denied to be Wakoff or charity land. — that in grant No. 149 is ad- 
 mitted to be Wakoff land. No. 149 was never used as a burial 
 ground for the public, but only as the site of the testator's tomb. 
 The Attorney-General is not required "to be a party. There is a 
 distinction between where the working of a charity is already 
 vested in trustees, who are capable of enforcing its rights, or 
 liable to the Court, and where there is none such. In the former 
 case, the Attorney- General is not of necessity a party, in the latter 
 he is. Wellbeloved v. Jones, 1 Simon and Stuart, 40 ; Daniell's 
 Ch. Pr. p. p. 126, 127 [5th Edn.'] ; Mossil v. Lawson, 2 Eq. cases, 
 abridged, p. 47, also reported in 4 Viner's Abridgment, 500. This 
 last case is precisely in point, and is set out at length in Dulce on 
 Charities, 682. Chitty v. Barber, 4 Brown's Ch. C. 38, quoted in 
 Daniell's Ch. Pr., p. 38, is also to the same effect. Here there is 
 a trustee, the plaintiff — Goods of Kader Mydeen, Straits Law 
 Reports, p. 281. 
 
 Wood, J. I am of opinion that the objection is not premature 
 and that the Attorney-General is properly required to be a party, 
 this being a suit relating to charity funds. The case of Mossil v. 
 Lawson is contrary to the general run of authorities, and being a 
 very old case, cannot be looked on as an authority. I shall order 
 the adjournment of the case, so that the plaintiff may insest the 
 name of the Attorney-General as a party. There will be no order 
 for costs. 
 
STRAINS SETTLEMENTS. 
 
 491 
 
 YEO LENG TOW & Co. v. RA.TJTENBERG;, SCHMIDT & Co. 
 
 In cases of breach of contract by the non-delivery of goods knowledge — on the Singapoke. 
 
 part of the party committing the breach, is only of importance [in a question of 
 
 measure of damages] if acted upon and forming part of the contract. Sidgeeaves, 
 
 Knowledge must be brought home to such party, under such circumstances, C. J. 
 that he must have' known that the person he contracts with, reasonably believed 1880. 
 
 that he, [the defaulting party] accepted the contract, with the special condition 
 
 attached to it. August 9. 
 
 "Where therefore the plaintiff entered into a contract with the defendants, for 
 the sale of certain quantities of Cutch leaf, and thereafter, but before any breach, 
 knew that the defendants were purchasing it in order to send on same to Europe for 
 sale, to certain persons there, with whom they had such contract, and ^the plaintiff 
 subsequently committed a breach of his contract, by which the defendants, were 
 unable to fulfil theirs, and had to pay damages to their sub-contractors in 
 c onsequenee, 
 
 Held, that the damages so paid by the defendants to their sub-contractors, were 
 too remote, and could not be recovered [on counter-claim] from the plaintiff, as 
 damages for his breach of contract. 
 
 This was an action for goods sold and delivered ; the facts 
 fully appear in the judgment. 
 
 T. Braddell, [Attorney -General] for plaintiffs. 
 Davidson, for defendants. 
 
 Cur. Adv. Vult. 
 
 On this day judgment was delivered by 
 
 Sidgreaves, C. J. In this case the plaintiffs claimed from the 
 defendants $7,522.65, being the balance due for Cutch supplied by 
 them to the defendants on various occasions, from the 1st October, 
 1879, to the 14th January, 1880, both inclusive. The value of the 
 entire amount supplied was $33,359.69, and payments on account 
 had been made amounting to $25,837.04, leaving the balance as 
 above stated. 
 
 A s regards the balance, the defendant by their statement of 
 defence and counter-claim, bring into Court the sum of $884.60, 
 which they say is enough to satisfy the plaintiffs claim. The cir- 
 cumstances under which the Cutch was sold to the defendants are 
 set out in the counter claim as follows : — 
 
 " On the 17th day of September last, the plaintiffs offered to sell to the 
 defendants 2,000 boxes of Cutch at the price of §5.80 per picul, such offer to 
 be binding on the plaintiffs till 5 p. m., on the 22nd day of the said month of 
 September, and on the 22nd day of the said month of September, the defendants 
 informed the plaintiffs that they had sold the said Cutch, and the plaintiffs 
 thereupon sold to the defendants the said 2,000 boxes" of Cutch at the price of 
 $5.80 per picul, and upon the terms that the plaintiffs would deliver the same at 
 the defendants' godowns within five weeks from the said 22nd day of Septem- 
 ber, but except as to 1,890 boxes, the plaintiffs failed to deliver the said Cutch 
 within the said five weeks, whereby the defendants lost the benefit of the 
 said sale made by them, and became liable in damages for breach of their 
 contract and loss in exchange and freight, and sustained other losses and 
 
 On the 26th day of September last, the plaintiffs offered to sell to the 
 defendants another 2,000 cases of Cutch at the price of $6 per picul, such offer 
 to be binding on the plaintiffs till 5 p. m., on the 30th day of the said month 
 of September, and on the 29th day of the said month of September, the 
 defendants informed the plaintiffs that they had sold the said Cutch, and the 
 plaintiff thereupon sold to the defendants the said 2,000 cases of Cutch at the 
 
m 
 
 CIVIL CASES. 
 
 SlDGREAVES, 
 
 C. J. 
 
 1S78. 
 
 Yeo Leng 
 Tow & Co. 
 
 V. 
 
 Ratjten- 
 
 BEBG, 
 
 Schmidt & 
 Co. 
 
 price of $6 per picul, and upon the terms that the plaintiffs would deliver the 
 same at the plaintiffs' godowns within six weeks from the said 29th day of 
 September, but the plaintiffs failed to deliver the said Cutch within the said 
 six weeks, whereby the defendants lost the benefit of the said sale made by 
 them, and became liable in damages for breach of their contract and loss" in 
 exchange and in freight, and sustained other losses and damages. 
 
 On the 4th day of October last, the plaintiffs offered to sell to the de- 
 fendants another 3,000 boxes of Cutch at the price of $5.90 per picul, such 
 offer to be binding on the plaintiffs till 5 p. m.; on the 7th day of the said 
 month of October, and on the said 7th day of October the defendants infor- 
 med the plaintiffs that they had sold the said Outch, and the plaintiffs there- 
 upon sold to the defendants the said 3,000 boxes of Cutch at the price of 
 $5.90 per picul, and upon the terms that the plaintiffs would deliver the same 
 at the detendants' godowns within six weeks from the said 7th day of Oc- 
 tober 1879, but the plaintiffs failed to deliver the said Cutch within the said 
 six weeks, whereby the defendants lost the benefit of the said sale made by 
 them, and became liable in damages for breach of their contract, and loss in 
 exchange and in freight, and sustained other losses and damages. 
 
 The offers to sell made by the plaintiffs to the defendants were made for 
 the purpose of enabling the defendants to sell the said Cutch, and the sales 
 by the plaintiffs to the defendants were made with the full knowledge that 
 the defendants had already sold the said Cutch, and that time was of the 
 essence of the contract of 
 
 With the counter-claim the defendants delivered particulars 
 of damages for which the defendants became liable to their pur- 
 chasers for breach of their contract, for the sale by them of 
 the Cutch contracted and purchased by them from the plaintiffs, 
 and which damages the defendants seek to recover from the 
 plaintiffs "$4,500 damages for breach of contract of sale of 
 " 100 tons of Cutch made 4/6 October, 1879, to George A. Alden & 
 " Co., of Boston, at 21s. 6d. per cwt., to be shipped at Singapore, 
 " before the end of November, 1879." 
 
 In the reply, after admitting that the Cutch was agreed to be 
 sold in the quantities for the prices, and for delivery within the 
 times mentioned in the Gounter-claim, the plaintiffs say : — 
 
 " That about the time of the expiration of the five weeks allowed for the 
 delivery of the first lot of 2,000 boxes of Outch above mentioned, the plaintiffs 
 informed the defendants that in consequence of disturbances in Burmah, the 
 plaintiffs would not be able to procure the 3 parcels of Cutch agreed to be 
 sold as above set out in time for delivery as agreed on, whereupon the defend- 
 ants waived the condition as to the time of delivery in contract of sale, and 
 requested the plaintiffs to procure the said Cutch and to deliver the same 
 to them when the Cutch should arrive, and in consequence of and in purui- 
 ance of the defendants' said request and agreement, the plaintiffs procured 
 the several quantities of Cutch and delivered the same to the defendants at 
 the times, and in the quantities set out in the particulars of the plaintiffs' 
 •T^IT 10 ^ the P lalntlfEs suffered a heavy loss from the fact of the price 
 ot Outch having gone up much beyond the prices agreed upon, and the de- 
 fendants accepted the said deliveries in satisfaction of the said contract. 
 
 The plaintiffs deny that the defendants informed the plaintiffs that the 
 defendants had sold the several parcels of Cutch to any other person or had 
 informed the plaintiffs of the intended destination of the odid Cutch 
 
 The nlamtiffs do not admit that the defendants sold the scid Cutch or 
 any of it to any other person, or that by reason of the delivery of the said 
 thJwfifnf ^13 ^T? Uie times originally agreed, the defendants lost 
 the benefit of any sale of the said Cutch or became liable in damages for any 
 wfiSSthio" eXC ^eand freighter had othe? losses o^ 
 
STRAITS SETTLEMENTS. 
 
 493 
 
 The defendants who are merchants in Singapore deal amongst Sidgbeateb, 
 
 other things in Cutch, an article not in use apparently in the Straits, 
 hut purchased here, especially good Eangoon quality, for exporta- 
 tion to Europe and America. 
 
 The defendants had purchased Cutch from the plaintiffs on 
 former occasions, on what are called firm-offers, and on the present" 
 occasion, the negotiations were conducted through firm-offers. On 
 the 17th September the plaintiffs signed the following firm-offer: — 
 
 " Teo Leng Tow and Co., offer Firm to Rautenberg, Schmidt and Co., 
 till 5 p. m., the 22nd inst., Monday, 2,000 boxes Cutch in gunnies, good dry 
 quality at $5.80 per picul, say five dollars eighty cents. 
 
 Singapore, 17th September, 1879." 
 
 The 2nd was made on the 26th September, the offer being till 
 
 5 p.m., on Tuesday, the 30th inst., 2,000 cases at $6 a picul, delivery 
 
 6 weeks. 
 
 The 3rd on the 4th October, for 3,000 boxes till Tuesday, 
 7th October, 5 p. m., delivery within 6 weeks. Mr. Herwig, the 
 the partner in the defendants' firm, by whom the transactions 
 were conducted, says, that these firm-offers are well known in the 
 trade, and that it is the regular way of doing business and used 
 extensively in Singapore ; that the object is to enable the intend- 
 ing purchaser to make an offer in Europe or America, and if that 
 is accepted the offer is closed with. Otber witnesses, merchants 
 in Singapore, were called to explain what they understood by firm- 
 offers, and the matter seems simple enough. A Chinese firm, or 
 indeed a firm of any nationality trading in Singapore, has produce 
 to sell and go to another firm, probably an European firm, and ask 
 if they can dispose of it. The firm applied to, either do not want it at 
 all, or if i hey think they can make a profit by the sale of it, and 
 have no enquiry on hand for the article, wish for a few days 
 to make enquiries to see if they can " place " it advantageously. 
 The proposing seller agrees to give them this time and by signing 
 the firm-offer binds himself to let them have the produce on the 
 terms therein stated provided they accept the offer within the 
 time therein mentioned If the enquiring purchaser finds that it 
 will suit him to buy, then a regular contract is entered into. In 
 the present case, it did suit the defendants after telegraphing to 
 America to make enquiries to buy, and accordingly contracts were 
 entered into, the 1st, on the 2nd September [about which however 
 no question arises,] the 2nd on the 29th September, whereby the 
 defendants agreed to buy and the plaintiffs to sell, delivery in 
 purchasers' godown within 6 weeks, 2,000 cases of Cutch at $6 per 
 picul, and the 3rd agreement was entered into in like manner on 
 the 7th October, 1879, for the purchase and sale of 3,000 boxes 
 Cutch, delivery within 6 weeks. The time for delivering the Cutch 
 under the 2nd contract expired on the 11th November, under the 
 3rd contract on the 18th November. No delivery of Cutch was 
 made under either of those contracts within the time specified. 
 According to the particulars of demand, the first Cutch delivered 
 under these contracts was, on the 12th December, when 2,000 boxes 
 
 C. J. 
 
 1880. 
 
 Yeo Leng 
 
 Tow & Co. 
 
 v. 
 
 Kauten- 
 
 BERG, 
 
 Schmidt & 
 Co. 
 
CIVIL OASES. 
 
 Sid&beaves, -were delivered, the remainder being delivered on the 17th of that 
 
 C.J. 
 
 1880. 
 
 Teo Leng 
 Tow & Co. 
 
 V. 
 
 Ratjten- 
 
 BERG, 
 
 Schmidt & 
 Co. 
 
 month, and on the 2nd, 7th and 14th January. There was there- 
 fore, a clear breach of the contract as regards the delivering -with- 
 in the times mentioned in the contract. The plaintiffs' contention 
 was, that Mr. Herwig, representing the defendants, had waived 
 the question of time and had told them that 3 weeks or 5 weeks 
 after the time was nothing, and that relying upon that waiver 
 of time, they bought the Cutch at a considerably higher 
 price than the contract price in order to fulfil the contracts. 
 Mr. Herwig denies this altogether, although he does say that 
 he told plaintiffs that a delay of a few days would not make 
 any difference. 
 
 After carefully weighing the evidence on both sides, I am 
 brought to the conclusion that there was no such waiver of time 
 as that spoken to by the plaintiffs. 
 
 Mr Herwig in his evidence gave us the substance of the tele- 
 grams sent to his agents at Boston, and their replies ; it was ob- 
 vious that he was only buying this Cutch to sell again, and there 
 must have been a time within which such re-sale mast have been 
 effected. He tells us that it was inferred from their key by their 
 agents at Boston, from the telegrams sent, that shipment was to 
 be made in the same or the succeeding month — the 2nd contract 
 being made on the 29th September, he was bound to ship by the 
 end of October, and the 3rd contract being made on the 7th Octo- 
 ber, he was bound to ship by the end of November, possibly both 
 shipments would have been in time if made by the end of Novem- 
 ber. It is highly improbable under those circumstances, that Mr. 
 Herwig would have waived his right to deliveries which would have 
 enabled him to perform the contracts which his agents had entered 
 into on his behalf. 
 
 But putting the case as strongly as the plaintiffs put it them- 
 selves, and allowing an extension of time of from 3 to 5 weeks, they 
 yet failed to deliver even within that time over 2,200 boxes of 
 the Cutch under the 3rd contract The time for the completion of 
 that contract expiring on the 18th November, the deliveries on the 
 8th, 14th and 16th January were made considerably beyond even 
 the extended period. 
 
 The documents put in evidence, the proposed letter of the 4th 
 November, the letter of the 13th November from defendants insist- 
 ing upon their claim, and the notice of action of the 20 th Novem- 
 ber, all tend to show that the defendants had not waived or aban- 
 doned this essential part of their contracts. 
 
 It was argued on behalf of the plaintiffs that they would not 
 have paid the high price for the Cutch which they did, but would 
 have elected to abandon the contract altogether if they had not 
 felt sure that the Cutch so obtained was to be received in satisfac- 
 tion of the contracts. Possibly it might have been a better thing 
 for them so to have elected, but they must have known that they 
 were rendering themselves liable to an action and to damages of 
 an uncertain amount, and they may have hoped to avoid both by 
 delivering the Cutch as quickly as they could, they knew that they 
 were bound to fulfil their contract for the delivery of a certain 
 
STRAITS SETTLEMENTS. 495 
 
 quantity of Cutch, and they may have considered that it was their Sidokeaves, 
 best policy to deliver it, and as a matter of fact, as certain of the c - £• 
 sub-vendees received the late delivery in fulfilment of the defend- __ 
 ants' contracts with them, the plaintiffs have by such late delivery Yeo Lens 
 avoided to that extent the damages which otherwise they might Tow & Co - 
 have incurred. There being therefore a breach of the contracts Ea u T en- 
 and no proof of a recision of the contracts or waiver of the breach, berg, 
 the sole question remaining is, upon what principle are the damages Schmidt & 
 to be assessed, in other words how much are the defendants Co " 
 entitled to deduct from the plaintiffs' claim by way of counter- 
 claim? The defendants' claim to be reimbursed for having lost 
 the benefit of the sales, and for having become liable in damages 
 for breach of their contracts, and for the loss in exchange and 
 freight. 
 
 It will be seen that if the plaintiffs have to pay the defendants 
 not only for the loss of profits which the defendants themselves 
 might have made, but also for the damages for which they, the 
 defendants, are liable to the persons to whom they re-sold, the 
 plaintiff may have made themselvesliableto a very heavy claim and 
 the selling of produce in this way may be accompanied by very 
 serious perils. 
 
 On the other hand the defendants, if they are not able to 
 recover their claim from the plaintiffs, may find themselves in- 
 volved in a very heavy loss without any default of their own. But 
 the fact is that the Law, whilst scrupulous to carry out the terms 
 upon which contracting parties have agreed, will not allow parties 
 to a contract to be taken unawares — they must, at all events, 
 clearly understand what it is they are engaging to do, and if 
 they agree to extraordinary conditions, with their eyes open, 
 the party who commits a breach of tbem is responsible for the 
 consequences. 
 
 In the present case the knowledge on the part of the plaintiffs 
 that the Cutch was bought for sale in Europe or America, and 
 that the firm-offers were made for the purpose of enabling the 
 defendants so to dispose of it, were relied upon as showing that 
 the plaintiffs must have been aware at the time of making the 
 contract that they would be liable on breach to recoup the defend- 
 ants for the damages claimed by the sub-vendees. 
 
 The plaintiffs deny that they ever had that knowledge, and it 
 is quite clear both from Mr. Herwig's evidence and that of the 
 plaintiffs' manager, that plaintiffs on the 4th November before 
 any breach of either the 2nd or 3rd contract, positively refused to 
 sign a letter which contained an admission that they were liable 
 to indemnify the sub-vendees. 
 
 I take it for granted, however, that the plaintiffs knew that 
 the Cutch was being bought to be sold again, and it is difficult to 
 resist the conclusion that they were aware that it was to be sold 
 in Europe or America. Have they thereby made themselves liable 
 for the damages claimed by the defendants {> I am clearly of 
 opinion that they have not and that they could not do so unless 
 such knowledge was acted upon and formed the basis of the con- 
 tract. 
 
496 
 
 CIVIL CASES. 
 
 SlDGEEAVES, 
 
 C. J. 
 1880. 
 
 Teo Leno 
 Tow & Co. 
 
 v. 
 Ratjten- 
 
 BEBO, 
 
 Schmidt & 
 Co. 
 
 In the British Columbia Saw Mill Co. v. Nettleship, 3 L. R. C. 
 P. p. 499, the defendant failed to deliver a case containing machi- 
 nery intended for the erection of a saw-mill at Vancouver's Island, 
 and without which the mill could not be erected, and the question 
 was to what damages were the plaintiffs entitled. In delivering 
 judgment, Willes, J. said : 
 
 " What then is the rule which ought to govern a case of this sort ? I am 
 disposed to take the narrow view, that one of two contracting parties ought 
 not to be allowed to obtain advantage which he has not paid for. The con- 
 clusion at which we are invited to arrive would fix upon the ship-owner, be- 
 yond the value of the things lost, and the freight, the further liability to 
 account to the intended mill-owners, in the event of a portion of the 
 machinery not arriving at all or arriving too late through accident or his 
 default, for the full profits they might have made by the use of the mill if the 
 trade were successful, and without a rival. If that had been ' presented to 
 the mind of the ship-owner at the time of making the contract, as the basis 
 upon which he was contracting, he would at once have rejected it. And 
 though he knew from the shippers the use they intended to make of the 
 articles, it could not be contended that the mere fact of knowledge, without 
 more, would be a reason for imposing upon him a greater degree of liability 
 than would otherwise hane been oast upon him. To my mind, that leads to 
 the inevitable conclusion that the mere fact of the knowledge cannot increase 
 the liability. The knowledge must be brought home to the party sought to be 
 charged, under such circumstances that he must know that the person he 
 contracts with reasonably believes that he accepts the contract with the 
 special condition attached to it." 
 
 " Knowledge on the part of the carrier is only important if it forms part 
 of the contract. It may be that the knowledge is acquired casually from a 
 stranger, the person to whom the goods belpng not knowing or caring whether 
 he had such knowledge or not. Knowledge in effect can only be evidence of 
 fraud, or of an understanding by both parties that the contract is based 
 upon the circumstances which are communicated." 
 
 In the present case there was no Cutch to be had in the market 
 at the time when the breaches of contract took place, so that the 
 ordinary course of the purchaser going into the market and 
 getting the article, and then charging the seller with the difference 
 between the contract and the market price could not be resorted to. 
 
 To use the words of Erie, C. J. in Barries and others v. Hut- 
 chinson, 34 L. J. N. S. C. P. 171 : 
 
 " But if however, the article is one for which there is no market, another 
 principle for estimating the damages must be resorted to, and according to 
 the rule laid down in Hadley v. Baxendale, the vendor is to pay such damages 
 as at the time of the contract he may fairly and reasonably be considered to 
 have had noticed that he would be liable for in case of breach of such contract." 
 
 This case of Barries and others v. Hutchinson bears a marked 
 resemblance to the one now under consideration. In that case the 
 head note is as follows : 
 
 "Plaintiffs bought caustic soda of the defendant, part to be shipped in 
 June, part m July and the rest in August. The defendant knew at the time 
 of the sale that the plaintiffs bought to sell again on the continent, and that 
 it was to be shipped from Hull but not that it was for Russia, although he 
 learned this also before the end of August. The defendant neglectfd to 
 deliver any such soda during the time contracted for, but he delivered a por- 
 
STRAITS SETTLEMENTS, '497 
 
 tion in September and October. There was no market for caustic Boda, Sidgheatsb, 
 
 and the plaintiffs who had contracted for the re-sale of the soda to H, a 
 Merchant in Russia, lost the profit on such re-sale in respect of the soda 
 which was not delivered at all, and by reason of the approach of winter in the 
 Baltic were obliged to pay an increased rate of freight and insurance on the 
 shipment of the soda which was delivered in September and October. 
 
 Held, that the damages which the plaintiffs were entitled to recover for 
 the defendant's breach of contract were the loss of profit on the sale to 
 
 and also the cost of such increased rate of freight and insurance, 
 
 H 
 
 but not the damages the plaintiffs paid 
 made by him to a consumer of the article " 
 
 H. in respect of a sub-sale 
 
 As to the damages claimed iu respect of the sub- 
 Erie, C. J. says : — 
 
 " The plaintiffs have also claimed damages by reason of the sub-sale 
 from Heitmannto Heinburger. If the goods had been delivered to Heitmann 
 and he had delivered them to Heinburger, there would have been a profit 
 to Heitmann of £159 which he has claimed from the plaintiffs, and this the 
 plaintiffs now claim from the defendant. I think this' too remote. The defend- 
 ant had no notice of this at the time of his contract, and without such notice 
 his liability is not to go on for any number of sub-sales. The defendant is 
 therefore not answerable for this loss as it is not the direct consequence of 
 his breach of contract." 
 
 Applying those principles to the present case, I consider that 
 the defendants are not entitled to charge the plaintiffs With their 
 own liability in damages to their sub-vendees. It was arranged 
 at the trial that the parties, or their Advocates should assess 
 the damages, if I would lay down the principles by which they 
 were to be guided. 
 
 The defendants are entitled to set off against the plaintiffs' 
 claim, the actual loss of profits which they have sustained by 
 reason of the plaintiffs' breach of contract, that is, the net profits 
 which they would have made if the cutch had been delivered in 
 time. 
 
 In estimating this, the profits made on the sale of the reject- 
 ed 75 tons of cutch will have to be taken into consideration in 
 favour of the plaintiffs. The defendants are also entitled to 
 charge the plaintiffs with the loss on exchange and on freight, but 
 not for the cost of the telegrams — subject to what deductions 
 may be made upon these grounds, the plaintiffs are entitled to a 
 verdict for the balance. 
 
 C.J. 
 
 1880. 
 
 Teo Leno 
 Tow & Co. 
 
 v. 
 Kauten- 
 
 SOHMIDT & 
 
 Co. 
 
 In re ARBITRATION OF OPIUM FARMERS. 
 
 The Opium Farmer by his contract with the Crown, under the Excise Ordinance Pbkanq. 
 
 4 of 1870, covenants not to sell opium in the Settlement during the last three months 
 
 of his exclusive privileges, at an under-rate. Several of the partners in the Penang Fobd, J. 
 Parm had shares in certain other farms in foreign adjoining territory— one at Perak issi, 
 and another at Kedah. The former farm was carried on under the same name as the _j~u 
 
 Penang Parm— the latter was not, but that farm and the Penang Parm had January 10. 
 * common head-manager. The Perak Parm during the last few days of the 
 exclusive privileges of the Penang Parm, sold opium in Perak territory, imme- 
 diately next to Province Wellesley, to natives of Province "Wellesley, below the usual 
 rates, and so spoilt the Penang incoming Parmer's market in the Province. The com- 
 mon manager of the Penang and Kedah Farms had also exported several chests of opium 
 from Penang to Kedah, there prepared the opium, and re-imported the same intq 
 
498 CIVIL OASES. 
 
 Bobd, J. Penang, and here sold them in the name of the Ke dah Farm, at an under-rate, [at the 
 1881. same time as the Perak Farm was floodingUie Province by their acts,] and so also flooded 
 
 the Penang incoming Parmer's market in Penang. The incoming farmer having 
 
 In re Aeei- charged the outgoing fanner, before His Excellency the Governor, with breach of his 
 
 tration, contract generally, arbitrators were appointed in terms of the Ordinance, to enquire into 
 
 Opium Fas,- the same and make their award. X'he majority of the arbitrators found these matters 
 
 mees. proved, and awarded a large sum to the new farmer accordingly. On the award being 
 
 brought up by the old farmer into this Court, the same was set aside as being in excess 
 
 of the arbitrators' jurisdiction. 
 
 Held, on appeal [modifying the judgment of the Court below,] that the award was 
 rightly set aside as regarded the Perak Farm, as those acts, though injurious, and proba- 
 bly intentionally done, did not take place in this Settlement, but as regarded the Kedah 
 Farm, the arbitrators might well have found, as in fact they did, that the acts were those 
 of the Penang Farm, under the disguise of the Kedah Farm, and upheld their award in 
 that respect. - — 
 
 Ross, had obtained a rule calling on the present Opium Farmer 
 to shew cause why a certain award made by the majority of the 
 arbitrators appointed under the Excise Ordinance 4 of 1870 
 should not be. set aside on the ground that they had exceeded their 
 jurisdiction, and their award, both verbal and in writing, was bad 
 in law. It appeared that the arbitrators had awarded a large sum 
 of money for what they deemed were two breaches by the late 
 farmer, of the Ordinance and his own contract. Istly, in that he 
 was also the farmer at Parit Buntar, on the Perak territory, 
 adjoining the border of Province Wellesley, and had there, during 
 the last few days of his privileges in this Settlement, sold opium 
 at an under value, to coolies and other people, residents of Pro- 
 vince Wellesley, at a very low rate, and in that way, flooded the. 
 Province with opium, and spoilt the new [the incoming] Farmer's 
 market. 2ndly, in exporting certain chests of opium from here to 
 Qualla Muda in Kedah, to a farm there, preparing it, and import- 
 ing the same into this Settlement in the name of the Kedah Farm, 
 and as such, through their common manager, selling the same, 
 under the ordinary Penang rate, and spoilt the incoming Farmer's 
 market. The arbitrators appointed, were three in number ; but 
 the remaining one, dissented from the award of his colleagues, 
 both on the ground that the evidence did not support the charge 
 that these were the acts of the outgoing farmer; and even if 
 proved, that it was beyond their jurisdiction to make any award 
 in respect thereof. Some of the partners of the out-going farm 
 held a few shares in the Kedah Farm. It was the same as regarded 
 the farm at Parit Buntar : the Parit Buntar Farm was carried 
 on under the same name as the Penang one ; the Kedah Farm 
 under a different name. 
 
 Van Someren [Thomas with him] for the new farmer, 
 shewed cause. 
 
 Ford, J. considered that in both cases the majority of arbitra- 
 tors had exceeded their powers, — and set aside the whole of their 
 proceedings, making the rule absolute. 
 
 1st April, 1883. The new farmer appealed against this deci- 
 sion. The appeal now came on to be heard before Sidgreaves, 
 C. J., Ford and Wood, J. J. 
 
 Van Someren, for appellant. 
 
 Boss, for respondent. 
 
 Cur, Adv, Vult. 
 
STRAITS SETTLEMENTS. *99 
 
 April 6. The judgment of the Court was now delivered by Sidgmavm, 
 
 Wood, J. ' In this case we are unanimously of opinion that the FoB £" ?" 
 judgment of the Court below should be modified by disallowing Wood J J - Jr 
 the award so far as it relates to the sale of chandoo at Parit 1881. 
 Buntar, in Perak territory, but that it should be confirmed so x ^Ta^bi- 
 far as relates to the sale of chandoo in Penang^ imported from tbation, " 
 Qualla Muda. Opium Fa'b- 
 
 With respect to the former, the sale of chandoo at Parit Bun- MERS - 
 tar, we are of opinion, that such sale by the old farmers, injurious 
 as it might be, and perhaps intentionally was, to the new farmers, 
 was yet a legal act on the part of the old farmers in their capacity 
 of farmers of Perak, and not the subject of investigation and 
 award by the arbitrators, which investigation was obviously con- 
 fined to matters. of covenant within the Settlement of Penang. 
 
 The sale of chandoo in Penang stands upon other ground. 
 The facts as established by the affidavits, ws take to be as follows : 
 
 What is referred to the arbitrators is a difference arising as 
 to chandoo sold by the old farmers during the last three months of 
 their farm, and it was charged against them that they sold at 
 Penang a certain quantity of chandoo at low rates, which chandoo 
 had been manufactured at Qualla Muda, and sold in Penang by Oh 
 Tek Leang the Manager, both of the Penang and the Qualla Muda 
 Farms. As to this, the arbitrators award that the charge with res- 
 pect to the Qualla Muda Farm had been proved to the extent of a 
 certain number of taels imported from Qualla Muda by Oh Tek 
 Leang, and sold by him in Penang. 
 
 This was substantially the finding of the arbitrators, and we 
 have to decide, not in the least, as to whether they judged justly of 
 the facts or even the law of the case generally, but whether as a 
 matter of dry law the consideration of this matter, was within their 
 jurisdiction. 
 
 As undisputed matter of fact, the farms of Qualla Muda and 
 Penang were composed of different co-partners, and we think that 
 it wonld be erroneous to aver that they were the same farm or 
 branch farms, one of the other. With the reasons of the arbitra- 
 tors, however, or their errors in judgment, we have nothing to do, 
 but we do see that, arriving at the conclusion by a reasoning of 
 their own, they find that the sale of the opium by Oh Tek Leang, 
 was a sale by the Penang Farmers through the disguise of the 
 Qualla Muda Farm,— a conclusion we may add which, so far as we 
 are enabled to judge of the facts of the case, we have the satisfac- 
 tion of thinking, was reasonable and just. 
 
 The other objections to the judgment of the Court below we 
 have already adverted to in argument. 
 
 Mr. Justice Ford, while concurring with the above judgment, 
 wishes to add that in his opinion the Qualla Muda agent in 
 Penang may well be considered to have been the agent also of the 
 old Penang Farm in the sale of the chandoo imported from Qualla 
 Muda. 
 
 We accordingly think that the money amount awarded by the 
 arbitrators should be reduced by. $2,730, which is $2,800 less 2| 
 per cent., that ratio being in round numbers, the amount of depre- 
 
sou 
 
 CIVIL CASES. 
 
 SrooMAvsB, elation to which the $8,218 has been subjected by the arbitrators, 
 
 w c> '• when they found for $8,000, in respect of the two breaches jointly. 
 
 Woo D d] j - J - The award therefore will stand for $5,270. As we think that 
 
 1881. each party should pay their own costs, there will accordingly be 
 
 , — T no costs of this appeal. 
 
 /rn-eARM- r ' Order accordingly, 
 
 T RATIO Nj 
 
 Opium Fab- 
 
 MKBS. 
 
 Penang, 
 
 Wood, J. 
 1881. 
 
 May 9. 
 
 GOTTLIEB v. HEEVEY. 
 
 Where the Court has once given leave to plaintiff to commence his suit in a 
 Settlement, under section 65 of the Civil Procedure Ordinance 1878, it will not, as a 
 rule, vary the order— especially where proceedings have been commenced thereunder. 
 
 Van Someren moved on behalf of defendant, for an order — 
 under section 65 of Ordinance V. of 1878",. removing this suit to 
 Singapore or Malacca for trial, [a] He referred to several 
 affidavits, and contended that the evidence in the case was such, as 
 required a removal of it from this Settlement. 
 
 Kershaw, for plaintiff, Submitted that no order could be made, 
 as he had already obtained leave to bring the action here and had 
 commenced proceedings thereunder. 
 
 Van Someren submitted that was on an ex-pdrte application. 
 
 Wood, J. The application is dismissed, the costs thereof to 
 be costs in the cause. 
 
 Pknano. 
 
 Wood, J. 
 1881. 
 
 June 15. 
 
 HAJEE ABDULLAH & OES. v. KHOO TEAN TEK & ANOE. 
 
 Lands of a charity — the Mahomedan church — were vested in the Crown ; the 
 defendants wrongfully entered a portion thereof and commenced building there j 
 the Emam, Khatib and elders of the congregation of the church — who were in pos- 
 session of the church and landSj sued the defendant and obtained an injunction 
 restraining them from continuing the building. 
 
 Held, on demurrer, that the plaintiffs could not maintain the suit. 
 
 The Court on allowing the demurrer, continued the injunction on certain terms 
 which were complied with by the plaintiffs. The defendants did not then object to 
 this j but three months after, moved to have the injunction dissolved, as the allow- 
 ance of the demurrer had in law, put an end to the plaintiffs' suit, and the injunc- 
 tion, which went with it. 
 
 Held, they were too late, and their application now was practically an appeal 
 against that decision, which could not be allowed. 
 
 The Court will, on an ex-pwrte application, give leave to amend all proceedings, 
 by making the Attorney-General plaintiff, and adapting the pleadings to such new 
 state of things. 
 
 This was a demurrer to a statement of claim. The suit was 
 brought by the plaintiffs the Emam, Khatib and other leading 
 
 [a] The following is the section alluded to : " 65. Suits against persons resi- 
 dent m the Colony shall ordinarily be brought in the Settlement where the defend- 
 ant resides j or, if there be two or more defendants, at the Settlement, where one of 
 them resides ; but if it be made to appear to the Court, on the application of either 
 party to be more convenient, in any case, to allow a suit to be brought, removed to 
 or continued at any Settlement, or if all parties to the suit agree, the Court may 
 allow the suit to be brought, rempved to or continued at such Settlement," 
 
STRAITS SETTLEMENTS. 501 
 
 members of the congregation, meeting at the Mahoinedah Mosque w^omj, J" 
 at Chulia Street, Penang, commonly called the Kling Mosque : l J^' 
 and the object of the suit was to have a declaration that certain Hajee Ab. 
 lands adjoining the mosque, and on which the defendants had duelah 
 wrongfully entered and inclosed, were part of the mosque land- & ™ s ' 
 and. for an injunction restraining the defendants from continuing KhooTean 
 the erection of a building they were then in the course of putting Tek & anob. 
 up on the portion of the land so encroached on. The statement 
 of claim, after shewing that the lands had been granted by the 
 Crown, " to the Mahomedan Church," and that no trustee had been 
 legally appointed, and this Court had in a previous suit held that, 
 as there were no nominees in the grant, the fee simple in the land 
 was vested in the Crown, with whom it lay, as parens patriot to 
 appoint trustees — went on to state, that application for that pur- 
 pose had been made to the Crown, and was then under consider- 
 ation by the Government, but the defendants having broken and 
 entered the said land, and was hurriedly putting up a building for 
 purposes which were repugnant to the Mahomedan religion, usage 
 and custom, it was desirous of having this building at once discon- 
 tinued, and prayed for an injunction. Mr. Justice Ford had, on 
 the petition being amended, by shewing by metes and bounds 
 what portion of the land had been encroached on, and praying for 
 a declaration that such portion was mosque land — granted an 
 interim injunction, — on the ex-parte application of the plaintiffs—- 
 restraining the defendants, their servants, agents, workmen and 
 labourers from continuing to erect such building. This injunction 
 was duly issued, served and obeyed. The defendants now demur- 
 red to this amended statement of claim, assigning for cause that 
 the plaintiffs had shewn no ground in equity, to maintain the suit. 
 
 E. W. Presgrave, for the demurrer. The bill shews that a 
 decree had been made to the effect that the fee simple was vested 
 in the Crown, and so the plaintiffs have no locus standi in this suit, 
 as being merely Khatib and members of the congregation. On 
 moving for the injunction, counsel for the plaintiffs had compared 
 this case to that of Commoners, and cited Hail v. Byron, 4 L. E. 
 Ch. Div. 667 : but there is no analogy between . the two cases. 
 Here the plaintiffs have no definite rights which have been 
 invaded. 
 
 Van Sovneren contra, contended that the plaintiffs were inter- 
 ested in the mosque and were parties in possession suing a wrong 
 doer; that the plaintiffs had a right which a Court of Equity 
 would recognize, and cited Temple v. London and' Birmingliam 
 Railway Go., 9 Simon, 209. 
 
 Wood, J. I am of opinion that the plaintiffs have not shewn 
 such a tangible right or tangible grievance, as a Court of Equity 
 can support, on the facts mentioned in the statement of claim. 
 On these facts the defendants appear to have committed a tangi- 
 ble wrong to the church lands in which the plaintiffs, as represent- 
 ing the Mahomedan church, have a direct subject of complaint, 
 inasmuch as the defendants are alleged to have intruded uu the 
 church lands, but I am of opinion that il iey have misconceived 
 their right of aotion. With the help of the Attorney-General, the 1 
 
502 CIVIL OASES. 
 
 Wood, J. 
 1881. 
 
 plaintiffs probably could, by a different form of claim, obtain 
 
 substantial redress, but at present tbey cannot. I shall there- 
 
 Hajee AbI f° re > while deciding in f avor of the defendants ' on the demurrer, 
 
 dullah continue the injunction, and give leave to the plaintiffs to amend 
 
 & obs. their statement of claim, if their counsel will give an undertaking 
 
 Khoo Tean a * once to communicate with the Crown, and to act promptly in 
 
 Tek & anob. the matter. The demurrer will be allowed with costs. 
 
 Demurrer allowed. 
 
 The undertaking was immediately given, and the injunction 
 continued. Communication was had with the Crown in the 
 matter, and pending the receipt of the reply, the defendants 
 obtained a rule nisi to have the injunction dissolved, and the suit 
 dismissed. 
 
 September 12. Presgrdve, for defendants, in support of the 
 rule urged, that the suit having been virtually put at end to by 
 the demurrer, which went to the root of the plaintiffs' claim, he 
 was entitled to have the injunction dissolved then — the injunction 
 in fact, went with the bill and cited Hinder v. Legardi, 9 Beav. 468. 
 
 Van Someren shewed cause, and contended, that whatever 
 might have been the defendants' right at the time the demurrer 
 was allowed;, it was clear the Court had then expressly preserved 
 the injunction — if that order was erroneous in point of law, the 
 defendants should have appealed against it — they had not done it, 
 and it was now too late to question the decision of the Court — 
 this was in fact an appeal against that decision. 
 
 [Wood, J. I am of that opinion, and must discharge the rule 
 on that ground.] 
 
 Presgrave, then urged that he was entitled to have the injunc- 
 tion dissolved on the ground of lapse of time. 
 
 Wood, J. I am of opinion that mere lapse of three months, 
 without its being shewn that there was ground for imputing speci- 
 fic negligence, [as if a day had been fixed and not adhered to,l 
 does not enable the Court to hold that the injunction should be 
 dissolved on the ground of unreasonable time having elapsed for 
 the plaintiffs to obtain leave of the Crown, to sue in the name 
 of the Attorney-General. The rule will be discharged,but the 
 costs will be costs in the cause. 
 
 Rule discharged. 
 
 Au The Pontiffs having obtained leave to use the name of the 
 Attorney-General, 
 
 Van Someren now moved, ex-pwrte, for an order to amend the 
 pleadings by inserting the name of the Attorney-General as plain- 
 tin:, and adapting the pleadings to such new state of facts. 
 
 ,* jT 9rmd ob J ected that the application could not be made 
 ex-parte. 
 
 BoardTf I^TVwVo^ ° f Suthe ^^ t. Tunstall Local 
 C^^R Ch Dil.Sl 44 ' and CaMWel1 V - Pa 9ham Earoour 
 Wood, J., on the authorities, allowed the amendment to be - 
 made, on payment of the costs occasioned thereby? 
 
 Order accordingly. 
 
STRAUS SETTLEMENTS. 
 
 503. 
 
 JAMALUDIN v. HAJEE ABDULLAH. 
 
 The plaintiff claimed lo be Khatib and Eniam [priest] of a Mahotuedan mosque, 
 of which his ancestors were formerly priests,— on the ground that the office of priest- 
 hood was heredit-ivy, according to Mahomedan Law. He sued the defendant, the 
 present priest, and claimed to be restored to his alleged office, and an injunction 
 restraining the defendant from so officiating. 
 
 Held, that the defendant could not be sued, and demurrer allowed. 
 
 The words " Mahomedan Lmv," in section 27, clause 2, of the Mahomedan 
 Marriage Ordinance 5 of 1880, must be read as the " Mahomedan Law of property :"' 
 the generality of the expression in clause 2, is restricted by the preamble, and context 
 at end, of the clause. 
 
 This was a demurrer to a statement of claim. The statement 
 of claim alleged that, in the year 1802, the Government had 
 granted to " the Mahomedan Church," a piece of land at Chulia 
 Street, on which one Cader Mydeen, with the help and assistance 
 of the members of the Mahomedan community, and by means of 
 contributions collected by them from Mahomed ans generally, built 
 a mosque on the said land, for the purposes of public worship, by 
 and for Mahomedans of this Settlement. That the then Mahome- 
 dan community elected and appointed the plaintiff's great grand- 
 father the Emam and Khatib [priest] of the said mosque, who 
 performed his duties as such, for a great many years, up to the 
 time of his death ; that the office of Emam and Khatib being 
 hereditary according to Mahomedan Law, the plaintiff's grand- 
 father [the son of the first Emam and Khatib] succeeded him as 
 a matter of course; and on his death, his son [the plaintiff's 
 father] succeeded to the office, and so held it for about 40 years ; 
 that through some disputes, the plaintiff's father was forcibly 
 ejected and prevented from attending to his office and duties of 
 Emam and Khatib, by a portion of the members of the congre- 
 gation meeting at such mosque ; but was supported in his claim 
 to that office, by others of the congregation. The opposition 
 party had nevertheless succeeded in keeping the plaintiff's father 
 out of his office, until his death, about 2 years or so before this 
 suit ; that the defendant was the present Emam and Khatib of 
 the mosque, appointed by the said opposition party, but the plain- 
 tiff maintained, that as the son of the properly appointed Khatib, 
 he was entitled, according to Mahomedan Law, and the hereditary 
 successor to his father, to hold that office ; that there were no 
 trustees to the mosque, and this Court, had in a former suit, held, 
 that the fee simple in the land was vested in the Crown, with 
 whom, as parens patriae, it lay to appoint new trustees. The suit 
 claimed " the restoration to the plaintiff, of his office of Khatib 
 " and Emam of the said mosque, and to restrain the defendant 
 " from reading the Katoobah [sermon] in the said mosque, or 
 " performing the services of Khatib or Emam therein." The 
 defendant demurred, on the ground that this Court could not 
 afford the relief sought. 
 
 Van Someren, for defendant. The plaintiff shews no case by 
 his statement of claim. He bases his claim to the office of Khatib 
 and Emam on Mahomedan Law, which, he alleges, makes the 
 office hereditary— and inasmuch as his ancestors have held the 
 
 Pen as a- 
 
 Wood, J. 
 1881. 
 
 June 16. 
 
504 
 
 CIVIL CASES. 
 
 Wood, J. 
 1881. 
 
 Jahaludin 
 
 v. 
 
 Hajke Ab- 
 
 DUIiLAH. 
 
 office, he is now, by that Law, entitled to do so. This claim the 
 Court cannot recognize, lstly, as Mahomedan Law is not the 
 Law administered by this Court, and Ordinance V. of 1880, section 
 27, clause 2, [the Mahomedan Marriage Act] expressly enacts 
 that "Mahomedan Law, in the absence of special contract,_shall 
 " be recognised by tbe Courts of the Colony, only so far as is ex- 
 " pressly e» acted by this section." Here no " special contract" 
 is shewn, and there is nothing in this section or Ordinance, refer- 
 ring to the office of Emam or Khatib, as being hereditary, or 
 otherwise — or to the Mahomedan Law on the subject, at all. 
 
 [Wood, J. The preamble section 27, clause 1, specially refers 
 to the Mahomedan Law of " property," and the preamble to the 
 Ordinance is, for theimprovementof the Law relating to " property" 
 as affected by marriages among Mahomedans.] 
 
 The preamble is of a limited character no doubt, but the en- 
 acting part is not so limited, and in the construction of the Ordi- 
 nance, the Court will he guided by the enacting clause. Max- 
 well on Statutes, 39-45, Wills v. Gipps, 5 Moore's P. C. Cases, p. 379, 
 388. But 2ndly apart from this, the suit is not maintainable 
 in this Court, as affecting a voluntary religious association, relative 
 to the internal management of their religious affairs. Forbes v. 
 Eden, 1 L. E. H. L. [Scotch Appeals] 569. 
 Capel, for the plaintiff, contra. 
 
 Sabakat Allee, a friend of the plaintiff, and originally a co- 
 plaintiff, was permitted to address the Court on behalf of the 
 plaintiff. He handed in a deed which purported to give to plain- 
 tiff's father, a grant or license to be Khatib of the mosque, " and 
 " to his descendants." The signatories to this document, he stated 
 were all dead. He also produced further deeds and papers, and 
 among others, the record of a previous action brought by the 
 plaintiff's father against the leading members of the opposition 
 for his wrongful ejection, in which action judgment had been 
 given for the defendants. 
 
 Wood, J. I am of opinion, that the pi'eamble of the section 27 
 of the Ordinance itself, restricts the words " Mahomedan Law," 
 and that it should be properly read to mean, " the Mahomedan 
 " Law of property." The context, in the section, points to the 
 Mahomedan Law of property ; in particular where, towards the 
 end of it, it says any Mahomedan person, &c. might direct " his 
 " estate aud effects," to he administered according to the Maho- 
 medan Law. I am, however, of opinion that the plaintiff's suit is 
 deficient, in that it does not bring before the Court, as defendants, 
 the persons who had dismissed him, the plaintiff, or those who 
 representeded'them. It is obvious, looking at the original grant 
 of the land, " to the Mahomedan church," that there are no proper 
 representatives of the Mahomedan church, who could sue or be 
 sued ; and by the record produced by the plaintiff, it appears his 
 father had brought an action for trespass, against certain indi- 
 viduals personally, those acting as representatives of the Maho- 
 medan church, "and a verdict was given against him. The 
 demurrer must be sustained, though not on grounds advanced in 
 argument; but on the grounds I have already adverted to. I 
 
STRAITS SETTLEMENTS. 
 
 505 
 
 think the defendant's counsel should undertake to give the 
 plaintiff, a list of those persons who now represent the Mahomedan 
 church, to appear for such persons, and not to demur on the 
 ground of their not legally representing the mosque. I shall give 
 the plaintiff leave to amend his summons aud statement of claim, 
 by making such persons defendants. There will be no costs of 
 this demurrer. 
 
 Note. — The defendant's counsel gave the undertaking. 
 Demurrer allowed, without costs. — Leave to amend. 
 
 Wood, J. 
 1881. 
 
 Jamalutiin 
 
 V. 
 
 Hajee Ab- 
 dullah. 
 
 F. H. GOTTLIEB v. D. F. A. HERVEY. 
 
 The plaintiff and, defendant were Magistrates of Province Wellcsley, the 
 plaintiff being relieved by the defendant in that office. A sura of money was due 
 the plaintiff by Government, for salary, transport and other charges, which the 
 plaintiff requested the chief clerk to receive and remit to him at Singapore. These 
 monies passed through the hands of the defendant, who allowed the chief clerk to 
 receive same, but never enquired if he had remitted them, till it was found the 
 clerk had embezzled same. 
 
 Held, the defendant was not liable to the plaintiff for the amount. 
 
 Senible. Money had and received is not the proper form of action for such a 
 claim. The plaintiff should have stated the facts, and alleged that a duty was cast 
 on the defendant, to see to the proper remitting of the money ; but under the 
 circumstances of the case, no such duty, or neglect of duty on the part of the 
 defendant, was shewn. 
 
 This was an action to recover $930.32 for money had and 
 received by the defendant to the plaintiff's use. The facts of the 
 case sufficiently appear in the judgment. 
 
 Kershaw, for plaintiff. 
 
 Van Someren, for defendant. 
 
 Cur. Adv. Vult. 
 
 July 11. Wood, J. This was an action brought by the 
 plaintiff for money had and received by the defendant for the use 
 of the plaintiff. The facts relied on by the plaintiff are shortly 
 as follows : — 
 
 Mr. Gottlieb, the plaintiff, was the Magistrate at Province 
 Wellesley until the close of January,1878,when he was relieved by 
 Mr. Hervey, the defendant, and as such Magistrate, Mr. Hervey 
 received, by means of cheques paid by the Treasury to him-rr- 
 certain sums due to Mr. Gottlieb for salaries, for travelling allow- 
 ances as Magistrate in Province Wellesley and for the expenses of 
 Mr. Gottlieb's transport from Singapore to Penan g. These sums 
 1 sing received by Mr. Hervey with a full knowledge of the facts, 
 were allowed by him to be retained by Leicester, the Chief Clerk 
 to the Magistrate, in Province Wellesley, and lost by his default. 
 It was contended on the part of Mr. Gottlieb that these monies 
 became monies had and received by Mr. Hervey for the use of the 
 plaintiff, on his receipt of them froux the Government, and that 
 it was his duty to have paid them to Mr. Gottlieb, and that 
 having allowed them to fall into the hands of Leicester, by whose 
 
 Penan<j. 
 
 Wood, J. 
 1881. 
 
 June 27. 
 
506 
 
 CIVIL CASUS. 
 
 Wood, J. default they were lost, Mr. Gottlieb had a good cause of action 
 
 1881. against him. For the defendant, it was contended, that there was 
 
 Gottlieb a " actual agency as between Leicester and Mr. Gottlieb, or failing 
 
 v. that, Mr. Hervey had reason to believe that he was acting in 
 
 -Hertet. accordance with an intention on Mr. Gottlieb's part, of permitting 
 
 Leicester to draw the money for him, and charge himself 
 
 [Leicester] with the remitting of it afterwards. 
 
 An objection was raised at the trial that the form of the 
 claim, viz. : — a claim for money had and received was inapplicable, 
 but with the extended powers which this. Court now has in 
 dealing with matters within its jurisdiction, the form in which a 
 claim is presented to us, has little to do with the matter — and I 
 entertain no doubt, that a statement of claim might have been so 
 drawn, as would have enabled the Court to give redress to a 
 plaintiff, where money has been received by a defendant, which it- 
 was his duty to pay to the plaintiff, and which had been lost to 
 him, by the default of the defendant. 
 
 This question, however, is not material to the decision of the 
 present case, for I feel myself driven to the conclusion that 
 judgment must be given for the defendant, on the ground that 
 Leicester was authorized by Mr. Gottlieb to receive the sums 
 which are the subject of this action, on his behalf, and to account 
 to him afterwards for them. 
 
 This question rests upon evidence which leaves in my mind 
 no material doubt. It is asserted by Mr. Hervey that he heard 
 Mr. Gottlieb in conversation with Leicester, enquire of him if 
 " the bills had been got in" and request him to attend to it, and 
 he further pledges himself to a strong impression that Mr. Gottlieb 
 said, or that Mr. Hervey had seen it in writing by Mr. 
 Gottlieb, that "he was to be quick and draw his half salary." 
 This statement is supported by Leicester, who asserts positively, 
 that referring to bills from Government due to Mr. Gottlieb, 
 Mr. Gottlieb requested him to see that the bills were paid to 
 Mr. Gottlieb, and that he was to send the account to Singapore. 
 This evidence which might be doubtful, having regard to the 
 uncertain language of Mr. Hervey and the character of Leicester, 
 who was subsequently convicted of the embezzlement of Govern- 
 ment money, acquires a fair amount of certainty, by the fact that 
 Mr. Gottlieb cannot pledge himself to a distinct contradiction of 
 the words which he is reported to have made use of, in his con- 
 versation with Leicester ; he says, " I have no recollection of 
 " speaking to Mr. Leicester about transport bills. I may have 
 " said that he was ' to be sure and attend to the matter', but not 
 " with reference to these transport bills." 
 
 " I do not recollect saying to Leicester that he was to be quick 
 " and draw me my half pay." 
 
 In addition to this, the facts of the case, and ihe conduct and 
 writings of Leicester and Mr. Gottlieb, point strongly to the 
 fact that Mr. Gottlieb was content that Leicester should receive 
 the sums due to him. There was more than the ordinary relation 
 of Magistrate and Magistrate's clerk existing between Mr. Gottlieb 
 and Leicester. Mr. Gottlieb had assisted him with a loan of 
 
STRAITS SETTLEMENTS. 
 
 507 
 
 money, and certainly entrusted him with the charge of paying 
 certain small bills for him, on his leaving for Singapore, without 
 specifically supplying him with funds, any more than that he relied 
 upon him to find funds from the sums which were due by way of 
 interest from Leicester to Mr. Gottlieb ; but it is more specially 
 remarkable that until Leicester had embezzled the money, Mr. 
 Gottlieb makes use of no word which contradicts the supposition 
 that Leicester was authorized to receive the money, while in some 
 letters, expressions are used, which point to the actual relationship 
 of" principal and agent as existing between them. Thus in Mr. 
 Gottlieb's letter of February 22nd, 1878, to Leicester, he says : 
 
 •' I have received your note and several memos, of account which I will 
 " attend to ; now however I wish to enquire about SJ1 left with you [rent for 
 
 " the house at Butterworth] I hope that I shall soon hear 
 
 " from you that you have paid it, so as to enable me to write and tell the Gov- 
 
 " eminent If you have not [although I hope you have] paid 
 
 " the $1, please do so and deduct from my pay." 
 
 Again in Mr. Gottlieb's letter of March 23rd, in reply to one 
 of Leicester's — he says : 
 
 •' T.o-moiTow I will look over the accounts you sent. I was not aware you 
 " had received any money on my account, for in your last you say that Mr. 
 
 " Jones was up the Hill and had not paid you any money 
 
 " Please let me know how much you have received thus : — 
 
 " Pay for January : 
 
 " § Assistant Magistrate for 
 
 " | do. do. do. - 
 
 " Travelling, &c, &c., and tell me if all monies due to me from Government 
 
 " have been paid, if not now much is due to me I hear my 
 
 " bill for transport going to the Province in 1876 has been paid, please send 
 " me this money as early as possible." 
 
 Again in a letter from Mr. Gottlieb to Mr. Hervey of 27th 
 April : 
 
 " I saw from an official sent in yesterday that Mr. Leicester has received 
 " my monies, and that you have desired him to furnish you with a statement of 
 " accounts, please get this done as soon as possible, and send me my monies, 
 " this Mr. Jones promised me he would himself do, and it would have saved 
 " you much trouble, and myself considerable inconvenience, had he done so." 
 
 Other slighter matters bearing upon this point were urged in 
 argument on behalf of Mr. Hervey, but on these facts alone, I 
 find myself driven to the conclusion, that Mr. Gottlieb did, from 
 the first, assent to the holding by Leicester, of the monies due to 
 him by Government ; that the direct relation of principal and agent 
 did, in fact, exist between them, and that he looked to Leicester, 
 and to Leicester alone, for the furnishing of an account with res- 
 pect to such monies. Though I consider that in this case the facts 
 establish an intention on Mr. Gottlieb's part that Leicester 
 should hold the money for him, yet independently of that absolute 
 and specific fact, I entertain much doubt if, under the circum- 
 stances of the case, Mr. Hervey would be answerable for the loss 
 of the money. The action is brought as for money had and 
 
 "Wood, J. 
 1881. 
 
 Gottlieb 
 
 v. 
 Hervey. 
 
508 
 
 CIVIL OASES. 
 
 Wood, J. 
 1881. 
 
 Gottlieb 
 
 V. 
 
 Heevbt. 
 
 received by Mr. Hervey for the use of Mr. Gottlieb ; a technical, 
 and except to a lawyer, an uncertain way of describing the liability 
 of the defendant. I incline, as I before have intimated, to doubt 
 whether this form of statement of claim is appropriate to the facts 
 of the case, and that the claim would have been more aptly stated, 
 had the plaintiff expressed it in the f orm of a narration of the facts 
 of the case in accordance with the existing practice of the Court 
 in other cases. It would then have been incumbent upon him to 
 shew that the money came to Mr. Hervey's hands, subject to a 
 duty which Mr. Hervey had failed to perform, and this I very 
 much doubt if the plaintiff could satisfactorily have shewn. It is 
 not the case of a person who holds money, the property of another^ 
 on any certain and defined trust, but the case of a person through 
 whose hands money, the property of another, passes ; and the trust- 
 or duty is a trust or duty by way of inference only. Undoubtedly' 
 the money passed through Mr. Hervey's hands, and he knew that 
 it was money, the property of Mr. Gottlieb, and the liability of 
 Mr. Hervey would seem to me to depend on whether by allowing 
 it to be in the hands of Leicester, he had acted with that neglect 
 of trust or duty, which the circumstances of the case required, 
 and it is upon this point, that I entertain considerable doubt. It 
 had long been the practice for the Magistrate's clerk to hold the 
 monies received, at least for distribution, and it could scarcely 
 have been reasonably assumed by Mr. Gottlieb, that Mr. Hervey 
 would have held his, Mr. Gottlieb's money, in his own actual 
 possession. Doubtless, under such circumstances, it would have 
 been an act of forethought and prudence for Mr. Hervey. to have 
 communicated the ( fact of Leicester's receipt of this money to Mr. 
 Gottlieb, and a further act of forethought and prudence to have 
 seen that the money was properly transmitted to Mr. Gottlieb but 
 there, as it seems to me his duty or trust would have ended, and 
 I much doubt, whether under the circumstances disclosed in this 
 case, a breach of that duty or trust would have saddled him with 
 the responsibility of making good the loss of the money in the 
 event of Leicester's defalcation. I say under the circumstauces, 
 for 1 think it manifest that some amount of laxity and imprudence 
 was shewn by the parties concerned, excepting Leicester whose 
 mind was no doubt steadily bent on obtaining and appro- 
 priating all the money he could. It seems to me unfortunate 
 that a system should have prevailed, whereby the cash balances 
 in thehands of the Magistrate's clerk should so remain without 
 supervision and without check ; and few lawyers would deem it 
 strictly business-like, that payment should be made by the 
 Treasurer of a Colony to Colonial Officers and servants, upon 
 receipts which state what could not be the fact, that the monies 
 have been actually received by those different officer,! and servants, 
 without providing in some way for its being shewn that they were 
 subsequently distributed to the right persons. 
 
 It seems to me unfortunate that Mr. Gottlieb who was aware 
 Of a previous defalcation on the part of I -'cester, had not com- 
 municated this fact at least to Mr. Hervey, and that he had given 
 no written or express directions to Mr. Hervey or the Treasurer, not 
 
STRAITS SETTLEMENTS, 
 
 309 
 
 to pay the sums due to him, to any but himself. No doubt 
 until the fact of Leicester's defalcation was well known and the 
 man found guilty, no question of agency or breach of duty or trust 
 occurred to Mr. Gottlieb, and my doubt is whether under such cir- 
 cumstances, a Court of Law and Equity combined, would hold Mr. 
 Hervey liable for a breach of duty which might be looked at as 
 a duty of imperfect obligation only. 
 
 This view of the case was not specifically the subject of 
 argument before me, nor is it material to this present decision 
 except in so far as it affords additional strength to Mr. Hervey's 
 case. It may be considered hardly necessary that I should add 
 that although I feel myself obliged to decide against the plaintiff 
 in this case, no imputation rests upon him of having intended to 
 mislead the Court in his assertion of fact. Both gentlemen, the 
 plaintiff and the defendant^ have spoken to facts within their 
 knowledge with perfect fairness and candour. Mr. Gottlieb was, 
 no doubt, after the lapse of many months, unaware of the exact 
 tenor of the language he had used in conversation and in writing 
 with Leicester, and took that sanguine view of his own rights 
 which most persons similarly circumstanced, may not unreasonably 
 be expected to do ; but although I cannot but feel he is wrong in 
 attributing 1 the loss of the money to the default of the defendant, 
 we must all regret the result to himself, in the abuse of the con- 
 fidence and great kindness he had him'self personally shewn to 
 Leicester, and the serious pecuniary loss sustained. 
 
 Judgment for defendant with costs, [a] 
 
 Wood, X 
 1881. 
 
 Gottlieb 
 
 v. 
 Hervey. 
 
 F. H. GOTTLIEB v. LEICESTER. 
 
 A person who comes up from one Settlement of this Colony to another, as a witness 
 on a subpcena, is. privileged in the latter Settlement from arrest on civil process, until 
 he had had reasonable time to return to the Settlement from which he came. 
 
 Query. Is a defendant leaving one Settlement of this Colony for another, liable to 
 arrest under section 422 b. of the Civil Prooedure Ordinanoe of 1878, as amended by 
 Ordinance III. of 1880. 
 
 Action to recover $227.24 for balance due on a promissory 
 note and on an I. O. U. 
 
 The defendant was a resident of Singapore and had come up 
 to Penang on a subpoena duces tecum to give evidence in the case 
 of Gottlieb v. Hervey. [6] The plaintiff was a resident of Penang, 
 and finding the defendant here, commenced this action against 
 him, and at the same time had him taken into custody on an 
 order of arrest, on the ground of his intended departure for Singa- 
 pore. 
 
 Van Someren, on behalf of the defendant, had obtained a 
 Rule Nisi for setting aside the order of arrest in this case on the 
 grounds 
 
 [a] The plaintiff.gave notice of appeal which was never prosecuted. 
 
 m 
 
 Penano. 
 
 Wood, J. 
 1881. 
 
 July 4. 
 
510 
 
 OIVIL CASES. 
 
 1st. — That the affidavit was defective in not bringing the case 
 within section 422 b. of Ordinance 5 of 1878, as amended by 
 Gottlieb Ordinance 3 of 1880. [a] It is defective in four respects :— 
 
 Wood, J, 
 1S81. 
 
 Leicester. 
 
 1 . It only shews the "defendant was going to Singapore 
 
 and not leaving the Colony. 
 
 2. That it does not shew he was going for the purpose 
 
 of avoiding service of process. 
 
 3. It does not shew that the absence of defendant would 
 
 materially prejudice plaintiff in the prosecution of 
 his action. 
 
 4. It states only the belief, but does not state the grounds 
 
 of belief. 
 
 2nd. — The defendant is privileged from arrest as he came up 
 from Singapore under a subpcena from this Court and was now 
 about returning. 
 
 3rd. — The defendant's christian name is given as " Horatio" 
 instead of " Henry." 
 
 Gottlieb [plaintiff] in person shewed cause. 
 
 1st. — With respect to section 422 b., Settlement is one thing, 
 Colony another, but the defendant -is temporarily residing in 
 Penang, and he must therefore be taken to dwell here, and his 
 leaving is a leaving of his dwelling within the meaning of the 
 section. Alexander v. Jones, 35 L. J. [N. S.] 78. As regarded the 
 misnomef' of defendant, it ,might be amended under section 9 of 
 Ordinance 5 of 1870, also section 262. The defendant is not 
 privileged from arrest. Watson on Sheriff, p. 139. 
 
 Wood, J. The defendant is clearly entitled to his privilege 
 from arrest and the order therefore must be set aside. 
 
 Rule absolute. 
 
 MEYAPPA CHETTY v. KHOO BEAN TEEN & ORS. 
 
 Penans, 
 
 Wood, J 
 1S81. 
 
 July 11. 
 
 Affidavits, filed with bills of sale, under section 18 of Ordinance 22 of 1870, 
 must be construed with strictness. 
 
 The omission to describe the occupation of a grantor of the bill of sale, renders 
 it void, under the section aforesaid, against an execution creditor. 
 
 An affidavit filed along with a bill of sale, exeouted by two grantors, stated that, 
 " the grantors reside in Bridge Street, and is a trader," 
 
 Held, the description was defective, as being ambiguous as to which of the grantors 
 was referred to, and not being a description of both. 
 
 This was an action to recover $179.75, damages for wrong- 
 fully depriving plaintiff of his goods. The defendants were 
 
 [a] Section 422 B. " When the plaintiff in any civil proceeding in the Supreme 
 
 Court, proves at any time before final judgment by evidence on oath to the 
 
 satisfaction of the Court that the plaintiff has a good cause of action or other valid 
 claim against the defendant, and that there is probable cause for believing 
 having regard to the defendant's conduct or to the state of his affairs or otherwise 
 
 that he has withdrawn or is about to withdraw himself from the Settlement 
 
 for the purpose of avoiding the process of the Court or under such other circum' 
 stances as to induce the Court to believe that the ends of justice are likely to be 
 defeated unless he be arrested, and that there is also probable cause for believing 
 
STRAITS SETTLEMENTS. 511 
 
 execution creditors of Tey Lye and another. The plaintiff was Wood, J. 
 the holder of hills of sale by way of mortgage, on the goods of 1881, 
 the said Tey Lye and another. The seizure was admitted ; and Metappa 
 the only question was, as to the validity of these two bills of sale. Chettt 
 The one was dated 5th February, 1880 ; and the other 11th v - 
 
 February, 1881 ; they were both registered within 21 days of their tebn&oims 
 execution, under section 18 of Ordinance 22 of 1870. In the 
 first, the affidavit accompanying the bill of sale omitted to state 
 the occupation of the grantors, in the second, the affidavit stated 
 that, " the said mortgagors reside at Bridge Street, and is a 
 " trader." 
 
 Van Someren, for defendants contended, both bills of sale 
 were void — the first, as the affidavit wholly omitted the occupation 
 of the grantors. Pickard v. Bretz, 5 H. & N. 9 ; and the second, 
 as the description was defective, either it referred to the last of 
 the two mortgagors, in which case it would be grammar, but 
 defective in omitting the description of the first mortgagor — or it 
 was a description of the first mortgagor, and omitted that of the 
 second. The description in fact was imperfect, and the registra- 
 tion and bill of sale void. Tuton v^ Sanomer, 3 H. & N. 280 ; 
 Broderick v. Scale, 6 L. E. C. P. 98 ; Pickard v. Marriage, 1 L. R. 
 Ex. Div. 364 ; Murray v. Mackenzie, 10 L. R. C. P. 625. The rule 
 with reference to description of grantors in the affidavit, was the 
 same as regarded that of the witnesses. Tuton v. Sanomer, supra 
 [p. 283] Broderick v. Scale, supra [p. 103] and according to 
 Pickard v. Marriage, the description of one witness, where there 
 are more than one to the bill of sale is not enough. Here there 
 were two grantors, and the description of both should have 
 been given, or the bill of sale is void under section 18 of 
 Ordinance 22 of 1870. 
 
 E. W. Presgrave, for plaintiff, admitted he could not contend 
 against Pickard v. Bretz as regarded the first bill of sale ; but as 
 regarded the second, he contended the Court would incline against 
 technical objection to such an affidavit. Here in the second 
 affidavit, the description began by describing both grantors — 
 [" mortgagors," in the plural] — but in continuing it, spoke as if of 
 one person. It was presumably a clerical error, and not such as to 
 vitiate the registration. 
 
 Wood, J. In my opinion the defendants are entitled to 
 judgment. The affidavit, in accordance with the decisions, must 
 be construed with strictness : here there is an ambiguity as to 
 whether one or the other of the grantors was referred to. It is 
 not a description of both. The registration and bill of sale are 
 void under section 18 of the Ordinance of 1870 against the defend- 
 ants, the execution creditors. 
 
 Judgment for Defendants, 
 
 the absence of the defendant from the Settlement will materially prejudice the 
 plaintiff either in the prosecution of his suit or otherwise, the Court may order such 
 defendant to be arrested and imprisoned for a pet iod not exceeding six months 
 unless and until he sooner gives security not exceeding the amount claimed in the 
 suit and the probable costs of the suit that he win not go out of the Settlement 
 without the leave of the Court," 
 
512 
 
 OIVIL OASES. 
 
 GOLAM KADER v. SHAGAPAH OHETTY. 
 
 Penang. The Court refused to stay execution in a suit, or order the defendant therein 
 to pay into Court a portion of the amount of judgment, on the application of a 
 
 "Wood J. plaintiff in another suit, and a creditor of the plaintiff in the first, although it was 
 
 1881. alleged that the plaintiff in the first suit was insolvent. 
 
 July 13. Tliis was a suit for money had and received and general 
 
 average contribution, which was still awaiting trial. The de- 
 fendant had recovered a judgment against one Pah Etam to 
 a large amount, but it was alleged, and was not denied, that he 
 [defendant] was insolvent, and besides the amount recovered by 
 the judgment, had nothing which the plaintiff could levy on, if he 
 got judgment hereunder. The said Pah Etatn was the agent in 
 Penang for the plaintiff who was out of the jurisdiction. 
 
 E. W. Presgrave on summons, now moved £>n behalf of the 
 plaintiff herein for an order to stay execution in the case of Sha- 
 gapah Ghetty v. Pah Etam ; or that Pah Etam, the defendant in 
 that suit, be ordered to pay into Court so much of such judgment 
 as would cover the probable amount of judgment and cost herein, 
 until this action would be decided. This the said Pah Etam 
 was willing to do. 
 
 Van Someren, for the defendant herein, contended that no 
 order, as asked, could be made — the application was in effect an 
 attempt to get a sequestration, although the case did not fall 
 within section 422 of the Civil Procedure Ordinance 5 of 1878, 
 as amended by 3 of 1880. 
 
 Presgrave having obtained leave to look up authorities in the 
 point, the motion stood over. 
 
 July 15th. Presgrave now renewed his application and asked 
 that the money should be paid into Court. 
 
 Wood, J. I consider this application is wholly unsupported 
 by authority, and must refuse it. 
 
 Order refused. 
 
 Penang. 
 
 Wood, J. 
 1881. 
 
 July 15. 
 
 SHAGAPAH CHETTY v. CAPEL & ANOR. 
 
 A plaintiff is entitled to his costs against all defendants in the suit, although 
 the defendants may have severed in their defence, and one of them adopts a line of 
 defence which occasions heavy costs, and with which the other is wholly un- 
 interested. 
 
 In this case, judgment having been given for plaintiff with 
 costs, on taxation of such costs, Mr. Kyshe, the Deputy-Regis- 
 trar, had decided that the plaintiff was entitled to his entire costs 
 as against all the defendants, although some portions thereof, 
 [for a Commission to India, for evidence,] was occasioned wholly 
 by the line of defence one of the defendants [Capel,] adopted : 
 and with which the other defendant had had nothing to do. The 
 defendant Capel had since died insolvent. The defendants had 
 severed in their defence all through ; and had been represented by 
 different Solicitors and Counsel, ' 
 
STRAITS SETTLEMENTS. 
 
 514 
 
 E. W. Presgrave, on behalf of the defendant Pah Etam, now 
 applied, on summons, for a review of the taxation and variation 
 thereof, according to the respective proportions occasioned by 
 the respective defences of the defendants. He contended the 
 Court could now apportion costs under section 463, Ordinance 5 of 
 1878 ; and that, ever since the Judicature Acts, was the rule. He 
 cited 2 Daniel's Oh: Practice [Ed. 1871] pp. 1267, 1268. 
 
 Van Someren, on behalf of plaintiff, submitted this was not 
 a_ case wherein the Court would interfere with the Registrar's taxa- 
 tion, and referred to Wilson v. Forde, cited in Bull. N. P. [7 Ed.] 
 p. 335, as being in point. 
 
 Wood, J. I consider the plaintiff is entitled to his general 
 costs against all the defendants and the Registrar has acted 
 rightly. 
 
 Summons dismissed, with costs. 
 
 ■Wood, J. 
 1881. 
 
 Shagapah 
 
 Chetty 
 
 v, 
 Capel & - 
 
 ANOB. 
 
 ABOOBAKARSAH v. AHAMAD JELLALOODIN. 
 
 The CourD allowed the defendant to amend his Statement of defence, which Penano. 
 
 had been filed and delivered, by adding thereto, a plea of the Statute of Limitations, • - 
 
 but reserved leave to the defendant to appeal, considering the point not free from Wood, J. 
 doubt. 1881. 
 
 Rolt v. Cox, 2, Wilson 253, is not of present authority. 
 
 The words " real question in controversy between the parties," at end of section 
 184 of the Civil Procedure Ordinance 5 of 1878, mean, the right of the plaintiff to a 
 cause of action at the time of the issuing of the writ of summons. 
 
 Suit for partnership accounts. 
 
 Kershaw, on behalf of defendant applied, on summons, for 
 leave, under section 184 of the Civil Procedure Ordinance 5 of 
 1878, to amend his statement of defence, by adding a plea of the 
 Statute of Limitations. The section reads as follows : — 
 
 184. The Court may, at any stage of the proceedings, allow either party 
 to alter his writ of summons, statement of claim or defence, or reply, or may 
 order to be struck out or amended any matter in such statements, respectively^ 
 which may be scandalous, or which may tend to prejudice, embarrass or delay 
 the fair trial of the suit, and all such amendments shall be made, as may be 
 necessary for the purpose of determining the real questions or question in 
 controversy between the parties. 
 
 Van Someren contra, relied on Rolt v. Cox, 2 Wilson 253, as 
 in point — and that leave would not be given to set up a technical 
 defence. Collette v. Goode, 7 L. R. Ch. Div. 842, as it is not the 
 real question in controversy. He also applied for leave to appeal, 
 if the decision was against him. 
 
 Wood, J. I consider the case of Rolt v. Cox an old case, and 
 not of present authority. I think a liberal practice governs the 
 Court in these days, to allow defence as to pleadings, when the 
 error is by want of knowledge on the part of the party, of the force 
 and effect of the Statute of Limitations, or want of discretion in 
 his advisers. As a single Judge, sitting as a Judge of 1st instance, 
 it is my duty rather to admit, than to circumscribe liberty in the 
 
 August IS; 
 
614 
 
 CIVIL OASES, 
 
 Wood, J. 
 1881. 
 
 Aboobakab- 
 
 8AH 
 V. 
 
 Ahamad Jel 
 laloodin. 
 
 defendant to amend his plea, by pleading issuable matter— and 
 " the real question in controversy between the parties" in section 
 184, I am of opinion, are reasonably and justly construed as being, 
 the right of the plaintiff to a cause of action at the time of the 
 issuing of the Writ. The defendant ought fairly to be allowed to 
 raise the defence which then existed, whether he had made mis- 
 takes of law, or of practice, himself,— or bis advisers had done so 
 for him. The amendment is allowed subject to payment of costs 
 occasioned by amendments, and leave is given to plaintiff to 
 appeal against this my decision, which I consider not free from 
 question^ should the question be found to turn on the Statute of 
 Limitations, [a] 
 
 DANIEL LOGAN d.- HEOH AH TAN. 
 
 Penanq. Where two holders of lands under Government permits^ arranged among 
 
 — ■ themselves that a certain stream running through the land of one of them should 
 
 Wood, J. be the boundary of their respective lots, and by this means the one through whose 
 
 1881. land the stream passed was depriving himself of a qertain strip of land included in 
 
 his permit and giving up the same to the other of themi and thd one so depriving 
 
 October 10. himself of the said strip died leaving ail Executor who sold his interest in the 
 permit to the plaintiff, who, on production of the permit to the Land Office, ob- 
 tained a grant in' fee from the Crown, of the whole land comprised in such permit, 
 including the strip sO given up, and thereafter sought to eject the other permit- 
 holder from the, strip so given up to him, 
 
 Held, that the fact of the plaintiff being a grantee in fee from the Crown, 
 made no difference, but the plaintiff acquiring the grant on the strength of the 
 permit, purchased as aforesaid, was bound by the arrangement made by his deceas- 
 ed predecessor, and could not recover possession of the said strip. 
 
 Where a permit was isBued under a Government Notification of 1852, which 
 Notification could not be found, and the permit-holder subsequently obtained from 
 the Crown a grant ih fee of the land comprised in the permit, 
 
 Held, that it rmtet be presumed that the Notification gave 1 the permit holder a 
 right to the land in fee on certain conditions which had been complied with and 
 not an estate for years under Act 16 Of 1839. 
 
 Action of ejectment to recover possession of a piece of land, 
 lot No. 4431, situate in the district of Byan Lepas, in the division 
 of Kampong Kaf ri in Penang, containing an area of 52 square acres 
 and 22 perches comprised in grant 10,096, dated 1st October, 
 1873. 
 
 The defendant limited his defence only to that portion of tbe 
 land claimed, lying to the east of the stream hereinafter mentioned, 
 comprising about 9 or longs of land being part of the 52 acres, and 
 by his amended plea, inter alia, stated, that in or about the year 
 1859, it was verbally agreed between the defendant and the late 
 James Richardson Logan, that a certain river running through the 
 land of the said J. R. L. should form tbe boundary between the 
 lands of the Said J. E. L. and of the defendant ; that relying on 
 the said agreement, the defendant entered xrpon the land from 
 Which the plaintiff sought to eject him, and cleared and cultivated 
 tbe same, and from the year 1859, had enjoyed quiet and peace- 
 
 £al As the plaintiff failed to prove the partnership— which the defendant 
 b ht-J w'Vk 0U the merits > and no appeal was consequently 
 
STRAITS SETTLEMENTS, 
 
 515 
 
 ful possession thereof ; that the plaintiff in the first instance 
 acquired the whole of the land claimed by purchase from the 
 executors of the said J. B. L., and by reason of the premises, was 
 not entitled to deny the efficacy of the said verbal agreement 
 between the said J. B. L., and the defendants ; also that plaintiff's 
 cause Of action^ in respect Of these 9 orlongs, did not accrue within 
 twelve years before this suit. Issue thereon. 
 
 At the* first hearing on the 17th August, 1881, the plaintiff 
 proved, thai the whole of the land claimed by hhn, was; granted 
 to him by the Government of the Straits Settlements in fee* by 
 grant above-mentioned ; that the lands were originally held on a 
 permit, dated 6th December, 1859, granted by the Bast India 
 Company to the said J. B. L.j the father of the plaintiff, and pur- 
 porting to issue under Government Notification of 1852, which 
 Notification was not forthcoming ; that the plaintiff had purchased 
 the interest of the said J. E. L., in the permit and the aforesaid 
 lands comprised thereunder, from the executor of the said J. E. L., 
 and on presentation of this permit, and payment of certain heavy 
 fees, had obtained from the Crown, the aforesaid grant of the 
 ■wfhole of the land in fee as before stated. On the close of the 
 plaintiff's case, the defendant set up a verbal arrangement between 
 him and the said J. E. L., made in 1859, by which the afore- 
 said stream running through the lands of the said J. E. L.i so 
 acquired by the plaintiffs as aforesaid, .should be the boundary 
 between the land of the defendant and the said J. E. L. The 
 fact was spoken to by defendant only, as follows, he, " J. E. L., 
 " told me that this stream was the boundary between his land and 
 " mine, flags were put up to mark the boundary close to the stream. 
 " After clearing the forest, I planted nutmeg and fruit ' trees, 
 " nothing further was said about the land, these trees are now 
 " full grown." There was no corroborative evidence of any kind 
 in support of the statement. The defendant held 2 permits, Nos. 
 10 and 11 for land lying immediately to the east of the land claimed 
 by plaintiff, and adjoining that portion of the plaintiff's land 
 lying to the east of the aforesaid stream ; this stream cut the 
 plaintiff's land "by about two-thirds from north to south. The 
 Government plan y included the aforesaid stream and strip of 9 
 orlongs, in the plaintiff's grant. At the trial, the Court was of 
 opinion that the verbal agreement set up by the defendant had 
 been proved, but his statement of defence not having set up such 
 an agreement, and the plaintiff having been taken by surprise, the 
 Court gave leave to the defendant to amend his statement of 
 defence by setting out this arrangement, and adjourning the case 
 so as to permit of this amendment being made, and to give the 
 plaintiff an oppdrfcUnity to adduce^ evidence in disproof of the 
 arrangement set up. The case was accordingly adjourned, and 
 the statement of defence amended as hereinbefore set out. At 
 the adjourned hearing this day, plaintiff adduced certain evidence 
 which, however, did not expressly disprove the aforesaid state- 
 ment of the defendant. 
 
 Vati Someren, for defendant contended, that as both the 
 defendant and J. E. L., were mere occupiers of the lands on per- 
 
 Wood, J. 
 1881. 
 
 Logan 
 
 v. 
 
 Heoh Ah 
 
 Tan. 
 
«1<3 
 
 CIVIL CASES. 
 
 Wood, J. 
 1881. 
 
 Logan 
 
 v. 
 
 Heoh Ah 
 
 Tan. 
 
 mit, [a] , any arrangement then made between them, could not affect 
 the plaintiff who was now grantee in fee of the lands from the 
 Crown, that the plaintiff stood in the place of the Crown, and the 
 Crown would not be affected by such an arrangement between the 
 permit-holders. Sixty years had not expired to deprive the Crown 
 of its right to the lands, or to grant away the same in such 
 manner as it thought fit ; that an arrangement between contiguous 
 land owners inter se to a rectification of boundaries was not final, 
 even although, acting on the understanding, one of them expended 
 money on the land of the other ; that the real rights of the parties 
 would be upheld both by Courts of Law and Equity, the party 
 aggrieved being compensated by~ the other. Story's Eq. Juris., 
 • §§ 1533-4-5-7; Bennie v. Young, 2 De Gex & J. 136; Caimcross v. 
 Larimer, 7 Jur. N. S. 149; Hunt on Boundaries, 258-9; East 
 India Co., v. Vincent, 2 Atkyns 82 ; Dann v. Spurrier, 7 Ves. 231 ; 
 that J. E. L., the permit-holder, was mere tenant at will to the 
 Crown and the tenancy determined at his death. Turner v. Barnes, 
 31 L. J. Q. B. [1ST. S.] 170, and plaintiff therefore acquired no 
 interest from him, and the supposed purchase thereof from his 
 executors was a mere idle thing ; plaintiff was therefore not privy 
 in estate to J. E. L., but a grantee in fee, of the Crown, and was 
 not estopped by the arrangement set up, even if proved, and 
 otherwise valid against J. E. L. ; that there was no estoppel, as 
 the character of plaintiff as assignee of J. E. L., was changed to 
 that of grantee from the Crown. Doe d Hornby v. Glen, 1 Ad. & 
 E., 49 ; Goodeve on Evid., p. 424, 538 ; that there was a fraud, 
 in point of law, on the part of J. E. L., or his executor, in not dis- 
 closing to plaintiff, at the time of his purchase, the arrangement 
 made with defendant, and the plaintiff was therefore not estopped 
 in contesting the defendant's alleged right. Doe d Williams v. 
 Lloyd, 5 Bing. N, C. 741 ; 1 Taylor on Ev. § 27. 
 
 E. W". Presgrave, for defendant was not called on. 
 
 Wood, J. I am of opinion that it has been proved, as a fact, 
 that notwithstanding the boundaries of the defendant's permits 
 Nos. 10 and 11, and of Lot No. 4431, in plaintiff's grant are shewn 
 to be as in the plan in the Government Office, yet that, sometime 
 about the year 1859, it was agreed between Mr. James Eichardson 
 Logan and the defendant, that the stream running through Mr. 
 Logan's lands, should be the defendant's boundary under permits 
 10 and 11, thereby depriving J. E. Logan of the permission to 
 clear about 9 orlongs of land. I further find, that the defendant 
 acted on the faith of this arrangement, and planted the land as 
 included in his permits. I also find, that the plaintiff afterwards 
 acquired the land of J. E. Logan from his executors by purchase, 
 and the Crown on the strength of this permit, which the plaintiff 
 produced to the Land Office, granted him a conveyance of the 
 whole land comprised therein, in fee — including that portion given 
 
 [a] SirEalph Eice, Eeeorder, appears, to have held that the holder of lands 
 under a permit, had but an inchoate right, which was not alienable till perfested 
 by a grant. The case, however," cannot be traced, but see " Papers and Oorreipond- 
 " ence, Land Revenw Administration, S. 8., 1823-37." [published by Hon'ble W. B. 
 Maxwell, 1884,] p. 27.— J. W, N. K, . ' 
 
STRAITS SETTLEMENTS. 51 7 
 
 up by J. E. Logan, to the defendant. At the first hearing of the case Sioobbaves, 
 I was inclined to hold that on this state of facts, the plaintiff was FoB £" ?• 
 not entitled to deny the efficacy of the agreement so entered into & ij.j. 
 between his predecessor, the said J. E. Logan, and the defendant, Wood, ) 
 concerning the boundary of their respective lands — but was bound 1881 - 
 by it: the statement of defence, however, not having stated the spe- looan 
 cial fact, I considered it right to give the defendant permission to « • 
 
 amend his defence, by stating them, and the plaintiff leave to ad- H ™ H Au 
 duce evidence to disprove the arrangement. This was accordingly 
 done, and the case now comes on before me for final decision. On 
 the facts I see no reason to alter my previous findings ; I cousider 
 that J. E. Logan and the defendant agreed as to the boundary, as 
 being permittees under the Government, with a view to the perma- 
 nent arrangement of boundaries — each personally intending to ob- 
 tain, a fee simple, of the land actually occupied by him, in the 
 regular order of Government holdings. According to the prac- 
 tice in the Land Office of the Settlement, a permit holds good 
 until the permittee is willing to take a grant. 
 
 As regards the first objection, I can see no reason why an 
 agreement of sale or purchase of an expectancy, should not be 
 valid, see Buckley v. Newland, 2 P. Wins. 182 ; the arrangement 
 between the permit holders, in expectation of obtaining regular 
 grants, 1 think, must be considered in the same light. I am 
 further of opinion, that the plaintiff is privy in estate to J. E. 
 Logan, of the interest which he, J. E. Logan, then had by pur- 
 chasing from his executors, their interest in the land. This land 
 they had a sufficient interest in, to convey : but bound ns to its 
 extent and boundaries, by the contract made with defendant. 
 This interest I consider was an interest in land, with a claim 
 upon the Crown to have it enlarged to an estate in fee 
 simple. The plaintiff obtained his grant in fee, in conformity with 
 the usage of the Land Office in this Settlement, in virtue of his 
 interest acquired from his father. This grant, enured to extend 
 the duration of the plaintiff's estate, but not its territorial extent, 
 which was limited by the contract J. E. Logan had made with 
 the defendant, aud which has been acted on and acquiesced in by 
 J. E. Logan and his assigns, since that time. The judgment will 
 be for the defendant, in respect of the portion defended for, with 
 costs. 
 
 The plaintiff appealed against this decision, and such appeal 
 was heard on the 28th April, 1882, before Sidgreaves, C. J., Ford 
 and Wood, J. J. 
 
 Van Someren, for plaintiff, reiterated Lis arguments in the 
 Court below, and referred to Story Eq. Jut: §§ 398, 799, 1236-7, 
 in addition to the authorities then cited. He further con- 
 tended, that there was no reasonable evidence in support 
 of the finding of the Court below, of the alleged agreement 
 between J. E. L., and the defendant ; that the only evidence was 
 the statement of the defendant, and that of the most vague kind, 
 and such agreement was not set up until the trial, and was an 
 afterthought, J. E.L., being dead, and his executor also dead, the 
 
518 O^VIL CASES. 
 
 SfDORKAvnB, plaintiff, who personally had no knowledge of the matter, was 
 
 c - J - unable to disprove the alleged agreement and was thus at a 
 
 &' } J J disadvantage. The question of whether there was or was not, 
 
 Wood J " "reasonable evidence, was one of law, and a decision based on 
 
 1881, evidence which was not reasonably sufficient, would be erroneous 
 
 Lo^In in Point of law. Best on Ev. 104. That the old doctrine, that if 
 
 •. there was a scintilla of evidence, it was sufficient to justify a 
 
 Heoh Ah case being left to a Jury, and no objection in point of law could 
 
 Tan - be taken thereto, had long since been exploded, and the question 
 
 now always was, whether there was reasonably sufficient evidence 
 
 or not. Avery v. Bowden, 26 L. J. Q. B. [N. S.] 3, Ryder v. 
 
 Wombwell, 4 L. E. Ex. 32, 38. That under the Act 16 of 1839, 
 
 under which the permits were issued, the permit-holder was only 
 
 entitled to a lease for 20 years, renewable for another 30, at the 
 
 end of that time,— or this was all J. E. L., could have had, and if 
 
 plaintiff was privy in estate to him, it could only be to that 
 
 extent ; but here plaintiff under the grant of 1873, came in for a 
 
 new and larger estate, even an estate in fee, which J. E. L., had 
 
 no right to, and the plaintiff could not be said therefore, to have 
 
 acquired that right from him. The agreement relating to an 
 
 interest in land, was also void under the Statute of Frauds, 29 Car. 
 
 II, c. 3. The Statute of Limitations did not apply, as 12 years 
 
 was not sufficient to bar the Crown, nor therefore the plaintiff, 
 
 the grantee of the Crown. 
 
 Defendant in person. 
 
 Cur. Adv. Vult. 
 
 May -2. Sidgreaves, C. J., said, that as regarded the objection 
 of want of reasonable evidence, there was a great difference be- 
 tween the present case and that of Ryder v. Wombwell ; that here, 
 there -was the uncontradicted statement, on oath, of the defendant, 
 that such an agreement had been made with him by J. E. L, ; 
 it- might have been, that that evidence could have been amplified 
 by further witnesses, but the fact that it was not, he considered 
 did not render that statement less reasonably sufficient evidence, 
 than it would otherwise have been. It was acted on in the Court 
 below audhe was not prepared to say it was not reasonably suffi- 
 ciently to support the finding of that Court. As regarded the 
 objection that the plaintiff in getting a grant in feei was not 
 acquiring the interest of J. E. L., under the Act 16 of 1839, 
 it must be remembered, that the permits hehl by the defendant, 
 as well as by J. E. L., were under a Government Notification of 
 1852 ; this Notification had not been produced, and it was sa,id 
 could not bo found. What the contents of that Notification 
 were, the Court knew nothing, but seeing the grant in fee to the 
 plaintiff, made presumably in pursuance of the Notification, it was 
 bound to assume that Government acted on this Notification, and 
 in exerpise of its inherent right to grant its lands in fee, T^at 
 the interest of J. E. L, was therefore not an estate for years, such 
 as is referred to in Act 16 of 1839, but an estate in fee under this 
 Notification. The plaintiff therefore, by the grant acquired the 
 
STBAITS SETTLEMENTS. 519 
 
 identical interest of J. E. L., and was privy in estate to him, and Sidgbeavbs, 
 bound by his contracts in reference to the land. The other objee- PoB p'^ - 
 tions had been answered in the judgment of the Court below, and & I j. j, 
 he saw no reason for being dissatisfied with those answers. The Wood, ) 
 judgment for defendant in the Court below should in his opinion, ^; 
 be affirmed, with costs. Logan 
 
 Ford and Wood J. J., concurred. v. 
 
 Judgment affirmed. 
 
 Ueoh Ar 
 Tak. 
 
 KWAH CHAN CHEW v. WEE ENG SUK, 
 
 Pw? Asa- 
 
 Defendant having been arrested on an order of arrest, granted on affidavits of two 
 deponents, to which there was only one jurat attached, which was to the effect that it 
 was sworn to by the ** deponent " [in the singular]. Wood" J 
 
 Held,, a fatal defect ; and the order was set aside. 1881. 
 
 Van Someren, for defendant obtained a rule to set aside the 
 writ of arrest granted in this case, and obtained by F. H. Gottlieb, 
 of Counsel for the plaintiff : — 
 
 1. On the ground that the affidavits were insufficient, and 
 that it may be shewn reasonably from the counter-affidavits of de- 
 fendant that he had no intention of leaving the Colony. 
 
 2. That the writ of arrest in following the form given in 
 Form 53 of Ordinance 3 of 1880, was bad as requiring the 
 defendant to give security for too much. The action was on a 
 contract, and the order or writ,— besides requiring security to be 
 given by the defendant '■ that he would not leave the jurisdiction," 
 went to state, " or that any amount recovei'ed against him would 
 "be paid T or the defendant rendered to prison," section 422 b. The 
 Sheriff was bound to obey the order explicitly, and thus defend- 
 ant would be greatly prejudiced, 
 
 3. The affidavit was deficient in this, that the plaintiff sued -as 
 plaintiff — one of a firm — and stated that the defendant was indebted 
 to the firm. Plaintiff ought to have sued in the name of himself 
 and his co-partners, or in the name of the firm. 
 
 4. The copy of the affidavit was not a true one, for it had the 
 word " an" account instead of " his" accoxuit. Power of amend- 
 ment under section 9 would not be exercised — as " an" for " his" 
 was material— and the goods alleged to be sold and delivered were 
 not said to be, by the plaintiff to the defendant. Taylor v. Forbes, 
 1 1 East., 315 ; Young v. Gatieu, 2 M. & S., 603 ; Hancttey v. Frcmchi 
 2 L. B. Ex. 34. 
 
 5. The affidavit consisted of affidavits by two persons — there 
 was one jurat at the end of both, and was in the singular — word 
 "deponent," is used. Pari jo v. Terret, 12 L. J. C. P., 148; Cob- 
 bett v. Oldfield, 16, M. & W. 469. 
 
 6. " This," was altered into " his," in the jurat — " his" is 
 material— ~Mary Ann Worthington, C. B. 511. 
 
 P. H. Gottlieb, for the defendant shewed cause. 
 Wood, J. I consider no satisfactory answer is given to objection 
 5, for perjury clearly could not be assigned on it, against either of 
 
 November 21. 
 
520 CIVIL CASES. 
 
 Wood, J. the deponents — the objection is fatal. The form of the order 
 
 1881 • of arrest, in requiring security for payment of the amount, or 
 
 Kwah Chan defendant be rendered to prison, is clearly erroneous ; but I am 
 
 Chew inclined to think that the objection is not fatal, as it might be 
 
 treated as surplusage, the Sheriff being guided by the section in 
 Wee Eng , , .-. -, . r ° 
 
 g UE- the Ordinance. 
 
 Writ of arrest set aside — costs to be costs in the cause. 
 
 ALLAGAPPAH CHBTTY & ANOR. 
 
 v. 
 
 TUNKU ALLUM BIN SULTAN ALLIE ISKANDErV SHAH. 
 
 Singapore. When 'a document relating to affairs of State is declined to be produced, — it is for 
 
 the Officer of Government, subpoenaed to produce it, — and not for the Court, — to decide, 
 
 Sidgreaves, whether its production would be contrary to good policy, as not conducive to the pub- 
 
 C. J. lie welfare. 
 
 1881. . The Indian Evidence Act II, of 1855, [*. s, 21 & 23] has not altered the law in 
 
 this respect. 
 
 December 29. Beaton v. Skene, 29 L. J, Ex. N. S, 430, followed. 
 
 The plaintiff subpoenaed the Governor of this Colony, to produce certain docu- 
 ments and correspondence relating to the succession to the Throne of the State of Muar, 
 and to certain allowances to be made to the members of the late Royal Family of that 
 State, of whom the defendant was one, A great part of these documents and corres- 
 pondence had been published in the Blue Book for the information of the general pub- 
 lic. Plaintiff, the assignee of a sum of money, payable under a Treaty to the Sultan of 
 Muar, and which he alleged was the identical sum now being allowed the defendant, 
 commenced an action in this Court, against the defendant, in respect of this sum, and 
 in order to prove the identity of the sum, subpoenaed the Governor to produce the , 
 aforesaid documents and correspondence. These papers Were brought into Court 'by the 
 Colonial Secretary, who declined, however, to produce them, on the grounds that his 
 doing so", would not be conducive to the public interests, as they related to State affairs, 
 and it would be contrary to good policy to do so. 
 
 Held, by the Court of first instance, that he could not be compelled to produce the 
 documents. 
 
 Jleld, on appeal, by Ford, J., that the judgment of the Court below was wrong, and' 
 the documents and correspondence should have been compelled to be produced, as the 
 Government, by the very fact of publishing the papers and letters in the Blue Book, 
 had given them publicity, and decided the question in favour of their admission in 
 evidence. 
 
 Held, by Sidgreaves, C. J., that the judgment of the Court below was right, and 
 the fact of the publication in the Blue Book, made no difference. 
 
 The money payable under the Treaty to Sultan Allie, the Sultan of Muar, and bv 
 him assi'gued to the plaintiff was granted by the Tumongong of Johore to him, [Sultan 
 Allie] " his heirs and successors" in consideration of certain arrangements in respect of 
 the extent of country to he governed by each. 
 
 Held, by Ford, J. [and affirmed by the Privy Council, without expressing an 
 opinion on the other points raised] that on the true construction of the Treaty, the 
 grant did not confer such an interest in the money, upon Sultan Allie, or to enable him 
 to assign it beyond the period of his own life, [a] 
 
 _ This was a suit to have it declared that the plaintiffs were 
 entitled to a certain sum of live hundred dollars, originally pay- 
 able monthly nnder a Treaty, by the Tumongong of Johore to the 
 Sultan of Muar, under the circumstances mentioned in the state- 
 ment of claim, which is set out at length in the judgment. The 
 purport of the Treaty is referred to in the judgment of the Privy 
 
 [a] The lteport of the case in the Privy Council, is taken verbatim from 8 L B. 
 App. Cases, p. 751, 
 
STRAITS SETTLEMENTS. 521 
 
 Council.given below. The further facts of the case, and the points Sidoeeaves, 
 raised at the trial, sufficiently appear from the arguments, and J • ' f- 
 
 in the several judgments delivered in the case. ' 
 
 Davidson, [Bond with him] for plaintiffs. AtLAaAPPAH 
 
 T. Braddell [Attorney-Gen eraT], Joaquim with him, for defendant. Chitty 
 
 V. 
 
 Cur. Adv. Vult. Tunku Al- 
 
 lum, &c. 
 
 On this day, judgment was delivered by 
 Bidgreaves, C. J. The case on behalf of the plaintiffs is set out 
 in the statement of claim as follows : — 
 
 " 1. On the 1st day of June, 1860, His late Highness Sultan Allie 
 Iskander Shah, the then reigning Sovereign of the territory of Muar, other- 
 wise called Kassang, borrowed from Kavena Chana Shellapah Ohitty, a 
 British subject residing and trading in the Straits Settlements as a native 
 Banker and Merchant, the sum of Dollars Fifty-three thousand six hundred 
 [§53,600] and by his bond of that date the said Sultan bound himself, his 
 heirs, successors, executors and administrators in the penal sum of $107,200, 
 with a condition for making void the same on payment to the said Kavena 
 Chana Shellapah Ohitty of the said sum of ?53,600 at the expiration of one 
 year from the date thereof and interest thereon in the meantime, monthly at 
 the rate of 15 per cent, per annum, and for the better securing the payment 
 of the principal sum and. interest in the said bond mentioned and contained, 
 the said Sultan by deed poll of the same date, for himself his heirs, succes- 
 sors, executors and administrators, granted, bargained, sold, assigned, trans- 
 f eiTed and made over to the said Kavena Chana Shellapah Chitty, his exe- 
 cutors, administrators and assigns, a certain monthly sum of §500 which, by 
 a treaty of friendship and alliance-between His Highness Sultan Allie Iskan- 
 der Shah bin Sultan Hussain Mahomed Shah and His Highness Datu Tumon- 
 gong Daing Ibrahim bin Abdul Rahman Sri Maharajah, dated the 10th 
 March, 1855, was made payable by the said Datu Tumongong Daing Ibrahim 
 bin Abdul Rahman Sri Maharajah, his heirs and successors, to the said Sultan 
 Allie Iskander Shah, his heirs and successors. 
 
 " 2. His Highness the said Datu Tumongong Sri Maharajah and his 
 successor, His Highness Aboobaker the present Maharajah of Johore had 
 due notice of the above assignment, and from the month of June, 1861 until 
 the month of December, 1876, paid to the said Kavena Chana Shellapah 
 Chitty as such assignee, the said monthly sum of $500. 
 
 " 3. His Highness the said Sultan Allie Iskander Shah, died on the 20th 
 day of June, 1877 at Muar, or Kassang aforesaid, and His Highness Aboo- 
 baker, Maharajah of Johore, the successor of His Highness Datu Tumongong 
 Daing Ibrahim Sri Maharajah, shortly afterwards assumed sovereign autho- 
 rity over the said Territory of Muar or Kassang, and the British Government 
 has since recognised this assumption of sovereign authority to the exclusion 
 of the defendant, who claimed to be the rightful heir of his father, the late 
 Sultan Allie Iskander Shah. 
 
 "4 By deed of the date, the 18th September, 188' i, the said principal 
 sum of $53,600 secured by the said bond and deed poll, and all arrears of in- 
 terest due thereon, and all interest to become due for the same, and also the 
 said bond and deed poll and the full benefit and advantange thereof, were 
 assigned to the plaintiffs. 
 
 " 5. The defendant is the eldest son and heir of the said Sultan A Hip. 
 Iskander Shah, and is a British subject resident in Singapore, and is not a 
 Sovereign Prince. 
 
 " The sum now due and owing on the said bond for principal and interest 
 amounts to $121,025. 
 
 " His said Highness Aboobaker, Maharajah of Johore, pays monthly to the 
 Colonial Treasurer of the Colony of the Straits Settlements, the said month- 
 ly sum of $500 under some arrangement with the Government of this Colony 
 that His said Highness shall continue to pay the said sum of $500 monthly 
 
522 CIVIL CASfiS. 
 
 Sidgrbaves, to the said Colonial Treasurer, until it lias been decided by a competent Court 
 
 C, J. that the said Kavena Chana Shellapah Chitty or any person, or persons 
 
 X881. claiming under him is, or are entitled to the same. Under the said arrange- 
 
 ■" — ment or some other arrangement the Colonial Treasurer is now paying the 
 
 Allagappah sa id monthly sum of $500 to the defendant. 
 
 Chettt " q. His Highness Aboobaker, Maharajah of Johore, is a Sovereign 
 
 & anob. p r ince and not amenable to the jurisdiction of the Courts of the Colony." 
 "■ The plaintiffs claim, — 
 
 Tunku Al- « j j^ fl ec i ara tion that they are entitled to receive the said monthly 
 
 lum, &c. aum o; £ |gQQ -with an y arrears thereon which may have accrued or may accrue 
 until the amount due on the said bond is, with the interest thereon, fully dis- 
 charged and satisfied." 
 
 " 2. An account of what has been received by the defendant on account 
 of the said monthly sum of $500 since the death of the said Sultan Allie Iskan- 
 der Shah and payment by the defendant to the plaintiffs of the sum so 
 received." 
 
 " 3. An injunction restraining the defendant from receiving either by 
 himself or by his agents or agent the said monthly sum of $500 and any 
 arrears that may have accrued or may accrue thereon.'* 
 
 ¥ 
 
 From this it appears that the plaintiffs claim under an 
 assignment from one Kavena Chana Shellapah Chetty ; and the 
 manner in which his claim originated is set out in the 1st para, 
 of the plaintiff's statement of claim. It is quite clear from it, that 
 although the Chetty may have been a British subject, he advanced 
 the money therein mentioned on a security, over which this Court 
 could have had at the time no possible control. The bond given 
 by Sultan Allie Iskander Shah, whatever effect it might haye in 
 the Territory of Muar, could have had no effect then in this Colony. 
 As regards the assignment of the $500 payable by virtue of the 
 Treaty therein mentioned, it is quite clear also that neither over 
 the treaty nor over the yearly sum payable by virtue of it, nor over 
 the assignment of such yearly sum, could this Court exercise any 
 control. If either or both of .the contracting parties to bhe treaty 
 had refused to be bound by it, or from the default of either, the 
 $500 per mensem was no longer forthcoming, the Chetty had no 
 remedy except by an appeal to the sense of justice of the contract- 
 ing parties. _ The Chetty must have been perfectly well aware of 
 this at the time that he entered into the arrangements for the loan, 
 and must be supposed to have made his calculations accordingly' 
 and into those calculations the possibility of obtaining redress 
 through the medium of this Court could hardly at that time have 
 entered. 
 
 The 2nd para, sets out that after notice of the assignment, 
 H. H. the said Datoo Tumongong and his successor H. IL Aboo- 
 baker, the present Maharajah of Johore.pajd the said $500 monthly 
 to the Chetty from June, 1861, to December 1876. 
 
 They might, however, have refused to recognize the assign- 
 ment or to have anything to do with the Chetty, and have con- 
 tinued to make the payments to Sultan Allie. In that cas.e the 
 Chetty would have been dependent upon the good faith of Sultan 
 Allie, and if he had thought fit to repudiate his debts or to post- 
 pone the payment of them to an indefinite period, it is certainly 
 not to this Court that the Chetty could have looked for redress 
 
 Prom the next paragraph it appears that on the death 'of 
 Sultan Aihe, H. H. the, Maharajah of Johore became his succes- 
 
STRAITS SETTLEMENTS 523 
 
 sor, and that although the defendant claimed to be the rightful Sidoreaves, 
 heir of his father, his claims were not acknowledged. Had he jg 81 ' 
 
 succeeded, however, in establishing his claims there in his capa- 
 
 city of Sovereign Prince, the Court could have had no control over Allagappah 
 his acceptance or repudiation of his father's debts and liabilities. ^^« 
 He might have entered into a new treaty with the reigning Sove- „. 
 reign of Johore, or insisted upon treating the assignment as a Tcnku Ai- 
 piece of waste paper, and it is quite clear that whatever redress LTIM > &c> 
 the Chetty might have sued for either in Muar or Johore, he 
 could by no possibility have expected any through the Courts of 
 this Colony. The grounds upon which it is now sought to make 
 the defendant liable upon the original assignment by Sultan Allie 
 to the Chetty are set out in para. 7. 
 
 The defendant does not admit any of the allegations contain- 
 ed in this paragraph, and sets out in his statement of defence, at 
 considerable length, his account of the transactions therein refer- 
 red to. Inasmuch, however, as they were not supported by any 
 evidence, it becomes unnecessary to refer to them. 
 
 In support of the allegations in the 7th paragraph of the 
 statement of claim, the Hon'ble Cecil C. Smith, the Colonial 
 Secretary, was called as a witness by the plaintiffs' Counsel to 
 produce a letter of the 29th July, 1881, addressed to himself by 
 Mr. Bond, and 13 other letters and documents which His Excel- 
 lency the Governor had been subpoenaed to produce, and for whom 
 at the suggestion of the Court, adopted by the plaintiffs' Counsel, 
 the Colonial Secretary attended. AH of these he declined to pro- 
 duce, on the ground that the doing so would not be conducive to 
 the public interests, that they related to affairs of State, and that 
 it would be contrary to good policy to have them produced. 
 
 I decided that he was not bound to produce them, and for 
 the purpose of having the case in as complete a form as possible, 
 I will state briefly my reasons for so doing. By section 21 of 
 Act II. of 1855 : 
 
 " A witness whether a party or not shall not be bound to produce any 
 document relating to affairs of State the production of which would be con. 
 trary to good policy, nor any document held by him for any other person who 
 would not be bound to produce it if in his own possession," 
 
 By Section XXIII ; 
 
 " Every witness summoned to produce a document shall, if the same be 
 in his possession, custody, or power, be bound to bring it or cause it to be 
 brought into Court, although there be a valid objection to the right of the 
 party calling for ic to compel its production or to the reading or putting in 
 as evidence, or to the disclosure of the contents thereof ,- the validity of any 
 such objection made by the person producing the_ document shall be deter- 
 mined by the Court ; and for the better determination thereof it shall be 
 lawful for the Court to receive any admissible evidence which the person pro- 
 ducing the document may give respecting it, and it shall also be lawful for 
 the Qourt, except in the case of any document relating to affairs of State, to 
 inspect the document." 
 
 The Court being satisfied by the oath of a gentleman who 
 from his position was so thoroughly qualified to form an opinion 
 
524 
 
 OIYIL OASES. 
 
 Siugbeaves, upon the subject, that those letters and documents did relate to 
 c ' J - affairs of State, and that in his opinion the production of them 
 18S1 , would be contrary to good policy, had no alternative as it appears 
 Allagajpah to me, but to decide that he was not bound to produce them. 
 Ohbttt Under the 23rd section, if the Court is not satisfied of the validity 
 & anok. o j an Qjjjggtion to the production of a document, it may " receive 
 Tunku Al- " any admissible evidence which the person producing' the docu- 
 lum, &o. " ment may give respecting it," but if the document relate to 
 affairs of State, it is not lawful for the Court to inspect the docu- 
 ments. There is literally nothing, therefore, for the Court to 
 proceed upon except the evidence of the person producing the 
 documents, and in the case of that person being, as in the present 
 instance, the Colonial Secretary of the Colony, the Court would 
 naturally come to the conclusion above stated. The point is very 
 clearly explained in the case of Beatson v. Skene, 29 L. J. N. S., 
 430, where C. B. Pollock, in delivering the judgment of the 
 Court, says : 
 
 " We are of opinion that if the production of a State paper would be in- 
 jurious to the public service, the general public interest must be considered 
 paramount to the individual interest of a suitor in a Court of Justice ; and the 
 question then arises, how is this to be determined ? It is manifest it must be 
 determined either by the presiding Judge or by the responsible servant of the 
 Crown in whose custody the paper is. The Judge would be unable to deter- 
 mine it without ascertaining what the document was, and Why the publication 
 of it would be injurious to the public service, — an inquiry which cannot take 
 place in private, and which, taking place in public, may do all the mischief 
 which it is proposed to guard against. It appears to us, therefore, that the 
 question, whether the production of the document would be injurious to the 
 public service, must be determined, not by the Judge, but by the head of the 
 Department having the custody of the paper ; and if he is in attendance, and 
 states that in his opinion the production of that document would be injuri- 
 ous to the public service, we think the Judge ought rtot to compel the pro- 
 duction of it. The administration of justice is only a part of the general 
 conduct of the affairs of any state or nation, and we think that it is [with 
 respect to the production or non-production of a state paper in a Court of 
 Justice] subordinate to the general welfare of the community." 
 
 Notwithstanding the exclusion of this evidence, the plaintiffs' 
 Counsel persevered in their attempt to prove the 7th paragraph of 
 , the statement of claim. It was contended that this monthly sum 
 of $500, being the Treaty money assigned to the plaintiffs, was 
 now paid by H. H. the Maharajah of Johore directly or indirectly 
 to the defendant, and that the plaintiffs were at at all events en- 
 titled' to the declaration they ask for, and for an injunc- 
 tion restraining the defendant from receiving it. The evi- 
 dence adduced, however, has quite failed to satisfy me upon 
 the point. Indeed the evidence given by Mr. W. H. Eead 
 points very much the other way. In his cross-examination 
 by Mr. Davidson he says, "In June, 1878, I received a sum of $500 
 for that month. I have received it up to date ; it was paid to me 
 by order of the Governor to pay to Tunko Allum's family— two 
 sums, one of $750, which the family refused to receive. I should 
 say Tunku Allum did not claim it under the Treaty of 1855 — as 
 far as I am concerned, he did not so claim it — he declined the 
 $750 because it was offered as compensation — he received the $500 
 
STRAITS SETTLEMENTS. 525 
 
 because it had been paid for a longtime. I received the money Sidgreaves, 
 to be divided amongst the family : — Tunku Allum got $800 a °" & 
 month, out of which he had to support his wife and family, his Ford, J. 
 sister and 2 brothers. His mother received $50 and his family at issi. 
 Malacca $150 a month." ailwTppah 
 
 What further light would have been thrown upon the case Chettt 
 by the letters and documents which it was sought to put in evi- & anor. 
 dence, I am, of course, unable to judge. The defendant's Coun- *'■ 
 
 sel also complained of their exclusion as affecting his client's LlJMj & c ' 
 case, but as the matter now stands, the evidence seems to me to 
 point to an abrogation of the Treaty and a new arrangement 
 by which the money is paid for the benefit of the defendant and 
 his family. 
 
 The plaintiffs have failed, I consider to make' out any case 
 for the intervention of this Court, and the verdict must be 
 entered for the defendant. 
 
 The plaintiffs appealed against this judgment. 
 . 5th April, 1882. The appeal was now heard before a 
 divisional Court of Appeal, formed of Sidgreaves, C. J., and Ford, J. 
 Davidson, [Bond with him] for plaintiffs. Material evidence 
 has been improperly rejected. The rejection, arose on the exami- 
 nation of Mr. Cecil Smith, the Colonial Secretary, who was asked 
 to produce a certain series of documents — thirteen in number : he 
 declined to produce these documents on the ground that their 
 production would not be conducive to the interests of Government. 
 He believed their production would be against the interest of good 
 government. As to certain documents for the production of which 
 a subpoena had been addressed to the Governor, Mr. Smith stated 
 that he appeared on behalf of the Governor and was instructed 
 to decline to produce the papers called for as they related to 
 affairs of State, and it would be contrary to good policy to produce 
 them. Asked if he considered that documents which were 
 published in the Blue Book came within the designation of " State 
 " secrets" he said he did not. Shown several documents in Bine 
 Book relating to this case, he said he had no doubt they were 
 correct copies. The Court held his reasons sufficient. The whole 
 of this correspondence was laid before the Legislative Council, 
 and several documents including all that the" plaintiffs desire 
 particularly to use, were in the Blue Book. They ceased certainly 
 to be then State secrets if they ever could properly have been so 
 described. Any man in the country could read them there in the 
 Blue Book. The section of the Act, section 23 of Act 2 of 1855, 
 referring to the exclusion of evidence, was never intended to apply 
 to a case like this. The section was, — " Every witness summoned 
 to produce a document shall, if the same be in his possession, 
 custody or power be bound to bring it or cause it to be brought 
 into Court although there be a valid objection to the right of the 
 party calling for it to compel its production, or to the reading or 
 putting in as evidence, or to the disclosure of the contents there-. 
 
526 
 
 CIVIL OASES, 
 
 SlDGREAVES, 
 
 C.J. 
 
 & 
 
 Ford, J. 
 1881. 
 
 Allagafpah 
 Ghettt 
 
 & ANOR. 
 
 of : the validity of any such objection made by the person produc- 
 ing the document shall be determined by the Court, and for the 
 better determination thereof it shall be lawful for the Court to 
 receive any admissible evidence which the person producing the 
 document may give respecting it, and it shall also be lawful for 
 the Court, except in the case of any document relating to affairs 
 of State to inspect the document." What was meant by a 
 document relating to affairs of State, which it would be inadvis- 
 able to produce, was, — a document containing matter which it 
 would be detrimental to the public interest to publish or make 
 known ; a State paper, the making public of which would en- 
 danger the public good. But these documents were already pub- 
 lished, open to the whole community; published by the State 
 itself. It is impossible to regard them as documents of the des- 
 cription protected by clause 23 of Act 2 of 1855. Best on Ev. 
 273, Taylor on Ev. 724. It was for the Judge to decide, and not 
 the witness, whether the document is of that nature, and with 
 that view to examine the witness. The question whether an 
 annuity was assignable or not, hardly came within the case at all. 
 The defendant was not appealing ; he had got judgment in his 
 favour, and it was not for him to now raise a new case, a totally 
 different one from that placed before the Court in the first 
 instance. 
 
 T. Braddell [Attorney-General] , for defendant, went over the 
 circumstance! under which the annuity was assigned by Sultan 
 Allie to the Chetty, remarking that the question was not, what 
 the assignor intended, nor what the assignee expected to get ; but, 
 if, as was contended, the meaning of the assignment was, that 
 the annuity in perpetuity was handed over, whether the late 
 Sultan had not completely gone beyond his power in the matter, 
 — whether or not the utmost that he could do was, to assign over 
 his life-interest in the annuity. This could only be decided by 
 referring to the terms of the Treaty of 1855, and this the Court 
 could not do. The matter was beyond the jurisdiction of 
 the Court. The question was not one to be settled by the narrow 
 rules of Municipal Law, but by the broad rules of political or inter- 
 national law. His case was that when Sultan Allie died, his 
 rights died with him. He could not, after he was dead deal with 
 this portion paid to him of the revenues of Johore. For another 
 reason this Court had no jurisdiction. The land of Johore, or the 
 revenue from it, which was the subject of the assignment, is not 
 now and never was within the jurisdiction of the Court, which is 
 consequently unable to deal with the matter. The question was 
 not whether the parties to this contract sued upon were British 
 subjects or not, but whether this $500 and the whole matter of 
 its disposal were not the subject of a Solemn Treaty between the 
 Maharajah of Johore and the British Government, and therefore a 
 matter which this Court could not deal with. This case, on every 
 ground, was one for the Courts of Johore or Muar and not for the 
 Supreme Court of this British Colony. As to the $500 now being 
 paid to Tunku Allum, it was not the Treaty money. The Treaty 
 money that Sultan Allie dealt with ceased to be payable and ceased 
 
STRAITS SETTLEMENTS, «27 
 
 to be paid at his death. This $500 was a sum in substitution of Sidgeeavjbs, 
 the Treaty money paid by the Maharajah to Tunku Allum, ^' 
 
 through an arrangement come to through the intervention of the Fobd, J. 
 Colonial Governments Because the sum was the same, the other 1881. 
 side assumed it was the same money ; but this was an entirely ± hh ^ppAa 
 erroneous assumption. The evidence of Mr. W. H. Eead negatived Chbttt H 
 that assumption ; he told them money was not claimed by Tunku & asoh. 
 Allum under the Treaty, and that a fresh arrangement was made „ v - 
 upon the death of Sultan Allie. The Treaty of 1855 was between ™m, &c L " 
 the Maharajah of Johore and Sultan Allie, the Maharajah promised 
 to pay the Sultan, in consideration of his surrendering certain 
 rights to the Territory of Muar, $500 per month, which was to be 
 continued to his heirs and successors. But his son Tunku Allum 
 was not his father's heir and did not inherit this $500. The 
 Maharajah himself was the Sultan's successor in the Sovereignty 
 of the Territory. The Treaty lapsed on the death of the Sultan; 
 the monthly payment of $500 could no longer be paid ; it would 
 only be taking money from one pocket and putting it into the 
 other. Certain arrangements came to be made on the Sultan's 
 death for the support Of the Sultan's family, &c, and provision 
 was made for their maintenance by an arrangement which was 
 completed between the Maharajah and the Colonial Government, 
 On Her Majesty recognising His Highness as Ruler of Muar. As 
 to the refusal of the Colonial Government to produce the corres- 
 pondence called for by the defendant, correspondence connected 
 with the completion of that arrangement providing for $1,250 
 being placed at the disposal of the Government for the sustenance 
 of the Sultan's descendants and relatives, that action was consist- 
 ent with the position of the Government throughout, the Govern- 
 ment had, in the political interests of the States, refused to give 
 any assistance whatever to one side or another side in this litigation. 
 In Beatson v. Skene, C. B. Pollock laid it down clearly that it was 
 for the Government to judge, and not for the Court to decide, 
 whether the political tendency of the production of any document 
 would be injurious to the public good ; the Government had full 
 materials to enable them to say whether any document should be 
 kept back as a State secret ; the Court had no material whatever. 
 Certain portions of a correspondence^ a memorandum of the result 
 of a correspondence consisting of a large number of letters, might 
 be published for general information ; and that with wisdom and 
 benefit ; while at the same time the production of the whole cor- 
 respondence might be extremely inadvisable as likely to be detri- 
 mental to the public good. It was for the Government to decide 
 what of its own documents, should be considered State secrets. 
 The Government was the guardian of its own secrets, and should 
 not be interfered with in so guarding them in the interests of the 
 public good. 
 
 Davidson in reply. The Treaty was not for the Court to deal 
 with ; what was sued on was an assignment, which was admitted, 
 of $500 per month payable in perpetuity by the Maharajah, in the 
 first place to Sultan Allie and at present to his assignees the appel- 
 lants. But if the Treaty had to come before the Court, why, it 
 
528 CIVIL OASES. 
 
 Sidgreaves,. was in evidence ; it was sworn to by one of the witnessed ; and the 
 
 c & J " Court could interpret it. The Courts every day interpreted trea- 
 
 Foed J. ties of all kinds, extradition, patents, and so on. There was no 
 
 1881. information before the Court that when this treaty was made, the 
 
 two parties were Sovereign Princes. His contention was that the 
 
 L Chettt AH contrary was the case. What Tunku Allum took under the treaty 
 & anok, was as capable of being decided by this Court as by any Court in 
 the world. This was the only tribunal that could deal with this 
 case. Why should Tunku Allum or the Chetties go to Johore 
 and submit themselves to the law there ? How could they '? 
 They were British subjects, resident here, and certainly within 
 the jurisdiction of this Court. The money was paid into the 
 hands of persons over whom this Court had control ; and who 
 would respect the declaration of the Court that his clients were 
 entitled to it in preference to T^inku Allum. The Attorney-Gene- 
 ral had ignored the Blue Book of course, but there was the Colo- 
 nial Secretary's letter to Mr. Bond, in which he admitted that the 
 Government was prepared to submit the legality of the Chetties' 
 claim to the Supreme Court and to abide by the award of that 
 Court. That letter placed the matter beyond a doubt as to what 
 the intention was, and plainly told them that t his money was the 
 Treaty $500, if indeed, there could be a doubt on that point after 
 Mr. Willans' evidence. This, then, was the Chetty's evidence of 
 what Tunku Allum himself said, when pressed to settle; "lam 
 " getting the $500 now from the revenue of Johore, which is mort- 
 " gaged to you. Wait till Mr. Bead comes and we will go into the 
 " accounts and come to a settlement." After this the Court was 
 asked to accept the statement that this was not the Treaty money. 
 The Sultan had full power to dispose of the annuity as he had 
 done. [The correspondence on this subject, published in the 
 Blue Book, was then read at some length.] 
 
 Cur. Adv. Vult. 
 < 
 
 19th April, 1882. The Judges being divided in opinion on 
 certain points, delivered their judgments seriatim. 
 
 Ford, J. Iii. this case I differ from the view of His Honor 
 the Chief Justice in the Court below, in not directing the Colonial 
 Secretary to produce the two documents set forth in the Blue 
 Book. Concurring entirely in the decision and reasoning in the 
 case of Beatson v. Skene, I think that the action of the Govern- 
 ment in publishing the documents in question has already decided 
 the question as to their being such documents as, on the grounds 
 of public policy, should not be produced in a Court of Justice, and 
 that the evidence of the head of the Department in a contrary 
 
 sense — evidence, in the nature of things, of opinion only is one. 
 
 therefore, which the Court, under such circumstances, is entitled 
 to weigh. Had I weighed it, I should certainly have reached the 
 conclusion , that the previous action of the Government— an 
 authority, of course, superior to the head of the Department— had 
 determined the question in a contrary sense and that the privilege 
 to refuse production ceased. To the argument used in the 
 
BTRAltS SETTLEMENTS. 
 
 C.J. 
 & 
 
 POBD, J. 
 
 1881. 
 
 Allagapfah 
 Chettt 
 
 & ANOB- 
 V, 
 
 Tuneu Al- 
 
 LUM, &.C. 
 
 appeal, — via,, that there might be other correspondence in the Snxaaivw, 
 hands of thfe Government unpublished but, connected with that 
 published in the Blue Book, and without which an erroneous view 
 of the effects of the published correspondence might be taken, I 
 think it sufficient answer to say that no evidence to that effect 
 was given at the trial. I imagine also that such evidence would 
 be unlikely to have been given in a case where selected documents of 
 the kind are published with the view of giving the public a correct 
 and not an erroneous view of the subject dealt with. I do not 
 think that the section in our Evidence Act varies the duties or 
 power of the Judge as laid down in the English cases. A question 
 of some difficulty as to how far secondary evidence was admissible 
 in case the Colonial Secretary had refused to produce the docu- 
 ments in question had the learned Judge ordered him to do so, 
 might perhaps have arisen ; but as this stage in the matter was 
 not reached, I do not feel called upon to pronounce any opinion in 
 the matter here. 
 
 Having these documents and the other evidence of the 
 plaintiff and nothing but the evidence of Mr. Bead for the 
 defendant before me — for the defendant's statement of defence' 
 was not upon oath or supported by other evidence of any kind — 
 I confess that a very strong conclusion has forced itself on my 
 mind to the effect that the $500 a month now paid by the Maha- 
 rajah of Johore is the $500 the subject matter of the Treaty of 
 1855 ; and had I to arrive at a conclusion in the case upon this 
 being a correct view of the facts or not, I should have been com- 
 pelled to differ from the decision of the Court below. I should 
 also have done so had the right of the parties been decided upon 
 a question of jurisdiction adversely to the jurisdiction of this 
 Court, for I am clearly of opinion that as between the rights of 
 the two private parties the objects of a Treaty, where both they 
 and the subject matter of the Treaty, are within the jurisdiction, 
 these rights can be adjudicated upon by this Court ; but I do not 
 understand the Court below to have given a contrary opinion upon 
 this point, the observations made in the judgment having reference 
 to what would have been the case whilst all parties to the Treaty 
 retained their Sovereign rights, and to a period antecedent to 
 the annuity being paid into the hands of persons here. Whilst 
 differing, however, in the two first points from the decision 
 of the Court below, I am compelled to concur in the substance 
 of its decision, vis. — that the plaintiffs have no power to enforce 
 against the defendant, the assignment from the late Sultan Allie 
 of the annuity agreed to by the Treaty. Assuming the effect of 
 the Treaty to have been a grant of $500 to the Sultan " his heirs 
 " and successors" — I am putting the rights of the plaintiffs on the 
 strongest ground by adopting that assumption — I am unable to see 
 by what right the Sultan could have alienated more than a life 
 interest in the grant. No doubt, on the authority of cases govern- 
 ed by English Law — a Law still containing many of the incidents 
 founded upon feudal rights and customs — such words as the above 
 have been held to have a technical sense and to pass absolute 
 estates, and the first done has been held to have a full power of 
 
m CIVIL OASES. 
 
 HowMiirMF alienation. But that snch was or is the effect of the use of such 
 ^ ■ words in the law of Johore— by which, I apprehend, the words of 
 
 Fokd.j. this Treaty were to be construed — we have no evidence and in its 
 
 1981. absence I cannot import a meaning to them generally unknown^ 
 
 . Igappa as far as I am aware, among Eastern nations, and which, read by 
 
 CkETTT AH any other light than English Law, would be a meaning quite con- 
 
 # anob. trary to that of the parties who used them. 
 
 v - . For the above reasons whilst differing in some respect from 
 
 lv™&c? *he course taken by the Court below, I agree with the decision 
 which it has given. 
 
 With reference to the right of the plaintiffs to appeal on the 
 first and second grounds stated in their memorandum of appeal, on 
 the objection having been originally raised by the Court and' not 
 having been pressed by the Counsel for the defendant, I do not 
 wish to prejudice any right of the plaintiffs to an appeal on these 
 grounds, should they take the case further, by an adverse decision 
 of a Court constituted as this is, — by consent, and of two judges 
 only. I think this question had better be decided by the full 
 Court of Appeal, when actually contested ; in this view I under- 
 stand the Chief Justice to concur. 
 
 Sidgreaves, C. J. I concur in what has been, stated by His 
 Honor Mr. Justice Ford with regard to the grounds of appeal upon 
 which this matter was argued before the Court. The further 
 argument in the Court of Appeal has failed to convince me that 
 the evidence rejected in the Court below was not properly rejected 
 or that the judgment given was not in accordance with, the 
 evidence. As regards the fifteen documents alleged to have been 
 improperly rejected in the Court below, ihe question as to 
 the rejection of ,13 of them, was not pressed, the main- 
 contention being that 2 letters were excepted from the 
 rule of exclusion referred to in the judgment in the Court 
 below, in consequence of their having been already published 
 in the Blue Book of the Colony. My learned colleague takes a 
 different view from that already expressed by me upon this point ; 
 but I have not been able to come to any other conclusion than 
 that the same reasoning applied to these two documents as to the 
 thirteen others. If it were for the judge to satisfy himself that 
 the documents might be made public without prejudice to the 
 public service, as Baron Martin thought, contrary to the opinion 
 of the majority of the Court, in the case of Beatson v. Skene, re- 
 ferred to in the judgment in the Court below, then probably I 
 should have felt it my duty to compel the production of those 
 documents. _ But that case appears to me to establish that it is . 
 not for the judge to overrule the expressed opinion of the " respon- 
 sible servant of the Crown in whose custody the paper is," how- 
 ever much his own opinion may differ from it. In the present 
 instance the Colonial Secretary must have been perfectly well 
 aware before he attended in Court that a copy of those documents 
 had already appeared in the Blue Book. Notwithstanding that, 
 he pledged his oath that the production of those two documents 
 would not .be conducive to the public interests. It might very 
 well.be that, the Judge at the trial when such abatement was 
 
STEAITS SETTLEMENTS. 631 
 
 made did not very clearly see how that could be ; but at all events Sidobbavbs, 
 it might be, and that was the sworn testimony of the Colonial C 'J- 
 Secretary that it was. Who was more likely to know whether it j OBD , j. 
 would be so, the Judge or the Colonial Secretary? Clearly, as it 188*1. 
 
 appears to me, the latter. It is not necessary, as it appears to me, , 
 
 to consider how this could be, whether as suggested by the cnm*" 
 Attorney-General as one mode of accounting for it, the production & anob. 
 of those two letters alone without the production of others which *• 
 could not be produced, would give an incomplete aud fallacious ^f&c*" 
 aspect to the case. The possibility of it was not excluded. The — ^~ 
 question was broadly raised upon the Colonial Secretary's evidence [Judgment of 
 whether or not the production of those documents was injurious conncUJ 
 to the public service, notwithstanding their appearance in the 
 Blue Books. Who was to determine it ? In the language of the 
 case I have already referred to and quoted, — "the question 
 " whether the production of the document could be injurious to 
 " the Public Service, must be determined not by the Judge but by 
 " the head of the department having the custody of the paper," 
 This transfer of responsibility can hardly cease when the Judge 
 entertains a different opinion from " the responsible servant of the 
 " Crown." In that case there would be no transfer of responsibility 
 at all. I remain, therefore, still of opinion that those two docu- 
 ments were properly rejected in the Court below. Those letters 
 were not read in the Court below, but they were read in the Court 
 of Appeal. On the question of their being " material" evidence, 
 I do not consider that their admission would have in any way 
 effected the judgment delivered in the Court below. 
 
 The plaintiff appealed from this judgment, to the Judicial 
 Committee of the Privy Council, on all the points, and these were 
 severally argued before their Lordships ; but as their judgment 
 turned entirely on the construction of the Treaty, the arguments 
 on the other points are omitted. The appeal was heard on the 
 6th January, 1883. 
 
 Present :— 
 
 Lord Watson, 
 Sib Barnes Peacock, 
 Sib Eobebt P. Collieb, 
 Sib Eichabd Couch, and 
 Sib Abthur Hobhouse. 
 
 The Solicitor-General [Sir F. HerscheU] and Bigby, Q. C, 
 [Mayne, with them], for the appellants, contended that the inter- 
 est of the Sultan Allie, in the monthly sum of $500 was such as 
 could be alienated, and that the applicants were entitled to satis- 
 faction of their claim thereout. A grant to a sovereign, his heirs 
 and successors, gives an absolute alienable interest. As regards 
 sovereignty there is no distinction between public and private pro- 
 perty with regard to these Eastern sovereigns : Elphinstone v. Bed- 
 
682 CIVIL CASES. 
 
 Smjmuhtes, reeehund. [I] With regard to the law of Johore and the question 
 
 c -/- whether under that law an absolute interest passed to the Sultan, 
 
 Ford J. no proof of the state of that law was given, and therefore it must 
 
 1881. ' be assumed to be the same as the law of England, by which a grant 
 
 to the sovereign, his heirs and successors, vests on absolute estate 
 
 L ™ H in fee simple. There would be no remedy against the sovereign 
 
 & anoe. refusing to pay, but there is against the payee who has received 
 
 "■ the money. Eei'erence was made to Einloch v. Secretary of State 
 
 i IST&c f or 'India- [2] The money was paid to the British Government 
 
 — '— ' under the treaty, and therefore for the benefit of, whoever, was en- 
 
 [Judgmentof titled to it. There is nothing in the treaty to prevent alienation. 
 
 CoundlT The word "assigns" was not wanted ; "heirs" was sufficient to 
 
 create an absolute estate : McCarthy v. Goold [3] ; Earl of Stafford 
 
 v. Buckley [4] ; Wells v. Foster [5] ; Willcock v. Terrell [6] . 
 
 The Attorney-General [Sir H. James ], Davey, Q. C. and Jeune, 
 for the respondent, were not called upon. 
 
 The judgment of their Lordships was delivered by 
 Sir Barnes Peacock : — 
 
 Their Lordships are of opinion that, on the true construction 
 of the treaty, the $500 a month stipulated to be paid by Sri Maha- 
 rajah, his heirs and successors, to Sultan Allie, was not assignable 
 by Sultan Allie beyond the period of his own life. 
 
 The object of the Treaty, as appears by the recital, was to put 
 a final end to differences and disagreements which had subsisted 
 between the two Rajahs relative to their respective claims on the 
 territory and sovereignty of Johore, and to establish and maintain 
 peace, friendship, and amicable relations between them. Though 
 the words "heirs and successors" are not used in the recital, the 
 object of the treaty was stated to be " to maintain peace, friendship, 
 "and thoroughly amicable relations between them from thence- 
 " forth in all time to come." * The first article declared that " His 
 "Highness Sultan Allie, for himself, his heirs and successors, does 
 " hereby cede in full sovereignty and absolute property to His High- 
 " ness Sri Maharajah, his heirs and successors for ever, the whole of 
 " the territory of Johore." The second article is : — " In considera- 
 " tion of the cession contained in the foregoing article, His High- 
 " ness Sri Maharajah- does hereby agree to pay immediately after 
 " the execution of these articles, to His Highness Sultan Allie, the 
 " sum of 5,000 Spanish dollars." With regard to that sum Sultan 
 Allie had, no doubt, the power of disposing of it. It was to be 
 paid to Sultan Allie himself. But then Sri Maharajah further 
 engaged that he, his heir and successors, would from and after the 
 1st day of January, 1855, pay to Sultan Allie, his heirs and suc- 
 cessors, the sum of 500 Spanish dollars per mensem. By the third 
 article Sri Maharajah withdrew all claim whatsoever to the said 
 territory of Kassang, describing it, and consented that Sultan 
 Allie, his heirs and successors, should have and enjoy the same in 
 full sovereignty and property for ever. The object of the treaty 
 being to settle all disputes, the arrangement was that Sri Maha- 
 
 [1] 1 Knapp, 329, n. [4] 2 Ves, Sen. 171. 
 
 [21 7 App. Cas. 619.. [6] 8 M. & W. 149. 
 
 [3] 1 B. & B. 387. [6] 3 Ex. D. 323. 
 
STRAITS SETTLEMENTS. 533 
 
 rajah should have the sovereignty of Johore, to him and his Sidgbeaves, 
 successors, for ever ; and that Sultan Allie, and his heirs and sue- c ^' 
 cessors, for ever, should retain the sovereignty over the territory f 0B d, J. 
 of Kassang, and, in addition to the sovereignty of Kassang, he and 1881. 
 his successors should receive from the Maharajah of Johore the . A ^ PAH 
 snm of 500 Spanish dollars per month. Then Sultan Allie, hy ^chettt 
 the fourth article, stipulated that the said territory of Kassang & anoe. 
 should not be silienated or disposed of to any party or power with- v - 
 
 out the same being in the first place offered to the Bast India ^^Icc!' 
 Company, and then to His Highness Sri Maharajah, his heirs and — — 
 successors, on such terms as His Highness Sultan Allie, his heirs [Judgment of 
 or successors, might be desirous to cede it to any one other party c^xincin 
 or power willing to treat for the same. That was merely a sti- 
 pulation that, although Sultan Allie was to retain the sovereignty 
 of Kassang to him and his successors, they should not alienate it 
 without giving the preference to the East India Company or to 
 Sri Maharajah to take it upon certain terms. The fifth article also 
 appears to be important in considering whether the words "heirs 
 "and successors" were to include " assigns." It is in the words 
 following : " The subject of each of the said contracting parties 
 " shall have full liberty to trade to and pass in and out of their res- 
 " pective territories," and so on ; " and each of the said contracting 
 "parties, for himself, his heirs and successors, hereby solemnly en- 
 " S a S ea ^° d- n0 ac ^ calculated or having a tendency to promote or 
 *f foment disturbances within the territory of the other of them, but 
 " in all respects truly and faithfully to adhere to and observe the en- 
 " gagements hereby entered into by them respectively." One object, 
 as it appears to their Lordships, of that part of the treaty by which 
 the Maharajah of Johore stipulated to pay the $500 a month to 
 Sultan Allie, and his heirs and successors, was that the payment 
 should operate as an inducement to Sultan Allie, and bis succes- 
 sors not to foment disturbances within the territory of Johore, the 
 claim to which had been given up by Sultan Allie to the Mahara- 
 jah of Johore. 
 
 Their Lordships are of opinion that by the term " heirs and 
 " successors" such an interest was not given to Sultan Allie in the 
 $500 per month as enabled him to assign or transfer it beyond the 
 period of his own life. If he could do so, his heirs would have no 
 pecuniary inducement to. restrain them from acts calculated or 
 having a tendency to promote or foment disturbances within the 
 territory of Johore. Looking to the whole scope of the treaty, 
 their Lordships are of opinion that Sultan Allie had no power to 
 assign to the plaintiff the $500 a month for a period beyond that 
 of his own life. That life having ceased to exist, the plaintiff, 
 who has to make out his title to the monthly payment, has wholly 
 failed. 
 
 Their Lordships think that the judgments of both the Courts 
 below were correct, and that this decree ought to be affirmed. 
 They will, therefore, humbly advise Her Majesty to that effect. 
 The appellant must pay the costs of this appeal. 
 
534 CIVIL CASES- 
 
 LIM KHAY CHUAN v. LIM CHOON GEK. 
 
 PxarANO. In order to obtain a new trial on the ground of surprise, it is incumbent on the 
 
 party moving, to prove affirmatively and clearly, that taking the old evidence [already 
 
 Wood, J. adduced] and the new, [sought to be adduced] together, the finding is erroneous. 
 1882. It is too late and dangerous to permit such party, on the argument of the rule 
 
 nisi, to supply additional facts in support of his case. 
 
 February 7. Semble. If a party taken by surprise, does not, at the time, apply for a postpone* 
 
 ment on that ground, but proceeds with the trial on the evidence he possesses, he is 
 bound by the result. 
 
 Glutton, for defendant, had obtained a rule calling on the 
 plaintiff to shew cause why a new trial should not be had on the 
 ground, 1, of surprise, and 2, of inability to obtain the attendance 
 of witnesses from causes beyond the defendant's control. The 
 defendant's solicitor and counsel at the trial, made an affidavit and 
 stated that he was not aware how the plaintiff claimed to be enti- 
 tled to the jewelry claimed in the action, as the statement of claim 
 did not disclose it, until the trial ; and the line of evidence select- 
 ed by the plaintiff for that purpose, entirely took him, and his 
 client, by surprise — that during the trial they had subpoenaed 
 witnesses, who either were unable from illness, or -unwilling to 
 come, and he had applied to the Judge who presided at the trial, 
 to attach some of these witnesses for contempt, which application 
 was not granted — that he believed there was now evidence forth- 
 coming which would clearly establish the defendant's case, and 
 contradict the evidence given by the plaintiff at the trial. There 
 were four other affidavits, shewing certain facts relative to the 
 merits of the case. 
 
 Thomas [Kershaw with him] shewed cause. The affidavit of 
 the defendant's solicitor states only in general terms, that he is 
 told evidence is forthcoming for the defence — he does not tell us 
 what the nature of it is— the other affidavits also prove nothing. 
 There was in fact no surprise, and no certainty of the facts forth- 
 coming being in favour of the defendant to any material extent; 
 The matter was really fully before the Court, and fairly decided. 
 If the defendant had been taken by surprise, he should have ap- 
 plied for an adjournment of the trial— but having elected to stand 
 the result of the trial, he is now bound by it. Belle v. Thompson, 
 2, Cbitty's Rep. 194 ; Harrison v. Harrison, 9 Price 89, Goldicut v. 
 Bangtn, 11 Jurist 544; Hardwright v. Badham, 11 Price 383; 
 Edwards v. Bigman, 2 Dowl. 642 ; Hennings\. Samuel, 2 Dowl. 766 ; 
 Roberts : v. Holmes, 6 Scott N". R. 730 ; Tharpe v. Stallwood, 5 M. 
 & G. 760, s. c, 1 Dowl. & L. 24. The affidavits should satisfy 
 the Court that the finding was wrong. The evidence supplied 
 by these affidavits is most meagre. There was ample lime to have 
 got evidence to meet the case ; or not having it, to ask for a post- 
 ponement. There is no surprise within the meaning of the term 
 and the rule should be discharged. 
 
 Clutton now asked permission to file an additional affidavit 
 stating that he had examined certain witnesses, with statements 
 of the result of their examinations, but not disclosing the names 
 of the witnesses, or the details of the evidence, from the presumed 
 danger of doing so. - * 
 
STRAITS SETTLEMENTS. 
 
 53& 
 
 Thomas objected to the reception of an affidavit at this stage 
 of the proceedings. 
 
 [Wood, J., considered it was too late to file any additional 
 affidavit]. 
 
 Clutton supported the Eule. The cases cited are not in point 
 as to postponement, for they have not the element of surprise, hut 
 simply the absence of a material witness. There was reasonable 
 surprise here. The counsel for the defendant, thought he could go 
 on with the evidence he had. The pleadings shewed him nothing 
 of the plaintiff's case, and' the defendant necessarily was at a loss 
 how he intended to shape it, until the commencement of the trial. 
 The surprise once existing, as no doubt it did, it continued all 
 through the case, as the counsel for the defendant could not know 
 for certain what evidence he had to adduce to meet the plaintiff's 
 case as then set up ; he also had to contend against the difficul- 
 ties arising from the inability of some witnesses and unwilling- 
 ness of others, to attend — this latter he brought to the notice of 
 tbe Court when applying for an attachment against them, which 
 was refused. If new evidence could be given, it would shew that 
 the plaintiff's case is at least open to doubt, if it does not conclu- 
 sively prove in defendant's favour. The affidavits of the defend- 
 ant that we now have on the file, go far to shew that the finding 
 was wrong. The fact that they do not state more is, not the ina- 
 bility of the defendant, at the time of their being drawn, to state 
 more, but the great danger that is incurred by setting out the. 
 facts to be proved, with the names of witnesses and their evidence 
 in detail. 
 
 Wood, J. I am of opinion the Eule ought to be discharged. 
 The danger last suggested, I think, is also a reason against admit- 
 ting fresh evidence after the trial. I incline to think, that the 
 affidavits of the defendant do show surprise, but even then, an ap- 
 plication might have been made for a postponement on that ground 
 — that not having been done, I further incline to think, "that the 
 defendant having gone to trial on the evidence he possessed, heis 
 bound by the result. I am far from thinking this was, by any 
 means, an unwise discretion. 
 
 Presuming then, that there has been surprise on the part of the 
 defendant, is he entitled on that ground only, to move for a new 
 trial?" I think not. I hold, that for the purpose of obtaining, a 
 new trial on that ground, it is incumbent on the defendant to 
 prove affirmatively and clear]/, that taking the new and old evi- 
 dence together, the finding: is erroneous. 
 
 As I decided incidentally, I consider it too late now, on the 
 argument on the Rule, to supply additional facts ; and with the 
 evidence in the cuse before me, I am of opinion, that the new evi- 
 dence adduced, or shewn to exist, is insufficient to satisfy me that 
 my decision of the matters of fact, at the trial, was substantially 
 wrong. The Eule will be discharged, with costs. 
 
 Rule discharged. 
 
 Wood, 3. 
 1882. 
 
 LntKnAT 
 
 Ohcan 
 
 V. .. 
 
 Liu Cboon 
 Gee:. 
 
536 
 
 civil cases. 
 
 Pbnanq. 
 
 Wood, J. 
 
 X882. 
 
 February 9. 
 
 LIM GUAN TEET v, SHAIK AHAMAD BASHAIB & ANOE 
 
 The hringing of an action is not a "presentation for payment," so as to require a 
 foreign bill or note to be stamped under section 17 of Ordinance 8 of 1873, before it is 
 received in evidence. 
 
 The affixing of chops to a promissory note, in lieu of signatures, is a sufficient 
 signature of the note. 
 
 The Sultan of Acheen, a Sovereign Prince, was indebted to the plaintiff : in con- 
 sideration of plaintiff releasing his claim on him, the defendants promised to pay the 
 plaintiff a certain sum. 
 
 Meld, there was sufficient consideration for the defendants' promise. 
 
 TThere service of a writ of summons could not be effected, by reason of the Court 
 having no jurisdiction to entertain the action, 
 
 Beld, the case fell within section 13 of Act XIV. of 1859, and was not barred, 
 though the note sued on, was more than six years old. 
 
 Section 13 applies to all cases, whatever may be the length, nature or circumstances, 
 of the defendants' absence from the Colony. 
 
 This was an action to recover $41,000 besides interest, due 
 on a promissory note or agreement made at Simpang Olim, in 
 Acheen, by Tunku Muda Mah and Tnnku Maharajah of Teloh 
 Samoy, the defendants' intestate. The document bore date 27th 
 November, 1872 and had no stamp on it ; there being then no 
 stamp duty payable at Acheen. This action was commenced last 
 year, and at the time it was commenced, the note remained 
 still unstamped. There were no signatures to the note, but 
 merely the chops or seals, with their respective names engraved 
 thereon, of the two makers — this being the usual and ordinary 
 way in which documents were executed at Acheen. The consider- 
 ation for the- note, as shewn by the evidence, was, the giving up 
 by the plaintiff, of a large claim against the Sultan of Acheen, 
 and accepting the defendants in his stead. The makers 
 had never come within the jurisdiction of this Court, since 
 making the note ; and at the time the suit was commenced^ were 
 still abroad—they then, however, had property within the juris- 
 diction, 
 
 E. W. Presgrave, for defendants, objected to the admissibility 
 of the note, as not being stamped before presentation for payment, 
 under sections 8, 9, 10, 11, 12 and 15 of Ordinance XXVI. of 1867, 
 and section 17 of Ordinance VIII. of 1873— [a] and submitted, 
 that the bringing of the action, being, in law, a demand, 
 it was a presentation for payment, and at that time the 
 document was unstamped. Byles on Bills, [Ed. 1879] 219; 
 Rumbade v. Ball, 10 Mod. 38; Tramptonv. Coulson, 2 Wils. 33; 
 Norton v. Ellis, 2 M. & W. 46 ; Mcintosh v. Hay den, 1 By. & 
 Moo. 362. if > j 
 
 VanSomeren, for plaintiff, submitted no stamp was necessary 
 at all— that "presentation for payment" had a definite and 
 
 M „ J ° ] S / Cti ° n 17 . °{ Ordinance 8 of 1873, reads as follows : " The holder of any bill of 
 WrinTrlZ 11 ° Ut ° f the C0l0ny a ? d „ not havin S a Foper stamp affixed thereon as 
 t h£? ™™™* • in -,■ ' shal i. Mor « he shall present the same for acceptance 
 SiSLTtK'. ?£ u ?°do>-se, transfer, or in any manner negotiate such bil, affix 
 amount rf JTZ?^*™ Stamp denotln gi lle duly by this Ordfnance charged on the 
 
 IZZiLi rS.^L; and the person who shall present such bill for 
 
 hanl™lL Py » et • ' 'wi \- sha11 before he delivers the same out of his 
 ftauds, custody, or power, cancel the stamp so affixed." 
 
STRAITS SETTLEMENTS. 537 
 
 intelligible mercantile meaning and operation — that the sections Wood, j. 
 of the Ordinance referred to, were identical with 17 and 18 Vict-, 1882 ' 
 c. 83, s. 5 — and Griffins v. Weatherly, 3 L. R. Q. B. 753, was con- im Guan 
 elusive on the point. Tbet 
 
 Presgrave in reply. g £' Aha _ 
 
 Wood, J. Under the assumption that the case is governed by MAD bashaib 
 the Stamp Ordinances of 1867 and 1873, and granting that an & anob. 
 action is equivalent to a presentation for payment, yet the words 
 of these two Ordinances must be looked at, and construed strictly, 
 as acts imposing a duty ought to be construed, and with due 
 reference to the known use of words. " Presentation for payment" 
 is a well known mercantile operation; and must be held to 
 mean, presentation in fact, and not the bringing of an action^ 
 although it may have the effect of a presentation for payment. 
 The bringing of an action is not a presentation for payment 
 according to the known acceptation of the term. I may refer to 
 Mcintosh v. Heyden as shewing that presentation of a bill for pay- 
 ment, or a demand in fact,- is a well known incident at law, and 
 the bringing of an action, without demand, is contrary to usage. 
 The objection is overruled, and the document will be admitted. 
 
 The note was accordingly admitted. On the close of the 
 plaintiff's case, 
 
 Presgrave submitted the plaintiff could not recover. 
 
 1st. As there was no signature to the note, but only a chop. 
 Story on Bills, sections 11 and 35 ; Ghitty's Commercial Law, p. 
 280, shewed tbat sealing was not a signature. The Statute of 
 frauds required the promise to be in writing, as thi3 was in effect 
 a guarantee. 2ndly. There was no consideration for the note ;| 
 the Sultan of Acheen, being a Sovereign Prince was never liable! 
 to be sued, and the giving up by the plaintiff, of his alleged claims! 
 against the Sultan, when in law, he had none — afforded, in law, 
 no consideration for the defendants' promise. Chitty on Contract, 
 49, Chitty's Commercial Law, p. 66, 67. Notes to Lamplough v. 
 Brathwaite, 1 Sin. L. C. 147-48; Eastwood v. Keny on, 11 Ad. &E11., 
 438. The utmost that could be said was, that the Sultan was morally 
 bound, but that was no consideration. Srdly. The debt was barred 
 by the Statute of Limitation XIV. of 1859, section 1, clause 16. 
 The defendants could have been sued, but no attempt is made to 
 serve them with a summons till 1881, more than six" years after 
 the note fell due. Section 13 of the Act did not apply, [a] as 
 here the defendants could have been served under sections 23, 29, 
 31, 32 and 34 of Ordinance V. of 1868 — these sections were not 
 repealed by Ordinance V. of 1873. Rhodes v. Swethwrst, 4 M. 
 W. 42, s. c, in error, 6 M. & W. W. 351. 
 
 Van Someren, for plaintiff contended, the mark or chop was 
 a sufficient signature. George v. Surrey, Mood. & Mai., 516 ; Baker 
 v.Dening, 8. Ad. & Ell., 94; Geary v. Physic, 5 B. & C. 234; 
 
 [a] Section 13, Act XIV. of 1859, " in computing any period of limitation pre- 
 scribed by this Act the time daring which the defendant shall have been absent 
 out of the British Territories in India shall be excluded from such computation 
 unless service of a summons to appear and answer in the suit can, during the 
 absence of. such, defendant be made in. any mode prescribed by law." 
 
538 
 
 CIVIL OASES. 
 
 Wood, J. 
 1882. 
 
 LlM GuAH 
 
 Tbjst 
 
 vi 
 
 Shaik Aha 
 
 had BASHAI, 
 
 & ANOit. 
 
 / 
 
 Bennett v. Brwmfitt, 3 L. E. C. P. 28. This Was on the assumption the 
 document was a note — but it was not necessary to contend it was 
 a note, it was an agreement of guarantee, and was sufficiently 
 signed wiih the chop. 2ndly. There was ample consideration for 
 the note : the Sultan was, in fact, relieved from the annoyance 
 and vexation of a law suit— and even if he was not liable, the con- 
 tract was a guarantee, and the consideration need not appear. The 
 Sultan could be sued, whether he would avail himself of his privilege 
 was left with him — if he did not object, the plaintiff would recover 
 I judgment and execution against him. The right to object, was 
 I purely personal with the Sultan— -here, he chose to acknowledge his 
 liability, and the defendants thereupon came to his help, and 
 signed in his stead. 3rdly. The debt was not- barred, as the 
 defendants could not be served with a writ of summons personally. 
 The Court now has jurisdiction under sections 18 and 19 of the 
 Courts Ordinance III. of 1878, as the defendants have property 
 within the jurisdiction, but before this Act, that fact alone gave 
 no jurisdiction. Khu Poh v. Wan Mat, Straits Law Reports, p. 247." 
 A summons could not be served under sections 31, 32 and 34 of 
 Ordinance V. of 1868, as the Court hadTTio jurisdiction; section 
 29 defines the jurisdiction, but this case fell within neither of 
 its alternative provisions. There being no jurisdiction, no action 
 could be brought here — no summons could be issued here, or served 
 and the claim under section 13 of the Limitation Act of 1859 
 was not barred. 
 
 Presgrave in reply contended, that the Court had jurisdic- 
 tion under section 29 of Ordinance V. of 1868j as "the subject of 
 " the proceeding fell, on general principles of international law, 
 "or comity, to be determined by the law of the Colony" — the 
 plaintiff being a British subject, and in this Settlement, the whole 
 six years. 
 
 Wood, J. I am of opinion that the document is properly 
 executed as a promissory note, or if not as a note, as a contract 
 between the parties. I am also of opinion that prior to 1879, 
 " service of a writ of summons to appear and answer in this suit; 
 " could not have been made in any mode prescribed by law," as 1 
 this Court then had no jurisdiction, and that consequently the 
 operation of section 13 of Act XIV. of 1859 applied, favourably to 
 the plaintiff. The second point, as to whether there was any con- 
 sideration, was the only one on which, at first, I had any doubtsV 
 I think, now however, there was sufficient consideration for the' 
 defendants' promise. It is not clearly shewn that the debt was 
 due by the actual Sultan of Acheen, but by a person whom the 
 persons have thus designated— nor has it been shewn, that by the 
 law of Acheen— assuming he was the actual Sultan, he could not 
 be sued. As nas been pointed out by the counsel for the plaintiff, 
 the objection to the exercise of jurisdiction, according to the' 
 English Law, rested entirely with him. If he did not choose to 
 take it, the action against him would proceed. Here he acknow- 
 ledged his indebtedness and liability, and requested the defendants 
 to sign for him, which/they did. The judgment will therefore be 
 for the plaintiff on all the points taken— and for the full sum of 
 
STRAITS SETTLEMENTS. 
 
 539 
 
 $41,000 and interest, together with costs. Shjgeaves 
 
 Against this judgment the defendants appealed on all the „ °-'*' 
 points taken, except the one on the Stamp Act. | D f j. j. 
 
 29th April, 1882. The appeal now came on to be heard Woo ,^i 
 before the full Court of Appeal. _ 
 
 Ross, [Presgrave with him] for appellants mainly relied on ll l^ iI ' 
 objections 2 & 3. They cited Chitty on Contracts [10th ed.] p. p. v, 
 
 26, 27, 437~3S*"& 470. French v. French, 2 M. & Gr. 644; ShaikAha- 
 Payne v. Wilson, 7B.&C. 423, 426; Johnson v. Nicholh, 1 Q. B. ^l^T*™ 
 2S1; Croft v. Beall, 11 C. B. 172; Jones v. Ashburner, 4 East 
 455. On the point of the Statute, they contended, that sec- 
 tion 13 of the Act XIV. of 1859 did not apply, to the case where, 
 the defendants, from the time they made the note, to date of their 
 being sued, never were within the jurisdiction — and cited Haber v. 
 Steiner, 2 Bing. N. C. 202 ; Williams v. Jones, 13 East 439. 
 
 Van Someren, for respondent, was not called on. 
 
 Gwr, Adv. Vult. 
 
 May 2nd, The unanimous judgment of the Court of Appeal 
 was delivered by 
 
 Sidgreaves, C. J. affirming the judgment of the Court below, 1/ 
 on all the points. 
 
 Judgment affirmed. 
 
 LIM GUAN TEET v. TUNKU AKOBE. 
 
 "Where a defendant has been arrested under a writ of arrest, and it is intended to 
 have him discharged from custody, on account of some defect in the proceedings, — the 
 application, or the rule nisi, should be to set aside the order granting the arrest, and 
 not the writ only. The Court, however,has no power under section 9 of the Ordinance V. 
 of 1378, to order the application, or rule nisi, to be amended accordingly. 
 
 A plaintiff, bond fide intending to negotiate with defendant about certain business 
 in pursuance of an offer to that effect on the part of the defendant, requested the 
 defendant to come to Penang for that purpose. The defendant came. Owing to the 
 defendant's conduct, the negotiation fell through, and the defendant thereupon was about 
 to return to his country when the plaintiff, without any fraud, caused him to be arrest- 
 ed for a debt,"altogether independent of the other business, 
 
 Held, he was not at liberty to do so ; and inasmuch as, but for such the defendant's 
 presence in the Colony, the Court had no jurisdiction to entertain the suit," the order of 
 arrest, the writ of summons, and all subsequent proceedings, were set aside. 
 
 Senible, A foreign Sovereign Prince is not exempt from the jurisdiction of the 
 Courts of this Colony, unless he is recognized as such, by the British Crown, [o] 
 
 Thomas, for the defendant had obtained a rule calling on the 
 plaintiff to shew cause, why the defendant should not be dis- 
 charged from custody and the writ of arrest, summons, and all 
 subsequent proceedings herein, set aside, on the grounds : ls%,That 
 the defendant was a Sovereign Prince and so without the juris- 
 diction of this Court, Sndly, That the defendant was not with- 
 drawing himself from the Settlement within the meaning of 
 section 422 b. of the Ordinance VIII. of 1880, 3rdly, That the 
 defendant had been induced by the fraud of the plaintiff to come 
 over to Penang, and had, on his arrival, beqri arrested. 
 
 There were various affidavits and counter affidavits filed by 
 [o] See Abdul Wahab &c„ v. Sultan of Johore, ante p. 298. 
 
 Pbnano. 
 
 Wood, J. 
 
 1882. 
 
 April 24. 
 
540. 
 
 CltlL CASES. 
 
 Wood, J. 
 
 1882. 
 
 IiIM GuAN 
 
 Teet 
 
 V, 
 TUNKU 
 
 Akobe. 
 
 both parties; the defendant's affidavits stating he was the 
 Sovereign Prince of Pateh ; and the plaintiff's, that he was not, 
 that the question of the sovereignty of Pateh was still under the 
 consideration of the Netherlands Government, and at all events 
 the defendant was not recognised by the Government of the 
 Colony, or the British Crown, as a Sovereign Prince. On the 
 second and third objections, the defendant's affidavit stated, that 
 he had been induced to come to this Settlement, from Pateh, in 
 consequence of two urgent letters of the plaintiff, requesting him 
 to do so with the view to his renting to the plaintiff certain farms 
 at Pateh, and but for this inducement he would not have come 
 here, and his intention to return was due, not to his wishing to 
 avoid the process of this Court, but to return to his native country, 
 as the plaintiff had not appeared willing to take the farms. The 
 plaintiff's affidavits on this point, admitted the two letters, but 
 shewed that they wex-e written in consequence of a letter first 
 received from the defendant, [which he subsequently admitted] 
 in which he offered the plaintiff the farm, and asked for an 
 advance of money — that the plaintiff had asked the defendant to 
 come over here, — but did not do this with any fraudulent or im- 
 proper motive, and the negotiations for the farms fell through, 
 only on account of the exhorbitant rent, and that, in advance, 
 which the defendant wanted for them. The Dutch Consul 
 appeared . at an early stage of the case, and requested that the 
 defendant should be allowed immediately to return to Pateh, as he 
 had received instructions to make such application on the grounds 
 that the reports from Pateh were disquieting, and complications 
 between the Dutch and the people of Pateh would probaly ensue, 
 involving loss of life and property, if he did not immediately 
 return. - He also made an affidavit that the defendant was an 
 independent Prince, and Supreme Euler in his State of Pateh and 
 was so recognized by the Netherlands Government. The defend- 
 ant was allowed to leave the jurisdiction on terms, and without 
 prejudice to the motion and suit. The contract sued on was 
 made abroad [at Pateh], and the case did not fall within section 
 19 of Ordinance 3 of 1878, except for the defendant's appearance 
 within the jurisdiction. The rule now came on for argument, 
 
 Van Someren, for plaintiff, shewed cause. 
 
 1st. The rale should have been to set aside' the order grant- 
 ing the arrest, and not the writ of arrest. This is a fatal 
 objection. Hophmsv. Salenbir, 5 M. & W. 423, sections 9 and 184 
 of the Civil Procedure Ordinance V. of 1878, cannot avail. 
 
 Thomas asked leave to amend his rule under section 9. 
 
 Wood, J. considered that section 9 applied, and directed the 
 amendment to be made, and adjourned the case for that purpose. 
 May 3rd and 4th, 1882. The amendment having been made, 
 Van Someren continued to shew cause. 1st. The defend- 
 ant is not a Sovereign Prince. There is a treaty between the 
 Crown of England and the Sultan of Acheen made in 1819 
 which shews that, at that time, and presumably since, the 
 Sultan of Acheen is a Sovereign Prince, and wan recognized, as 
 
STRAITS SETTLEMENTS, 
 
 fiil 
 
 such, and as an independent Prince. Since then there has heen 
 no recognition. The independent states, if any there he, which 
 have arisen since the Acheen war, and the overthrow of the Sultan 
 of Acheen, and from the ruins of his State, — as this one of Pateh 
 — have not been recognized by our Governmen t of the British Grown, 
 and without such recognition, there is no State within the 
 judicial knowledge of the Court, or that the Court can recognize 
 if proved. Wheaton's Inter. Law, p.p. 20, 21 and 27. Phillimore 
 Inter. Law, paras. 117-118, also p. 15, 25, 26 and 27, especially 
 paras. 21 and 22 in page 25. City of Berne v. Bank of England, 9 
 Versey, 347 ; Dolder v. Bank of England, 10 Ves. 352, a. c. 11 Ves. 
 283 ; Thompson v. Bowles, 2 Simons Rep. 194 ; Taylor v. Barclay, 
 Ibid. 213. 
 
 2ndly. The contract on which he is sued is not an act of 
 state. The defendant chooses to go into private speculations, 
 and is liable for his private contracts. Mwnden v. Duke of Brunswick, 
 10 Q. B. 656 ; Wad'sworth v. Queen of Spain, 17 Q. B. 171, 215-16, 
 Emperor of Brazil v. Robinson, 5 Dowl. 522. 
 
 Srdly. There was no fraud in this case. The letters were 
 written by the plaintiff to the defendant bond fide, and but for the 
 defendants own conduct, the negotiation for the farm would have 
 terminated successfully. This, however, fell through, and the 
 claim of the defendant on the present contract, is quite distinct 
 from and independent of that mentioned in the letter. The 
 plaintiff cannot be prevented enforcing his remedies here on this 
 contract, when the defendant won't pay him — simply because in 
 some other business matter he was instrumental, acting bond fide 
 in bringing defendant within the Settlement. The case of Stein v. 
 Valkenhuysen, 27 L. J. Q. B. 236, which was cited on moving for 
 the rule, is clearly distinguishable ; as there it was a fraud and a 
 sham on the part of of the plaintiff, and was not denied by him. 
 
 4thly. The defendant's leaving is an absconding within the 
 meaning of section 422 b. of the Ordinance V. of 1878 — Lamond v. 
 3 Q. B. 910. 
 
 Thomas in support of the rule. 
 
 It is not necessary that there should be an actual recognition 
 — a virtual recognition is sufficient. Phillimore, p. 15 ; and that 
 much our Government has certainly done. 
 
 [Wood, 3. The authorities seem to lay down, that recognition 
 is first necessary, before this Court can hold the defendant exempt. 
 I don't at present see there has been any recognition, but if the 
 occasion require, it, will the parties consent to my enquiring of the 
 authorities, if there has been any communication between the 
 Dutch Government and the Crown of England, relative to the 
 independent state of Pateh in Acheen, and if so what ?] 
 
 The parties agreed to this. 
 
 2ndty. There was fraud on the part of the plaintiff, or at 
 least attempted by the inducement held out to the defendant to 
 come within the j urisdiction in his two letters. The case of Stein V. 
 Valkenhuysen is not distinguishable from the present case. 
 
 drdly. The plaintiff is estopped by the contract and by the 
 
 Wood, J. 
 
 1882. 
 
 Lin Gtuan 
 Tarn 
 
 v. 
 Tusku 
 
 Akobe. 
 
Wood. J. 
 
 " 1882. 
 
 JiIM Gjjan 
 Tj:et 
 
 v. 
 Tnmcrj 
 
 Akobe. 
 
 642 OIVIL OASES. 
 
 letters, from saying the defendant is not a Sovereign Prince, 
 and the contract sued on not an act of State ; as the contract is 
 with the defendant as the ruler of the country, for the whole of 
 the pepper of certain districts, which, the affidavits shew, could 
 only be dealt with by the Ruler and Prince of the State. 
 
 Uhly. At all events, if he is not estopped from denying this, 
 and there is no fraud, still he is estopped from proceeding against 
 the defendant, who he brings within the jurisdiction, and but for 
 which fact this suit would not lie here. The plaintiff impliedly 
 undertakes by his letter, to use no hostile proceedings against the 
 defendant by asking him to come here: 
 
 '„-? Wood, J. It is Unnecessary for the Court to express any 
 opinion on most of the points which have been argued, as I am of 
 opinion that objection 2 has been satisfactorily urged in favor 
 of the defendant, viz., that he had been induced to come within 
 the jurisdiction of the Court, under representations which are 
 reasonably held to engage, that offers contained in his letter, 
 would be favourably considered, and he should not be treated 
 hostilely in the matter of this suit. I don't think the plaintiff's 
 conduct fraudulent; but I hold, it is not competent to him, he 
 having induced the defendant to come within the jurisdiction for 
 one purpose, and by his acts and conducts led the defendant to 
 believe, and to act, in good faith, on the supposition that he meant 
 to b e friendly-— afterwards to change his ground, and take him on 
 a capias, as for the original cause of action. The Rule will be 
 absolute to set aside the order for arrest and writ of arrest; the 
 summons and all subsequent proceedings will also be set aside, as 
 but for the defendant's being within the Settlement, this Court 
 could have no jurisdiction. 
 
 Rule absolute. 
 
 HIN LEE & CO. v. COHEN. 
 
 Pbnajto. 
 
 WoOBj J. 
 
 1882. 
 Ma; 4. 
 
 Where an auctioneer under a misapprehension of the real facts attending the sale, 
 knocked down an article to a person he supposed to be the highest bidder, but after so 
 doing he was made aware of the true state of things, whereupon he declined to enter 
 the name of such supposed purchaser into his book, as the purchaser, or to make delivory 
 of the goods to him, 
 
 - Held, although the hammer was down, he was not the agent of the supposed pur- 
 chaser, so as to be liable for not making a binding oontraot for him — nor was he liable 
 or not making delivery of the goods. 
 
 This was an action to recover $500 damages for non-delivery 
 of 50 cases of butter, or in the alternative, the same damages, for 
 refusing to make a binding contract for the sale of the said cases. 
 The evidence shewed that the defendant, who is an auctioneer, had 
 been instructed by Messrs. Boustead & Co., to put up for sale 
 sundry articles, on their account; that among other articles so 
 offered were these cases of butter, but the defendant was instructed 
 not to knock them down without the consent of a clerk who 
 Messrs. Boustead & Co., had placed in charge. The butter was a 
 long while being bid for, and the auctioneer, supposing for some 
 reason, that the clerk had assented, knocked the butter, down to 
 
STRAITS SETTLEMENTS. 543 
 
 the plaintiffs, supposing the highest hid was theirs. He subse- Voop, J. 
 qnently found the plaintiffs were not the highest bidders, and the * 882 ' 
 clerk aforesaid also stating he did not assent to the bntter being HinLeeA 
 knocked down at the figure then named, the defendant refused to Co. 
 enter the name of the plaintiffs in his book, as the purchasers, and c Vf 
 on reference to the manager of Messrs. Boustead & Co., the latter p 
 refused to allow the butter to go at the figure named for it. 
 The defendant therefore neither entered the plaintiffs' name in 
 his auction sales book nor delivered the butter, but attempted to 
 re-sell same, when, owing to the dispute, the various bidders left 
 and no second sale could be had. The plaintiffs alleged that when 
 the butter was knocked down to them by the defendant, he handed >.-■'■■ 
 them a tin as part delivery ; this the defendant denied, alleging 
 the tin was taken off the table by the plaintiffs, during the dis-i 
 pute. The sale was declared to be " to the highest bidders." The 
 highest bid was made by a person [Jumansah} on behalf of Messrs, 
 Boustead & Co., witb the object of buying in the butter. 
 
 E. W. Presgrave, for plaintiffs contended that as the sale was 
 to the highest bidders and not under a reserved price, there could 
 be no buying in of the goods ; that the defendant as anotioneer 
 was agent for vendor as well as purchaser, so soon as the hammer 
 was down, and as the purchasers' agent, he was bound to have 
 made delivery to them — who were, but for the man Jumansah — 
 the highest bidders ; or should have signed the sales book so as to 
 make a binding contract. He cited Pearse v. Corfe, 9 L. R. Q. B. 
 210; Benjamin, on Sales, p. 201, 202; Emerson v. HeeUs, 2 Taunt 
 38 ; Mainprice v. Westley, 6 B. & S. 420 ; and Warlow v. Harrison, 
 28 L. J. Q. B. [N. S.] 18, on appeal 29 L. J. Q. B. [N. S.] 14. 
 He also contended that, in fact, there had been a part delivery of 
 the one tin of butter. 
 
 Van Someren, for defendant contended that on the point of 
 delivery, in fact, the defendant's case was the true one, and as 
 regarded the points of law, the auctioneer was not in all cases, by 
 the fall of the hammer, the agent for the purchaser ; each case 
 stood on its peculiar circumstances — and cited Benjamin on Sales, 
 pp. 202, 203, 204. Here the knocking down of the hammer, and 
 declaring the plaintiffs the highest bidders was a mistake ; the 
 whole thing was done under a misapprehension of the real state 
 of things; there was, in law, no contract as there was the absence 
 of consent with full knowledge, and the Court would not assist 
 the plaintiffs in getting what was nothing more than an attempt 
 to get and take advantage of, the defendant's mistake. 
 
 Presgrave in reply. 
 
 Wood, J. I find, as a fact, that the plaintiffs have not made 
 otit their case that they were the purchasers for the butter, — but 
 on the contrary, I am of opinion, on the evidence, that Boustead 
 & Co., through Jumansah, were the highest bidders — or in other- 
 words, that the goods were bought in. . I also find as a fact, that 
 there was no part delivery of the butter. The whole affair seems 
 to have been a mistake. The butter was knocked down to the 
 plaintiffs under a misapprehension of the true state of facts, and 
 to hold the defendant liable in such a case, Would he to go beyond; 
 
544 CIVIL OASES. 
 
 Wooi>, J. any case that has yet been decided. There was an entire absence 
 
 1882. f assent — that is, an assent knowingly given, with full knowledge 
 
 HinLe^ & °f the facts— and there is therefore no contract. The defendant 
 
 Co. also, cannot, under the circumstances, he held the agent of the 
 
 purchasers, so as to make a binding contract for them. The 
 
 plaintiffs' case has failed in every respect, and the judgment must 
 
 be entered up for the defendant, with costs. 
 
 Cohen. 
 
 OH WEE KEE v. BOON BONG NEOH & OES. 
 
 Pbnano. Where certain persona were entitled to life estates in certain premises, but 
 during the continuance of such life estate, the Municipality, under Act V. of 1857, 
 
 Foed, J. to k possession of the premises for a public purpose, and paid compensation there- 
 
 1882. f OTy 
 
 - — - Held, the life estates were not thereby put an end to, but the tenants for life 
 
 May, 10. -were entitled to an apportionment of the compensation paid, in respect of their 
 life interests. 
 
 At the time the arbitrators were making their award as regard the compensa- 
 tion to be paid for the premises taken, the life tenants waived their claim to ap- 
 portionment, and requested the arbitrators to make none in respect of their life- 
 interests : they subsequently, in this suit, claimed apportionment. 
 
 Held, they were entitled to same. 
 
 A testator gave all his property, real and personal, to his executors upon 
 trust to sell the same, [excepting certain houses] and then gave certain specific 
 legacies out of the proceeds of such sale, and gave " the rest, residue, and remainer 
 " of his property" to certain charitable objects — with respect to the premises, he 
 then proceeded to direct, that these should be kept for certain purposes. Those 
 purposes, except as to' a small portion, failed to take effect and were void, 
 
 Held, the houses, on termination of the purposes for which the small portion 
 took effect, did not thereafter fall into the residuary clause: that the residuary- 
 clause was of a limited character ; and the houses, except as aforesaid, were undis- 
 posed of. 
 
 These houses having been taken over for a public purpose and compensation 
 paid therefor, and this compensation apportioned among the persons entitled to, 
 life interests, [which was the small portion which took effect,] 
 
 Held, the residue of the proceeds or compensation, also did not fall into the 
 residuary clause, but was undisposed of. 
 
 The testator died without any known next-of-kin, but by his Will had devised . 
 his property to Trustees upon trusts, which were either incapable of taking effect, 
 or were void. 
 
 Held, the property was undisposed of, and notwithstanding the presence of 
 the Trustees, escheated to the Crown. ' 
 
 Bead v. Steadman 26 Bear. 495, followed j Sweet v, Sweet, 33 L. J. Ch. N. S. 211 
 distinguished. ' 
 
 When costs of all parties are given out of the testator's " general estate," 
 every portion of such estate is liable to contribute towards such costs. 
 
 This was a special case stated by the parties in order to have 
 the proper construction of the "Will of one Boon Ah Too deceased, 
 dated 21st day of May, 1858, and of a codicil thereto, dated 11th 
 August, 1858, of which the plaintiff was executor, and to have the 
 rights of the various parties interested, declared. By his Will, 
 the testator appointed the plaintiff and two others, his executors' 
 who proved the said Will, and Probate was granted to them. The 
 plaintiff was the surviving executor at the time of this suit. The 
 testator after nominating his said executors and appointing them 
 guardians of the persons and estates of his adopted children, de- 
 vised and bequeathed unto his executors, their executors, adminis- 
 trators and assigns, all his real and personal estate whatsoever and 
 
STRAITS SETTLEMENTS. 645 
 
 wheresoever, upon certain trusts, that is to say, upon trust as soon Fobd, j. 
 as conveniently might be to collect and call in all debts and ^' 
 monies due to him and to sell and dispose all and every his pro- oh WikKek 
 perty of which he might die possessed of [except the house in «• 
 Beach Street where he was then living] which he described by Bo ? r N BoNa 
 parcels, and particulars, [and three houses in Pitt Street] which & ^s. 
 he also described, [and which he directed should be reserved for 
 purposes thereinafter directed,] and from the proceeds of the 
 same, together with all his ready money, to pay his debts, funeral 
 expenses and certain specific legacies, and then proceeded as 
 follows : — " And as to the rest, residue and remainder of my estate 
 " and effects after being converted into ready money, my execu- 
 " tors will invest the same at interest in good security of landed 
 " property, and the interest that may be derived thereby be given 
 " and distributed as charity to the indigent poor as also to supply 
 " coffins when they die, as I am in the habit of doing. With 
 " respect to my aforesaid house in Beach Street and all the fur- 
 " niture that are therein I desire that the same be kept for the 
 " use of my aforesaid adopted son and daughters [the defendants] 
 " and Chew Sin Tew [who was then dead] who is also my adopted 
 " son, free of any rent or charge, but they, the occupiers, are to 
 " keep the house in proper repairs and pay all taxes thereon as 
 " well as quit-rent, and they will also defray at their own costs 
 " and charges the expenses for the performance of yearly prayers 
 '• for me according to the Chinese rites and customs. And as to 
 " the aforesaid three houses in Pitt Street, I desire that two of 
 " them be kept and let out as at present, and the rent thereof be 
 " appropriated for the benefit of the poor as aforesaid and the 
 " other remaining house be kept for the use and occupation of the 
 " poor as at present. It is my particular wish that my aforesaid 
 " house in Beach Street, and the three houses in Pitt Streets, 
 " shall not be sold or disposed of by my executors, but be kept 
 " and appropriated as herein described." By the aforesaid codicil 
 to his Will, the testator after directing the same to be taken as 
 part of his Will, revoked one of the specific legacies in his Will, 
 and then proceeded " and I do direct the same to be reverted into 
 " and be appropriated as the rest and residue of my estate and 
 " effects as directed in the said Will." The testator was a 
 widower and had no children of his own — those he referred to 
 were all his adopted children. At the time of his death he had 
 not, nor had he at the time of the suit, any known relatives or 
 next-of-kin in Penang or elsewhere. The adopted children for 
 some time after the testator's death, resided in the house in 
 Beach Street, but subsequently removed therefrom, and rented 
 the same out to various tenants. Their right to do so having been 
 questioned by the executors, a suit [No. 33 of 1876] was com- 
 menced by the present defendants against the present plaintiff 
 and his co-executor who was then alive, praying to have it de- 
 clared that they [the then plaintiffs] were under the said Will, 
 joint tenants in fee of the said house in Beach Street and as such 
 were entitled thereto. The executors in such suit maintained 
 
846 CIVIL OASES. 
 
 Pobd, J; that the devise of the house was void as heing in perpetuity and 
 188a - in restraint of alienation, and they claimed and submitted that 
 
 Oh Wbk^Kibk the same ought not to be so declared, and to go into the residuary 
 ,«". clause and be decreed to be sold and the proceeds applied to the 
 
 Boon Bono charitable purposes therein declared. At the trial of the said suit 
 4 "°* on the 23rd November, 1876, this Court [Phillippo, J.] declared 
 that the testator's adopted sons and daughters took equitable 
 estates for life, as joint tenants, in the said house in Beach Street, 
 free from all restrictions, but declined to pronounce any decision 
 then, as to who should take, or what should be done with the said 
 property, after the termination of such equitable life estate. 
 Thereafter the adopted sons and daughters rented out the said 
 house, and enjoyed the rents and profits thereof until shortly 
 before this case, when the building being so old and out of repair 
 as to be dangerous to the public safety, the same was directed to 
 be pulled down by the orders of the Municipal Commissioners. 
 A short while after, the defendants put up a building which 
 however they left unfinished and subsequently the Commis- 
 sioners being desirous of improving the Street, applied under 
 the Indian Act VI. of 1857, to the Government of the Colo- 
 • ny, -to take the same, for such public purpose. On the 27th 
 November, 1880, the plaintiff and the defendants were served with 
 notices from the Collector of Land Revenue that the land was so 
 about to be taken over, and requested them to name their arbitra- 
 tors to set a value on the property — arbitrators were appointed 
 and they awarded the sum of $7,000, as compensation to be paid 
 for the land, and $800 for the unfinished buildings put up by the 
 defendants. At such enquiry by the arbitrators, the defendants 
 waived all claims in respect of compensation for their life estates, 
 and requested that no apportionment should be made in regard 
 thereto. Disputes having thereafter arisen as to who were en- 
 titled, and in what proportions, if any, to this sum of $7,000, the 
 amount was detained by the Collector of Land Eevenue until 
 the decision of this Court on this special case. Four questions 
 were, on these state of facts, raised for determination bv the 
 Court. J 
 
 1. Whether the devise of the house in Beach Street, became 
 by reason of the act of the Commissioners, incapable of taking 
 
 2. If it had, whether according to the true construction of 
 the Testators' Will, the defendants, [the adopted children, and 
 devisees of the house, for life,] could elaiin the proceeds of the 
 house knd land in lieu thereof; and had they any interest in such 
 proceeds, and if so, what interest. 
 
 3. If the devise of the house was incapable of takino- effect 
 
 ?fi i* P S°T d ^ ere ° f could not be substituted therefor, and 
 the defendants had no interest in such proceeds-, whether such 
 proceeds tell into the residuary clause of the Will 
 
 titled thereto 6 pr ° Ceeds did not fal1 int0 the residue > vho was en- 
 The Crown claimed the residue of the proceeds, and interven- 
 
 Cu &S tl puxty. 
 
STRAITS SETTLEMENTS. 847 
 
 Van Someren, for plaintiff. The decree of this Court in 1876 Joed, J. 
 can be reconsidered, aa to whether the defendants really had a ^' 
 life estate in the house. Oh Web Kbb 
 
 [Ford, J. thought that as that decree had not been appealed v. 
 against, it could not now be interfered with]. BooN BoNO 
 
 Even if they had a life estate in the house, as the house &™l 
 has ceased to exist by title, paramount, their life estate ceases 
 with it. Palmer v. Fowler, 13 L. E. Eq. 250 ; Wards' Trust, 
 7 L. E Ch. Appls. 727. That devise has become incapable 
 of taking effect. 2ndly. The defendants are not entitled to 
 the proceeds in lieu of the house. Palmer v. Fowler and 
 Ward's Trust-supra. The defendants before the arbitrators 
 waived their claim to apportionment thereof, in respect of their 
 life estates, and cannot now be allowed to claim it. Srdly. The 
 proceeds fall into the residuary clause. Wills Act, XXV. of 1838, 
 section 21 ; 1 Jarman on Wills, p. 75. The excepting of property 
 from the residuary clause, does not prevent such property falling 
 into the residue, if the clause relating to same is void, 1 Jarman 
 [3rd edition] 726, Evans v. Jones, 2, Coll: Ch: Cases, p. 516; James 
 v. Irving, 10. Beav. 276 ; Wain v. Field, Kay. 507 ; Morgan v. 
 Boyce, 3 My. & Cr. 661 ; Hawkins on Wills, p. 42. The residuary 
 clause here constitutes a good charity. Athly. If it does not fall 
 into the residue, as there are Trustees, the Executors, — the Crown 
 cannot take. The proceeds cannot escheat to the Crown. Sweet 
 v. Sweet, 33, L. J. Ch. N. S. 211. 
 
 E. W. Presgrave, for defendants contended that the defendants 
 were entitled to apportionment in the proceeds in respect of their 
 life interest, and cited Jeffreys v. Conner, 28 Beav. 328 ; Richard 
 v. Moore, 27 Beav. 629 ; Midland* Counties Ry. v. Oswin, 1 Collyer, 
 74 ; and Ex-y>arte Flamant, 1 Simon. N. S. 260. He also contended 
 that the residue of the proceeds escheated to the Crown. 
 
 Ross, for Crown. I. — There must be an apportionment of the 
 proceeds among the tenants for life. II. — The residue of the pro- 
 ceeds does not fall into the residuary clause, as that is of a limited 
 character — the houses are expressly excepted from its operation. 
 The codicil confirms this view, it speaks of the residue "as directed 
 " in the said Will." III. — The residue of such proceeds escheated 
 to the „ Crown. There are no next-of-kin here, and this is a case 
 in regard to personalty. In Sweet v. Sweet it was held that the 
 Trustee was Trustee for the heir at law, and although until then 
 no heir had been discovered, the report does not say that the heir 
 was not eventually found. Here the special case states ex- 
 pressly, there are no heirs or next-of-kin of the Testator. Sweet 
 v. Sweet is also distinguishable as being a case relating to real 
 estate. This case is governed by Read v. Steadman, 26 Beav. 495, 
 and the residue escheats to the Crown. Lewin on Trusts, 50, 234 
 is to the same effect. 
 
 Van Someren in reply. 
 
 Ford, J. considered that the defendants were entitled to 
 apportionment of, or at least interest on, the sum paid for the 
 land, by the Municipality, in respect of their life interest, but as 
 there was some difficulty on what principle to make the appor- 
 
548 CIVIL OASES. 
 
 Pobd, J. tionment, he gave leave to the parties to apply on the subject, 
 
 1888> if they differed among themselves and the Crown. The residuary 
 
 Oh Wee Kke clause, he was of opinion, was of a limited character, and the residue 
 
 v. of the proceeds, after the apportionment, did not fall into same, 
 
 Boon Bong t, u t wa g undisposed of : that the disposal of the residue of the pro- 
 
 & obs. ceeds, was governed by Bead v. Steadman, and escheated to the 
 
 Crown : the case of Sweet v. Sweet he considered, distinguishable on 
 
 the grounds pointed out by Mr. Boss. The costs of all parties he 
 
 directed should come out of the general estate. 
 
 21st August, 1882. The parties having agreed on the principle 
 of apportionment, — that the Crown was to take 10% on the $7,000, 
 and pay the residue to the life tenants, — Presgrave took out a sum- 
 mons directing the apportionment on such principle, and for an 
 order that such amount be paid the defendants, which now came on 
 before Wood, J. 
 
 E. W. Presgrave, for the defendants. 
 
 D. Logan, [Solicitor'General] for the Crown. 
 
 The apportionment, and order for payment, were made accord- 
 ingly. The parties, however, differed as to the fund from which 
 the costs of the suit was to come out. The defendants and the 
 Crown contending it would not come out of the fnnd of $7,000, 
 but out of the monies in the hands of the plaintiff, as executor 
 under the residuary clause. The question was then discussed, at 
 the same time. 
 
 Van Someren, for plaintiff, the executor, claimed that the 
 $7,000 should also be liable to contribute towards the costs. 
 
 Presgrave, for defendants. 
 
 D. Logan, [Solicitor-General] for the Crown. 
 
 Wood, J. held, that as costs had been directed by Mr. Justice 
 Ford to be paid out of the "general estate," it must be 'under- 
 stood to mean that the costs were to be paid out of the general 
 
 ^ ta i e ^i he ^ byincludin ^ theresidue of $7,000,— after deducting 
 the $700,— the portion falling to the Crown. 
 
 Order accordingly. 
 
 PALANIAPAH CHETTT v. LIM POH. 
 
 Penauo. A promissory note made and stamped under the Stamp Ordinance 8 of 1873 
 
 ™ un ™ 1 > 1 >« i VUI. o( 1878, relating to stamp duties, tos in ope- 
 
V. 
 
 Lim Foh. 
 
 STRAITS SETTLEMENTS. 5$ 
 
 ration ; and the stamp thereon was a receipt stamp of three cents, Wood, J. 
 [being the then proper stamp duty] but such stamp was only can- 1882 ' 
 celled by writing over it the name of the maker. By the Ordinance, p AL aniapah 
 section 25, no document was to be admissible in evidence unless Chettt 
 " duly stamped" — and " duly stamped," in instrument of this na- 
 ture and class, meant, stamped with a stamp of proper value, and 
 such stamp cancelled by name or initials written thereon, together 
 with the date of so cancelling. The action was commenced in 1881, 
 but was adjourned on the 20th October of that year, in order to 
 await the result of the appeal in Allen v. Meera Pullay & ors. [a]. 
 During the adjournment, the stamp Ordinance II. of 1881, came into 
 operation. The case now came on for hearing, and the note was ten- 
 dered in evidence, and objected to by defendant. 
 
 Van Someren, for plaintiff. 
 
 Ross, for defendant. 
 
 Cur. Adv. Vult. 
 
 September 11. Wood, J. This was an action brought by the 
 plaintiff, against the defendant on his promissory note for $1,800. 
 
 On the note being tendered in evidence, Mr. Eoss, for the 
 defendant contended, that it was inadmissible for want of a stamp 
 properly cancelled. The note ia question, made in 1876, was 
 stamped with a stamp of the proper amount, and was cancelled by 
 the name of the maker, but not the date, being written over it. It 
 was admitted that the name was so written at the time of the 
 making of the note, and the only question for the Court was 
 whether, under such circumstances, the note was properly ad- 
 missible in evidence. 
 
 Mr. Eoss contended that it was not so admissible because, un- 
 der the Old Stamp Ordinance No. VIII. of 1873, promissory notes, 
 if not stamped with the proper stamp, and cancelled in the man- 
 ner pointed out by that Ordinance, viz., the writing of the 
 name or initials together with the date, at the time of the making, 
 could only be rectified, so as to neutralize this error, and omission, 
 and make them receivable in evidence, within three days from the 
 day of the making, and that, such not having been done, nothing 
 in the new Ordinance No. II. of 1881 would render it admissible. 
 
 Mr. Van Someren for the plaintiff maintained, on the con- 
 trary, that the note wns admissible in evidence. 
 
 On the objection raised by Mr. Eoss, that the note in question 
 should have been rectified within three days of the date of its 
 being made, I entertain no doubt. Sections 12, 21, 25, 26, 30 and 31 
 of Ordinance VIII. of 1873, sufficiently establish, this point ; the 
 only question on which I entertained any doubt was, whether the 
 new Ordinance, No. II. of 1881, enables the plaintiff to put this 
 note in evidence. The sections of the New Ordinance II. of 
 1881, material to my judgment though given not in numerical 
 order, are as follows : 
 
 Section 32 enacts that : 
 
 " No instrument chargeable with, duty shall be admitted in evidence foj 
 " any purpose, unless such instrument is duly stamped, 
 " Provided that 
 
 [o] ante p, 394. 
 
55Q 
 
 CIVIL OASES. 
 
 Wood. J. 
 
 1882. 
 
 Palaniapah 
 Chettt 
 
 1. " Any such instrument not being an instrument chargeable with a 
 ' duty of 3 cents only, or a Bill of Exchange, or Promissory-note, shall be ad- 
 ' mitted in evidence on payment of certain amounts by way of penalty." 
 
 The words " duly stamped" are not defined in the body of the 
 LimPoh. Ordinance with exact reference to this section, as they formerly 
 were in section 12 of the older Ordinance VIII. of 1873 ; hut by 
 the interpretation section of the present Ordinance of 1881, section 
 1 , " unless there is something repugnant in the subject or con- 
 "text." 
 
 [9.] "Duly stamped" as applied to an instrument, means 
 stamped, or written upon paper bearing an impressed stamp, in 
 accordance with the law in force in the Colony when such instru- 
 ment was executed or first executed. 
 
 By section 15 of the present Ordinance of 1881 : 
 
 " Subject to the provisions of the next succeeding section, all 
 " instruments chargeable with duty, and executed by any person 
 " within the Colony, shall be stamped before, or at the time of 
 " execution." 
 
 Section 16, the next succeeding section, refers to instruments 
 unstamped, or not sufficiently stamped " and requiring an impressed 
 " stamp" ; which maybe stamped by the Collector, within three days, 
 if satisfied that the omission " to stamp has not arisen from intent 
 " to evade the stamp duties." A section which does not affect 
 adhesive stamps. 
 
 By section 36, as to " Eectification," after enacting that any 
 instrument chargeable with duty and not duly stamped, may, un- 
 der certain circumstances, be rectified by the Collector, expressly 
 states, by way of proviso, " that nothing in this section applies 
 " to an instrument chargeable with a duty of three cents only, or 
 " to a Bill of Exchange, or Promissory Note, if not produced to 
 " the Collector within 14 days from the day of its execution, or 
 " first execution, or the date of its arrival in the Colony, if execu- 
 " ted out of the Colony." 
 
 Section 9 is as follows : 
 
 . "I-— Whoever affixes any adhesive stamp to any instrument chargeable 
 '* with duty, and which has been executed by any person, shall, when affixing 
 " ? u . ch ? tam P> cancel the same, by writing, or marking distinctly the date in 
 j| infc r .either wholely on the stamp, or partly on the stamp, and partly on the 
 ' paper on which the stamp is affixed ; or in such other manner as the Gover- 
 " nor m Council may, from time to time direct, so that the stamp cannot be 
 used again. 
 
 " And whoever executes any instrument on any paper bearing an adhe- 
 "| sive stamp, shall, at the time of execution, unless such stamp has been 
 
 already cancelled m manner aforesaid, cancel the same in manner aforesaid: 
 
 so that it cannot be used again. 
 « " I i I i"'7 Al17 instmment bearing an adhesive stamp, which has not been bo 
 
 cancelled; so that it cannot be used again, shall so far as such stamp is 
 
 concerned, be deemed to be unstamped. 
 • w™t^l5 he St +t mp OT ? tam P 8 "Pon any instrument, produced after and 
 „ ™" b .f ore **"> Posing of ttus Ordinance; shall bo deemed to be duly 
 
 cancelled if cancelled as prescribed by this section ; and the instrument shall 
 
 be deemed to be duly stamped ; if it be shewn to the satisfaction of the Col. 
 ■■ S T ° a • *'• i 01 ' P ers o n having by law or consent of the parties, an- 
 
 thonty to receive evidence, that, at the time of the execution of the instru- 
 
STRATUS SETtfLliMENtfS. SSI 
 
 " ment, a stamp, 01 stamps of tie proper value was; or were affixed on tKe Wood, J.; 
 
 " instrument ; and, if so satisfied, the Collector shall, on application by the -X88& 
 
 " holder, or other person producing the instrument before him, certify the 1 
 
 " same by writing, or causing to be written on the instrument the words " duly Palani afah 
 
 !' stamped" ; and shall add his signature or initials thereto, and the day, Chettt 
 
 " month and year on which the signature or initials was or were written." •,'*;, 
 
 Lim Poh. 
 
 Holding, in obedience to what I cannot but consider sound 
 principles of jurisprudence, that fiscal acts are intended to protect 
 the Revenue against the non-use of stamps, where stamps are 
 required, and that it is unreasonable and unjust that a litigant, in 
 this Colony for the most part a person ignorant of the English 
 language in which the Ordinance is expressed, should be deprived 
 in this case entirely of his remedy for want of the proper cancella- 
 tion of a stamp, otherwise regularly affixed at the time ; and con- 
 firmed in this view by the modern enactment of the Imperial 
 Parliament which, by section 24 [1] of the Stamp Act 1870, 33 & 
 34. Vict. C. 97, provides, that a promissory note, though uncan- 
 celled may be put in evidence, if it be proved at the trial that a 
 proper adhesive stamp was affixed thereto at the proper time, I 
 was desirous, if the language of the Ordinance would enable me 
 to do so, so to construe the Ordinance in question as to effect this 
 purpose ; but to my regret I find that I am unable to do so, and I 
 am on the contrary driven to the conclusion that, taking the whole 
 of these enactments together, it is, I think, manifestly the inten- 
 tion of the new Ordinance that when a promissory note executed 
 before 1882 is cancelled only by writing of the name of the maker 
 upon it, without the date, though done at the time of execution, 
 such note is not admissible in evidence. 
 
 The general spirit of the present Ordinance is, as would ap- 
 pear from the sections specified above, as hard towards the holder 
 of a document which is, although stamped with a stamp of the 
 proper amount at the proper time, improperly cancelled, as the 
 previous Ordinances have been, and the only saving section, viz., 
 section 9, is powerless to aid him. 
 
 As Ordinances are now formally passed, viz., as an exact coun- 
 terpart of the folio copy, punctuation and capital letters are ma- 
 terial to the meaning of the terms in which the Ordinance, is; 
 expressed^ and as it seems to me, the obvious grammatical construc- 
 tion of sub-section 3 of section 9 is clear. 
 
 To give effect to a construction favorable to the plaintiff, the 
 words " and the instrument, &c.'' would have to be read as equi- 
 valent to " and every instrument, &c." as part of a new paragraph 
 and of a new section. As it is these words would appear unmis- 
 takeably to have reference to the antecedent, viz., " an instrument 
 "produced after and executed before the passing of the Ordi- 
 " nance" and providing in the 1st paragraph of sub-section 3 [as 
 printed] for the due cancellation, and in the 2nd paragraph [as 
 printed] and commencing, "and the instrument" for what shall 
 be deemed to be its due stamping, they deal effectively with its 
 subject-matter. 
 
 It was pressed upon me in argument, that unless this note in- 
 nocently, though imperfectly cancelled by the names and not the 
 
552 CIVIL CASES. 
 
 Sidgrbaves, date being written upon it, was receivable in evidence; the con- 
 C. J. gtrnction I have given to it would be partial and arbitrary, inas- 
 & D I J. J. much as it might well be supposed that the Legislature purposed to 
 "Wood, ( ' assist, not only those who had innocently misunderstood the for- 
 1882. mer presumably faulty Ordinance, in the case of irregular cancel- 
 Palanwpah lation 5 by writing the date alone, but also those who had equally 
 Chettt innocently misunderstood the law, by writing of the name alone ; 
 v - but I think the Ordinance points at this strictness of construction, 
 
 Lim Poh. w j tll a yiew to gi T i n g effect to that mode of cancellation only 
 which fixes the exact day, month and year, in which the cancella- 
 tion was effected. 
 
 The plaintiff appealed against this decision. 
 
 29th March, 1883. — The appeal was now heard before the 
 Full Court of Appeal consisting of Sidgreaves, C. J., Ford and 
 Wood, J. J. 
 
 Van Someren, for appellant. 
 Boss, for respondent. 
 
 Cur. Adv. Vult. 
 
 Ford, J. I concur in the reasons and conclusions which the 
 Court below has given and reached in this case. I am clearly of 
 opinion that the repeal of the Stamp Ordinance VIII. of 1873 has 
 taken away the powers of. curing the defect in cancellation given 
 to the Court by section 30 of that Ordinance, and that fact is not 
 affected by the circumstance of the Act having been repealed 
 pendente lite, i.e., after action brought,but before evidence tendered. 
 The cases alluded to in Maxwell on Construction of Statutes, p. 378, 
 if authority were needed for what seems an obvious effect of 
 repealing a statute — would establish these points. I should have 
 been very glad to have seen my way under the general principle 
 of giving a liberal and wide construction to a remedial clause, to 
 have come to a construction of section 9, sub-section 3, of the 
 present Ordinance II. of 1881, which would have assisted the 
 appellant ; but the language of the section seems to me, too clear 
 to admit pf any reasonable doubt as to its meaning, which is to 
 assist a class of instruments cancelled previously to the Ordinance 
 by date only, and which would be well cancelled under the new 
 Ordinance, as provided by section 1. The present section was 
 probably, I think, framed to meet the decision of this Court in 
 Allen v. Meera Pullay, which held that under the old Ordinance, an 
 agreement stamped properly as to amount, but cancelled' by 
 writing the date only, could not be rectified— a decision involving 
 a very great hardship to the plaintiff, but for him happily reversed 
 by the Privy Council. The case of an instrument canceUed bv 
 name only, and not by date, does not seem to have come within 
 the view of the framer of the present Ordinance : neither would it 
 be clear, that had it done so, he would have extended to it the 
 same benefit as he has done to documents cancelled with the date 
 The latter mode of cancellation, at least affording some greater 
 security against the re-use of adhesive stamps, than that of cancel- 
 
STRAITS SETTLEMENTS. 
 
 553 
 
 lation by name only ; whatever, however, may be the correctness, Sidobe*vbs, 
 
 or otherwise of these conjectural reasons for the form of the pre- p c ' ^" 
 
 sent section. I am clearly of opinion that its language, and the °& D ( j, j. 
 
 effect to be given it, is sufficiently clear to prevent us extending it Wood, ) 
 
 to the case of the appellants. 1882< 
 
 Sidgreaves, C. J. and Wood, J., expressed their concurrence p ALAKIAPAH 
 
 with this judgment. Chetty 
 
 Appeal dismissed with costs. , v - 
 
 rr Lim Poh. 
 
 GUTHRIE & CO. v. SHEENA MOHAMED ABDUL KADER. 
 In re : ARNASHELLUM CHETTY. 
 
 A plaintiff by attaching his debtor's goods under section 422 of the Civil Proce- 
 dure Ordinance 1878, acquires no title to the goods ; and if it is necessary for an 
 equitable mortgagee of the goods to perfect his title by notice, he may do so even after 
 the plaintiff has attached the goods, and before he seizes them in execution. 
 
 An equitable mortgage of personalty, does not however require to be perfected by 
 notice. 
 
 The plaintiffs had commenced an action against the defendant, 
 who had left the Settlement; and had obtained an order un- 
 der section 422 of the Civil Procedure Ordinance 1878, [a] 
 attaching the property of the defendant, and had thereunder 
 seized his share in a cargo boat or schooner. The claimant, 
 Arnashelluin Chetty, alleged that the boat had been assigned to 
 him by the defendant, before the action was commenced, by an 
 equitable mortgage created by a deposit of the bill of sale of the 
 boat. On the evidence, the learned Judge was of opinion, that 
 the deposit had been proved. It was admitted that the Sheriff 
 had seized the boat under the writ of sequestration, [attachment] 
 and that notice thereof had been given to the Registrar of 
 Shipping, who consequently refused, a few days afterwards, to 
 register the legal mortgage to the claimant of later date, which 
 was made in pursuance of the equitable mortgage. 
 
 Donaldson, for the claimant contended, that his client was an 
 equitable mortgagee, and that the Registrar of Shipping had no 
 right to refuse to register the mortgage, and that the notice to the 
 Registrar of the seizure by the Sheriff was altogether of no effect 
 and that under the Merchant Shipping Act of 1862 [25 & 26, 
 
 [n] Section 422 as amended by Ordinance 8 of 1880, section 21, is as follows : '' If 
 it shall be shewn to the satisfaction of the Court, at any time after the issue of the 
 writ of summons, by evidence on oath, that the plaintiff has a good cause of action, 
 or other valid claim, against the defendant, and that the defendant is absent from 
 the Colony, or Settlement, and that his place of abode cannot be discovered, or 
 that service of a writ of summons cannot without great or unreasonable delay or 
 difficulty be effected it shall be lawful for the Court, on the appli- 
 cation of the plaintiff to order that the property of the defendant, or any part 
 thereof, be forthwith secured, and taken into the custody of the Sheriff, as a 
 pledge or surety to answer the just demand of the plaintiff, until the trial of such 
 suit and judgment, and satisfaction therein. Provided always that the Court 
 may, at any time, upon reasonable cause being shewn, and upon such terms, if 
 any, as to security or otherwise, as may seem just, release the property seized, 
 and order the same to be returned." 
 
 Singapore. 
 
 FoBD, J. 
 
 1882. 
 
 August, 21. 
 
§54 
 
 CIVIL GASES. 
 
 Ford, 3. 
 1882. 
 
 . Gbthbib & 
 to. 
 
 v. 
 Sheena Mo- 
 hamed Ab- 
 dul Kader. 
 
 In re Arna- 
 
 SHELLUM 
 
 Chettt. 
 
 Vict. c. 63, section 3,] the equitable mortgage was a valid security 
 and did not require registration, and that priority of registration 
 was the true test under the Act. 
 
 BucMey, for the plaintiffs contended, that the seizure having 
 been made, and notice given to the Registrar of Shipping before 
 the claimant tried to register his mortgage, and also before the 
 date of the legal mortgage, and no notice having been given to the 
 Registrar of Shipping of the equitable mortgage, the seizure had 
 priority both in point of time, and by operation of law ; and that 
 section 43 of the Merchant Shipping Act 1854, [17 and 18, Vict, 
 c. 104,] which provides that the Registrar shall not receive any 
 notice of equitable claims, did not affect the question, as a similar 
 provision was found in the Joint Stock Companies Act [X. of 1866,] 
 and yet under certain circumstances such notice was required : 
 although the Act provided that it could not be received ; further, 
 that if it were in the power of an equitable mortgagee to keep his 
 claim unregistered, and set it up after others had been induced to 
 trust his mortgagor in consequence of his apparent prosperity, the 
 very object provided for by the Bills of Sale Act [22 of 1870],— 
 and in a similar way by the Registration sections in the Merchant 
 Shipping Act, 1854, would be defeated. 
 
 Cur. Adv. Viilt. 
 
 On this day judgment was delivered by 
 
 Ford, J. In this case it seems to me there are two ques- 
 tions which are raised, and which I think the Court must 
 deal with ; although in reference to the first, it does not 
 seem to me to be necessary for the Court to determine it, yet 
 I think it right to express an opinion upon the point. The 
 first question arises on the proposition which Mr. Buckley laid 
 down, which cannot be carried, I think, so far as he would 
 desire to carry it— the proposition being that the equitable 
 mortgage of personalty must be completed by notice. The 
 question is whether this proposition is not too large ; and I 
 confess it seems to me to be so, because all the cases on the 
 point are cases in which the property or indicia of the property 
 were not in the hands of the first parties, and, further than that, 
 in most of the cases, the fact of notice being considered to be 
 necessary, was in reference to the special claims of the Bankruptcy 
 Court under the " Order and Disposition" clauses. The cases in 
 question also relate to property having reference to shares in 
 Companies and policies* of insurance; I cannot find a case in 
 which the law has gone further than that. But with regard to 
 ships, there seems to be no decision at all on the subject • and it 
 seems to me also, that if we come to this point, we may fairly 
 enough draw a distinction between this case and the cases referred 
 to. It may be said that the Registrar differs from the Registrar 
 and Secretary of Companies, as against the owner of the shares • 
 but m the case of the owner of a ship, he is Registrar only, and in 
 no way represents the property, he is only the responsible officer 
 under the Merchant Shipping Act, who is bound not to regard 
 
STRAITS SETTLEMENTS. 
 
 555 
 
 In re Aena- 
 
 SHELLUM 
 
 Chettt, 
 
 notices given to him, so that even if notice be given to him by Vord, J. 
 another person, he is no wiser. It is different under the Bills of 1882 - 
 Sale Act, where the register can be searched and notice can be ctvianie & 
 found there. To say that in respect of all equitable mortgages of Co. 
 personalty you must give notice is too large a proposition; for in gHBEI ^ M 
 some cases you cannot give notice and in some other cases notices ™ M e D ab-" 
 cannot be received. On that ground I am prepared to express the dul Kader. 
 opinion that the proposition advanced by Mr. Buckley is too large 
 and wide. But as to the other part of the case, it seems to me 
 that the creditor [plaintiff] has no title at all. He is merely the 
 sequestrator. He has got a writ of attachment, but has yet 
 established no claim at all. He has no relationship to the position 
 of a trustee in Bankruptcy or to the position of an assignee for 
 value. He has no claim, except the right to have the property 
 held, during the trial of the facts of the action. I think the 
 holder of the equitable mortgage could perfect it* if necessary, if 
 formal notice is required. I think, if needful, he has a perfect 
 right to complete the title by notice before another claimant has 
 established some right. He has still time to complete his mort- 
 gage by notice. In this case he has done that; - He has given 
 the Registrar notice afterwards ; which notice the Registrar re- 
 jected ; still the notice seems to me to be so far valid. This is 
 only a claim by the sequestrator to have the property set aside, so 
 that the owner will not run away with it; and he takes proceed- 
 ings under the various clauses of the Ordinance so as to deprive 
 him of any chance of obtaining it. Where there is a bond fide 
 equitable transfer, either incomplete or completed afterwards, the 
 title of the mortgagee must prevail. 
 
 MAHOMED GHOUSE v. BOEY AH WAH. 
 
 Where a landlord receives rent in advance on the execution of a lease, and the Penang., 
 
 lease simply provides that " the sum obtained in advance should be deducted 
 
 " hereafter," and the tenant after paying a few months' rent, declined paying any Wood, J # 
 
 further, contending that the advance should be taken to account of rent, where- 1S82. 
 
 upon the landlord distrained for rent, 
 
 Held, on the wording of the lease, and the above facts, the advance was liable August 23. 
 to be taken to account of rent at any time after the execution of the lease, although 
 it had still some yeare to run ; and therefore, no rent was due, and the distress 
 should be set aside. 
 
 Van S'omeren, on behalf of Boey Ah Wah, the tenant, obtained 
 a rale nisi, calling on Mahomed Ghouse, the landlord, to shew cause 
 why the distress warrant issued in this matter, should not, under 
 section 14 of Ordinance XIV. of 1876, be set aside, or suspended, 
 and the property seized thereunder, released, on the following facts. 
 The landlord had leased four shop-houses in Penang to the above- 
 named tenant for $240 per annum. On the execution of the lease, 
 a sum of $480, — being 2 years rent in advance, was paid by the 
 tenant to the landlord, and in respect of this sum, the lease pro- 
 vided as follows : " The sum of $480 has been this day obtained 
 " in advance to the said lessor [Mahomed Ghouse] by the said 
 
556 
 
 CIVIL OASLS. 
 
 Wood, J. 
 
 1883. 
 Mahomed 
 
 G HOUSE 
 
 V. 
 
 Bobt Ah 
 Wah. 
 
 Penano. 
 
 Wood, J. 
 1882. 
 
 August 24 
 
 " lessee, [Boey Ah Wah,] to be deducted hereafter." From the 
 date of the lease, up to a month or two of the distress warrant 
 being issued, the tenant had paid the rent of $20 per month, regu- 
 larly to the landlord notwithstanding the advance in the land- 
 lord's hands. He declined however to pay anything further, con- 
 tending the advance, was sufficient to pay any further rent for a 
 long period then to come, and thereupon the landlord issued the 
 distress warrant aboA'e-mentioned. 
 
 Ross, for the landlord shewed cause, and contended, that the 
 intention of the parties was, that the $480 was not to be deducted 
 until the determination of the lease, which had still some years to 
 run ; or at least should not be taken to account, until the last two 
 years of the term, which was covered by the advance ; that the 
 i$480 was to be considered as security for the due observance by 
 the lessee of his covenants, and the lease, though inartfully worded, 
 would be so construed as to effectuate this intention of the parties. 
 
 Van Someren for the tenant in support of the rule contended, 
 that the words of the lease must have their natural meaning, and 
 that the expression " to be deducted hereafter" meant, at any 
 time hereafter, as either of the parties thought right. The tenant 
 having now desired that the advance should be taken into account, 
 the 'landlord was bound to do so, and therefore no rent was due to 
 him, and the distress should be set aside ; that nothing was said 
 in the lease. as to the advance being a security to the landlord as 
 contended, and such a construction ought not to be given to the 
 clause in question. He also raised other objections which are not 
 reported, as no judgment was given on them. 
 
 Wood, J. I think it unnecessary to express an opinion on the 
 other points raised in this case, as I am clearly of opinion that the 
 distress should be set aside on the ground that no rent was due at 
 the time it issued. The clause in question must receive a natural 
 construction. Nothing is said as to the advance being by way of 
 security, and constructing the words of the clause according to 
 the natural meaning, the advance might be claimed as being liable 
 to be taken to account of rent at any time after the execution of 
 the lease. I see no obstacle in giving this meaning to the clause 
 by reason of the words " in advance." I shall therefore discharge 
 the distress and order the property to be released. The landlord 
 will pay the costs of this application. 
 
 ALLAH PEECHAY v. YEAP HUP KEAT. 
 
 Where a plaintiff brings two distinct actions of the same nature, againrf 
 two defendants, which as regards h ia case is identical,-and for convenience"! ake 
 the two actions are tried together, and both result in a verdict for him -ie is not 
 entitled to have the costs of his witnesses ; common to the two actions, wholly frbm 
 one of the defendants, leaving him to his remedy against the other of them W 
 such costs will be apportioned between the defendants on some inst prinSnle of 
 apportionment; and in default of finding any such principle enuallv W^S, ti? 
 two. y The solvency or insolvency of either 5 the pLtielf t n^S pSplet 
 
 This was a summons taken out by the defendant, for a review 
 of the taxation of the bill of costs m this cause. The facts giving 
 
STRAITS SETTLEMENTS. 5M 
 
 rise to this application being as follows : The plaintiff on one Woop. J. 
 and the same day had commenced two actions of ejectment, the 1SS2 ' 
 one against the present defendant, and the other against one Allah Pee 
 Ismailsah, to recover two separate portions of a piece of land ohat 
 belonging to him, and the whole of which he held under one Y eap Hup 
 title. As regarded the case for the plaintiff, his case was the Kbat. 
 same against both defendants in the two actions; he had 
 therefore the same persons as witnesses in both cases, and the same 
 evidence in each. This evidence was of a rather involved nature 
 and cost the plaintiff a large sum to procure it. For convenience 
 sake the two actions were tried together, and both resulted in a 
 verdict for the plaintiff, with costs. It was well known, the 
 defendant here was a man of means ; whereas the said Ismailsah, 
 the defendant in the other case, was to all intents and purposes a 
 pauper. The plaintiff in making his bills of costs, inserted all his 
 expenses attendant on procuring the aforesaid evidence to establish 
 his title, in the bill against each of the defendants in the two cases ; 
 and instead of the bill being taxed by the Eegistrar in the usual 
 way, the Solicitors on both sides met, and taxed the bills between 
 them ; and while allowing these miscellaneous expenses amount- 
 ing to $178.20 to stand in each of the bills, as against each of the 
 defendants, they made an endorsement therein to the effect that 
 as these expenses were common to these two cases, the recovery of 
 them against either of the defendants, would prevent the plaintiff 
 receiving them from the other; and the defendant paying, was to 
 have his remedy against the. other, for one-half of such amount. 
 These bills were taken before the acting Eegistrar, Mr. Kyshe, 
 and on pointing out the above circumstances to him, and both 
 Solicitors stating they were satisfied with this taxation, he signed 
 the certificate for the costs so taxed, stating it to have been 
 done by consent, and without himself going over the tax- 
 ation. The plaintiff having his costs thus taxed, demanded pay- 
 ment of the defendant Yeap Hup Keat for the whole of these 
 miscellaneous expenses ; he objected to pay them, and took out 
 the present summons for a review of this taxation. At the sug- 
 gestion of the Court, the plaintiff waived any right he may have 
 had, to insist that the matter was already settled between him 
 and the defendant herein, by their respective Solicitors, and thus 
 offered no objection to the review of the taxation by the Court. 
 He also waived any right he may have had, to consider the matter 
 as settled between himself and this defendant, by a promise given 
 by this defendant, to pay the said bill so taxed as aforesaid, on a 
 certain day. The bill was then reviewed by the Court. There 
 were other objections to the bill which are not here reported, as 
 not relating to any principle of taxation. 
 
 CMton, for plaintiff contended, that the $178.20 for the mis- 
 cellaneous expenses aforesaid, being common to the two cases, 
 were properly dealt with in the taxation, as by the indorsement 
 the plaintiff was prevented from receiving that amount twice 
 over, but at the same time would receive what he had fairly paid 
 out. The defendants had nothing to complain, as whichever of 
 them paid the amount, he "tact his~claim over against the other 
 
858 CIVIL CASUS. 
 
 Wood,. J. for a half share of it, that this arrangement was fair, reasonable, 
 
 1882, and lawful, as the defendant herein was in no worse position than 
 
 Allah Pee- he would have been, had he and the other defendant been sued 
 
 chat jointly in one action, though for distinct parcels. Johnson v. Mills, 
 
 v - L. E. C. P. 22-r-that as there had been two actions, each if tried 
 
 ^£bai\ ™ the usual way, would have been tried by itself, and- in that case 
 
 each defendant would have had to pay the whole of the expenses 
 
 attendant on such trial, [which would be the whole amount] 
 
 without reference to the other action. He had, to save time, and 
 
 for the sake of convenience to all parties, consented to try the two 
 
 cases together $ but he never intended to prejudice his right to 
 
 costs, by this step ; nor would the Court hold, he submitted, that 
 
 such a step prejudiced his vested rights. He also referred to 
 
 Cole on Ejectment, p. 177, and Griffin v. Hoskins, 1 H. & N. 95. 
 
 The defendant in person. 
 
 Wood, J. I have considerable doubt if this mode of taxation 
 can be considered fair, reasonable, or lawful. When miscellaneous 
 expenses common to two distinct actions are incurred, although for 
 convenience of both parties the actions are tried together, — such 
 expenses should, I think, be apportioned as between the two 
 defendants, according to some reasonable principle of apportion- 
 ment, if such can be found ; and if no such principle can be 
 found, then as between the two defendants equally. These cases 
 were distinct, the one from the other ; Lad the case been brought 
 against the two defendants jointly, the result might have been 
 otherwise, [see Buller's Nisi Prius, p. 335] . The costs have been 
 incurred by the plaintiff without, as I understand, any reference 
 to the defendants or either of them ; and were paid, or agreed to 
 be paid to the various witnesses in a lump sum, for the purposes 
 of the two actions* If the persons performing the services had 
 been paid in respect of each separate case, the plaintiff would be 
 entitled to recover the amounts paid them, and that would be the 
 principle of apportionment between the two cases ; but where no 
 such precaution has been taken, and the sum charged has been 
 paid in a lump, then the Registrar, on this one review, will ap- 
 portion the costs on just principles of apportionment, and if this 
 was not practicable, then equally between the two. defendants. 
 Such a principle as the solvency or insolvency of one or other of 
 the parties, is certainly no just principle. I shall therefore refer 
 the bill to the Registrar, to be dealt with on the principle I have 
 adverted to ; and as regards the other items objected to, the 
 Registrar will help the defendant, who will inform him of the 
 specific items he objects to, and the Registrar will deal with the 
 whole bill on the principle of a strict bill of costs, as between 
 party and party. 
 
 Order accordingly* 
 On a subsequent day, the acting Registrar having taxed the 
 bill in the ordinary way and the plaintiff having applied for a 
 review of the taxation, the Court, after hearing out the matter 
 considered the taxation a fair one, and upheld same. ' 
 
STRAITS SETTLEMENTS, 559 
 
 PENANG FOTJNDEY 00. v. CHEAH TEK SOON. 
 
 By section 6 of Ordinance 4 of 1878, Mercantile Law generally, as it exists in PbnaKO. 
 England at the corresponding period, is law in this Colony, and that, whether Buch ~ 
 mercantile law is by Statute or otherwise. Wood, J. 
 
 1882 
 
 Although by section 26 of Ordinance 8 of 1S80, the Indian Act 14 of _ ' 
 
 1840, has ceased to be law in this Colony, by force of section 6 of the Ordinance 4 September 8. 
 of 1878, the English Statute, 9 Geo. IV. c. 14, on which that Act was drawn, applies; 
 
 Contracts made in this Colony for goods not in esse at time of such contract, are 
 within section 17 of the Statute of Frauds, by the aforesaid Statute 9 Geo. IV. c. .14, 
 
 This was an action to recover $147 damages, for non-accept- 
 ance of a certain machine ordered by the defendant of the plain- 
 tiffs and manufactured by them at his request, and $81.42 for 
 work and labour done and materials provided. The defendant, 
 among other things pleaded, that the alleged contract could not be 
 held to be good, because he had not accepted the machine or actu- 
 ally received the same or any part thereof, nor did he give 
 anything in earnest to bind the bargain or in part payment, nor did 
 he sign any memorandum or note in writing, within the meaning 
 of the Statute of Frauds [29 Car. II; c. 3, section 17], and of Act 14 
 of 1840, section 7. The facts as they appeared at the trial {from 
 statement^by plaintiffs' Counsel] were, that the defendant being 
 anxious to have his notions of propelling a small boat by hand 
 gear applied to a small propeller, asked the plaintiffs for their 
 opinion, and how to apply it. He was told it would be a waste of 
 time and money but he still persisted in his request. His ideas 
 were put on paper and on being approved of by him, he gave plain- 
 tiffs instructions to proceed with the machine. The machine — 
 which was of iron and brass, — was finished and tried by defendant ; 
 he thought it might be improved on, and gave a sketch of it as 
 improved by him. The plaintiffs then made a wooden model of it 
 which was examined by defendant and tested. He suggested fur- 
 ther improvements which were embodied in a second wooden 
 machine which was made. Thereafter he appeared satisfied that his 
 idea was a mietake, and that it would be done at a waste of power. 
 
 Anthony, for plaintiffs contended that the contract need not be 
 in writing, as the goods not being in esse at time of the contract, 
 it did not come within section 17 of the Statute of Frauds, [29 Car. 
 II. c. 3] which enacts that " no contract for the sale of any goods, 
 " wares or merchandize for the price of £10 or upwards shall be 
 " allowed tobe good, except the buyer shall accept part of the goods 
 " so sold and actually receive the same, or give something in ear- 
 " nest to bind the bargain or in part of payment, or that some note 
 " or memorandum in writing of the said, bargain be made and signed. 
 " by the parties to be charged by such contract or their agents there- 
 " unto lawfully authorized." The Indian Act 14 of 1840, section 
 7, which after setting out section 17 of the Statute of Frauds 
 above referred to enacts, it is expedient that that section should 
 "extend to all contracts for the sale of goods of the value of £10 
 " and upwards, notwithstanding the goods may be intended to be 
 " delivered at some future time, or may not at the time of such coh- 
 " tract be actually made, procured or provided, or fit or ready for 
 J " delivery, or some act may be requisite for the making or complet- 
 
660 CIVIL OASES. 
 
 Wood, J. « i n g thereof, or rendering the same fit for delivery"— but that Act 
 
 1882 - had been repealed by section 26 of Ordinance 8 of 1880, 
 
 Penano whereby it is enacted that certain Indian Acts relating to mercan- 
 
 Foundbt tile law cease to be in force in the Colony oa the 1st January, 
 
 ^ ' 1879, and among these, Act 14. of 1840. The contract also, he 
 
 Chbah Tbk contended, was for work, labour and materials, not for goods, and . 
 
 Soon. referred to Chitty on Contracts [11th ed.] p.p. 365, 366. 
 
 Boss, for defendant contended the contract was for goods — a 
 machine — and referred to Agnew on the Statute of Frauds, p. 188, 
 Clay v. Yates, 1 H. & N. 73 ; Lee v. Griffin, 1 B. & S. 372 ; Atkin- 
 son v. Bell, 8 B. & C. 277. As regarded the Act repealed, he con- 
 tended, that that particular Act, was by section 26 of the Ordi- 
 nance 8 of 1880 to cease to be in force in the Colony from a 
 certain date then past, but only because on that same day mercan- 
 tile law generally, as it was then in England, was imported into this 
 Colony by Ordinance 4 of 1878, section 6, by which it is pro- 
 vided " in all questions or issues, which may hereafter arise or 
 " which may have to be decided in this Colony with respect to .... 
 " mercantile law generally, the law to be administered shall be the 
 " same as would be administered in England in the like case, at the 
 " corresponding period if such question or issue had arisen or had to 
 " be decided in England unless in any case other provision is or 
 " shall be made by any Statute now in force in this Colony or here- 
 " after to be enacted." The result was, that the English Act 9, Geo. 
 IV., c. 14, from which the Indian Act 14 of 1840 was taken, 
 was applicable here, and applied to contracts for goods not in esse. 
 Anthony in reply contended that " mercantile law," in section 
 6 did not mean any Statutory enactments relating to mercantile 
 law ; that it had a limited application, and referred to a case before 
 Mr. Justice Eord in Penang [Shagapah Chetty v. Khoo Ghye Seng 
 & anor., 1880 [a] who doubted the extent and effect of section 6, 
 but gave no opinion on it, as that case went off on another point. 
 He again contended, the thing contracted for was not a chattel, 
 and the cases cited were not applicable. 
 
 Wood, J. The Ordinance 8 of 1880, section 26, does not 
 expressly repeal Act 14 of 1840, but only declares it to be no 
 longer law. The inference to be drawn from this language favors 
 the view of the force, — which the defendant contends, — that should 
 be given to section 6 of the Ordinance 4 of 1878, which came 
 into operation the same day as the Indian Act ceased to be law. 
 In my opinion, that section applies the English Act 9, Geo. IV. c. 
 14, [Lord Tenterden's Act] to this Colony. On the 2nd point, I 
 am of opinion, on the facts as stated by plaintiffs' counsel, that 
 the work, labour and materials contracted for, was for a chattel, 
 within the reasons of Lee v. Griffin.- There however remains the 
 2nd item, the charge for the models which has to be enquired intoi 
 
 The parties hereupon came to terms, and judgment was enter- 
 ed up, by consent, for $10 on the 2nd item— each party payine 
 his own costs. J r J 6 
 
 £.] Not reported. Judgment accordingly. 
 
STRAITS SETTLEMENTS. 
 
 561 
 
 F0BD, J. 
 
 1882. 
 Sept. 28. 
 
 PATERSON v. MUNICIPAL COMMISSIONERS. 
 
 The Municipal Commissioners are bound, both by law and by the terms of the Sinqapoke. 
 Conservancy Act 14 of 1856 as amended by Ordinance 2 of 1879, to uphold all 
 public roads and bridges and keep them in proper repair : and in omitting to do so 
 and allowing them to remain in a state of disrepair, they are liable to an indictment 
 for causing a nuisance to the public, as well as to an action by any person who may 
 sustain direct and particular damage, for such breach of duty on their part. 
 
 Where a duty is imposed by law or Statute on a person or body of persons, they 
 do not release themselves from discharging that duty, or free themselves from lia- . 
 bility in respect thereof, by handing it over to another to perform it. 
 
 The defendants, whose duty it was to uphold and repair public roads and 
 bridges, gave the work on contract to a third party.. One of such bridges, for want 
 of proper repair, gave way, whereby plaintiff's horse was injured, 
 
 Held, that it was the duty of the defendants to uphold and repair the bridge , 
 their letting the work out, did not free thein from liability for the negligence of 
 the contractor, in not properly repairing the bridge. 
 
 Action to recover $265 for negligence. The facts of the case, 
 and points raised therein so fully appear in the judgment, that it 
 is unnecessary to mention them here. 
 
 Buckley, for plaintiff. 
 
 Bond, for'defendants. 
 
 Cur. Adv. Vult. 
 
 On this day judgment was delivered. 
 
 Ford, J. in giving judgment, said this was an action brought 
 by Major Paterson, the Brigade Major, against the Municipal 
 Commissioners^ for injury done to a, mare of his, through their 
 alleged culpable negligence ; and to that allegation the Commis- 
 sioners in. their reply denied that the mare had been injured 
 through either the negligence of them or of their servants, and 
 they denied also the extent of the damages claimed. During the 
 coui'se of the trial, the defence was somewhat enlarged by the 
 Commissioners, relying upon certain legal rights which they assumed 
 they had, in addition to the mere denial of the fact of negli- 
 gence, and they also disputed the fact of the accident having taken 
 place at all by means of a hole in the road or bridge, which was 
 the allegation to have been sustained by the plaintiff. The facts 
 as alleged by the plaintiff, with which he would have occasion to 
 deal more particularly when he went into the evidence of the case, 
 were shortly these. On the afternoon of the 18th May, Major 
 Paterson was driving in his carriage, with a pair of horses and 
 two syces ; and, crossing the bridge on the road which leads from 
 Tanghn road to Alexandra road, the horses or one of the two 
 horses fell, and seriously, damaged itself by breaking its two front 
 knees and doing some damage to one of its hind legs ; and the 
 plaintiff alleged that that fall was due to a hole which was on the 
 left side of the bridge as you come across it, and that that hole 
 ought not to have been there, and was there through the negli- 
 gence of the Commissioners, for which reason he claimed compen- 
 sation from the Commissioners. That was the subject of the 
 cause of action. To this the Commissioners had denied both their 
 liability at Law or by Ordinance ; and they had also, as he had 
 already stated, denied the existence of the hole, denied that there 
 was any negligence on their part, or on the part of their servants 
 
562 
 
 CIVIL CASES. 
 
 Fobs, J. 
 
 1882. 
 
 Pateeson 
 
 V. 
 
 Municipal 
 Commks. 
 
 for whom they were responsible, and had put the case that the 
 bridge was duly certified by their agents or inspectors as being, 
 and it was, in perfect good order and condition at the time of the 
 accident. He proposed to deal first with the legal objections to 
 the plaintiff's claim. The first objection taken by the Commis- 
 sioners was, that they were not in any sense liable,- — that they were 
 not legally liable for any damages which occurred through their 
 negligence ; and it was difficult, certainly, quite to see by 
 what contention that position could be sustained. He had 
 looked through the various cases which had been cited, and 
 it seemed to him to be amply clear that they were not 
 only liable to uphold the roads and bridges, and to keep them 
 in proper repair, — but also liable at law under the express terms 
 of the Ordinance, which gave them the powers and respon- 
 sibilities they had. The first point, it seemed to him, in this case 
 was that regarding which the case was cited of the Mersey Docks 
 and Harbour Board Trustees v. William Gibbs and others, which was 
 brought before the House of Lords, 1 L. E. H. L. 23. That was a 
 case in which it was laid down that " the principle on which a private 
 " person, or a company is liable for damages occasioned by the 
 " negligence of servants, applies to a corporation which has been 
 " entrusted by Statute to perform certain works, and to receive 
 " tolls for the use of those works, although those tolls, unlike to 
 " tolls received by the private person, or the company, are not 
 " applicable to the use of the individual corporators, or to that of 
 " the corporation, but are devoted to the maintenance of the works, 
 " and in case of any surplus existing, the tolls themselves are to 
 " be proportionately diminished." That case certainly seemed to 
 deal with the question now before the Court. Although those 
 persons received no pay, still they must be held liable for acts of 
 negligence which they do. Then the case of the Borough of Batli- 
 hurst v. William Macpherson, 4 L. E., App. Cases, 256, carried 
 them a step further, and seemed to distinguish between and deal 
 with the two grounds of claim for damages, on either of which the 
 Commissioners would be liable, both these grounds being alleged 
 in the present case. That was a case in which the Municipality 
 of Bathhurst, New South Wales, having, under the Act which 
 incorporated them as a Municipality, the care, construction and 
 management of the roads and streets within their Municipality, 
 constructed thereunder a barrel drain which ran into an open 
 drain, the brick work of which having broken away, and not hav- 
 ing been repaired, a hole was caused, into which the plaintiff's 
 horse fell, carrying the plaintiff with him, crushing the plaintiff's 
 leg on one side, and causing a compound fracture of the leg It 
 was held that by reason of their construction of that drain, and 
 their neglect to repair it [the barrel drain was not only made by 
 the defendants, but the sole control and management of it were 
 invested m them] -whereby as an indirect and natural consequence 
 the dangerous hole was formed which was left open and unfenced 
 they caused a nuisance in the highway for which, whatever 
 their statutory obligation may have been, they were liable to an 
 indictment, and also to an action by the plaintiff who had sustained 
 
STRAITS SETTLEMENTS. 
 
 563 
 
 direct and particular damage from their breach of duty. Major 
 Paterson alleged not only direct and particular damage in the 
 injury to his mare due to the neglect of the Commissioners, but 
 also the statutory obligation of the Municipal Commissioners. 
 It seemed to him that the Commissioners were not only bound to 
 the plaintiff at law, but by the express Act on which their own 
 existence was based, — the Indian Act No. 14 of 1856, as amended 
 by the Straits Settlements Ordinance No. 2 of 1879 ; under either 
 form this liability would be equally clear. The sections relating 
 to this matter seemed to him to be framed in the clearest terms, 
 and to meet entirely the objection of the Commissioners that they 
 had no legal obligation. It could not reasonably be otherwise 
 than that the Municipal Commissioners should make roads and 
 keep them in proper repair, and that the roads, &c, should be 
 vested in them. This was the very object of their constitution, or 
 a very large part of the object of the formation of every Municipal 
 body, that they should make, and when they were made, keep in 
 proper repair, all public roads and bridges. That being their bond 
 fide duty as a public body, or it being part of their duty, and as he 
 had said a principal part of their duty, the Act went on as a natural 
 thing to vest all these roads, &c, in the Municipality. Section 5 sets 
 forth that " all public streets and roads [not being the property 
 " of the East India Company and kept under the control of the 
 " Local Government,] existing at the time of the passing of this 
 " Act, or which shall hereaf terwards be made, and the pavements, 
 " stones and other materials thereof, andalsofor all other erections, 
 " materials, implements and other things provided for such streets 
 " and roads shall be vested in and belong to the Commissioners." 
 Then section 9 went on, in the most absolute form of words to 
 impose upon the Commissioners the duty of keeping all roads and 
 streets in a proper state of repair. The section did not seem to him 
 to have a single ambiguous word in it. It simply was " the Com- 
 " mission ers shall, so far as the funds at their disposal will admit, 
 " from time to time, cause the public roads and streets to be main- 
 " tained and repaired." There was not even the word " may" used, 
 as was sometimes the case in such provisions for Commissioners 
 doing certain things ; but " shall cause the public streets to be 
 " properly repaired and maintained," and it went on, — ".and from 
 " timeto time shall cause the same to be paved, metalled, channelled, 
 " sewered or otherwise improved, and the surface thereof to be 
 " raised, lowered or altered as they may think fit ; and may also 
 " make and keep in repair any footways for the use of passengers 
 " in eveiy such street or road, and also from time to time place on 
 " the sides of such footways, or otherwise such fences and posts as 
 " may be needed for the protection of foot passengers." The fullest 
 power was given to them ; the whole repair of everything con- 
 nected with the streets, roads and bridges within the Municipality 
 was vested in the Commissioners. But, as if to make certainty 
 still more certain, if that were possible, they had sections 1 26 arid 
 127 in the Act, the former of which defined certain rights which 
 the Commissioners were to have in any actions brought against 
 them, and so on. The later named section 127, gave the Commis- 
 
 POED, J. 
 1882. 
 
 Patekbon 
 
 v. 
 Municipal 
 
 C'OMMKS. 
 
564 
 
 CIVIL OASES. 
 
 Ford, J. 
 
 1S82. 
 
 Paterson 
 
 ■v. 
 
 Municipal 
 Commes. 
 
 sioners " power to make compensation- out of the funds applicable 
 " to the purposes of this Act to all persons sustaining any damage 
 " by reason of the exercise of any of the powers vested in the Com- 
 " missioners, their officers or servants under and by virtue of this 
 " Act." He was therefore quite unable to see on what the case 
 for the defendants rested at all, the Municipal Commissioners 
 being in his opinion a body incorporated, and under an incorpora- 
 tion one of the duties of which was, plainly enough, to keep in a 
 proper state of repair all roads and bridges. He was quite satis- 
 fied that they were liable to do this, that they were bound to do it 
 by the terms of the incorporation itself, which established Muni- 
 cipal Commissioners in Singapore. He now came to the second 
 legal defences raised by the Commissioners ; and it seemed to him 
 that that was quite as erroneous, or nearly quite as erroneous, as 
 the one in the first instance. What the Commissioners said was 
 this : — " It may be all very true that we are liable prima facie for 
 " acts of negligence, but if we choose, instead of doing the work 
 " which we have to do, either by ourselves or our agents or ser- 
 " vants directly, we can give it out to a contractor, and we have 
 " done so, and we are by that relieved from all responsibility 
 " whatsoever." He must say, as he said during the course of the 
 hearing of the case, that this proposition was the grossest contra- 
 diction of the wisest sense, and he was glad to find that the law 
 seemed in no way to support the contention. There was no doubt 
 a class of cases in which persons undertaking certain kinds of 
 work and doing it by contract, the contractor had been held liable 
 for injuries done by his servants ; and certainly there were a great 
 number of cases on that point which it seemed to him highly im- 
 possible to reconcile with one another. But, notwithstanding, it 
 seemed to him that there were conditions in them, — that the acts 
 for which the contractor was held liable, and not the employer, 
 were acts quite outside the contract itself ; and that was very 
 decidedly and clearly laid down in certain cases which to his mind 
 would cover this. And there was a further principle which had 
 been laid down, regarding the question whether a person or body 
 of persons whose duty it was to do an act could release themselves 
 of that duty by handing it over to some one else. Under the last 
 principle, it was most clearly laid down that they could not by 
 simply employing contractors lift from their own shoulders the 
 consequences of neglecting a duty they were bound to perform. 
 There were three cases to which he would refer in which this 
 principle was very clearly and decidedly laid down . They were, 
 Pickard v. Smith, 10 Com. B. N. S. 470 ; Hole v. The Sittingboume 
 and Sheemess Railway Co., L. J. Ex., vol. 30, p. 81 ; and Gray and 
 wife y. Pullen and Huhble, L. E. Q. B., vol. 34, p. 265. In the case 
 of Pickard v. Smith it seemed to him that what was said there by 
 Mr. Justice Williams was in effect applicable to this case, and 
 affirmed directly as it had been by subsequent decisions, it was 
 important. His Lordship went briefly into the circumstances of 
 this case and quoted the words of Mr. Justice Williams, to which 
 he had referred, as follows : — 
 
 " Unquestionably no one can be made liable for an act or 
 
STEAMS SETTLEMENTS. 
 
 S6fc 
 
 •' breach of duty unless it be traceable to himself or his servant or 
 " servants in the course of his or their employment. Consequently, 
 " if an independent contractor is employed to do a lawful work, and 
 " iu the course of the work he or his servants commit some casual act 
 " of wrong or negligence, the employer is not answerable. That 
 " rule, however, is not applicable to cases in which the act which 
 " occasions the injury is one which the contractor was employed to 
 " do, nor by a parity of reasoning, to cases in which the contractor 
 " is entrusted with a duty incumbent upon his employer and neg- 
 " lects its fulfilment, whereby an injury is occasioned." " If the 
 " performance of the duty be omitted, the fact of his having 
 " entrusted it to a person who also neglected ifc furnishes no 
 " excuse either in good sense or law." 
 
 These observations of Mr. Justice Williams were quoted by 
 Mr. Justice Blackburn, in The Mersey Dock Trustees, v. Gibbs, as 
 stating well " the distinction between the responsibility of a per- 
 " son who causes something to be done which is wrongful, or fails 
 " to perform something which there was a legal obligation on him 
 " to perform, and the liability for the negligence of those who are 
 " engaged in the work." 
 
 Now, what could be more clear than that the principle 
 applied fully in this case. There was a duty incumbent upon the 
 Municipal Commissioners and they employed a contractor. That 
 would not, it was here distinctly laid down, release the employer 
 from his liability. The last proposition laid down by Mr. Justice 
 Williams seemed to him unanswerable. Then, let us now look at 
 the case of Hole v, The Sittingboume Railway Co. That was a case 
 in which the defendant had had the power given them and the 
 duty thrown upon them to build a bridge across a river ; and it 
 was to be a river which by its formation should allow all vessels of 
 a certain size to pass. The bridge was to be so built that it would 
 open and shut, and all vessels were to be allowed to go through. 
 The bridge was imperfectly constructed by the contractor whom 
 the Company employed, and the Company on that ground tried to 
 get out of their liability. Now, nothing could be clearer than the 
 statement distinctly made in that case that such a defence would 
 not avail. The judgments were rather long, but he would read 
 such portions as seemed to him to bear most strictly upon this 
 case against the Municipal Commissioners. 
 
 " Pollock [C. B.] : — If I were called upon to state the short 
 " grounds on which my opinion proceeds, to express it in the smal- 
 " lest compass, I would say that this case does not fall within the 
 " rule applicable to those cases where a person has been held exempt 
 " because he was not the master of the servant whose negligence or 
 " misconduct caused the mischief. But this is a case in which the 
 " maxim applies, — qui facit per alium facit per se ; and I own. my 
 " general impression is, — indeed I might almost lay it down, — that 
 " where a person is engaged on a work by contract, or by having 
 " obtained an Act of Parliament empowering him to do it, he 
 " cannot avoid the responsibility by employing somebody else to do 
 " the work under contract. In the case of Ellis v. The Sheffield 
 " Gas Consumers' Co., Lord Campbell, C. J., concurring Avith the 
 
 FOKD, J. 
 1882. 
 
 Patebson 
 
 v. 
 Municipal 
 
 COMMRS. 
 
566 
 
 CIVIL CASES. 
 
 Ford, J. 
 
 1882. 
 
 Patbbson 
 
 V. 
 
 Municipal 
 COitMKS, 
 
 " rest of the Court in refusing the rule, says,—" Mr. Jones argues 
 "for a proposition positively untenable, namely, that in no case can 
 " a man be responsible for the.act of a person with whom he has 
 " made a contract. I am clearly of opinion that if the contractor' 
 " does the thing which he is employed to do, the employer is res- 
 " ponsible for that thing as if he had done it himself." The learned 
 Judge continuing, said he need hardly go on to read what 
 the other learned members of the Court said, because they only 
 expressed the same opinion from other standpoints. His Lord- 
 ship then briefly quoted from the observations, of tenour similar 
 to the remarks reproduced above, from Baron Martin, and after- 
 wards the following from Baron Wilde's deliverance :— 
 
 " As far as I can see, the real distinction is, that where the 
 " accident happens by reason of the negligence of the servant of the 
 " contractor so as to cause injury to a third person, that being a 
 " matter entirely collateral to that which the contractor had con- 
 " tracted to do, there the liability turns on the relation of master 
 " and servant ; but where the thing contracted to be done is the 
 " thing which causes the mischief, and the mischief can be said to 
 " arise without the direct authority of the person ordering because 
 " the thing has been imperfectly done, — in other words where the 
 " injury arises from the imperfectly doing the thing ordered to be 
 " done, there the party giving the order becomes responsible." 
 
 In the case now before the Court, His Lordship held that 
 it was quite clearly the right of the Commissioners to give this 
 work of repairing and maintaining the roads out to contract ; 
 but if the contractor was guilty of an act of negligence in 
 the execution of his duty, then it seemed to him, from all the 
 cases that had been cited, to be in harmony with sound common 
 sense and law to find them clearly liable. He next referred 
 to the case of Gray v. Pullen in which the defendant, the owner 
 of a house in the metropolis, employed the contractor to make a 
 drain from the house to the main sewer, under the powers given 
 by the Metropolis Local Management Act [Vic. 19 & 20 ; cap. 
 120.] The contractor made the drain but filled up the ground so 
 negligently where it crossed a public footway that it subsided and 
 left a hole into which the plaintiff fell and was injured. In this 
 case it was held by the Exchequer Chamber, reversing the judg- 
 ment of the Court of Queen's Bench, that the defendant was 
 liable for the injury ; that the statutable powers given by sections 
 77 & 110 of the Act for making the drain " also imposed on the 
 " defendant the duty of filling up the cutting across the footway 
 " properly and that he was not excused by reason of his having em- 
 " ployed to perform the work a contractor who neglected to do his 
 " duty." The language used in the judgment in that case was very 
 strong on the point, especially in the opinion of Chief- Justice Erie 
 than whom probably no more powerful or learned judge ever sat 
 in that Court. He would read shortly from Chief-Justice Erie's 
 judgment : — 
 
 " The appellant has contended that a duty was imposed on 
 "the defendant, Pullen, as the owner of the premises who caused 
 " the drain to be made across the road, to fill up the drain in a 
 
STRAITS SETTLEMENTS. 
 
 567 
 
 Municipal 
 
 COHHKb. 
 
 " proper manner. Section 77, authorising the making of the drain, Ford, J. 
 " implies that the duty to fill it up was also imposed, and section ^f; 
 " 1 10 commands that the person who makes it shall fill it up pro- Paterson 
 " perly. And the appellant contended that the person making the 
 " drain is responsible if the duty imposed upon him by the Statute 
 " is not performed and damage is caused thereby, and that the com- 
 " plaint is of an omission to perform a duty imposed by Statute, not 
 " of a wrongful act of commission by a contractor beyond the scope 
 " of his employment." 
 
 The appellant relied, in that case, on the Sittingboume Bail- 
 way case, which they had dealt with in this case, and in the 
 Fickard v. Smith case. His Lordship referred further to this 
 judgment as a very strong one ; and said it was agreed in by an 
 exceedingly strong Bench, composed of Chief-Justice Erie, Chief 
 Baron Pollock, Baron Bramwell, Baron Channell, Justice Byles, 
 Justice Keating, and Baron Piggott. In concluding his remarks 
 upon the legal objections which has been raised, his Lordship 
 said that it seemed to him that there was no reasonable doubt 
 as to what the law was on the subject. If, therefore, they 
 found on the facts that the defendant had been guilty of negli- 
 gence, either by themselves or their servant, contractor or agent, 
 then they would be liable for the damage caused by that negli- 
 gence. 
 
 Now he came to the facts of the case, and here the defend- 
 ants had fought hard and bravely, but he thought quite unsuccess- 
 fully, as they had done all along. They took, so to speak, three 
 lines of defence. First, they said there was no hole at all. This 
 was going to the fact of the whole case. Brigade Major Paterson, 
 the plaintiff, had it put to him that it must be all a mistake, — 
 that his horse must have tripped over a stone or something of that 
 sort, and that he ' [the plaintiff] must have dreamed about the 
 affair and imagined the mare had fallen into a hole at the bridge. 
 The two syces who. saw the hole and gave evidence to that effect 
 in the box here, were met with the humorous suggestion that they 
 had been in the vicinity of a spirit distillery shortly before the 
 accident, and at the time of accident the fumes had somewhat 
 obfuscated their minds. He thought it was a very unfortunate 
 and a very unhappy thing that the Municipal Commissioners 
 should have instructed their learned Counsel to take that fine of 
 defence. The Municipal Commissioners were a body of men of 
 high reputation and of high standing, and it should be their aim 
 and study to do what was right, and not to endeavour to meet in 
 this way an honest claim brought by a gentleman whose position 
 certainly raised the presumption very strongly against the idea of 
 his coming here to present a trumped-up case to the Court." There 
 could be no doubt that there was a hole there. There was, besides 
 the evidence of Major Paterson himself and his two syces, the evi- 
 dence of the syce in the employ of Major Hales, who saw the hole 
 before the accident ; and he should have to allude by and bye to some 
 other reasons why, he [the learned Judge] individually believed 
 that there was a hole there on the date of the accident, as 
 alleged for the plaintiff. The case which the defendants submitted 
 
COMMKS. 
 
 568 CIVIL CASES. 
 
 Fokd, J. to prove that there was no hole ever there, would convince no 
 1882 , one. First, the Engineer was called, and he stated that he went 
 
 Patekson to the place described as the scene of the accident, three or four 
 v. days after the accident occurred, and by that time, he told them, 
 1 rw™ L there was no hole to be seen and no trace of any hol& having been 
 filled up. And on such a foundation as that the defendants did 
 not hesitate to ask the Court to believe that the plaintiff, Brigade 
 Major Paterson, made a false claim against them and then came 
 here with a case which had no foundation in fact. That, as he 
 had already said, was at least unfortunate. But the question still 
 remained whether, as the Commissioners contended, it was not 
 possible that the hole might have existed on the day in question 
 and might have been so caused that they could not have been 
 reasonably expected to fill it up before it was filled up, or before 
 the accident, — in other words, that they had used all reasonable 
 diligence and care in keeping the road in a proper state of repair. 
 Supposing, for instance, that there had been a natural subsidence 
 of which they could not reasonably be supposed to have previous 
 knowledge, an unusual or extraordinary flood, or anything of that 
 kind ; an unaccustomed fall of rain might produce such a hole in 
 the roadway ; in such circumstances, it might fairly be contended, 
 they would not be liable. But he had come to the conclusion that 
 the hole which he believed was there on the day of the accident 
 did not arise from any of these causes. And he had also come to 
 the conclusion, much as it conflicted with the evidence of certainty 
 one of the officers of the Municipal Commissioners, that the exist- 
 ence of the hole was due to their negligence in keeping the bridge 
 in a proper state of repair. It was s.omewhat unfortunate, it 
 seemed to him, that Major Paterson did not, at the time of the ac- 
 cident, make a close examination into the cause of the hole which 
 brought it about. He acted quite naturally, perhaps, in what he 
 did, but it might have been a wiser course to have made an 
 examination there and then as to the cause of the hole in the 
 roadway, rather than leaving it, as he did, until next day, when, 
 on going to the place, he found the hole had been filled up. But 
 they had the evidence of one of the Major's svees, who went there 
 and examined the hole next morning. He went under the bridge 
 and saw that the beam which is contiguous to the road, and where 
 it abuts on the planks, forming the roadway of the bridge, was 
 eaten up by white ants, and that it was owing to that that the 
 earth work must have tumbled in, and so formed the hole into' 
 which Major Paterson's mare fell. His evidence was very clear 
 and, he feared, was quite sufficient to show how the hole occurred 
 which caused the accident. Against the evidence of the syce, 
 S^T*\J ll % t0 / the Engineer to the Commissioners, who was 
 
 £4 5 fT; H , e ^ not den y iu terms tLe case f ° r a* 
 
 Plaintiff althoiigh before dealing with the evidence of that officer 
 he might call attention to a report which he made at the time to 
 the Commissioners as to the state of this bridge,-* report which, 
 he must say, looking to the evidence of the syce and to what he 
 himself [the learned Judge] saw with his own eyes on the two 
 occasions he visited the bridge, seemed to him to be the most 
 
STRAITS SETTLEMENTS. 
 
 669 
 
 extraordinary letter he had ever read emanating from a skilled 
 witness. The report was as follows : — 
 
 " I inspected the bridge in question and found it to be in good traffic 
 order. There was nothing in the state of the structure that could have con- 
 duced to the accident complained of. The bridge was repaired with a few 
 planks on one of the abutments, and some fresh rails put in the parapets. 
 All this was completed by the 25th April, and the bridge was then in a 
 thoroughly sound condition. The accident occurred on the 18th instant ; but 
 as nothing had been done to the bridge between that date and the date of my 
 inspection, or has been done since, the bridge is in precisely the same con- 
 dition as it was at the time of the alleged accident. The assertion that the 
 bridge " gave way," is a mistake. The planking and roadway of the bridge 
 are in very good order. I cannot myself find any cause for attributing the 
 accident to any defect in the bridge." 
 
 (Sd.) " T. CARGILL, 
 
 "M. Engineer, 
 31/5/82." 
 
 Now it did not here appear that the Engineer had examined 
 the bridge in a way which would entitle him to make such a re- 
 port as this, and in his examination in chief, he confined himself 
 very much to stating the constituents of certain portions of the 
 bridge ; he did not give the Court any information as to the actual 
 condition at any time of that part of the bridge regarding which 
 he was specially questioned, — that part, namely, through the in- 
 sufficiency or bad condition of which, it was alleged, the accident 
 occurred. His Lordship quoted at some length from the evidence 
 of Mr. Cargill, and remarked that he should have thought it would 
 have been the duty of the Engineer to have pursued his enquries 
 a little further, because the whole of the bridge was not of this 
 tampinis wood, which was not affected by white ants; he told the 
 Court nothing as to, — he did not appear to have made any examin- 
 tion as to — the condition of those parts of the bridge which were 
 not formed of tampinis; and the portion which, as was alleged 
 gave rise to the accident was a portion not formed of this anti- 
 white-ant wood. Quoting further from Mr. Cargill's evidence, 
 and referring to his report to the Municipal Commissioners, His 
 Lordship said they could not but lead any person to the impres- 
 sion that the bridge had been duly iuspected by the Engineer, 
 that it was thoroughly sound and in good condition, and that all 
 persons might use it without any risk of any accident arising 
 from any fault or weakness in its condition. There was, in his 
 opinion, as expressed in his letters to the Municipal Commissioners 
 and in his evidence in the hearing of this case, no reason to 
 believe that there was anything in the bridge likely to cause any 
 accident, and that there was no indication of any accident having 
 occurred there through the fault of the bridge. There was next 
 the evidence of Mr. Presgrave, another officer of the Muni- 
 cipal Commissioners, who went to the bridge with Major Paterson 
 a few weeks after the accident. This witness was not a profes- 
 sional man, and he might fail to observe many features of or 
 appearances about a road or bridge which would be apparent 
 enough to a professional man. He told them that Major 
 
 FOBD, J. 
 
 1982. 
 
 Paterson 
 
 v. 
 
 Municipal 
 
 Commbs. 
 
570 
 
 CIVIL CASES. 
 
 Ford, J. 
 
 X882. 
 
 Paterson 
 
 v. 
 Municipal 
 
 COMMES. 
 
 Paterson pointed out to him what he [the Major] described 
 as a rise in the ground showing where a hole had been filled 
 up. However, Mr. Presgrave's Municipal — he would not say 
 what he was about to say, but simply that Mr. Presgrave did not 
 see the signs to which Major Paterson desired to draw his atten- 
 tion. He now came to what he himself [the learned judge] saw 
 there; he thought it right to visit the place and see the bridge 
 himself, taking upon himself the right the Judge always has 
 of exercising what is called, in the case of a Jury, the order to 
 view. He was bound to say that nothing was more calculated to 
 confirm the statement of and for the plaintiff, or more calculated 
 to discredit the case put forward by or on behalf of the Commis- 
 sioners, than what he found there. He was really so surprised 
 after this first visit, on considering the whole facts over, that he 
 was afraid his inspection must have been too hasty; the whole 
 condition of the bridge seemed to him so bad, - that he went a 
 second time, to make sure there was no mistake. It seemed to 
 his mind beyond doubt that the bridge had been neglected. The 
 large beam upon which rests the last plank, that nearest the road, 
 was simply eaten away by white ants. They had absolutely eaten 
 away some twelve inches of the beam. It was held in its place by 
 an iron bolt or rod of iron which should have kept it to the other 
 beam. There was simply no wood there at all. It was gone. The 
 planks he could not see, but he could fairly judge of their con- 
 dition as a whole . by the state of the end exposed. Of that, one 
 half was entirely gone, and if one put the weight of his hand upon 
 it, it went wagging up and down as easily as could be wished. It 
 was simply held in the place where it was by an accumulation of 
 earthen matter. There were also, he found, most marked indica- 
 tions of a hole having been filled up. He considered the whole 
 formation of the place gave the most absolute proof that a hole 
 of about the size of that described by Major Paterson had been 
 filled up. The roadway consisted of laterite ; but there was one 
 solitary portion, in just such a position as that described by Major 
 Paterson, some 1| foot square, formed of chopped granite. These 
 were all indications of a hole having been filled up ; and he had 
 not the slightest doubt in saying that there had been a hole ; and 
 no doubt these men whom the contractor described as always work- 
 ing about the road at that time had, after the accident, seen the 
 hole and filled it up. Of that he had not the slightest doubt. In 
 face of what he had seen with his own eyes, he confessed he was 
 at a loss to understand how a gentleman in the position of Engineer 
 to the Municipal Commissioners could come into Court and <n V e 
 such evidence as he had done. Now, if this had all been done 
 by white-ants, was that any excuse for the Commissioners » Most 
 certainly not. They all knew that these pests of white-ants were 
 one of the most ordinary causes of the destruction of wooden 
 structures in this country; and it was the duty of the Municipal 
 Commissioners to do as all owners or caretakers of such property 
 m this country had to do,— to keep their eyes open for these pests 
 Under the whole circumstances of the case, the Law on the sub- 
 ject and the facts of the case being emphatically against the 
 
STRAITS SETTLEMENTS. 571 
 
 defendants, the verdict would be for the plaintiff for the sum Ford, J. 
 claimed, less the $50 by which it was admitted the damage to the 1882 ' 
 mare had been overestimated, at the time the suit was brought. Patebson- 
 
 V. 
 
 Municipal 
 
 * COMMBS. 
 
 KHOO KEB v. LAIGEE & OES. 
 
 Notice acquired by an agent, so as to affect his principal, need not necessarily Penang. 
 
 have been acquired by the agent in the same transaction, or in course of his 
 
 business for his principal j but such notice will be imputed to the prinoipal, although Sidqbeaves, 
 
 acquired by the agent in a distinct transaction, and not in course of business for C. J. 
 
 the principal, provided there are circumstances which satisfy the Court, that such 1882. 
 
 notice waa recollected hv thp. a, gnnt,^a,Tid was present to his mind at the time he 
 
 subsequently acted for his principal. Nov. 21. 
 
 Suit to have it declared, that plaintiff, as the holder of a mort- 
 gage from one Khoo Loon, dated 21st March, 1876, was entitled 
 to priority over certain mortgages held by the defendants, the 
 trustees of the Roman Catholic College of Foreign Missions in 
 Penang, dated 12th September, 1877, 23rd April, 1879, and 16th 
 September, 1880, and to rank as 2nd mortgage next after a first 
 mortgage held by the defendants, dated 16th November, 1875. 
 The mortgages to the defendants from the said Khoo Loon were 
 each and all of them effected through one Eichard Jeremiah, who 
 generally helped the defendants in investing their monies, draw- 
 ing their mortgage deeds, and collecting their monthly interest. 
 It did not appear that the said Jeremiah was paid for the said ser- 
 vices, but always charged commission of the mortgagor, in consi- 
 deration of procuring him the loan, — the further facts touching the 
 position and standing of the said Eichard Jeremiah, appear in the 
 several judgments hereinafter given. The mortgage of 1876 by 
 the said Khoo Loon to the plaintiff, was proved to be, as regarded 
 date of execution, filled in by the said Richard Jeremiah, and it 
 was contended that he, Jeremiah, had thus notice of the plaintiff 's 
 mortgage, and by reason of his effecting the subsequent mortgages 
 for the defendants, they were effected by this notice. "What fur- 
 ther part Jeremiah took towards the execution of this mortgage to 
 the plaintiff, appears also in the said judgments. It was also 
 attempted to be proved, that the defendants had direct and actual 
 notice of plaintiff's mortgage, by means of a notice served on one 
 Francis Chebaudel, a former trustee of the said College ; but this 
 point was eventually abandoned by the plaintiff. 
 
 Thomas, for the plaintiff contended, that the said Eichard 
 Jeremiah was agent of the defendants, and his knowledge of the 
 plaintiff's mortgage, was constructive notice to the defendants, 
 and relied on Brotherton v. Hatt, 2 Vern. 574; Fuller v. Bennett, 2 
 Hare 404; Tweedale v. Tweedale, 23 Bevan 431. 
 
 Anthony, for defendants contended, that the said Eichard 
 Jeremiah was not such an agent, as that his knowledge should affect 
 the defendants with constructive notice ; that he was not their 
 agent to receive notice, and the knowledge he acquired of the 
 plaintiff's mortgage was not in course of business, while acting 
 
572 CIVIL CASES. 
 
 Sidgreaves, for defendants, but in a distinct and separate transaction, and 
 ?■ J ' referred to Le Neve v. Le Neve, 2 Wh. & T. 70 ; Wylie v. Pollen, 32 
 __ L. J. Ch. N. S. 728; and Saffron, Walden Co. v. Bayner, 14 L. E. 
 
 Khoo Kee Ch. Div. 406. 
 
 L ™ & Cur. Adv. Vult. 
 
 OK8. 
 
 December 4. Sidgreaves, C. J. Having intimated tli'at I 
 could not dispose of this case on the question of direct notice with- 
 out the evidence of the Reverend Father Chebaudel now in Europe, 
 I have been requested by Mr. Thomas, with a view of saving pos- 
 sibly the expense and delay of a commission to Europe to give a 
 decision as to the alleged constructive notice through Mr. R. 
 Jeremiah to the defendants of the second mortgage on the property 
 by Khoo Loon to Khoo Kay of the 21st March, 1876. 
 
 As to the question whether Mr. R. Jeremiah had the know- 
 ledge imputed to him of this 2nd mortgage, I have no doubt what- 
 ever. It is abundantly clear that he saw that document and fill- 
 ed in the particulars, and the plaintiff is entitled to whatever ad- 
 vantages may accrue to him from that fact. There is no evidence 
 however that he communicated his knowledge to the defendants, 
 and the question is therefore reduced to this. When the 2nd 
 mortgage was made by the defendants through Mr. R. Jeremiah, 
 were they so affected by his knowledge that it became notice to 
 them of the prior incumbrance of March, 1876 ? The position oc- 
 cupied by Mr. R. Jeremiah towards the defendants was that he 
 " helped" them by making mortgages for them when a good op- 
 portunity occurred, and received nearly all the interest on the 
 mortgages made at Balek Pulau including those by Khoo Loon. He 
 received nothing from the defendants, the mortgagees, although 
 I have very little doubt that he did receive the sums from Khoo 
 Loon, the mortgagor, which Khoo Loon says he did. To that ex- 
 tent he was an agent, but to establish the case on behalf of the 
 plaintiff it must be contended that he was employed by them as 
 their agent to receive notice of any subsequent incumbrances. 
 There is not the slightest evidence of any such authority,— neither 
 was the knowledge he obtained imparted to him by way of notice 
 to be given to the defendants, but was merely accidentally brought 
 to his notice in a transaction in which the defendants had no part 
 and in which Mr. R. Jeremiah was not concerned either as solici- 
 tor or agent either for the mortgagor or the mortgagees. This 
 case stands on a totally different footing from the class of cases 
 indicated by Tweedale v. Tweedale, 23 Beav. 431 ■ and Fvllwv 
 Bennett, 2 Hare, 404. ' " 
 
 It would be a great hardship, I think, on the defendants, to 
 bind them m September, 1877, by something that was told to Mr. 
 R Jeremiah [and which he was under no obligation to communi- 
 cate to them, and which at present I must consider he did not 
 communicate to them] in March, 1876. It was clearly not in the 
 same transaction on which they had employed him, and in default 
 of my being satisfied by further evidence of direct notice being 
 
STRAITS SETTLEMENTS. 
 
 573 
 
 given to the defendants of the prior incumbrance, 
 in their favor. 
 
 I must decide Sidgreaves, 
 c. j. 
 
 FOED 1 
 
 Suit dismissed. & \ 3.3. 
 
 Wood I 
 
 1882. 
 
 The plaintiff appealed against this decision, and such appeal 
 was heard on the 29th March, 1883, before Sidgreaves, C. J., Ford, 
 and Wood, J. J. 
 
 Ross, [Thomas with him] for appellants, contended, that the 
 notice to Jeremiah, was sufficient constructive notice to the de- 
 fendants, and that he was a continuing agent, and stood in the 
 same position as a solicitor or scrivener ; that the notice having 
 been acquired by Jeremiah in a different transaction, in which the 
 defendants had no concern, was immaterial. Brotherton v. Hatt, 
 supra ; Jennings v. Moore, 2 Vern. 609 ; Fuller v. Bennett, supra ; 
 Bourso -v. Savage, 2. L. E. Eq. 134 ; and Kettlewell v. Watson, 21 
 L. R. Ch. Div. 685, 704 ; that the case of Saffron W. Co. v. Bnyner, 
 supra, was distinguishable, as there, the mortgage was effected 
 by a cestui que trust, to the defendant, and the solicitors in the 
 case were not solicitors for the cestui que trust, but only for the 
 trustee. It was sought to make out, that the notice acquired by 
 the solicitor subsequently, pf the mortgage by the cestui que trust, 
 was notice to the trustees — and this it was properly held, it was 
 not. 
 
 [The Court here asked whether, as there was no finding on 
 the point by the Court below, the parties were willing to allow the 
 Court as the Court of Appeal, to draw their own inference on the 
 facts proved, as to whether, at the date Jeremiah effected the de- 
 fendant's mortgages of 1877, 1879 and 1880, he had, or had not, 
 any recollection of the plaintiff's mortgage of 1876. The parties 
 through their respective counsel, expressed their willingness that 
 the Court should do so.] 
 
 Boss in continuation, then contended, that on the facts, Jere- 
 miah could not be considered as having forgotten the plaintiff 's 
 mortgage ; that it was his duty to have recollected it, and must be 
 considered as having remembered it, as it was a subject of enquiry 
 in reference to an execution of a fi fa, a short while before Sep- 
 tember, 1877 ; that Jeremiah being a continuing agent from 1875 
 to 1880, transacting business for the defendants, his knowledge 
 acquired on the 21st March, 1876, eo instanti affected the defend- 
 ants, and they could not rely on the interval of time, so as to jus- 
 tify their forgetfulness of the plaintiff's mortgage on 12th Sep- 
 tember, 1877, and subsequent dates. 
 
 Van Someren, [Anthony with him] for respondents contended 
 that in several recent cases, it had been laid down, that the doc- 
 trine of constructive notice had been carried too far. Jones v. 
 Smith, 12 L. J. Ch. N. S. 381, 383, per Lyndhurst, L. C, Ware v. 
 Egremont, 4 De G. M. & G. 473, per Cranworth, L. C. ; Attorney- 
 General v. Stevens, 6 De G. M. & G. 148, per Cranworth, L. G, 
 Montefiore v. Brown, 4 Jurist, N. S. 1201, 1204, 1206, per Chelms- 
 ford, L. C. & Cranworth, L. C, Wylie v. Pollen, 32 L. J. Ch. 
 
 Kuoo Kee 
 
 v. 
 Laigbe & 
 
 OBS. 
 
574 CIVIL CASES. 
 
 SiDQEEAVEs, jj t g, 782, 3, perWestbury L. C. ; that "constructive notice," and 
 
 Foed ") " imputed" or " implied notice," were identical, Espin v. Pemberton, 
 
 & is. 3. 28 L. J. Ch. [N. S.] 311, that this being the tendency of the Court 
 
 Wood ) f Chancery at the present time, this Court would not hold the 
 
 ' notice to Jeremiah in March, 1876, to be good notice to defendant 
 
 Khoo Kee in September, 1877 ; that no case had gone that length, but were 
 "• all cases limited to a period of time shorter than the present. 
 
 LA oes E & Brotherton v. Eatt, supra ; Winter v. Anson, 3 Russell 493 ; Mount- 
 ford v. Scott, 3 Madd. 34, on appeal, 1 Tur. & Ens. 274, 280 ; Har- 
 greaves v. Rothwell, 1 Keen 154 ; Tylee v. Webb, 6 Bevan 554 ; 
 Edgecombe v. Stranger, 1 Jurist, 0. S. 400 ; Lloyd v. Attwood, 3 De 
 Gr. & J. 614; which were all the cases to be found on point of 
 time, extended to an interval of 21 months at the outside, the 
 most of them however being within the year. Here the interval 
 of time was very much greater — the intervening time was an im- 
 portant consideration. 2 Fisher on mortgages, 603, and the rea- 
 son for it was, the inconvenience and injustice that would other- 
 wise ensue from a hard and fast rule of an agent's notice, acquired 
 in a distinct transaction, being notice to his principals. Lowther 
 v. Carlton, 2 Atkyns 241 ; Warrick v. Warrick, 3 Atkyns 291 ; 
 Worsley v. Earl of Scarborough, id. 392 ; — Here the knowledge ac- 
 quired by Jeremiah was quite accidental, not in the course of his 
 duties as defendants' agent, — and was not likely to impress itself on 
 his mind ; and after the great interval of time that had elapsed, 
 could not be presumed to have been on his mind ; that the case of 
 Saffron W. Go. v. Rayner was not distinguishable in principle from 
 the present case, and shewed conclusively that Jeremiah [apart 
 from the question of time,] was not an agent to receive notice, or 
 by his notice, to affect the defendants. 
 
 Ross in reply referred to Espin v. Pemberton, supra; Atterbury 
 v. Wallis, 25 L. J. Ch. N. S. 792 ; Le Neve v. Le Neve, supra, and 
 Spaight v. Cowne, 1 H. & M. 359. 
 
 Cur. Adv. Vult. 
 
 April 3rd. Wood, J. In this matter as I more or less inti- 
 mated, at the time of the argument, the point in issue is, to my mind, 
 the simple question of whether Mr. R. Jeremiah had, at the time 
 of the execution of the 3rd mortgage of the 12th September, 1877, 
 present to his mind the existence of the 2nd mortgage of 21st 
 March, 1876. B ° 
 
 I attribute no material importance to the fact that R. Jere- 
 miah was the agent of both the mortgagor and mort^a^ee but I 
 rely solely on the more general principle, that when the' mort- 
 gagee in a subsequent mortgage or further charge between the same 
 mortgagor and himself, employs an agent as scrivener to draw his 
 securities for him who is as a fact at the time aware of an incum- 
 brance in favor of another person, the mortgagee is affected bv 
 that knowledge of his agent, always presuming that this know 
 ledge is brought home to the agent as a matter recollected bv 
 him, J 
 
STEAJTS SETTLEMENTS. 575 
 
 As I much prefer to use in a matter of this kind the words of Sidgreaves, 
 an author of repute, rather than my own, I refer to 2 Dart's v c - J - 
 Vendors and Purchasers, Ed. 1876, p. 878, in which he says : &° ] j. j. 
 
 Wood J 
 k n " ^^ e P urc ? laae ^ [although an infant purchasing under the sanction of a 188 2- 
 
 " Court of Equity] is bound by notice to his Counsel, Solicitor or Agent, or, 
 
 " perhaps, trustee, if acquired either in the same transaction or in a prior Khoo Kee 
 " transaction, but under circumstances which satisfy the Court that the notice T "' 
 " must have been recollected," Laigre & 
 
 citing for authorities in support of this latter proposition among 
 others, the cases cited in argumentbefore this Court, viz., Hargreaves 
 v. Eothwell, 1 Keen, 154 ; Fuller v. Bennett, 2 Hare, 394 ; Tulee v. 
 Webb, 6 Beav. 552. 
 
 And again in Sugden's Vendors and Purchasers, Ed. 1862. 
 p. 757 : 
 
 " The notice to the Counsel, Attorney or Agent must be in the same 
 " transaction, but where one transaction is closely followed by and connected 
 " with another, or whether it is clear that a previous transaction was present 
 '" to the mind of the Solicitor, when engaged in another transaction, the notice 
 " to the Solicitor is notice to the client," 
 
 citing the above and many other cases. As I understand the law, 
 although the giving of a notice to bind a solicitor, might require 
 to be given in the same transaction, and notice so given would 
 affect the principal with notice, whether the agent did in fact re- 
 member it or not, yet knowledge, the actual knowlege of an en- 
 cumbrance present to the mind of the agent, at the time of a 
 transaction of mortgage or purchase, in whatever transaction that 
 knowledge may be acquired, is the knowledge of the principal — 
 see in particular the following cases which I have adverted "to as 
 the latest authorities on the point, Rolland v. Hart, 6 L. E., Ch. 
 App. 681-2 per Lord Hatherley : 
 
 " Then the only question is, what is actual notice ? It has been held over 
 " and over again that notice to a solicitor of a transaction, and about a matter 
 " as to which it is part of his duty to inform himself, is actual notice to the 
 " client. Mankind would not be safe if it were held that, under such circum- 
 " stances, a man has not notice of that which his agent has actual notice of. 
 " The purchaser of an estate has in ordinary cases, no personal knowledge of 
 " the title, but employs a solicitor, and can never be allowed to say that he 
 " knew nothing of some prior incumbrance because he was not told of it by 
 *' his solicitor. 
 
 " It cannot be left to the possibility or impossibility of the man who seeks 
 " to affect you with notice being able to prove that your solicitor did his duty 
 " in communicating to you that which, according to the terms of your em- 
 " ployment of him, was the very thing which you employed him to ascertain. 
 
 " I think it is clear, upon the authorities, that as there was in this case, 
 " plain and distinct notice on the part of his solicitor, employed by Mr. Stagg, 
 " of the previous security, that notice must, therefore, be imputed to Mr. 
 " Stagg." 
 
 Boursot v. Savage, 2 L. R. Eq. 141-2, per Kindersley, V. C. : 
 
 " Supposing, however, that actual knowledge of the existence of a trust 
 " cannot be imputed to the defendant Savage, still I think he is affected by 
 
576 
 
 CIVIL OASES. 
 
 c 
 
 POED 
 
 & 
 
 Wood 
 1882 
 
 ],. 
 
 Khoo Kee 
 
 v. 
 Laigke & 
 
 Sidbeeaves, " constructive notice. He employed Holmer as his Solicitor in the transaction 
 " of the purchase ; and, accoi-ding to the doctrine of equity, a pur- 
 " chaser has constructive notice of that which his Solicitor in the transaction 
 " of the purchase, knows with respect to the existence of the rights which 
 " other persons have in the property. Take the simplest case : Suppose the 
 " purchaser's Solicitor happens, by reason of his connection with the property, 
 " to be aware that the vendor has created an equitable mortgage. 
 " Is it possible to contend that the purchaser would not be held to be affected 
 " with constructive notice of the existence of such mortgage ? It is 
 " a moot question upon what principle this doctrine rests. It has been 
 " held by some that it rests on this: — that the probability is so strong that 
 " the Solicitor would tell his client what he knows himself, that it amounts to 
 " an irresistible presumption that he did tell him ; and so you must presume 
 " actual knowledge on the part of the client. I confess that my own impres- 
 " sion is, that the principle on which the doctrine rests is this : that my Soli- 
 " citor is alter ego — he is myself ; I stand in precisely the same position as he 
 ■• does in the transaction, and therefore, his knowledge is my knowledge ; and 
 " it would be monstrous injustice that I should have the advantage of what he 
 " knows without the disadvantage. But whatever be the principle upon 
 " which the doctrine rests, the doctrine itself is unquestionable." 
 
 Ketilewell v. Watson, 21 L. E. Ch. Div., 705, per Fry, ,T. : 
 
 " The first question then which arises is, did the principal know of the 
 " charge ? If he did not, had he an agent who knew of the charge P Then 
 " the next question is, was it the agent's duty to communicate that fact to 
 " the principal ? If it was, the Court always holds that he did communicate 
 " it, not because, in many cases, he did in fact communicate it, but because, 
 " as I understand it, it would be too dangerous to inquire whether the con - 
 " munication was really made, it would open the door to perjury." 
 
 Judged by this rule the question resolves itself to this, whe- 
 ther under the circumstances of this case, it can be inferred by 
 the Court that Eichard Jeremiah had, at the time of the third 
 mortgage, on 12th September, 1877, knowledge and recollection of 
 the fact of the second mortgage in March, 1876. That he had such 
 knowledge in March, 1876, is found as a fact in the case, but that 
 it was present to his memory in September, 1877, is another and 
 a different matter, and- 1 may add that I do not accept it as a 
 fact proved in the case that he admitted his knowledge in conver- 
 sation with Koon Tuck Choon in June, 1876. That°he did recol- 
 lect may be inferred from the fact that as an agent employed by 
 the College to invest money for them, and presumably with a 
 knowledge of the value of the land mortgaged, particularly with 
 respect to lands at Balek Pulnu, he might naturally be observant of 
 the run of their affairs,— and that his assertion to the contrary 
 may be open to question as were certain other statements which 
 were disbelieved by the learned Chief-Justice at the trial - 
 
 On the contrary that he did not recollect may be inferred 
 from several facts patent in the case. Eichard Jeremiah, though 
 acting as legal adviser and scrivener, was no lawyer and probably 
 little conversant with the law of constructive notice, asrencv and 
 priorities and consequently when he had notice, as no doubt he 
 had of the mortgage of 12th March, 1876, he regarded it as he 
 might reasonably regard it as matter not affecting the existing 
 rights of his employers the first mortgagees ;— and only of i m ° 
 portance, [if his foresight and knowledge extends so far], in case 
 
STRAITS SETTLEMENTS. 
 
 577 
 
 1882. 
 
 Khoo Kee 
 
 v. 
 Laigbe & 
 
 OBS. 
 
 of a 3rd mortgage or further charge, an event which there is no Sidobeaves, 
 ground for supposing was at that time in contemplation by the p 0ED " j 
 parties, — and thus that fact of the second mortgage might not & > J.J. 
 unreasonably hare made, but little impression on his mind. That WoOD J 
 he did not communicate his knowledge is a fact in the case — but 
 the more important fact unfavorable to his recollection is, that 
 besides other business of a like kind in which he was probably 
 engaged for others, but of which there is no direct evidence one 
 way or another — he was employed in over two-thirds of about 100 
 different mortgages for the College, the incidents connected 
 with which 60 or 70 mortgages it would be unreasonable, as I 
 think, to expect him to remember after an interval of 18 months, 
 the matter resting on mere remembrance unassisted by any written 
 note or document. In the absence of a formal and regular notice 
 given by the second to the first mortgagee, a fact which is with- 
 drawn from our consideration, " constructive" or to use what may 
 be considered the more exact word implied notice, can only, as I 
 think, consistently with the authorities cited on this head, be 
 inferred in the principal where it is beyond reasonable doubt, 
 present in the mind of the agent, and that, I think, was not so in 
 the case before us. 
 
 In such a case as this, hardship of some sort must of necessity 
 accrue to one side or the other, but in arriving at the conclusion 
 I have done, the weight of inconvenience falls as it would appear, 
 upon the right parties. The original fault lies with the second 
 mortgagee who is now represented by the plaintiffs, and his mani- 
 fest duty was by employing a skilled practitioner, to have secured 
 himself against any question of implied or constructive notice, by 
 reliable proof of actual notice, which a careful practitioner would 
 have secured to his principal by the usual precautionary measures. 
 In my opinion the appeal should be dismissed, and the judgment 
 of the Court below affirmed. 
 
 Ford, J. I concur generally in the views of my brother 
 Wood in this case, as to what the law is, and think the same is 
 clearly and tersely expressed in Sugden's Vendors & Purchasers, 
 and Mr. Dart's book on Vendors & Purchasers as cited by my 
 learned brother. I differ however from him and the learned 
 Chief-Justice, on the effect of the evidence of Jeremiah's know- 
 ledge, for I think this establishes with sufficient clearness, the 
 liability of the respondent for the knowledge of their agent. No 
 doubt Jeremiah denies that on the execution of the third mortgage, 
 he had any knowledge of the previous equitable mortgage to 
 those represented by the appellant, but he also denied, although 
 qualifying such denial with doubts, — knowledge of original notice 
 of the mortgage when executed, his giving a slip and filling in 
 dates, &c. 
 
 The Chief-Justice however discredited him entirely in this 
 and some other particulars, and I must say, that I think his 
 evidence when discredited to this extent, is to be discredited as to 
 his memory upon a subsequent occasion and to be treated as of 
 little or no weight in any part of the case. The question for con- 
 sideration is whether from the circumstances of the case it is 
 
OKS. 
 
 578 CIVIL OASES. 
 
 Sidoreaves, clear, — I mean so clear that a reasonable man would entertain no 
 
 Fobd J | serious doubt on the subject, that Jeremiah as the agent of the 
 & ( J.J. 3rd mortgage had the previous transaction in his mind. Now 
 
 Wood I what are the facts of the case ? Jeremiah, although not the sole 
 188a - agent of the respondents for investing the funds of the College was 
 
 Khoo Kee so to the extent of investing and carrying through two-thirds 
 v. of their transactions of this character amounting to some 50 or 60 
 
 Laiore & mortgages, and in all cases, executed and valued the propertj- on 
 which advances were made, — drew, or settled or approved the 
 mortgages drawn, and generally received the interest upon them. 
 He must I think, be supposed to be, if not a continuous or general 
 agent, at least one who from the nature of his numerous employ- 
 ments for this special purpose, had, and must have had, his mind 
 alert on the subject of these investments. 
 
 On 16th November, 1875, he had effected a mortgage between 
 Khoo Loon and the College for 2,000 or $2,300, and in March, 1876, 
 had been so far given notice of a mortgage by Khoo Loon of the 
 same property for $5,000 to those represented by the appellants, 
 that he declined the loan on the ground that the College had not 
 then the money, but so far assisted the mortgage that he furnish- 
 ed the parties with particulars of the parcels from the title deeds 
 and filled up the date of the mortgage itself. About 3 months 
 after this date there is evidence and satisfactory evidence to my 
 mind, that his memory is again recalled to the circumstances by 
 an attempt to execute afi. fa. on the property, and is said to have 
 said when showed the writ : " It is no use to go and seize the land, 
 " as the land is mortgaged to the College and also to Khoo Kay," 
 and some 15 months after, that is, on 12th September, 1877, he is 
 again negotiating a mortgage for $1,700 between Khoo Loon and 
 the College, acting for both parties with the very man before him, 
 the mortgagor, in the previous mortgages. I can hardly conceive 
 the mind of any ordinary man under such circumstances, having 
 forgotten or having out of his memory the previous mortgage to 
 Khoo Kay ; a man to have done so, must I think have had a 
 mind bereft almost of every and any business capacity, of which 
 I have seen no evidence, and which would be contradicted by the 
 trust reposed in Jeremiah by the respondents over so long a 
 period as 50 or 60 mortgages would involve, and in so large a 
 number of transactions. Can the mere fact of the lapse of 15 
 months raise a sufficient presumption of loss of memory ? I con- 
 fess under the circumstances of the case I think not. The a«ent 
 for each party in the original mortgage, and with that of Khoo 
 Kay further stamped in his memory, by the part he took in it 
 and the incident of the execution and his statement then of its 
 existence, seem to me to render this of the highest improbability 
 and to negative such an assumption. J ' 
 
 It is suggested I think, by one of my learned brothers, that 
 Jeremiah was a man who probably knew nothing about tacking 
 and the need of giving notice of a second equitable mortgage and 
 that this ignorance may have made the subject of so little im 
 portance that he may naturally have forgotten the occurrence" 
 Though not a trained lawyer, Jeremiah was however a clerk in 
 
STRAITS SETTLEMENTS. 579 
 
 the Supreme Court Registry, where registration of Bills of Sales Sidgbeavbs, 
 and other documents is common, and of a class where some know- j ^ '• 
 ledge of law is also common, and this might I think be almost & (j,j, 
 credited with a contrary presumption. He himself however Wood ) 
 professes no such ignorance, and admits that had he a formal * 882 - 
 notice in writing when the mortgage of March, 1876, was executed, k hoo kee 
 he should have communicated it to his principal, and throughout v. 
 
 the rest of his evidence he rests his conduct on want of knowledge Laiobk & 
 of the mortgage at the time of its execution, and afterwards, -and 
 not an ignorance as to the effect of a previous equitable mortgage 
 brought to his notice. 
 
 I am unable therefore to see any substantial ground for 
 crediting him with an ignorance which would make his memory 
 of so strangely a forgetful class, as it would in my judgment have 
 to have been, to have had entirely out of it in September, 1877, 
 the mortgage of March, 1876. I should have been of the same 
 opinion had such ignorance been evidenced rather than assumed. 
 The contrary view would I think, give an advantage to the 
 employment of agents with a want of knowledge of their work, 
 and tendencies to exercise forgetfulness somewhat perplexing to 
 follow in its results. Tt is to my mind I confess, sufficiently clear 
 that this knowledge was with Jeremiah when he acted for all 
 parties in the mortgage of September, 1877, and constituted such 
 constructive or implied notice as must bind his principals, but my 
 learned brothers taking a different view, the decision of the Court 
 below will be affirmed. 
 
 Sidgreaves, C. J. I adhere substantially to the judgment 
 delivered by me in the Court below, and concur in the judgment 
 delivered by Mr. Justice Wood in the Court of Appeal. 
 
 Judgment affirmed. Appeal dismissed. 
 
 April, 4. Boss, [Thomas with him] moved for leave to 
 appeal to Her Majesty in Council. 
 
 Van Someren asked, if granted, that it might be in terms. 
 
 Per curiam — Leave to appeal will be granted on the following 
 terms : that appellant give security in |l,500, costs of appeal, 
 respondents being at liberty in the meanwhile to sell the property, 
 under their several mortgages, on giving security to appellants in 
 the sum of $7,000, to meet performance of any judgment or order 
 made by Her Majesty in Privy Council. 
 
 Leave granted accordingly, [a] 
 [a] The appeal was never prosecuted. 
 
630 CIVIL OASES. 
 
 MUSTAN BEE & OES. v. SHINA TOMBY & ANOR. 
 
 Penang. A devise of a shop as a Wakoff, which, was not to be sold, but its rents to go 
 
 for its repairs, and the balance thereof for Kandoories for the testator's benefit, is 
 
 Sidgrjeaves, void as being in restraint of alienation, and tending to a perpetuity. " 
 
 C. J. Such a clause, though void from the moment the Will takes effect, is still not 
 
 1882. beyond v the right of the next-of-kin to call in question; though for several years 
 
 they may have acquiesced in it, and make no claim to have same set aside, for 
 
 December 6. more than 12 years from the time the Will first operated. 
 
 The trustees of the shop, for the purpose of Wakoff and Kandoories, do not 
 cease to be trustees, merely because such devise is void : they hold it as trustees 
 for that purpose until the devise is held void, and thereafter, in trust for the next- 
 of-kin. The case falls within section 2 of the Limitation Act XIV. of 1859, and is 
 not barred by limitation. ,» 
 > (J^ . . 
 
 This was a suit by the plaintiffs, as legatees under the Will 
 of one Ibramsah deceased, to have certain clauses and trusts of 
 the Will declared void, and to have the good and valid trusts, and 
 legacies, carried into effect. The Will was dated 13th November, 
 1863 — the testator died in January, 1864 : probate to his Will 
 was granted to the defendants in February, 1864. By this Will, 
 the testator appointed the defendants his executors ; and among 
 other things declared, that a certain shop, being No. 13, Market 
 Street, in Penan g, " should not be sold by any one, but its rents 
 " should go for its repairs, and the balance should be spent for 
 "Kandoories for the testator." These Kandoories were feasts 
 given to the friends of the deceased, and the poor generally, 
 during which feasts, alms were given, and sometimes prayers 
 recited : they were considered to benefit the testator's soul. The 
 defendants administered the estate ; and with the consent of the 
 next-of-kin, among whom were the plaintiffs, and at their request, 
 kept the said shop as directed, and applied the rents as desired 
 by the Will. The plaintiffs were now desirous of having this 
 clause of the Will declared void, and the property declared undis- 
 posed of, and so go to themselves as the next-of-kin, or to 
 them by the terms of the Will. The defendants resisted this 
 considering they were bound to uphold the testator's Will, and 
 pleaded the Statute of Limitation, among other defences The 
 defendants, on 6th May, 1881, filed an account shewing they held 
 the shop as Wakoff, as directed by the Will. The defendants had 
 a deed of trust, of the shop, drawn up, carrying out the wishes of 
 the testator. There were other points and matters also raised in 
 the suit, which are not reported, as they were settled between the 
 parties subsequently, or otherwise went off, and were undecided 
 
 > Boss for plaintiffs contended, that the devise of the shop was 
 void as being in restraint of alienation, and the Kandoories as 
 tending to a perpetuity, and cited Fatimah v. Loqan [a] and 
 Hassan Noordm v. Sheik Eusoff decided by Ford, J. [6] a 's in point. 
 He admitted that whatever money had been expended by the 
 defendants for the purpose of carrying out the testator's wfshes 
 account * Pkintiffs ' COuld not form a ™tter of 
 
 VanSomeren for defendants admitted the devise and gift for 
 Kandoories were, on the authorities, void ; but he contended that 
 [o] ante page 255, ^ Not reporte<Ji 
 
STRAITS SETTLEMENTS. 581 
 
 the clause if void, was void at the moment the Will became Sidgbeaves, 
 operative, which was in January or February, 1864. The plaintiffs 9 ^ £ 
 
 should have sued them to have the same declared void — or at " 
 
 least within 12 years thereafter. The object of the plaintiffs, in Mustan Bjse 
 having the clause declared void, was, in order to get the property & 0BS - 
 for themselves ; and that they could get only in one of two Shina Tom- 
 ways— either by having the clause declared void ; and the property by & anok. 
 to fall into the residue-, and for whicli they were legatees, and so 
 obtain it as a legacy under the Will— or as being property 
 undisposed of, in which case they would take it as next-of-kin, as 
 in case of intestacy. But if they took it as a legacy, they were 
 barred after 12 years, by sub-section 12, of clause 1, of the Limi- 
 tation Act XIV. of 1859, — and if as in case of intestacy, by six 
 years, under sub-section 16, as there was no clause applicable to 
 the case. In either case, they were barred. The only way it 
 would be attempted to get over the difficulty was, by relying on 
 section 2 of the Act, and contending there was a trust, and so 
 limitation was not applicable : but there was no trust here for the 
 plaintiffs. The only trust there was, was for a particular 
 purpose — for the Kandoories for the testator's own benefit. Thjs 
 trust if void, falls to the ground, and there was no other trust in 
 the case. An implied trust would probably be relied on, but 
 section 2 must be construed to be applicable, like the home Act, 
 only to express trusts, Ordinance IV. of 1878, section 2, clause 2. 
 
 Ross in reply. Limitation does not apply, as the defendants 
 were trustees of the property. The trust is express with regard 
 to the property, and the defendants are trustees of it under the 
 Will. Once holding as trustees, they cannot, when the trust is 
 declared void, turn round and say they do not hold it on trust. 
 They hold it on trust however void, until the moment it is declared 
 void and then in trust for us. The object of the trust may be 
 altered, by the devise being held void ; but still, a trust it was, 
 and so it remains. It must be held to be an express trust, though 
 now, for the benefit of the plaintiffs. An implied trust however 
 is sufficient under section 2, see TJwmpson on Limitation, p. p. 
 233-237, and that, in eqtiity, there clearly was here. The defend- 
 ants also have signed an acknowledgment, which revived our 
 claim, if barred, by the account they filed on 6th May, 1882. 
 
 Sidgreaves, C. J. held that the clause was void, but the 
 defendants were nevertheless clothed with a trust, and the case 
 fell within section 2 of the Limitation Act, and consequently the 
 plaintiffs' claim was not barred. He also ordered that the trust 
 deed executed by defendants, in respect of the shop, should be 
 given up to be cancelled, and the property conveyed by them, by 
 a new deed, to the plaintiffs. Costs of all parties to come out of 
 the estate. 
 
582 CIVIL CASES. 
 
 MAHOMED MUSTAN & ANOE. v. KANA SHAIK 
 IBEAHIM. 
 
 Penang. The plaintiffs having contracted with one A, to purchase certain lands from him, 
 ' thereafter agreed with the defendant to sell the same to him, at a large profit. Lands 
 
 Sidgkeaves, in that neighbourhood were then rising every day in value, by reason of certain Govern- 
 C. J ' ment Notifications, and were required for immediate purposes of building, to supply the 
 1882 - . wants occasioned by the said Notifications- A. hearing the plaintiffs had sold the land 
 . a t so large a profit, refused, of his own wrong, to complete the contract he had made 
 
 December 7. with them, and in consequence was sued by the plaintiffs for specific performance of 
 his contract. While this action was pending, the plaintiffs and defendant executed an 
 agreement, which, after reciting that the plaintiffs had purchased the lands of A, and 
 had agreed to sell it to the defendant, the said A. refused to carry out his contract, 
 proceeded as follows : — " We have instituted an action against him in the Court, after 
 " demanding from him the said lands. If we succeed in getting judgment in the case, 
 " and the lands decided in our favour, we shall immediately make the bill of sale in 
 " your [defendant's] favour, or in favour of those whom you will appoint. If we do 
 " not succeed in getting the lands in the suit, we will return to you the said sum of 
 " $200. which we took from you as an advance." The plaintiffs' case against the said 
 A. was a long while, [owing to the block of cases on the trial list,] pending, before it 
 was heard — it eventually came off, and A. was decreed specifically to perform his 
 contract with the plaintiffs. The defendant hearing the plaintiffs had succeeded, called 
 on them to fulfil their contract with him, but owing to the said A. having appealed 
 against the decree, they were unable to do so. The defendant then repudiated all 
 further connection with the land, and claimed that his contract was at an end, and 
 requested a re-payment of his advance. The plaintiffs refused to admit this, and so 
 matters remained, until the appeal, which took some nine months before it was 
 heard, and the judgment against A, in the Court below, affirmed. A. thereafter 
 specifically performed his contract with the plaintiffs, and the plaintiffs called on the 
 defendant to complete his contract with them. At that time the value of the land had 
 considerably gone down, and was no longer of much use to the defendant, as sufficient 
 lands had been utilized for the purposes of the Government Notifications. The object 
 for which the defendant had purchased it had wholly failed. The plaintiffs then sued 
 the defendant for specific performance of his contract. 
 
 Held, by the Court below, that the defendant was justified in his refusal to 
 take the lands, as " judgment in the case" meant, judgment of the Court below, 
 in which the suit was pending at the time of the agreement : that plaintiffs being 
 unable then, by reason of A's appeal, to perform their contract, the defendant was 
 discharged from his. 
 
 Held, on appeal [by Ford and Wood, J. J., Sidgreaves, C. J. dissenting,] revers- 
 ing the judgment of the Court below, that "judgment in the case" meant final 
 judgment, whenever, and at whatever Court it might be— and the defendant 
 having so contracted, was bound to take the land. Decree for specific performance 
 by him accordingly. 
 
 This was a suit for the specific performance by the defendant 
 of his contract with the plaintiffs, for purchase of certain lands. 
 The plaintiffs had contracted with one HajeePakir Saiboo for, the 
 purchase of his lands, and thereafter agreed with the defendant 
 for the sale of such lands to him. In consequence of certain 
 Government Notifications, lands in the neighbourhood of the lands 
 in question, had risen considerably in value— and the object of 
 the defendant m purchasing- it was speculation, to sell it again to 
 some person intending to utilize it for the purposes of the Notifi- 
 cations, or himself to so utilize it. The said Hajee Pakir Saiboo 
 hearing the plaintiffs had contracted to sell the land at a large 
 profit, refused to complete his contract with them. Thev there- 
 upon on the 3rd December, 1880, sued him in the Supreme Court 
 here, for specific performance— this suit was a considerable time 
 pending before it could be heard, owing to the block of cases on 
 the.,tnal list. Pending this suit, and shortly after it had been 
 
STRAiTS SETTLEMENTS. 583 
 
 commenced, the plaintiffs and defendaut executed an agreement Sidgreaveb, 
 in Tamil, which, being translated, was as follows : — 1( j 82 '. 
 
 " Penang, 9th June, 1881. Prior to this, on the 19th October, 1880, we Mahomed 
 " [plaintiffs] settled and purchased two lelongs of land [describing it] from Mustan & 
 " Hajee Pakir Saiboo for tf'2,500, and the said Hajee Pakir Saiboo has deliver- anor. 
 " ed to us an agreement for that amount, which said lands we have sold to ?• 
 
 " you [defendant] for §3,900, and received from you §200 in advance. The Kana Shaik 
 " said Hajee Pakir Saiboo having failed to carry out the terms of his agree-- Ibbahim - 
 " ment as aforesaid, we have instituted an action against him in the Court, 
 " after demanding from him the said lands. If we succeed in getting 
 " judgment in the case, and the lands decided in our favour, we shall imme- 
 " diately make the Bill of Sale in your favour, or in favour of those whom 
 " you will appoint, and receive the balance of $3,700. The costs of stamp and 
 " Bill of Sale shall be yours. If we do not succeed in getting the lands in the 
 " suit, we will return to you the said sum of §200, which we took from you as 
 " advance. The heirs and executors of the two of us shall carry out the 
 " terms of this agreement." 
 
 The plaintiffs proceeded with their suit, which came on for 
 hearing on the 27th July, 1881, when a decree was made, that the 
 said Hajee Pakir Saiboo, specifically perform his contract. The 
 defendant hearing that plaintiffs had succeeded, called on them to 
 complete their contract with him, and was told to. wait a day or 
 two. The defendant, at the er.d of two days, went again to the 
 plaintiffs and demanded performance of their contract with him, 
 when the plaintiffs informed him that the said Hajee Pakir Saiboo 
 on the 5th August, 1881, had obtained leave to appeal from the 
 decree made against him, and hence they could not then fulfil their 
 contract with him [defendant.] The defendant then repudiated all 
 further connection with the plaintiffs, and the contract — and claimed 
 that the same was at an end, and also claimed his advance of §200. 
 The plaintiffs refused to acknowledge this repudiation or claim of 
 the defendant. Nothing further was done, except that the said 
 Hajee Pakir Saiboo prosecuted his appeal, but the same did not 
 come on for hearing and judgment, till 2nd May, 1882. The result 
 of the appeal being that it was dismissed, and the decree for 
 specific performance, affirmed. Hajee Pakir Saiboo, thereupon 
 specificially performed his contract with the plaintiffs : and the 
 plaintiffs being then in a position to give the defendant a title, 
 called on him to fulfil his contract. The defendant declined to do 
 so, maintaining that the same had been put at an end by him as 
 aforesaid, that the land had considerably gone down in value, and 
 was of no use to him, or for the purposes for which he purchased 
 it. The plaintiffs then [12th June, 1882] sued him for specific 
 performance of his contract, and this suit now came on to be 
 heard before His Honor the Chief -Justice. Other points were also 
 raised and argued, which are not reported, as no judgment was 
 given on them. 
 
 Boss, for plaintiff. The judgment mentioned in the agree- 
 ment must be taken, not to mean judgment of the Court below, 
 but of the Court of Appeal as well. The parties knew that an 
 appeal was possible, and there was no reason to suppose they 
 did not mean to take it in. In this contract, time was not of the 
 essence of it, and a decree for specific performance should go. 
 
584 CIVIL CASES. 
 
 Sidoebaves, Van Someren, for defendant. Time was clearly of the essence 
 ^'•2 - of the contract — the fluctuating vulue of the property, and the 
 ' state of the market at the time, made it so. The parties knew 
 
 Mahomed why they wanted the land, and that it was necessary that as little 
 
 Mustan & y mej as possible, should be lost, in order to get it. The contract 
 
 ,„. ' speaks of a suit having been instituted in "the Court" — that 
 
 Kana Shaik Court of course was this, the Supreme Court — it was not the Court 
 
 Ibbahim. f Appeal that the action was then pending in, and then goes on to 
 say, " If we succeed in getting judgment in the case" — surely this 
 means, the case then instituted and pending in this Court — then 
 " immediately" after, they are to make the conveyance. If judg- 
 ment meant more than the judgment of the Court below why 
 limit it to the judgment of the Court of Appeal — it might also 
 mean the judgment of Her Majesty in Privy Council, which 
 it would be absurd to suppose the parties would have contemplated, 
 when they were desirous of having the land as soon as possible. 
 Boss, in reply. 
 
 Sidgreaves, C. J., after remarking that the parties evidently 
 were hot of the same mind as to the meaning of the words they 
 had used, and on that ground alone it would have-been unjust to hold 
 the contract binding and decree for specific performance — adverted 
 to the terms of the contract. His Lordship remarked, that the 
 suit was spoken of as having been^instituted in the Court — and 
 " Court" under the Civil Procedure Ordinance V. of 1878, section 
 6, meant "a Court or Judge" — but was distinguishable from 
 " Court of Appeal" which was also defined. The nature of the 
 property, the state of the market and the object for which the 
 purchase was made, all required time to be of the essence of the 
 contract. Could he suppose the parties, being thus desirous of get- 
 ting the land as soon as possible, intended to wait the decision of 
 the Court of Appeal, which sat but once a year here, and the time 
 of its sittings indefinite. If they meant by "judgment," the 
 judgment of the Court of Appeal; there was nothing to limit it to 
 that ; as counsel had remarked, it might be said to be the judg- 
 ment of the Privy Council— but the parties never could, and did 
 not he felt certain, contemplate that stage of an appeal. On the 
 whole, he had come to the conclusion, that " judgment in the case" 
 was, the judgment, of the Court of first instance, and as the 
 plaintiffs were then unable on their own shewing to complete, their 
 purchase, they could not now, compel the defendant to fulfil it, 
 when he had no longer an object, or the wish to perform it. 
 
 Judgment for defendant. 
 
 The plaintiffs appealed against this judgment, and the appeal 
 was on the 31st March 1883, heard by the full Court of Appeal, 
 consisting of Sidgreaves, C. J., Ford & Wood, J. J. 
 
 Ross for appellants. The question here is, what was the 
 meaning of the word « judgment " in the contract-it must mean 
 final judgment whenever that judgment might be pronounced 
 [He was then stopped by the Court, who called on] 
 
STRAITS SETTLEMENTS. 585 
 
 Van Someren for respondent — " judgment" must mean judg- Sidgbeaves, 
 ment of the Court below — the contract speaks of the Court in <?. ^J. 
 
 which the case is pending, and then speaks of the " judgment in ' 
 
 the case." The further clause, " If we do not succeed in getting Mahomed 
 the lands in the suit," also shews they intended to confine it to the m "8tan & 
 particular original suit. They were also to convey the land AI ^ 0B- 
 " immediately" after judgment. The " suit," " case," or " action," Kana Shaik 
 terminated with the judgment of the Court below. The appeal is Ibkahim. 
 not a part of the " action," " suit" or " case." The word " Court" 
 is used, which is distinguishable from " Court of Appeal" — and 
 if the word judgment meant more than the judgment of the Court 
 below, there was no reason for saying it should not apply to the 
 judgment of the Privy Council. The nature of the property, its 
 fluctuating value, and the surrounding circumstances, shew the 
 judgment of the Court below was the one, and only one, intended. 
 If judgment meant more, the parties were not ad idem, and no 
 specific performance can be decreed. 
 
 Cur. Adv. Villi. 
 
 April 3. Wood, J. was of opinion that the judgment should 
 be reversed, as judgment meant final judgment, in whatever Court 
 such judgment might be pronounced — and the context " getting 
 " judgment in the case, and the lands decided in our favour, we 
 " shall immediately, &c," shewed the parties meant a judgment 
 which would have the effect of giving the plaintiffs' possession of 
 the land, and a right to deal with it as theirs. The judgment of the 
 Court below gave them that, but was appealed against, and so 
 they were deprived of their right. The judgment of the Court 
 of Appeal, again gave it them ; and that judgment not having 
 been appealed against, was the final judgment. 
 
 Ford, J. was of the same opinion, and remarked that the 
 defendant, if he meant only the judgment of the Court below, 
 could have said so. He enters into speculation, to buy what would 
 be the result of a certain action, and he had himself to blame, if 
 it afterwards turned out unprofitable. He had agreed to take the 
 land after plaintiffs got judgment for it, and in his opinion, that 
 judgment meant, "final judgment — the judgment which placed the 
 plaintiffs, in a position to give him, what he purchased. There 
 was no evidence, he remarked, that the parties were not ad idem. 
 
 Sidgreaves, C. J. dissented from this judgment, and reiterated 
 his opinion as expressed in the Court below — his learned brothers 
 however holding otherwise, the judgment of the Court below 
 would be reversed, and a decree for specific performance made. 
 
 Judgment' reversed. 
 
586 
 
 CIVIL OASES. 
 
 CHIN GUAN TAK & ORS. v. CHIN SBAH POW. 
 
 Penanq. On reference of the accounts in a partnership suit, to the Registrar for en- 
 
 quiry and report, it is incumbent on him, on such materials as are before him, and 
 
 Wood J. to the best of his ability, to find definitely on the several items in the account and 
 1883. to make up an account shewing how the partners stand in respect to each other. 
 
 Finality in such report is essential. 
 
 February 7. Where therefore the partnership books were lost and each party brought in 
 
 his account made up from memory, but the Registrar being dissatisfied with the 
 evidence and accounts of both parties, in his report — stated, he could make nothing 
 of the accounts, and recommended the plaintiffs should be non-suited. On ex- 
 ceptions to such report, the Court allowed the exceptions, and referred the accounts 
 back to the Registrar for a definite and final report, but ordered the costs of the 
 exceptions to be costs in the cause, 
 
 Exceptions to Report of Deputy-Registrar. This was a suit 
 for partnership accounts, and had been referred to the Registrar 
 for enquiry and report. At the enquiry it appeared, that the 
 books of the partnership were not forthcoming. The plaintiffs 
 alleging they were being kept back by the defendant, and he in 
 return alleging that they had been accidentally destroyed by fire, 
 when the partnership place of business was destroyed. The des- 
 truction of the place of business by fire was admitted by the 
 plaintiffs. The Deputy-Registrar was satisfied that the books had 
 been burnt as stated by the defendant. It also appeared that the 
 books not being forthcoming, the plaintiffs and defendant had 
 each prepared an account from memory, which accounts agreed 
 but in two or three particulars — in every other respect they greatly 
 differed from each other — each party swore to the correctness of 
 his accounts and to the respective items thereof, and called wit- 
 nesses to prove his own account. The Deputy-Registrar was 
 dissatisfied with both accounts and the evidence of either side, 
 and in his report, after stating these facts, recommended that 
 under the circumstances; the plaintiffs should be non-suited ; and 
 inasmuch as they had come into Court, and had the defendant 
 arrested on an order of arrest, and detained here for several 
 months, knowing, from the outset, they could not establish their 
 case, — that such non-suit should be with costs. The plaintiffs 
 excepted to this report, and these exceptions now came on for 
 hearing. 
 
 Boss for plaintiffs contended, that the Deputy-Registrar was 
 ad— on the materials such as then were before him, and the 
 demeanour of the witnesses and with the exercise of his own 
 common sense— to find definitely on the accounts, to the best of 
 his ability :— he should have found severally on the heads usually 
 mentioned in an ordinary decree for partnership accounts— that 
 finality in his report was altogether absent, though it was essen- 
 tial so as to make an end of the litigation. He referred to 1. 
 
 %?£»Vi n £Z^ &■ t 2nded 8 5, 1000; 2 Daniel's Ch. Prac. 
 L 5tned.] 1216-17; Winter v. Innes, 4 M. & Cr 101 3- Lee v 
 miloclc, 6 Ves. Jun. 605; Fenner v. Agutter, 1 M & & 120- 
 Paynter, Houston, 3 Mev 297, 302; Walmesley v. Wal m key,i 
 J. & L., p. 556 ; Grieg y. Hogan, 20 Beav. 219. The recommei d- 
 
 CA°PmVl2 C 6fL"68 Sm ' egU ndC ° Uldn0tbe Upheld< Danid ' s 
 
 bound- 
 
STRAITS SETTLEMENTS. 
 
 587 
 
 Anthony, for the defendant contended, that it was impossible 
 for the Deputy-Registrar to make anything of the accounts — the 
 case was altogether an exceptional one, the books being destroyed 
 and the accounts made from memory, so that the reasons and 
 principles laid down in the cases cited, were inapplicable. The 
 report was sufficiently final under the circumstances — it finds 
 that nothing can be made of the accounts. 
 
 Wood, J. considered the report defective on the points point- 
 ed out by Mr. Boss, and referred the same back to the Deputy 
 Registrar to find definitely the state of the accounts between the 
 parties, to the best of his judgment and ability, on consideration 
 of the whole of the evidence, as bearing on all the items in the 
 two accounts. 
 
 Boss asked for the costs of the exceptions as against the 
 defendant. He referred to Winter v. Innes, supra, p. 115. 
 
 Anthony submitted that the case was, on that point, in his 
 favor : it would not be just to visit the defendant with costs of an 
 application which was occasioned solely by the Deputy-Registrar's 
 mistake. 
 
 Wood, J. considered that under the circumstances the costs 
 of this application should be costs in the cause. 
 
 Exceptions allowed. Costs, costs in the cause. 
 
 Wood, J. 
 1883. 
 
 Chin Guan 
 Tak & OBS. 
 
 v. 
 
 Chin Seah 
 
 Pow. 
 
 VERMONT v. MUNICIPAL COMMISSIONERS. 
 
 It is proper, for the purposes of appealing, that the certificate of the fixing of a Pbnano. 
 
 rate, should shew, on its face, the date it was made — but such date is not absolutely 
 
 necessary under section 10 of the Act XXV. of 1856, and its absence does not invalidate Wood, 3. 
 the rate. Neither does the absence of authentication, by two Commissioners, of such 1883. 
 rate, or any amendment thereof, — under section 10 aforesaid, invalidate it. 
 
 On an appeal, by a rate-payer, against a rate fixed by the Commissioners, the onus February 13. 
 rs on the Commissioners to prove, both the rate and the reasonableness thereof, and it is_ 
 for them to do so, before the appellant is called on to prove the unreasonableness thereof 
 
 Managers, Engineers and others of an estate, are not " laborers" within section 23 
 of the Act XXV. of 1856, so as to entitle their dwellings to be exempted from rating, 
 the section moreover, is merely permissive, and not directory, on the Commissioners. 
 
 In estimating " the gross annual value" under the Act XXV. of 1856, of an estate, 
 carried on by the owners thereof, the Commissioners are entitled to estimate its annual 
 value as an estate in the hands of a suppositious tenant of reasonable knowledge and 
 skill. 
 
 Dicta, as to estimating the annual value of houses in the town, for purposes of 
 assesssment. 
 
 This was an appeal by the appellant, the manager and part 
 owner of Batu Kawan Estate, against the assessment fixed by the 
 Commissioners under Act XXV. of 1856, on Batu Kawan Estate, 
 for the year 1882. The assessment as originally shewn in the 
 books of the Commissioners, was, on objection taken to them by 
 the appellant under sections 9 and 10 of the Act, amended in 
 amount. This was in the previous year, 1881. This year, 1882, 
 they simply adopted their amended assessment of 1882. These 
 amendments were neither authenticated with the signatures of 
 two Commissioners, nor had the certificate on its face, the date of 
 
588 
 
 CIVIL CASES. 
 
 Wood, J. 
 1883. 
 
 Vermont 
 
 v. 
 Municipal 
 
 C'OMMHS. 
 
 such amendment. They opened no new book of assessments for 
 1882, and the notice they gave, although more than 15 days from 
 the date of its being drawn, was less than 15 days from the date 
 it made its appearance in the Penang Gazette and Government 
 Gazette. 
 
 Van Someren, for appellant contended, that the rate was bad 
 as 15 days public notice, under section 9, had not been given, nor 
 new books opened under section 12 ; the rate was also bad as there 
 was no date to the certificate in the book which contains the as- 
 sessments and valuation — but to be valid the rate must be certified 
 as of a particular day ; it must be dated, and bear the date on the 
 face of it, sections 10, 12 and 18 : the rate was also bad as not au- 
 thenticated by the signatures of two, or even one, Commissioner, 
 section 10, — nor re-authenticated under section 12. 
 
 D. Logan [Solicitor-General] contended, that the want of 
 notice was waived by the appearance of appellant on the day named 
 in the notice, to object to the rate — the want of a date on the cer- 
 tificate and of authentication by the Commissioners, were matters 
 of form which did not invalidate the rate. The notice sent to the 
 appellant, fixes the date. He also objected, that no grounds of 
 objection were mentioned in the summons of appeal. 
 
 Van Someren contended that no grounds need be stated, and 
 referred to Archbold's Practice of Quarter Sessions, 279. 
 
 [Wood, J. I am of opinion that under section 10, the certifi- 
 cate of the rate, does not require to have expressed, on its face, 
 the date of its being made, though it is proper that it should be 
 so, for purposes of appeal. Sections 8, 10 and 18 must be read 
 together ; but whereas here the date can be fixed from the notice 
 sent to the appellant of the fixing of such rate, the object intend- 
 ed to be gained by the date appearing on the certificate, is gained. 
 As regards the objection as to the absence of authentication, I am 
 of opinion that in such an assessment as this, the Municipality 
 obviously intended to, and might legally, levy the full amount of 
 10 per cent, on buildings and 5 per cent, on lands : inaccuracies as 
 to the authentication of amendments, do not vitiate the proceed- 
 ings— they are inaccuracies which do not affect the rights of the 
 appellant in this case at all— and in the absence of authorities, I 
 cannot see that they invalidate the rate.] 
 
 o v ^ & ® ecretary of the Commissioners, was then called by the 
 boheitor-General, who simply proved the rate had been made : 
 whereupon, 
 
 Logan ^ contended, that as he had shewn the rate to exist, 
 it was not incumbent on him to shew that it was not unreasonable 
 —it might be : taken i prima facie that it was reasonable, inasmuch 
 as itwas made with the assistance of a valuer, and by the Com- 
 missioners themselves, who were local men, as directed by the Act, 
 that the way in which the rate was arrived was immaterial, if it 
 was correct; audit would be impolitic and unreasonable to dis 
 close the modus operandi ; that the appellant should shew by posi- 
 tive evidence that the Commissioners were wrong, and wheS L 
 shewn i prima facie that they were wrong, that then only they 
 should be called on to justify their assessment. y 7 
 
STRAITS SETTLEMENTS. 
 
 Van Someren contended, the onus was on the Commissioners 
 to prove not only the rate, but the reasonableness thereof, and 
 cited Regina v. Topham, 12 East 546; Regina v. Hull Dock Co., 3 
 B. & C. 516, per Abbott, C. J. at page 525: also Arch. Quarter Ses- 
 sions, p.p. 332-3. 
 
 Logan in reply. 
 
 [ Wood, J. I think, upon the authority of the cases cited, it 
 lies upon the Commissioners to shew the reasonableness of the 
 valuation, — before the appellant can be called upon to prove it to 
 be otherwise.] 
 
 Evidence was then taken on behalf of the Commissioners, and 
 of the appellant, and the Court addressed by the respective Coun- 
 sel, on the evidence, generally. 
 
 Cur. Adv. Vult. 
 
 March 27. Wood, J. This was an appeal by Mr. J. M. Ver- 
 mont, Manager and part-owner of the Batu Kawan Sugar Estate 
 in Province Wellesley, against the. assessment fixed by Munici- 
 pal Commissioners of Penang on the houses, buildings and land 
 belonging to that estate. 
 
 By Act No. 27 of 1856, section 21 — " An annual rate not ex- 
 " ceeding 10 per centum of the annual value shall be imposed upon all 
 "houses and buildings, and not exceeding 5 per centum upon all 
 " lands within each station [of which Penang or Prince of Wales' 
 "Island with Province Wellesley is one], and shall be payable by 
 " the owners thereof by half yearly instalments. The rate shall 
 " be fixed from time to time by the Governor of the Settlement." 
 
 Such rate has been in fact fixed at 10 per centum for houses 
 and buildings and 5 per centum for lands. 
 
 By section 22, certain houses, buildings and lands are 
 excepted from rating by the Act but the provisions of the section 
 affecting this modification are not material to this case. 
 
 By section 23, the Commissioners may exempt from taxation 
 any house or hut which shall be occupied rent free by any laborers 
 employed at a plantation. 
 
 The manner of assessment of the rates upon houses, buildings 
 and lands in the Settlement is by Act XXV. of 1856, section 4, de- 
 clared to be as follow : — " The estimated gross annual rent at which 
 " the houses, buildings and lands liable to the rate might reasonably 
 " he expected to let from year to year shall for the purposes of the rate 
 " be held and deemed to be the annual value of such houses, build- 
 "ings and lands. The value of a house or building so estimated 
 " shall not include the value of any machinery contained thereon." 
 
 As to this provision it is to be remarked that it is nearly 
 identical in some of its terms with that of 5 & 6, Wm. IV., c. 96, sec- 
 tion 1, except that instead of gross rent, the English Act enacts that 
 the rate shall be " upon an estimate of the net annual value of the 
 " several hereditaments rated thereunto, that is to say, of the rent 
 " at which the same might reasonably be expected to let from year 
 " to year," and no mention is made of any machinery. 
 
 By Ordinance No. 2 of 1 879, section 2, it is enacted that " At 
 " the end of section 4 of the Indian Act No. 25 of 1856., the follow-. 
 
 Wood, J. 
 1883. 
 
 Vermont 
 
 v. 
 
 Municipal 
 
 Commes. 
 
590 
 
 CIVIL OASES. 
 
 Wood, J. 
 1883. 
 
 Vermont 
 
 v. 
 Municipal 
 
 OOMMKS. 
 
 "ing words shall be added, that is to say 'but m estimating the 
 " ' annual value of any land on which machinery is employed for 
 " ' manufacturing the produce of such land, it shall be lawful to 
 " < take into consideration the enhanced value given to such land 
 " ' by the presence of such machinery.' " 
 
 Thus, as I read the several enactments, the Commissioners 
 have in the case of such a property as that of Batu Kawan Estate, 
 the duty of fixing a rate upon an estimate : 
 
 1. As to the land, of the gross annual rent at which it might 
 reasonably be expected to let from year to year, taking into con- 
 siderationt he enhanced value given to such land by the presence 
 of the existing machinery employed for manufacturing the pro- 
 duce of the land which is on the estate, and 
 
 2. As to the houses and buildings, upon an estimate of the 
 gross annual rent at which they might reasonably be expected to 
 let from year to year exclusive of machinery. 
 
 Acting on the powers thus given, the Municipal Commission- 
 ers of Penanghave assessed Batu Kawan Estate for the year 1881 
 at : 
 
 For the lands $10,260.93 
 
 For houses and buildings ........ .$ 2,400.00 
 
 Total... $12,660.93 
 
 Against this assessment Mr. Vermont has appealed under 
 section 17 of Act 25 of 1856 to the Supreme Court of the Colony, 
 and apart from preliminary questions already disposed of at the 
 trial, the only point raised before me on which I have taken time 
 to consider my judgment, is whether the amount of this assessment 
 is excessive. 
 
 The objection that such a property as the Batu Kawan Estate, 
 is one in which occupation and ownership invariably go together, 
 and that in the strict language of the Act, the property in question 
 could not " reasonably be expected to let" at all, is entitled to 
 little weight. It is notorious that many properties are similarly 
 situated and authorities which need not be specifically referred to 
 settle this point. 
 
 Possibly exception might be made to the principle that the 
 gross annual value is to be ascertained by reference to the exist- 
 ing occupier as suggested by the author in Castle's Law of Rating, 
 p. 364, for this might let in some question of the special ability and 
 superior qualifications of the existing occupier. But there can be 
 little doubt that a resonable construction of the Act would be that 
 the rate should be founded on an estimate of the gross rent at 
 which the houses, buildings and lands might reasonably be 
 expected to let from year to year in the lands of a tenant of reason- 
 able knowledge and skill on the supposition that such a tenant is 
 ready and willing to take it. 
 
 Taking this therefore as the reasonable construction of the 
 Act, it is obvious that in the case of the Batu Kawan Estate there 
 are in fact two properties, 1 the Sugar Estate proper, and 2 jungle 
 laud as yet unreclaimed but capable of reclamation and improve- 
 ment, 
 
STRAITS SETTLEMENTS. 
 
 591 
 
 • The Sugar Estate consists of : 
 
 1 . The land with its machinery, plant and appliances, 
 
 2. The houses and buildings attached to the Sugar Estate. 
 The question before .me being whether the rate is reasonable 
 
 in amount, it is matter of little moment to consider the exact mode 
 in which the Commissioners have arrived at their results, if the 
 Court is satisfied that by applying just principles of rating the 
 result is reasonable. 
 
 With respect to Batu Kawan looked at as a Sugar Estate, 
 tailing the facts and figures supplied by Mr. Vermont, it consists 
 so far as lands are concerned of some 1,333 acres of land usually 
 in course of cultivation, 753 usually in fallow, 195 roads 
 and canals, and 30 or so, devoted to buildings and their curtille- 
 gas. 
 
 It has machinery, and buildings efficient for dealing with the 
 produce of 1333 acres of sugar, well protected from the encroach- 
 ments of the sea by expensive embankments, and a reservoir and 
 pipes for the supply, though not always continuous in dry sea- 
 sons, of fresh water to the estate. Mr. Vermont, the present 
 appellant, has been its manager for 32 years and it may reason- 
 ably be taken that in his hands allowing for what he considers 
 only the moderate goodness of the soil for the production of sugar, 
 all has been done for it that care and skill could effect to make it a 
 sugar estate complete and effective in all necessary points. As a 
 practical result, the estate in gross return yielded last year 30 piculs 
 an orlong or something like 30,000 piculs for the 1333 acres usually 
 in cultivation. Against this is put the costs of cultivation and 
 the costs of manufacture and the result has been a net income for 
 the last 6 years but one of $35,000, that is to say from the gross 
 income of the sale of 30,000 piculs of sugar with some small quan- 
 tity of rum, after deducting all costs of cultivation, manufacture, 
 the replacement of machinery, the upkeep of loads, canals, 
 embankments and works and the interest on money borrowed, the 
 very large income of $35,000 has been made. Last year from 
 some large expenditure in machinery the income was $21,000, but 
 the result in the 6 preceding years is an average amount yearly 
 of the sum above named. 
 
 In dealing with such a property as a sugar estate consisting 
 of houses, buildings and lands with the machinery and works 
 belonging to it, it is obvious that the plain way of treating it 
 would be in analogy with other properties of a similar kind in 
 England by estimating the gross annual rent of the whole concern — • 
 buildings, houses, and land — but the language of the provisions 
 of the Acts and Ordinances under which the Municipal Commis- 
 sioners of this Settlement act, is different from that under which 
 property is rated in England, and we see that referring to the 
 powers given to the Commissioners they have two separate duties 
 thrown upon them. As to the land, of estimating its gross annual 
 rental taken by itself with the enhanced value given by the pre- 
 sence of the machinery but without the houses and buildings on 
 it, and as to the houses and buildings of estimating their gross 
 annual rental without the land or machinery. 
 
 Wood, J. 
 
 1883. 
 
 Vebmont 
 v. 
 
 MnNicip.iL 
 
 C'OMMBS. 
 
S92 CIVIL OASBS. 
 
 Wood, J. it might, as it seems to me, have been contended with some 
 
 1883 - weight of reasoning that the whole sugar estate being one concern, 
 
 Veemont lands, houses and buildings united, all combining for the purposes 
 
 of the growth and manufacture of the products of the sugar cane, 
 
 Municipal one por tion being useless without the other, that it is but reason- 
 
 Commbs. ab]e that thfl sugar estate should be so rate a that the gross annual 
 
 rent of the houses and buildings without the machinery, and of 
 the lands taken with the enhanced value given to them by the 
 presence of the machinery should, taken together, be equal to and 
 the same as, the gross annual rent of the whole concern. Thus 
 such is the intention of the Acts and Ordinance taken together— 
 and that all that the enactments require is, that the Commissioners 
 should distribute this whole annual rent fairly between the two 
 portions of the estate, land on the one hand, and houses and build- 
 ings on the other, for the purpose of levying 5 per cent, on the 
 land, and 10 per cent, on the houses and buildings. This view of 
 the case was not however urged upon me in argument, nor have 
 the Commissioners in fact acted on this principle. They have 
 assessed the cultivated land, at $7.50 per orlong per year, the 
 fallow land at $2.50, and the buildings at a valuation of $200 per 
 month— the result being in their judgment fully justified as to 
 the land by the large annual returns of the estate, and as the 
 houses and buildings by taking the percentage which money when 
 invested in building is expected to pay to the investor, as well as 
 the rent usually paid elsewhere by tenant to landlord, for buildings 
 of somewhat similar kind. 
 
 That the Commissioners in rating the land at the figures they 
 have done, have not rated beyond what is reasonable, I think is- 
 abundantly clear. The value of the Sugar Estate so far as land 
 is concerned is hardly to be measured by the exact number of 
 orlongs cultivated and fallow. The estate is made what itis by 
 the expenditure of large sums of money in reclamation, in devot- 
 ing a large breadth of land, here 195 acres, roads and canals, and 
 some 30 acres to buildings, and the land convenient for their use, 
 to erecting embankments, sluice gates and water supply, and it 
 may be, many other smaller matters which are indispensable 
 to the efficiency of the concern. No doubt this large sum of 
 money [Mr. Vermont says $300,000] was expended with a view to 
 large returns, with a view to the formation of a Sugar Estate, the 
 revenue from which would show a profitable employment of capi- 
 tal. It might have happened that this money might have been 
 unprofitably spent, and the result be most unsatisfactory, but the 
 contrary is the case. Mr. Vermont calculates that on the capital 
 spent in the concern the return is now 10 per cent., that it may 
 be not unfairly valued at that sum of $300,000, and it appears that 
 a sale of three-fourth of the estate was lately effected for what 
 Mr. Vermont estimates at $200,000, of course including the build- 
 ings. Under such circumstances an estimated rent for the land 
 which is based upon the fact of there being some 1,500 orlongs of 
 sugar producing land cultivated and fallow, and regarding them 
 as ordinary outlying lands without reference to the roads, canals, 
 embankments and works generally, which have made these lands 
 
STRAITS SETTLEMENTS. 
 
 593 
 
 so productive as to yield in skilful hands 30 piculs an acre, or even 
 25, is a mode of dealing with the subject matter of the rate very 
 highly beneficial to the person rated. There can in fact be no 
 doubt of the value of the property taken as a whole. Mr. Ver- 
 mont admits the net income to be $31,000, all expenses paid, a sum 
 which does not represent trade profits, but the sum which the 
 owners obtain as net-profit by employing their machinery and 
 plant to reduce into marketable commodities the produce of the 
 land, — and for the privilege of farming this property, so far as 
 lands are concerned, lands with the enhanced value given to them 
 by the " presence of machinery," the Commissioners estimate 
 the rent, from year to year, to be paid by a supposed tenant, at 
 something like $9,000 or including jungle lands $10,263.93, a sum 
 which I cannot consider unreasonable. 
 
 As to the houses and buildings. The estimate arrived at by 
 the Commissioners is $2,400 per year or $200 per month. As to the 
 value of these buildings or the cost of erecting them- new, there is 
 some contradiction in the evidence adduced. Mr. Vermont esti- 
 mates his own house at the cost of its original building $4,000, 
 the Engineer's house at $700, and the buildings for the machinery, 
 shops, &c, at $8,000. 
 
 Mr. Dunlop, Engineer to the Penang Sugar Estate, esti- 
 mates the buildings if new, at from $25,000 to $30,000, and states 
 that a new machinery, house was lately erected at Byram Estate, 
 including foundations for machinery, for $14,000. No other relia- 
 ble evidence was given as to the actual value of the buildings and 
 houses if new. 
 
 The Commissioners have valued the houses and buildings at 
 $200 a month, as Mr. Presgrave has stated, at so much in respect 
 of each house or building, arriving at an estimate of $200 or there- 
 abouts^ and, inasmuch as the rent is to be gross rent, upon the sup- 
 position that the houses are in good repair and kept so by the land- 
 lord, in this particular differing but little from houses newly erect- 
 ed, and he justifies this estimate by the rent which a landlord 
 would expect as a fair return for money expended in houses and 
 buildings, and thus taking the houses and buildings if new or 
 nearly so, as being worth $30,000, a very high estimate of their 
 value, at 8 per cent., a very low estimate as to interest, he-gives 
 the value at $2,400. There may be some difficulty in fairly esti- 
 mating the value of the houses and buildings if new or in 
 thorough repair without machinery. But taking the value at 
 something like a medium between the two valuations of Mr. 
 Dunlop and Mr. Vermont, or at $20,000, and the interest of money 
 employed in building at 12 per cent, which is 3 per cent, in advance 
 of what is the ordinary interest for money as given by our Courts, 
 the sum of $2,400 is in fact arrived at, which I cannot consider 
 unreasonable. 
 
 As it seems to me this method of arriving at the value of the 
 houses to the tenant is the most advantageous to the tenant that 
 could be suggested, — the houses and buildings which it is admitted 
 in this case are what are suitable and necessary must be had by a 
 tenant renting the land, and they cOuld hardly be provided for 
 
 Wood, J. 
 1883. 
 
 Vermont 
 
 v. 
 monicipai. 
 
 Cosimrs. 
 
894 CIVIL OASIS. 
 
 Wood, J, him at any less rate than what a capitalist would consider the 
 1883. ordinary return for money invested in houses and buildings. 
 
 Vermont Tlie remaining property upon which a rate has been made, 
 
 v. the jungle land is, although part of the Batu Kawan Estate, no 
 
 Municipal p^.^ properly speaking, of the Sugar Estate, but is kept for 
 
 Commbs. var i ous reasons . it is available for reclnmation. Mr. Vermont 
 considers it valuable as securing a better rainfall, but he says it 
 yields nothing by way of actual revenue. Like the Sugar Estate 
 itself it is scarcely reasonable to suppose that any one would take 
 it in whole or in part at a yearly tenancy at all. A long lease 
 would have to be granted in order to enable the tenant to get 
 back the cost of reducing it, from the condition of wild land, to 
 land of a productive character. That it has a selling value is cer- 
 tain. Mr. Vermont says $15 an orlong, Mr. Morrison values the 
 jungle on Byram Estate at $30, jungle land probably of a 
 superior character to that at Batu Kawan, and there is evidence 
 also that land usually sells for something like 10 to 12 years' pur- 
 chase. Reversing this process it seems to follow that if the land 
 is worth $15 to sell,- its value taken yearly is presumably at least 
 one-twelfth of that amount or much over the 70 cents at which 
 the jungle land is rated. It seems to me that if the jungle land 
 is rateable at all at anything but an almost nominal rate, it must 
 be rateable at a sum of something like one-twelfth of its selling 
 value. That it is not rateable at all was not argued before me 
 with any show of force. There is notoriously abundance of waste 
 land in the Settlement not yielding profit for the moment^ but 
 capable of improvements so as to be productive. All these waste 
 lands have been rated by the Commissioners for years on the 
 principle doubtless that although not productive at the time, and 
 practically incapable of being let from year to year, they are still 
 assessible at a rate proportionate to their selling value, and a 
 decision at variance with this view would seriously unsettle a well- 
 established practice. 
 
 As this judgment may probably be considered subject to re- 
 consideration before a superior tribunal on matter of law, it is 
 necessary that I should distinguish between matter of law and 
 matter of fact, and I accordingly find as facts: 
 
 1. That the houses and buildings on Batu Kawan Estate are 
 not unreasonably rated at $2,400 gross annual rent. 
 
 2. That the lands on Batu Kawan Estate including jungle 
 are in the aggregate not unreasonably rated at $10. 260, 93 gross 
 annual rent, making even a very large allowance for the acknow- 
 ledged great care and skill of the present manager and part owner, 
 Mr. Vermont. 
 
 Though results at which I have arrived are so to say, matters 
 of fact, yet matters of law so underlie them that they may be said 
 to be the foundations on which this finding of fact is based and 
 as matter of principle I hold that, as regards such an estate as 
 this, in estimating "the gross annual value at which the houses 
 " andbuildings might reasonably be expected to let from year to 
 year, the Commissioners are entitled to estimate their annual 
 value as part of a sugar estate in the hands of a supposititious 
 
STRAITS SETTLEMENTS. 
 
 595 
 
 tenant of reasonable knowledge and skill. Always as in this case 
 presuming that the buildings are suitable for the purpose. In 
 towns or places where house-rent is high, from the increased value 
 of the land on which the buildiftgs stand, this rent might be 
 estimated with reference to similar buildings in such localities, in 
 good tenantable condition ; but where there is no such element of 
 advanced value, the gross annual rent is well estimated at the 
 rate per cent which a landlord may reasonably expect for capital 
 invested in buildings, the obligation resting on the landlord of 
 keeping the houses and buildings in good tenantable repair. 
 
 In rating the land of the sugar estate with the enhanced 
 value given to it by the presence of machinery, I am far from 
 saying that the Commissioners are wrong in estimating the rent 
 at so much per orlong for cultivated and so much per orlong for 
 fallow land. Such a mode of estimating land may be useful and 
 practical in many ways, but in applying the language of the 
 enactments, I think they are entitled to treat the sugar lands as 
 a whole, and to estimate the gross rent at the rent which a 
 tenant would give for the entire sugar estate, with the privilege 
 and power of using the machinery for the manufacture of the 
 produce of the land less of course the rent for houses and build- 
 ings which are estimated apart. With respect to the jungle 
 lands I consider the point of whether being unprofitable or nearly 
 so, but being capable of improvement they are rateable at any- 
 thing but an almost nominal rate, as a point which has not been 
 fairly raised or argued before me, and one which if it had been 
 raised and exhaustively discussed is not necessary to the decision 
 to which I have arrived, that the lands on the entire estate, in- 
 cluding jungle, are fairly rated at $ 10,260.93, and the houses 
 and buildings at $ 2,400. 
 
 The only other point which remains and which was adverted 
 to by Mr. Vermont, but not seriously advanced by his Counsel, is 
 the meaning of the word " laborers" in section 23 of Act 27 of 
 1856, which enacts that " the Commissioners may exempt from 
 " taxation any house or hut which shall be occupied rent free 
 " by any laborers employed at a plantation." Mr. Vermont 
 contended that the houses occupied by the Manager, Engineer 
 and others who are in one sense of the word " laborers" are 
 properly exempt from taxation, supposing the language of the Act 
 to be directory on the Commissioners so to exempt — but the 
 word " laborers" must be construed in its ordinary sense, which I 
 think there can be no doubt refers only to the coolies, or working 
 hands on the estate, making their living by manual toil, and 
 whose " lines" or quarters have been exempted from taxation by 
 the Commissioners, and I entertain some doubt, whether this 
 provision of the Act is not permissive, as in terms it is, and not 
 unreasonably intended to confer a liberty on the Commissioners to 
 deal liberally with occupiers and owners in extreme cases. 
 
 The appeal will therefore be dismissed with costs. 
 
 Wood, J. 
 1883. 
 
 Vebmont 
 
 v. 
 
 Municipal 
 
 C'OMMEB. 
 
m CIVIL CASES. 
 
 KHOO JOO HEEM v. KHOO JOO LAM. 
 
 a »n aw fl Chinese woman, in 1825, made a document in China, in her own 
 PENAN °- Ian™ bf which he declared that for the peace of her family, she made , a dis- 
 
 la ?g"?««' n K *"" rtv between her four sons, and therein referred to her interests 
 
 .Wood, J. tribution rf}™*™?* 1 ^™ which she reserved for " her daily expense." The 
 
 1883. incertam P ro P ert I™i? h "d o rument hut respectively acquiesced in the same. 
 
 . ^T S Af e ! n0 TJf thi Venane Prwerty were in the name of one of these sons, and 
 
 February 15 The title deeds of thi= Penang P™P^ ™ of the aforesaid document , and for 
 
 appe ^irf » W nttv-vears thereafter, the rents of this Penang property were re- 
 mftted°to Ch^tan%Suted by the then eldest member of the family, among 
 
 ^^S^Sta four sons made a further document by 
 which after referring to the previous document made by their "ancestor, and 
 wrththeviewof offermg an inducement to the members of the family to study, 
 The rents o7 these Penang houses were divided into certain proportions, lhe 
 plaintiff was a party to this latter document, but the defendant was not. 
 plamtm was P £ the administra tor of the son m whose name the title 
 
 deeds to this Penang property were, claimed the property as h.s exclusively, and 
 refused to recognise aforesaid dealings and disposal of the same, whereupon 
 the plaintiff, an adopted son of one of the four sons, and interested by name in the 
 ordinal document of 1.S25, brought this suit to have the aforesaid Penang property 
 declared to be A's and the document of 1825, a good and valid family arrangement 
 and binding on the defendant, 
 
 Held, that the document was a valid family arrangement, and binding on the 
 
 ' 6 6 HeM also, that although the document of 1864 was not made by the defendant, 
 or otherwise binding on him, it was properly admitted in evidence, as shewing the 
 state of things in the family at that time, in connection with this property. 
 
 Suit to have it declared that certain lands and premises in 
 Beach Street, Penang, belonged to one Shea Shee, deceased, and 
 was the subject matter of a family arrrangement made by her 
 and her four sons : to have the said family arrangement declared 
 valid, as such, and to have the trusts thereof carried out. The 
 plaintiff was an adopted son of the fourth of the said four sons of 
 the said deceased: the defendant was the eldest surviving son of 
 the first of the said four sons. The eldest of those four sons of 
 the said Shea Shee, Koh Cheng by name, had purchased the said 
 lands and premises in 1817 and 1820 respectively, and had the 
 conveyances thereof made in his own name. In 1825, the said 
 , Shea Shee, in China, executed a document written in Chinese, 
 which being translated, was as follows : — 
 
 " Mother Shea Shee's testament. Thinking that we should like to see 
 the members of the same family always in peace, and that examples of filial 
 piety and amity are nevertheless scarcely met with, and as I have four sons 
 whose names are Oheang, Boo, Cheng and See, and as the partage of my 
 small property is not yet fixed, although I am more than seventy years old, 
 and am aware that I have not long more to live, therefore to prevent any 
 dispute about the same, and to provide that my sons and . grandsons remain 
 for ever in good harmony, I will before my death, share between them my 
 properties, — " but as See, my fourth son died some time .ago leaving 
 my daughter-in-law Noan Shee, a widow, I feel uneasiness of heart on account 
 of his son Heem. In consequence, calling for the elders and most impartial 
 members of the family, it has been justly decided that [here followed a reser- 
 vation of three pieces of land in China, the first for the said mother Shea Shee, 
 " for her daily expenses during her remainder days," the second for her eldest 
 son Cheang " as his primogeniture right," the third for the daughter-in-law, 
 Noan Shee, " to help her to bring.up her son."] The document then proceed- 
 ed as follows : " The rest divided in four equal parts will allow you four 
 " brothers to exert yourselves and make trade. Do not say afterwards tha.t 
 
straits Settlements. 
 
 597 
 
 " I left you too small properties, or that I liave been partial. To prevent you 
 " forgetting how I divided my property amongst you, I will that four copies. 
 " be made of the partage and that each of you receive and keep one. The 
 " following members of the family are witnesses : 
 
 mark of Shea Shee. 
 TAN SOK, 
 BOON GUOW, 
 MOH KOON, AND OTHERS. 
 
 " Testament of mother Shea Shee, made the 21st day of 9th moon, in the 
 " 6th year of the Emperor Tan Kwang's reign [1825]. 
 " Written by Heng Chun, of the same family." 
 
 To this document, were attached four schedules giving each 
 of the four sons specifically certain lands, but all these lands were 
 situate in China. Besides these schedules, was an endorsement on 
 the original document which, omitting unnecessary parts, pro- 
 ceeded as follows: "Mother Shea Shee's reserved share for her 
 " subsistence until her death [certain other lands in China] and 
 " the interest in five shops and houses in Penang island, Hon Tia 
 " Keem." This endorsement was not signed by either Shea Shee 
 or the witnesses. Saving this allusion, no mention was made in 
 the whole testament or document, to these Penang lands and 
 premises. The whole document was admitted in evidence and 
 marked A. No probate had been taken to it. 
 
 The four sons never executed this document, but there was 
 some evidence that they were present at the time it was made. 
 The rents of these lands and premises were- proved to have been 
 remitted regularly to Shea Shee during her lifetime, even before, 
 as well as after the making of the aforesaid document; and after 
 her death, were remitted to the eldest member of the family then 
 present, and by him divided amongst the four sons or their 
 descendants, until shortly before the commencement of this action, 
 though in varying proportions. Shea Shee died in 1827. In 
 18G4, certain of the descendants of the four sons,— among whom 
 was one Khoo Joo Chye, the eldest son of the eldest of the four 
 sons before mentioned, — made and executed an agreement, which 
 while offering an inducement to the members of the family to 
 study, and to the obtaining of certain literary degrees, apportioned 
 these rents in a maimer somewhat different from that which had 
 theretofore been the practice. This document, among other 
 things, stated that it was made in order to "perpetuate our 
 " ancestor's recommendation, who had long since possessed in 
 "Penang, Beach Street, near the market, five houses and shops; 
 " and in the 6th year of the Emperor Tan Kwang's reign, they 
 " enjoined us to assemble the four members of the family with 
 " some arbitrators selected amongst the elders of our clan, and 
 " to partake these five houses and shops in equal lots." This 
 agieement divided these rents into three shares, one share of 
 which was to be divided equally amongst the descendants of the 
 four branches, and the remaining two shares to be given to those 
 of the family who obtained the literary degree of Sin Sae, or 
 Chinese B. A, 
 
 Wood, J. 
 1883. 
 
 Khoo Joo 
 
 Heem 
 
 v. 
 
 Khoo Joo 
 
 Lam. 
 
S&8 
 
 CIVIL OASES. 
 
 Wood, J. 
 1883. 
 
 Khoo Joo 
 
 Heem 
 
 v, 
 
 Khoo Joo 
 Lam. 
 
 At this time, the eldest son Khoo Cheang was (lead, and his 
 son, the said Khoo Joo Chye had not obtained administration of 
 his estate. The defendant was no party to this document : it was 
 admitted in evidence by the Court, and marked C. There were 
 other documents marked B, D, etc., which are not here set out, as 
 being irrelevant to the present report. The defendant, after the 
 death of Khoo Joo Chye, his elder brother, applied for and obtain- 
 ed administration to Khoo Cheang's [the eldest of the original 
 four sons] estate, and claiming these lands and houses as his 
 father's, to the exclusion of the other members of the family 
 received the proceeds of the sale of the lands and premises [which 
 had been previously sold by an administrator durante absentia], 
 and applied the same exclusively for the next-of-kin of the said 
 Khoo Cheang, deceased. 
 
 The plaintiff, claiming to have an interest therein, under the 
 aforesaid documents, his alleged right was denied by the defend- 
 ant, and hence this action. The case was heard by the Court on 
 previous days, viz ; 12th, 14th, 19th October, 1880 ; 9th May, 1881 ; 
 16th April, 21st June, 5th September, 14th, 15th, 17th, 24th 
 November, 1882 ; 11th January, 13th and 14th February, 1883— 
 and came on for final argument, this day. 
 
 Boss for the defendant, contended 1st, the property was not 
 Shea Shee's but Khoo Cbeang's, 2nd, If Shea Shee's property, 
 still the alleged family arrangement was not one the Court would 
 uphold, for want of mutuality and consideration, 3rd, document 
 C. was inadmissible as not having been made by defendant, or by 
 any person who could have bound him ; Joo Chye not then being 
 administrator of Khoo Cheang's estate, 4th, document A was not 
 a Will, and had not been admitted to probate ; but 5th, if a Will 
 or Deed, or document of any kind, it only provided for a life 
 estate for Shea Shee in these Penang. houses, and there was an 
 intestacy, or no disposition of the property— after her death ; and 
 Khoo Cheang as her heir [she dying before the Act XX. of 1837] 
 took these houses as such, to the exclusion of the other sons ; 6th, 
 if there had been any acquiescence on his part to this arrange- 
 ment or the dividing of the rents, it was in ignorance of his rights, 
 as heir. ° 
 
 Thomas for plaintiff, was not called on. 
 
 Cur. Adv. Vult. 
 
 19th February, 1883. Wood, J. In this case I have been asked 
 to deter the judgment which I was prepared to give on the 
 conclusion of the argument and summing by the defendant's 
 Counsel, without calling on the plaintiff's Counsel for his general 
 reply, m order to give more distinct and considered utterance to 
 the form of my judgment with a view to its ultimate considera- 
 tion by the Court of Appeal. 
 
 I find as matter of fact that not only was the Deed A. executed 
 SnU V£ S l °J ner , Sh ^ a Shee,-but that the property had been 
 dealt with from time to time since its execution for a period of 
 nearly 50 years, in conformity with, as I understand, the custom 
 and law ot China, and on the assumption of its efficiency. I further 
 
STRAITS SETTLEMENTS. 
 
 599 
 
 find as a fact that there is not only no evidence of the. fact of the 
 purchase of the 5 houses in question by Khoo Cheang, but that 
 since the time of the settlement [A], he and his descendants have 
 never in any way attempted to establish their now alleged right, 
 except shortly before the commencement of this suit. As matter 
 of mixed law and fact, I find that it may reasonably be inferred 
 that the five Penan g houses were purchased by Cheang with 
 monies of Shea Shee. Her statement of this fact being in fact 
 the- root of title so far as evidence can at this lapse of time be 
 got to support it. 
 
 As matter of law, I am of opinion that taking only the literal 
 translation of the two Protectors of Chinese, Messrs. Earl and 
 Pickering, without their deductions or inferences in relation to 
 Deed A, and as matter of construction, the effect of the Deed A. is, 
 that the four sons of Shea Shee should enjoy the five town lots in 
 Penang in equal shares after her decease, in conformity with the 
 specific intention expressed in such document that she desired 
 so to divide her property generally among her children, though 
 providing for them by special donations to each to take effect 
 at once. 
 
 I also find as matter of law that the family having acted on 
 such a distribution for a period of nearly 50 years in accordance 
 with Chinese Law and custom, the Courts of this Colony are unable 
 to recognise the present claim of the defendant, even supposing 
 it to .be based on a right construction of the Deed oy the 
 law of this Colony, inasmuch as such claim is barred by lapse 
 of time. 
 
 Let there be an inquiry before the .Registrar, as to who of 
 the parties to this suit are now by law entitled to the proceeds of 
 the land in question — bearing in mind that the decision in the 
 case, has as yet, only established the validity of the Deed A, and 
 its construction as a declaration of the trusts of the Penang houses 
 in favor of the children of Shea Shee, as against the claim set up 
 by defendant, for exclusive possession of the same as representa- 
 tive of his father the alleged owner and the heir-at-law of Shea 
 Shee, and has not dealt with the rights of the four sons of Shea 
 Shee inter se, such last matter to be subject to the further con- 
 sideration of the Court should questions arise upon that head. 
 
 Costs up to the time of decree to be paid out of the estate. 
 
 Wood, J. 
 1883. 
 
 Khoo Joo 
 
 He em 
 
 V. 
 
 Khoo Joo 
 Lam. 
 
 The defendant appealed against this decision. 
 
 26th February, 1885. The appeal was now heard before the 
 full Court of Appeal, consisting of Sidgreaves, C. J., Ford and 
 Wood, J. J. 
 
 Boss [Van Someren with him] for appellant. Document C. 
 was not admissible, as defendant was no party to it. It did not 
 bind him, nor the estate of Khoo Cheang. It was no evidence as 
 against him, or the estate he now represents, and should not have 
 
600 
 
 CIVIL OASES. 
 
 SlDCtEEAVBS, 
 
 C. J. 
 Ford ") 
 
 k [3 J 
 "Wood ) 
 
 1883. 
 
 Khoo Joo 
 
 IIeem 
 
 v. 
 
 Khoo Joo 
 
 Lam. 
 
 been admitted. Document A., is not a valid family arrangement. 
 There must always be consideration for such an arrangement, 
 before it is upheld. Williams v. Williams, 2 L. R. Ch., Ap. 294. 
 On the construction of the document A., the mother has no more 
 than a life estate in these lands and premises, and if the document 
 be taken as a Will, there was an intestacy as to them after her 
 death, and if it be taken as a deed or document of any kind, there 
 is also no disposal of them, after that event. Khoo Cheang, as 
 her heir, succeeded to them, as being before the Act XX. of 1837. 
 If he acquiesced in the doings of the family, it was without con- 
 sideration, Williaws v. Williams, supra, and in ignorance of his 
 private rights as heir. Cooper v. Phipps, 2 L. E. B. & I., App. 149 ; 
 Beacham v. Thyrme, 6. Ibid, 223. 
 
 Thomas for respondent was not called on. 
 SUgr eaves, C. J. We are all of opinion that the document 
 C. was admissible, not as binding the defendant, but for the purposes 
 it was admitted in the Court below, vis., to shew the condition of 
 things as at the date of it. As regards the question of the family 
 arrangement, I am of opinion it is not void on the grounds raised 
 by the Appellant and should be upheld. It has been acted on or 
 otherwise acquiesced in by all the members of the family for the 
 past fifty years. It was made for the peace and order of the 
 family, and for that reason should not now be disturbed. In 
 Story's Equity Jurisprudence, § 132, we read, " there are cases of 
 " family compromises, where, upon principles of policy, fop the 
 " honor or peace of families, the doctrine sustaining compromises 
 " has been carried further. And it has been truly remarked, that 
 "in such family arrangements, the Court of Chancery has admi- 
 " nistered an equity, which is not applied to agreements generally. 
 " Such compromises, fairly and reasonably made, to save the honor 
 " of a family, as in case of suspected illegitimacy, to prevent 
 " family disputes and family forfeitures, are upheld with a strong 
 " hand ; and are binding, when in cases between mere strangers 
 "the like agreements would not be enforced." That passage, 
 appears to me to be strictly applicable here. I therefore think 
 this appeal should be dismissed. 
 
 Ford, J. I do not say I feel no doubt upon the decision of 
 the Court below, but such doubt is not strong enough to lead me 
 to interfere with its decision. I can quite conceive the reasons 
 given for giving effect to this agreement, between the various 
 members of the family, acted on as it has been, with the exception 
 of certain modifications in 1864, — for nearly 50 years. My doubt 
 is as to its legal effect. The rest of the Court however, approving 
 of the decision of the Court, below, I can only say, that if that 
 decision is to be reversed, it must be by a higher tribunal. 
 
 Wood, J. I see no reason to alter my previous decision. This 
 agreement has been made for the peace of the family and will be 
 upheld by Courts of Equity. Story Eq. Jur. § 132. 
 
 Appeal dismissed — Costs out of the Estate. 
 
 3rd March, 1885. Leave to appeal to Her Majesty in Prvy 
 Council, granted on terms. 
 
STRAITS SETTLEMENTS. 601 
 
 PAH JUSOH t>. MEH KEECHEE & ANOR. 
 
 The plaintiff claiming to be .one Pah Jusoh, commenced proceedings in the Penang. 
 
 Ecclesiastical Court, seeking the revocation of Letters of Administration granted 
 
 to the defendant, Meh Keechee, to the estate of Pah Jusoh, deceased, on the grounds Wood, J. 
 that Pah Jusoh was himself, and was alive : the object of the application was, to 1883. 
 
 obtain possession of certain title deeds of Pah Jusoh in the defendants' hands, and ' 
 
 to establijh his title, as '* Pah Jusoh," to the lands therein comprised. The plain- February 20, 
 tiff, when the matter was ripe for hearing, abandoned these proceedings, and 
 commenced an action, on the Civil side, in ejectment, to recover possession of such 
 lands from the defendants : he based his title to these lands, firstly as being Pah 
 Jusoh the person mentioned in the title deeds, and secondly as having been in long 
 and uninterrupted possession thereof. He did not pay the defendant, her costs in 
 his abandoned Ecclesiastical proceedings, and the defendants now applied for a stay 
 of proceedings in this action, until such costs were paid. 
 
 Held, that this action was more comprehensive in its nature, and included some 
 matters not included in the Ecclesiastical proceedings. The two proceedings were 
 therefore not substantially for the same causes of action, and a stay of proceedings 
 was refused. 
 
 This was a motion by defendants for a stay of proceedings 
 in this action of ejectment. It appeared from the affidavits filed 
 on behalf of the defendants, that ihe plaintiff, with the view of 
 getting possession of the title deeds of the lands the subject of 
 this ejectment, and to establish his title to such lands, had com- 
 menced proceedings on the Ecclesiastical side of this Court, to 
 have the Letters of Administration granted to the defendant Meh 
 Eeechee, to the estate of Pah Jusoh, deceased, revoked^on the 
 grounds that he was Pah Jusoh and was still alive ; that when the 
 ecclesiastical proceedings were ripe for hearing, tbe plaintiff had 
 abandoned same, and his motion had been dismissed with costs, 
 but which costs he had omitted to pay ; that without paying such 
 costs, he had commenced this action of ejectment to establish his 
 title to, and recover possession of, the same lands ; that his real 
 name was Jusoh and he had added on the title Pah [father] as a 
 prefix only, in order to make out his claim, and it was believed 
 that these proceedings were vexatious. The affidavit filed for the 
 plaintiff, shewed he claimed title to these lands, first as being the 
 Pah Jusoh mentioned in the title deeds, and secondly, as having 
 been in long and. uninterrupted possession of the lands for more 
 than 12 years : he denied the proceedings were vexatious. 
 
 Van Someren for defendants, now moved for a stay of the 
 proceedings herein, on the ground, that the costs of the former 
 proceeding had not been paid. He contended that the proceed- 
 ings were substantially for the same causes of action — the identity 
 of the plaintiff with Pah Jusoh, being the question in both. He 
 referred to 2 Arch. Q. B. Prac. 856 ; and Tichborne v. Mostyn, 8 
 L. E. C. P. 29. 
 
 H. C. Vaughan, contra. 
 ' Wood, J. I am of opinion that these two proceedings are not 
 substantially for the same causes of action. Although the action 
 of ejectment might cover the ground of the .proceeding in the 
 Ecclesiastical Court, it nevertheless includes other points and 
 other matters, as stated in the affidavit of Mr. Vaughan, the 
 plaintiff's Solicitor. I do not think there is any substantial 
 ground for holding that the plaintiff is guilty of vexatious or 
 
602 CIVIL CASES. 
 
 Wood, J. oppressive conduct in merely bringing this second action, after 
 1883 - he abandoned his first case : his object in so doing, probably being 
 PaiTj^soh its insufficiency to take in his whole case, and his bringing this 
 v. ejectment was only a mode of trying more comprehensive causes of 
 Meh Kee- ac tion. The motion will be dismissed ; each party paying his own 
 hee &anob. cogts thereofi 
 
 Motion dismissed, [a] 
 
 KYSHE v. INCHE NAP PENDEK & ORS. 
 
 p Semble. An administrator will be allowed to sue in formA pauperis, on an 
 ' affidavit that there are no funds belonging to the estate wherewith to carry on a 
 
 Wood J suit. 
 j 88 3 " The words " in his own right." in section 459 of the Civil Procedure Ordinance 
 ' 5 of 1878, does not deprive him of this right. 
 
 February 21. 
 
 Action in ejectment, in forma pauperis, by plaintiff, acting 
 Registrar of the Court, and Administrator de bonis non with the 
 Will annexed of Syed Sheriff Tunku Syed Hussein, deceased. 
 The plaintiff had made an affidavit that he had no funds, and in 
 fact there were no funds, wherewith to commence and carry on 
 the suit, and that one Sheriffa Zoharra, the principal person in- 
 terested'in the Estate, who was pressing the claim, was a pauper, 
 and had been so treated by the Court for years, in connexion with 
 certain Sulus monies. On this affidavit be had obtained leave to 
 sue in forma pauperis, Counsel having certified he had a good 
 cause of action. 
 
 Thomas for defendants, now moved to set aside the order 
 granting leave to sue in forma pauperis. He "contended, that an 
 Administrator would not be allowed to do so, and referred to section 
 459 of the Civil Procedure Ordinance V. of 1878, and Paradise v. 
 Sheppard, 1 Deck. 136 ; Oldfield v. Gobbett, 3 Be van, 432 ; and 
 Parkinson v. Chambers, 24 L. J. Ch. N. S. 47 ; that the plaintiff 
 was an administrator with an interest, and ought to be liable for 
 costs. Parkinson v. Chambers, supra. 
 
 Van Someren, for the plaintiff contended, an administrator 
 had this right at common law, and the cases cited, being in 
 Chancery, were inapplicable. The facts also of those cases did 
 not appear to have been set out on affidavits. A pauper plaintiff, 
 was not bound to be a suitor " in his own right." Bryant v. 
 Wagner, 7 Dowl. 676 ; 2 Arch. Prac. 1070, [Ed. 13,] and section 
 459 of the Ordinance referred to, did not interfere with this 
 right. He further asserted, as matter of fact, that he could 
 verify by affidavit, that not only the person [Sheriffa Zoharra] 
 who pressed the litigation, but all persons beneficially interested 
 in the estate, were paupers within the meaning of the section of 
 the Ordinance. 
 
 [a] The ejectment subsequently came on to be tried before the same learned 
 Judge when the plaintiff did Hot insist on his identity, but relied solely on his 
 long possession. A verdict was given against him, J. "W, IT. K. 
 
STRAITS SETTLEMENTS. 
 
 603 
 
 Thomas denied this statement, and stated he was prepared to 
 meet it by counter-affidavits. 
 
 Wood, J. I ineline to the opinion that this question must 
 be decided as to the real litigants, and that if it can be shewn 
 that the "real litigants, the persons beneficially interested 
 and who press this suit, are paupers, it would be unjust to dis- 
 allow the plaintiff as appointee of the Court and their mere repre- 
 sentative, to sue on their behalf, he having no one on whom to rely 
 to pay the costs incurred by him. The plaintiff as Administrator, 
 it is true, is entitled to 5 per cent, commission on the proceeds of 
 the Estate, but I do not think that, that of itself gives him an 
 interest iu the litigation within the ruling in Parkinson v. Chambers. 
 I shall therefore allow this application to stand over to admit of the 
 filing of further affidavits on behalf of the plaintiff, and any 
 counter-affidavits, should the defendants be disposed to contest 
 the statements of the former. 
 
 Order accordingly, [a] 
 
 Woon, J. 
 
 1883. 
 Ktbhb 
 
 v. 
 
 Inche Nap 
 Pendkk 
 
 & OBS. 
 
 CARGILL v. CARMICHAEL & ANOE. 
 
 Comments upon proceedings in a Court of Justice, though reflecting on the Singapohe. 
 
 character and evidence of a witness examined therein, are privileged, if made in a fair 
 
 spirit of discussion, and not recklessly, and without regard for truth. Sidoeeaveb, 
 
 The plaintiff had been examined as a witness in a certain proceeding in Court, and C. J. 
 gave evidence which was, not only at variance with the sworn testimony given by other 1883. 
 
 witnesses, but difficult for one to accept as correct. The Judge who tried the case, in 
 
 delivering judgment therein, adopting the facts as spoken to by such other witnesses, February 26. 
 commented in somewhat strong terms on the conduct and evidence of the plaintiff, but 
 not so as to irresistibly lead one to the conclusion that the plaintiff had deliberately 
 perjured himself. The defendants in a public journal, in referring to the case, deli- 
 berately charged the plaintiff with having " lied " on that occasion, and on being sued for 
 libel, justified [without attempting to prove the truth of the assertion,] that the article 
 complained of was no more than a fair comment on the proceedings in Court. 
 
 Held, it could not be so considered, and was in excess of the right of free and fair 
 comment. [!>] 
 
 Action for libel. The pleadings and facts of the case so 
 fully appear in the judgment, that they need no further mention 
 here. 
 
 Bond, for plaintiff. 
 
 Harwood, [Acting Attorney-General] for defendants. 
 
 Cur. Adv. Vult. 
 
 On this day judgment was delivered by 
 
 Sidgreaves', C. J. This was an action for libel, and the facts 
 out of which the action arose are fully set out in the statement 
 of claim, as follows : — - 
 
 1. The plaintiff is a member of the Institute of Engineers and past 
 President of the Society of Engineers, London, and was at the time herein- 
 
 [a] Further affidavits were filed by plaintiff, but defendants filed no counter- 
 affidavits and never renewed the application. The case proceeded informd pauperis 
 and is reported on the merits, infra. [July and August, 1883.J 
 
 [6] See Paterson v. Municipal Commissioners, 38th September, 1882^a»<e p, 561, 
 
604- CIVIL CASES. 
 
 Sidgbeavbs, after mentioned and still is in the employ of the Municipal Commissioners of 
 C. J. Singapore, and the defendant James Carmichael, is the Editor, and the defend- 
 1883. ant John Francis Hansen is the proprietor or printer and publisher of a 
 
 newspaper called The Straits Intelligence. 
 
 Carcull 2. In the issue of that newspaper bearing date the 4th October, 1882, 
 
 *■ the defendants falsely and maliciously printed and published of "the plaintiff 
 
 Cabmichaee the wordg f ]i ow i n g : _ 
 
 &ANOE. 
 
 " Tampering with the Truth. 
 
 "Sometime about the beginning of our era, Pilate asked despairingly, 
 ' "What is truth ? ' and he remained unanswered. If the Roman Governor 
 had heard the assertion of Brigade-Major Paterson and the evidence of 
 Mr. T. Cargill, Municipal Engineer, in the case decided by Mr. Justice Ford 
 on Thursday, he would have asked which of the two is speaking the truth ? 
 Is it Brigade-Major Paterson who said that there was a hole in the bridge 
 or Mr. T. Cargill, who denied that there was a hole, and asserted that the 
 bridge ' was in a thoroughly sound condition F' The question is simply 
 whether Brigade Major Paterson in affirming that there was a hole is telling a 
 lie, or is Mr. T. Cargill lying when he denies the assertion of the plaintiff ? ■ 
 The answer has been given in plain unmistakeable terms by Mr." Justice Ford 
 in his judgment on Thursday, which found that the facts of the case were 
 against the defendants, and that the plaintiff had spoken the truth. It is 
 unfortunate for the Municipal Commissioners, very unfortunate for Mr. Cargill, 
 and unlucky for Mr. D. G. Presgrave, that the case was ever allowed to be 
 brought into Court and judicially decided. It has opened our eyes to facts 
 ■and allowed us to draw inference which are prejudicial to the Municipal 
 department, and injurious to the reputation of the two official gentlemen we 
 have alluded, to. What strikes us in the case is, want of honesty, a trifling 
 with truth and employment of pretences and insinuations, on the part of one 
 of the officials which appears to argue that an Englishman changes his repu- 
 tation for honourable dealing, for uprightness, and truthfulness, when he 
 lives officially among the races whose stock-in-trade is lying, deceit, cunning 
 and detestable perjury, With the majority of Englishmen, this is not the 
 case ; but there are instances at times that lead the ignorant foreign observer 
 to form the opinion we have just indicated. Where Englishmen are charged 
 with malpractices and moral obliquities while holding important posts in the 
 East, their conduct is excused on the ground of the contagion to which they 
 are daily exposed and which has vitiated their constitution. Such, perhaps, 
 may be the excuseof Mr. T. Cargill in respect to the evidence he gave in this 
 case. Be that as it may, we cannot overlook the fact that Mr Cargill is 
 responsible for the denial made by the defendants in their answer that the 
 hole did exist, and that the bridge had been neglected, and how any man 
 apprehending the obligations of an oath, could have made the statements 
 Mr. Cargill did, is to us perfectly incomprehensible, Judging from the evi- 
 dence, which was reported by our contemporary with great accuracy, it would 
 appear that Mr. Cargill had been guilty of negligence in his work , and to 
 screen himself he made the report that flatly contradicted the declarations of 
 Brigade-Major Paterson as well as the testimony given to support it, or he 
 may have acted as he did to serve the purpose of his employers. Whatever 
 
 Mr T°rl?4m e T n fb ls ?™ ctl y th * Bame a^ scandalises, nay, stigmatises 
 Mi . T. Cargill. Both on the ground of professional reputation and the higher 
 considerations of honesty and moral truth, this gentleman is to be condemned 
 for his share in the transaction, and he is responsible for the unfortunate posi- 
 tion m which the defendants stood. Mr. D. G. Presgrave seems to have 
 either acted under instructions or to have been blind [wilf ully o? otherwlle 
 we cannot tell] m regard to this bridge, he appears to have simply MWd 
 my leader in the matter, and a fair reflection of tbo ndi,,™ ,„£• i - y I °" owe< ? 
 to M, Cargill, falls on him. The conduTof " fift getti men's 
 
 evidence given in the case, we cannot Wt thnktlmt the SS,f 11 
 meet with commensurate condemnation for his S„ ? ^ # *, P n ? S ^ uld 
 share Mr. Presgrave had in the taS.nr.7tT ^ subsidiary 
 
 which they bothWg. The ^V^tX^^^^ 
 
STRAITS SETTLEMENTS. 605 
 
 nise j it shows what reliance can be placed on some of the Government officials, Sido&eavsb, 
 and ex uno disce omnes, it shows, how statements contrary to honesty and C. J. 
 wilful fabrications can be made for self-protection by those charged to "1883. 
 supervise important branches of the public service, and points the moral that „ " 
 they very often escape censure because they escape observation. Whatever ^abgili. 
 be the course adopted by the higher powers in this scandal, and overlook it p.emk^ael 
 they should not, let it be such as to express the utmost condemnation for such • ^jjob 
 actions as this, which scandalises the service and fixes upon it an unmerited 
 reproach, very difficult to be removed." 
 
 3. The defendants by the said article above set forth, meant among 
 other things that the plaintiff had been guilty of the offence of perjury 
 in his evidence before this Court in the aforesaid action. 
 
 4. The defendants in the said issue of the said newspaper, falsely and 
 maliciously printed and published of the plaintiff a letter headed " The Muni- 
 cipal Engineer" and purporting to be signed " Pro Bono Publico," and con- 
 taining the words following : — 
 
 " The Municipal Engineer. 
 " To the Editor of the Straits Intelligence. 
 " SlE, — "It is an ill- wind that blows nobody good" and particularly so, 
 when rate-payers find the Municipal Commissioners in a heap about the issue 
 of Major Paterson's case. Undoubtedly they had a smart lot of servants, and 
 it is time now that a few of them should have feathers to their caps. Their 
 Engineers are Gentlemen of no mean standing and mark, in fact, nonpareils ! 
 De Wind and Carrington are no match for them, as far as ingenuity goes ; in 
 their times, the Commissioners were never dragged before a Court of Law, 
 neither were they called upon to pay a red cent, in the way of damages done, 
 either to man or beast through their carelessness or supineness. 
 
 " Pray, what have we now to begin with ? There is Mr. Winton's horse, 
 and now this bridge affair, not long ago the collapse of Clyde Terrace Bathing 
 house resulting in the death of two unfortunates. How the Engineers got 
 out of the scrape, ought to be a tale well told. 
 
 " The ptibnc are curious to know now, who and which of their servants 
 are to be blamed in this bridge affair, Contractors or Engineers ? Here is a 
 nice nut to crack, and it is to be hoped that the Commissioners will exercise 
 a wise discretion when sitting in judgment. 
 
 " Mr. Cargill [meaning the plaintiff in this action] should be called upon 
 to show cause why the Commissioners should not dismiss him after his 
 evidence, and conduct before His Honor Mr. Justice Ford. Pray, could they 
 ever place any confidence and trust in a servant who so basely abused their 
 confidence. By all means get rid of the old leaven if they have the interest 
 of the public at heart : there is no doubt, there has been plenty of this sort of 
 delusion practised on the unwary Commissioners. Their Engineer's report 
 on the bridge alone after the accident.points to this, for it is a scandalous piece 
 of falsehood and mean to the extreme. Certainly, I have no other construc- 
 tion to put upon it. . 
 
 " Putting aside all consideration, the Commissioners should have a pure 
 atmosphere about their surroundings : they have, as their employes, men of 
 all shades, color and creed. In deference to them, the Commissioners ought on 
 no account yield to anything that may be construed into favoritism, their 
 conduct should be above suspicion if they wish to let truthfulness, order, or 
 discipline, have abiding place under their official roof. 
 
 " The public have not far to seek for a fons et origo ; private practice is 
 at the bottom of this laxity and supineness. Just so this is the origo inali. 
 
 " I remain, 
 
 " Tours obediently, 
 
 "Pro Bono Publico. 
 "P.jfif. — What would have been the result if the whole structure had 
 collapsed and sent Major Paterson to the bottom of the canalp Then and 
 there,' would a hue and cry be heard through the whole breadth of the Island. 
 It will come to that yet, if the Commissioners place further confidence in a 
 servant who has so shamefully abused his trust. 
 "4th October, 1882." 
 
m OIVIL OASES. 
 
 Sidokkavks, 5. By reason of these premises the plaintiff was injured in his charao- 
 C. J. ter and reputation. 
 
 1883. rp^ s t a t emen t of defence is as follows : — 
 
 Cabgill 1. As to the second and fourth paragraphs of the plaintiff's statement 
 
 ». of claim, the defendants deny that they or either of them falsely and mali- 
 
 Caemichakl ciously printed and published the words therein set forth. 
 
 & anob. 2. The defendants deny the allegations contained in the third and fifth 
 
 paragraphs of the statement of claim. 
 
 3. The defendants also say that the words complained of were fair 
 comments upon proceedings in a Court of Justice and were of general public 
 interest, and th& publication thereof was of benefit and advantage to the 
 public 
 
 4. And the defendants further say that the publication of the words 
 complained of in the said newspaper was made fairly and bond fide and with- 
 out any sinister or malicious motive and in the bond fide belier in the truth 
 thereof and of every part thereof. 
 
 The definition of libel as given in Starkie's Law of Slander 
 and Libel is that " any writings, pictures or signs which derogate 
 i'rom the character of an individual by imputing to him either 
 bad actions or vicious principles, or which diminish his 
 responsibility and abridge his comforts by exposing him 
 to disgrace or ridicule, are actionable without proof of special 
 damage ; " in short, that an action lies for any false, 
 malicious or personal imputation effected by such means, 
 and tending to alter the party's situation in society for the 
 worse. Undoubtedly the article andletter complained of come with- 
 in this definition and are libellous. Unless the defendants can 
 justify themselves on the grounds set out in their pleas, they are 
 liable in damages. They have not attempted a justification on 
 the ground of the truth of the imputations contained in these arti- 
 cles, but rest their defence upon the ground that they were fair 
 comments upon proceedings in a Court of Justice. Now^ the truth 
 of the allegations, if they had been, established, would have been 
 a complete answer to the plaintiff's action. It is not so in Crimi- 
 nal proceedings, for by the Act 6 & 7 Vic, cap. 96. called Lord 
 Campbell's Act, "the truth of the matter, if pleaded, may be en- 
 quired into, but shaU not amount to a defence unless it was for 
 the public benefit that the matter charged should be published." 
 In Civil proceedings, however, to quote again from the author I 
 have above referred to, « the truth of the imputation affords a de- 
 cisive answer to an action for damages, for the plain reason that 
 a guilty party has no right to a character free from that imputa- 
 tion ; and if he has no right to it, he cannot in justice recover da- 
 f g *t? f £j h * e l08S u 0f . Xt ; * is dammm ahs *™ *»«rfc ; " the reason 
 
 ZJ w^" th °lt remarks are challenged, to do so. Then are 
 
 SSl^S^? ° n the ^ round th»t these remarks, which they im- 
 
 . phedly adrmt are unture, area fair comment on the proceedings 
 
STRAITS SETTLEMENTS. 607 
 
 in a Court of Justice ? The latest and perhaps the best exposition Sidomavhb, 
 of the right of fair comment on the proceedings of a Court of Jus- 5^' 
 
 tioe was given by the late Lord Chief Justice Cockburn in his sum- ' 
 
 ming up to the Jury in the cases of Woodgate v. Ridout, and Head- Cabotm. 
 ley v. Barlow, both reported in 4 F. & F., and referred to in the _ "• 
 argument. In the former of these two cases, he says : " It is &™to*** 
 equally certain that fair comments upon the proceedings of a Court 
 of Justice or the result of them are in like manner privileged and 
 protected. The administration of justice is a matter of universal 
 interest to the whole public. The direction of the Judge, the ver- 
 dict of the Jury, the decree of a Court of Equity, may be all made 
 subjects of free comment. It is the interest of all of us that it 
 should be so. But in commenting on such matters, a public writer, 
 as much as a private writer, is bound to attend to the truth and to 
 put forward the truth, honestly and in good faith and to the best 
 of his knowledge and ability. It is not to be expected, that in dis- 
 charging this duty of a public journalist he will always be infalli- 
 ble. His' judgment may be biassed one way or the other without 
 the slightest reflection on his good faith, and therefore if his com- 
 ments are fair, no one has a right to complain. But it is for the 
 Jury to say whether a given comment upon the proceedings of a 
 Court of Justice is a fair comment upon them or the result of them, 
 or not." And in Headley v. Barlow the same learned Judge says : 
 " The right of public discussion on matters of public interest is 
 important ; and it requires for its beneficial exercise that it should 
 be exercised fully and freely, without being subject to too harsh 
 or strict limitation, and so long as it is exercised fairly and honestly, 
 it is protected or excused, even although it may incidentally in- 
 volve the publication of defamatory matter. But at the same time 
 the comments must be fair — that is, conceived in a fair spirit — in 
 the spirit of fair discussion and not in spirit of reckless or incon- 
 siderate imputation. That which is recklessly defamatory, can 
 hardly be deemed fair, and the article which conveys a charge of 
 recklessness with regard to truth and therefore recklessness of truth 
 certainly is not consistent in any reasonable sense with fairness." 
 
 As in this Colony, the Judge has to discharge the duties of 
 a Jury as well as of a Judge in Civil causes, it becomes simply > 
 question for me to decide whether the articles complained of can 
 be justified as fair comments upon the proceedings in Court, as 
 reported in the Singapore Daily Times, upon the trial of " Paterson 
 v. the Mimicvpal Commissioners," before His Honor, Mr. Justice 
 Ford. The evidence as given in the paper referred to of the 28th 
 September, 1882, was substantially admitted, as was also, after 
 evidence had been given of its accuracy, the judgment delivered 
 by Mr. Justice Ford as reported in the issue of the same paper of 
 the following day. 
 
 There were several points raised on behalf of the defendants 
 at the trial of that case, but the .point upon which the question 
 involved in the present case turns, relates to the evidence given by 
 the present plaintiff as to the existence of a hole in the bridge in 
 the cross road from Tanglin Road to Alexandra Eoad, as sworn 
 toby Brigade-Major Paterson and other witnesses. Now there 
 
fi08 OIVIL OASES. 
 
 Sidqbeaves, can be no further question raised upon that point. The result of 
 
 1883 *^ e * r * a * was *° decide *' ia * there was such a hole, and the plain- 
 
 '. tiff in that action recovered the damages he claimed. At the trial 
 
 Cabgill the present plaintiff, Mr. Oargill, gave evidence as follows : — 
 
 V. 
 
 Cabmichael " In May last, I was asked to go and see the bridge in the cross road from 
 
 & anob. Tanglin Road to Alexandra Road, in consequence of some claim made by 
 Major Paterson against the Municipal Commissioners. That was three or 
 four days after the date of the accident. I found the bridge in very good 
 condition. I saw no. hole or no mark of any hole having been filled up. Had 
 there been anything of the sort, I should have seen it, especially in that bridge 
 ■ where there is little traffic and the signs of any repair would not be so readily 
 obliterated as in town. -Besides that, it was said.it was near the parapet, 
 where there is still less traffic than in the centre of the road. I examined the 
 ' beams from the under side. They were in very good condition. The wood 
 of which they are formed [tampinis] is never attacked by white ants. No 
 report was made to me by any Inspector or any body else before the accident, 
 as to there being a hole there. A very heavy storm might wash away the 
 metalling and leave a small hole. Rats, which are frequently found on the 
 borders of these streams, might make a hole. I never saw a snake make a 
 hole in a road. I have seen snakes behind the planking of a bridge. Such 
 a situation is a favorite one with snakes." 
 
 The learned Judge notwithstanding that evidence, found that 
 there was such a hole, and gave his reasons for his decision. The 
 Attorney-General, on behalf of the defendants, urged that the 
 language used in the articles complained of was not stronger than 
 that used by the learned Judge, although rougher terms were used 
 and the expressions made use of were perhaps not so subtle and 
 accurate. The point is a new one, and could not arise where the 
 verdict is returned by a Jury; but I agree, that if it could be 
 established that the writer had fairly and honestly, and allowing 
 even a reasonable margin for misunderstanding, taken the judg° 
 ment so delivered as his guide and endeavoured, although Fn 
 rougher, and as he thought, more impressive language, to give the 
 effect of it and dilate upon it, then it would be very difficult to 
 say that he had exceeded the limits imposed upon fair comment. 
 Now I come to the expressions so made use of by the learned 
 Judge, who decided that not only was there a hole, but the exist- 
 ence of the hole was due to the negligence of the defendants in 
 not keeping the bridge in a proper state of repair. 
 
 i ^ e £ oUow ! n & extracts from the judgment are those which 
 relate to the evidence and conduct of the present plaintiff :— 
 
 W JJ h *t re C °^ d be n ,° 4™ bt S at there was a hole ^re. There was, 
 besides the evidence of Major Paterson himself and his two syces the 
 
 thl 3V f the Tv? "t th ?,T ploy of Ma J° r Hales - ^o saw the hSe before 
 the accident; and he should have to allude by and by to some otheTreasons 
 
 p. fst. a, v^ri-^^fe^alS 
 
 described as the scene of the accident, three or four dava aft?.. +ll „ p i ! 
 occurred, and by that time, he told them there ™£ ™\ i f J he acciden t 
 no trace of any nole having been filled up And l™ 7*Ll °. Y* ^ }■* Seen ' , and 
 the defendants did not helitate to ask The O^T^lv fo * nda * lon as ,- that > 
 Brigade Major Paterson, made a false cW ta^nsf ' thlm^nf th£ a ^ 
 here with a case which had no foundation in ff Tw!. vfi ^ i Came 
 said, was at least unfortunate . ." *"# ' That ' as he Had ^ady 
 
STRAITS SETTLEMENTS. 609 
 
 " Against the evidence of the syoe, there was that of the Engineer to the Sidgbeaves, 
 Commissioners, who was called for the defence. He did not deny in terms C. J. 
 the case for the plaintiff, although before dealing with the evidence of that 1883 
 officer, he might call attention to a report which he made at the time to the p 
 Commissioners as to the state of this bridge, — a report which, he must say, ^aboim. 
 looking to the evidence of the syce and to what he himself [Mr. Justice Ford] c AEM ic HABL 
 saw with his own eyes on the two occasions he visited the bridge, seemed to & amok 
 him to he the most extraordinary letter he had ever read emanating from a 
 skilled witness. The report was as follows : — 
 
 " ' I inspected the bridge in question and found it to be in good traffic 
 order. There was nothing in the state of the structure that would have con. 
 duced to the accident complained of. The bridge was repaired with a few 
 planks on one of the abutments, and some fresh rails put in the parapets. 
 All this was completed by 25th April, and the bridge was then in a 
 thoroughly sound condition. The accident occurred on the 18th instant; 
 but as nothing had been done to the bridge between that date and the date 
 of my inspection, or has been d'>ne since, the bridge is in precisely the same 
 condition as it was at the time of the alleged accident. The assertion that 
 the bridge " gave way," is a mistake. The planking and roadway of the 
 bridge are in very good order. I cannot myself find any cause for attributing 
 the accident to any defect in the bridge. 
 
 (Sd.) "T. Cabgill, 
 
 " M. Engineer. 
 
 "3/5/82." 
 
 " Henow came to what he himself [the Judge] sawthere; he thoughtit right 
 to visit the place and see the bridge himse'f, taking upon himself the right, the 
 Judge always has of exercising what is called in the case of a Jury, the 
 order to view. He was bound to say that nothing was more calculated to 
 confirm the statements of and for the plaintiff, or more calculated to discredit 
 the case put forward by or on behalf of the Commissioners, than what he 
 found there. He was really so surprised after the first visit, on considering 
 the whole facts over, that he was afraid his inspection must have been too 
 hasty ; the whole condition of the bridge seemed to him so bad, that he went 
 a second time, to make sure there was no mistake. It seemed to his mind 
 beyond doubt that the bridge had been neglected. The large beam upon 
 which rests the last plank that nearest the road, was simply eaten away by 
 white ants. They had absolutely eaten away some twelve inches of the beam. 
 It was held in its place by an iron bolt or rod of iron which should have kept 
 it to the other beam. There was simply no wood there at all. It was gone. 
 The planks, he could not see, but he could fairly judge of their condition as a 
 whole by the state of the end exposed. Of that, one half was entirely gone, 
 and if one put the weight of his hand upon it, it went wagging up and down as 
 easily as could be wished. It was simply held in the place where it was by an 
 accumulation of earthern matter. There were also, he found, most marked 
 indications of a hole having been filled up. He considered the whole forma- 
 tion of the place, gave the most absolute proof that a hole of about the size of 
 that described by Major Paterson had been filled up. The roadway consisted 
 of laterite ; but there was one solitary portion in just such a position as that 
 described by Major Paterson, some 1J ft. square, formed of chopped granite. 
 These were all indications of a hole having been filled up, and he had not 
 the slightest doubt in saying that there had been a hole ; and no doubt these 
 men whom the contractor described as always working about the road at that 
 time, had, after the accident, seen the hole and filled it up. Of that he bad 
 not the slightest doubt. In face of what he had seen with his own eyes, he 
 confessed he was at a loss to understand how a gentleman in the position of 
 Engineer to the Municipal Commissioners could come into Court and give 
 such evidence as he had done. 
 
 " Mr. Bond : Perhaps, my Lord, yon will allow me to— 
 " His Lordship : No. That is my opinion from the Bench of the evidence 
 of the Municipal Engineer." 
 
610 CIVIL CASES. 
 
 SiBOREAVis, I can find nothing in these remarks which would justify any 
 
 ?; a J - reasonable man in interring that the learned Judge imputed to 
 
 1883 the plaintiff that be had been guilty of deliberate perjury to screen 
 
 Carom himself from the consequences of his own negligence. The de- 
 
 *• fend ants do not say so now— in fact, by their Counsel at the trial, 
 
 C Tanob EL they admitted that it was not necessary to admit that either 
 Brigade-Major Paterson or Mr. Cargill told a lie, and Mr. Harwood 
 stated that he believed now that Mr. Cargill had overlooked the 
 hole. No doubt, as the learned Judge stated, and stated empha- 
 tically, it was difficult to understand how the Municipal Engineer 
 could have gone to look for the hole or traces of the hole and failed 
 to find them ; but we are not irresistibly driven to the conclu- 
 sion that the plaintiff did see the hole, and deliberately perjured 
 himself when he said in Court that he did not, and there is 
 nothing in the judgment that would reasonably warrant such an 
 inference. The defendants, however, drew it and chargedthe plain- 
 tiff with "lying" when he gave his evidence in Court. A more 
 odious charge cannot well be conceived ; and it is libellous on the 
 face of it unless justified. The plaintiff is directly referred to in . 
 the following passage : — 
 
 " What strikes us in the case, is want of honesty, a trifling with truth and 
 employment of pretences and insinuations, on the part of one of the officials 
 which appears to argue that an Englishman changes his reputation for 
 honourable dealing, for uprightness, and truthfulness, when he lives officially 
 among the races whose stock-in-trade is lying, deceit, cunning and detesta- 
 ble perjury Where Englishmen are charged with malprac- 
 tices and moral obliquities while holding important posts m the East, their - 
 conduct is excused on the ground of the contagion to which they are daily 
 exposed and which has vitiated their constitution. Such, perhaps, may be the 
 excuse of Mr. T. Cargill in respect to the evidence he gave in this case. 
 
 It is unnecessary to quote the further libellous statements 
 made in the same article and in the letter published in the same 
 paper. 
 
 The plaintiff is held up to public execration as having com- 
 mitted the most detestable perjury from the meanest of motives, 
 and I consider that the defendants' attempt at justification has 
 completely failed. 
 
 It is really, only a question of damages, and upon this point I 
 may again refer to the language of the learned Judge whom I have 
 before quoted, in his summing up to the Jury in Woodgate v. Ridout. 
 " And I cannot help observing that we have not here to do with 
 " an apologetic defence, but there is an attempt to show that not- 
 " withstanding all that has taken place, the conduct of Mr. Wood- 
 " gate was deservedly held up for execration. That is for you to 
 "consider." And in conclusion he tells them: "It is a case of 
 " the utmost gravity. On the one hand, let it not be supposed 
 " that the law imposes any undue restraint upon the freest and 
 " fullest comment upon all that passes in Public Courts of Justice, 
 " for that the Administration of Justice should be made a subject 
 " for the exercise of public discussion is a matter of the most essen- 
 " tial importance. But on the other hand, it behoves those who 
 " pass judgment on those who are suitors or witnesses in Courts 
 " of Justice not to give reckless and too harsh, uncharitable views. 
 
STRAITS SETTLEMENTS. 
 
 611 
 
 " of the conduct of others ; but to remember that they are bound 
 " to exercise a fair, an honest and an impartial judgment upon those 
 " whom they hold up to public obloquy ;" and the result in that 
 case was that the plaintiff, an Attorney, who had been villified in 
 the columns of the Morning Post, in a manner somewhat similar to 
 that in which the plaintiff has been treated in the defendants' 
 paper, recovered £1,000 damages. 
 
 la the present case, there has been no attempt at an apology, 
 although the defendants had found out, at all events, so far back, 
 as the 8th December, when the statements of defence was filed, 
 that they could not attempt to urge that the injurious allegations 
 complained of were true. It is impossible, therefore, now to treat 
 this as a case for nominal damages. The plaintiff does not wish 
 for vindictive, but for reasonable damages, and to those he is enti- 
 tled. I find a verdict for the plaintiff for $250 damages and costs. 
 
 SlDGEAVES 
 
 C.J. 
 1883. 
 
 Cargill 
 
 V. 
 
 Caemichael 
 
 & ANOE. 
 
 WANCHEE INCHEH THYBOO & ANOR. 
 
 v. 
 
 GOLAM KADER. [a] 
 
 When one and the same person is appointed executor and trustee under a 
 Will, his executorship ceases, and his trusteeship commences on the estates 
 vesting in him [by virtue of the Will and his assent to the devise,] subject to the 
 specific trust declared by the Will. 
 
 This Court is bound by the Letters Patent of 1S5S. to allow a reasonable com- 
 - mission to an executor, [out of the testator's estate,] for his " pains and trouble" 
 in administering the same ; but there is no fixed rule to allow him 5 per cent, on 
 the amount of the assets, whether there be appreciable tronble or not. 
 
 The rate of commission, might be even greater or less, according to the nature 
 of the estate administered and the trouble and pains necessarily taken by the 
 executor : the amount of assets bas little to do with it. 
 
 In the case of a testator dying perfectly solvent, with a balance of ready 
 money in hand, and having devised his real estate specifically among certain devises, 
 the executor's pains and trouble would be so trifling, that 5 per cent, commission to 
 him would not be just or reasonable. 
 
 The fixed rate in India, of 5 per cent, on receipts and payments, is not binding 
 here, inasmuch as the incidents of an executorship in India and this Colony, are not 
 the same. Here he succeeds to real estate under the Act XX of 1837. 
 
 This was a suit for the administration of the estate of one 
 Mahomed Sultan, deceased, to whose estate the defendant was 
 executor. The plaintiffs were two of the beneficiaries under the 
 Will. The question here arose on the report of the Acting Regis- 
 trar and came before the Court by way of exception thereto. The 
 facts of the case and nature of the arguments of Council fully 
 appear in the judgment. 
 
 Ross, for defendant in support of exceptions referred to 
 Matthew v. Bagshawe, 14 Beav. 123 ; Robinson v. Pett, 2 White & 
 Tudor's, L. C. iu Eq. p. 206 ; Letters Patent of 10th August, 1855 ; 
 
 Penanu. 
 
 Wood, J. 
 
 1883. 
 
 May 1. 
 
 [o] See In the goods of William Kussell, deceased, Ecclesiastical cases, vol. IT. p 
 of these reports. 
 
eia 
 
 CIVIL OASES. 
 
 Woou, J. 
 
 1883. 
 
 Wanchee 
 Incheh 
 Thteoo 
 
 & ANOB. 
 
 V. 
 
 GOLAM 
 
 Kadeb. 
 
 18 & 19 Vic. c. 93 sec. 4; Chetham v. Lord Audley, 4 Vesejr 72 ; 
 Campbell v. Campbell, 11 L.J. [N.S.] Oh. p. 382; s. c. 13 Simon 
 138 ; Lim Sim Poh v. Lim Kin, Straits Law Reports, 239-40 ; Lim 
 Ah Yang v. Khoo Khay Chan, Ibid 384 ; Vander Eoven v. Surin, 
 Penang, 1865. [a] 
 
 Van Someren for plaintiffs, in supporb of Report, referred to 
 2 Wms. on Executors, [6th ed.] pp. 1530, 1710, and Campbell v.' 
 Campbell, 2 Y. & Coll, 207. 
 
 Cur. Adv. Vult. 
 
 July 4. Wood, J. Mahomed Sultan Merican by his Will 
 bearing date, October 17th, 1880, appointed the defendant Goiam 
 Kader with another who renounced Probate and a third a minor 
 who has not yet joined in the Probate, his executors, thus leaving 
 the defendant the only effective executor. 
 
 By this "Will he directed that his executors should sell certain 
 specific property for the payment of his debts and for certain Other 
 definite purposes, which need not be specially mentioned. 
 
 He further made certain specific devises of land in favour of 
 certain of his sons and daughters, and by para. 6 of his Will he says : 
 6th. " My Executors shall make bills of sale for the pro- 
 " perty above described in the names of each one of my children 
 " as stated above, and deliver to them when of age, or after they 
 " have been married, during which time the rents of the above shops 
 " shall be received by my executors, and after paying from it for 
 "the repairs of the said shops, the remainder shall be given to my 
 "wife Wanchee Incheh Thyboo, she after supplying my children 
 " with their food and clothing, shall keep the remainder for the 
 " childrens' marriage expenses and also get them married. My 
 " executors and my wife shall have my children married to' such 
 " persons as they may think fit and good." 
 
 Then follow provisions in case of the death of any of the 
 children for the division of the shares of the children so dvino- 
 among the surviving children. & 
 
 The defendant entered upon his executorship and subse- 
 ST&i B ^ W3 f brou 8 ht h f the Plaintiffs' beneficiaries under 
 the Will, and in due course it was referred to Mr. Kvshe the 
 Acting-Registrar of the Court for his report. " 
 
 By his report, it appears that the defendant had filed accounts 
 which it is admitted are correct, so far as the details of receipts 
 and expenditure is concerned-but the defendant as executor 
 claims the sum of $759.31 his commission as executor at the rate 
 of 5 per cent, on $15,186.25 the entire value of the Estate real and 
 personal of which the testator died possessed. ' 
 
 The Registrar on this matter reports as follows : 
 
 .. * J' v ' 5 ' -j 1 fi ^ d def . e ? dant has received Estate to the amount of «"> QSfi 9* 
 and has paid, or is entitled to be allowed on account of tC ^ V.t ? 
 
 [a] not reported, 
 
STRAITS SETTLEMENTS. 
 
 613 
 
 " S. 6. " This sum of $411.71$ I find due by allowing the defendant 
 " only commission on the monies shewn in his accounts A. and B. to have 
 " come into his hands, and by disallowing the extra commission charged by 
 " him on the unsold property, the value of which he -estimates at $9,200 ' 
 " [annexure' C] 
 
 On the case coming on for hearing on May 1st, Mr. Eoss for 
 the defendant, stated the point which was simply, whether it being 
 admitted by the plaintiffs that the defendant is entitled to com- 
 mission at the rate of 5 per cent, upon property administered by 
 him ; he is entitled to that commission upon property which had 
 not then been handed ovei-, viz., the unsold and undisposed of 
 property adverted to in section 6 of the Eegistrar's report. 
 
 On opening the case thus far, -I required to know under what 
 law or custom defendant claimed to be entitled to his commission 
 of 5 per cent, on property administered, and the case stood over for 
 further elucidation of this point for which the parties were not at 
 that time prepared, and accordingly on a subsequent day, May 8th, 
 the matter was further gone into. Mr. Eoss explained that by 
 Letters Patent for reconstituting the Court of Judicature of Prince 
 of Wales' Island, Singapore and Malacca, of 10th August, 1855, 
 p. 17 of Edition of 1856, it is directed as follows: — "And we 
 " further ordain and declare that it shall be lawful for the said 
 " Court to allow to any Executor or Administrator of the effects 
 " of any deceased person or persons such commission or percentage 
 " out of his, her or their Assets as shall be just and reasonable for 
 " the pains and trouble therein." 
 
 By 18 & 19 Victoria, chapter 93 [14th August, 1855] being 
 an Act to amend certain Acts relating to the Court of Judicature of 
 Prince of Wales' Island, Singapore and Malacca, after reciting the 
 grant of the said Letters Patent of 1855, — by section 4 enacts 
 among other things, that such Letters Patent " are in all respects 
 ratified and confirmed." He therefore contended that these Letters 
 Patent although their purport and effect is generally to reconsti- 
 tute the Court of Judicature, and relate to matters of jurisdiction 
 and practice, still when they enact matter which varies law and 
 practice are enactments to all intents and purposes and thus that 
 the direction above quoted relating to the remuneration of exe- 
 cutors was effective to esbablish the law of the Settlements in this 
 respect. 
 
 This law, he further contended was unaffected by any subse- 
 quent enactment constituting our Courts, dealing with its jurisdic- 
 tion — or affecting its practice. 
 
 And since by Indian Act 20 of 1837, it is enacted " That from 
 " the 1st day of October, 1837, all immoveable property within the 
 "jurisdiction of the Court of Judicature of Prince of Wales' 
 " Island, Singapore and Malacca, shall, as regards the transmission 
 " of such property on the death and intestacy of any person 
 " having a beneficial interest in the same, or by the last Will of any 
 " such person, be taken to be, and to have been of the nature of 
 " chattels real and not of freehold " and that for many years past, 
 probably, ever since the year last mentioned, 1837, it has been cus- 
 tomary for executors and administrators in this Settlement to 
 
 Wood, J. 
 1883. 
 
 Wanchbb 
 Inchbh 
 Thyboo 
 
 & ANOK. 
 
 V. 
 GOLAM 
 
 Kadeb. 
 
614 
 
 CIVIL CASES. 
 
 Wood, J. 
 1883 
 
 Wanchee 
 Incheh 
 Thtboo 
 
 & ANOK. 
 V. 
 
 GOLAM 
 
 Kadek. 
 
 retain for themselves a commission of 5 per cent, on all the estate 
 real and personal in which the testator had a beneficial interest, 
 which estate was looked upon as assets, whatever may be ther nature 
 of the disposition made of it by the testator, and such practice 
 and custom has been acquiesced in by all parties concerned 
 sometimes in the case of very large estates and that accounts in- 
 volving this claim for commission have been passed through the 
 Eegistrar's office, — and allowed by that officer in numberless reports 
 — though the question of the legality of the claim has never been 
 made the subject of judicial decision by the Supreme Court, such 
 practice and rule for the executor and administrator to receive 5 
 per cent, on the value of the estate was just and reasonable and 
 would be supported by the Supreme Court of the Colony. Mr. Van 
 Someren for the plaintiffs, agreed to the reasoning above advanced 
 by Mr. Ross and contended that the defendant was entitled to 
 retain this sum of 5 per cent on all the assets of the testator, in- 
 cluding the property which the executor under the terms of the 
 Will held under trust to convey to the several persons referred to 
 in the clause 6 of the Will adverted to, on their coming of age or 
 marriage, but which have not yet been so conveyed — but contended 
 that the defendant was premature in advancing any such claim 
 until conveyance in accordance with the terms of the Will. 
 
 Upon this point I am of opinion, that the defendant has not 
 established his right to any such commission as is contended for, 
 but upon, grounds distinct from those advanced before me in 
 argument, though such grounds were sufficiently discussed in the 
 course of the hearing, and which grounds I now proceed to explain. 
 
 It is admitted to be the practice of this Court, that following 
 the law in England, trustees as such have no claim to any com- 
 mission at all. In the case before me, the executor is both exe- 
 cutor and trustee, and the Court has to distinguish between his 
 acts and duties in these several capacities, I entertain no doubt, as 
 I have already said in the course of the argument, that his exe- 
 cutorship ceases and his trusteeship commences on the estates 
 vesting in him, subject to the specific trusts detailed in clause 6 
 of the Will — and as such executor, I cannot see that he has 
 acquired any right on the score of " pains and trouble" to a com- 
 mission of 5 per cent on the whole amount of the estate by virtue 
 of any fixed rule to that effect, though I think, that the estate did 
 fairly vest in him as executor by virtue of the Will and his assent 
 to his own devise. 
 
 I entertain no doubt tha.t the Court is bound by the Letters 
 Patent of 1855, to " allow to any executor or administrator of the 
 " effects of any deceased person or persons such commission or 
 " per centage out of his, her or their assets as shall be just and 
 " reasonable for their pains and trouble therein" but I cannot 
 consider it bound by any fixed rule for claiming a commission of 5 
 per cent on the amount of all assets whether there be appreciable 
 pains and trouble or no. 
 
 The receipt of such a fixed commission I look upon as an 
 abuse which has creptinto practice from a not unreasonable dis- 
 inclination of parties interested under a WilL. or an intestacy to 
 
STRAITS SETTLEMENTS. 
 
 615 
 
 dispute the claims of a personal representative, a claim which the 
 officer of the Court in times past who was often called upon to act 
 as administrator appointed by the Court — could hardly be expect- 
 ed to look on with disfavor. It might be, that the commission for 
 extra pains and labour bestowed by the executor, or administrator, 
 might be even greater than 5 per cent, on the amount of the assets 
 — but in the case of a testator dying perfectly solvent with a 
 balance of ready money in hand and having devised his real estate 
 specifically among certain devises, the executor's pains and 
 trouble which would be simply the pains and trouble of 
 proving the "Will, paying funeral expenses — and assenting to 
 the specific devises for the execution of a formal conveyance in 
 such a case is a practice uncalled for by any legal necessity, could 
 hardly be very meritorious ; and in the case of a large estate, say 
 $500,000 not by any means an extreme amount in this Settlement, 
 the " pains and labour" must indeed be more that ordinarily great, 
 which would justify the Court in awarding $25,000 as a just and 
 reasonable remuneration. 
 
 The rule as we are told, is in India, 5 per cent, on receipt and 
 payments, where the incidents of an executorship are the same as 
 in England, not where as here he succeeds to all real estate a 
 mode of reckoning which in some respects carries with it the prin- 
 ciple of reward for pains and trouble, and I am far from saying, 
 that the Court would not in small estates and under ordinary cir- 
 cumstances, deal with the commission from assets, so as to arrive 
 at a somewhat similar result to that which now prevails, viz., 5 per 
 cent, on the amount of assets, but it must be borne in mind, that 
 the amount of assets has little to do with pains and trouble, which, 
 in the case of mere assent to devises is almost nil — that excessive 
 remuneration for trifling services is a practice which cannot be 
 sanctioned— and that the discretion vested in this Court to allow 
 what is just and reasonable can be limited by no fixed practice 
 which has not received its direct approval, which I understand has 
 never been the case — what may be just and reasonable commis- 
 sion in this case it may be difficult to say. The defendant's duties 
 as executor seem to have been troublesome, and he might well be en- 
 titled to more than 5 per cent, on the sums he has actually received 
 as executor, or even to 5 per cent, on receipts and 5 per cent. 
 on expenditure within the strict scope of his duties as executor ; 
 the total amount of receipts and expenditure would amount in 
 round numbers to $10,000 as I understand the accounts ; the com- 
 mission on which at 5 per cent, would be $500, or thereabouts, but 
 that he should claim and be allowed a fixed rate of 5 per cent, on 
 the value of the estate, is a practice which I feel myself called 
 upon to disallow. As the parties seem desirous to settle the case 
 in an amicable spirit, and now by their respective counsel inti- 
 mate that they accept the suggestion above made by me, the re- 
 port will be confirmed, subject to the modification above adverted 
 to. 
 
 The costs of this cause, I understand, are to be paid by consent 
 put of the estate, a proposal in which I concur. 
 
 Wood, J. 
 1883. 
 
 "Wanchee 
 
 Incheh 
 
 Thyboo 
 
 & Anok. 
 
 v. 
 
 GOLAM 
 
 Kader. 
 
616 
 
 CIVIL CASES. 
 
 ATTOENEY-GENEEAL v. HAJEE ABDUL CADEE. 
 
 Penang A testator devised certain lands to charitable V»^^ ^^ ^.^^J^t 
 
 num. managem ent of his sons, nobody else being allowed to interfere ^rewith- 
 
 WooD J , and towards the ^conclusion of his Will, stated as follows :-" My son, <*^]*»£™ 
 
 1383 ' act as my executor, and on his death, my second son Oodman Sah-in ^ the absence of 
 
 _ mysons, their sons will succeed as executors they mil succeed one to the other, 
 
 Mav 3 the eldest son first, and the next afterwards, and so forth. * , . . . 
 
 y 3- Held, that the eldest grandson in point of age,-and without reference to h s being 
 
 the son of the first or second son-was entitled to succeed as exec u j»^™ J™ .™° 
 testator iudtring from his language, intended, such his executors, to be also the trustees 
 onhe charity ; 'and that consequently on the death of the two sons, the eldest grandson, 
 as aforesaid, was the trustee of the charity. 
 
 In the goods of Cauder Mohuddeen, deceased, Straits Law Reports, p. zm, 
 observed on. 
 
 This was an information by the Attorney-General, relative to 
 a charity created by the Will of one Kader Mydeen, otherwise 
 called Captain Kling — seeking, among other things, to have it 
 declared that certain lands formed part of the subject-matter of 
 the devise to such charitable purposes — and to have it further 
 declared that the defendant, who was the then executor of the 
 said Kader Mydeen, deceased, and acting as the de facto trustee of 
 the said charity— was not the trustee thereof; but the relator 
 Kader Mydeen alias Pa wan Chee, was de jure the trustee thereof, 
 and that the defendant might be restrained from selling, encum- 
 bering or otherwise, howsoever, interfering with the said lands. 
 The defendant,— contending that the land aforesaid did not form 
 past of the subject-matter of the devise, but the private property 
 of the testator, — had sold certain portions of the said land, and 
 was intending to sell more, when this suit was commenced. At 
 the trial in August, 1880, this Court had made a decree in this 
 suit, declaring such lands to be part of the subject-matter of the 
 devise of the aforesaid charity, but reserved the question of the 
 removal of the defendant from such alleged trusteeship, until his 
 accounts, which were referred to the Eegistrar, were enquired into, 
 and reported on. These accounts were subsequently enquired 
 into", and resulted in a sum of $900 odd, being found due by the 
 defendant ; and on submission of the Eegistrar's report to that 
 effect, to this Court, the report was confirmed, and the aforesaid 
 amount ordered to be paid into Court. The defendant paid in 
 this amount, in pursuance of the said order. It did not appear that 
 the sales of portions of the said lands by the defendant, and his 
 contention, that it was not portion of the charity land was other- 
 wise than londfide, but done under a mistake : the items disal- 
 lowed in his accounts by the Eegistrar, also did not appear to have 
 been entered with any improper motive, nor the aforesaid balance, 
 fraudulently held back by him. The only remaining question, as 
 regarded the right of the defendant to act as trustee, now came on 
 to be disposed of. The facts on which this question arose were 
 the following :— The testator Kader Mydeen, had made his Will 
 creating the charity aforesaid, and directing that the same was to 
 be managed by his eldest son Oodman Nina, his executor, and on 
 his death, his second son Oodman Sah, his executor, and in the 
 absence of his sons, their sons to succeed as executors, the eldest 
 
STRAITS SETTLEMENTS. 617 
 
 son first, and the next afterwards and so on. The testator died Wo0D 3 > 
 in 1834, and his eldest son, Oodman Nina proved his Will and ^ 
 obtained probate thereof, and acted in the affairs of the estate, Attorney- 
 and as trustee, tinder the Will, of the charity thereby created, General 
 until his death, in 1860. On his death, the second son Oodman Sah Haje ^ Ab . 
 obtained probate to the testator's Will, and acted therein, and DUL Cadeb. 
 intermeddled in the matters of charity, and acting as the trustee 
 thereof, until his death, in 1864. In 1867, the defendant, the 
 eldest son of the said Oodman Sah [the second son and executor] 
 applied for probate of the said Will, which was refused. In 1869, 
 the defendant again applied for such probate, which application 
 was opposed by the relator, Kader Mydeen, on the ground that he 
 was entitled to act as executor, and was meant by the " eldest" 
 grandson. At such trial, it appeared, the relator was the eldest 
 son of Oodman Nina, the eldest son of the testator, and the first 
 executor ; but the defendant,, though the eldest son of the second 
 testator's second son Oodman Sah, was in years, older than the 
 relator. Sir William Hackett, the then Judge, required an affida- 
 vit to be filed, that beside the charity lands, there was private 
 property of the testator to be administered : this affidavit was filed 
 by the defendant. On these facts, and on the construction of the 
 Will, the said learned Judge held, by "eldest" grandson, the 
 testator meant, his grandson who was oldest in age, and without 
 reference to such grandson being the son of his first or his second 
 son, -and accordingly granted probate to the defendant. The 
 defendant, some years after getting this probate, claimed to act as 
 trustee of the charity, and taking that office on himself, began to 
 intermeddle with, and manage the affairs of the charity. On 
 these facts, 
 
 Van Someren for the plaintiff, now moved that it might be 
 declared that the defendant was not legally the trustee of the 
 charity, but that the relator, Kader Mydeen was, — and that the 
 defendant be restrained from intermeddling with the affairs of the 
 charity. He contended, that although no fraud or misconduct 
 could be shewn on the part of the defendant, yet, as on the death 
 of Oodman Nina, the first executor and trustee, the property 
 devolved on the relator Kader Mydeen as his heir, as trustee — and 
 the case was not affected by the Act XX of 1837, the said Oodman 
 Nina, not being the beneficial owner under the charitable trust — ■ 
 the -defendant was not the trustee, and did not represent the 
 charity, and should be restrained — in fact, this had been decided 
 by Sir Benson Maxwell on the application by defendant, in 1867 
 for probate [a] , the probate obtained by the defendant _ in 1869 
 did not enable him to act as trustee of the charity — it was intended 
 for the testator's private property only. The will did not appoint 
 the defendant trustee,— nor yet his father. The words were "My 
 son Oodman Nina will act as my executor, and on his death, my 
 second son Oodmansah — in the absence of my sons, their sons will 
 succeed one to the other, the eldest son first, and the next after- 
 wards, and so forth." Sir William Hackett, in 1869 had held 
 this last clause, meant the eldest grandson, of the grandsons as a 
 [a] Straits Law Reports, y. 281. 
 
618 CIVIL CASES. 
 
 Wood J., class — but lie could not, and did not, — by requiring the affidavit 
 
 1883- of private property, — have meant to interfere with the decision of 
 
 Attorney- Sir Benson Maxwell in 1867, who distinctly held that neither the 
 
 General second son Oodmansah, nor the eldest grandson, had a right to 
 
 H v - . be trustee. That decision he contended also, held the heir of the 
 
 dulCadeb. h 1 " 8 * 5 executor and trustee, was the trustee of the charity, — and 
 
 that person was the Plaintiff. 
 
 Thomas, for defendant contended, that the defendant had a 
 ■right to his status as trustee. He was the eldest grandson who 
 was declared by Sir William Hackett, to be the person named 
 in the Will as successor to the second son — and on that ground, 
 obtained probate of the Will. That the defendant had acted as 
 trustee, for many years and no misconduct had been proved 
 against him. 
 
 Wood, J. was of opinion that the decision of Sir Benson Max- 
 well in 1867 did not decide the question of who was or was not 
 trustee of the charity — the sole question before him was, whether 
 probate should be granted to the defendant or not — and he held it 
 should not. It was true, some expressions appeared to have drop- 
 ped from the learned judge relative to the relator [the heir of the 
 first trustee] representing the charity — bnt that, his Lordship 
 considered quite extra-judicial and not binding on the Court on 
 this occasion. His Lordship further considered that the declara- 
 tion of Sir William Hackett in 1869, was conclusive and binding 
 on him — that on that occasion the Will had been construed, and 
 the defendant was decided to be meant as the "eldest" grandson. 
 He considered that the Testator intended by the language he 
 had used that his sons and grandsons were to act in succession, 
 bothas executors and trustees of the charity— and as the clause 
 relating to the succession of the grandson has been held to mean 
 the defendant, the defendant was entitled to be, and to continue 
 to act as, the trustee of the charity. All other points in the suit 
 having been disposed of, his Lordship ordered the costs of all 
 parties in the whole suit, to come out of the charity estate. 
 
 Order accordingly. 
 
 SlNOAPOEE. 
 
 Ford J. 
 1883. 
 
 WYNDHAM v. HANSEN. 
 
 an A f hotel - ke . , !Per has a lien on his lodger's clothing and goods, for unpaid bills 
 and incurs no liability m detaining the same under such circumstances 
 
 This was an action brought by one John Wvndham an 
 Ma y i, Engineer out of employment, agains/one J. Hansenf prop? Lto 
 of the Alexandria Hotel, to recover possession of his boxes and 
 clothing or their value estimated at $100, and the f urther 1 of 
 1150 as damages for the wrongful detention of his first EnoW? 
 
 MarcirS ThTl "f Certificate * *°» 13th January C 4th 
 March 1883 The defence was, that the plaintiff left the hotel 
 without paymg his bill, and the defendant claimed "lien upon 
 the articles left by the plaintiff in the room occupied by S 
 
STRAITS SETTLEMENTS. 
 
 619 
 
 The defendant- denied having detained the paintiff's certificate 
 of competency as second Engineer by the Board of Trade, 
 and certificates of good character, and stated that some time 
 after the plaintiff left the hotel, a certificate of conpetency and 
 other papers were found in one of the table drawers of the 
 room in which the plaintiff stayed ; the certificate and other 
 papers were forwarded to the plaintiff at the Singapore Hotel, 
 where the plaintiff then stayed, by. one of the defendant's 
 boarders immediately after they were found. The defendant 
 claimed from the plaintiff the sum of $47.85, being the amount 
 owing by the plaintiff to the defendant at the time he quitted his 
 hotel. The plaintiff appeared in person [forma pauperis] . 
 
 C. K. E. Woods, for the defendant. 
 
 Ford, J. This is a case in which it seems to me that the plain- 
 tiff is quite in the wrong, and I am rather surprised that he was 
 successful in getting leave to sue as a pauper. As to the wrong- 
 ful retention of his clothes, I need hardly say the clothes are the 
 inn-keeper's ; he has the right to the clothes until his bill is paid. 
 So that his action in retaining possession of them was not tortuous 
 in any respect. The bill is admitted to be right in all but an 
 item of $1.50 and another of $11.95. Even deducting these two, 
 there would still be a balance in favour of the defendant for which 
 he would have his lien and be entitled to keep the clothes. But 
 it seems to me that these items of $11.95 and $1.50 for washing, 
 were, clearly incurred by the plaintiff, and that the quantity of 
 drink he had consumed must have caused him to forget it. That 
 is the slightest explanation of it. There are the chits signed in 
 his own hand and the account properly made up. The defendant's 
 claim is therefore fully allowed. In respect of plaintiff's claim 
 for damages for the retention of his clothes, &c, he must of 
 course be non-suited. There is no evidence whatever that Mr. 
 Hansen ever detained the certificate in any shape or form, and 
 the plaintiff must be non-suited in his claim for damages. 
 It seems to me that in his being allowed to sue as a pauper, 
 a perversion of the practice of the Court and the purpose of the 
 provision has been committed- He may not be able to pay now 
 but he may at some future time. The usual costs will be allowed. 
 
 Pobd, J. 
 
 1883. 
 
 Wyndham 
 
 v. 
 Hansen. 
 
 GLUTTON v. McGILLEVEAY. 
 
 The presumption that an agent has communicated his knowledge of certain facts, 
 to his principal, is rebutted, if in such transaction, the agent is committing a fraud, 
 which makes concealment of such facts from his principal, necessary. 
 
 Where therefore one and the same person was employed by both plaintiff and de- 
 fendant as a scrivener to invest their monies and prepare the necessary papers for them, 
 and the agent having got possession of the title deeds from the defendant, the first 
 mortgagee thereof, in disobedience to the express instructions of his principal, [the de- 
 fendant] to take a remortgage of such property— went with the said deeds to the plain- 
 tiff, and obtained a loan from him, on the mortgage of such property, as a first mort- 
 gage, but never, in fact, communicated to the plaintiff, the existence of the defendant's 
 mortgage, and never returned to the defendant's mortgagor, his mortgage bond, or paid 
 the defendant the amount, he [the agent had received thereon, but appropriated the 
 monies obtained on the mortgage from the plaintiff, and also made false entries in his 
 
 Pbnano. 
 
 Wood J., 
 1883. 
 
 June 29. 
 
620 
 
 CIVIL OASES. 
 
 Wood J. 
 1883. 
 
 CLT7TTON 
 
 V. 
 
 McGrlLLE- 
 
 VBAT. 
 
 accounts with the defendant, of such'a re-mortgage to him of the same property, but i#xJl 
 some fictitious person, •"- 
 
 Held, that Kennedy v. Green, 3 M. & K. 699, applied, and the knowledge of the 
 agent could not be imputed to the plaintiff, so as to affect him with implied or construc- 
 tive notice ; and he was therefore entitled to the possession of the title deeds as againsj; 
 the defendant, the first mortgagee. 
 
 This was an action to recover possession of title deeds. It 
 appeared that the land and deeds belonged to one Goh Ah Chong, 
 who had mortgaged them, .through one Abdul Majid, to the defend- 
 ant some time previous to this action ; that the said Goh Ah Chong 
 had arranged with a third party for the sale of the property to him, 
 and had been to the said Abdul Majid about it ; that Abdul Majid 
 communicated the fact to the defendant, who handed the deeds to 
 him [Abdul Majid] , in order to receive the amount due on the 
 mortgage, and after the conveyance of the land by Goh Ah Chong 
 to the purchaser, to take a re-mortgage of such lands from such 
 purchaser; that Abdul Majid, — who had always acted for the 
 defendant in investing his monies/ calling in the same, collecting 
 his interest, and the like — accordingly received the title deeds 
 from the defendant for that purpose ; that after getting the deeds 
 he got the said Goh Ah Chong to convey the land to the purchaser, 
 and took the purchaser to the plaintiff, and obtained of the 
 plaintiff, for such purchaser, a loan of $250 on the mortgage of 
 such lands, in order to enable him to pay the purchase money 
 therefor ; that the plaintiff also frequently had employed the said 
 Abdul Majid to obtain investments for him, and to draw the neces- 
 sary papers : the title of the property offered in mortgage how- 
 ever, was always investigated by the plaintiff [who was a Solicitor] 
 personally ; that the plaintiff after examining the deeds in ques^ 
 tion, accepted a mortgage of the said lands, and gave a cheque 
 payable, as customary, to the said Abdul Majid, and then, also, as 
 customary, handed the title deeds back to the said Abdul Ma'iid 
 to enable him to have the conveyance from the said Goh Ah Chong 
 to the purchaser, registered in the Land Office ; that the said Abdul 
 Majid cashed the cheque, but it did not clearly appear what he 
 did with the money, except that he represented to the defendant's 
 mortgagor, the said Goh Ah Chong, that his mortgage to the de- 
 fendant had been satisfied ; he did not, however, return him his 
 mortgage bond, but promised to do this at some future time • that 
 the defendant never received the money from Abdul Maiicl nor 
 any other bond or deeds ; that the said Abdul Majid took on be 
 half of the plaintiff, the deeds to the Land Office to be registered 
 as aforesaid, leaving however, with the plaintiff, the mortgao-e 
 bond from the purchaser to him; that before these deeds could be 
 . registered the said Abdul Majid died, and one Hassan Kudus was 
 employed by the defendant to look up his papers, and trace among 
 other things, his mortgage bond and title deeds aforesaid ; that 
 the said Hassan Kudus accordingly did this, and found the title 
 deeds aforesaid m the Land Office; and these, together with the 
 conveyance from the said Goh Ah Chong to the purchaser, he took 
 away and handed to the defendant. It was for this detention bv 
 the defendant of these deeds, that the plaintiff now sued AmnZ 
 the papers and accounts of the said Abdul Majid, after his death 
 
STRAITS SETTLEMENTS. 
 
 621 
 
 were found, by the aaid. Hassan Kudus, the original mortgage 
 bond from Goh Ah Chong to the defendant uncancelled; also 
 another mortgage bond of the same property, purporting to be 
 from some unknown person, to the defendant ; and in the ledger, 
 he kept for the defendant, an entry of this unknown mortgage to 
 the defendant, for the sum formerly advanced to Goh Ah Chong 
 by the defendant, on the same property, was also found. This 
 entry, it was clear, was a false one, as the property never belonged 
 to such alleged mortgagor ; was in fact, on the date of the said 
 entry, conveyed by the said Goh Ah Chong to the purchaser afore- 
 said, and by him mortgaged to the plaintiff as already stated ; no 
 traces of this unknown mortgagor, could be found. The question 
 was, who was entitled in priority, to the possession of these deeds, 
 and this depended on whether the plaintiff had, or had not, notice 
 of the defendant's mortgage. The plaintiff had no actual notice 
 of it, nor had the said Abdul Majid, in fact, communicated such 
 knowledge to him. 
 
 Thomas, for defendant contended, that as Abdul Majid was 
 agent of the plaintiff, as well as of the defendant, his [Majid's] 
 knowledge/ must be taken to be that of the plaintiff; so that the 
 plaintiff had constructive or implied notice of the defendant's 
 mortgage, and so must be postponed to the defendant. 
 
 E. W. Presgrave, for the plaintiff contended, that on the facts, 
 the defendant must, as against the plaintiff, be taken to have 
 been paid off, as Majid, his agent, had actually received the 
 money — that Majid was in fact, the defendant's general agent. 
 Ghitty on Contracts, [11th ed.] 198 ; Story on Agency [8th ed.] 
 58-60 ; 73-97 ; 126-127 ; — that Majid was committing a fraud, 
 
 ss 
 
 and the presumption of his having communicated to the plaintiff, 
 the existence of the defendant's mortgage, was therefore rebutted. 
 Kennedy v. Green, 3 M. & K. 699 ; Eolland v. Hart, 6 L. R. Ch. 
 App. 678 ; Esten v. Pemberton, 3 De Gex & J. 547 ; Perry Herrick 
 v. Attwood, 25 Beav. 205 ; on appl. 29 L. J. Ch. [N. S.] 121 ; Bice 
 v. Bice, 23 L. J. Ch. [N. S.] 289 ; Clerk v. Palmer, 21 L. R. Ch. Div. 
 124; Cave v. Cave, 15 L. R. Ch. Div. 637 ; Atterbury v. Wallis, 8 
 De G. M. & G. 454; Re European Bank, 5 L. R. Ch. Ap. 358; 
 Hewette v. Loosemore, 9 Hare, 449, 451, 455 ; Rettleworthv. Watson, 
 21 L. R. Ch. Div. 685, 704-7;— that Majid, in fact, was agent of 
 plaintiff for only a limited purpose — it was no part of his duty to 
 investigate the title for plaintiff, this the plaintiff personally did, 
 and it was not therefore incumbent on him to disclose the existence 
 of defendant's mortgage. Wylie v. Pollen, 32 L. J. Ch. [N. S.] 
 782 ; — that the defendant having parted with his deeds to Abdul 
 Majid and the mortgagor Goh Ah Chong, and put it in their power 
 to commit'the fraud, could not claim priority against the plaintiff, 
 who was a purchaser for value, without notice. Layard v. Maude, 
 4 L. R. Eq. 397 ; Briggs v. Jones, 10 L. R. Eq. 92. 
 
 Thomas in reply contended, that the only point was whether 
 Kennedy v. Green applied— that the circumstances of the case 
 must be looked at, as they governed the case — that there was no 
 such fraud here, as made concealment from the plaintiff, by 
 Majid, of the defendant's mortgage, absolutely necessary, and 
 
 Wood, J. 
 1883. 
 
 Cluttow 
 v. 
 
 McGlLLK- 
 VBAY. 
 
622 
 
 CIVIL OASES. 
 
 Wood, J. 
 
 1883 
 
 Clutton 
 v. 
 
 McGlLLE- 
 VBAT. 
 
 ,.,,.,..,„,, v. Wallis [supra], Hawatte v. Loosemore [supra], and 
 Thompson v. Cartwright, 33 Beav. 174, applied. 
 
 foodL J. I am of opinion that the case of Kennedy y.Orem 
 applies. I hold, as matter of fact, that in this case Abdul Majid, 
 in disobeying the orders of Mr. McGillevray m obtaining the 
 $250 from Mr. Clutton, and his subsequent non-payment to Mr. 
 McGillevray, and false entries as to facts, viz, the existence of a 
 mortgage to Mr. McGillevray, shew fraud ah miho, and a conse- 
 quent reason for non-disclosure of the facts of the case, tw., his 
 possession of the deeds in trust, to obtain a re-mortgage in i tavor 
 of Mr. McGillevray, which, as a fact, it may consequently be 
 inferred he did not communicate, and so Kennedy v. Green applies. 
 On the ground therefore that Mr. Clutton is a purchaser, pro tanto 
 [viz. a mortgage] for value, without notice, I hold him entitled to 
 judgment for the recovery of the deeds he seeks possession of. 
 
 Judgment for Plaintiff. 
 
 July 25. Presgrave, on behalf of the plaintiff, mentioned, 
 that the judgment had been given for the plaintiff for the 
 possession of the deeds on the point that he had no notice ; but as 
 it was possible the plaintiff would be paid up, or would realize 
 more than his claim,— a question would arise as to whether the 
 defendant, or the mortgagor, was entitled to the deeds or surplus : 
 he therefore asked, that the Court would decide whether the 
 plaintiff was only a prior, or the sole mortgagee of the land— in 
 fact whether Mr. Mc GUlevray had, on the facts, been paid off. 
 
 Thomas for defendant, did not oppose this application. 
 
 Wood, J. declined to add to his former judgment, leaving the 
 parties to settle this right inter se. should a case arise. 
 
 POOTOO v. VALEE UTA TAVEN & ANOE. 
 POOTOO v. VALEE UTA TAVEN. 
 
 Penano. 
 
 Wood, J. 
 1883. 
 
 July 11. 
 
 According to Hindoo Law, a wife's property, real and personal, is her separate 
 property. 
 
 A Hindoo man and woman, intermarried according to Hindoo Law and oustom ; 
 the wife at the time possessing some personalty, and during the coverture, acquiring 
 realty from her relatives. 
 
 Held, the parties must be taken to have contracted on the footing of the Hindoo 
 Law, and that both the personalty and realty were hers, subjeot to being taken posses- 
 sion of by the husband, under stress of circumstances only. 
 
 Hawah v. Baud, Straits Law Reports, p. 253, followed : 
 
 The husband in such a case, acquires no interest in such property except as trustee 
 for his wife ; and for breach of his duty in that respect, he might be sued, and this 
 Court will respect the wife's rights, although there is no marriage settlement. 
 
 The wife has such a right of action against her husband, "whether she be divorced 
 or not ; and in a pauper case, is at liberty herself to sue, without the intervention of a 
 next friend. 
 
 These were two suits in forma pauperis, by a wife against her 
 husband. The first of these suits was brought to recover $800 
 the balance of $1,000, the purchase money of certain lands former- 
 ly belonging to the plaintiff [the wife] , and her brothers, and 
 
STRAITS SETTLEMENTS. 623 
 
 which the husband [the defendant Valee Uta Taven] had, during WooB ' J< 
 the coverture, jointly, with the plaintiff's brothers and the plain- l ^t 
 tiff, sold to the other defendant [in the first suit] for that sum ; Pooroo 
 or to have it declared that the plaintiff had a lien on the land for 
 the unpaid balance of purchase money. This property had come V t^ n U & a 
 to them by the death of their brother. The plaintiff's one-third ANO b. 
 share of this sum, viz., $333.33 had been taken by the defendant 
 Valee Uta Taven to his own use. The second action was to re- 
 cover $200, the value of jewellery of the plaintiff, also taken 
 possession of by the defendant, the husband, and sold, and the 
 proceeds appropriated by him. It appeared that at the time the 
 land was sold, the plaintiff though married, was a minor ; but 
 $1,000 was a fair value for the land in question. The plaintiff and 
 her husband were Hindoos, and after living peaceably for several 
 years, eventually separated [without a divorce] in consequence of 
 quarrels arising out of the defendant's aforesaid acts. Evidence \ 
 was given of the Hindoo Law, shewing that the wife's property j 
 real or personal, was her own ; but in stress of circumstances, the 
 husband had a right to take possession of same, and deal with it \ 
 as his own, without being liable to his wife therefor. 
 
 Kershaw for the plaintiff referred to Cowel's Indian Digest, 
 p. 709, Ramsawmy Padiachee v. Padiachee, in support of the 
 proposition, that there is no foundation in Hindoo Law, for hold- 
 ing that a husband had any right to property acquired by the 
 wife during eoverture. 
 
 Glutton for the defendant contended, that as regarded the 
 land, the lex loci, the English Law, should govern the case, and as 
 there had been no marriage settlement, the husband was not 
 liable : he also contended, that even if it were otherwise, she had 
 no right of action until divorced, and then she should have sued 
 by a next friend and not herself — section 3, Ordinance 5 of 1878. 
 
 Wood, J. I hold as a fact, that the plaintiff was possessed of 
 certain jewellery of the value of $150 at the time of her marriage, 
 which jewels the defendant has converted to his own use, with- 
 out the plaintiff's consent. I also hold as a fact, that the defend- 
 ant has converted to his own use, but with the consent of the 
 plaintiff, a one-third share of the plaintiff, in the land which 
 came to her through the death of her brother ; but has not ac- 
 counted for more than $200, thereof, leaving a balance of $133.33. 
 I also hold as a fact, that though the woman was a minor at the 
 time of the sale, yet this portion of her property was sold to her 
 advantage. Lastly, I hold as a fact, that according to Hindoo 
 Law, the jewels and the land, were the wife's separate property. 
 On these facts, I am of opinion that the parties being Hindoos, 
 and married under Hindoo Law or Madrassee custom and law, it 
 must be taken to have been understood between them, as matter of 
 agreement, that the wife's jewellery, as well as land, should be 
 hers, — only subject to being taken possession of by the husband,, 
 under stress of circumstances, which has not arisen here — and 
 following Hawah v. Baud, Straits Law Reports, p. 253-5, 1 hold, 
 as matter of law, that the defendant never acquired, except as 
 trustee for his wife, any interest in her property real or personal. 
 
CIVIL OASES 
 
 Wood, J. 
 1883. 
 
 POOTOO 
 V. 
 
 Value TTta 
 Taven & 
 
 The husband may therefore be sued for breach of his duty in that 
 respect, and the Court will respect the woman's rights m such a 
 case, although there may be no marriage settlement. As regards 
 the other objections taken, I hold as matter of law, that the wife 
 has this right of action against her husband whether separated 
 from him or not; and in a pauper case, she is at liberty herself to 
 sue her husband, without the intervention of a next friend. Pro- 
 perly she ought to have so sued ; but this is a matter of detail and 
 not material for the protection of the defendant against costs. 
 There will, therefore, be judgment for the plaintiff for f 283. 33, in 
 both the actions. 
 
 KYSHE v. IMJHE NAP PENDEK & OES. 
 
 Penang, The defendants had obtained permission of one Sheriffa Zoharra, to build 
 
 houses on certain lands belonging to her deceased father, of whose estate she 
 
 Wood. J. afterwards became administratrix. The defendants, in pursuance -of such per- 
 
 1883. mission, erected their houses on such land, and continued to reside there for a 
 
 great many years beyond the statutory limit prescribed by the Limitation Act XIV 
 
 July 11. f X859, without paying rent for such their holdings. When applied to by the 
 
 executor of one Syed Abdulrahnaan, who, in his lifetime was the executor of the 
 father of the said Sheriffa Zoharra— after the statutory period aforesaid — they 
 refused to pay rent to him ; they did not then however claim the land as their own, 
 but set up their holding under the said Sheriffa Zoharra. Sheriffa Zoharra subse- 
 quently got administration to her said deceased father's estate, and sometime 
 thereafter, herself applied to the Ecclesiastical Court that the Letters to her might 
 be revoked, and granted to the plaintiff : the plaintiff thus became the adminis- 
 trator of the estate, of the said deceased father. The said Sheriffa Zoharra, as 
 such administratrix, [before the revocation of her letters] demanded, as such, 
 rent of the defendants ; they refused to pay her, and then, disclaimed holding under 
 her. The plaintiff, on being appointed administrator as aforesaid, and within the 
 statutory limit after such disclaimer, thereupon brought this ejectment against 
 the defendants, to recover possession of the respective portions on which their 
 houses stood. It was objected by the defendants, at the trial, that as they had 
 been over 12 years in possession adversely to the executor of the executor of the 
 said deceased father, and now this action being brought by the plaintiff, as the 
 administrator of such deceased, — the plaintiff was barred by the Act of Limitation 
 XIV of 1859, sec. I, cl. 12 : it was admitted that if Sheriffa- Zoharra had sued, the 
 defendants would have been estopped from disputing her title, but, as she had not 
 transferred her right to the plaintiff, nor sued herself, the plaintiff could not avail 
 himself thereof. 
 
 Held, that as, if the said Sheriffa Zoharra had sued, she would, equally with the 
 plaintiff, have been a. trustee for the next-of-kin of the deceased — and the Ordi- 
 nance iV of 1878, obliges the Court to deal with real and not technical rights — the 
 objection could not be allowed, and the plaintiff was entitled, to recover. On 
 appeal, this judgment was affirmed. 
 
 The fact that Sheriffa Zoharra had not legally transferred her right to the 
 plaintiff, or that the plaintiff was suing in his own name, was immaterial. 
 
 If there was anything in the objection, the Court would, under sections . 105, 
 123 and 126 of Ordinance V of 1878, have allowed the plaintiff to amend the title 
 of his suit by substituting the said Sheriffa Zoharra, as nominal plaintiff and 
 that without terms. 
 
 SembU. The Court of Appeal has power to allow or direct an amendment in 
 the title of a suit. 
 
 This was an action of ejectment brought to recover possession 
 of a piece of land on which the defendants, along with several 
 others, had their houses. The facts in the case, and arguments of 
 Counsel, are fully set out in the judgment. The case was heard 
 on the 11th and 19th July and 21st August 1883. 
 
STRAITS SETTLEMENTS. 
 
 625 
 
 Thomas for defendants referred to Doe de Parker v. Gregory, 
 2 Ad. & Ell. 14; Hall v. Doe de Sartees, 5 B. & Aid. 687; 
 Doe de Golclough v. Hulse, 3 B. & C. 757 ; Doe de Souter v. Hall, 
 2 Dowl & By. 38; Doe de Smith v. Pike, 3 B. & Ad. 738; 
 Doe de Boffy v. Harrow, 3 Ad & Ellis 68 ; and Napean v. Doe, 
 2 Smith L. C. p. 476 [5th edJ] and notes thereto. 
 
 Van Someren for plaintiff, referred to Rhadabhai v. Shama, 
 4 Bom. High Court Beport, Appellate cases p. 55 ; Ameeran v. 
 Ghe Meh, Penang, July 1878, Court of Appeal, February 1879, [a] ; 
 Logan v. Heoh Ah Tan, Court of Appeal, May 1882 [&]. He con- 
 tended that, if necessary, the Court would allow the plaintiff to 
 amend, by substituting Sheriffa Zoharra as plaintiff, for the 
 present plaintiff, and referred to Ordinance V. of 1878 sections 105, 
 123 and 126, and to Long v v Orossley, 13 L. R. Ch. Div. 388 ; and 
 Ruston v. Eolin, 49 L. J. Ch. [N. S.] 262. 
 
 Cur. Adv. Vult. 
 
 Wood, J. 
 1883. 
 
 Ktshe 
 
 v. 
 
 Incbe Nap 
 
 Pendek 
 
 & OES. 
 
 September 11. Wood, J. In this, a suit brought by the 
 plaintiff, as administrator of the estate of Tunku Syed Hussein, 
 to recover from the defendants possession of four several parcels 
 of land, by permission of the parties, and mainly to save expense 
 by obviating the necessity of transcribing a large body of notes, 
 should the matter come before the Supreme ' Court on appeal, I 
 state the points of fact either found by me, or admitted by the 
 parties, in order that the points of law should be more clearly 
 developed, with a view to their discussion before me, and their 
 subsequent discussion, if the parties require it, before the Court 
 of Appeal. 
 
 The undisputed facts are as follows : — 
 
 Syed Sheriff Tunku Syed Hussein deceased, who died in 1823, 
 by his Will, appointed Syed Abdulrahman and others, his execu- 
 tors. 
 
 By this Will he devised certain lands on which a Mosque was 
 built for Whakoff or charitable purposes. 
 
 Syed Abdulrahman was the survivor of the executors named 
 in the Will and has since died. 
 
 Syed Abdulrahman during his life time, and as such surviv- 
 ing executor, conveyed the lands devised to charitable purposes, 
 together with three others adjoining, which comprise the land 
 which is the subject-matter of this suit, to Whakoff or charitable 
 purposes — but in 1879, the Supreme Court of the Straits Settle- 
 ments, — in an action brought to settle the point between the exe- 
 cutor of Syed Abdulrahman, and the administratrix de bonis non 
 of Tunku Syed Hussein, — decreed that Syed Abdulrahman as such 
 executor of Tunku Syed Hussein, had no authority to create trust 
 estates in, among others, the lands now in dispute, or to convey 
 the same to Whakoff or charitable purposes, and by such decision 
 left the Will to operate upon, among others, the lands in question, 
 [a] ante p. 439, [6] mte p. 514. 
 
626 CIVIL OASES, 
 
 Wood, J. F or many years previous to the date of this decree or jujg- 
 
 ^ meat of the Supreme Court, and long before the period of lmuta- 
 Ktui tion, which period of limitation is 12 years before the commence- 
 ment of this suit,— the defendants, or their predecessors m title, 
 Inche Nij had erected houses on the several pieces of land in question in this 
 oes action, and on its several parcel of land, and sometime about the 
 vear 1867— more than 12 years before the commencement ot this 
 action— Shaik Abdul Gunny, then executor of Syed Abdulrahman 
 and representative of Syed Hussein, had demanded ot the deiend- 
 ants respectively, rent for the land they occupied, which they 
 declined to pay. Subsequently Sheriffa Zoharra, the only surviv- 
 ing daughter of Syed Hussein, obtained Letters of Administra- 
 tion de bonis non with the Will annexed to the estate of Syed 
 Hussein— which were on her application revoked and the present 
 plaintiff, the Acting Registrar of the Supreme Court, appointed 
 administrator, &c, in her place, and at her request. 
 So far the parties are agreed on the facts. 
 On the trial before me, it was proved to my satisfac- 
 tion. 
 
 1st.— As to Inche Nap Pendek, the 1st defendant, that she 
 erected her house on the land with the permission and consent of 
 Sheriffa Zoharra. 
 
 2nd. — As to Inche Kombe, the 2nd defendant, I find that she 
 purchased the house she now resides in, of Syed Zeign, and subse- 
 quently by permission of Sheriffa Zoharra, resided in her 
 house. 
 
 3rd. — As to Syed Abdullah, the 3rd defendant, I find that 
 Syed Abdullah's father, Karim, obtained permission of Sheriffa 
 Zoharra to live in the house now occupied by Syed Abdullah, and 
 to whom it descended as one of the children of Karim. 
 
 4th. — As to Merican, the 4th defendant, I find that Hamid, 
 to whom Merican was the adopted son, obtained direct permission 
 from Sheriffa Zoharra to erect and build their present house on 
 the land. 
 
 As to all the defendants I find, that they or their predeces- 
 sors in title, so obtained permission of Sheriffa Zoharra, — who had 
 at the time no right in law to the ownership of the property in 
 dispute, — to build or occupy under the belief that the land was 
 Whakoff land, and the gift of Syed Hussein, of whom Sheriffa 
 Zoharra was the only surviving child, and that they did so in con- 
 formity with, and consistently with what I find to be Mahomedan 
 feeling, viz., that in the occupation of Whakoff land of the gift of 
 a certain settler — the permission of the representative, or appa- 
 rent representative of such settler, is a permission proper and usual 
 to be obtained, as a thing complimentary and customary. It is a 
 fact in the case, admitted by the parties, that about the year 1867, 
 Shaik Abdul Gunny, then executor of the surviving executor of 
 Syed Hussein, demanded rent of the defendants, which they 
 refused to pay, but I find, as an additional fact, that they did so, 
 alleging as a reason for non-payment, the permission obtained by 
 each of them, or their predecessors in title, of Sheriffa Zoharra to 
 build or occupy their respective houses— and not that they claimed 
 
STRAITS SETTLEMENTS. 
 
 627 
 
 as having an independent right to the several parcels of land occu- 
 pied by them, which fact Sheriffa Zoharra knew. 
 
 I find further, as matter of fact, that after the decision of 
 this Court, that the lands in question were not Whakoff land, 
 Sheriffa Zoharra who was at that time administratrix of the estate 
 of Syed Hussein, gave notice to each of the defendants, to pay 
 rent and attorn to her, which notice was not however complied 
 with, but on the contrary thereof, the several defendants disclaim- 
 ed, and Mr. Eyshe, the Acting Eegistrar of the Court, being now 
 the administrator of the estate of Syed Hussein, brings this action, 
 in the interests of the next-of-kin of Syed Hussein, — and upon 
 these facts the case then came up for argument before me on 
 points of law. 
 
 At this hearing, Mr. Van Someren relied on the general doc- 
 trine of estoppel as between lessor and lessee, or it may be, as 
 between licensor and licensee, — and inasmuch as the four defend- 
 ants, or their predecessors in title, had entered into possession 
 under the license, or as tenants at will of Sheriffa Zoharra, and 
 had disclaimed on her demanding rent or attornment, they had 
 no valid defence in a suit brought by the present administrator, 
 who represents the estate of Syed Hussein, for the recovery of the 
 land in question — and he cited, in addition to the general authori- 
 ties applicable to the law of the case, two cases tried before me, 
 of Ameeran, Executor, &c, v. Che Meh, [a] and Logan v. Heoh Ah 
 Tan [&]. 
 
 Mr. Thomas contended, that the possession of the defendants 
 had been for over 12 years before the commencement of the suit, 
 adverse to the executor or administrator for the time being of the 
 estate of Syed Hussein, and that now the action being brought by 
 the administrator for the time being, the cause of action had in 
 point of fact accrued more than 12 years ago, and so was barred 
 by the Statute of Limitations. That if Sheriffa Zoharra had sued 
 in her own right, the defendants might have been estopped from 
 disputing her title, but she has not transferred her right, nor does 
 she herself sue, and so the plaintiff has no case. 
 
 • This latter view of the question as it appears to me is unreal 
 and unsound. The defendants never, so far as I see, have held 
 adversely to those representing the estate. When pressed by a 
 certaiu executor, Shaik Abdul Gunny, to pay rent, they set up no 
 title of their own ; but alleged, what was in fact true, that they 
 had held their land by the consent, and with the license, of Sheriffa 
 Zoharra, whom they assumed to be a person justified, as being of 
 the kin of the founder, to give them that permission, and who had 
 assumed and been allowed to act, in conformity with Mahomedan 
 custom in Whakoff or charity lands, as a representative of the 
 owners in fee — and with this view of the case, it may be assumed, 
 the executor for the time being, coincided. If . Sheriffa Zoharra 
 had been the nominal plaintiff, the defendants would have had, as 
 it appears to me, no shadow of a defence, and the slight show of 
 defence which this case presents, in my judgment, amounts to 
 nothing. Sheriffa. Zoharra, had she been the nominal plaintiff, 
 
 [a] ante p. 429. [6] ante p. 514. 
 
 Wood J. 
 1883. 
 
 Ktshe 
 
 v. 
 
 Inche Nap 
 
 Pbndek 
 
 & ORB. 
 
628 Omti OASES. 
 
 Shxjmaybs, would have been, equally with the present plaintiff, the trustee of 
 
 „ °- J - the next-of-kin of the testator, Syed Hussein ; and the Ordinance 
 
 & IjJ IV. of 1878,— though it maybe difficult to point out with preci- 
 
 Wood i " ' sion the exact section which would enable the Court to do so,— 
 
 1883. obliges it to deal with real, and not technical rights. In this case, 
 
 Kot I !<>ok upon the fact of any transfer by Sheriffa Zoharra of her 
 
 •«. right of action— if such it can be called— immaterial ; or the tact 
 
 Inchb Nap that the administrator sues not in her name, but in his own. I 
 
 Pendek & ghould haye allowed the plaintiff to have amended the title of his 
 
 suit, by substituting for his own name, the name of a nominal 
 
 plaintiff, Sheriffa Zoharra, and that without terms. The whole 
 
 case has been tried on its merits, viz., license or no license from 
 
 Sheriffa Zoharra, and the exact name of the plaintiff,— who is 
 
 himself a trustee for others, via., the next-of-kin, — is a matter 
 
 immaterial to the real object of the suit, or the interests of the 
 
 defendants, 
 
 Judgment for the plaintiff with costs. 
 
 The defendants appealed against this decision. 
 
 27th February, 1885. The appeal now came on for hearing 
 before the Full Court of Appeal consisting of Sidgreaves, G. J., 
 Ford and Wood J. J. 
 
 Ross, [Acting Solicitor-General,] [Thomas with him] for 
 the appellants, contended, that in insisting on their objection 
 to the title of the plaintiff, the defendants were not disputing 
 the title of Sheriffa Zoharra, but the reverse. They might 
 have been estopped from disputing her title, had she 
 sued ; but the plaintiff was a stranger to them, and they 
 were not estopped from disputing his. There was no privity 
 of estate between the plaintiff and Sheriffa Zoharra, as one 
 was but an administrator who succeeded the other. Clarke 
 v. Grundy, 14 East 488. Administrators were but officers 
 of the Ordinary, and there was no devolution of interest or estate, 
 from one to the other. The character of Sheriffa Zoharra, by 
 virtue of which she claimed to let the defendants into possession, 
 had been changed ; and any estoppel that might have been held 
 between the defendants and. her in the former capacity, did not 
 hold under the altered circumstance. The act of the defendants, 
 was not a disclaimer, and their tenancy or license, was still sub- 
 sisting and undetermined. 
 
 • Van Someren for respondent was not called on. 
 
 Sidgreaves, C. J. This seems to me a very clear case. The 
 Court below has found the defendants entered by permission of 
 Sheriffa Zoharra; there was, therefore, as between them, an 
 estate by estoppel, as between a licensor and licensee. The defend- 
 ants were let in by Sheriffa Zoharra under a claim of right, but 
 whether such claim be well founded or not is quite immaterial-^it 
 
STRAITS SETTLEMENTS. 
 
 62$ 
 
 1S83. 
 Ktshe 
 
 V. 
 
 Inchb Nap 
 
 Pendek & 
 
 cms. 
 
 is good as against them. Apart from her license, they had no Sidgreaveb, 
 right 4;o be on the land, and indeed they seem to have so admitted, FoE £\ J ' 
 for when Hajee Abdul Gunny demanded rent of them, they based & [ j. j. 
 their right to remain on the land only on the license they had Wood 
 obtained from her. It makes no difference to the defendants, 
 whether the estate held or claimed to be held by Sheriffa Zoharra, 
 at the time she gave them permission as stated, — is an estate 
 under different trusts from that which she afterwards held, or 
 now holds. She gave them such permission under the idea the 
 lands were Whakoff lands ; but after the judgment of the Court in 
 1879, that they were not Whakoff, these lands fell into the general 
 estate of the testator Tunku Syed. Hussain. Sheriffa Zoharra was 
 then the administratrix [with the Will annexed] of this estate, but 
 for convenience sake, this Court thought it better, on her applica- 
 tion, to appoint the present plaintiff, the acting Registrar then, 
 administrator in her place. To say that this step should debar 
 the recovery of these lands, after the defendants had disclaimed 
 the title under which they had hitherto held, would be to frus- 
 trate the very object of the Court in granting such administra- 
 tion to the present plaintiff. The plaintiff here is, to all intents 
 and purposes, but the agent of Sheriffa Zoharra, and all others 
 interested in the general estate of the testator, then facit per 
 alium facit per se. I am of opinion, therefore, the fact that 
 Mr. Kyshe is plaintiff here, and not Sheriffa Zoharra, is quite 
 immaterial, and the judgment of the Court below should be 
 affirmed, and this appeal dismissed with costs. 
 
 Ford, J. I concur. The only semblance of defence on the 
 part of the appellants is, that plaintiff is i not privy in estate to 
 Sheriffa Zoharra. He was however in truth, a trustee for her, 
 and she was the principal beneficiary in the testator's estate. 
 Under all the circumstances of this case, I hold there was 
 sufficient privity of estate between them, — but if there was not, we 
 shall give leave to the plaintiff to add Sheriffa Zoharra as a 
 co-plaintiff, and there would be an end to the defendants' case. 
 
 Wood, J. I adhere to the opinion I expressed below. As to 
 the objection that the defendants' act was not a disclaimer, Jones 
 v. Mills, 10 Com. B. [N. S.] 788, s. c. 31 L. J. C. P. [N, S] 66, is an 
 authority to shew it is. I look on the defendants as very ungrate- 
 ful people, who were, — as an act of kindness on the part of Sheriffa 
 Zoharra, — let in to reside on this land, but now seek to keep pos- 
 session of it as against her. I am glad to .find wrong set right by 
 the judgment of this Court. 
 
 Judgment affirmed. Appeal dismissed with costs. 
 
 NELLIGAN v. WEMYSS & ANOE. 
 
 A belief founded on the information of a credible witness, of facts imputing 6fr Penang. 
 
 guilt to another, is sufficient, reasonable and probable cause for a prosecution of 
 
 such other on a criminal charge j but that must be a belief which would be enter- Wood, J. 
 
 tainod by a reasonable and discreet mind. > 1883, 
 
 "Where, therefore, the defendant, acting on the belief, as he alleged, of certain 
 
 information given him by his servants — natives of the servile class, and one of July 13, 
 whom had been previously convicted of theft [and whose information the Court 
 
630 
 
 CIVIL CASES. 
 
 Wood J. was satisfied was entirely false] wrote to the plaintiff, threatening to prosecute 
 1S83. him for theft, unless he returnee 1 two geese which the defendant [on the infor- 
 
 mation of his servants] claimed to be his,— or producing, within a given time, 
 
 Nelligan evidence of their not being his [defendants'] property — and in reply, received a 
 v. letter from the plaintiff, denying the truth of the information given by the 
 
 Wemtss & servants, — claiming the geese — offering to call the man from whom he purchased 
 anob. the birds — and warning the defendant of the consequences of carrying out his 
 threat, and in return stating the defendant was liable to be prosecuted for defa- 
 mation, and the defendant, being irritated at this, did not wait till the time 
 appointed, or call on the plaintiff, but went off and procured [in spite of further 
 warnings, by the magistrate's clerk, based on the plaintiff's known character and 
 position,] a warrant from the magistrate, on which the plaintiff was taken into 
 custody ; and thereafter charged the plaintiff before the magistrate, with being in 
 possession of stolen property, and obtained a remand, but at the adjourned hearing, 
 withdrew the charge without offering any evidence in support thereof, 
 
 Held, that the circumstances of the case were not such as should have actuated 
 a reasonable and discreet mind to have acted on the information of the servants — 
 that the case as a whole, shewed there was a want of reasonable and probable cause, 
 and actual malice, — and the defendant was liable in damages. On Appeal this 
 decision was affirmed. 
 
 Ferryman v. Lister, 4 L. E. Eng. & Ir. Ap. 521, distinguished. 
 
 This was an action to recover $500, damages for a malicious 
 prosecution. The plain tiff, early during the year had purchased 
 4 geese — one a white pair, and the other, black and white : the 
 black and white pair were lost the same day the plaintiff bought 
 them, in consequence of which, the white pair were kept by the 
 plaintiff pftmed up within a low bamboo fence, by the side - of 
 his house. On the 26th March, the defendant, who also owned a 
 a pair of white geese, lost his ; and on being informed by his 
 servants that his geese were ' in the plaintiff's compound, that he 
 had refused to allow them to see them though they had managed 
 to do so by stealth, that they had no doubt the defendant's lost geese 
 were in the plaintiff's possession, and that the plaintiff never, until 
 then, kept any geese — the defendant believed as he alleged, this ac- 
 count of his three servants, and on the 27th wrote a letter to the 
 plaintiff, threatening to prosecute him, unless he returned the 
 geese, or produced evidence, by ten o'clock the following morn- 
 ing, to prove they were not his [defendant's], this letter also 
 mentioned the servants, as the defendant's informants, and their 
 statement to him that he [the plaintiff] had refused them to see 
 and examine the birds. The letter concluded with a statement 
 that he the defendant, was determined " to put a stop to this 
 victimising of the Europeans bv natives, by punishing the 
 offenders." The plaintiff, in reply to this letter, wrote the 
 defendant stating, that his servants were telling him lies— that 
 they had been allowed to see and examine the birds— that 
 the birds were m fact his own [plaintiff's], and he could call the 
 man from whom he purchased them— that he, the plaintiff, 
 considered the concluding part of the defendant's letter most 
 insulting, and m his opinion, the defendant was liable to be 
 prosecuted for detamation, for practically charging him with theft 
 —the letter then concluded with a warning, that if the defendant 
 persisted m carrying out his threat of a prosecution, the matter 
 would not end there, as he [plaintiff], would hold him [the 
 defendant], liable m damages. The defendant was very much put 
 out on receipt of this letter, and after an interview with the 
 
STRAITS SETTLEMENTS. 
 
 63i 
 
 Superintendent of Police, he got his steward or butler, the 
 defendant Francis, to lay an information charging the plaintiff 
 with being in possession of stolen property, and praying for a 
 search warrant for the said geese. At the time this information 
 was being laid, the defendant was warned by the Chief Clerk to 
 the magistrate [Mr. Leicester] , who was then writing out the 
 information, of the seriousness of the step he was taking, and the 
 probable result of it, as the plaintiff was a man well known, and 
 of some position, and not likely to do what he, the defendant, 
 .charged him with. The defendant simply replied lie wanted his 
 geese. The defendant got the warrant — the plaintiff's premises 
 were entered and the geese Were taken possession of by the police, 
 and the plaintiff himself taken into custody and released on bail 
 to appear before the magistrate on the following day. On the 
 following day the defendant appeared, and charged the plaintiff 
 with being in possession of stolen property : he however obtained 
 a postponement of the case for a week. On the next day for 
 hearing, the defendant again appeared, along with counsel, and 
 withdrew the charge ; whereupon the plaintiff was discharged, 
 and the geese returned to him. It appeared at this trial, that 
 the defendant's servants, — viz., his butler, his waterman and syce 
 — were all natives of the lower class, and the butler had a few 
 years previously been convicted of theft and sentenced to two 
 years imprisonment. This latter fact the defendant swore he 
 w.is not aware of until this trial. These witnesses, among others, 
 were called by the defendant, but had considerable difficulty in 
 pointing out the marks by which they alleged they identified the 
 birds. The plaintiff proved his purchase of the geese, and his 
 possession of thein from January, to the date they were taken 
 away by the police : he also proved the marks by which the geese 
 were identified. The plaintiff denied the tale told by the defend- 
 ant's servants, and on the contrary stated, that he had allowed 
 them to examine the birds, and they said they were unable to 
 identify them. 
 
 Thomas for defendant contended, there was no proof of want 
 of reasonable and probable cause — the defendant had shewn he 
 had probable cause — he received information from his servants, 
 who he had hitherto found faithful, and believed — they informed 
 him how plaintiff denied having the geese, refused them inspec- 
 tion, and were all agreed as to the birds being actually his — that 
 the case in fact was concluded, by Perryman v. Lister, 4. L.E. Eng. 
 & Ir. Appeals, p. 521. 
 
 Van Someren for plaintiff contended, that there was no reason- 
 able and probable cause — the case cited was distinguishable, as 
 the facts here were quite different — the decision there was, that 
 there had been a misdirection, the Chief Baron having, in his 
 charge to the jury, lost sight of the interview spoken of by the 
 witnesses. He admitted that a belief founded on information of 
 a credible witness, of facts which imply guilt, was sufficient, 
 reasonable, and probable cause ; but that, he submitted, must be a 
 belief which should be entertained by a reasonable and discreet 
 mind. Here however, the facts were such that no reasonable man 
 
 Wood J. 
 1883. 
 
 Nelltgan 
 
 V. 
 
 WUMTBS 
 ANOB. 
 
 & 
 
632 
 
 CIVIL CASES. 
 
 C.J 
 Ford 
 
 jed ") 
 
 & (j.J 
 Wood, j 
 1883. 
 
 Nellisan 
 
 v. 
 Wbmtss & 
 
 ANOB. 
 
 Sidsbeaves, would have acted as the defendant had done — the plaintiff's posi- 
 tion, his reply to the defendant's letter, the unfortunate aptitude 
 of natives of the servile class, to state what was not true, and the 
 caution of. the Magistrate's clerk [Mr. Leicester] — ali shewed 
 want of that reasonable and probable cause which ought to have 
 operated on a reasonable mind. 
 
 Wood, J. after observing that the question of reasonable and 
 probable cause was a mixed question of law and fact — but was in 
 truth a question of fact to be decided .by the Judge and not a jury, 
 as questions of the sufficiency of proof of the loss of a document, 
 to admit secondary evidence and the like — held, as matter of fact, 
 there was no reasonable and probable cause which ought, under 
 the circumstances of this case, to have actuated a reasonable and 
 discreet mind to bring the criminal charge against the plaintiff. 
 He also held, as matter of fact, that the criminal charge was 
 brought with actual and positive malice, and vindictively defended 
 — and found a verdict for the plaintiff for the full damages 
 claimed — $500, and costs. 
 
 The defendant appealed from this decision. 
 
 2nd March, 1885. The appeal was now heard before the Full 
 Court of Appeal consisting of Sidgreaves, C. J., Ford and Wood, J. J. 
 
 Thomas, for Appellant contended that the defendant had 
 reasonable and probable cause for the prosecution, as he acted in 
 belief, as he had stated on oath, of the information given him by 
 his servants, who at that time he had no reason to disbelieve : 
 that the letter he wrote the plaintiff was nothing more than what 
 a. person bond fide believing in his servants' statements, and yet 
 vexed at the defendant's conduct, in concealing the birds, would 
 have done. He did not wish to justify his client's remarks in the 
 concluding portion of his letter, but submitted with all deference 
 that they did not shew any want of reasonable and probable cause. 
 He mainly relied on Perryman v. Lister [supra] and contended that, 
 that ease could not, in principle, be distinguished from the present. 
 
 Van Someren, for respondent was stopped by the Court. 
 
 Sidgreaves C. J. The case of Perryman v. Lister is quite 
 distinguishable from the present. It was there held, there had 
 been a misdirection on the part of the learned Chief Baron, in 
 laying down a hard and fast rule, that acting on hearsay evidence 
 alone, was evidence of a want of reasonable and probable cause. 
 The Lord Chancellor illustrates the inconvenience of such a rule 
 by putting a case where a person might be justified in so doing 
 after employing a Solicitor to enquire and obtain evidence and 
 afterwards acting on his information. The House of Lords merely 
 held the direction of the learned Judge was too sweeping and 
 likely to prove inconvenient in future cases. There is really 
 therefore no conflict between that case and this, in our holding 
 that in the present case there was no reasonable and probabli 
 cause. The learned Judge here has found that the appellant's 
 informants were unworthy of credit-now who were those in- 
 formants ? His household servants, who no doubt were well-known 
 to him. It is no excuse to the appellant to say he thought the 
 
STRAITS SETTLEMENTS. 
 
 633 
 
 1883. 
 
 Kelligan 
 
 Wemybs 
 
 ANOB. 
 
 & 
 
 A J' 
 
 could believe them. He must nave had ample opportunities of Sidgbeaves, 
 knowing them and their antecedents. If, having thus known Foo °' J 
 them, he had found them men of integrity and honesty, and was &. \ " .. x 
 himself honestly guided by their information, he might have been Wood 
 justified. The case would then resemble the case of Ferryman 
 v. Lister, — but here at the outset we find his principal informant, 
 the butler, was himself a convicted thief,^fand the information 
 given the appellant is entirely that of this butler and his staff. Ac- 
 cording to this man's own admission, there had been an altercation 
 between him and the respondent, a few months before, about the 
 loss of some geese belonging to the respondent. Suspicion strong- 
 ly attaches to this very servant and the appellant should have 
 hesitated before he acted. He knew who the respondent was, he 
 ought to have considered his character and position, to see if it 
 was a likely story that the servants had brought. He ought to 
 have gone and enquired of the respondent : that would have been 
 the conduct of an honest man in search of truth. Instead of that, 
 he writes the defendant a most improper letter, most threatening 
 in its tone and insulting in its language. The reply he gets is 
 just what an honest yet indignant man would have given ; it 
 denies, in the most indignant terms, the charge which the ap- 
 pellant had made, and points out the falsehood of the very servants, 
 the defendant says he received his information from, and 
 concludes by threatening proceedings should the appellant act on 
 their information. The appellant takes no notice of this letter. 
 He evidently gets annoyed at it, and goes straight away and 
 applies for a search warrant. The effect of such a step the ap- 
 pellant perfectly knew ; but he persisted in it. What was the 
 necessity for a warrant, why not have applied only for a summons ? 
 To say there was no evidence of a want of reasonable and probable 
 cause under the circumstances, is to outrage the sense of this 
 Court. In my opinion there was abundant evidence in the Court 
 below to shew the appellant acted not only, without reasonable 
 and probable cause, but also vindictively and maliciously — for 
 which he well deserves to pay. The judgment of the Court 
 below, in my opinion, should be affirmed, and this appeal dismissed 
 with costs. 
 
 Ford J. I entirely concur in the language and judgment of 
 the learned Chief-Justice. 
 
 Wood J. So do I. 
 
 Appeal Dismissed [a] 
 
 KHOO SEOE HAING v. KHOO WEE TEAM & ANOE. 
 
 Penang 
 
 Where there is a devise of property, coupled with a restraint against alienation, Wood, J. 
 
 the restraint alone is void, and not the whole devise. 1883. 
 
 A testator who died prior to 1S37, devised a house and monies to his daughters 
 
 as follows : " I give and hand over to my daughters, the house, &c., to live in Juty 25. 
 
 " together, it shall never be either mortgaged or sold, I give and 
 
 " hand over also to each of my daughters, a sum of §30. I trust the furniture in 
 
 [a] See Cheah Oon Heap v. Choak Kong What, 18th July 1877, ante p. 393. 
 
634 
 
 CIVIL CASES. 
 
 Wood J. " the said house, to my youngest daughter until they all are married, when it shall 
 
 1883. " be equally divided among them. My sons or other relations will not- interfere in 
 
 — " this arrangement," By a subsequent part of the Will, he provided for Lis sons, 
 
 Khoo Seok and gave the residue of his estate, real and personal, to them. 
 
 Haing Held, that although the question was raised subsequent to the Wills Act XXV 
 
 v. of 1838, the rules of construction prior thereto must be the rules governing the 
 
 Khoo Wee construction of the testator'sWill, and that the daughters therefore only took a 
 
 Team & joint estate for life, in the house. 
 
 ANOR 
 
 Suit to have it declared that the plaintiff was entitled in fee 
 to a certain house in Penang, under the Will of one Khoo Chaing, 
 deceased : the clauses of the Will material to the question 
 decided herein, being as follows : " The tiled covered, house I have 
 " built in Toh Aka's Lane^ I give and hand over to my daughters 
 " Loo Eng, Seok Haing and Hoon Haing to live in together. 
 " This house shall never be either mortgaged or sold, nor shall 
 " the ancestors' incense burnt therein, [the genii of their ances- 
 " tors] be removed therefrom. I give and hand over also to each 
 " of my daughters a sum of $30. As regards the house furniture, 
 " I trust it to the care of my youngest daughter Hoon Haing 
 " until all tlrree are married, when this furniture shall be divided 
 " in equal share among my three daughters. My sons or other 
 " relations will not interfere in this arrangement." The residuary 
 clause, devised the residue of the testator's estate, real and 
 personal, to his son and eldest grandson. The Will was made on 
 the 3rd day of December, 1834 : the testator died on the following 
 day. The question in the suit was whether the daughters took an 
 estate in fee, or only one for life. The plaintiff ras one of such 
 daughters. 
 
 Thomas for the defendants contended, that the whole clause 
 being in restraint of alienation, was void. Ong Cheng Neoh v. 
 Yeap Cheah Neoh, Straits Law Eeports, 314 [a] ; that the devise, 
 if not wholly void, conferred on the daughters only an estate for 
 life - ? the term " to live in together," shewed that it was to be 
 personal to the daughters. 
 
 Van Someren for plaintiff contended, that the clause was not 
 wholly void but only that portion which restrained alienation. 
 Kader Bee & anor. v. Eader Mustan & ors. [6], Fatimah v. Loqan, 
 Straits Law Eeports, 288, 296 [c]. 
 
 [Wood, J. intimated to Counsel that he need not further 
 dwell upon this point.] 
 
 Van Someren in continuation, then contended, that the clause 
 in question conferred on the daughters an estate in fee ; that the 
 Will might be divided into three parts, carrying out three distinct 
 objects, 1st m providing for the daughters, 2nd in providing for 
 the sons and 3rd in providing the carrying out of the directions 
 
 i ^ iTi par 7 ' *° wll0se estate tne testa *o r was executor; that 
 lie left both sons and daughters definite property ; that the words 
 give and hand over/' were used both in respect of the house, as 
 well as to the legacy of $30, and the latter certainly was for an 
 absolute interest. The presumption therefore was, that he 
 intended the daughters to take the like interest in the house 
 Doe d. Brodie v. Roberts, 11 Ad. & Ell. 1,000 ; Fenny v. Eustace 
 [o] ante p. 236, [6] ante p. 432. [c] ante p. 255. 
 
STRAITS SETTLEMENTS. 
 
 635 
 
 4 M. & S. 58 ; Doe d. Knowl v. Lawton, 4 Bing. N. C. 455 ; that 
 the words in restraint of alienation, though void, were of impor- 
 tance as shewing the testator's intention to keep the property 
 within the family circle, and his giving the property to the three 
 daughters, and alluding to their marriage, also pointed to the 
 same conclusion, Boo d. Wood v. Wood, 1 B. & Aid, 518 ; the 
 concluding words of the clause shewed that the sons were not to 
 have an interest in the house, and the leaning of the Courts at the 
 present day, even in cases as the present, of Wills executed prior 
 to the Wills Act, was against a life estate, and unless the words 
 were clear, would consider an absolute interest to be the one 
 intended, yer Martin B. in Manning v. Taylor, 1 L. R. Ex. 
 235, 239. 
 
 Thomas in reply. 
 
 Wood, J. This Will was made prior to 1837, and therefore 
 before the Wills Act. The rules of construction were stricter 
 then, than they are now. The same rule of construction must be 
 followed at the present day in constructing Wills executed prior 
 to that Act, and unless there are expressions in the Will shewing 
 a larger interest was intended to be conferred, a mere gift or 
 devise of land to a person, without more, confers on him only an 
 interest for life. In the present Will the intention of the testator 
 appears to have been the living together of the daughters in the 
 house, and therefore to be personal to them. I can find no 
 expressions enlargening the estate to one in fee ; and think on 
 the construction of the Will, in accordance with the Rules before 
 alluded to, I am bound to hold, that the daughters took only a 
 joint estate for life. Whether this estate for life is determinable 
 on the death of any one of the daughters, or all of them, it is not 
 necessary for me now to give a decision. The clause being some- 
 what ambiguously worded, and this litigation occasioned through 
 the neglect of the testator clearly to express his intentions, I 
 think the cost of both parties to this suit, should come out of 
 the estate. 
 
 Wood, 3. 
 1883. 
 
 Khoo Seok 
 Haino 
 
 17. 
 
 Khoo Web 
 
 Team& 
 
 anok. 
 
 Order accordingly. 
 
 HASHIM NINA MERICAN v. KHATIJAH BEE & ORS. 
 
 The Court stayed an action in ejectment, on the ground that a suit in Equity was 
 pending, — in which the same point was in question and in which suit a decree for 
 accounts had been made— until the finding and report on such account — but ordered 
 the defendant to give the plaintiff, security for payment of the rent of the property, 
 [the subject of the ejectment,] accruing during the pendency of such suit in Equity. 
 
 This was an action of ejectment of certain lands and premises 
 known as No. 1, Carnarvon Street, purchased by the plaintiff of 
 one Yayah Merican, the administrator of the estate and effects of 
 one Dalbadalsah, deceased. The defendants in their statement of 
 defence alleged, among other things, that the said Tayah Meri- 
 can, in consideration of administration being granted to him, 
 
 Penako. 
 
 "Wood, J. 
 1883. 
 
 August 9. 
 
636 CIVIL CASES. 
 
 Wood, J. promised to buy in the said premises for the defendants. Thac 
 
 1883. thereafter he bought in the same forthe defendants, for the sum 
 
 Hashim Nina of $6,000, and thereafter filed his accounts showing the defendant 
 
 Merican Khatijah Bee's share in the estate of the deceased, fell short of 
 "• that sum on which account he claimed to be paid, for the benefit of 
 
 BmT&'ors. the estate, the difference between the amount of the said defendant's 
 share as shown by him, and the purchase money aforesaid. That 
 the defendants iusisted that the said Yayah Mericanhad not fully 
 and faithfully accounted for the estate of the deceased — that if he 
 had so done, the said defendant's share would be more than suffi- 
 cient to cover such purchase money, but the said Yayah Merican 
 of his own wrong, alleging that as the said defendants had not 
 paid the balance of the purchase money after deducting her share 
 — re-sold the said premises to the plaintiff, who was his son and 
 purchased with full knowledge of these facts. That the defend- 
 ants prior to this action commenced an action in this Court against 
 the said Yayah Merican as such administrator, praying for an 
 account to be taken of the estate of the deceased and for payment 
 of their shares, in which suit a decree, by consent, had been made, 
 referring the matter to the Registrar to take the accounts. The 
 said Yayah Merican was made defendant to this action by. coun- 
 terclaim ; issue was joined on this defence, and defence put in to 
 the counterclaim. On the case being now called on for hearing, 
 and the pleadings read, 
 
 _ -Ross, for the defendants, moved that the proceedings in this 
 action, should be stayed until the reference to the Registrar men- 
 tioned above, should be reported on. He stated the accounts were 
 incorrect, but gave no instances in support of the statement. 
 
 Van Someren stated that the accounts of Yayah Merican were 
 correct and true ; and further that a stay of proceedings would 
 not be ordered merely because another suit, relating more or less 
 to the same subject-matter, was pending in Chancery. He refer- 
 red to Pierce v. Robins, 26 L. J. Ex. [N. S.] 183, and sub-section 5, 
 section 1 of Ordinance IV. of 1878 ; he also drew attention to the 
 fact, that the conditions of sale, under which" the property was 
 purchased for the said defendant, provided are-sale, in case of 
 default oi payment of the purchase money. 
 
 Wood, J. considered that whether the said Yayah Merican 
 had a right to sell or not, depended on the correctness or incor- 
 rectness of his accounts. As those accounts were called in ques- 
 tion, and were now the subject of inquiry by the Registrar/ the 
 proceedings in this case should be stayed, pending the finding and 
 report of the Registrar— and that the conditions of sale, referred 
 to, had no bearing on a case like the present, which was not a sale 
 among strangers, but a family arrangement. 
 
 VanSomaren then pointed out, that during the pendency of 
 the enquiry of the accounts, which would take several months at 
 plaintiff Premises would be lost to his client the 
 
 Wood J. ordered that security should be given by the defend- 
 ants, in the meanwhile, for the ultimate payment of .the rent of 
 the premises, at the rate of $20 per month— such security to be in 
 
STRAITS SETTLEMENTS. 
 
 637 
 
 the sum of $500, conditional as to payment, at the rate of $20 per Wood, J., 
 month. " 1883 - 
 
 Proceedings stayed. 
 
 Hashim Nina 
 Mebican 
 
 v. 
 
 Khatijah 
 
 Bee & oes. 
 
 SYED MAHOMED ALSAGOFF v. MAX BEHR. 
 
 Whether a tenant, who holds for a term of years, and after the expiration of the Singapore. 
 
 lease oontinues to do so, paying rent for his holding, is a tenant from year to year or 
 
 otherwise, is a question of fact to be gathered ■from the circumstances ; but ought to be Fobd, J. 
 Buoh a tenant as is just and fair between the parties. 1883. 
 
 The leaning of authorities is however in favor of the presumption of the tenanoy 
 
 being from year to year ; and the reason for this, is founded mainly on common sense August 24. 
 and justioe. 
 
 Neither the praotioe in this Colony to let from month to month, — nor the fact that 
 by the former lease, rent is reserved not by the year, but by the month, — rebuts the 
 presumption. 
 
 This was an action of ejectment, and the facts and questions 
 arising thereon were set forth in the form of a special case. 
 Donaldson, for plaintiff. 
 Joaquvm, for defendant. 
 
 Cur. Adv. Vult. 
 
 August 28. Ford, J. In this case in which Mr. Donaldson 
 appeared for the plaintiff and Mr. Joaqnim for the defendant, the 
 facts [which have been stated in the form of a special case] are 
 simple enough. 
 
 The plaintiff granted a lease of the premises known as Beach 
 House for a term of years at a certain rent payable monthly, and 
 after the expiration of the term the defendant held over, con- 
 tinuing to pay the monthly rent for two months. The question is 
 as to the tenancy which was thus created, whether it was yearly 
 or monthly. I have carefully looked through all the cases and I 
 do not find any rule of law laid down, that because a tenant holds 
 over, he does so as yearly tenant. The question seems to have 
 been one of fact to be gathered from circumstances, and the ten- 
 ancy arising on holding over, should be one that is just and fair 
 between the parties. The cases, however, show a strong leaning 
 amounting to what is called a presumption in favor of an annual 
 tenancy, and the reason is founded mainly on common sense and 
 justice. 
 
 The presumption has been held to apply to all classes of pro- 
 perty, although it had its origin in agricultural leases. 
 
 In the cases Doe de Martin v. Watts, [7 T. R. 83.] Lord 
 Kenyon said : — 
 
 " I admit all the cases that have been cited, except the last at Nisi Prius ; 
 they only prove, what indeed is admitted by the counsel for the plaintiff in 
 this case, that a lease made by a tenant for life, which is void in its creation, 
 cannot be confirmed by the reversioner ; but they do not shew that when 
 such a lease is abandoned, another relation may not subsist between land- 
 
638 
 
 CIVIL OASES. 
 
 Max Behk. 
 
 Ford, J., lord and tenant by the one paying and the other receiving rent. Here one 
 1883. of the lessors of the plaintiff received rent by his steward eo nomine, as rent ; 
 
 if the defendant had been a trespasser, no rent could have become due , it 
 
 Sted Miiio- cou i,j only be paid as rent under the idea that the defendant was a tenant ; 
 med AiisA- an( j jf ne were a tenant the plaintiff cannot recover, not having given him 
 00FF notice to quit. It would be extremely unjust that a tenant who occupies 
 the land should, after he has sown it, be turned out of possession by an 
 "ejectment, without any notice. And it was in order to avoid so unjust a 
 measure, that so long ago as the time of the Tear Books, it was held that 
 a general occupation was an occupation from year to year and that the 
 tenant could not be turned out of possession without reasonable notice to 
 quit. That rule has always prevailed since, and in times certainly as 
 enlightened as those we ought not to depart from a rule which was as wisely 
 and justly settled." 
 
 The cases all go to shew 6 months is " reasonable notice." 
 Here, we have the fact of a holding over and payment of rent, 
 and the clear presumption is that he holds on as annual tenant'. 
 The question is, has he shewn any facts to rebut that pre- 
 sumption ? 
 
 The defendant first relies on a custom prevalent here to let 
 by the month. I am unable to see how that bears on the case ; it 
 is rather a practice than a custom ; persons usually hire by the 
 month, and I fail to see how it applies to the case of a man who 
 takes a house for a number of years and holds over. 
 
 A further circumstance is relied on that there is no reserva- 
 tion of rent by the year in the lease, but that it is payable by th 
 month. This is relied on as shewing an intention to create a 
 monthly tenancy after the expiration of the term. 
 
 I am unable to come to the conclusion that the omission to 
 reserve the rent annually, rebuts the presumption. Certainly 
 there is a case [Richardson v. Lanpedge, 4 Taunton, 128J in which 
 it was laid down that " a mere general letting is a letting at will, 
 " but if the lessor accepts yearly rent, or rent measured by any 
 " aliquot part of a year, the Courts have said that it is evidence of 
 " a taking for a year," but a month of course would be an aliquot 
 part of a year as well as 3 or 6 months. I do not think this is 
 sufficient to rebut the presumption. 
 
 Then if I go on to the question of justice and convenience, in 
 the case of this house, an hotel, it certainly is convenient that the 
 tenant should have a longer notice than one month to turn out 
 and so, if the landlord, also of an intention to give up Under 
 these circumstances I hold the tenancy, to be a yearly tenancy, 
 but the notice given in January, must be considered good notice 
 for the termination of the current year. The costs will follow 
 the event. 
 
 Pena.no. 
 
 Wood, J. 
 1883. 
 
 September 3 
 
 VELLIAN v. KADAPAH CHETTY & ANOE. 
 
 Where the Begistrar has definitely dealt with matte™ nf „™™„t- ,„p j ± v 
 and made findings thereon, the Court wiU not readil^Slf i? * re J ferred , to h ™» 
 tion-or even on the admission of the SsTSffirf-thS ZtnT*' 7 * he T^ 
 lar items in such report, are unsupported STb £ J v ' °l a fe , w partlcu - 
 and is at variance with the story told h^ bo thirties "^ ° f evidenoe > 
 
 Therefore, where both parties were agreed, that a particular promissory note w,« 
 given in settlement of accounts, and the only question between tLnTa^the se ttie1 
 
STRAITS SETTLEMENTS. 
 
 fflent of that account — but the Registrar disbelieving both these statements, found that 
 the note was given for actual advances by the one party to the other, 
 
 Held, the report should not be disturbed, and the exceptions filed thereto on that 
 ground, were overruled. 
 
 Exceptions to Eegistrar's Eeport. The suit was brought for 
 mortgagee's . accounts. It appeared that the defendants had 
 received some money from plaintiff on deposit, and had drawn 
 Bills in his faror, at his request, on Madras ; that they also held 
 Bills of Sale by way of mortgage on certain personal property of 
 the plaintiff, which property they had sold, and also held a pro- 
 missory note from the plaintiff for $158. The Plaintiff admitted 
 this note. The defendants alleged that the plaintiff had gone into 
 all the accounts, and the aforesaid $158 being found to be due 
 them, the plaintiff gave them this .note to secure same. The 
 plaintiff denied the note was given to secure the balance due on 
 account of all the transactions, but only a portion of their dealings. 
 The acting Eegistrar, Mr. Kyshe, before whom the case was 
 heard, disbelieved both these stories and was of opinion that the 
 $158 was for further advances made to the plaintiff by the defend- 
 ants, and on the whole found the defendants indebted to the 
 plaintiff in a sum of $54 odd. The plaintiff excepted to this 
 report. 
 
 Glutton, for plaintiff contended that on the facts as found, 
 some of the Eegistrar's inferences were incorrect and the method 
 of his dealing with the accounts was also incorrect— in particular 
 in his finding that the promissory note for $158 was given for 
 money advanced, when neither party alleged such was the case. 
 In fact, by so doing, the Eegistrar was charging this item twice 
 over, and consequently found so small a balance due to the 
 plaintiff. 
 
 Anthony, for defendants in answer to a question from the 
 Court, admitted that they did not claim the promissory note to be 
 for further advances — but was not otherwise called on. 
 
 Wood, J. I am of opinion, on reading this report of the 
 Eegistrar, in which I find that tbe matters submitted to him have 
 been definitely dealt with, and findings made by him on each 
 item — that tbe Court will not readily disallow any particular item, 
 on the assertion — or even on admission and proof — that any one 
 or a few particular items are unsupported by proofs to be found 
 on his notes of evidence. Much allowance is to be made to the 
 Eegistrar in his finding of facts, from manner and demeanour of 
 witnesses, and the ways of keeping accounts, books, and so forth — 
 and disproof of any particular item is not to be held sufficient 
 ground for objection to his report on an account, when he may be 
 held to have carefully considered all the evidence adduced, and 
 made his report on the state of accounts between the parties 
 litigant. The exceptions will therefore be overruled and the 
 report confirmed. The plaintiff will have a verdict for the amount 
 found due him by the report, J&gether with the .general. cqs±sjq£ 
 thjguijause, as fox^asmalL cause : the defendants' costs of these 
 exceptions, must however be paid by the plaintiff. 
 
 Report conformed. 
 
 Wood, J. 
 18S3. 
 
 Vellian 
 
 V. 
 
 Kadapah 
 Chettt & 
 
 ANOB. 
 
 kvf 
 
 r t. 
 
 //v : c, 
 
640 
 
 CIVIL OASES 
 
 NOOESAH BAWASAH MEEICAN v. WILLIAM HALL & CO. 
 
 Penang Where by a Bill of lading it is provided, that " if necessary the goods are to be 
 
 _ N ° landedby the master or agent of the ship, at the risk and expense of the owners of 
 
 Wood J the soods," and the necessity has arisen in the form of quxck despatch being 
 
 1883 reqS to the ship, which may also be deneficial to the owners of the soods-the 
 
 _— landing of such goods by a third party, with whom the owners of the good* , have 
 
 October 11. no special contra^ is to be construed as the landrng by the master or ■a.gi mi ;o the 
 
 ship! and the expenses of such landing, can only be received by the agents or 
 
 master from the owners of the goods, and not from them by the lightermen. 
 
 The fact that the owners of the goods have on previous occasions paid tne 
 liehterman direct, on Bill by which they are declared to be debtors to him, does 
 not conclude them from afterwards disputing that liability t6 him, for subsequent 
 lighterage. 
 
 This was an action for lighterage, 
 judgment. 
 
 Thomas for plaintiff. 
 Boss for defendants. 
 
 The facts appear in the 
 
 Cwr. Adv. Vulti 
 
 October 30. Wood, J. In this case, the plaintiff Noorsah 
 Bawasah Merican, a lighterman, sues the defendants, merchants, 
 in Penang, for $123.27 for work done as a lighterman and whar- 
 finger in the months of January, February, and March 1883, in 
 landing defendants' goods from Holt's Ocean Line of Steamers in 
 the Port of Penang and for warehousing such goods and watching 
 before delivery. 
 
 William Hall & Co., the defendants are the consignees of 
 certain goods by Holt's Ocean Line of Steamships, under Bills of 
 Lading. These Bills of Lading are much in the usual form, and, 
 with some slight variation, the same in all material particulars in 
 the case of each of the various consignments in respect of which 
 the plaintiff claims. 
 
 The following clauses which are material to the consideration 
 of the present case are nearly the same in all : 
 
 " The goods to be discharged from the ship as soon as she is ready to 
 " unload at wharf, into hulk, Lazaretto or lighters, and if necessary to be 
 " landed by the master or agent at the risk and expense of the owners of the 
 " goods " 
 
 "The master or agent shall have a lien on the goods for payment made 
 " or liabilities incurred in respect of any charges stipulated herein to be 
 " borne by the owner of the goods." 
 
 It is said above that the above clauses are nearly the same 
 because in one or two cases the words " and expense" are omitted 
 and the clause reads : 
 
 " To be landed by the master or agent at the risk of the owners 
 of the goods." . 
 
 This variation, however, is immaterial as it was conceded by 
 the defendants that they hold themselves liable to pay some one 
 for the lighterage. And it may further be remarked that the 
 Port of Penang being an open roadstead there is properly no un- 
 loading at any wharf, and it is accordingly conceded that these 
 words "at wharf" may be deemed to be omitted. 
 
STRAITS SETTLEMENTS. 
 
 641 
 
 Holt's Ocean Line of Steamers is a line of Steamers doing a 
 large business and touching only at Penang on their way to 
 China, bringing consignments of varied kinds of goods consigned 
 to numerous and different consignees at Penang. Under such 
 cases quickness of despatch from Penang is a matter important to 
 the interests of the owner of the Steamers, and convenient in a 
 general way to the consignees of goods, and it may be looked 
 upon as a matter of fact in the case, that it is " necessary" within 
 the meaning of the above clause that to save time, trouble, ex- 
 pense, damage and possible loss, goods should be landed by one 
 lighterman with an efficient staff, and a good supply of boats at the 
 public wharf and ware-house — where the goods taken from along- 
 side and unsorted are ultimately sorted and ready for delivery to 
 the different consignees. 
 
 Such has accordingly been done for several years and on the 
 application of Bawasah Meriean permission was given him, and 
 the sole monopoly and privilege accorded by Messrs. Mansfield, 
 Bogaardt & Co., then and now the agents of Holt's Steamers, to 
 attend alongside with his boats and lighter the entire cargo of 
 each ship that arrived. This was accordingly done and the rule 
 and practice rarely departed from and then only in the case of 
 special bulky goods, presumably machinery, which by under- 
 standing with the agent were landed by the consignees themselves 
 in their own boats. 
 
 In this course matters proceeded, the defendants Messrs. 
 William Hall & Co., with others receiving their goods through 
 Bawasah Meriean, the plaintiff paying the charges made out in 
 accounts rendered by him to them in which they were debited to 
 him by name. 
 
 Lately, but before the performance of the work and labour in 
 respect of which this action was brought, a question arose among 
 the mercantile community as to the responsibility of the ship- 
 owners for loss which might be incurred by the act of Bawasah 
 Meriean, and accordingly in October, 1882, the following circular 
 was sent by Messrs. Mansfield, Bogaardt & Co., Holt's Agents at 
 Penang, to the principal mercantile firms there and among them 
 to Messrs. Hall & Co. 
 
 Wood, J. 
 1883. 
 
 NOOESAH 
 
 Bawasah 
 
 Mekican 
 
 v- 
 
 Wm. Hall 
 
 & Co. 
 
 " Consignees by the Ocean Steam Ship Company's Steamers are hereby 
 " informed that Bawasah Meriean is not and never has been a servant of the 
 " Ocean Steam Ship Company or in the employ of our firm for receiving and 
 " delivering goods at this Port." 
 
 " He is allowed on board with his staff to assist ship in getting quick 
 " despatch and consignees in obtaining quicker delivery than they could do 
 " by sending their own boats alongside." 
 
 " It is hereby distinctly conveyed to all concerned that neither on behalf 
 " of the Ocean Steam Ship Company nor ourselves do we admit any responsi- 
 " bility whatever for his acts or negligence after the cargo leaves the ship's 
 " side. If consignees and others interested in landing cargo from our 
 " Steamers desire to appoint a more competent man than the said Bawasah 
 " Meriean to act for them, we shall be glad to give him all the assistance we 
 " can in facilitating the clearance of goods from Steamer and Jetty." 
 
642 
 
 CIVIL OASIS. 
 
 "Wood, J. 
 1883. 
 
 NOOBSAH 
 
 Bawasah 
 Merican 
 
 V. 
 
 Wm. Hall 
 &Co. 
 
 " The next steamer to arrive will be Pat.roolus about 14th instant, and 
 " failing united action as suggested above on the part of consignees the said 
 " Bawasah Merican will be allowed to receive the cargo as hitherto, 
 
 p. 2'- Mansfield, Bogaardt & Co., 
 
 (Sd.) George E. Turner, 
 Agents Ocean Steamship Company. 
 
 This circular was returned with Messrs. William, Hall & 
 Co's., remarks as follows : 
 
 " The 0. S. S. Co., must either take the risk of landing the 
 " cargo themselves or allow consignees to do so themselves^ from 
 " ship's side on terms of Bill of Lading. We shall recognize no 
 " irresponsible intermediate party between the 0. S. S. and our- 
 " selves." 
 
 p. p. S. B. & Co., J. G. 
 
 Do. Do. William Hall, & Co. 
 
 The defendants thereby as I understand, adopting the reply 
 of S. B. & Co. [Sandilands, Buttery &Co.,], — somewhat similar 
 remarks were made by other firms to which it is not material to 
 refer. 
 
 To this Messrs. Mansfield, Bogaardt & Co., reply as follows : 
 " With reference to the notice issued by us this morning re land- 
 " ing of cargo, we wish to point out to those who have endorsed it adversely 
 " that we are quite within our rights according to the B. L. on which the cargo 
 "is carried as per clauses marked in red herewith. We shall be quite prepar- 
 " ed therefore to carry out the terms and conditions of the said Bills of 
 "Lading until a test case has established the disputed points." 
 
 p. p. Mansfield, Bogaardt & Co. 
 
 (Sd.) George E. Turner." 
 
 A Bill of Lading accompanied this last circular, which is the 
 usual Bill of Lading, but one of the clauses marked in red is a 
 clause to the effect that the goods are to be delivered " from the 
 " ships' deck where the ships' responsibility shall cease." 
 
 As to which it may be shortly said that this Bill of Lading 
 though doubtless used in some other cases was not used in the 
 case of the goods, the lightering of which is charged for by the 
 present plaintiff. 
 
 The other clause marked in red is as follows, being the clause 
 above adverted to with an additional one, not material to the 
 present inquiry : 
 
 " The goods to be discharged from the ship, as noon as she is ready to 
 " unload, into bulk, lazaretto or hired lighters, and to be landed, and [if 
 " necessary] stored by the master or agent at the risk and expense of the 
 "owners of the goods. If prevented from discharging by weather, the 
 " goods may be taken on to the next convenient port for transhipment to 
 " their destination." 
 
 Subsequently the goods, the lightering of which is now 
 charged for, arrived by various ships of Holt's Co., and lightered 
 by the plaintiff Bawasah Merican in the months of January, 
 February and March last, and accounts for them handed to defend- 
 ants in all of which the sums charged are credited to Bawasah 
 Merican theplaintiff by name. 
 
STRAITS SETTLEMENTS. 
 
 643 
 
 The defendants, however, desirous of raising the point de- 
 clined to pay plaintiff except on accounts in which they were made 
 debtors to Messrs. Mansfield, Bogaardt & Co., who they contended, 
 were their real creditors and whose discharge they required. 
 
 This was not done and hence the action. 
 
 At the trial Mr. Gr. E. Turner, Manager of the firm of Mans- 
 field, Bogaardt & Co., and the plaintiff Bawasah, were the only 
 witnesses called on the part of the plaintiffs, none being called for 
 the defendants. 
 
 _ Mr. Turner stated on taking over the management of the 
 business some time before October in last year, he issued the 
 circular of October 7th, 1882. 
 
 Wood, J. 
 1883. 
 
 NoOKSAH 
 
 Bawasah 
 
 Merican 
 
 V. 
 
 Wm. Ham, 
 &Co. 
 
 " Because he had reason to believe there was a misunderstanding as to 
 " the position of the plaintiff Bawasah Merican with respect to the Ocean 
 " Steamship Co. The merchants seemed to think that Bawasah Merican was 
 " a regularly employed servant to the firm and I wished to undeceive them. 
 
 " Bawasah was in no sense of the word our servant nor was he employed 
 " by us, we did not pay him in any shape or form. He had no place in our 
 " office nor was he subject to our orders. He was an outsider, and Govern- 
 " ment contractor at the same time, and any other person would have done 
 " as weU for us." 
 
 " When a ship came into port he was alongside with his boats, anybody 
 " else might have done the same if he brought boats enough to discharge the 
 " ship without delay." 
 
 " He was paid by the consignees. After the issue of the circular plain- 
 " tiff went to receive cargo alongside, and I presume he was paid by the con- 
 " signees. I should certainly not receive the money. He never comes into 
 " our office, we never see his accounts." 
 
 Cross-examined : — 
 
 " When I came to Penang I found plaintiff doing this work. I never 
 " made any contract with him — when ships arrived no notice was sent by our 
 " firm to plaintiff, he might come to enquire as others do. It is no business 
 " of ours who is to take off the goods. The captain enquires of the agent, I 
 " should certainly tell him to deliver to Bawasah. Supposing a package was 
 " lost between the ship and the Jetty by default of plaintiff, the loss would 
 " fall on him. My reply to any such question would be, " settle the matter 
 " with Bawasah." It may be that a question of responsibility was involved. 
 " The consignees objected to Bawasah." 
 
 By the Court : 
 
 " I took Bawasah Merican as I found him, the person usually employed 
 to lighter goods ; he was sanctioned and privileged to go on board a ship of 
 Holt's Line, without specially asking for permission. It is always adviaable 
 that a single lighterman should be employed ; it would be necessary for the 
 better delivery of the goods ; no small man could do it and with a man with 
 the resources of Bawasah Merican, it was an advantage to the ship. Always 
 since I have been here the discbarge has been so effected by means of one 
 man, and I should say that with a Liverpool cargo no more than two men 
 could be employed ; with a London, only one man." 
 
 " Any more than this would be inconvenient." 
 
 " In the interest of the ship I should consider it necessary to restrict the 
 lightering part of the work to be in the hand of one man, or at the most two, 
 with a large staff of men and many boats." 
 
 " Bawasah had in his employment usuaUy a good staff of men and many 
 boats, and it was for this reason that he was so allowed to come on board." 
 
 " It was quite as much in the interest of the consignees that this system 
 should be pursued." 
 
 •' The goods would not have been so knocked about nor late in delivery 
 or the same chance of loss or confusion of packages." 
 
644 
 
 CIVIL OASES. 
 
 Wood, J, 
 1883. 
 
 NoOBSAH 
 
 Bawasah 
 Merican 
 
 V. 
 
 Wm. Hall 
 &Co. 
 
 « I did nothing to bind the consignees to employ the ^anBawasaM 
 gave them by my notice permission to employ any ™^>?$$£ Jjg 
 Employed one or two men only. There are other men who might have been 
 employed by the consignees." 
 
 Further evidence was given by Mr. Turner with respect to a 
 bye-gone case in which Messrs. Katz Brothers were concerned, 
 which I look upon as irrelevant to the present case except as show- 
 ing what is not denied, that the mercantile community at ^enang 
 looked upon the plaintiff as the servant of the agents of the ship 
 and that they held the latter, as such agents, responsible tor the 
 negligent conveyance of goods from ship to shore. 
 
 "Bawasah Merican the plaintiff: I commenced my connection fo 
 landing goods for Messrs. Holt's Steamers some time ago. At farst every ; on 
 went to apply to Mr. Bogaardt for work, the work of landing goods as lighter- 
 man, and I was one among them." . , ,, T 
 " I was taken on. I was engaged by Mr. Bogaardt and instructed what I 
 was to do. Mr. Bogaardt said that as soon as a vessel came into port 1 was to 
 be in readiness with as many boats as might be necessary. 
 
 " I was to take these boats alongside of the ship and unload the goods. 
 " The bill of lading would be sent on board with " please deliver on it, 
 and I was to deliver the goods accordingly. I always paid the boatman my- 
 self and the wharfage also. I made out my biUs to the consignees and would 
 be paid by them. I always did this. I took the bill of landing The goods 
 I used to unload and 2 or 3 days after the bill of lading would come with 
 " please deliver" and so I delivered them. I have been invariably paid by the 
 consignees. I have never been paid in any shape or way by Mr. Bogaardt. I 
 have always invariably made out bill for charges in this form " the consignees 
 Dr.. to myself, Bawasah Merican." 
 
 " I have settled claims for damages, which were incurred through me or 
 my men. I am liable for damages done, so I consider." 
 
 " In the case of Hall & Co., a charge of chafage was made against me. I 
 was spoken to by Mr. Tennant myself, as to how it was caused, I said I did 
 not know how it happened. Mr. Tennant and Mr. Turner surveyed and said 
 it was my fault and. I paid it. The amount was paid when my bill was paid ; 
 it was then cut off. These bills were signed by William Hall & Co., after their 
 decision of Katz's case. They bear date in May 23, 19, 22, 21, 17. Where 
 Mr. Padday has signed " please pay" I consider it money in hand. This, is an 
 account of the different bills paid by Hall & Co., with dates of payment. 
 
 . Cross examined : — 
 When Mr. Tennant made the complaint he may have gone to Mr. Turner 
 first. Mr. Turner and Mr. Tennant were at the Jetty and I spoke to the two 
 because William Hall & Co., refused by their Krani to receive the goods. I 
 spoke after he had refused to receive them, a few days afterwards. I donot 
 know if the claim was made against Mr. Turner. 
 With Mr. Bogaardt the arrangement was thus : 
 
 " I spoke myself, I said if you allow me to do the business, I will supply 
 the required boats, unload the goods, deliver them to the different parties and 
 receive the money for them. The captain when I went alongside was spoken 
 to by Mr. Power as I believe. He was shipping clerk, this was on the first 
 occasion. On the second occasion the same, and so with all until I became 
 known. _ I had no standing letter to the captain. I believe Mr. Power must 
 have pointed me out also. I never met with any difficulty. I went to the 
 chief .officer after saluting the captain. Mr. Bogaardt's people would be on 
 board before me, and I never had any trouble. I was the only person so em- 
 ployed, myself and my assistant. I understood from Mr. Bogaardt that I 
 was the only person to be employed. There was a distinct understanding be- 
 tween me and Mr. Bogaardt that for his Company I was to be the only lighter- 
 man, I was to bear profit and loss. As to losses Mr. Bogaardt said nothing." 
 By the Court : 
 
 " The charges I am suing for were incurred in January, February and 
 March. Before this I know there was a question as to by whom I was em- 
 
STBAITS SETTLEMENTS. 
 
 645 
 
 ployed. I knew that the consignees of goods objected to my being considered 
 as employed by them." 
 
 " I did not know when I saw Mr. Bogaardt that Messrs. Bogaardt landed 
 the goods themselves, I went there because I knew the goods had to be landed. 
 I went to Bogaardt because I knew that they had the privilege of landing 
 the goods and therefore I went to them. I knew they would allow the 
 consignees to land the goods themselves." 
 
 " In exceptional cases of heavy packages special permission had to be 
 given. The consignees might land goods themselves, but I knew it was not 
 the custom." 
 
 " I have never been spoken to by special consignees. Messrs. Hall & 
 Co., have often spoken about the goods, I cannot read English — but very little. 
 I might read a little. I did not read the Bills of Lading in this case. Before 
 this action was commenced I did know that Messrs. Hall & Co., were willing 
 to pay Bogaardt & Co." 
 
 " In certain whiskey on 31st May I remember a notice being sent by 
 Mr. Boss claiming demand of 140 cases whiskey. I remember this notice 
 being sent." 
 
 Wood, J. 
 1883. 
 
 Nooks ah 
 
 Bawasah 
 
 Merman 
 
 v. 
 
 Wm. Hall 
 
 &Co, 
 
 Such are the facts of the case, and it may be obsei-ved that 
 the matter of the suit has lost its interest as a test case, it having 
 been formally intimated on the part of Holt's Co., to the com- 
 munity at Penang, that " merchandize from ship to Jetty is con- 
 veyed by Messrs. Mansfield, Bogaardt & Co., as agents of the 
 Ocean Steam Ship Co., in the terms and conditions of the Com- 
 pany's Bill of Lading now in force, and not by Bawasah Merican 
 as hitherto." 
 
 This concession being made as Mr. Turner states in deference 
 to the general requirement though by no means in his opinion in 
 conformity with the rights of the case. 
 
 Mr. Thomas for the plaintiff contended, that the plaintiff, who 
 is no party to the Bill of Lading and not cognizant of its contents, 
 has done work and labour for the defendants as their lighterman ; 
 they have accepted his services and have heretofore paid him un- 
 der Bills in which he has been made their creditor for the work 
 done, and have demanded and received from him the amount due 
 for damage done in the course of the transit of goods conveyed by 
 him from ship to shore, and they have done this after notice from 
 the agents of the ship that they are not liable. It may be con- 
 tended that the owners of the ship are not bound to find means of 
 transit from ship to shore even in case of " necessity" arising 
 within the meaning of the Bills of Lading, and in this case the 
 understanding between the owners of the ship and the plaintiff is 
 no contract, but simply a permission or privilege acceded him 
 which bears with it none of the elements of contract. There is 
 no obligation in the owners of the ship to pay the plaintiff, and it 
 may be doubted if the agents or owners could sue Bawasah, the 
 plaintiff, for breach of his engagements to send his boats along- 
 side. 
 
 Even supposing that the owners of the ship are bound to send 
 the consignees' goods on shore in case of necessity, yet still the 
 contract is between the plaintiff and the defendants, the plaintiff 
 to lighter the goods and the defendants to pay for them. 
 
 Mr. Boss for the defendants contended that the Bills of La- 
 ding are the crucial point in the matter, and under the terms con- 
 
646 
 
 CIVIL CASES. 
 
 Wood, J. 
 1883 
 
 NOOKSAH 
 
 Bawasah 
 
 Mebican 
 
 V. 
 
 Wm. Hall 
 &Co. 
 
 tain ed in them, if necessity arise, as to which there is no doubt in 
 this case, the owners by their agent have the duty cast upon them 
 of lightering from ship to shore and the privilege of so doing to 
 save time for the ship. Under these circumstances the under- 
 standing entered into between the agents of the ship, Messrs. 
 Mansfield, Bogaardt & Co., is a contract under which in consi- 
 deration of the privilege and monopoly conceded to him by the 
 agents, the plaintiff Bawasah undertakes to lighter. The person 
 to whom he looks for payment is immaterial. The contract in this 
 aspect of the case is on the same footing as the contract of the 
 master of a restaurant with his servants" Who waits upon his guests. 
 He may receive no wag«s from the master, and even pay for his 
 situation as waiter, but he looks for his payment in the gratuities 
 given by the customers and guests of his master. 
 
 The circtimstances of the Bills being made out in Bawasah's 
 name and the amount paid by the defendants under such form of 
 claim, and the compensation received from plaintiff by defendants 
 direct, does not conclude the defendants. At the time of the 
 work done by the plaintiff it was well known by both parties, 
 plaintiff and defendants, that the defendants contended that the 
 plaintiff was not their agent, and the settlement of these two 
 matters of account for the freight, and compensation for damage 
 done by the plaintiff, are explained by the fact that such a settle- 
 ment is direct and saves circuity of action between the three 
 parties, plaintiff, defendants and the owners of the ship. 
 
 That the owners are bound to lighter is, as before pressed, 
 the main point in the case, and this is clear from the terms of the 
 Bills of Lading. " If necessary the goods are to be landed by the 
 " master or agent at the risk and expense of the owners of the 
 
 "goods" and the provision "that the master or agent 
 
 " shall have a lien on the goods for payments made or liabilities 
 " incurred in respect of any charges stipulated to be borne by the 
 " owner of the goods" fully supports this view. 
 
 In this case I took time to consider my judgment, not from 
 any material doubt which I entertained, but with a view to give a 
 written decision on a matter which had been already the subject 
 of previous litigation, and on which a strong opinion one way or 
 another had been entertained by the mercantile community, and 
 with this view, and to give a clear exposition of the point in ques- 
 tion, i have given the evidence at length. 
 
 The matter seems to me to involve no difficulty of law or fact. 
 
 it is to my mind clear that by the terms of the Bills of 
 Lading under which the goods were consigned in this case, the 
 auty of lightering from ship to shore is thrown upon the agent or 
 master whenever "necessary" and, it is conceded that this neces- 
 sity has arisen and that the arrangement made by the agent on 
 his fint entering upon the task of lightering the ship was a con- 
 2S +1! lt0 between the agents on-the one hand and the 
 plaintiff on the other, in the joint interests of both, that the 
 agents might carry out the duty imposed upon them by the Bills 
 ol Lading, and the plaintiff enter upon a profitable branch of 
 
STRAITS SETTLEMENTS. 
 
 647 
 
 The defendants have all along maintained the position that 
 this duty is thrown upon the owners and their agents, and have 
 refused to recognize the plaintiff as their agent or the person 
 between whom and them there exists any privity of contract. 
 And I am of opinion that the payments of his Bills on his receipt 
 and on firms in which they are designated as debtors to him, and 
 the payment by him of damage caused by his act at their request, 
 are acts done for convenience of settlement, and are formal rather 
 than real, not causing to the plaintiff any inconvenience or mis- 
 leading him in any way, he being at the time well aware of the 
 contention of the defendants that they regarded him as the 
 agents of the owners and not of themselves, and thus their acts 
 do not conclude or stop them from contesting this suit. 
 
 I remark that the claim in the action is made for the work 
 and labour not only in lightering from ship to shore, but in ware- 
 housing and watching. The Bills of Lading under which the 
 goods for work and labour connected with which this action is 
 brought, speak of "landing" only. But no point was made at 
 the trial as to watching and warehousing as distinct from lighter- 
 ing from ship to shore and I notice that the Bills of Lading refer- 
 red to in Mr. Turner's second circular is in this particular slightly 
 different in form from that under which their goods were conveyed. 
 
 The lightering in fact from ship to shore has been the only 
 point contested in this suit, and any charge for watching and ware- 
 housing, as distinct from lightering, has not been distinguished 
 from it, and I take it for granted that it is conceded that the 
 storage and watching are part of the lightering, and I accordingly 
 find for the defendants with costs. 
 
 Wood, J. 
 1883. 
 
 NOOBSAH 
 
 Bawasah 
 Mbeican 
 
 v. 
 
 Wm. Hall 
 
 &Co. 
 
 KHOO YAH HONG v. KHAY THYE & ANOR. 
 
 The plaintiff sued the defendants, his late partners, to recover a sum of money, 
 on an account stated ; he failed to prove a statement of accounts, and thereupon 
 asked for a decree for the partnership accounts to be taken, when a decree was 
 made. 
 
 Held, on appeal, the case fell within clause 7, section 2 of Ordinance IV of 1878, 
 and the decree was properly made. 
 
 The Court of Appeal has power, under section 25 of Ordinance 3 of 1878, to 
 review, and vary if needs be, an order as to costs, made by, the Court below. 
 
 The plaintiff and defendants had been partners in the chop 
 " Ban Huat," which had closed business in 1878. The partner- 
 ship accounts were never gone into, bnt they having been kept by 
 the defendant Khay Thye, he was applied to, by the plaintiff, for 
 payment of his share in the business : the said defendant however 
 made no payment, but handed the plaintiff an account by which 
 he attempted to make out the defendant Sin Eng Soon and 
 another partner at Padang, were liable to pay the plaintiff certain 
 monies for his said share. The plaintiff on getting this account, 
 called on the defendant Sin Eng Soon for payment; but that 
 defendant refused to pay same, and denied the correctness of the 
 acqount so rendered to the plaintiff. The plaintiff thereupon sued 
 
 Pbnang. 
 
 Wood, J. 
 1884. 
 
 January 3. 
 
648 CIVIL OASES. 
 
 "Wood, J. both the said defendants Khay Thye and Sin Eng Soon to recover 
 
 18Si - $2,340.75, [the amount shewn by the aforesaid account] as on an 
 
 KhooYah account stated. The defendant Sin Eng Soon in his statement of 
 
 Honu defence, denied the account stated, and his liability to the plaintiff. 
 
 \ The defendant Khay Thye in his defence, set up an agreement 
 
 & ANcm and award, by which he alleged the aforesaid amount was found 
 
 due to the plaintiff, and that the plaintiff was not to look to him 
 
 [Khay Thye] for payment, but only to the defendant Sin Eng 
 
 Soon and the partner at Padang. 
 
 The plaintiff, in his reply to this defence, denied the agree- 
 ment and award alleged, and, among other things, claimed [in 
 paragraph 10 of his reply], that the parternership accounts should 
 te taken, if necessary. The plaintiff, by his statement of claim, 
 not only claiming the amount aforesaid on an account stated, but 
 also " snch further or other relief as to the Court should seem 
 right." The case was heard before Wood J. when the learned 
 Judge held, that the defendant Khay Thye had failed to prove 
 the agreement and award set up by him, and that the plaintiff 
 had also failed to prove the account stated — but, at the request of 
 the plaintiff's Counsel, and as the plaintiff had claimed further and 
 other relief, the Court made the usual decree for the partnership 
 accounts to be taken by the Registrar. The learned Judge also 
 held, that as the defendant Khay Thye had failed to establish the 
 defence he had set up, the plaintiff was entitled to his costs up to 
 the decree, as against him : and that the plaintiff having failed 
 to prove his account stated, he was liable to pay the defendant 
 Sin Eng Soon his costs, with a right to be recouped same by the 
 defendant Khay Thye : but, under the present practice, — and on 
 the authority of Budow v. Great Britain Assurance Co., 17 L. E. 
 Ch. Div. 600, cited by Counsel for Sin Eng Soon,— directed the 
 defendant Khay Thye to pay both the plaintiff's and the defend- 
 ant Sin Eng Soon's costs, up to decree. 
 
 The defendant Khay Thye, appealed against this decree and 
 order. 
 
 27th February, 1885. The appeal now came on to be heard 
 before the full Court of Appeal consisting of Sidqreavea C. J., 
 Ford and Wood, J. J. b y 
 
 Thomas, [Presgrave with him] for Khay Thye contended, that 
 the plaintiff was not entitled to a decree for accounts, under the 
 claim for further relief— and should, on failing -to prove his 
 account stated, have been non-suited : the claim for further relief 
 if it could include such a decree as was made, was inconsistent 
 with the claim on an account stated. They also contended that 
 the order as to costs, was improper under the circumstances, and 
 should be varied. 
 
 Boss for Khoo Yah Hong contended, that the prayer for 
 further relief was sufficient to admit of the decree for accounts 
 
STRAITS SETTLEMENTS. 649 
 
 being made, and even without it, the Court, in order to avoid Sidomaves, 
 multiplicity of suits, had power, under section 2, clause 1, 4 & 7 F ^ ^'' 
 of the Civil Law Ordinance 4 of 1878, to make the decree. He 
 cited Tharp v. Macdonald, 3 L. E. Prob. Div. 76, and HedUy v. 
 Bates, 13 L. E. Ch. Div. 501, 2, as in point. As to the costs, he 
 contended no appeal lay for costs ; and the three grounds of Khoo Yah 
 appeal, mentioned in section 2 of Ordinance 1 of 1883, excluded by Hong 
 implication, such an appeal — or indeed any appeal from what was _ *• 
 matter of discretion ; that that section in effect was the same as & ANOK 
 section 49 of the Judicature Act of 1873 [36 & 37 Vict., C. 66] 
 and costs were in the discretion of the Court. — Sec. 463 of the 
 Courts Ordinance III. of 1878. 
 
 Van Someren for Sin Eng Soon, supported this argument ; 
 and as to the costs, referred to Graham v. Campbell, 7 L. E. Ch. 
 Div. 490 ; Hope v. Carnegie, 4 L. E. Ch. Ap. 264 ; Taylor v. Dowles, 
 Ibid. 697 ; and Ordinance 3 of 1878, section 25, which is as follows : 
 " The Supreme Court shall have full power in all suits, matters, 
 '• and proceedings which may be instituted in the said Court, 
 " whether in its original or appellate jurisdiction, to award and 
 " order such costs to be paid, by either or any of the parties, to 
 " the other or others, whether the same or opposite parties, as the ■ 
 " said Court shall think just." 
 
 Sidgreaves, C. J. Thi3 case is somewhat complicated by the 
 relative positions of the parties to the appeal, and has been made 
 more so, by the pleadings, and procedure adopted at the trial. 
 The plaintiff sued on an account stated, and the single issue on 
 that claim was, was there such a statement of accounts. In his 
 reply [para. 10] however, we have a departure from this simple 
 issue, and a claim for partnership accounts was set up. The 
 defendant Khay Thye in his defence also raised a further and 
 independent issue of an award having been made. The Court 
 below found against both the award set up by the defendant Khay 
 Thye, and the account stated set up by the plaintiff, but made a 
 decree for partnership accounts. It is now objected on this 
 appeal, that this decree was improper. For the plaintiff, it has 
 been urged, that the Court had a discretion ; and under the circum- 
 stances, and in order to avoid multiplicity of suits, could under 
 section 1, cl. 7 of the Civil Law Ordinance 4 of 1878, make the 
 order. That clause is as follows : 
 
 " The Court in the exercise of its original and appellate jurisdiction, in 
 every cause or matter pending before it, shall have power to grant, and 
 shall grant, either absolutely or in such reasonable terms and conditions as 
 to it shall seem just, all such remedies, whatsover, as any of the parties 
 thereto may appear to be entitled to, in- respect of any and every legal or 
 equitable claim, properly brought forward by them respectively in such cause 
 or matter ; so that, as far as possible, all matters so in controversy between 
 the said parties respectively may be completely and finally determined, and 
 all multiplicity of legal proceedings concerning any of such matters avoided.'' 
 
 It seems to me, this clause is strictly applicable to the case 
 and a decree for accounts is within its provisions. I think there- 
 fore, this appeal fails on that point. On the question of costs, 
 however, I am of opinion the Court below should not, under the 
 
650 
 
 CIVIL CASES. 
 
 SlDGREAVES, 
 
 C. J., 
 FORD, ") 
 
 & £ J. X 
 
 Wood, ) 
 1384. 
 
 Khoo Yah 
 Hong 
 
 ■v. 
 
 Khat Thte 
 
 & ANOK. 
 
 circumstances, have ordered the appellant to pay the costs of the 
 plaintiff or the defendant Sin Eng Soon : and the order we should 
 make is, that each party should pay his own costs, both in the 
 Court below, and of thi9 appeal. _ 
 
 Ford, J. I concur in the judgment of the Chief- Justice. 1 
 think it was hard on the defendant Khay Thye to hare been made 
 to pay the costs, when the case was not decided only on the issue 
 put by the plaintiff before the Court. That issue was decided 
 against the plaintiff ; and in the ordinary state of things, he would 
 have been non-suited, and would have had to pay costs. The plain- 
 tiff however alters his case, and relies on the general powers of 
 the Court, under the Civil Law Ordinance, and then gets his 
 decree. I think, under these circumstances, it was but fair each 
 party should pay his own costs ; and under section 25 of the Courts 
 Ordinance III. of 1878, we should make that order, both as regards 
 the costs of the Court below, and of this appeal. 
 
 Wood, J. I concur in the first part of the judgment of the 
 Court. As to the costs, I still think, I was right in ordering the 
 defendant Khay Thye to pay the costs, both of the plaintiff and 
 the defendant Sin Eng Soon. I do not however intend formally 
 to dissent from the order proposed by the rest of the Court. 
 
 Appeal dismissed — Order as to costs, varied. 
 
 VULCAN MATCH CO. v. HEEM. JEBSEN & CO. 
 
 Penang. 
 
 Wood, J. 
 
 1884, 
 
 March 10. 
 
 Semble. The Registration of Trade-Marks Act 38 and 39 Vict., c. 91, does not 
 apply to this Colony, and section 6 of the Civil Law Ordinance IV. of 1878, which 
 extends to this Colony — mercantile law generally as it is in England, has no refer- 
 ence to so specific and exceptional a subject. 
 
 A trade-mark may be acquired in this Colony, under the common law, and 
 independently of the statute abovementioned. 
 
 The fact that the registered owner of a trade-mark, in addition to the regis- 
 tered mark, has other marks and figure about it, as mere adjuncts thereto, does 
 not deprive him of his right to such registered mark, or prevent his suing a per- 
 son who copies such registered trade-mark. 
 
 The measure of damages for copying a trade-mark, is the amonnt of injury 
 done to the plaintiff, by the illegitimate trade practised therewith by the defendant. 
 
 This was an action to recover damages for piracy of a trade- 
 mark, and an injunction restraining the defendants from further 
 using such trade-mark. The nature of the trade-mark, and 
 manner in which same was copied, and the points arising in the 
 case, sufficiently appear in the judgment. 
 
 Boss, for plaintiffs. 
 
 Thomas, for defendants. 
 
 Wood, J. In the course of the argument I incidentally 
 remarked, I was of opinion that substantially the registered trade- 
 mark, as shewn in the Certificate of Registration, is a globe, and 
 the word " Vulcan." I have found no reason, since the close of 
 the arguments, to alter that opinion. This globe is used by the 
 plaintiffs as a red globe, with a scroll in which the word Vulcan is 
 written. This scroll, although not part of the registered trade- 
 
STRAITS SETTLEMENTS. 651 
 
 mark, has taken hold of the fancy of the public in the Straits, Wood, J. 
 insomuch that the mark is known as the red circle mark or the 1884 ' 
 snake mark, the scroll being something like a double-headed snake, Vulcan 
 and I look upon it as clear, beyond all reasonable' doubt, that the Match Co 
 defendants have not only taken and used a portion, and to an un- v - 
 
 educated person aud a foreigner, who cannot read the language, sxs & Co. 
 the distinctive mark, but have copied the adjuncts as used by the 
 plaintiffs so as intentionally to deceive the public, and avail them- 
 selves to a not immaterial extent of the vested interests of the 
 plaintiffs in this particular brand of matches. 
 
 It has been argued for the defendants, that the plaintiffs must 
 use the registered mark, but here they have varied it in a material 
 degree. I cannot follow this argument, for I consider the trude- 
 mark is reasonably shewn to be a globe, and the word Vulcan, and 
 the size, colour, spaces of black and marks of coins are, as I have 
 said, adjuncts only, which are not in their nature distinct parts of 
 any trade-mark. 
 
 It was further contended that the Act 38 and 39 Vic, c. 91, 
 [Registration of Trade-Marks Act,] was introduced into this 
 Colony by Ordinance IV. of 1878, section. 6, and the requirements 
 of that Act had not been complied with. 
 
 I doubt however if the words "mercantile law generally" in 
 that section [a] have reference to anything so specific and so excep- 
 tional as the registration of trade-marks ; they must I think, be held 
 to have reference only to the law of buying and selling merchandise. 
 
 I hold that the general and common law of trade-marks ap- 
 plies here unless the Registration Act prevails ; that if that Act 
 is law here, I consider its requirements have been followed, and the 
 defendants have infringed the rights of the plaintiffs, in copying 
 a material portion of their trade-mark. If the Registration Act 
 does not apply, they have copied a trade-mark which the plaintiffs 
 have acquired by usure. 
 
 The measure of damages, I consider to be the injury done to 
 the plaintiffs by the illegitimate trade practised by the defend- 
 ants. They have sold 150 boxes bearing an imitation of the plain- 
 tiffs' trade-mark, but I consider that is not the measure of damages, 
 because they were offered at a lower price. 
 
 The plaintiffs might have suffered some loss to the extent of 
 a certain indefinite number of boxes which the defendants have 
 sold at a lower price, and also had the boxes sold by the defendants 
 been proved to be inferior the plaintiffs might have suffered in 
 credit but it was not proved that the defendants' goods were in- 
 ferior. 
 
 Under the circumstances, being of opinion that the action is 
 well brought, and that the plaintiffs have sustained some, though 
 
 [a ] Section 6 of Ordinance IV, of 1878 : " In all questions or issues which 
 may hereafter arise or which may have to be decided in this Colony, with respect 
 
 to the law of partnerships, joint stock companies, and with respect to 
 
 mercantile law generally, the law to be administered shall be same as would be 
 administered in England in the like case, at the corresponding period, if such ques- 
 tion or issue had arisen or had to be decided in England, unless in any case other 
 provision is or shall be made by any Statute now in force in this Colony or here- 
 after to be enacted." 
 
652 
 
 CIVIL CASES. 
 
 Wood J. 
 
 1884. 
 
 Vulcan 
 Match Co. 
 
 v. 
 Hekm. Jjeb- 
 
 SEN & CO. 
 
 an uncertain and probably a very small" sum, by way of damages, 
 I find for the plaintiffs, with $250 damages and costs, and also 
 grant a perpetual injunction, in the terms prayed. 
 
 SlNSAPOEE. 
 FOKD 
 
 ag. C.J., 
 1884. 
 
 May 26. 
 
 TAN H00N CHEANG & ORS. v. HERVEY. 
 
 A suit brought under section 15 of Act 14 of 1859, for recovery of land from 
 which the plaintiff has been forcibly dispossessed, is not " a suit for the recovery of 
 land," within the meaning of the section 165 of the Civil Procedure Ordinance V of 
 1878 ; and a defendant in such a suit cannot therefore merely plead that he is in posses- 
 sion, but must deal with the several allegations in the statement of claim, and disclose 
 his defence in his statement of defence 
 
 This was an action under section 15 of the Limitation Act 
 XIV of 1859, by certain residents of Malacca, against the defend- 
 ant, the Resident Councillor of that Settlement. The defendant 
 under the provisons of section 165 of the Civil Procedure Ordin- 
 ance V of 1878, merely pleaded that he was in possession. To 
 this plea the plaintiff demurred. By the said section 165, it is 
 enacted, that " no defendant in a suit for the recovery of land, 
 who is in possession by himself or his tenant, need plead liis title, 
 unless his defence depends on an equitable estate or right, or he 
 claims relief upon any equitable ground, against any right, or 
 title asserted by the plaintiff. But, except iii the cases provided 
 for in Chapter 6, [ss. 77-81] it shall be sufficient to state by way 
 of defence that he is so in possession. And may nevertheless rely 
 upon any ground of defence which he can prove, except as herein- 
 before mentioned." The point raised in this case sufficiently 
 appears in the judgment. 
 
 Davidson [Buckley with him] for plaintiffs. 
 Bonser [Attorney-General] for defendant. 
 
 . , Cur. Adv. Vult. 
 
 On this day judgment was delivered by 
 
 Ford, Acting C. J. The action in this case is brought under 
 the provisions of section 15 of Act XIV of 1859 [which however 
 
 is not in form pleaded] the words' of which are as follows : 
 
 _ XV If any person shall without his consent have been dispossessed of any 
 immovable property otherwise than, by due course of law, such person or any 
 person claiming through him shall in a suit brought to recover possession of 
 such property be entitled to recover possession thereof notwithstanding any 
 other title that may be set up m such suit, provided that the suit be com- 
 menced wrthm six months from the time of such dispossession. But nothins 
 in this section shall bar the person from whom such possession shall' have 
 been so recovered or any other person instituting a suit to establish his title 
 b° this Act y reo ° T er possession thereof within the period limited 
 
 The statement of claim in the action alleges previous owner- 
 ship by the pkintiffs of a certain piece of land, and dispossession 
 of the plaintiffs by the defendant without their consent within 
 six months of date of action brought, omitting however that such 
 dispossession was, otherwise than by due course of law, and asks 
 for recovery of possession of the said piece of land. 
 
STBAITS SETTLEMENTS. 
 
 653 
 
 & OES. 
 V. 
 
 Hkevby. 
 
 The defendant in his statement of defence. pleads simply that Fo * D j 
 he is in possession of the land. ^issi. ' 
 
 To this defence the plaintiffs demur not as to the form of the 
 
 plea, but as to its effect in law, urging that under the rules of T 4, N HooN 
 pleading, in sections 169 and 1 72 of the Civil Procedure Ordinance ' 
 ]878, it admits all facts which are not denied, and thus raises the 
 real issue between the parties as one of law only, and is more con- 
 veniently tried in this form than by going to trial here or at 
 Malacca. 
 
 The defendant is not prepared to have the case tried in this 
 form, on the ground that the plea must hot be taken in an action 
 for the recovery of land to admit facts stated in the statement of 
 claim and not denied or refused admission. 
 
 In support of this view, he cites the special provisions made 
 in section 165 for statement of defence in actions for recovery of 
 land, and the case of Banford v. McJnulty, L. E. 6 Q. B. D. 645, 
 and in the House of Lords in 8 App. Cas. 456, decided on analog- 
 ous sections in the English Act. There can be no doubt that the 
 defendant's contention is correct if this action is an action for the 
 recovery of land within the 1 65th section ; the authority of the 
 case before the House of Lords being conclusive on the point. 
 That case, however, and the case to which section 165 applies, 
 seem to me in substance very different from the present action. 
 It is true that the old action of ejectment, and the new action for 
 recovery of land were and are, in form, for the recovery of posses- 
 sion, but the question involved in those forms of action is always 
 one of title between the parties, a question which in the form of 
 action Drought under the Indian Act of 1859 is expressly shut out, 
 and seems a class of action not specially contemplated by our 
 Procedure Ordinance, as the case of the ordinary action for 
 recovery of land is. The form of action, although within the 
 words of section 165, is not, I think, within the purview j the 
 whole gist of actions under that section being a question of title, 
 the gist of action of the class brought being one of hostile and 
 unlawful seizure irrespective' of the title of the parties. There- 
 fore were I compelled to decide this question simply upon the 
 pleadings now before me and as a question of technical correctness, 
 without exercising those large powers of amendment which sec- 
 tions 9, 184 and 196 of the Procedure Ordinance give me, in order 
 to do complete justice between the parties, I should so far do so 
 in favour of the plaintiffs' contention, holding that suits of this 
 class are not within the provisions of section 165, such an action 
 differing so essentially in character from the ordinary action of 
 ejectment or recovery of land. 
 
 On the other hand, it is equally clear to me that even allow- 
 ing the plaintiffs' contention upon this point to be correct, I might 
 have in the result to dismiss this demurrer as their pleadings do 
 not allege that their dispossession was otherwise than in due 
 course of law : a defence clearly within the rights of the defend- 
 ant to raise on the argument of the demurrer. But the Legisla- 
 ture has here, as I think, given, and very wisely given, large 
 powers to the Judges, powers not contained in the analogous Acts 
 
654 
 
 CIVIL OASES, 
 
 FOBD, 
 
 ag. C. J. 
 1384. 
 
 Tan Hoon 
 
 Cheang 
 
 & OER. 
 V. 
 
 Hervet. 
 
 in England [vide sections 9 and 196 before referred to], when the 
 real issue between the parties is apparent, to amend and put plead- 
 ings in such form as without further expense or delay shall be 
 necessary to do complete justice between the parties : and taking 
 this view of my duties generally, but more especially in a case of 
 this kind which has been removed from Malacca for the very pur- 
 pose of avoiding needless delay and expense, what I propose to do 
 
 is this : . 
 
 To direct motion for demurrer to stand over ; to give plaintiffs 
 leave to amend their statement of claim within one week by add- 
 ing that part of section 15 of the Act of 1859 which he has omitted ; 
 with leave to defendant to amend his statement of defence within 
 a week from service of amended statement of claim upon him, 
 denying, declining to admit, or otherwise, as he may be advised, 
 the statements of facts in such amended claim. Whether the 
 cause can be heard again on motion of demurrer, or go to a hear- 
 ing on questions of both law and fact, will have to be determined 
 by the course the defendant may pursue in amending, or not 
 amending, his statement of defence. 
 
 It is obvious that in a case of doubt [such as the question of 
 the applicability of section 165 to actions of this kind may be said 
 to be] , it would be very unfair to the defendant to compel him 
 to abide by his pleadings without an opportunity of denial of 
 facts, which really constitute the plaintiffs' right to bring this 
 action. 
 
 CHEAH TEK THYE v. HASSAN KUDUS. 
 
 Penano. A memorandum in an Auctioneer's Book, setting out conditions of Sale, at foot of 
 
 which was his signature as auctioneer — and then setting out, in columns, the nunibers of 
 
 Wood, J. lots sold, measurements, name of purchaser, amount of purchase money, and signature 
 1884. of purchaser, in which last column, the purchaser signed his name opposite certain lots, 
 
 but which did not give a description as to the locality of the lots, nor use words connect- 
 
 August 14. i n g the conditions of sale with the lots following, 
 
 Held, a sufficient memorandum, or contract in writing, within section 4 of the 
 Statute of Frauds. 
 
 A vendor cannot maintain an action against a purchaser for non-completion of the 
 purchase, if it can he shewn that his title is open to serious question, and possible litiga- 
 tion with contiguous' land owners. 
 
 Defendant purchased, at various prices, certain lots of land from the plaintiff, each 
 lot being knocked down to him separately, whereupon he signed a memorandum of pur- 
 chase against each lot, but subsequently declined to complete the purchase, as the 
 plaintiff's title deeds did not appear to contain the whole quantity of land put up by 
 him in lots to anction, on the occasion in question, and also a large portion of the 28 
 lots purchased by him [defendant] was claimed by a contiguous land-holder. The exact 
 quantity laid claim to, however, it was difficult to ascertain without litigation or a full 
 survey of the District. 
 
 Meld, that the plaintiff's title was faulty in a material point, and he could not there- 
 fore recover damages for the non-completion, by the defendant, of the purchase. 
 
 Action to recover damages for breach of contract for the pur- 
 chase of 28 lots of land at Sungei Pinang, in Penang. Plea inter 
 alia 1. that the defendant did not contract, and 2. that the plain- 
 tiff had no title to a material portion of the land sold. Issue 
 thereon, It appeared that the plaintiff, an auctioneer, sold a larp-e 
 
STRAITS SETTLEMENTS. 655 
 
 strip of land in Sungei Pinang aforesaid, which he had divided W -^ 3, 
 
 into a great many lots ; that the whole of the land so sold by hiin ' 
 
 was said to he comprised in Grant No. 937, estimated to contain Cheah Tbk 
 21 square orlongs, or thereabouts; that the defendant purchased Thte 
 28 of these lots measuring 460 x 480, and at the time of his pur- Hassa ^ Ko _ 
 chase, as each lot was knocked down to him, signed a meinoran- dtxb. 
 dum of purchase which is hereinafter set out ; that he subsequently 
 declined to complete the purchase, whereupon the plaintiff brought 
 this action. For the plaintiff it was contended, the defendant 
 neglected to complete the contract as he had not the funds to do 
 so. For the defendant it was alleged, that he had always 
 insisted on the plaintiff shewing his title to the said 28 lots, but 
 as the plaintiff neglected to do so, he [defendant] declined to com- 
 plete the purchase. It also appeared that a large portion of the 
 land comprised in the 28 lots, adjoined the land of one Haji Ma- 
 homed Salleh, who claimed that a portion of the land included by 
 the plaintiff in the 28 lots, belonged to him, — but as his Grants 
 only gave the area and not the boundaries and measurements of 
 his land, ib was impossible to say how much of the 28 lots was 
 included in his Title Deeds. It further appeared, that the whole of 
 the lands divided into lots by the plaintiff, and of which the 28 
 lots sold to defendant was part, comprised an area of 100 and odd 
 acres, whereas the land he was entitled to under Grant No. 937, 
 only comprised 21 orlongs, as already stated. It was impossible 
 to tell, without a complete survey of the whole district, whether 
 the portion of the 28 lots sold to defendant, and claimed by the 
 said Haji Mahomed Salleh, was included in the 21 orlongs or not; 
 but it appeared to be more than probable that it was not, as the 
 Sungei Pinang, which was the Northern boundary of the land 
 comprised in Grant No. 937, was a fixed land mark, and the por- 
 tion of the 28 lots claimed, apparently laid a greater distance from 
 this river than it might be supposed, land included in the 21 
 orlongs, would lio. 
 
 The following was the memorandum of purchase signed by 
 the defendant : 
 
 CONDITION'S OF SALE. 
 
 " 1. One-third of the purchase money to be paid on the day of sale. 
 
 2. Possession to be given on completion of purchase money within 3 
 days. 
 
 3. Expenses of conveyance and stamp duty to be borne by the 
 purchaser. 
 
 4. On any failure of payment as above, the property to be re-sold, and 
 the deficiency, if any, together with the expenses to be borne by the pur- 
 chaser in default. 
 
 5. The property sold to be at the risk and expense of the first pur- 
 chaser immediately the lot is knocked down. 
 
 CHEAH TEK THTE, 
 
 Auctioneer." 
 Penang, ") 
 
 29th December, 1883. j 
 

 656 
 
 
 
 CIVIL OASES. 
 
 
 
 "Wood, J. 
 
 The following are 
 
 the lots Bold. 
 
 
 1884. 
 
 
 
 
 Ceeae Tbk 
 Thte 
 
 V, 
 
 Hassan Ku- 
 
 No. of 
 Lot. 
 
 Measurement. 
 
 Name of parchaser. 
 
 Amount oi 
 
 purchaser 
 
 money. 
 
 Signature of 
 purchaser. 
 
 
 
 
 
 
 dus. 
 
 
 
 
 $ cts. 
 
 
 
 76 
 
 20 x 120 
 
 Hassan Kudus. 
 
 270 00 
 
 H. Kudus. 
 
 
 77 
 
 »» 
 
 »» 
 
 JJ 
 
 tt 
 
 
 78 
 
 
 *t 
 
 n 
 
 3} 
 
 
 
 79 
 
 
 
 n 
 
 tt 
 
 it 
 
 
 80 
 
 
 
 >i 
 
 it 
 
 it 
 
 
 81 
 
 
 „ 
 
 »j 
 
 tt 
 
 jj 
 
 
 82 
 
 
 f 
 
 >j 
 
 it 
 
 jj 
 
 
 83 
 
 
 1 
 
 Hassan Kudus. 
 
 236 00 
 
 H. Kudus. 
 
 
 84 
 
 
 J 
 
 Hassan Kudus. 
 
 240 00 
 
 H. Kudus. 
 
 
 85 
 
 
 
 jj 
 
 jj 
 
 
 
 86 
 
 
 9 
 
 ,, 
 
 j» 
 
 Jt 
 
 
 87 
 
 
 ) 
 
 j» 
 
 JJ 
 
 >t 
 
 
 88 
 
 
 t 
 
 
 
 
 
 89 
 
 20 x 117 x 1 19 
 
 )( 
 
 
 
 
 132 
 133 
 134 
 
 20 x 120 
 
 Hassan Kudus 
 
 310 " 00 
 
 H. Kudus. 
 
 
 »j 
 
 " 
 
 JJ 
 
 JJ 
 
 
 135 
 
 
 
 
 ** 
 
 
 136 
 
 tt 
 
 
 JJ 
 
 JJ 
 
 
 137 
 
 JJ 
 
 Hassan Kudus. 
 
 290 " 03 
 
 H. Kudus. 
 
 
 138 
 
 )) 
 
 
 
 
 
 139 
 
 
 
 
 JJ 
 
 
 140 
 
 
 
 JJ 
 
 " 
 
 
 141 
 
 
 
 JJ 
 
 JJ 
 
 
 142 
 
 JJ 
 
 
 JJ 
 
 JJ 
 
 
 143 
 
 144 
 
 JJ 
 
 Hassan Kudus. 
 
 420 " 00 
 
 H. Kudus. 
 
 
 145 
 
 18 x 112 x 115 
 
 u 
 
 jj 
 jj 
 
 JJ 
 JJ 
 
 On conclusion of the plaintiff's case, 
 
 Thomas for defendant submitted, that there was no sufficient 
 contract or memorandum in writing within section 4 of the Statute 
 of Frauds [2y Car. II c. 3] ; that the conditions of sale were not 
 part of the contract, and though signed by the auctioneer, and 
 immediately preceding the description of the particular lots, was 
 not necessarily connected with the lots so described ; that conti- 
 guity alone did not suffice, and there were no words to connect 
 the conditions with the lots sold. The defendant signed opposite 
 the several lots knocked down to him, but there was nothing to 
 indicate his assent to the conditions of sale ; that the fact that 
 such conditions were already written and standing in the position 
 they were, did not make any difference, even though intended to 
 be the conditions of sa e of the particular lots following: were it 
 otherwise, the very object of the Statute would be deflated and 
 paro evidence would be required to supply that which the statute 
 required to be in writing. There were also no words of contract 
 
 nofsuffi i^fr° r -?,° ld ''', 0rthe Hke ' a ^the W ^ ^owas 
 not sufficiently described, and parol evidence was also required to 
 shew that the particular lots, mentioned in the memorandum 
 referred to the land at Sungei Pinang : the descrip™ was 
 consistent with a sale of land in any part of the Settlement 
 
STRAITS SETTLEMENTS. 657 
 
 Van Someren [Capel with him] for plaintiff was not called on. Wood, J. 
 
 Wood, J. I consider that the conditions of sale are part of 1334 - 
 the contract, and are sufficiently connected therewith and there- Cheah Tek 
 fore a good memorandum of purchase within the Statute of Frauds. Thye 
 The signature of the defendant, under the column "name of pur- v - 
 
 chaser," was sufficient to shew he was the purchaser of that lot ***^ u ~ 
 opposite his name, and the entry, taken altogether, shew the 
 plaintiff to be the vendor, and defendant the purchaser of such 
 lots. The subject-matter of the purchase is also capable of being 
 identified by parol testimony, and this is permissible by law. 
 
 The case then proceeded on the merits, when the several 
 facts before narrated, appeared in evidence. The questions then 
 raised and argued, sufficiently appear in the judgment. 
 
 Van Someren [Capel with him] for plaintiff, 
 Thomas for defendant. 
 
 Cur. Adv. Vult. 
 
 September 15. Wood, J. In this case, judgment will be for 
 the defendant on the following grounds : — Although I find as a 
 fact, that no demand of proof of title was made, or any question 
 of title raised by the defendant before action brought, yet the 
 plaintiff is in this position, that the piece of land — portions of 
 which the defendant agreed to purchase — are faulty in its boun- 
 daries, more being included in the area of that piece of land, — por- 
 tions only of which, were sold to defendant — than he is entitled 
 to, and that to a considerable extent. It would appear to be im- 
 possible to settle the exact dimensions of the lot, or its exact 
 position, without agreement as to boundaries between contiguous 
 owners, or a trial at law : a defect in title, not capable of money 
 valuation, so as to admit of the application of any equitable view 
 of the case. 
 
 I am of opinion, that with the serious defect of title, the 
 plaintiff has no cause of action: against the defendant at law, or in 
 equity, unless he is able to shew affirmatively, that the entire piece 
 of land which was sold in lots is, as to extent and position, beyond 
 reasonable doubt, his own. The defendant cannot in my judg- 
 ment, be sued for the non-completion of a purchase of land, the 
 title to which is shewn to be liable to dispute ; and although I 
 cannot find direct authority in point, I am of opinion, that as a 
 general principle, in an action for the non-completion of a pur- 
 chase of land,— if the defendant can shew that what he has con- 
 tracted to buy, is faulty to the extent of the title being open to 
 serious question, and which defect he has not waived, — the plain- 
 tiff cannot recover. In such a case, as it appears to me, the par- 
 ties are not ad idem as to the subject-matter of the contract. 
 Plaintiff agrees to sell, and defendant agrees to purchase a piece 
 of land, the title to which is assumed to be clear from doubt — but 
 the facts shew such n substantial defect in title, as is sufficient to 
 justify the defendant in his breach of contract. 
 
658 
 
 CIVIL CASfiS. 
 
 Wood, J. 
 
 Thte 
 
 v. 
 
 Hassan Ku- 
 dus. 
 
 I cannot in principle distinguish this case from the large class 
 of cases touching upon " misdescription." In effect, by his conduct, 
 CheITtek though not in actual words, the plaintiff has misdescribed the pro- 
 perty sold, and in such cases the rule of law is now clear. 
 
 "Where the misdescription, although not proceeding from 
 " fraud, as in a material and substantial point, so far affecting the 
 " subject-matter of the contract, that it may reasonably be sup- 
 " posed, that but for such misdescription, the purchaser might 
 " never have entered into the contract at all, the contract is avoid- 
 " ed altogether : under such a state of facts, the purchaser may be 
 " considered as not having purchased the thing which was really 
 "the subject of the sale".— Per Tindal C. J. in Flight v. Booth, 1 
 Bing. N. C. 377. 
 
 I have already, in the course of the case, found, as matter of 
 law, that there was a written contract of purchase on the part of 
 the defendant ; and as matter of fact I find, that the defendant, 
 though he was indifferent to the proof of title before action, has 
 never waived this particular defect in title. Seeing however, that 
 the question of this defect in title was never absolutely raised be- 
 tween the parties — or a demand of proof of title made before 
 action brought — I was in doubt as to whether the plaintiff was 
 not misled into bringing this action, and so entitled to a favour- 
 able consideration in the matter of costs, but as to this, inasmuch 
 as the defect is so far patent, that the plaintiff ought to have 
 known the faultiness of his own title, the judgment will be for the 
 defendant, with costs. 
 
 VEEMONT & OES v. PETE ELVER DOCK CO., LIMITED. 
 
 Penang. ln order to enable a plaintiff to recover damages for loss alleged to be due to 
 
 the negligence of the defendant, it must be clearly proved and without reasonable 
 
 Wood, J. doubt, that the loss is attributable to the negligence. 
 
 1884. So where the defendants in repairing a boat for the plaintiffs, repaired the 
 
 same negligently both as regards the materials and workmanship ; but such defect 
 
 August 28. was a fair height above the load line of the boat when on an even keel ; and the 
 boat sunk one morning, shortly after the repair had been executed, while at anchor, 
 lying on an even keel on a fair calm day, so that the defects were above water, 
 and the sinking of the boat could not be reasonably attributed to it,— and although 
 it was not shewn that there was any other defect in the boat, or any other cause 
 which could have led to her sinking, 
 
 Held, the plaintiffs could not recover from the defendants, the loss occasioned 
 by such ranking of the boat. On appeal this deeison was affirmed. 
 
 Held, also [by the Court below] that although the negligence in the defend- 
 ants repairs necessarily hastened the sinking of the boat, after the defect had got 
 below the level of the water, yet, unless the sinking could bo shewn to be attribu- 
 table to the detect, as a prime or material cause, the action was not maintainable. 
 
 , . ^. ~ ion n for dam ages for negligent repair of a boat of the 
 nlaintitts, whereby she sank, and her whole cargo Tsugar] was 
 lost, i-lea 1. denying the negligence ; 2. denying that the sinking 
 o± the boat was attributable to the alleged negligent workman- 
 ship. Issue thereon. There was also a counter-claim for work 
 and labour done and a defence thereto, bnt nothing turned on it 
 
STRAITS SETTLEMENTS. 
 
 6S9 
 
 which requires to be reported. The facts and evidence, and the 
 points raised, are fully referred to in the judgment. 
 
 Ross for plaintiffs. 
 
 Van Someren for defendants. 
 
 Cm. Adv. Vutt. 
 
 September 12. Wood, J. In this case I have delayed giving 
 final judgment not from any doubt as to the result, but with the 
 view of enabling the plaintiffs should they be dissatisfied with it, to 
 apprehend with clearness the several points of law or fact raised 
 iu the case. 
 
 As matter of fact, I find that the Gheum planks put in by 
 defendants were slightly green and liable to shrinkage ; it was, I 
 think, fairly their duty in repairing the top sides of the boat in 
 question, to have replaced teak by teak, which is a wood least 
 liable to shrinkage ; and more particularly in putting in 2 of these 
 Gheum wood planks from some oversight or neglect they had 
 allowed a space to intervene between 2 planks as wide as f of 
 an inch for a distance of some 2 feet on her starboard side at a 
 height of 6 inches from the load line when freighted with a full 
 cargo. This, I think negligence on the part of the defendants. 
 
 It is however clear to my mind that in order to enable the 
 plaintiffs to recover for full amount of the loss of their cargo of 
 sugar the accident which, caused this loss should be clearly and 
 without reasonable doubt attributed to the defects which I have 
 already adverted to. The oiras of this proof was upon the plaintiffs 
 and in this lay the real difficulty of the case. 
 
 The plaintiffs showed by means of evidence, which, if uncontra- 
 dicted could have carried conviction with it, that the boat fully 
 loaded left Bukit Tambun and arrived safely at Pulau Era, where 
 at 4 or 5 o'clock a.m. she was safely anchored and free of water. 
 That then the wind blowing fresh from the N.E., she made one 
 tack towards Pulau Jeraja and going about made her west tack 
 towards Juru, that on this the port tack she listed naturally 
 towards the starboard side, thus submerging the faulty seam 
 which was as above observed 6 inches above her load line when 
 on an even keel. That the men then noticed, after some i hour's 
 sailing on this port tack that the ship was making water fast, 
 and being unable to detect from what leak the water was making, 
 they kept on their course for Juru, and the nearest land, but not- 
 withstanding all their efforts in pumping and bailing, she went 
 down not heading for Juru, but at the moment of foundering 
 swinging round an angle of some 120 degrees and eventually 
 sinking with her head pointing to Penang. 
 
 This account if strictly to be relied on, might fairly prove the 
 case for the plaintiffs, though it may possibly be questioned, 
 whether the water pouring through the space, between the faulty 
 planks | of an inch wide, but in which the oakum still remained 
 — though doubtless loosyly packed, until driven through the seam 
 by Mr. "Vermont at Prye Dock after the boat was raised — 
 could have caused her to founder in so short a time — and her 
 subsequent lurching in the ast of sinking, so as to cause her to 
 
 Wood, J. 
 
 1884. 
 
 Vermont & 
 
 OBS. 
 
 v. 
 
 Pete Kiveb 
 
 Dock Co., 
 
 Ld. 
 
660 CIVIL OASES. 
 
 Wood, J. s i n t w ith her head in the direction of Penang, is a coincidence 
 
 1884- somewhat startling. 
 Vermont & These facts were supported by the evidence of the native 
 
 ©us. boatmen, and was given with every reasonable clearness and 
 
 Prt/rt ™ apparent truth. 
 
 Dock Co , To this is opposed the evidence of Mr. Irving which I give in 
 
 Ld. full, so far as it relates to this branch of the matter. 
 
 " I am an Engineer on my own account and reside at Sunghy Penang. 
 " I remember the cargo boat going down. I was at Jura, on the end of , Juru 
 " hill, the S- end. I was putting up a stone crusher for Government. I could 
 " see all that was going on around. At about a little after day-light, about 
 " 6, I saw the boat a little to the south of Juru not a mile and i — from a mile 
 " to a mile and i— from Juru Hill. She was at anchor all the morning so far 
 " as I saw, no sail set. I could see her distinctly. I knew her to be Mr. 
 " "Vermont's cargo boat, a sugar boat. The other boat was a rum boat belong. 
 " ing to Mr. Yermont. The boat was lying with her head towards Penang, it 
 " was the first of the springs. I noticed her again. From time to time I 
 " continued to see her still at anchor, until at 8 she commenced to swing on 
 " the same spot, with her head towards Penang and her stem towards the 
 " Province. She listed over to starboard — this attracted my attention. I 
 " then never took my eyes off her. 
 
 " About 3 minutes after that she sunk, stem foremost ; and when she 
 " went down she sent a large volume of water up as high as the mast spray. I 
 " imagine this cause through the hatches. She was then still at anchor. 
 " She had never moved from the spot and was never under weigh. The sails 
 " were the same as when I saw her in the morning. • I did not take particu- 
 " lar attention of the men on board. I ran to try and get a boat, but I could 
 " not I noticed that the rum boat took up her anchor. She set her sails and 
 " I could see the splash as of oars in the water — they pulled up to her. She 
 " was i a mile from the other boat. There were one or two Chinese junks 
 " nearer to us. They made up to the sinking boat and took the men off. 
 " It was a very still morning. There was not a breath of wind, all boats 
 " were at anchor. The sea smooth as the table. I have had no communi- 
 
 " cation with the men 
 
 "-I suppose she must have listed over from water being in her, 
 
 " boats do so list. I did not see her pumps. This is the only cause I can 
 " suppose for her sinking. She was distant from Pulau Kra as far as from 
 " Pulau Jeraja." 
 
 Cross-Examined " I slept at Juru that night and for a fortnight before I 
 
 "did not see her overnight. She may have been there. We commenced 
 
 " work at 6 or 6-30. 1 saw her the first thing in the morning as I cast my 
 
 " eyes over the channel. She had her head towards town. I was walking 
 
 " about and seeing after the work. I can swear, that what I am told was 
 
 " said by the Captain and other witnesses, is false, because I had a Ion" 
 
 chair I got up and sat down in the chair. She could not have made a 
 
 long tack for she was in the same place as when I first saw her, in the same 
 
 relation to the chair and a house. I could not have seen them at Pulau 
 
 Kra unless outside of Pulau Kra altogether. It was not blowing fresh I 
 
 ;; am equally positive as to that. I first gave an account of this which I have 
 
 said now _ about the boat being stationary to Mr. Van Someren and Mr 
 
 Logan I don t remember if I told Mr. Vermont. I can't tell how long it 
 
 was before I saw her hst that I saw her last. I could not help seeing lev 
 
 but took no particular notice It was a very clear morning. The 2nd 
 
 boat was from i to f of an hour in getting up to the 1st boa". 
 
 Re-exd " I had no European with me when I saw the boat go down ' I 
 suppose the compressed air blew up the water in spray as she went down." 
 
 # It was strenuously urged by Mr. Eoss for the plaintiffs that 
 in view of this manifest contradiction between the two classes of 
 
STRAITS SETTLEMENTS. 661 
 
 witnesses, the Court ought to rely upon the evidence of the men, Sidoreaves, 
 and that the evidence given by Mr. Irving was unreliable. To this For ^ '• 
 view of the case I could not incline. I cannot suppose that Mr. & Cj.j. 
 Irving would have ventured to assert his perfect recollection of the Wood, j 
 details of an accident which must have made a strong impression 1884 - 
 upon him unless they were true. It was admitted that Mr. Irving Vermont & 
 was a gentleman of character and ability, and as he himself stated obb. 
 in Court having had some 10 years' experience at sea. v - 
 
 With such strong contradiction in the case, it is impossible to dockCo^ 
 say the plaintiff has clearly made out his case, in attributing the Ld. 
 loss of the cargo to the defects which existed in the vessel as re- 
 paired by the defendants. I cannot find a verdict in his favor at 
 a peradventure. The boat had been lying as Mr. Vermont says 
 for 10 days " at the works rising and grounding with the tide as 
 " all other boats do, during weather in which there was no rain 
 " but with strong easterly dry winds blowing." The boat sank 
 beyond reasonable doubt from leaks somewhere, but if Mr. Irving's 
 evidence is to be taken as true, she sank while at anchor and on 
 an even keel. Possibly, I may say probably, the dry winds may 
 have opened seams between her water-line when light, and her 
 load line when loaded, and she may have put to sea in a thorough- 
 ly leaky condition, and by the negligence of her crew in neglecting 
 to sound her she may have gone down in this way. 
 
 Possibly, almost necessarily, the faulty repairs executed by the 
 defendants may have hastened the catastrophe as soon as she sunk 
 below the faulty seam, but unless the loss of the boat can be 
 clearly shown to be due to the defects I have named, as a prime 
 cause, I cannot in the teeth of so direct a contradiction as exists 
 in this case, and with a full consideration of the unreliability of 
 native testimony, find in favor of the plaintiff. 
 
 The plaintiffs appealed against this decision, — leave to 
 appeal on the facts, having been applied for and refused. 
 
 27th February, 1885. The appeal now came on for hearing 
 before the full Court of Appeal consisting of Sidgreaves, C. J., 
 Ford and Wood, J. J. 
 
 Boss, for the appellants contended, that the plaintiffs having 
 proved there was a defect in the boat, due to the bad workmanship 
 of the defendants, and that the boat had sunk, had made out a 
 prima, facie case and the onus was on the defendants to shew some 
 other defect which caused the loss : that in the absence of their 
 doing so, it was but fair and reasonable to presume that the boat 
 sank in consequence of the defect he had shewn. Radley v. London 
 & North Western Railway Co., 9 L. E. Ex. 71, on Appeal 10 L. E. 
 Ex., 100, and on further appeal, 1 L. E. App. Cases. 754. At all 
 events, if such defect did not cause the boat to sink, it contributed 
 to the sinking of the boat, as once the defect was under water, it 
 poured in in greater quantity and hastened her sinking. The 
 Court below admitted this was probable, and the defect 
 therefore, if it did not originate, certainly increased 
 the sinking. Smith v. London & South Western Railway Co., 
 5 L. E. C. P. 98, on appeal 6 L. E. C. P. 14. It was no use 
 for the defendants to say the boat would have gone down. 
 
662 CIVIL ClsES. 
 
 SiDftREAVEs, even without the defect in their workmanship, Nitrophosphate Co. 
 
 c - J - v. London & St. Katherine Dock Co., 9 L. E. Ch. Div. 503. In fact 
 
 F °* D ] J J ^ was ty no means proved such would have been the result : the 
 
 Wood, ) ' ' plaintiffs might as well say, although there might have been a 
 
 1884. defect elsewhere in the boat, she would not have gone down, but 
 
 Vebtont & for the defendants' bad workmanship increasing the volume of 
 
 obs. water rushing into the boat.' The boat but for that defect, might 
 
 •»■ have reached land which was not far off. The plaintiffs were 
 
 P I) TE E C T ™ entitled to have tlieir boat tiS ht and staunch, and the defendants 
 
 0< Ld. °" certainly did not so repair the boat, as is found as a fact by the 
 
 Court below, and the plaintiffs are, at least, entitled to have the 
 
 damages apportioned between that caused by the defendants' 
 
 defective workmanship, and that caused by any other defect. 
 
 Burroughs v. Marsh Gas Co., 5 L. E. Ex. 67. 
 
 Van Someren, for respondents was not called on. 
 Sidgreaves, C. J. The Judgment of the Court below might 
 be somewhat unguarded as regards certain of its expressions, but 
 it finds definitely that the loss was not due to the defect. The 
 plaintiffs might have another action for breach of contract for the 
 repairing of the boat, and recover the yalue of proper wood and 
 labour that should have been used and employed, but to try and 
 recover for the present loss by reason of such negligence, is a 
 different matter, and unless the negligence was connected with 
 the loss, the plaintiff cannot succeed. The loss here, it has been 
 found, had nothing to do with the defect. The judgment, in my 
 opinion, should therefore be afiirmed. 
 
 Ford, J. The facts of this case cannot be gone into by us ; if 
 it could, possibly another mind might have reached at a different 
 conclusion than that come to by the Court below. That Court 
 however has distinctly found that the defendants' negligence did 
 not cause the loss. The language of the judgment in the Court 
 below might perhaps admit of doubts, as to the exact finding of 
 the Court ; for instance, that if there was no contributory negli- 
 gence, yet the defect " hastened the catastrophe." If so, possibly, 
 the defendants would be liable to the whole damage, as it would 
 be impossible to apportion it. But the learned judge who decided 
 the case, has told us, he never intended to express that, but only 
 that the defects did not cause the loss. The Court below having 
 so found, we caimot disturb the verdict. 
 
 Wood J. My only regret is, that I did not express myself 
 more clearly. Instead of saying " as a prime cause," I should 
 have said " a material cause." 
 
 [re] See Siner v. G. 
 Adams v, Lancashire . 
 L. E App. Cases, 193 
 
 Judgment affirmed [a.] Appeal dismissed with costs. 
 
 i Siner v. G. W. By. Co., 3 L. R. Ex. 152, on App. 4 L. E. Ex 117 ■ 
 casUreliy. Co,, i L. K. C. V. 739 ; Jackson v. Metropolitan liy. Co., 3 
 
STRAWS SETTLEMENTS. 
 
 66& 
 
 SHEDUMBEJJM CHETTY v. ADAGAPPA CHETTY. 
 
 A principal sued his agent for an account, and after getting a decree for reference, Singapore. 
 
 objected before the Registrar, to certain items which appeared in the agent's accounts, 
 
 on the ground that he had exceeded his authority. The Registrar was of opinion, that Porp, 
 such an objection could not be entertained by him, and by his Report reserved the items ag. C. J. 
 and objection for the Court. On the Report being submitted to the Court, the prin- 1834. 
 
 cipal did not further press his objection, and the items were allowed as matter of course. 
 
 He then sued the agent for malfeasance and misfeasance in regard to these items, and August 29. 
 the defendaut pleaded res judicata. 
 
 Held,, [affirming the judgment of the Court below] that the matter was res judicata. 
 
 The principal, in the same enquiry into accounts, cross-examined the defendant as 
 to a certain other item in the account, but raised no objection thereto ; and the Regis- 
 trar, assuming the same to be correct, allowed the item. He then sued the agent for 
 malfeasance and misfeasance in respect of this item, to which action the defendant 
 pleaded res judicata. 
 
 Held, [by the majority of the Court, Wood J. dissenting], that the matter in res- 
 pect of this item, was not res judicata, as the plaintiff had neither raised, nor could he 
 be said to have had a proper opportunity for raising an objection to it in the previous 
 action. 
 
 The above two cases distinguished from each other. 
 
 A principal does not, — [in respect of an act of an agent who has exceeded his 
 authority by making a loan, but who has obtained judgment therefor, and taken out 
 a writ of execution against the debtor] , — ratify the act of the agent, by levying on such 
 writ, and applying the proceeds thereof, in part satisfaction of the claim. [Wood, J. 
 dissenting]. 
 
 Action to recover damages for malfeasance and misfeasance 
 of duty as agent or servant of the plaintiff, and for balance due 
 on accounts. The defendant in his statement of defence, alleged 
 he had authority from the plaintiff to act as he had done, and also 
 that the plaintiff's claim was res judicata. The following were 
 the facts giving rise to the case. The plaintiff had been for some 
 years a money lender and trader in Singapore. In January 1878, 
 being about to leave Singapore for India, he appointed the 
 defendant his agent, and left with him a power of attorney. In 
 January 1882, the plaintiff being dissatisfied with the way in 
 which the defendant had attended to his affairs, returned to 
 Singapore, and on the 31st March, gave the defendant notice 
 determining the agency. The defendant however continued to 
 act for plaintiff till 10th April following. Not being able to get 
 from the defendant what he considered satisfactory accounts, the 
 plaintiff, in August following, commenced a suit against the 
 defendant for such accounts, and in due course obtained a decree 
 for reference. When the matter was before the Registrar, the 
 defendant put in an account, in which, among other items, 
 appeared the two following : I. a sum of §6,000 paid by the 
 defendant as agent for the plaintiff, on a promissory note for that 
 amount, in which the plaintiff, through the defendant as his agent, 
 became surety for one Seva Eaman Chetty, a brother of the defend- 
 ant, and to account of which item, the defendant, as such agent, 
 had been repaid certain sums which reduced the original debt of 
 $6,000 to $4,414.83. II. A sum of $655.95 due by one Dorasawmy, 
 a late Government contractor, for money lent him by the defend- 
 ant, as plaintiff's agent, in order to enable him to 'carry on his 
 contracts. This second item was not referred to specifically in 
 the pleadings, and although in the enquiry before the Registrar, 
 the plaintiff cross-examinee' the defendant with reference to same, 
 
m CIVIL OASES. 
 
 Fobd, yet no objection was taken by him to the item, and' the same was 
 a i' g 84 allowed by the Registrar in the accounts. The first lot of items 
 
 ' was specially objected to by plaintiff, before the Registrar, on 
 
 Shedxjm- the ground that the defendant as.plaintiff 's agent, had no author- 
 
 bkumChettt if.y ^ s jg U tkg plaintiff's name as surety for a third party. The 
 
 Adaoappa Registrar declined to go into this question, considering it was 
 
 Chettt. one to be decided by the Court. In his Report, made in January 
 
 1883, on the accounts, he therefore reserved these items and the 
 
 objection taken to same, and referred the question to the Court. 
 
 On the Report being submitted to the Court in May 1883, the 
 
 plaintiff did not insist on his objection, and the items were allowed 
 
 as matter of course. The defendant was also allowed his wages 
 
 as agent, up to 10th April aforesaid, and the report was also 
 
 varied in respect of an item of $107.50, with which the Registrar 
 
 had surcharged the defendant. The result was, the final decree 
 
 in the said suit was against plaintiff, and in favour of defendant, 
 
 who was also allowed his costs, as between Solicitor and Client, 
 
 against the plaintiff. 
 
 In 1881, the defendant being unable to obtain payment from 
 the said Dorasawmy, commenced an action against him to recover 
 the aforesaid sum of $655.95, and got judgment therefor, and . 
 issued execution thereon. The action was brought by defendant 
 in his own name, but for the benefit of the plaintiff, his principal. 
 Nothing was recovered by him on the execution. On the arrival 
 of the plaintiff from India, as aforesaid, the aforesaid judgment 
 and writ [fi. fa.] were given ovev to him by defendant, and he 
 [plaintiff] thereafter seized, in the name of defendant, on the said 
 judgment and writ, certain property of the said Dorasawmy, and 
 realized only about §40 to account of the claim. He could recover 
 nothing further. 
 
 After the suit for accounts had been decided against the plain- 
 tiff as stated, he in the same year, 1883, commenced this present 
 action against the defendant, for malfeasance and misfeasance 
 
 ll^r^' V 1 - r eapect of the said two itpms of $4,414.83 and 
 ftt>55 95— to which, the defendant raised his defence of res judicata 
 based on the above fads. The case was heard on the 13th 14th 
 and 19th February, 28th April, 7th July and 13th August; and 
 finally this-day, ° 
 
 Donaldson for 'plaintiff contended, the defence of res judicata 
 failed, as plaintiff had no opportunity of recovering these damages 
 in the former suit, and referred to Nelson v . Couch 15CBNS99 
 
 Drew, [Bond with him] for defendant contended, the defence 
 of re, judicata was a complete answer to the action, and referred 
 to Brunsden v. Humphrey, 1 1 L. R. Q B Div 712 
 
 Ford J. held, as to the item $4414, 83, the matter was 
 rcsjudtccda, and accordingly disallowed the plaintiff's claim in 
 
 US l°lTh\ l \? Spe ° , ° f that item : but as 4arded the Second 
 item ? 950.95, the matter was not res judicata ; and as the defend- 
 ant had therein exceeded h s instructions tho nl»i«+iff 
 entitled to a verdict for that sum, and invest ^ essth * moTt 
 received by the plaintiff in the name of the defendant, froTtho 
 said Dorasawmy. Hw Lordship further held, that in payment 3 
 
STRAITS SETTLEMENTS. 665 
 
 this balance sum by the defendant to the plaintiff, the plaintiff Sidgreaves, 
 should assign to the defendant, for his benefit, the judgment Fo £^' 
 recovered by him, as plaintiff's agent, against the said Dorasawmy ; & ' j. j. 
 and that the costs of this suit, should be apportioned between the Wood, I 
 parties hereto, in respect of the above findings of the Court. 1884 - 
 
 Shedum- 
 Judgment accordingly. bbumChettt 
 
 v. 
 
 Both plaintiff and defendant appealed against this judgment, chettt. 
 and such appeals were separately heard before the Court of Appeal, 
 consisting of 8idgreaves, C. J., Ford and Wood, J. J. 
 
 7th April 1885. The plaintiff's appeal was now heard. 
 
 Donaldson for appellant. The plaintiff's claim, as regards the 
 item for $4,414.83, was not res judicata. The claim in the two 
 actions are different. The present one was for misconduct as 
 agent, a matter which could not have entered into the accounts 
 in the first. No doubt the plaintiff had a right then, to 
 repudiate the transaction, but that is not sufficient to estop him 
 now in claiming damages for it. If he abandoned anything, he 
 only abandoned that which he could not then recover. Barrs v. 
 Jackson, 1 Y. & Col. C. C. 585 ; Nelson v. Couch, 15 C. B. K S. 99 ; 
 Collins v. Cave, 27 L. J. Ex. N. S. 146; the case is also one of 
 hardship, as being caused by misunderstanding of plaintiff's 
 Counsel in the first suit : the matter is not res judicata in all 
 particulars. 
 
 Drew for respondent. The claim has been decided : the 
 Registrar's report has been before the Court, and the whole matter 
 disposed of. At all events, the issue was raised by the plaintiff, 
 and then abandoned, that is sufficient per Willes, in Nelson v. Couch, 
 15 C. B. N. S. 109. 
 
 Sidgreaves, C. J. The omission of the plaintiff to press his 
 objection at the proper time, after he had raised it and the 
 question was reserved for the Court for his benefit, — is, in my 
 opinion, a waiver of the objection. The item was thereupon 
 allowed, and is now a matter res judicata. 
 
 Ford, J. concurred. 
 
 Wood, J. There can be no doubt the matter is res judicata. 
 The plaintiff goes through the various steps of the first action, 
 and the points raised therein could have been determined. The 
 parties submitted this very point in the first action, and an 
 adverse judgment was given thereon, as regards the plaintiff. 
 How that judgment was given, we need not enquire. It is 
 sufficient that such a judgment was gi^eu, and while it is out- 
 standing, it affords a complete answer to this action. 
 
 Judgment affirmed. Appeal dismissed with costs. 
 
 8th April 1885. The defendant's appeal was this day heard. 
 
 Drew, for appellant. The Court having held the plaintiff's 
 claim as regards the' item for $4,414.83, is res judicata, 
 has constructively decided the present question. The accounts 
 
666 CIVIL CASES. 
 
 Sidoeeaves, were gone into with reference to this item of $655,95 ; the 
 
 c ' /■ defendant was cross-examined on it, the matter discussed 
 
 °& D [j. J. and sifted, and the item allowed by the Eegistrar. He made 
 
 Wood,) his report, allowing the item to the defendant, and no ex- 
 
 1884. C eption was taken . to that report in respect of this item, 
 
 Shedum- an d the report was, in that respect, confirmed. After that, 
 
 bbumChetty it is impossible to say the matter is not res judicata. But 
 v - the plaintiff is also debarred from recovering this item on 
 
 Chettt A another ground. By suing the defendant for balance of accounts, 
 with the knowledge of the facts, the plaintiff has ratified the act 
 of the defendant; but if not, by so suing, he has certainly ratified 
 the act, by taking up the judgment defendant recovered against 
 Dorasawmy, and levying execution thereon, and receiving the 
 proceeds thereof. Wilson v. Poulter, 2 Str. 859 ; Story on Agency, 
 § 259 ; Bmssell on Agency, 22 ; Smith v. Gologan, 2 T. B. 189 ; notes 
 to Smith v. Hodson, 2 Sm. L. C. 132, citing Smith v. Baker, 8. 
 L. E. C. P. 350, 357, per Honyman J. The plaintiff is, in truth, 
 blowing hot and cold. He also referred to Brewer v. Sparrow, 7 
 B. & C. 310. 
 
 Donaldson for respondent. The plaintiff did not in the first 
 action make any objection to this item, and so raised no issue 
 which could have been determined. He here seeks to recover that 
 which was not necessarily recoverable in the first action. As 
 regards the alleged ratification, the cases are not on all fours with 
 the present — they were not cases of principal and agent. 
 
 Wood, J. I am of opinion that the right of action in this 
 second action for the $655, is answered by the defence of res judicata. 
 The. first suit so far as this item is concerned, covers the same 
 ground as the second action, and the matter being disposed of in 
 the first action, is disposed of for good. There is only one ques- 
 tion in the matter,— does the suit in equity, cover the ground of 
 this action,— was the matter of this item in the second action, the 
 subject of enquiry, investigation and decision, in the first ? Unless 
 I misunderstand entirely the character of a suit for an account,— 
 the whole matter of the account is submitted to the Eegistrar, who 
 has to go through it, item by item, with a view in conformity with 
 the terms of the prayer, of deciding what is due from one party 
 to the other, which can only be, by seeing whether the several 
 items are to be upheld as constituting a money claim by one or 
 the other party against the other, however intricate and involved 
 may be the grounds of objection— subsequently when the report is 
 confirmed, the judgment is the judgment of the Court. 
 . , 0n th „ e second point, though not by any means satisfied of the 
 justness ot the law in such a case as this, I incline to the authority 
 of the cases cited, Snath v. Poulter, and Smith v. Balcer, which 
 seem to establish the principle, that a person availing himself of 
 the advantage gained by a transaction, to ever so small an extent, 
 is bound to admit the propriety of the act. Here, no doubt, the 
 question is between principal and agent ; but the ratio decidendi 
 would seem to be exactly applicable. I am of opinion, therefore 
 that this appeal should be allowed, and the judgment of the Court 
 below, so far as it is here appealed against, reversed. 
 
STRAITS SETTLEMENTS. 
 
 667 
 
 Sidgreaves, C. J. 
 
 It is no doubt for the public good that there Sidgmaves, 
 
 C.J. 
 
 >■ 
 
 Adagappa 
 Chettt. 
 
 should be an end once for all, to all litigation; but at the same 
 time, we must not carry out the doctrine of res judicata too far. £ D 
 It appears to me, we would be so doing, if we were now to reverse Wood, 
 the judgment of the Court below. In Nelson v. Couch [supra] 1884 - 
 Willes, J. says:- s — M _ 
 
 " The plea sets up the exception of res judicata, and, therefore, must beukChettt 
 shew either an actual merger or that the same point has already been decided 
 between the parties. This, I apprehend, is clear from the authority of 
 Comyn's Digest, action [K. I.], and the following divisions. But it is unne- 
 cessary to refer to the ancient authorities, further than to say that they are 
 entirely consistent with the modem ones, as well as with the rule of the Civil 
 Law. Where the cause of action is the same, and the plaintiff hag had an 
 opportunity in the former suit of recovering that which he seeks to recover 
 in the second, the former recovery is a bar to the latter action. To consti- 
 tute such former recovery a bar, however, it must be shewn that the plaintiff 
 had an opportunity of recovering, and hut for his own fault might have recover- 
 ed, in the former suit that which he seeks to recover in the second action, 
 [p. 108 et seq.] 
 
 Now, it is not clear here, that the plaintiff had ever raised an 
 objection to the item, or had an opportunity of contesting the 
 correctness of it. It was rather assumed to be correct, as the 
 plaintiff had said nothing about it. In the other appeal, he dis- 
 tinctly raised the objection and then of his own fault, abandoned 
 it. I think that makes all the difference between the two cases. 
 This is not a matter of res judicata in its strict sense. As regards 
 the alleged ratification, I do not consider the acts relied on amount 
 to such. In my opinion, the judgment of the Court below was 
 correct, and the appeal should be dismissed. 
 
 Ford, J. I see no reasons for altering the opinion I formed 
 on this question in the Court below. There was certainly reason- 
 able ground for bringing this second suit, as it is not denied as to 
 facts; the defendant simply relies on res judica ta. The matter in 
 the first action however, was not fully tried, and the plaintiff cannot 
 be said to have had a proper opportunity of raising it. The only 
 points brought before the Court and Registrar, were matters of 
 pure account ; not the misfeasance here complained of. I think 
 that is how the last appeal is distinguishable from the present. 
 The acts relied on as a ratification, do not amount to a condona- 
 tion of, or assent to, the act of the defendant in making the loan 
 to Dorasawmy. The majority of this Court agreeing with the 
 judgment of the Court below, that judgment will be affirmed, 
 and this appeal dismissed, with costs. 
 
 Appeal dismissed with costs. 
 
 MARKWALD & Co. v. McALISTER & Co. 
 
 The maxim caveat emptor admits of no exception by implied warranty, in cases 
 of sale of specific goods which are in existence, and which the purchaser had inspec- 
 tion of, before concluding his purchase. 
 
 The case of Randall v. Newson, 2 I/. R. Q- B. Div. 102 has not altered the law 
 in this respect ; and applies only to cases where a purchaser not only buys the 
 article for a particular purpose and communicates that purpose and object to the 
 vendor, but relies on the skill and judgment of the seller to supply what is wanted October 31. 
 without exercising his own judgment thereupon. 
 
 Singapore. 
 
 POED, 
 
 ag. C. J . 
 1S84, 
 
668 
 
 CIVIL CASES. 
 
 FOBD, 
 
 ag. C. J. 
 
 18.S4 
 
 Mabkwald 
 & Co. 
 
 ■D, 
 
 McAxlSTEE 
 
 &Co. 
 
 Handdll v. Newson [supra] and Brown v. Edgingtnn, 2 M. & G. 279, observed on. 
 Semble. It is not yet decided law, that there is no difference between an 
 ordinary vendor and a manufacturer, touching sales of goods on implied warranty. 
 
 Action for breach of warranty. The facts and arguments of 
 Counsel are sufficiently noticed in the judgment so as. to require 
 no statement here. 
 
 Donaldson for Plaintiffs. 
 
 Davidson for Defendants. 
 
 Cur. Adv. Vult. 
 
 On this day judgment was delivered by 
 
 Ford, Ag. C. J. This was a case to try the question whether 
 the defendants were liable in damages for the breaking of the 
 iron hook of a block which they had sold by their foreman or 
 shopman to the plaintiff under circumstances which I shall shortly 
 have to go through. But before doing so, I think it desirable to 
 state as clearly as I can what I take to be the law as to implied 
 warranty arising on the sale and purchase of chattels. After 
 careful consideration of the authorities, I quite adopt the law as 
 stated in the text of Mr. Benjamin's well known work on Sales of 
 Personal Property at page 633. As far as an ascertained specific 
 chattel, already existing, and which the buyer has inspected, is con- 
 cerned, the rule of caveat emptor admits of no exception by implied 
 warranty of quality. The words in italics are so printed in the 
 book. This seems to me to be the la.w, on the authorities. The 
 learned Counsel for the plaintiffs says that there is an exception 
 when articles are bought for a particular purpose communicated 
 to the vendor, and he cites in support of that contention the case 
 of Randall v. Newson [2 Q. B. D. 102, C. A.J, to which I shall 
 presently refer, as creating the exception. Now, Mr. Benjamin 
 at pages 652 and 653 refers both to this case and to its circum- 
 stances, which the Counsel for the Plaintiff considers an exception 
 to the rule. Mr. 13enjamin lays down the so-called exception in 
 these terms : " If a man bjyau article for a particular purpose 
 made known to the seller at the time of the contract, and rely 
 upon the skill or the judgment of the seller to supply whit is 
 wanted, there is an implied warranty that the thing sold will be 
 fit for the desired purpose, aliter if the buyer purchase on his own 
 judgment," and he refers to the case of Randall v. Newson. But he 
 certainly does not not refer to it as any exception to the rule as 
 laid down by him on page 633, nor does he refer to it as contra- 
 dicting or interfering with the proposition he lays down at page 
 652, in case the chattel is required for a particular purpose. I am 
 certainly of opinion, after careful study of the cases, that he is 
 right, and that the case does not alter the law as laid down by 
 him on the previous pages. The words of &U* Judges, in the form 
 of general propositions must not be too often taken to extend be- 
 yond the circumstanced of the case they are deciding, and this 
 should be borne in mind in reading Randall v. Newson, where ex- 
 pressions of the Judges taken without reference to the facts of the 
 case .might have a more extended meaning than, when read with 
 those circumstances, they would properly have. It is curious that 
 
STRAITS SETTLEMENTS, 
 
 Jt 
 
 in th&-case there was no inspection, and reliance was placed on 
 the skill and judgment of the seller. The Plaintiff ordered a 
 pole from his own coach-builder, relying on him, and had no 
 inspection. So the case does not, therefore, create an exception 
 to the first rule in Mr. Benjamin's work at page 633 ; and the 
 pole being ordered from a manufacturer, a man whose trade and 
 business it is to make it, there is naturally a strong and perhaps 
 absolute reliance upon the skill and judgment of the seller. 
 
 The case therefore of Randall v. Newson does not, in my opi- 
 nion, alter the law from what it was before, and as stated in the 
 text book noticed. 
 
 I should like also to refer to Brown v. Edgington, 2 M. & Gr. 
 279, a case referred to by the Counsel for the plaintiff, and 
 strongly relied on by him. I am desirous to call attention to the 
 remarks of Mr. Justice Blackburn [now Lord Blackburn] on that 
 case in the case of Readhead v. Midland Railway Company, L. R. 
 2 Q. B. 412, upon this very pv-int. The point to which I am now 
 referring has no direct reference to whether the agreement is a 
 contract to carry or a contract to sell. But Lord Blackburn states 
 the result of Brown v. Edgington in language if not identical with, 
 still wholly to the same effect as, the proposition of Mr. Benjamin. 
 He says : " The principle which I understand to be laid down in 
 Brown v. Edgington- is this, — that where one party to a contract 
 engages to select and supply an article for a particular purpose, 
 and the other party has nothing to do with the selection, but 
 relies entirely on the party who supplies it, it is to be taken as 
 part of the contract implied by law that the supplier warrants 
 the reasonable sufficiency of the article for the purpose." 
 Now it is perfectly true that some of the Judges in Brown v. 
 Edgington, did state that theie was no distinction to be drawn be- 
 tween a seller and a manufacturer ; but I adopt Mr. Benjamin's 
 observations upon that case exactly as he has written them. It 
 does not seem to me to be yet decided law, and the dicta were not 
 required for the circumstances of the case ; and I think Mr. 
 Benjamin himself seems to take that view of the observations of 
 some of the Judges. He says, "In Brown v. Edgington, the Judges 
 all intimated that there was no difference in the case of a sale 
 by a manufacturer or any other vendor in such cases, but the 
 point was not necessary to the decision of the Court, for the ven- 
 dor had' undertaken to have the goods manufactured for the pur- 
 pose required by the buyer," evidently suggesting that this is a 
 point not absolutely decided. And I confess it seems to me on 
 reasonable and rational grounds that the distinction may often be 
 well drawn. A person buying goods of a mere vendor of goods 
 who purchases from other parties, cannot rely quite upon the 
 skill and knowledge of the vendor, as he could on that of the 
 manufacturer. This point is, however, outside the facts of this 
 caEe, but I refer to it only in reply to the view expressed by the 
 Counsel for the plaintiff, that there is no distinction between a 
 sale by a manufacturer, and one by a shop-keeper. If the posi- 
 tion of the latter is such as to imply reliance on his skill, that 
 proposition may be true, but I can imagine circumstances where 
 
 POEI>, 
 
 ag. C 3. 
 
 1884. 
 
 Mabkwald 
 
 &Co. 
 
 u. 
 
 McAlistee 
 
 &Co. 
 
670 CIVIL CASES. 
 
 Fobd, . this would not be the ease. There is at first sight also what 
 a fs84 J might appear to be an exception to the rule first laid down by Mr. 
 
 * Benjamin in the class of cases in which Josling v. Kingsford, 32 
 
 Mabewald L. J. C. P. 94 is one — the oxalic acid case — but it has always 
 & Co - been distinguished in this way. It was said that the buyer never 
 McAlister &°t oxalic acid at all. He ordered oxalic acid, and he got a dif- 
 & Co. ferent kind of acid, different in character. If in the case this 
 plaintiff had purchased a 6 ton block, and g.>t for example, a coil 
 of rope, this would be rgsutt- such as was nearly taking place in 
 Josling v. Kingsford. But such is not the result of the evidence in 
 this case. You must get something which fairly answers the des- 
 cription in the contract. Here the order was for a 6 ton block, 
 and the plaintiff got what has been shown to be a merchantable 
 article known as a 6 ton block. 
 
 That being, as I conceive it, the state of the authorities, the 
 law is not, I think, altered by Randall v. Newson. We have now 
 to apply it to the fact of the case itself, and in arriving at a con- 
 clusion as to what these facts are, I have thought the evidence of 
 the Captain can be well relied on. There is some variation on the 
 question whether he and the defendant's salesman went over 
 together to Messrs. Lyon's office, or not, but I do not know that 
 the facb is material one way or the other. I place more reliance 
 upon the Captain's account, and he says that he went to the 
 defendants' shop and saw Basagoiti, a salesman, and said he 
 ' wanted a pair of good strong blocks, three shenves and two sheaves 
 for lifting heavy machinery.' He did not ask then for anything 
 to lift a specified weight. The salesman said tliere were none in 
 the store, but he knew where he could ' get them.' On the same 
 day two blocks were brought into the store, and were shewn to 
 him, the salesman telling hiin they were 4-ton blocks, able to lift 
 4 tons ; words not amounting clearly to any express warranty 
 The Captain said, ' they were not suitable as he had one piece of 
 machinery weighing five tons.' I call attention to these words 
 because they seem to refer to the purpose for which they were 
 ordered. The salesman said he knew there was another pair 
 of blocks in the same place he got them from, and he could get 
 them, able to lift 6 tons, but he could not procure them that dav 
 and said ' it would be time to see them the next day,— to see them— 
 no purchase or sale had taken place up to this time, what took 
 place amounted to little more than a talk about what was wanted 
 The next day the Captain says he called again on purpose to see 
 the blocks, the clear object being inspection. The defendants' 
 agent then said 'Here are the 6 ton blocks' and pointed to 
 the blocks subsequently purchased. 'I thought,' says the 
 Captain < they were really 6 ton blocks and judged partly know- 
 
 thl'm 7 ^ 3USt the Pair Z WanV an * he ' bought 
 
 | \ The. plain tiff noi ; only inspected the blocks, but he relied on 
 jlns own judgment It was not perhaps so perfect a judgment 7 
 ! he could have wished but he exercised it as far as he had t 
 He says that he judged < partly knowing.' A ship-Cantnin ^f 
 rally knows something about blocks, thSugh not 2s £h, "J p* 
 
 as 
 
STRAITS SETTLEMENTS. 
 
 671 
 
 haps a maker of them, but he may know as much or nearly so, as 
 a ship-chandler selling them. 
 
 I gather from the Captain's own relation of facts that the 
 i case falls within the first rule referred to by Mr. Benjamin. It 
 was a particular ascertained chattel, already existing, of which the 
 buyer had inspection. And I am also of opinion it cannot be 
 .'classed under the other class of cases which the Counsel for the 
 plaintiff has referred to, because there is no evidence that the 
 plaintiff relied upon the skill and judgment of the seller to supply 
 what he wanted, but exercised his own. 
 
 I might of course conclude my judgment here ; but take the 
 supposition that the plaintiff's view of the law is correct, and that 
 the state of the law is, as he supposes, that the purchase of an 
 article for a particular purpose only, implies a warranty, irrespec- 
 tive of inspection or reliance on skill, or judgment. 
 
 The first question would be, supposing the plaintiff to have 
 purchased for a particular object, was his purpose not fulfilled ? 
 He had some ice machinery in his vessel, which he was desirous 
 to have strong blocks to discharge at Bangkok, especially he says, 
 one piece of five tons. So far as the machinery in his vessel at the 
 time is concerned, and for which the contract was made, there is 
 nothing to show it was unfulfilled. He communicated his object 
 to the seller, and he admits that he lifted with these blocks parts 
 of the machinery of 3 to 4 tons weight ; and not until two months 
 afterwards, with a different cargo and different machinery, when 
 the blocks were used again for heavy weights ; when after raising 
 one piece of 4 tons, a second weight of four tons broke, it is said, 
 the hook of the block. So that this occurred two months after 
 the particular object for which he had bought the blocks, and 
 they did serve him well up to that time. It is clear he took 
 out all he wanted to take out with the blocks, the machinery 
 he wished to lift when he bought them. Would it not be going 
 too far to say that the pai-ticular purpose known to him and the 
 vendor was to lift five or six tons at all times, places, and dates ? 
 I confess that I think that it would. 
 
 But suppose the opposite is the case, and the particular 
 purpose can be carried on to this length of time. Supposing the 
 case of Randall v. Newson puts the law on the basis which Mr. 
 Donaldson contends for — was the block reasonably fit for the 
 purpose it was intended for ? To arrive at what is 'reasonably 
 fit ' I must consider all the circumstances of the case ; not only 
 the object for which the block was required, but the nature of the 
 article and its reputation amongst those who are in the habit of 
 using it. It is well known that a certain material is lia~ble to 
 unexpected or unexplained accidents, not due to badness or flaw 
 in the material, but due to influences of climate or some unknown 
 causes; this element ought to be borne in mind in judging 
 whether the article is reasonably fit or not. As to the particular 
 character of this block, in some respects there is contrary evidence, 
 but in this respect there is none. The Captain himself says that 
 in lifting heavy weights there is risk, and in answer to a question 
 why this was, he said 'iron was independable' meaning, I 
 
 ag. C. J. 
 
 1S34 
 
 Mabkwald 
 &Co. 
 
 V. 
 
 McAlisteb 
 &Co. 
 
672 
 
 CIVIL OASES. 
 
 Ford, 
 
 ag. C. J. 
 
 18S4 
 
 suppose, that it was not to be depended upon ; that only a certain 
 amount of reliance could be put on an iron block even of the best. 
 
 This view is confirmed by one witness for the plaintiff [Mr. 
 
 Makkwald Fletcher] who said he had much experience in hook blocks and 
 
 & Co - said, " I don't approve of them ; 1 never use them for heavy work ; 
 
 MoAhstbb the hook constantly opens out, or if iron is bad it will break," so 
 
 &Co. that, there is, to start with, a certain unreliability in iron hook 
 
 blocks. ... 
 
 Now, if there was evidence that there was anything m the iron 
 itself which was defective, or substantially defective in its manu- 
 facture, of course this consideration would be of little moment, 
 but I am satisfied that there is no reliable evidence that this was 
 so. There is no dispute that this iron was good, all witnesses so 
 spoke of it. Even Mr. Cargill, who was the strongest evi- 
 dence for the plaintiffs, said that it was good iron, but might be con- 
 sidered insufficiently good for the purpose. One other of the 
 plaintiffs' witnesses said is was not Bowling iron, a particular class 
 of iron considered best for some purposes. As to a flaw in the 
 iron, in its workmanship, none was shewn. The evidence on which 
 it was said to be faulty was an inference from a fact that for 
 3/8ths of an inch the breakage was acute, and on this the plaintiff 
 relied that the hook was badly made. 
 
 Now the evidence on the other side is decidedly against this 
 view, and I place a great deal of reliance on one of the witnesses 
 [Mr Miller] because he seemed to me to be well acquainted with the 
 subject, and, from the way he gave his evidence, to know a good 
 deal more, and to have more direct experience of iron manu- 
 facture andiron-work than any other witness, and he distinctly 
 says that if the effect shown had been produced in the way Mr. 
 Cargill says it had, he would have known it - , and would have seen 
 whether the iron had been over-heated or over-hammered. He also 
 distinctly says that he has seen the best iron break and fracture 
 and tear in the way this hook represents. The block was made 
 by a first rate maker, so acknowledged to be by the plaintiffs' wit- 
 nesses, and looking at the fact that unsatisfactory evidence is 
 given of any latent defect in its manufacture, I think the safer 
 conclusion is, that by some means not before the Court, the 
 iron gave way. It was within the purview of the plaintiff's' 
 thoughts that iron blocks were not always to be depended upon — 
 'independable.' He has so stated his view, and I do not think 
 he could, even were the case to be decided on the narrower basis 
 to which I am now confining it, altogether complain because his 
 fear has in this instance been verified. For these reasons, and on 
 all grounds, I have given, my judgment must be for defendants. 
 
 Penancj. 
 
 Wood, J. 
 
 1884. 
 
 EBEAHIM v. SHAIK ALLY & OES. 
 
 A person who comes by goods of another by accident or mistake, is liable for cross 
 negligence in keeping the goods ; but the damages recoverable against him are only to 
 the extent of the then plaintiff's interest in the goods 
 
 "Where therefore the defendants' lightermen, by mistake or accident took delivery 
 November 7. of certain goods which they conveyed in their boat, but owing to the unseaworthy con 
 dition of the boat, the goods were damaged and rendered wholly useless, 
 
STRAITS SETTLEMENTS. 673 
 
 _ Held, the plaintiffs, the proper lightermen for those goods, were entitled to main- Wood, J. 
 
 tain an action against, and recover damages from, the defendants, but only to the extent 1884 
 
 of the loss of the hire they would have earned, had they lightered the goods. 
 
 The owner of the goods had, in a previous action, on the evidence then adduced Ebeahim 
 
 before the Court, recovered as damages from the plaintiff, the proper lightermen, the v. 
 
 value of the goods so damaged as aforesaid, which damages, together with the cost of Shaik Ally 
 
 that action, the plaintiff paid. The plaintiff, the proper lighterman, then sued the & oes. 
 defendants to recover as damages, the value of the goods, or the full amount, with 
 costs, he had had to pay, 
 
 Held, the plaintiff could not recover, ye 
 
 Where a case is a fit one to be tried in this Court, the plaintiff, although he even- 
 tually therein recovers a sum within the jurisdiction of the Court of Bequests, will not 
 be deprived of his costs as in an ordinary suit in this Court. 
 
 Action to recover $170 damages fur the negligent carriage by 
 the defendant of 30 bags of rice from the S. S. Perulia to the 
 Jetty, whereby the rice was damaged and rendered of no use to 
 the plaintiff, and for further and other relief The defendants, 
 in their statement of defence, denied they made any contract with 
 the plaintiff for the carriage of the rice, and further denied they 
 carried the goods for the plaintiff. From the evidence it appear- 
 ed, that the S. S. Perulia arrived at Penang on the 11th January 
 1884, with 690 bags of rice belonging to WoSeng& Co., and they 
 thereupon engaged the plaintiff to take his boats alongside the 
 steamer and take delivery of the rice, at 2 cents per bag. The 
 plaintiff accordingly sent his boats, but was not able to obtain 
 delivery that day, and was told by the people on board, to return 
 the following morning. The following morning, the plaintiff's 
 boats set out for the steamer, but when they got close by, they 
 found the defendants' boat pulling off, laden with a certain number 
 of bags of rice. On reaching the steamer, they obtained delivery 
 of only 370 bags for Wo Seng and Co., which they safely landed 
 and delivered over t j the latter. The plaintiff then found that 
 among the bags brought by the defendants' boat as aforesaid, 
 were the remaining 120 bags of Wo Seng and Co., but 30 of these 
 bags however, owing to the leaky and unseaworthy condition of 
 the defendants' boat, were damaged by sea water and rendered of 
 no practical use. Wo Seng and Co., refused to take delivery of 
 these 30 bags, and sued the plaintiff in damages for negligence in 
 their carriage. The plaintiff defended the action, and called evidence 
 [among others the present defendant Shaik Ally] to shew that 
 the bags were not damaged in his boat, but in that of the said 
 Shaik Ally. Wo Seng and Co., however maintained it was in the 
 plaintiff's boat, and the Court adopting, on the evidence, this latter 
 conclusion, on the 30th April 1 884, gave Wo Seng and Co., a ver- 
 dict for $120, and costs. The plaintiff subsequently paid Wo 
 Seng and Co., this amount and costs, amounting to $170 in all, 
 which he now sought to recover from the defendants. Both in 
 the action by Wo. Seng and Co., as also in the present one, it 
 was shewn or admitted, that there was no contract between the 
 plaintiff and defendants, that the latter should carry these 120 
 bags, — the plaintiff had never requested the defendants to do so, 
 — not until after the 30 bags had been found to be damaged, did 
 he know the defendants were carrying them. Wo Seng and Co., 
 refused to pay plaintiff for the carriage of the rice, and 
 
674 CIVIL OASES. 
 
 Wood, J, plaintiff as a fact, never got payment therefor. It also appeared 
 1884 in this case, that the defendants — having a contract withMessrs. 
 Ebeahim Liebert & Co., the agents of the S. S. Perulia, to go and receive all 
 i>. her cargo for this port, for which no special tongkangs were 
 SH & IK Al,LT sen * kv consignees, — had, on the day of the arrival of the 
 ' steamer, as well as the next day, gone alongside for such cargo ; 
 
 that on the day in question, [the second day] the officer on 
 board, — mistaking the defendants boat, as one of the plain- 
 tiff's boats that had come for the rice the previous evening, 
 had, along with other cargo [rice &c] placed on board defendants' 
 boat the said 120 bags of Wo Seng & Co. The defendants were not 
 aware they were Wo Seng's until after the 30 bags had been 
 landed and found damaged; up till then, they were under the 
 idea they were conveying general cargo for Liebert & Co. At the 
 trial, the plaintiff's claim was amended by adding a claim for 
 money paid, and money had and received, in order, if possible, to 
 enable plaintiff to recover the amount [$170] he had had to pay 
 Wo Seng and Co., as aforesaid. 
 
 G. H. S. Gottlieb for the plaintiff, contended that this action 
 was maintainable by the plaintiff against the defendants, and the 
 plaintiff was entitled to recover the full amount paid by him, and 
 referred to Brown v. Hodgson, 4 Taunt 189 ; Spencer v. Parry, 3 
 A & E. 331, 338, and Ghitty on Cont. [10th ed.] 400, note e, 
 551. 
 
 Van Someren for defendants contended that the action did not 
 lie, as there was no privity of contract between the plaintiff and 
 defendants, nor any duty cast on the latter, as regarded the 
 former, and cited Addison on Torts, p. 18,956, Duton v. Powles, 
 30 L.J. Q. B. N. S. 169, on appeal 31 L. J. Q. B. N. S. J 91, Alton v. 
 Midland Railway Co., 34 L. J. C. P. 292; Buchanan v. Kirby [a], 
 Tanner v. Scovell, 14 M. & W. 28, 34-35, per Parke B. in arguendo, 
 Story on Bailments, § § 80-82, & §. 215. 
 Gottlieb in reply. 
 
 Cur. Adv. Vult. 
 
 18th February, 1885. Wood J. In this case, the defendants 
 by accident and mistake have, by their servants, and agents, taken 
 goods which ought to have been lightered and landed by the 
 plaintiff from a ship, and before knowing their mistake the goods 
 were damaged by their negligence, which in this case I find, as 
 matter of fact, to be gross negligence, as evincing waut of that 
 reasonable care which may be properly expected from a man 
 lightering goods. 
 
 I hold that under such circumstances, such a person is liable 
 for gross negligence, as he would be if he had come by the goods 
 by finding or as a, depositary generally— see the notes to Coqqs v. 
 Bernard 1 Sm. L. C. 224, on the subject of "Depositum," and 
 the authorities there cited. 
 
 In such a case, if goods are damaged or lost, the person in 
 fault is bound to pay damages to the several parties interested in 
 
 [a] ante p. 230. 
 
Straits settlements. 67S 
 
 the goods, to an amount equal to the damage or loss sustained by Wood, J. 
 the persons interested in the property, according to their several 1884 
 interests. _ 
 
 m, , . , . „ . ,, . Ebeahim 
 
 xne piaintitt in this case, was not the owner of the goods but ». 
 the goods were really owned by one Wo Seng : the plaintiff's sole ^f AlLT 
 interest in the things lost being that of a carrier who, if he had 0ES " 
 
 carried the goods as he had contracted to do,, would have earned 
 2 cents a bag on the whole quantity carried by the defendants for 
 him, — [this would amount to $2.40] — while the real owner Wo 
 Seng, would be entitled to the value. of the articles lost, less the 
 cost of carriage. 
 
 The case however, is complicated by this fact. Wo Seng, 
 the owner of the goods, in a previous action, sued the plaintiff for 
 the loss of his goods ; and on the evidence offered to the Court on 
 that occasion, he did in fact recover against the then defendant, 
 the present plaintiff, the value of the goods. The present plaintiff 
 now seeks to recover against the present defendants, the amount 
 which he has de facto lost by the adverse verdict in the former 
 case, and my doubt has been, whether or not I could award him 
 this amount as damages, my sympathy, is undoutedly with him, 
 and it seems reasonable, now that it is clearly shewn that the 
 defendants, and not he, were in fault, that he should receive that 
 amount, — but I expressed at the trial, a fear that such a view of 
 the case, was untenable, and that I should be obliged to decide in 
 the case before me, in accordance with the facts as they now 
 appeared ; and that the plaintiff's success or non-success in some 
 previous action, on the facts as they then appeared, was a matter 
 which was to be lamented, but could not now be helped. 
 
 After much delay in trying to find authorities which might 
 guide me in the matter, and rinding none, I am compelled to 
 revert to my original opinion, though I must confess, in view of 
 the extended jurisdiction which this Court possesses in matters of 
 mixed law and equity, with some confusion of ideas as to the 
 process of reasoning whereby that conclusion is arrived at. 
 
 That the defendant ought fairly to pay the amount, at least 
 of the value of the goods lost by his neglect, and paid for by the 
 plaintiff, though without the costs, I think is reasonable, but if 
 he refuses to do so, I cannot see my way to help the present 
 plaintiff, who, it must be taken, should have shewn the existing 
 facts in the action brought by Wo Seng against him. There will 
 therefore be judgment for the plaintiff for $2.40, with costs. 
 
 Van 8omeren thereupon asked, that the costs should only be 
 according to the scale of fees allowed in the Court of Requests. 
 
 Wood J. intimated, that as the point raised by the case was 
 a fit one for this Court, he saw no reason to deprive the plaintiff 
 of his costs, as in an ordinary suit. 
 
 End of Vol. I, 
 
INDEX. 
 
 ACCOUNTS — On reference of the accounts 
 in a partnership suit, to the Registrar for 
 enquiry and report, it is incumbent on him, 
 on such materials as ai - e before him, and to 
 the best of his ability, to find definitely on 
 the several items in the account and to 
 make up an account shewing how the part- 
 ners stand in respect to each other. Fina- 
 lity in such report is essential. Where 
 therefore the partnership books were lost 
 and each party brought in his account made 
 up from memory, but the Registrar being 
 dissatisfied with the evidence and accounts 
 of both parties, in his report — stated, he 
 could make nothing of the accounts, and 
 recommended the plaintiffs should be non- 
 suited. On exceptions to such report, the 
 Court allowed the exceptions, and referred 
 the accounts back to the Registrar for a 
 definite and final report, but ordered the 
 costs of the exceptions to be costs in the 
 cause. Chin Gtjan Tak & oes. v. Chin 
 Seah Pow 586 
 
 2. "Where the Registrar has definite- 
 ly dealt with matters of account referred to 
 him, and made findings thereon, the Court 
 will not readily disallow such report, on the 
 assertion — or even on the admission of the 
 parties, and proof — that any one or a few 
 particular items in such report, are unsup- 
 ported by proofs to be found on his notes of 
 evidence, and is-at variance with the story 
 told by both parties. Therefore, where both 
 parties were agreed, that a particular pro- 
 missory note was given in settlement of 
 accounts, and the only question between 
 them was the settlement of that account — 
 but the Registrar disbelieving both these 
 statements, found that the note was given 
 for actual advances by the one party to the 
 other,— Held, the report should not be dis- 
 turbed, and the exceptions filed thereto on 
 that ground, were overruled. Vellian v. 
 Kadapah Chetty & anoe. - - 638 
 
 3_ Decree for reference — malfeas- 
 ance — misfeasance ... - 663 
 see Principal and Agent. 
 
 ACCOUNT STATED— The plaintiff sued 
 the defendants, his late partners, to recover 
 a sum of money, on an account stated.; he 
 failed to prove a statement of accounts, and 
 thereupon asked for a decree for the partner- 
 ship accounts to be taken, when a decree 
 was made. — Held, on appeal, the case fell 
 within clause 7, section 2 of Ordinance IV. 
 of 1878 and the decree was properly made. 
 The Court of Appeal has power, under 
 section 25 of Ordinance 3 of 1878, to review, 
 and vary if needs be, an order as to costs, 
 made by the Court below. Khoo Yah 
 Hong v. Khay Thte & anob. - - 647 | 
 ACTION — Notice before, in cases against 
 the Police 131/ 
 
 see Notice bepoee action. / 
 Trespass — title of freehold in issue- 
 estoppel 242 / 
 
 see Ejectment. 1. \ 
 
 Stay of, on covenant — mortgage bond 
 
 467 / 
 
 see Stay op action. 1. 
 — — Notice of, under Conservancy Ordi- 
 nance 470 ./ 
 
 see Notice or action. 1. 
 
 Notice of, under Conservancy Act 478 „< 
 
 ' see Notice of action. 2. 
 Bringing of, — presentation for pay- 
 ment — evidence .... 536 ^ 
 
 see Foreign Bill, 
 ACTIONS— Distinct,— against two defend- ' 
 ants — apportionment of costs - - 556 b 
 
 see Costs. 8. L 
 
 ACTS: 
 
 20 of 1837 - - - - . 27 v 
 
 see Inhebitance. > 
 
 see Trusteeship - - 611 * 
 25 of 1838 633^ 
 
 see Devise. 1. 
 f 12 of 1839 - • - - - 51 v 
 
 see Assessment. 1. v 
 
 V 
 
 16 of 1839 - 
 see Land. 
 
 514 
 
678 
 
 INDE2L 
 
 ACTS — continued. 
 
 12 of 1840 ..... 51' 
 
 see Assessment. 1. 
 14 of 1810 392> r 
 
 see Part Payment, 2. 
 
 see Mercantile Law, 1. - 559 
 9 of 1848, s. 3 .... 75 
 
 see Assessment. 2. 
 18 of 1850 ..... 205v 
 
 see Contempt of Court. 
 14 of 1852 s. 2 - - - - 438 
 
 see Award. 2. 
 2 of 1855, ss. 21 & 23 - - - 520/. 
 
 see Evidence 4. 
 
 13 of 1856, ss. 86, 102 . . 254 
 
 see Trespass. 2. 
 
 s. 112 .... 131 
 
 see Notice before Action. 
 
 14 of 1856 - - - 561 
 
 see Roads and Bridges. 
 s. 126 - - - 470 
 
 see Notice of action. 1. 
 25 of 1856, s. 10 - - - - 587 
 
 see Assessment. 3. 
 1 of 1859, s. 22 - - - - 186 
 
 see Public Officer. 1. 
 14 of 1859 .... 214,392 
 
 see Part Payment. 1. 2. 
 
 see Amendment - 
 
 see Ejectment. 1. - ■ 
 - s. 1 cl. 2, 9 - 
 
 see Servant. 
 s. lei. 12 - - 
 
 see Immoveable Property. 
 — -s. 1 cl. 12 - - - - 
 
 see Ejectment. 3. 
 - s. 1 cl. 16 
 
 see Attorney. 
 s. 2 - 
 
 see Wakoff. 3. 
 sub. s. 9 cl. 1 . 
 
 see Goods. 5. 
 s. 13 - 
 
 see Foreign Bill. 
 s. 15 - 
 
 see Land. .10. 
 
 513 
 
 242 
 479 
 
 386 
 
 624 
 
 472 
 
 580 
 
 453 
 
 536 
 
 652 
 
 254 
 
 48 of 1860, ss. 22, 29 . 
 
 see Trespass. 2. 
 ■ • s. 29 . - . 273 
 
 see Malice. 1. 
 26 of 1861 303 
 
 see Land. 6. 
 5 of 1866 ..... 354 
 
 see Arrest befor'e Judgment. 
 29 of 1866, s. 20 - - . .205 
 
 see Contempt of Court. 2 ■ 
 
 ADMINISTR ATION— The plaintiff claim- 
 ing to be one Pah Jusoh, commenced pro- 
 ceedings in the Ecclesiastical Court, seek- 
 ing the revocation of Letters of Adminis- 
 tration granted to the defendant, Meh 
 Keechee, to the estate of Pah Jusoh, deceas- 
 ed, on the grounds that Pah Jusoh was him- 
 self, and was alive : the object of the appli- 
 
 , ^cation was, to obtain possession of certain 
 title deeds of Pah Jusoh in the defendants' 
 hands, and to establish his title, as " Pah 
 Jusoh," to the lands therein comprised. 
 
 /The plaintiff, when the matter was ripe for 
 hearing, abandoned these proceedings, and 
 commenced an action, on the Civil side, in 
 'ejectment, to recover possession of such 
 lands from the defendants : he based his 
 ftitle to these lands, firstly as being Pah 
 Jusoh the person mentioned in the title 
 deeds, and secondly as having been in long 
 and uninterrupted possession thereof. He 
 did not pay the defendant, her costs in his 
 abandoned Ecclesiastical proceedings, and 
 the defendants now applied for a stay of 
 proceedings in this action, until such costs 
 were paid. — Held, that this action was more 
 comprehensive in its nature, and included 
 'some matters not included in the Eccle- 
 siastical proceedings. The two proceedings 
 .were therefore not substantially for the 
 same causes of action, and a stay of pro- 
 ceedings was refused. Pah Jusoh v. Meh / 
 Keechee & anor. - - - 601 v 
 
 2. Revocation of Letters of, — right , 
 
 to sue 624 V 
 
 see Ejectment. 3. 
 ADMINISTRATION BOND— An ad- 
 ministration bond to a former Judge of the 
 division of the Supreme Court, cannot be 
 enforced in the name of the Judge presid- 
 ing in that Settlement. Such latter Judge 
 is not a " successor" of the Judge of the 
 .division. The proper remedy in such a case 
 is to have the bond assigned by such former 
 Judge, or his legal personal representatives. 
 '"Demurrers should be brought forward by 
 way of motion for judgment, under the 
 /Civil Procedure Ordinance 1873. — Semble. 
 The Court of Probate Act [1857] 20 & 21 
 Vict. c. 77. does not apply to the Straits. 
 Allee v. Saman &anor. . . 480 V 
 ADMINISTRATOR— A person who is ad- 
 .mmistrator of a deceased person, is entitled 
 £o recover possession of title deeds belong, 
 ing to such deceased, from another with 
 'whom they may have been deposited, 
 although such deposit may have been for - 
 valuable consideration, and made by such 
 ^ersonwho is administrator, or as a next-of- 
 kin, jointly with other next of kin, but 
 before he has obtained administration 
 to the estate of such deceased. Such a 
 deposit affords no defence, either at law or- 
 
INDEX. 
 
 678 
 
 ADMINISTRATOR— continued. 
 equity, to a claim by suGh person depositing, 
 when he has clothed himself with the title 
 of administrator, by obtaining Letters of 
 Administration. Abdtjlrahim: v. Dbah- 
 man & anor. . 171 
 
 2. Semhle. An administrator will 
 
 be allowed to sue in forma pauperis, on an 
 affidavit that there are no funds belonging 
 to the estate wherewith to carry on a suit. 
 The words " in his own right," in section 
 459 of the Civil Procedure Ordinance 5 of 
 1^78, does not deprive him of this right. 
 Kyshe v. Inche Nap Pendek & oes - 602 1 
 ADOPTED SON— This Court will not re- 
 cognize the right of an adopted son to share 
 in an intestate's estate. Khoo Tiang 
 Bee et uxor v. Tan Beng Gwat - 413 
 ADVERTISE MENT— in E n g 1 i s h— n o 
 notice to a Chinaman unable to read that 
 language - - - 364.4 
 
 see Covenant. 1. 
 
 ADVOCATE AND SOLICITOR— Plead 
 ngs — insult 
 
 see Contempt of Court 1. 
 2. Notice on behalf of client de- 
 manding delivery of goods 184 
 
 see Goods. 3. 
 
 Order-in- 
 
 222 
 
 3. Admission Pee under 
 
 Council, 6th March 1868 
 
 see Fees. 
 
 4. A person under twenty-one years 
 
 of age, will be permitted to be examined, 
 as to his fitness to be a Solicitor, although 
 he will not be admitted to practice before 
 that age. — Query. What, if there be spe- 
 cial circumstances which make it beneficial 
 for him to be -admitted before attaining 
 twenty-one ? — Semhle. The mere fact, that 
 an Ordinance is likely to come into opera- 
 tion, whereby, he will be kept back for 
 eighteen months, or thereabouts, is not 
 such a special circumstance, as will cause 
 the Court t~> allow him to be admitted. In 
 re Van Someren ... - 363 
 
 5. The provisions of section 37 of 
 
 the Court's Ordinance 5 of 1873, are im. 
 perative on every Solicitor to take out his 
 annual certificate, and as no remedy is 
 provided by the Ordinance for the non-ob- 
 servance of this section, and the Crown has 
 a pecuniary interest thereunder, by reason 
 of the Stamp Duty imposed, the Attorney- 
 General may sue for same, under the Crown 
 Suits Ordinance 15 of 1876. Attorney- 
 Genebal v. Geegoby Anthony - 473'< 
 AFFAIRS OF STATE— Production in evi- 
 dence of documents relating to, - 520 
 
 see Evidence. 4. 
 AFFIDAVIT— Affidavits, filed with bills 
 of sale, under section 18 of Ordinance 22 of 
 
 AFFIDAVIT— continued. 
 1870, must be construed with strictness. 
 The omission to describe the occupation of 
 a grantor of the bill of sale, renders it void, 
 under the section aforesaid, against an 
 execution creditor. An affidavit filed along 
 with a bill of sale, executed by two grantors, 
 stated that, " the grantors reside in Bridge 
 Street, and is a trader," — Held, the descrip- 
 tion was defective, as being ambiguous as 
 to which of the grantors was referred to, 
 and not being a description of both. Me- 
 xa.ppa Chetty v. Khoo Bean Teen & 
 oes. - .... 510 1/ 
 
 2. Defendant having been arrested 
 
 on an order of arrest, granted on affidavits 
 pf two deponents, to which there was only 
 one jurat attached, which was to the effect 
 that it was sworn to by the " deponent" [in 
 the singular.] — Held, a fatal defect ; and 
 the order was set aside. Kwah Chan 
 Chew v. Wee Eng Sue - 519k 
 
 AGENT— Power to substitute or of nomi- 
 4>nee to sue .... 472 i/ 
 
 see Attoeney. y 
 
 Purchaser — binding contract - 542 j 
 
 / see Auctioneer. 1. ; 
 Notice affecting Principal - 571 \ 
 
 see Notice acquieed. 
 j Principal — communication of know- 
 ledge — fraud - - 619 v 
 
 see Knowledge. 3. 4 
 
 AGREEMENT— Where the defendants 
 offered the plaintiff the post of " Law 
 Agent to the Company," and the plaintiff 
 accepted the offer, subject to a guarantee 
 being given for his continuance in the 
 office, and in reply the defendants wrote 
 him, that his appointment would be " sub- 
 ject to confirmation or otherwise, of the 
 Court of Directors." — Held, that this reser- 
 vation in favour of the Court of Directors, 
 was not to be understood only as a power 
 to be exercised at once, but also extended 
 fto their annulling the plaintiff's appoint- 
 ment at a future time, if its continuance 
 became, in their opinion, undesirable. By 
 the Charter of 1826, the Court of Judi- 
 cature consisted of the Governor as Pre- 
 sident, the Recorder, and the Resident 
 Councillors as Judges : the Recorder having 
 been re-called, and the titles of " Gover- 
 nor" and " Resident Councillor" changed 
 to those of " Resident" or " Commissioner," 
 and " Deputy. Resident." — Held, that 
 the suspension of the Court by the local 
 authorities during the period that this was 
 o, was an unnecessary and improper act, — 
 for the principal officer of the defendant 
 Company, by whatever name called, was 
 impliedly at liberty under the Charter, to 
 act as head of the Court, and the principal 
 
 / fi 
 
INDEX. 
 
 AGREEMENT— continued. 
 officer resident in the Settlement under 
 him, to act as the third Judge ; and that 
 the title " Governor" and " Resident Coun- 
 cillor," in the Charter, was merely the offi- 
 cial designation of those officers as then 
 known, and a change of such their designa- 
 tion, did not prevent them from sitting as 
 Judges of the Court. — Held, also that the 
 suspension not being the legal and neces- 
 sary consequence of the alteration in Gov- 
 ernment, but an unauthorized act of the 
 local authorities, the plaintiff could not be 
 deprived of his right to act as Law Agent 
 of the Company, and was entitled therefore 
 to recover the salary which he would have 
 earned, had the local authorities not fallen 
 into the error. The payment by the defend- 
 ants to the plaintiff, of the amount of his 
 judgment and costs, does not prevent the 
 defendants afterwards appealing, against 
 such judgment. Cat/nter v. East India 
 Co. ...... 12 
 
 2. — Absence of special, — agent — excess 
 of authority — presumption in case of foreign 
 merchant - - . . 85 1' 
 
 see Foreign Merchant. 
 
 3. Breach of, — implied undertak- 
 ing 3501 
 
 see Bbeach of Agreement. 
 
 4. An agreement made between two 
 
 persons, each of whom was desirous of 
 obtaining a certain contract, that they 
 should not tender against each other ; that 
 one should do so, and if he got it, should 
 hand same over to the other, in consider- 
 ation of payment of a commission at a 
 certain rate — but which contained no clause, 
 making it obligatory on that other to make 
 the tender, or restraining him from having 
 a share, directly or indirectly, in the tender 
 of anybody else— is not void for want of 
 mutuality, or as being in restraint of 
 
 AGREEMENT— continued. 
 condition precedent ; and no re-payment 
 could be required, although the vessel was 
 unable through stress of weather and bank- 
 ruptcy of her owner, to complete the voy- 
 age, — Such vessel having been sold on the 
 bankruptcy of her owner, and the purchaser 
 having repaired and re-fitted her, and sent her 
 on his own account to the same port as that 
 mentioned in the aforesaid agreement, but 
 by a different route,' — Held, the arrival of 
 the vessel at such port, on such second voy- 
 age, was not a performance of the condi- 
 tion mentioned in the agreement, as it was 
 a new voyage, and not the one contemplat. 
 ed by the agreement. Letchman Chettt 
 v. Narainan Chettt - : - 467 $ 
 ALIENATION— Restraint against— Equit- 
 able Estate 432 / 
 
 see Gift. 3. 
 AMENDMENT— The Court allowed the 
 j&efendant to amend his statement of de- 
 i 'fence, which had been filed and delivered, 
 by adding thereto, a plea of the Statute of 
 Limitations, but reserved leave to the de- 
 fendant to appeal, considering the point not 
 free from doubt. Bolt v. Cox, 2, Wilson 
 253, is notof present authority. — The words 
 '" real question in controversy between the 
 parties," at end of section 184 of the Civil 
 Procedure Ordinance 5 of 1878, mean, the 
 right of the plaintiff to a cause of action at 
 the time of the issuing of the writ of sum. 
 mons. Aboobakarsah v. Ahamad Jel- . 
 
 LALOODIN ... . 513 V 
 
 ANNUAL VALUE — see Assessment. J 
 
 ity, or 
 trade. An agreement, the stamp of which 
 is cancelled, under Ordinance 8 of 1873 with 
 only the date, but not also with name or 
 initials, is not " duly stamped" within the 
 meaning of that Ordinance.— Held, by the 
 Privy Council, however, [reversing the 
 judgment of the majority of the Pull Court 
 of Appeal of the Colony] that the Collector 
 had power under section 26 of the Ordi- 
 nance, to rectify the omission. Vernon 
 Allen v. Meera Pullay & ors. 394, i 
 
 5 : To withdraw case for valuable 
 
 consideration 
 
 see Plaintiff. 1 
 
 6- Where an agreement is made for 
 
 the re-payment of money on the arrival of a 
 certain ship at a certain port, and the voy- 
 age the vessel is to pursue, is clearly pointed 
 out, — Held, her arrival at that port was a 
 
 APPEAL — Payment of judgment and costs, 
 no bar to — ..... 12 
 
 see Agreement. 1. 
 
 Court of — power to allow or direct 
 
 amendment in title of suit - - 624 ^ 
 
 see Ejectment. 3. 
 
 Court of, — power to review or vary 
 
 order as to costs . . . - 617 * 
 
 see- Account Stated. 
 APPROPRIATION OF GOODS-In de- 
 ciding whether there has been an appropri- 
 ation of goods, so as to pass the property 
 therein, the acts relied on must be not only 
 clear, unequivocal and conclusive, but the 
 test is, whether they amount to an actual 
 and final election of the particular goods for 
 'that particular purpose. Where H G & 
 > > >ie £ -: in co^eration of certain advances' to 
 4301 /their home firm, by the plaintiff, purchased 
 , certain quantities of pepper which they 
 placed in a store-room by itself, and there- 
 after engaged a ship to convey the said 
 pepper home to the plaintiff, and wrote to 
 their home firm expressing their intention 
 01-lorwardmg such pepper by the said shin 
 to the plaintiff, but before they could S 
 
INDEX. 
 
 681 
 
 APPROPRIATION OP GOODS— contd. 
 tually ship the same, they became bankrupt, 
 and immediately thereupon wrote to the 
 plaintiff expressing their intention to have 
 forwarded the goods, but of their having 
 been hindered by their general body of 
 creditors from doing so, and the assignee 
 of H. G. & Co., having sold the said 
 pepper and received the proceeds of such 
 sale. — Held, that there was no appropriation 
 of the pepper to the use of the plaintiff, and 
 although there was a present intention on 
 the part of H. G. & Co., to forward to the 
 plaintiff that particular pepper, yet there 
 was still wanting that final and irrevocable 
 act completing such appropriation, as the 
 forwarding to the plaintiff of the Bill of 
 Lading duly endorsed, on shipping the pep 
 per on board the said 
 Ashton & ors. v. Batter &ors 
 
 ARBITRATION— Award- trust . 
 
 see Award. 2. 
 Covenant .... 
 
 see Award. 3. 
 Compensation — apportionment 
 
 see Life Estate. 
 
 ASSESSMENT— continued. 
 
 sessment discussed. — East India Company 
 v. Scott 51 
 
 2. The appellant, the owner of ex- 
 tensive lands in the Settlement, rented a 
 large portion of such land to tenants, and 
 kept the remainder in his own occupation : 
 he employed an agent to superintend the 
 whole of these lands including those let out 
 to tenants, and paid this agent $6,000 a year. 
 He claimed that this sum under Act IX. 
 of 1848, should be deducted from the rent 
 of the lands let, as well as from the value of 
 the net produce of the lands in his own 
 occupation. — Held, that no deductions could 
 be made from the rent, as assessment was 
 directed by s. 3, to be charged on the "actual 
 rent," but a reasonable portion of such sum, 
 ship, or the like. ( for the superintendence of the lands occu- 
 164* pied by himself, should be deducted from 
 438 1 ^he value of the gross produce of such lands. 
 i — The words " outlay actually paid and ex- 
 ,„- -'pended upon the land," in the 5th section 
 ' of the said Act mean, an expenditure which 
 «■ is of such a nature as will give value to the 
 544 '/land, or is instrumental in producing the 
 ^gross value ; the assessment therefore paid 
 
 to distrain for, — Covenant 
 
 see Land. 3. 
 ARREST — Release of prisoner from 
 civil process by bailiff 
 
 see Release prom Arrest. 
 
 see Privilege from Arrest. 
 
 -fraud - 539 
 
 Discharge from custody- 
 see "Writ op Arrest. 
 ''ARREST BEFORE JUDGMENT— A de- 
 fendant in an action under Act V. of 1866, 
 who has been arrested before judgment, is 
 entitled to his discharge after the seven 
 days time given by the Act has expired, 
 although the plaintiff has not, and is unwill- 
 ing to obtain judgment, and the order of 
 arrest on which the defendant was arrested, 
 authorised him to be arrested and kept in 
 custody for six months, or till the further 
 order of the Court. — M ooroogapah 
 Chetty v. Lim Hong & anor 
 ARTIFICIAL COURSE— Easement 
 right to flow of water 
 
 see Notice op Action. 2. < 
 
 ASSESSMENT— In rating Estates and 
 Plantations in this Colony, for purposes of 
 assessment, the terms "annual rent" and 
 "annual value" in Acts 12 of 1839, and 12 
 of 1840, are synonymous terms, and the 
 assessment can only be calculated on the 
 annual, nett return of the property — Princi- 
 ples of rating property for purposes of as- 
 
 ARREARS OF RENT — Right of Crown on a house built on the land, and quit-rents 
 
 73 Ipaid to Government on the land, are neither 
 
 ,of them items which can be properly de- 
 
 on ducted under that section, in order to as- 
 
 2731 certain the value of the net produce on 
 
 'which assessment is chargeable. Principles 
 
 of rating discussed. — Brown v. Municipal 
 
 Privilege from,— defendant going from Commissioners .... 75 
 
 one Settlement to another - 509 ' _, . „ 
 
 6. It is proper, tor the purposes of 
 
 appealing, that the certificate of the fixing 
 
 ai a rate, should shew, on its face, the date 
 1 , it was made — but such date is not absolute, 
 ly necessary under section 10 of the Act 
 XXV. of 1856, and its absence does not in- 
 validate the rate. Neither does the absence 
 of authentication, by two Commissioners, 
 of such rate, or any amendment thereof, — 
 under section 10 aforesaid, invalidate it. — 
 On an appeal, by a rate-payer, against a 
 rate fixed by the Commissioners, the onus 
 is on the commissioners to prove, both the 
 rate and the reasonableness thereof, and it 
 is for them to do so, before the appellant is 
 354 /called on to prove the unreasonableness 
 thereof. — Managers, Engineers and others 
 •of an estate, are not " laborers " within sec- 
 tion 23 of the Act XXY. of 1856, so as to 
 'entitle their dwellings to be exempted fjjQm 
 rating, the section moreover, is merely per- 
 missive, and not directory, on the Commis- 
 sioners. — In estimating " the gross annual 
 value " under the Act XXV. of 1856, of an 
 estate, carried on by the owners thereof, 
 the Co mmissioners are entitled to estimate 
 its annual value as an estate in the hands 
 of a supposititious tenant of reasonable know. 
 
682 
 
 INDEX. 
 
 ASSESSMENT— continued. 
 ledge and skill. Dicta as to estimating the 
 annual value of houses in the town, for pur- 
 poses of assessment. 'Vermont v. Muni- 
 cipal Oommissionebs - - - 587 
 ASSIGNMENT— Of stipend by public 
 officer illegal - - - - 204 1| 
 
 see Public Officer. 2. ^ 
 
 ATTACHMENT— Title to goods— equit- 
 able mortgage .... 553 
 
 see Debtor's Goons. 
 ATTORNEY — An attorney or agent has' 
 no power to substitute another for himself, 
 where the original power of attorney gives 
 him- no power to do so : the nominee of the 
 attorney, under such circumstances, has 
 therefore no right to sue in the name of the 
 original principal. A letter from one per- 
 son to another, directing the latter to _ de- 
 mand or sue a third party, is a sufficient 
 power to enable the latter to sue such third 
 party in the name of the writer. The limit, 
 ation applicable to a claim for hire or 
 freight of a junk, under a charter-party which 
 is in writing, but not under seal, is six years, 
 under clause 16, section 1 of Act 14 of 
 1859. If a plaintiff recover in the Supreme 
 Court a sum within the jurisdiction of the 
 Court of Requests, he will — unless there 
 are special circumstances to justify his suing 
 in the Supreme Court — be allowed his costs 
 only, according to the scale and practice of 
 the Court of Requests.— See Bong Lim & 
 anor. v. Kam Beng Chan - 472 
 
 ATTORNEY-GENERAL— Charity 
 suit — necessary party - - 439 
 
 see Charity, 3. 
 On ex-parts application made plain- 
 tiff - - - . 500 
 
 see Charity. 4. . , 
 
 AUCTIONEER— "Where an auctioneer 
 under a misapprehension of the real facts 
 attending the sale, knocked down an arti- 
 cle to a person he supposed to be the high- 
 est bidder, but after so doing he was made 
 aware of the true state of things, where- 
 updn he declined to enter the name of such 
 supposed purchaser into his book, as the 
 purchaser, or to make delivery of the goods 
 to him, — Held, although the hammer was 
 down, he was not the agent of the supposed 
 purchaser, so as to be liable for not making 
 a binding contract for him — nor was he 
 liable for not making delivery of the goods. 
 Hin Lee & Co. v. Cohen . . 54,21 
 
 2. A memorandum in an Auctioneer's 
 
 Book,_ setting out conditions of sale, at foot 
 of which was his signature as auctioneer — 
 and then setting out, in columns, the num- 
 bers of lots sold, measurements, name of 
 purchaser, amount of purchase money, and 
 
 AUCTIONEER — continued. 
 signature of purchaser, in which last co- 
 lumn, the purchaser signed his name op- 
 posite certain lots, but which did not give 
 a description as to the locality of the lots, 
 nor use words connecting the conditions of 
 'sale with the lots following, — Held, a suffi- 
 cient memorandum, or contract in writing, 
 within section 4 of the Statute of Frauds. 
 iA. vendor cannot maintain an action against 
 ''a purchaser for non- completion of the pur- 
 chase, if it can be shewn that his title _ is 
 open to serious question, and possible liti- 
 gation with contiguous land-owners. De- 
 fendant purchased, at various prices, cer- 
 tain lots oflandfrom the plaintiff, each lot 
 being knocked down to him separately, 
 whereupon he signed a memorandum of pur- 
 chase against each lot, but subsequently de- 
 clined to complete the purchase, as the 
 plaintiff's title-deeds did not appear to con- 
 tain thewholequantity of land putupbyhim 
 in lots to auction, on the occasion in ques- 
 tion, and also a large, portion of the 28 lots 
 purchased by him [defendant] was claimed 
 ty a contiguous land-holder. The exact 
 quantity laid claim to, however, it was diffi- 
 cult to ascertain without litigation or a 
 full survey of the District. — Held, that the 
 plaintiff's title was faulty in a material 
 point, and he could not therefore recover 
 damages for the non-Gompletion, by the 
 defendant, ' of the purchase. Cheah Tek 
 /Thye v. Hassan Kudus 654 
 
 AWARD— An award is not a public or 
 . fa quasi-judicial document, which, if lost, 
 must be proved only by producing a copy 
 of it; but is the same as any other docu- 
 ment, and can, if lost, be proved by parol 
 ''evidence, or a copy, or a counterpart there- 
 of, simply. The rule with regard to sec- 
 ondary evidence of an award, is the same 
 as that with regard to a lost deed, or such 
 like documents. Mymoonah v. Haji Ma- 
 homed Ariff - - . 353 fc 
 
 2. An arbitrator who had made and 
 
 signed his award, ready for delivery, is 
 functus officio : and any subsequent alter- 
 ation he may make is merely nugatory. 
 An award, on a submission "of all matters 
 in difference, is no bar to the recovery of a 
 demand, which existed as a claim at the 
 time of the reference, but was not then a 
 matter in difference. Section 2 of the Li- 
 mitation Act XIV. of 1852, is more exten- 
 sive than section 25 of theEnglish Act 3 & 4, 
 William IV. c. 27, which is expressly limit, 
 ed to express trusts.— Semble. Section 2 
 of the Act XIV. of 1852, appli ea uZel 
 ot %mplied and constructive trusts as well 
 as express trusts. An executor,' who in 
 accordance with his testator's Will takes 
 
INDEX. 
 
 683 
 
 AWARD — continued. 
 possession of property which, by tie "Will, 
 is devoted to certain special objects which 
 are void in law, with the intention of so 
 applying the property, but subsequently 
 misappropriates the same— cannot, when 
 he is sued, and the objects of the testator 
 are sought to be declared illegal, and the 
 property to be applied in payment of lega- 
 cies or to the next-of-kin, plead the Stat- 
 ute of Limitation, although more than 12 
 years have elapsed, as there is an implied 
 or constructive trust in favor of the legatee 
 or next-of-kin, and the case falls within 
 section 2 of the Limitation Act XIV. of 
 1852. Such a suit, is not a suit for a legacy, 
 but one to compel the executor who has 
 clothed himself with a trust, to account 
 for breaches of trust. Phillipo v. Man- 
 nings, 2 My. & Cr., 309, followed. Syed 
 Awal bin Omae Shateie v. Syed Ali 
 bin Omae al Jttnied & ors. - - 438 
 
 3._ The Opium Farmer by his contract 
 
 with the Crown, under the Excise Ordi- 
 nance IV. of 1870, covenants not to sell 
 opium in the Settlement during the last 
 three months of his exclusive privi- 
 leges, at an under-rate. Several of the 
 partners in the Penang Farm had shares 
 in certain other farms m foreign adjoining 
 territory — one at Perak and another at 
 Kedah. The former farm was carried on 
 under the s ame name as the Penang Farm — 
 the latter was not, but that Farm and the 
 Penang Farm had a common head-manager. 
 The Perak Farm during the last few days 
 of the exclusive privileges of the Penang 
 Farm, sold opium in Perak territory, im- 
 mediately next to Province Wellesley, to 
 natives of Province Wellesley, below the 
 usual rates, and so spoilt the Penang in. 
 coming Farmer's market in the Province. 
 . The common manager of the Penang and 
 Kedah Farms had also exported several 
 chests of opium from Penang to Kedah, 
 there prepared the opium, and re-imported 
 the same into Penang, and here sold them 
 in the name of the Kedah Farm, at an 
 •under-rate, [at th« same time as the Perak 
 Farm was flooding the Province by their 
 acts,] and so also'flooded the Penang in- 
 coming Farmer's market in Penang. The 
 incoming farmer having charged the out- 
 going farmer, before His_ Excellency the 
 Governor, with breach of his contract gene- 
 rally, arbitrators were appointed in terms 
 of the Ordinance, to enquire into the same 
 and make their award. The majority of 
 the arbitrators found these matters proved, 
 and awarded-a large sum to the new farm- 
 er accordingly. On the award being 
 brought up by the old farmer into this 
 Court, the same was set aside as being in 
 
 AWARD— con Unwed. 
 
 excess of the arbitrators' jurisdiction.— 
 Held, on appeal [modifying the judgment 
 of the Court below,] that the award was 
 rightly set aside as regarded the Perak 
 Farm, as those acts, though injurious, and 
 probably intentionally done, did not take 
 place in this Settlement, but as regarded the 
 Kedah Farm, the arbitrators might well 
 have found, as in fact they did, that the acts 
 were those of the Penang Farm, under the 
 disguise of the Kedah Farm, and upheld 
 their award in that respect. In re Aebit. . 
 eation of Opium Faemees - 497 v 
 BAILIFF — see Release eeom Aebest 173 »/_. 
 seeCoNSTEtrcTiON or Statute 426 \/ 
 
 BANKRUPT— Security for costs - 325 / 
 
 see Costs. 4. »• 
 
 BANKRUPTCY— Foreign Principal— f 
 Contract - 85 •/ 
 
 see Foeeign Meechant. y 
 BELIEF — Credible witness— facts imput- 
 ing guilt 629 v 
 
 see Malicious Pbosecution. 2. j 
 BEQUEST — License to live— direction by , 
 testatrix 475 / 
 
 see License. v* 
 ;Real and personal property — resi- 
 duary clause 544 t. 
 
 see Liee Estate. ^ 
 
 BILL — Holder of joint and several- 
 knowledge acquired — principal— ^surety 455 J 
 
 see Peomissoey Note. 3. 
 BILL OF LADING— Where by a Bill of 
 lading it is provided, that " if necessary the 
 goods are to be landed by the master or 
 agent of the ship, at the risk and expense 
 of the owners of the goods," and the neces- 
 sity has arisen in the form of quick despatch 
 being requisite to the ship, which may also 
 be beneficial to the owners of the goods — ■ 
 the landing of such goods by a third party, 
 with whom the owners of the goods have 
 no special contract is to be construed as the 
 landing by the master or agent of the ship, 
 and the expenses of such landing, can only 
 be received by the agents or master from 
 the owners of the goods, and not from them 
 by the lighter-men. The fact that the 
 owners of the goods have, on previous oc- 
 casions, paid the lighter-man direct, on Bill 
 by which they are declared to be debtors to 
 him, does not conclude them from after- 
 wards disputing that liability to him, for 
 subsequent lighterage. Nooesah Bawasah 
 Meeican v. Wm. Hall & Co. - 640 
 BILL OF SALE— If a Bill of sale refers to 
 a list of the articles assigned, but no copy 
 of the list is registered along with the copy 
 of the Bill of sale under Ordinance 22 of 
 1870, Section 18, the registration and Bill 
 
 y 
 
INDEX. 
 
 BILL OP SALE— continued. 
 of sale are void against an execution credit- 
 or. The object of the Ordinance 22 of 1870, 
 section 18 et seq. is the same as the English 
 Bills of Sale Act. Currier v. Lee Pee 
 Chuan & ORS 
 
 2. — r Def ect in— - - - 510 \T 
 
 see Affidavit. 1. 
 BINDING CONTRACT—A gen t— p u r - 
 chaser - 542 
 
 see Auctioneer. 1. 
 BOUNDARIES— The cancellation of a 
 deed, does not, in law, divest the estate out 
 of the person in whom it was vested by the 
 deed. Where land is first described in a 
 deed by name, or by distinct ascei - tained 
 boundaries, any additional description in- 
 consistent with the first, has no effect. 
 Thus, if lands are conveyed by definite 
 boundaries, but are subsequently by the 
 same deed said to contain a certain area, 
 but it is afterwards discovered that such 
 area is either more or less than that which 
 is actually contained within the boundaries 
 given, such additional description of the 
 area in the deed is immaterial, and will be 
 rejected. — Query. Will equity relieve in 
 such a case between the parties, by award- 
 ing compensation ? Where land is convey- 
 ed by distinct boundaries, the represent- 
 ation of either of the parties to the other, 
 that the land contains a certain area, is 
 immaterial, unless it is proved that such 
 representations were made fraudulently, 
 and knowing them to be false. Ibbetson 
 v. Brown .... 
 
 2. And , Abuttals in Deeds — parol 
 
 evidence 324 
 
 see Land. 7. 
 
 3. Government Permits — grantee in 
 
 fee 514 
 
 see Land. 8. 
 BREACH OP AGREEMENT— The de-' 
 f endant agreed with the plaintiff, that in 
 consideration of Rs. 1,000 lent by plaintiff 
 to defendant, that he would repay the same 
 " within eleven days from the safe arrival 
 of his vessel Castle Eden," at Singapore. 
 The vessel, through his own default, never 
 went to Singapore. — Held, in an action for 
 breach of his agreement, that there was an 
 implied undertaking on his part that his 
 vessel, the said Castle Eden would go to 
 Singapore, and inasmuch as she, through 
 his default, did not, he was liable for his 
 breach of such implied undertaking. A 
 person who voluntarily signs a document as 
 surety, cannot set up as a defence, that no 
 money at all passed to him, but simply to 
 principal, which was well known to 
 
 BREACH OP AGREEMENT— continued. 
 even to. a joint and several promissory note 
 made by a principal and surety. Matandee 
 Chetty v. Sultan Meracayar 350 
 
 CONTRACT— Non-p a y m e n t of 
 
 - 417}/ jjrice of goods - - - - 453 
 
 see Goods. 5. 
 
 2. In cases of breach of contract by 
 
 the non-delivery of goods, knowledge — on 
 
 /the part of the party committing the breach, 
 lis only of importance [in a question of 
 measure of damages] if acted upon and 
 forming part of the contract. Knowledge 
 must be brought home to such party, under 
 such circumstances, that he must have 
 known that the person he contracts with, 
 reasonably believed that he [the defaulting 
 party] accepted the contract, with the 
 special condition attached to it. Where 
 therefore the plaintiff entered into a con- 
 tract with the defendants, for the sale of 
 certain quantities of Cutchleaf, and there- 
 after, but before any breach, knew that 
 the defendants were purchasing it in order 
 to send on same to Europe for sale, to 
 certain persons there, with whom they had 
 such contract, and the plaintiff subsequent- 
 ly committed a breach of his contract, by 
 which the defendants were unable to fulfil 
 theirs, and bad to pay damages to their 
 sub-contractors in consequence. — Held, that 
 the damages so paid by the defendants to 
 their sub-contractors, were too remote, and 
 could not be recovered [on counter-claim] 
 
 .from the plaintiff, as damages for his 
 i i qi) breach of contract. Teo Leng Tow & Co. 
 v. Rautenberg, Schmidt & Co - - 491 , 
 
 jBREACH OP COVENANT— see Cove- 
 
 nant. 1 - 364 J 
 
 2. PROMISE— It is a sufficient 
 
 yreason for breaking off a promise of 
 
 'marriage — even after a large sum of money 
 has, in accordance with Chinese custom, 
 been spent in consequence of the engage- 
 ment—that the plaintiff is inflicted with an 
 infectious disease, even itch. Tan Kee v. 
 
 Hong Keat 63 » 
 
 BRITISH AGENT— Credit to,— s p e c i a 1 
 agreement ..... 85 
 
 see Foreign Merchant. 
 BURIAL GROUND— Wakoff- 
 
 f 
 
 s 
 
 his 
 
 the plaintiff.— Semble. This rule applies 
 
 Land 
 '' - - - - - - - 324 v 
 
 CANCELLATION OF DEED-Estate 
 vested— land— compensation . 119 i^ 
 
 see Boundaries. 1 V 
 
 CARE AND DILIGENCE-Cargo-negli. 
 gence— overlanded goods ' . .fen/ 
 see Contract. 7. 
 
 CARRIER— Care and diligence . 427V 
 see Negligence, 4. y 
 
INDEX. 
 
 685 
 
 CASE— Withdrawal of, for valuable con- 
 
 Bideration 430 
 
 see Plaintiff. 1. 
 CASES — Abdullah, In the goods of — Straits 
 
 L. R. 16, approved of 27^ 
 
 see Inhebitance. 
 
 Beatson v. Skene [29 L. J. Ex. N, 
 
 S. 430] followed - - . - 520 1/. 
 
 see Evidence. 4. 
 
 Brown v. Edgington [2 M. & G. 
 
 279] observed on .... 667 
 
 see Caveat Emptoe. 2. 
 
 Gander Mohuddeen, In the goods 
 
 of — Straits L. R. 281, observed on - 616 
 
 see Devise. 2. 
 
 Colombian Government v. Roths, 
 child [1 Simon 94] followed - - 37 
 
 see Jueisdiction. 2. 
 
 Cox v Bolt [ 2 Wil. 253] not fol- 
 
 lowed ...... 513 
 
 see Amendment 
 
 Doyle v. Kaufman [3 L. R. Q. B. 
 Div. 7 & 340] distinguished - - 476 
 
 see "Weit of Summons. 1. 
 
 Hawah v. Baud, Straits L. R. 253, 
 
 followed 622 
 
 see Hindoo Law. 
 
 Ionides v. Pender [9 L. R. Q. B. 
 
 531] discussed .... 482 
 
 see Maeine Insubance 
 
 CASES— continued. 
 
 Regma v. Benton [2 Exch. 216, re- 
 
 marks of Parke B.] observed on 
 
 see Release feom Aeeest, 
 Bodyk v. Williamson [not reported] 
 
 173^ 
 
 •" 
 
 approved of 27// 
 
 see Inheeitance. 
 
 Sweeting v. Sweeting [33 L. J Ch. 
 N.S. 211] distinguished- - - 544 
 
 see Life Estate. 
 ''CAVEAT EMPTOR— Application of max- 
 im — vendor and vendee - - 167 ' 
 
 see Pailuee of Consideeation. 
 
 ' 2. The maxim caveat emptor admits 
 
 of no exception by implied warrant in 
 cases of sale of specific goods which are in 
 existence, and which the purchaser had in- 
 spection of, before concluding his purchase. 
 The case of Bandall v. Newson, 2. L. R. Q. 
 B. Div. 102 has not altered the law in this 
 respect ; and applies only to cases where a 
 Purchaser not only buys the article for a 
 particular purpose and communicates that 
 purpose and object to the vendor, but relies 
 on the skill and judgment of the seller to 
 supply what is wanted without exercising 
 his own judgment thereupon. Bandall v. 
 /Newson, [supra] and Brown v. Edgington, 2 
 M. & G. 279, observed on. — Semble. . It is 
 
 not yet decided law, that there is no differ. 
 
 • Kennedy v. Green [3 M. & K. 699] enoe between an ordinary vendor and a 
 
 followed 619 • manufacturer, touching sales of goods 
 
 see Knowledge. 3. 
 
 Kymer v. Suwercropp [1 Camp. m c Alisteb & Co 
 ineuished - 85>'YtraT?.TTATST 1 T?, ttTFT— ' 
 
 109] distinguished 
 
 see Fobeign Meechant. 
 
 Straits L. R. 282, foUowed- 
 
 see Conjugal Rights 
 -Muhammad Ibrahim 
 
 2. 
 
 v. Gulam 
 
 followed 
 
 see Sect. 
 -Munro v. Butt 
 
 [8 
 
 E. & B. 738] 
 J68 
 
 touching sales of goods on 
 implied warrant. Maekwald & Co. v. 
 
 667 
 -Temple— Idol 377 
 
 CHARITABLE GIFT- 
 see Gift. 2. 
 
 ■LimChye'Peowv. Wee Boon Teh CHARITY— A direction by a testator, that 
 
 the rents and profits of his land should be 
 expended on certain ceremonies called " Sin 
 Chew," is void as being in perpetuity, and 
 Ahmed Tl "Bom H. C. Rep. 236] fol- Lfoot a charity. The Statutes 1, Ed. VI., c. 14, 
 i^ed ...... 421*'23 Hen. VIII, c. 10, and 9 Geo, II., c. 36, 
 
 held not to be law in the Straits Settle- 
 ments. Choa Choon Neoh v. Spottis- . 
 
 'Woode 216 " 
 
 2. Wakoff land for burial, — not 324 / 
 
 see Land. 7. 
 
 & Ir. Ap. 521] distinguished - 
 
 see Malicious Peosecution 
 
 By. Co. 
 lowed 
 
 see Conteact. 2. 
 
 Ferryman v. Lister, [4 L. R. Eng. 
 
 ' 629-' 3. The Attorney. General is a neces. 
 
 2. sary party to a suit relating to a charity, 
 
 « o m „ t n* although there may be trustees of the 
 Phillvpo v. Munmngs [2 My. &. Cr. fa^J ble of / nforcing or protect i ng 
 
 309] followed - - - - *°° its rights. Kadee Mydin'& oes. v. Had- 
 
 saeAwAED. i. jee Abdul Kadee - - - 489 
 
 Badley v. London & North Western 4 Lands of a charity— the Maho- 
 
 [1L. R. App. Cases, 754J tol- >me dan church— were vested in the Crown; 
 
 - - ■ • *"■* the defendants wrongfully entered a portion 
 
 see Conteact. 7. thereof and commenced building there ; the 
 
 Randall v. Newson [2 L. R. Q. B. ^jhnam, Khatib and elders of the congre- 
 
 Div 102 ] observed on - - 667* gation of the church — who were in posses. 
 
 see Caveat Emptoe. 2. sion of the church and lands, sued the de- 
 
 n ea d v. Steadman '[26 Beav. 495] fendant and obtained an injunction res- 
 
 T7. —■ L """' ^ ... 544 1 /training them from continuing the building, 
 
 tollowea ^ Estate I —SeU, on demurrer, that the plaintiffs could 
 
INDEX. 
 
 CHARITY, 
 not maintain the Buit. The Court on al- 
 lowing the demurrer continued the injunc- 
 tion on certain terms which were complied 
 with by the plaintiffs. The defendants did 
 not then object to this ; but three months 
 after, moved to have the injunction dissolv- 
 ed, as the allowance of the demurrer had 
 in law, put an end to the plaintiffs' suit, and 
 the injunction, which went with it. — Held, 
 they were too late, and their application 
 now was practically an appeal against that 
 decision, which could not be allowed. The 
 Court will, on an ex-parte application, give 
 leave to amend all proceedings, by making 
 the Attorney-General plaintiff, and adapt- 
 ing the pleadings to such new state of 
 things. Hajee Abdullah & ors. v. Khoo 
 Tean Tek & anor. - - - 500 
 
 5. Devise — direction - - 616 
 
 see Devise. 
 CHARTER OF 1807— English law extend- 
 ed to the Colony 
 
 see Military Law. 
 
 CHARTER-PARTY— continued. 
 
 the port without any return cargo, where- 
 by the efforts of the agents were rendered 
 abortive. — Held, the agents were not entitled 
 to commission at the rate named in the 
 charter-party. — Query. Could the agents 
 have suedon & quantum meruit ? Fruchard 
 v. Schmidt & ors. - - - 360 (■ 
 
 2. Claim for hire or freight — limit- 
 ation 472V 
 
 V 
 
 see Attorney. 
 CHATTEL— Although it is a rule that 
 there can be no passing of property in a 
 chattel, except by delivery or deed, yet this 
 has no application to contracts made in 
 respect to chattels, for valuable consider- 
 ation : and therefore there may be a mort- 
 gage of a chattel without deed. In the 
 absence of a stipulation to the contrary, a 
 ^mortgagee is entitled to immediate posses- 
 sion of the property mortgaged, until his 
 debt is paid : and if he sell the property, 
 1 1 'whether he then had the right to do so or 
 t 'not, such sale does not revest the right of 
 English law of inheritance - 27 /possession to such property, in the mort- 
 see Inheritance. /gagor, so as to enable him to sue in trover, 
 
 ■Englishlaw introduced into Colony , .as long as the debt remains unpaid. Max- 
 "7 ...... 255 >TraLL v. Chettyapah Chetty - - 201 
 
 m ; ■wZ' E ™ Ij \f™ A T 3 ' ■ ^CHETTY'SINSURANCE-Licensetode. 
 
 CHARTER OE 1826— Agreement— guar- viate— risk - - - - 378 K 
 
 antee 12 f see Insurance. is 
 
 see Agreement. 1 fbHINESE DOCUMENT 
 
 Civil jurisdiction— pleas— foreign •arrangement 
 
 8 " " " ""see Jurisdiction. 2.' ' ^^ '£ ^Z™™* ° F Peopeety - 
 
 CHARTER OE1855-jurisdiction of Eel ° HINESE LAW AND CUSTOM 
 
 clesiastical Court confined to Christians 236 Is" 
 sen Conjugal Rights. 1. 
 
 Commission to Executor 
 
 see Trusteeship. 
 
 CHARTER OP SHIP— in full 
 
 charges — construction of contract - 
 see Wharfage. 
 
 611 '/ 
 
 of all 
 227jk" 
 
 CHARTER-PARTY— Where a vessel is 
 chartered from one port to another, and the 
 charter-party provides that the vessel should, 
 at the port of destination, be consigned to 
 certain agents, whose commission for inward 
 and outward cargo is also arranged at cer- 
 tain rates, it is. not incumbent on the master 
 to take a return cargo from such port of des- 
 tination ; but if he decides to do so, he must 
 take his return cargo through the agents 
 named, and no other. Therefore where the 
 master under such a charter is undecided 
 whether he would or would not take in such 
 return cargo, but at the same time held out 
 reasonable expectation to such agents that 
 he would, and the agents in faith of such 
 acts, " circulated " the vessel, and obtained 
 an offer to ship cargo in her, but the master 
 subsequently changed his mind, and left 
 
 -Devise — Family 
 
 596 y 
 
 see Adopted son 
 
 see Breach op Promise 
 
 see Charity. 1. 
 
 see Conjugal Rights, 1 
 
 see Divorce. 2. 
 
 see Life Estate 
 
 see Nuisance 
 
 see Teust 
 CIVIL SERVANT— see Public Officer. 
 CLAIM— Hire or freight— Charter-party- 
 limitation . 472 1 
 
 see Attorney. 
 COMMERCIAL MATTERS-E x p re s s 
 Warranty ----- 22 (^ 
 
 see Warranty. 1. t/ 
 
 OOMMISSION— Charter-party - 360 i 
 
 see Charter-party. 1 
 
 413 is 
 
 63 IS 
 216 is 
 236: 
 160 f 
 
 544 "" 
 466 is 
 326 l^ 
 
 S 
 
 2 ' ,W^ dministration of Es tate-p a ins 
 
 and trouble 
 
 see Trusteeship 
 COMPENSATION-Premises taken 
 public purposes— arbitration . 
 
 see Life Estate. 
 
 611 is 
 
 for 
 544 t/ 
 
 1/ 
 
INDEX. 
 
 687 
 
 COMPOSITION DEED— Debtor 
 
 see Cbeditoe. 1. 
 COMPOSITION— An insolvent who pays' 
 a creditor a sum over and above a certain 
 composition which he has arranged to pay 
 his general body of creditors, in consider- 
 ation of such creditor consenting to appear 
 as an assenting creditor to such composi- 
 tion, is entitled to recover from such credit- 
 or the sum so overpaid by him, as money 
 had and received-, and that, whether, the 
 sum has been paid by him in money, or by 
 meansof abillacceptedbyhim. Thefactthat 
 a bill was accepted by a third party, in con- 
 sideration of the creditor so consenting to 
 appear as an assenting creditor to the com- 
 position, which bill, such third party after- 
 wards voluntarily pays — does not prevent 
 the insolvent recovering from the creditor 
 the money so paid by such third party, in 
 the same way as if he, the insolvent, had 
 personally paid it. Tan Kok Seng v, 
 Letchman' Chetty - - - 162| 
 
 2. Plaintiff having arranged on a 
 
 composition with his creditors, of whom the 
 defendant was one, to pay them SO per 
 cent, of their claims, by means of three bills 
 payable at three, six and nine months res- 
 pectively, handed the defendant three bills, 
 which, by mistake, were made out, together 
 . for 75 per cent, of his claim : the first two 
 bills were duly paid at . maturity, which 
 together made up just 50 per cent, of the 
 defendant's original claim. Before the third 
 bill fell due, the def endanfcf ailed in business, 
 and had himself to enter into an arrange- 
 ment with his creditors, ,by which certain 
 Inspectors were appointed to collect his 
 assets, and among others. the amount pay- 
 able on the third bill, and to divide them 
 among his several creditors. Onthethirdbill 
 falling due, the plaintiff paid the defendant's 
 Inspectors $500 to account of it, and this 
 money was, by the Inspectors, distributed 
 among, defendant's creditors. After this, 
 the plaintiff discovered the mistake he had 
 made, and not only refused to pay the In- 
 spectors the balance payable on the third 
 bill, but claimed from the defendant, a re- 
 fund of the §500, which he [plaintiff] had 
 paid under such mistake. The defendant 
 refused to refund the money, alleging that 
 he was not liable to do so, as the money had 
 been paid by the plaintiff to his [defend- 
 ant's] Inspectors, and by them had been 
 ' distributed among his creditors ; and he 
 personally had derived no benefit lay the 
 payment. — Held, that the defendant was 
 bound to refund plaintiff the |500, and that 
 the plaintiff was entitled to recover it as 
 money paid at the defendant's request, or 
 as money had and received by the defendant 
 for the use of the plaintiff. Lim Mah 
 Peng v. Bbcwn - 
 
 67#"CONCEALMENT OE PACTS.— Agent 
 ^ ''and Principal . 619 y / 
 
 see Knowledge 3. // 
 
 CONDITION PRECEDENT— Defendants 
 contracted to sell plaintiff a certain num- 
 ber of Pillar or Carolus dollars, and the 
 contract was reduced to writing, and was 
 as follows :— " Sold to Lim Sim Kay 12,000 
 " Carolus, 110 per cent, if sent- by bank, at 
 "the earliest steamer's arrival. Chopped 
 " dollars not to be included. Signed p. p. 
 " Fraser & Co., A. M. Watson," The defend- 
 ants then, with, plaintiff's knowledge and 
 consent, despatched a telegram to the bank 
 in question as follows : " Carolus dollars 
 " agreed 10 per cent. 12,000, -if without 
 " chops, ship " per first steamer." The bank 
 replied same day by telegraph, cannot "now 
 " sell Carolus under twelve. No picking or 
 refusing allowed. Price here twelve, firm, 
 eply." — Held, the sending by the bank of 
 ihe dollars was a condition precedent to the 
 defendants' liability to the plaintiff : that 
 the reply of the bank refusing to 'allow 
 " picking or refusing " was a refusal to send 
 the dollars asked for : and the condi- 
 tion precedent had not been fulfilled. — Held 
 also, that the sending thereafter by the 
 bank to the defendants of same amount of 
 Carolus dollars, partly chopped and partly 
 unchopped for a third party, was also not a 
 fulfilment of the condition precedent* Lim 
 Sim Kat v. Fbaseb & Co. - . 380f 
 
 2. Re-payment of money •- 467 [/ 
 
 see Agbeekent. 6. J 
 
 CONJUGAL RIGHTS— The Supreme 
 Court has no jurisdiction either on its Civil 
 or Ecclesiastical side, to entertain a suit 
 for restitution of conjugal rights among 
 non-christians. The 23rd Section of the 
 Court's Ordinance V. of 1868, only gives the 
 jurisdiction the old Court of Judicature had 
 under the Charter of 1855, which was the 
 jurisdiction of the Ecclesiastical Court at 
 home, and which was confined to Christian 
 marriages. Lim Chte Peow v. Wee Boon 
 Tek - - ... 236^ 
 
 2. — — The Court has no jurisdiction, on 
 its civil side, to entertain a suit for restitu- 
 tion of conjugal rights by Mahomedans. , 
 Shaik Madab v. Jahakeah - 385 \s 
 
 CONSTRUCTION OP STATUTE— It is 
 a rule of construction, of a Statute or Ordi- 
 nance, that the provisions therein, cannot 
 refer to powers and authorities not in esse, 
 at time of its coming into operation. There- 
 fore, although by the Courts Ordinance 5 
 of 1873, the Sheriff is empowered and re- 
 quired to execute all warrants and process 
 of the Court, yet, as he was neither em. 
 powered nor required thereby to execute 
 
 170Limstress warrants, he could not be required. 
 
688 
 
 INDEX. 
 
 CONSTRUCTION OF STATUTE— contd. 
 to execute such wan-ants, issued under the 
 Distress Ordinance 14 of 1876, in which 
 latter Ordinance, he is not specially named 
 as an officer. The Sheriff is not a "bailiff 
 or other officer," within the meaning of 
 the Distress Ordinance.— In re Shebii-f op 
 
 Penang 426 
 
 CONSTRUCTIVE NOTICE— Agent- 
 Principal 619 
 
 see Knowledge. 3. 
 
 CONTEMPT OP COURT— Where a Soli- 
 citor in his pleadings stated, that the plain- 
 tiff [his client] submitted himself to the 
 Civil Jurisdiction of this Honorable Court, 
 —Held, that he had been guilty of gross in- 
 sult to the Court, and he was summarily 
 struck off the roll of Law Agents. Ishma- 
 hel Laxamanaa. East India Company — 
 In re Tbebeck- ... 4 
 
 2. The powers of Commissioners of 
 
 the Court of Requests are strictly limited 
 by section 20 of Act XXIX. of 1866; and 
 as regards contempts, they possess no fur- 
 ther powers of dealing therewith, than 
 those expressly given by that section. The 
 Commissioners have no power to deal with 
 a contempt out of Court. A single Com- 
 missioner has no power t&fine for contempt, 
 and none to imprison f ox non-payment of 
 the fine. — Query. Is the. Court of Requests 
 a Court of Record? Jn England, the 
 Judge of an inferior Court, is liable to an 
 action, if he acts beyond his 'jurisdiction,and 
 then knew, or had the means of knowing 
 the defect, and this although he acted bond 
 fide. In this Colony, however, since the 
 Act XVIII- of 1850, heilnot so liable, if 
 he, at the time, in good faith believed him- 
 self to have jurisdiction, but in all such 
 cases, he must have acted, really and bond 
 fide in his judicial capacity, and not merely 
 colourably so. — Query. Does Act XVIII. 
 of 1850 apply to cases where the excess of 
 jurisdiction is due to the Judge's miscon- 
 ception of the law, or only to ignorance of 
 facts affecting his jurisdiction F The Act, 
 however, can only afford protection where 
 the Judge acts m good faith ; but " good 
 faith" must be founded on reasonable 
 grounds, or otherwise the Judge's immu- 
 nity from legal liability for acts done out 
 of his jurisdiction, would be in direct 
 proportion to his ignorance and thought- 
 lessness. — Query. Is a Judge of an inferior 
 Court liable, if he act within his jurisdic. 
 tion, but doeB so maliciously and without 
 any reasonable or probable cause ? — Bem- 
 ble. The test in such a case, probably .is, 
 whether he acted really or only colourably 
 judicially. — The plaintiff, a solicitor, served 
 the defendant, a. Commissioner of the 
 
 CONTEMPT OF COURT— continued. 
 Court of Requests, at his private residence, 
 with an ordinary notice of appeal on be- 
 half of a suitor in the Court Of Requests, 
 and also served a similar notice on the 
 clerk of the Court. A day or two after, 
 the plaintiff received a letter from the 
 
 I 'clerk, written by instructions of the de- 
 fendant, requesting the plaintiff kindly to 
 
 i/callathis [defendant's] office, as he [de- 
 fendant] wished to speak to him. The 
 plaintiff accordingly went to the defend- 
 ant's office, but found him out. In passing 
 the Court, he saw the defendant on the 
 Bench trying a case ; he sent in his card, 
 whereupon the defendant beckoned him 
 into Court. The plaintiff walked up to the 
 Bench, and stood between it and the table 
 of the clerk, and the business before the 
 Court was suspended for the time. The 
 
 | defendant then had some conversation with 
 the plaintiff, during which the defendant 
 informed the plaintiff that the notice was 
 a very improper one, and was very impro- 
 perly served, and. after further conversa- 
 tion on the subject, [which the defendant 
 considered to be carried on in a disrespect- 
 ful and contemptuous manner on the part 
 of the plaintiff,] the plaintiff informed the 
 defendant that he came to see him simply 
 as a private individual in consequence of 
 his request > and not in his judicial capacity, 
 and was not a party in any proceeding 
 before his Court, and wishing him " good 
 morning," was about walking away, when 
 the defendant called him to stop ; the plain- 
 tiff continued walking, and the defendant 
 thereupon called out, " Tou are fined $25 
 for " contempt of Court," to which the 
 plaintiff replied, " I wish you may get it," 
 and walked out. The following day, the 
 defendant issued his warrant for the ap- 
 prehension of the plaintiff if he omitted to 
 pay the fine, the plaintiff still refusing to 
 pay the fine, he was lodged in "prison for 
 some days under the warrant, whereupon he 
 brought an action against defendant for 
 false imprisonment, to which the defendant 
 replied he did the act in his .judicial capa- 
 city. — Query. Whether under the circuni. 
 stances, the defendant could be considered 
 as really acting judicially or only colour, 
 ably so ?—Held, however, whether the de- 
 iendant acted judicially or not, as a single 
 Commissioner of the Court of Requests, he 
 had no power to fine or imprison for con- 
 fer ^^ ha 7 ln g a °ted beyond his juris- 
 diction, without any reasonable grounds for 
 believing he had jurisdiction, hi was liable 
 in damages to the plaintiff 'for The false s 
 imprisonment. Davidson v Qrd 20^ / 
 
 CONTRACT— Plaintiff 
 
 and defendants 
 
 1 entered. *nto a, contact in writing, by" £££J 
 
Index. 
 
 CONTRACT— continued. 
 plaintiff "engaged to deliver to the defend- 
 ants, all sugar manufactured on his estate 
 from 1st October, 1857, to 30th June, 1858, 
 both inclusive."— Held, that what was 
 meant by the contract was, not that the 
 deliveries should be made between the dates 
 in question, but only that the sugar should 
 be manufactured between those dates— and 
 that the defendants were bound to accept 
 all sugar manufactured on or before the 
 latter date, and which was tendered to them 
 within a reasonable time thereafter. The 
 sugar was tendered by plaintiff on the 12th 
 July, 1858, — Held, this was within a reason- 
 able time. The sugar tendered, however, 
 on that date [12th July] was in boxes, un- 
 dergoing the process by which molasses 
 are finally separated from the granulated 
 sugar; and though the upper portion in 
 each box was what in co mm erce would be 
 considered " sugar," still the whole mass, 
 taken together would not be . so considered 
 — though planters would call it sugar. — 
 Held, that the article tendered was not "su- 
 gar" manufactured by the 30th June, and 
 the defendants were not, theref < >re, bound 
 to accept same, nor even that portion of it 
 as had granulated, but which could not be 
 separated from the rest. — Query. "Whether 
 if the separation could have been effected, 
 the defendants were bound to have done so, 
 and to accept the granulated portion P 
 Chassebiatj v. Mathieu & Co., - - 117 
 
 2. -Where a builder contracts to 
 
 erect a building in a certain manner, but 
 neglects to do so, he is not entitled to re- 
 cover the price of such work on the con- 
 tract, nor yet on a quantum meruit., even 
 though the owner take possession and has 
 the use of the work so done, as no implied 
 promise arises from the fact that the owner 
 has so taken possession, as he but makes 
 use of his own land and all that is affixed 
 thereto.— Munro v. Bvtt, 8 E. & B. 738, fol- 
 lowed. B/UNGASAMY V. ISAAC AAEON PlL- 
 LAT 168 
 
 3. Bailment — negligence — trover — 
 
 conversion - -, - - 230 
 
 see Peivity of Contract. 2. 
 
 4. 
 
 — .Plea of infancy- 
 gee Infancy. 
 
 — Tender — stamp 
 see Agreement. 
 
 -ignorance 
 
 321 /d 
 
 394" 
 
 of,- 
 
 non-payment of 
 453 
 
 6. Breach 
 
 price of goods 
 
 see Goods. 5. 
 
 7. The defendants, wharfingers and 
 
 warehousemen at Singapore, were , employ- 
 ed by the plaintiffs to moor all plaintiffs' 
 vessels coming into port, alongside, their 
 wharf, and to receive from such vessels all 
 
 CONTRACT— continued. 
 
 goods intended to be landed at Singapore 
 and to warehouse them. In order to en- 
 able the. defendants to know what goods 
 were to be thus received by them, the plain- 
 tiffs' agents at Singapore furnished them, 
 on or about the expected arrival of such 
 vessel, with the manifest ; this manifest the 
 defendants copied into a book kept by 
 them for the purpose, and then returned it. 
 On receipt of the goods by the defendants, 
 they entered them in a separate book, and 
 within a fortnight thereafter sent in to the 
 plaintiffs' said agents, a return of all goods 
 so landed and warehoused ; this return had 
 columns also shewing all goods damaged, 
 short landed and overlanded. In the course 
 of the defendants' employment, they having 
 first been furnished with a manifest as 
 usual, received certain goods from a vessel 
 of the plaintiffs, called the Glenlyon, and 
 in so receiving these goods, they received 
 certain goods which were not intended for 
 Singapore, but for another port, and which 
 were not on the manifest: these goods they 
 entered, along with the other goods receiv. 
 ed, into their books as usual, but in their 
 return to the plaintiffs' said agents, they 
 omitted all mention of these overlanded 
 goods ; these overlanded goods should, ac- 
 cording to their practice andtheformof the 
 returns, have been placed in the overlanded 
 >£oods column thereof. The consignees of 
 w these goods at such other port not having 
 received their goods, called on the plain- 
 tiffs for compensation for their loss — the 
 plaintiffs' said agents then enquired of the 
 defendants if such goods were with them, 
 but were, through forgetfulness of the fact, 
 told that they were not. Some six months 
 after, on a return being sent in by defend! 
 ants to plaintiffs' agents, of all goods in 
 their possession, for which rent was due, 
 the overlanded missing goods appeared. 
 The plaintiffs thereupon sued the defend- 
 ants for damages for negligence in over- 
 i 'landing the goods, and for not informing 
 plaintiffs or their agents thereof, within a 
 reasonable time. — Held, that there was an 
 implied contract by the defendants, and a 
 ~uty cast upon them, to report to the plain- 
 tiffs or their said agents, within a reason- 
 able time, as to overlanded goods in their 
 '^possession; and that, under the circum- 
 stances, they were guilty of negligence in 
 r that respect, and were liable to the plain- 
 tiffs in damages therefor. — "Where a plain- 
 tiff has been guilty of negligence, which 
 has, in fact, contributed to the loss com- 
 plained of, yet, if the defendant could in 
 the result, by exercise of ordinary care and 
 diligence, have avoided the mischief, the 
 plaintiffs' negligence will not excuse him 
 
690 
 
 INDEX. 
 
 CONTRACT— continued. 
 
 [defendant]— Radley v. London and North 
 
 Western By. Co., 1 L. R. App. Cases, 754, 
 
 -for non- delivery of 
 491 
 
 8. Breach of, 
 
 goods — knowledge 
 
 see Breach of Contract. 2. 
 
 9. Covenant — Award 
 
 see Award. 3. 
 
 10. -The plaintiffs having contracted 
 
 with one A. to purchase certain lands, from 
 him, thereafter agreed with the defendant 
 to sell the same to him, at a large profit. 
 Lands in that neighbourhood were then 
 rising every day in value, by reason of cer- 
 tain Government Notifications, and were 
 required for immediate purposes of building, 
 to supply the wants occasioned by the said 
 Notifications. A. hearing the plaintiffs had 
 sold the land at so large a profit, refused 
 of his own wrong, to complete the contract 
 he had made with them, and in consequence 
 was sued by the plaintiffs for specific per- 
 formance of his contract. While this action 
 was pending, the plaintiffs and defendant 
 executed an agreement, which, after reciting 
 that the plaintiffs had pin-chased the lands 
 of A. and had agreed to sell it to the defend- 
 ant, the said A. refused to carry out his 
 contract, proceeded as follows : — " We have 
 " instituted an action against him in the 
 " Court, after demanding from him the said 
 '' lands. If we succeed in getting judgment 
 
 CONTRACT— continued. 
 
 defendant to complete his^ contract with 
 
 them. At that time 
 
 the value of the land 
 
 followed. "McGregor &anor.^ Tanjong lhad considerably gone down and was no 
 Pagar Dock Co., Ld. - - - 461lf longer of much use to the defendant, as 
 
 in the case, and the lands decided in our 
 " favour, we shall immediately make the 
 " Bill of sale in your [defendant's] favour, 
 " or in favour of those whom you will ap- 
 " point. If we do not succeed in getting 
 " the lands in the suTE, we will return to 
 " you the said sum of $!20Q, which we took 
 " from you as an advance." The plaintiffs' 
 case against the said A. was a long while, 
 [owing to the block of cases on the trial 
 list,] pending, before it was heard— it even- 
 tually came off, and A. was decreed specific- 
 ally to perform his contract with the plain- 
 tiffs. The defendant hearing the plaintiffs 
 had succeeded, called on them to fulfil their 
 contract with him, but owing to the said A. 
 having appealed against the decree, they 
 were unable to do so. The defendant then 
 repudiated all further connection with the 
 land, and claimed that his contract was at 
 an end, and requested a re-payment of his 
 advance. The plaintiffs refused to admit 
 this, and so matters remained, until the 
 appeal, which took some nine months before 
 it was heard, and the judgment against A . 
 in the Court below, affirmed. A. thereafter 
 specifically performed his contract with the 
 plaintiff s, and the plaintiffs called on the 
 
 sxifficient lands had been utilized for the 
 purposes of the Government Notifications. 
 , The object for which the defendant had 
 purchased it had wholly failed. The plain- 
 497 , /tiffs then sued the defendant for specific 
 , /performance of his contract. — Held, by the 
 Court below, that the defendant was justi- 
 fied in his refusal to take the lands, as 
 " judgment in the case" meant, judgment 
 of the Court below, in which the suit was 
 pending at the time of the agreement : that 
 plaintiffs being unable then, by reason of 
 A's appeal, to perform their contract, the 
 defendant was discharged from his. — Held, 
 on appeal [by Ford and Wood J. J., 
 Sidgreaves, C. J. diss.,] reversing the 
 judgment of the Court below, that " judg- 
 ment in the case" meant final judgment, 
 whenever, and at whatever Court it might 
 be— and the defendant having so contracted 
 was bound to take the land. Decree for 
 specific performance by him accordingly. 
 Mahomed Mtjstan & anor. v. Kana , 
 Shaik Ibrahim - - 582 |r 
 
 CONTRACT IN WRITING— Memoran- 
 dum — Conditions of sale - - 654 / 
 see Auctioneer. 2. / 
 CONTRACT OP SALE.— Vendor and , 
 
 Purchaser 1841/ 
 
 see Goods. 3. >, 
 
 2. Charter.party - - - 227 x > 
 
 see Wharfage. ■ 
 
 CONTRACTS.— The Lord's Day Act, 29, 
 Car. II. c. 7, as far as contracts are con- 
 cerned, applies to both Christians and non- 
 Christians in this Colony. Borrowing 
 money and giving a note for it, even by a 
 tradesman, is not a thing done in the course 
 of his ordinary calling ; but it would be 
 otherwise, if given for goods sold according 
 to the ordinary calling of the vendor. — 
 To a plea stating that a note was made on 
 Sunday, the plaintiff replied, that after 
 making the note, the defendant promised 
 to pay. — Held, on demurrer, that it was bad. 
 —Semble. The penal portion of the Act 
 does not apply. — CoOMARAPAH Chetty v. 
 Kang Oon Lock . . . . 314 / 
 
 2 : , in respect to Chattels— valuable 
 
 consideration . 201 
 
 see Chattel. 
 CON V E YANOE-A conveyance which was 
 executed by one person to another, on the 
 understanding that it should not operate 
 as such, till the purchase money therein 
 
 mentioned was paid. — Held, 
 escrow, and inoperative to 
 
 to be only an 
 convey any 
 
INDEX. 
 
 691 
 
 C ON VEYANCE— continued. 
 interest, until the money was paid — al- 
 though the conveyance was, on the face of 
 it, an out and out one, and purported to 
 acknowledge receipt of the purchase money, y \o 
 — Teemah v. Mat Toh Din . 432 f n , 
 
 COSTS — Payment of judgment and, — no 
 bar to appeal 12 
 
 see Agreement. 1. 
 
 2. — ■ — Demurrer — action for trespass 
 and false imprisonment ... 254 
 
 see Trespass. 2. 
 
 3. Motion to set aside proceedings 
 
 — irregularity 
 
 geeSc-lRE FACIAS. 
 
 4. The Court will not order the 
 
 defendant [Execution-Creditor] in an Inter- 
 pleader suit, although a bankrupt, to give 
 security for costs. — Query. Will the Court 
 order a plaintiff, who is resident within the 
 jurisdiction of the Court, and is a bankrupt, 
 to give security for costs, whether he sues 
 on behalf of the trustees or otherwise ; and 
 if he sues on behalf of the trustees, will 
 
 of Court of Requests 
 
 see Lighterage, 2. 
 •see also Accounts. 
 COURT-MARTIAL— Military Jurisdic- 
 
 J tion ] 
 
 see Military Law. 
 COURT OF REQUESTS— Powers of Com. 
 missioners of, — in regard to contempts 205 v 
 see Contem.pt of Court. 2. 
 
 2. Semble. If an action has been s 
 
 . tried in the Court of Requests, and judg- 
 
 274! 'pent given therein, such judgment is bind- 
 ing on the parties, and they cannot after- 
 wards come into the Supreme Court about 
 the same claim, even if plaintiff was merely 
 non-suited in the lower Court. — Bemben v. 
 Curpen Keechee - - . . 313 
 
 3. "Where a party recovers judg- 
 ment in the Court of Requests with costs, 
 and a large portion of his costs are disallow- 
 ed on the ground that such costs are beyond 
 the Court's jurisdiction 
 
 and practice to 
 
 they be ordered to give security for costs. IpHow, no action lies in the Supreme Court 
 
 Nairnb v. Tunku Muda Hussain 325* x ° r Ba ch extra cost3. The judgment of the 
 
 5. COSTS-Court of Requests - 471 , /Court of Requests is final ; and except as is 
 
 ".provided by section 12 of the Appeal? 
 
 see Court of Requests. 3, 
 
 6. A plaintiff is entitled to his costs 
 
 against all defendants in the suit, although 
 the defendants may have severed in their 
 defence, and one of them adopts a line of 
 defence which occasions heavy costs, and 
 with which the other is wholly uninterested 
 — Shagapah Chettt u. Capel 
 & another - . - - - - _ 512 
 
 7. General Estate — contribution 541 
 
 see Life Estate. 
 
 8. Where a plaintiff bring? tw o 
 
 distinct actions of the same nature, against 
 two defendants, which as regards his case 
 is identical, — and for convenience sake the 
 two actions are tried together, and both re- 
 sult in a verdict for him,— he is not entitled 
 to have the costs of his witnesses, common 
 to the two actions, wholly from one of the 
 defendants, leaving him to his remedy 
 against the other of them ; but such costs 
 will be apportioned between the defendants 
 on some just principle of apportionment ; 
 and in default of finding any 3uch principle, 
 equally between the two. The solvency or 
 
 Yeaf Hup Keat 
 
 9. Stay of proceedings 
 
 see Administration. 
 
 10. Power of Court of 
 
 review or vary order as to — - 
 see Account Stated. 
 
 I. 
 Appeal 
 
 601 
 
 to 
 647 
 
 COSTS— continued. 
 
 11. Sum recovered within jurisdiction / 
 
 672 * 
 
 1. - 586 »' 
 
 / 
 
 / 
 
 Ordinance IX. of 1874, cannot be reviewed 
 by, or sued on, in this Court. — Query. 
 Whether the Com-t of Requests has power 
 to allow a successful party costs incurred 
 by him for witnesses' expenses, Solicitors 
 or Counsels' fees, carriage hire and the y 
 like? — Ramasamy v.Narainen Chetty471 * 
 
 / 4. Sum within jurisdiction of, — .-. 
 
 recovered in Supreme Court - - 472 ■•/ 
 see Attorney. j,- 
 
 ■' 5. see also Costs. 11. - 672 ^ 
 
 COVENANT.— An advertisement in Eng- 
 lish, published in a local newspaper, is no 
 notice to a Chinaman who is unable to read 
 that language. ■ So where the plaintiff, a 
 Chinaman, after such advertisement, receiv- 
 ed rent for his premises, of persons who he 
 still then believed to be those he had rented 
 his premises to, and such receipt of rent 
 was, after certain breaches of covenant, 
 — IL'.ld, that there was no waiver of the 
 breaches, as there was no notice of the 
 change, and the advertisement did not, 
 under the circumstances, amount to notice. 
 A covenant not to assign is a covenant that 
 
 insolvency of either of the parties, is no just runs with the land, and the assignee of 
 
 principle to go by.— Allah ^eechay v. X flc reye rsion may take advantage of any 
 
 '••'■■<'■< ' 'f breach of it. Where a Company takes a 
 
 lease of certain premises and covenants not 
 ' ' to assign, and subsequently, during the 
 Jierm, is amalgamated with another Com- 
 pany upon which the original Company is 
 /dissolved, and the newly formed Company, 
 
692 
 
 INDEX. 
 
 COVENANT— continued. 
 by the same manager and 
 
 clerks, occupy 
 the premises. — Held, a breach, of the cove- 
 nant. B. by deed, leased certain premises 
 to the B. I. E. Telegraph Company for a 
 term of 21 years, which lease contained 
 covenant by the Company not to assign 
 ■without the consent of B. or his assigns. 
 The B. I. B. Company, in conjunction with 
 the C. S. Telegraph Company and B. A. 
 Telegraph Company, amalgamated, and 
 formed themselves into a new company, 
 called the B. E. A. & C. Telegraph Company 
 [defendants]. On the amalgamation, the 
 three first companies were dissolved and 
 wound up, but the premises were continued 
 to be occupied by the same manager and 
 clerks of the original Company, who had 
 become the servants of the newly formed 
 Company. B. assigned the reversion in the 
 lease and premises to the plaintiff, who, as 
 soon as he found the change of companies, 
 sued the defendants, the newly formed 
 Company, in ejectment. — Held, he was en- 
 titled to recover the premises as assignee 
 of the reversion. The Statute 32 Hen. Tin., 
 c. 34, extends to this Colony. Oh Yean 
 Heng v. Eastern, &c, Telegraph Co., 
 Ld. - - 364 dC, 
 
 2 In mortgage bond — s t a y of ac- 
 tion - - 467 if, 
 
 see Stay of Action. 1. 
 CREDIT — Principal and agent — f o r e i g n 
 principal - ... 85 
 
 see Foreign Merchant. 
 CREDITOR— A creditor who had claims 
 in three several capacities against his 
 " debtor, received in all three capacities di- 
 vidends from the Trustees of his debtor, 
 under a composition deed. He signed the 
 composition deed once, without shewing, on 
 the deed, in what character he signed it. 
 He subsequently denied he had signed'tEe 
 deed and received any dividend, except in 
 his individual capacity, and threatened his 
 debtor that unless some security was given 
 for one of the two claims which he had in a 
 representative character, he would take pro- 
 ceedings against him. He concealed from 
 the debtor the fact that he had received 
 dividends in such representative capacity, 
 and when the debtor was induced to make 
 a mortgage bond to secure the one repre- 
 sentative claim, he falsely represented that 
 he had paid the estate he represented, and 
 required the bond to be made in his own 
 name, which was done. — Held, the receipt 
 of the dividends in the three capacities, 
 and signing his name generally, was a sum. 
 cient assent by him to the composition deed, 
 so as to make it binding on him. — Held also, 
 that the mis- representation that he paid the 
 estate he represented, the debtor's debt, 
 
 / 
 
 CREDITOR— continued. 
 and the fraudulent concealment in not dis- 
 closing that he had already received, in such 
 representative capacity, a dividend under 
 the composition deed, were sufficient to 
 render the mortgage bond, fraudulent and 
 void, and the same was ordered to be given 
 up to be cancelled, at the suit of the debtor, 
 who subsequently came to learn of the fraud 
 practised on him. — McInttre v. Galas- 
 taun - ... 67 k 
 
 2. Principal and Surety — holder of 
 
 joint and several bill - - - 455 
 
 see Promissory Note. 3. 
 CREDITORS— Composition— a r r a n g e- 
 ment— payment by mistake - - 170 i/ 
 
 see Composition. 2. J 
 
 CRIMINAL CHARGE— Belief founded on , 
 information received - - - 629 [/ 
 
 see Malicious Prosecution. 2. . 
 
 CRIMINAL INFORMATION— R c a s o n- 
 
 393 V 
 1. , 
 presump- 
 3 
 
 able and probable cause 
 
 see Malicious Prosecution. 
 CROWN — Quit-rent — receipts 
 tion in law - 3 ( 
 
 see Land. 1. 
 
 ■Right of, to distrain for arrears of 
 quit-rent — covenant - - - 73 > 
 
 see Land. 3. / 
 
 Power to commute tenth under 
 Malacca Land Act, into money payment 303 t 
 
 see Land 6 t 
 
 CUSTOM— Fixtures - 43 v' 
 
 see Fixtures. 
 DECREE FOR ACCOUNTS— Action in 
 ejectment — Equity side - 635 \J 
 
 see Stay of Action. 2. j 
 
 Action by partner on account 
 
 stated ... . 647 \j 
 
 see Account Stated. j 
 
 DEBTOR— Composition Deed— Dividends / 
 
 67i 
 
 — fraudulent concealment 
 
 see Creditor. 1. V 
 
 DEBTOR'S GOODS— Aplaintiffby attach- 
 ing his debtor's goods under section 422 of 
 the Civil Procedure Ordinance 1878, acquires 
 no title to the goods ; and if it is necessary 
 for an equitable mortgagee of the goods to 
 perfect his title by notice, he may do so 
 even after the plaintiff has attached the 
 goods, and before he seizes tiiem in execu- 
 tion. An equitable mortgage of personalty, 
 does not however require to be perfected by 
 notice.— Guthrie & Co. v. ShidenaMoha. 
 
 med Abdul Kader 
 Chetty 
 
 In re : Arnashellum 
 DEDICATION-PnbHcright-o-f-wag^ 
 
 see Right-of-way 2 u' 
 
 DEED-Cancellation of,_estate vested- / 
 land - . . _ _ J 
 
 see Boundaries, i, , 
 
 y 
 
INDEX. 
 
 6§3 
 
 DEED — continued. 
 
 2. A stranger to a deed, cannot 
 
 under the deed, seize and sell any thing 
 mortgaged by the deed ; if he do so, he is 
 a trespasser, even though the monies due 
 on the deed be due to the firm in which the 
 defendant was a partner, and though he 
 sold-the vessel and applied the proceeds to 
 account of such debt. But under the above 
 circumstances, the Court will only give 
 nominal damages, as the plaintiff derived 
 a benefit by the defendant appropriating the 
 proceeds to account of the debt due on the 
 deed. — Query. Whether, if the defendant 
 was a party to the deed, and the deed con- 
 tained no power of sale, he could avail him- 
 self of the deed, without pleading it specially 
 either on'equitable grounds or otherwise ? — 
 TuNKtr Mttda Choot La tiff v. Lim 
 Seang ... . 234 
 
 3. A stranger to a deed cannot main 
 
 tain an action on it, though he be a partner 
 of the persons with whom the deed was 
 entered, and the deed was intended to have 
 been entered with the firm in which they 
 were partners. The legal representatives 
 of such persons, are the proper persons, to 
 bring the action. — Lim Cheong & oes. v. 
 Tunku Muda Choot Latiff & obs. - 235 
 DEFENCE— Severance from line of, by 
 one of several defendants — costs - 512 
 
 see Costs. 6. 
 
 2. Amendment of Statement of, — 
 
 plea of Statute of Limitations - 513 
 
 see Amendment. 
 DEFENDANT— A defendant being sued 
 at law for money lent, &c, on the common 
 money counts, pleaded that he had before 
 the commencement of the action, sued the 
 plaintiff, in equity, for an account, which 
 included the monies sued on in the action, 
 and such suit was still pending, and in sup- 
 port of his j>lea, produced the records of 
 the two cases, from which it appeared, that 
 though, some of the items were the same, 
 yet the equity suit was based on a fiduciary 
 relationship alleged to exist between the 
 plaintiff and defendant, and claimed pecu- 
 liar relief, relating to several matters. — 
 Held, that the two suits were not for the 
 same cause of action, and the plea was 
 overruled. Nabainan Chettt v. Abdul 
 Rahman, alias Kaffbee - - 431 
 
 2. coming from one Settlement to 
 
 another .... - 509 
 
 see Privilege from Abkest. 
 DELIVERY— tee Contract 1. - 117 
 DEMAND — recovery of, — arbitrator — 
 award 438 
 
 see Awabd. 2. 
 DEMURRER— Motion for judgment 480 
 
 see Administration Bond. 
 
 DEPOSIT OF DEEDS— A mere deposit 
 of title deeds without any writing referring 
 to them, does not create any equitable mort- 
 gage, but only a pledge. Even if a mere depo- 
 sit of title deeds as aforesaid does create an 
 equitable mortgage, still the person holding 
 them, is entitled to maintain an action to 
 recover the moneys, [for which the title 
 deeds were deposited as a security,] — on 
 the common money counts, although at 
 the time he retains the title deeds as secu. 
 rity. — Hussain Saiboo v. Golam Mtdin 
 
 et uxor 347 ^ 
 
 DEVIATION— Sea-worthiness— L a w of 
 country to prevail - : - 174 y' 
 
 see Sea-worthiness. * 
 
 License— risk • . 378 
 
 see Insurance. 
 DEVISE — A testator devised certain lands * 
 
 { 'to charitable purposes which he directed to 
 be under the management of his sons, no 
 body else being allowed to interfere there- 
 with — and towards the conclusion of his 
 Will, stated as follows : — " My son Oodman 
 " Nina, will act as my executor, and on his 
 " death, my second son Oodman Sah — in the 
 " absence of my sons, their sons will succeed 
 "jCs executors they will succeed one 
 
 IT' to the other, the eldest son first, and the 
 " next afterwards, and so forth." — Held, that 
 •the eldest grandson in point of age, — and 
 without reference to his being the son of the 
 'first or second son, — was entitled to succeed 
 ( as executor — and that the testator, judging 
 /from his language, intended, such his exe- 
 cutors, to be also the trustees of the charity ; 
 and that consequently on the death of the two 
 sons, the eldest grandson, as aforesaid, was 
 the trustee of the charity. In the goods of 
 Cauder Mohuddeen, deceased, Straits Law 
 Reports, p. 281, observed on. Attorney. 
 General v. Hajbe Abdul Cadeb - 616 V* 
 
 2. Where there is a devise of proper- 
 ty, coupled with a restraint against alien- 
 ation, the restraint alone is void, and not 
 the whole devise. A testator who died 
 prior to 1837, devised a house and 
 monies to his daughters as follows : "I give 
 "and hand over to my daughters, the house 
 " &c, to live in together, it shall never be 
 " either mortgaged or sold, ... I give 
 ^and hand over also to each of my daughters 
 a sum of $30. I trust the furniture in the 
 •' said house, to my youngest daughter, until 
 " they all are married, when it shall be equal- 
 /' ly divided among them. My sons or other 
 " relations will not interfere in this arrange- 
 '"ment." By a subsequent part of the Will, 
 
 the resi- 
 them. 
 
 A 
 
 /raised subsequent to the Wills Act XXV 
 /of 1838, the rules of construction prior there- 
 
694 
 
 INDEX. 
 
 DEVISE — continued. 
 
 to must be the rules governing the con- 
 struction of the testator's Will, and that the 
 daughters therefore only took a joint estate 
 for life, in the house. Khoo Seok Haing 
 v. Khoo Wee Team & anor - 633 
 
 DIVORCE— continued. 
 guardian [ or Wallee J for marriage, is 
 present. The law of China, to the contrary, 
 is not applicable to this Colony. Nonia 
 Cheah Yew v. Othmansaw Mebican , 
 \f&. anor. 160 v 
 
 -see CONSTRTTC- 
 
 DISTRESS WARRANTS 
 
 tion of Statute .... 
 
 DISTRIBUTION OF PROPERTY— A. an 
 
 aged Chinese woman, in 1825, made a docu- 
 ment in China, in her own language, by 
 which she declared that for the peace of 
 her family, she made a distribution of her 
 property between her four sons, and there- 
 in referred to her interests in certain 
 property in Penang, which she reserved for 
 " her daily expense." The sons were no 
 parties to the document, but respectively 
 acquiesced in the same. The title deeds of 
 this Penang property were in the name of 
 one of these sons, and appeared to be his 
 absolutely. Prom the date of the aforesaid 
 document, and for a period of about fifty 
 years thereafter, the rents of this Penang 
 property were remitted to China, and 
 distributed by the then eldest member of 
 the family, among the said four sons or 
 their descendants. In 1864, certain descend- 
 ants of these four sons made a further 
 document, by which, after referring to the 
 previous document made by their " an- 
 cestor," and with the view of offering an 
 inducement to the members of the family to 
 study, the rents of these Penang houses 
 were de-vided into certain proportions.- 
 The plaintiff was a party to this latter 
 document, but the defendant was not. In 
 18S0, the defendant, the administrator of 
 the son in whose name the title deeds to 
 this Penang property were, claimed the 
 property as his exclusively, and refused to 
 recognize the aforesaid dealings and dis- 
 posal of the same, whereupon the plaintiff, 
 an adopted son of one of the four sons, and 
 interested by name in the original docu- 
 ment of 1825, brought this suit to have the 
 aforesaid Penang property declared to be 
 A's, and the document of 1825, a good and 
 valid family arrangement, and. binding on 
 defendant, — Meld, that the docunajj»t was'a 
 valid family arrangement, and binding on 
 the defendant, — Held also, that although 
 the document of 1864 was not made by the 
 defendant, or otherwise binding on him, it 
 was properly admitted in evidence, as shew- 
 ing the state of things in the family at that 
 time, in connection with this property, ^gy. 
 Khoo Joo Heem v. Khoo Joo Lam - 59Qq^; 
 
 DIVORCE— A Chinese female in this 
 Colony, is at liberty to marry, after being 
 divorced from her former husfeand — and 
 such marriage will be held valid, notwith- 
 standing that, at such second marriage, no 
 
 J 
 
 \ 
 
 ■ V 
 4 
 
 2. Mahomedan, — Concubines com. 
 
 426 $ petent witnesses by English law - 255 V 
 
 see English Law. 3. v 
 
 3. No action can be maintained in 
 
 the Supreme Court against a Kali or Maho- 
 medan priest, for divorcing a person from 
 his wife contrary to Mahomedan Law, as it 
 is a matter wholly beyond the powers and 
 jurisdiction of the Court.— A.D o o m e h y 
 Kakah v. Lebbt Datn - - 433 * 
 
 DOCUMENT— Chinese— D e v i s e— ti t le- 
 deeds — family arrangement - . 596 
 
 see Distribution op Property. 
 DOMESTIC SERVANT— Menial servant 
 — wages — limitation - . . 479 
 
 see Servant. 
 
 DUTCH LAW— Malacca— English law of / 
 inheritance— Charter of 1807 - . 27 ^ 
 see Inheritance. V 
 
 DUTY — see Roads and Bridges - 561 V 
 ECCLESIASTICAL PROCEEDINGS— i 
 Revocation of Letters of Administration 601 \, 
 EJECTMENT— Judgment in an action of 
 trespass, where the title to the freehold, has 
 been put in issue, and decided on, is an 
 estoppel to a subsequent action of eject- 
 ment for the same land, provided there has 
 been a trial and verdict in such first action ; 
 but where the judgment in such action of 
 trespass is only by consent, this operates 
 no more than a judgment by default, and is 
 no estoppel,- The Statute 8. & 9 Viet., c. 
 106, does not apply to this Colony. Twelve 
 years uninterrupted possession is, by the 
 Limitation Act XIV. of 1859, sufficient to 
 maintain an ejectment. The above-named 
 Limitation Act is retrospective. Mahomed / 
 Joonoos v. Saiboo . . . 242* 
 
 2. Title-Deeds— Claim to land 601 « 
 
 see Administration. 1. 
 
 3- The defendants had obtained per- 
 
 mission of one Sheriffa Zoharra, to build 
 houses on certain lands belonging to her 
 deceased father, of whose estate she after- 
 wards became administratrix. The defend- 
 ants in pursuance of such permission, 
 erected their houses on such land, and con- 
 
 Mh 1 "? 1 ^ fc ? a great man y y eara 
 
 bejond the statutory limit prescribed by 
 e Limitation Act XIV. of 1859 without 
 paying rent for such holdings T When an 
 plied to by the executor of £e Syed Abdul 
 rahman who, in his lifetime was tC « 
 ecutor of the father of the said Sheriffa Zo' 
 harra-afterthe statutory period TaforQsS 
 
INDEX. 
 
 695 
 
 EJECTMENT— continued. 
 —they refused to pay rent .to Mm ; they 
 did not then however claim the land a8 
 their own, but set up their holding under 
 the said Sheriffa Zoharra. Sheriffa Zoharra 
 subsequently got administration to her said 
 deceased father's estate, and sometime 
 thereafter, herself applied to the Ecclesias- 
 tical Court that the Letters to her might be 
 revoked, and granted to the plaintiff : the 
 plaintiff thus became the administrator of 
 the estate, of the said deceased father. The 
 said Sheriffa Zoharra, as such administra- 
 trix, [before the revocation of her letters] 
 demanded, a3 such, rent of the defendants; 
 .they refused to pay her, and then, disclaimed 
 holding tinder her. The plaintiff, on being 
 appointed administrator as aforesaid, and 
 within the statutory limit after such dis- 
 claimer, thereupon brought this ejectment 
 against the defendants, to recover posses- 
 sion of the respective portions on which 
 their houses stood. It was objected by the 
 defendants, at the trial, that as they had 
 been over 12 years in possession adversely 
 to the executor of the executor of the said, 
 deceased father, and now this action being 
 brought by the plaintiff, as the administra-. 
 tor of such deceased, — the plaintiff was 
 barred by the Act of Limitation XIV. of 
 1859, sec. I. cl. 12 : it was admitted that if 
 Sheriffa Zoharra had sued, the defendants 
 would have been estopped from disputing 
 her title, but, as she had not transferred her 
 right to the plaintiff, nor sued herself, the 
 plaintiff could not avail himself thereof. — 
 Held, that as, if the said Sheriffa Zoharra 
 had sued, she would, equally with the plain- 
 tiff, have been a trustee for the next-of-kin 
 of the deceased — and the Ordinance IV. of 
 1878, obliges the Court to deal with real 
 and not technical rights — the objection 
 could not be allowed, and the plaintiff was 
 entitled to recover. On appeal, this judg- 
 ment was affirmed. The fact that Sheriffa 
 Zoharra had not legally transferred her 
 right to the plaintiff, or that the plaintiff 
 was suing in his own name, was immaterial. 
 If there was anything in the objection, the 
 Court would, under sections 105, 123 and 
 126 of Ordinance V. of 1878, have allowed 
 the plaintiff to amend the title of his suit 
 by substituting the said Sheriffa Zoharra 
 as nominal plaintiff, and that without 
 terms. — Bemble. The Court of Appeal has 
 power to allow or direct an amendment in 
 the title of a suit. — Kyshe v. Inche Nap 
 Pendeh: & oes 
 
 4. Action in — suit in Equity 
 
 see Stat op Action. 2. 
 
 624 
 635 V 
 
 of 
 collection and management, should be divid- 
 EMAM — see Mahomedans — MAHOMEDAN^/ed into twenty-four shares, and to beheld 
 Law. ^upon trust for the benefit of his children 
 
 ENGLISH LAW— Extended to the Colony 
 by Charter of 1807 1 
 
 see Militaey Law . 
 
 2. Inheritance— Charter of 1807 27 
 
 see Inheritance. 
 
 3. The law of England was introduced 
 
 into this Settlement immediately on posses- 
 sion thereof being taken in the name of the 
 King of England by and for the use of the 
 late East India Company : all laws [if any] 
 pi-eviously existing, thereupon immediately 
 ceased. The circumstance that possession was 
 taken by an Officer of the East India Com- 
 pany, does not prevent the transfer of the 
 sovereignty and dominion of the Island to the 
 Crown of England, especially as the rights 
 of the Crown over all the territories of the 
 Company are preserved by the Act 53 Geo. 
 III., cap. 155, sec. 93. The fact, that 
 when possession was taken of this Settle- 
 ment there were a few wandering fisher- 
 men on the Island, does not affect the 
 general rule of law in such cases, inasmuch 
 as they could not be regarded as the in- 
 habitants of a settled country with laws 
 of their own, and who are entitled to the 
 benefit of them, until changed by compe- 
 tent authority. The law of England was 
 certainly imported into this Settlement by 
 the Charter of 1807, if not earlier. The 
 competency of witnesses, is to be determin- 
 ed by the law of the forum ; so that though, 
 by Mahomedan law, concubines are incom- 
 petent witnesses to prove a divorce, still 
 that is no reason why their evidence should 
 not be received in a Court of Justice in 
 this Settlement, where, by English law, 
 they are competent A testator directed 
 that any legatees or devisees " proceeding 
 to law in any Oourt or Courts for their 
 said shares " should lose their legacies. — • 
 Held, the direction was void, as property 
 is inseparable from the right to institute 
 legal proceedings and the protection of the 
 law, and it was repugnant and inconsistent 
 with the gifts. The testator gave certain 
 personal property [naming them] to certain 
 legatees. In an after part of his Will, 
 he gave the whole of his personal property 
 to his executors upon certain trusts, with- 
 out excepting the property so first be. 
 queathed away. — Held, the latter portion 
 did not override the former as being irre- 
 concilable with it, or on the principle that 
 it denoted a later intention ; that rule only 
 applies on failure of every attempt to give 
 he whole such a construction as will ren- 
 der every part of the Will effective. He 
 further directed that the rents and profits 
 of his estates, after deducting expenses 
 
INDEX. 
 
 ENGLISH LAW— continued. 
 and grand-children, whom he named, and 
 their issues. These shares he ohen proceed- 
 ed to distribute among his children and 
 grand-children in certain proportions, and 
 finally directed as follows: " I direct that 
 " the annual income of the said share or 
 " shares so set apart for my sons and grand- 
 " sons and their respective issues in the said 
 " trust estate and premises, shall be paid 
 " to the same son or grandson during his 
 " life, and from and after his decease, that 
 " his said share or shares shall be held in 
 " trust for all such sons born in my life- 
 " time, at such ages and times as I might 
 " by any writing under my hand or by my 
 V " "Will appoint, and in default of such ap- 
 " pointment, &c, in trust for all my child- 
 " ren, who being a son shall attain the age 
 " of twenty-one years, or being a daughter 
 " shall attain that age or marry, in equal 
 " shares, and if there small be but one such 
 " child, the whole to be in trust for such 
 " child. — Held, that the direction was not 
 void on the ground of remoteness. He fur- 
 ther devised eleven pieces of land in Pe- 
 nang, which he particularly described, to 
 trustees, and directed the same be called the 
 "WhakofE of Mahomed Noordin." He fur- 
 ther directed his trustees out of the rents 
 and profits of such lands, to pay for ever 
 the sum of $20 monthly to the managing 
 body of a certain School ; the sum of $60 
 monthly to his daughter, Tengah Chee 
 Mah, and her lawful issue during their 
 natural lives ; and also the sum of $40 
 monthly for the maintenance of one of his 
 sons and his wife. He then gave the resi- 
 due of such rents and profits upon trusts 
 as follows : " To expend for the yearly per- 
 " formanceof kandoories and entertainments 
 " for me and in my name to commence on 
 " the anniversary of my decease, according 
 " to the Mahomedan religion or cus- 
 " torn, such kandoories and entertain- 
 " ments to continue for ten successive days 
 " every year, and also in the performance of 
 " an annual kandoorie in the name of all the 
 " prophets, and to expend the same in giving 
 "a kandoorie or feast according to the Maho- 
 " medan religion or custom, to the poor for 
 " ten successive days in every year from the 
 " anniversary of my decease, to the extent of 
 " three hundred dollars, including the costs 
 " of lighting up the mosque or burial-place 
 "of my deceased mother and the school- 
 " rooms thereto adjoining; and also to give 
 " kandoories or feasts to the poor aforesaid 
 " once in every three months to the extent 
 " of one hundred dollars ; and provided there 
 " should remain any surplus monies, then the 
 " same is to be expended in purchasing 
 "clothesfordistributiontothepoor." — Held, 
 
 ENGLISH LAW— continued. 
 [firstly] that the trust for the school was a 
 good charitable bequest and therefore valid. 
 —Held, [secondly] that the gift to Tengah 
 Chee Mah and her issue, was a gift to her 
 for life ; for her sole and separate use, with 
 remainder' to such of her children as were in 
 existence at the time of the testator's death, as 
 joint tenants for life; andtheword "issues" 
 was used therein in the sense of " children" 
 and was a word of purchase and not of 
 limitation, but as the gift was for life only, 
 the children born after testator's death 
 could not be let in.— ffeM, [thirdly] that 
 the gift of the residue of the rents and pro- 
 fits for kandoories, &c, was not a charitable 
 gift, but void as tending to a perpetuity. — • 
 Held, [fourthly] that the gift for clothes 
 to the poor was a good charitable gift, and 
 as the surplus monies with which it was to 
 be paid was sufficiently certain, the gift of 
 the surplus was valid. The testator gave a 
 legacy to Mahomed Mashoredin Mericau 
 Noordin and his issue, and directed that if 
 he died without issue, the share was to go 
 over to Abdul Oauder Jellamy and Rajah 
 Bee and their issues in equal shares. He 
 also gave a legacy to Abdul Cauder Jellamy, 
 and directed that in case he died without 
 issue, his share was to go to Mahomed 
 Mashoredin Merican Noordin and Rajah 
 Bee; during the lifetime of the testator, 
 Abdul Cauder J ellamy died without issue. — 
 Held, that the words " died, leaving no 
 issue" applied to death in the testator's 
 lifetime, and that the gift to Abdul 
 Cauder Jellamy did not lapse, but 
 the ulterior cross gift took effect as a simple 
 absolute gift. The testator in one portion 
 of his Will devised his lands at Akyab and 
 Tenasserim for certain purposes : in a sub- 
 sequent part he devised " the rest and residue 
 "of his estates at Penang and Province 
 " Wellesley or elsewhere [exclusive of those 
 " which he had by deed of gift given to his 
 " children and grand-children "] for oertain 
 other purposes. — Held, that there was no in- 
 consistency iri the two clauses, as the words 
 " rest and residue" excluded what the testa- ' 
 tor had already given, and the effect of these 
 words not limited by the parenthetical clause, ^y 
 
 FA.TIMA.H & OES. V. D. LoOAN&OES. - 255^^ 
 
 EQUITABLE MORTGAGE— Deposit of 
 title deeds — pledge . . . 347 J 
 
 see Deposit of Deeds. 
 Goods— Attachment— per s n a 1- 
 
 *y ■ ■ ■ - - - - 553 v 
 
 see Debtor's Goods. 
 
 ESCROW-Conveyance-Purchase V 
 money - . . . . ^ 
 
 see Conveyance. 
 
INDEX. 
 
 697 
 
 EVIDENOE-ConouWnes competent wit- 
 nesses m cases o£ Mahomedan divorce 255 
 see English Law. 3. 
 
 2 \ O f reputation on question of 
 marnage . . 300 
 
 see Trust. 
 
 3 - ——Secondary, of award, same with 
 regard to lost deed, &c. . . . 353 
 
 see Awabd. 1. 
 
 4- ~77,y he ? a document relating to 
 attairs of State is declined to be produced— 
 it is for the Officer of Government, subpce- 
 naed to produce it,— and not for the Court, 
 —to decide, whether its production would 
 be contrary to good policy, as not conducive 
 to the 1 public welfare. The Indian evidence 
 
 ^\ 0i 1855 ' !>«• 21 & 23 ]>s ^t alter- 
 ed the law in this respect. Beaton v. Skene, 
 29 L. J. Ex. [N.S.] 430, followed. The plain- 
 tin- subpoenaed the Governor of this Colony, 
 to produce certain documents and corres- 
 pondence relating to the succession to the 
 throne of the State of Muar, and to certain 
 allowances to be made to the members of 
 the late Royal Family of that State, of 
 whom the defendant was one. A great 
 part of these documents and correspondence 
 had been published in the Blue Book for 
 the information of the general public. 
 Plaintiff, the assignee of a sum of money, 
 payable under a Treaty to the Sultan of 
 Muar, and which he alleged was the identi- 
 cal sum now being allowed the defendant, 
 commenced an action in this Court, against 
 the defendant, in respect of this sum, and 
 in order to prove the identity of the sum, 
 subpoenaed the Governor to produce the 
 aforesaid documents and correspondence. 
 These papers were brought into Court by 
 the Colonial Secretary, who declined how- 
 ever, to produce them, on the grounds that 
 his doing so, would not be conducive to the 
 public interests, as they related to State 
 affairs, and it would be contrary to good 
 policy to do so.— Held, by the Court of first 
 instance, that he could not be compelled to 
 produce the documents.— Held, on appeal, 
 by Ford, J. that the judgment of the Court 
 below was wrong, and the documents and 
 correspondence should have been compelled 
 to be produced, as the Government by the 
 very fact of publishing the papers and 
 letters in the Blue Book, had given them 
 publicity, and decided the question in favour 
 of their admission in evidence. — Held, by 
 Sidgreaves, C. J. that the judgment of the 
 Court below was right, and the fact of the 
 oublication in the Blue Book, made no dif- 
 ference. The money payable under the 
 Treaty to Sultan Allie, the Sultan of Muar, 
 tnd by him assigned to the plaintiff was 
 jranted by the Tumongong of Johore to 
 lim, [Sultan Allie] " his heirs and succes- 
 
 EVIDENCE— continued. 
 sors" in consideration of certain arrange* 
 ments in respect of the extent of country 
 to be governed by each. — Held, by Ford, J. 
 [and affirmed by the Privy Council, without 
 expressing an opinion on the other points 
 raised] that on the true construction of 
 the Treaty, the grant did not confer such 
 an interest in the money, upon Sultan Allie, 
 or to enable him to assign it beyond the 
 period of his own life. Aiiasappae 
 
 CHBTTT & ANOB. V. T U N K TJ ALIUK,, 
 
 &c 520r 
 
 5. Stamp .... 548 1 
 
 see Peomtssoey Note. 5. 
 
 6. Production of Document - 596 * 
 
 see DlSTBIBUTION OF PSOPEBTY. / 
 
 EXECUTION— Stay of,— insolvency - 512 */ 
 see Stat op Execution. . 
 
 EXECUTION CREDITOR— Preference- 
 fraudulent transfer — notice of claim by 
 third party— Sheriff - . - 64 x 
 
 see Judgment-Debtob. ., 
 
 EXECUTOR— Constructive trust- 
 breaches of trust .... 438 * 
 
 see Awabd. 2. 
 Commission ... 611 . 
 
 see Tettsteeship. 
 EXPRESS WARRANTY— Commercial 
 matters ... - - 22 
 
 see Warranty. 1 
 FAILURE OF CONSIDERATION— The 
 maxim caveat emptor ha3 no application to 
 a case where the vendor professes to sell a 
 particular article, which turns out subse- 
 quently to be, not that article, but some 
 other article altogether ; and the vendee 
 is entitled to recover back as money had 
 and received, the purchase money he paid 
 for such particular article, as there was a 
 total failure of the consideration for which 
 it was paid. Wee Kow v. Chaeteeed 
 Bank, &c. - 167 
 
 FALSE IMPRISONMENT— Action for 
 trespass and, — plea — demurrer — costs - 254 
 see Trespass. 2. 
 
 FAMILY ARRANGEMENT— Chinese 
 document — devise - - 596 
 
 see Disteibution of Property. 
 FAULTY TITLE— Non-completion of pur- 
 chase 654 v 
 
 see Auctioneee. 2. J 
 
 FEES— The term " fees" in legal phraseo- 
 logy, means perquisites allowed to public 
 officers as a reward for their trouble. 
 Where therefore, in the table of fees 
 published with the Order in Council of 6th 
 March, 1868, purporting to be made under 
 Ordinance XII. of 1867, s. 1., was an item 
 as follows, " Admission of an Advocate 
 
 
698 
 
 INDEX. 
 
 PEES — continued. 
 
 $50."— Held, this waff not a " fee" and not 
 
 one within the powers of the Executive 
 
 Council, under the said Act, to pass.— In Wde British agents] as well as to B. & Co., 
 re Isaac Swinburne Bond - - 222l^lefendants, [the foreign principals] and 
 
 FIXTURES— Mats nailed to the floor, oil- 
 cloth nailed to a stair-case, and punkahs 
 fixed to and depending from the ceiling by 
 ropes and screws, are, both by law, and the 
 custom in Penang, fixtures. Where the 
 plaintiff had purchased a house with its 
 appurtenances, of the defendant's principal 
 paid his purchase money and received his 
 conveyance, and the defendant thereafter 
 removed the aforesaid articles from the 
 house, which were attached thereto in the 
 manner stated. — Held, that the articles — in 
 the absence of an agreement to the contrary 
 — passed as fixtures, with the house, under 
 the conveyance, to the plaintiff, and the 
 defendant was- liable in trover for their 
 conversion. The Statute of Enrolment, 
 
 [27 Henry VIII., c. 16] does not extend to principal if credit has been given him as 
 this Colony. Brown & ors v. Herbiot 43^ ^bove — as it was no part of the duty of the 
 
 FOREIGN BILL— The bringing of an 
 action is not a " presentation for payment," 
 so as to require a foreign bill or note to be 
 stamped under section 17 of Ordinance 8 of 
 1873, before it is received in evidence. 
 The affixing of chops to a promissory note, 
 in lieu of signatures, is a sufficient signature 
 of the note. The Sultan of Acheen, a Sov- 
 ereign Prince, was indebted to the plaintiff in 
 consideration of plaintiff releasing his claim 
 on him, the defendants promised to pay the 
 plaintiff a certain sum. — Held, there was 
 sufficient consideration for the defendants' 
 promise. Where service of a writ of sum- 
 mons could not be effected, by reason of the 
 Court having no jurisdiction to entertain 
 the action. — Held, the case fell within 
 section 13, of Act XIV. of 1859, and was 
 not barred, though the note sued on, was 
 more than six years old. Section 13 applies 
 to all cases, whatever may be the length, 
 nature or circumstances, of the defendants' 
 absence from the ' Colony. Lim Guan 
 Teet v. Shaik Ahamad Bashaib 
 
 anob 536i 
 
 FOREIGN MERCHANT— In the absence 
 of a special agreement, the presumption in 
 the case of Foreign Merchants is, that cre- 
 dit is given to the British agent ; but that 
 presumption is liable to be rebutted by 
 shewing that credit was in fact given to 
 both principal and agent, or to the foreign 
 principal only. When B. & Co., of Penang 
 [defendants] acting on bebalf of a constf- 
 tuent, wrote to their agents H. & Co., of 
 Liverpool to procure certain machinery ; 
 and H. &Co.,in pursuance of such orler, 
 entered into a contract with S., S. & Co., 
 [plaintiffs] for the manufacture of such 
 
 FOREIGN MERCHANT— continued. 
 machinery ; and the evidence shewed that 
 S., S. &Co., gave credit to both H. & Co., 
 
 not to II. & Co., exclusively. — Held, on the 
 bankruptcy of H. & Co., that S., S. & Co., 
 could recover from B. & Co., the price of the 
 machinery, although B. & Co., had, under 
 the idea that H. & Co., were alone liable to 
 S., S. & Co., paid and settled with H. & Co., 
 the )<rice of the machinery — and notwith- 
 standing that five years had elapsed after 
 the date when the price was due and should 
 have been paid. The fact that the British 
 agent did not communicate to the foreign 
 principal the terms of the contract he had 
 entered into with the manufacturer, and so 
 led the foreign principal to believe that, in 
 accordance with the usage in trade, credit 
 was exclusively given to the British agent, 
 — does not alter the liability of the foreign 
 
 manufacturer to convey that information 
 to the foreign principal, but of the British 
 asent only, and for whose omissions in that 
 respect the principal should suffer. Kymer 
 v. Suwercrop, I. Camp. 109, distinguished. 
 If an agent exceeds his authority, his acts, 
 only in so far as they are in excess of 
 authority, are void : but the rest thereof, as 
 are within his authority, will stand, though 
 connected as one transaction with the 
 excess. Scott, Sinclaib & Co. v. Bbown / 
 & Co. ... . 85j/ 
 
 FOREIGN SOVEREIGN— Civil Jurisdic- 
 tion — Pleas - 37 S 
 see Jurisdiction. 2. ^ 
 
 Natural-born British subject 145 f" 
 
 see Jurisdiction. 3, 
 Jurisdiction 
 
 see Wbit osAbrest. 
 
 see also — Sovereign. 
 
 FORMA PAUPERIS— Leave 
 sue in — - 
 
 see Administrator. 2. 
 FRAUD — Covenant in mortgage bond 
 see Stay of Action. 2. 
 Arrest by, — d ischarge 
 
 539 
 
 
 %'m 
 
 to 
 602 
 
 437 
 
 from 
 539 
 
 custody 
 
 see Writ of Arrest. 
 FRAUDS— Statute of,— goods sold - 32 V 
 
 see Goods 1. 
 FRAUDULENT C ONC E AL M E NT- \ 
 Debtor— dividends— composition Deed 67 ^ 
 
 see Creditor. 1 / 
 
 FREIGHT-Lien for,-Commerce-Char- 
 ter-party— ship-owner . . \ j a ' ..> 
 
 see Lien fob Freight, 
 
INDEX. 
 
 699 
 
 FREIGHT-rcowiimted. 
 
 Claim for hire or, — Charter- paily 
 
 472 t x&aser, the terms of the sale, prices of the 
 
 -per- 
 326 
 
 — Limitation 
 
 see Attorney. 
 
 GIFT — Property in trust — license- 
 pet uity . 
 
 see Trust. 
 
 2- A gift to a person for th-; benefit 
 
 of a temple is a good charitable gift and 
 one the Court will carry out. A gift of 
 money to an idol for the benefit of a temple 
 is void as being an absurdity and not a 
 charity. Attorney-General v. T h i r- 2* 
 
 POOREE SOONDEREE 377lf° t 
 
 3. A gift of an estate in lands, which 
 
 is attempted to be controlled by restraint 
 against alienation, is not void in its entirety 
 but the restraint alone is void, and the gift 
 will be upheld as if the restraint had never 
 been imposed. A testator, so far as could 
 be gathered from the language of his Will, 
 devised lands to trustees in trust for 60 
 years, to receive the income therefrom, and 
 divide the same among his four children, 
 but strictly restrained the trustees and 
 beneficiaries from alienating the said lands 
 during that period. He further provided, 
 that on the death of any children leaving 
 issue, such issue should take their parent's 
 share. — Held, that the gift for 60 years and 
 restraint on alienation was void, that the 
 children took equitable estates in fee, free 
 from all restrictions. The testator directed 
 that $20 peryear, from the aforesaid income 
 before the same was divided among his 
 children as aforesaid, should be sent to his 
 country, without specifying to whom the 
 money was to be paid, or for what object. 
 — Held, the gift was void, on the ground of 
 uncertainty. Kader Bee&anor. v. ^ 
 Kader Mustan & ors. - - 432^/"^ iq 
 
 GOODS— The Statute of Frauds, 29 Car- 
 II. c. 3, is law in this Colony. Where goods 
 
 GOODS — continued. 
 
 contain the names of the vendor and pur- 
 
 t /goods, and must be signed by the person to 
 be charged [vendor or purchaser as the case 
 might be] ; otherwise no action can be main- 
 tained thereon. A Solicitor who signs and 
 sends a notice on behal f of his client, demand- 
 iiigdelivery of goods sold, is not an agentfor 
 signing a contract of sale so as to bind his 
 client and make the notice [which other- 
 wise may contain all the requirements 
 the Statute] a memorandum with, the 
 tatute. Hooslandt v. Mahomed Isup 
 &ors. . . 184^ 
 
 4. Warehousemen — negligence — 
 
 privity of contract - 190 |/ 
 
 sue Warehousemen. . 
 
 are agreed to be sold, but no memorandum 
 of the sale, is had, or part payment of 
 money is made, — the mere fact that the 
 goods, not weighed or measured, is left by 
 the defendant, with the plaintiff simply for 
 his [the defendant's] own convenience, and 
 on the bills for their value being presented 
 promised to pay it in a few days, — do not 
 constitute " an acceptance and receipt of 
 the goods, or part thereof," within section 
 17 of the Statute. Revely & Co. v. Kam 
 Kong Gay & anor. 
 
 2. Appropriation of, 
 
 vocable act 
 
 see Appropriation op Goods. , 
 
 3. A memorandum for goods sold 
 
 to the value of ten pounds or upwards, in 
 order to satisfy the Statute of Frauds, must 
 
 32«<iands under, 
 
 final and irre- 
 164i 
 
 5. The limitation to an action for 
 
 goods sold and delivered, where there is no 
 writing, other than receipt for the goods, is 
 3 years under sub-section 9, Clause I. of 
 Act Xiy. of 1859, as the non-payment of 
 the price of the goods, is merely a breach 
 of contract. Tunkoo Mooda Nyak Malim 
 v. Khoo Tean Tee & ors. - - 453 </ 
 
 6. Marine Insurance —excessive 
 
 valuation - - 482 \j 
 
 see Marine Insurance. \j 
 
 7. Breach of Contractf or non-delivery 
 
 of, — Knowledge - - 491 y 
 
 see Breach op Contract. 2. \^ 
 
 8. Debtor's — attachment — title to 
 
 goods - .... 553 ^ 
 
 see Debtor's Goods. 
 
 9. Landing of, — master or agent 
 
 of ship — liability — lighterage - 640 /- 
 
 see Bill op Lading. y 
 
 — Sale of specific — implied war. 
 
 . 667 ^ 
 
 see Caveat Emptor. 2. i/ 
 
 11. Negligence— Damages - 672 J. 
 
 see Lighterage. 2. 
 GOODS SOLD — Borrowing money — ordi- 
 nary calling of vendor . . 314 «/ 
 
 see Contracts. , 
 
 GOODS OTERLANDED— Implied Con- V 
 tract — negligence .... 461 -^ 
 
 see Contract. 7. v 
 
 GOVERNMENT PERMITS— Holders of 
 Grantee in fee from 
 
 Crown 514 y 
 
 see Boundaries. 3. ,/ 
 
 GUARANTEE— see Agreement. 1 - 12 i/ 
 HANIFA SECT— Marriage— Gu a r dia n- 
 ship - - - . ' - 421 V 
 
 ' see Sect, , , 
 
 ranty 
 
700 
 
 INDEX. 
 
 HIGHWAY— Public right-of-way— 1 an fl- 
 ing place — user - - - 277* 
 
 see Right-of-way. 2. 
 HINDOO LAW— According to Hindoo 
 Law, a wife's property, real and personal, 
 is her separate property. A Hindoo man 
 and woman, intermarried according to Hin- 
 doo Law and custom ; the wife at the time 
 possessing some personalty, and during the 
 coverture, acquiring realty from her rela- 
 tives. — Held, the parties must be taken to 
 have contracted on the footing of the Hin- 
 doo Law, and that both the personalty and 
 realty were hers, subject to being taken 
 possession of by the husband, under stress 
 of circumstances only. Haw ah v. Baud, 
 Straits Law Reports, p. 253, followed. The 
 husband in such a ease, acquires no interest 
 in such property except as trustee for his 
 wife ; and for breach of his duty in that 
 respect he might be sued, and this Court 
 will respect the wife's rights, although 
 there is noniarriage settlement. The wife 
 has such a right of action against her hus- 
 band, whether she be divorced or not ; and in 
 a pauper case, is at liberty herself to sue, 
 without the intervention of a next friend 
 
 WARRANTY- 
 
 2. 
 
 -Sale of . 
 
 667 V 
 
 v 
 
 IMPLIED 
 
 goods - - - - 
 
 see Caveat Emptor. 
 
 INDIAN ACTS— see Acts. 
 INFANCY — If a person is aware he is 
 under 21 years of age, but is ignorant at 
 what age infancy by law ceases, and in 
 such ignorance enters into a contract with 
 another without disclosing the fact of his 
 being under 21, this is not such a fraud on t 
 his part, as will estop him "from applying 
 to a Court of Equity to set aside such con- 
 tract. The defence of being a purchaser 
 for value, without notice, is not available 
 unless specifically set up by the plea or 
 answer. Mah Keow v. Cheah Hit & / 
 ors. - - - 32U/ 
 
 INFECTIOUS D I S E A SE— see Breach 
 of Promise ... - 63 
 
 INHERITANCE— From the time of the 
 introduction of the Charter of 1807, up to 
 the date Act XX. of 1837 came into opera- 
 tion, the English law of Inheritance was 
 the law of this Colony. Bodyk v. William- 
 son and In the Goods of Abdullah approved 
 of. Act XX. of 1837 is retrospective, except 
 
 Pootoo v. Valee UtaTaven & anor! J^toexistihg interests which come within 
 
 622i' ae provisoes thereof. Where therefore the 
 
 % 
 
 A 
 
 ■ HINDOO TEMPLE— see Gift. 2. - 377^ 
 HIRE — Freight — Limitation — C h a r t e r- 
 party - - - - 472 
 
 see Attorney. 
 
 HOTEL-KEEPER— Unpaid Bills— Lod- 
 ger's clothing and goods - - 618 
 
 see Lien. 
 HUSBAND AND WIFE— Evidence on 
 question of marriage - - - ' 326 
 
 see Trust. 
 -! Real and personal property - 622 
 
 see Hindoo Law. 
 IDOL. — Gift of money to, — for benefit of 
 temple - - ' ■ . . 377l> 
 
 see Gift. 2. 
 IMMOVEABLE PROPERTY— The Sta- 
 tute 3 & 4, Wm. IV., Cap. 27, is law in this 
 Colony. In cases of immoveable property, 
 or any interest therein in the nature of 
 chattels real, the limitation imposed by 
 section 1, clause 12, of the Act XIV. of 
 
 1859, runs against the administrator of a 
 deceased person, from the date of the death 
 of the intestate, as if there was no interval 
 of time between his death, and the grant of 
 Letters of Administration. Jemalah 
 Mahomed Ali & orb. - 
 IMPLIED CONTRACT— Wharfinger- 
 Warehousemen — Negligence - 461 ' 
 
 see Contract. 7. 
 — NOTICE— Knowledge of agent- 
 principal 619 
 
 see Knowledge. 3. 
 
 defendant's- ancestor held lands at Malacca 
 under a Dutch grant, which had been lost, 
 
 /and the original entries in the Dutch 
 ecords were not to be found — but, after 
 the English had taken Malacca, in an agree- 
 ment made in 1828 between the English 
 
 ''authorities and the defendant's ancestor, 
 v" the grants issued by the preceding Local 
 Government in 1781 and 17S8" were express- 
 ly recognized,— undisputed acts of owner- 
 ship by the defendant's ancestor distinctly 
 
 >/recited and a covenant made by the English 
 
 .^authorities with the defendant's ancestors 
 and his heirs for ever, so long as the 
 
 /" Settlement of Malacca remains under the 
 " British Flag." — Held, in the absence of 
 evidence to the contrary, that there was a 
 presumption that the original grants were 
 in the nature of a fee simple ; that the 
 ancestor having died before 1837, the lands 
 passed to the defendants as his heir, and 
 fell within the proviso of the Act XX. of 
 1837, as a transmission according to the 
 rules which regulate freehold property. / 
 Moraiss & ors v. De Souza - - 27 k 
 
 INJUNCTION— Perpetual— W y a n g or 
 „. Gminese theatre .... ^qq J 
 3861 ' see Nuisance. „ 
 
 INSOLVENT— Payment or gift by on 
 I eve of bankruptcy - - . . 101 l/ 
 J see Payment by Insolvent. v 
 
 4 Payment to creditor o 
 
 wwve composition - 
 
 \i see Composition, I, 
 
 and 
 162 
 
INDEX. 
 
 701 
 
 INSOLVENT— Where plaintiff,— stay of 
 execution - 512 
 
 see Stay of Execution. 
 
 INSULT — see Contempt of Couet. 1. 4 
 
 INSURANCE— The plaintiff having, ac- 
 cording to the usual Chettys' Insurance, 
 undertaken the Insurance of the defend- 
 ants' Brig " Woodbine " for certain voy- 
 ages within a given period, afterwards in 
 consideration of an extra rate of premium 
 for three months, paid him by the defend- 
 ants, granted the defendants license to de- 
 viate from the voyage originally insured 
 against. The license to deviate was in 
 writing, but beyond mentioning that the 
 voyage was to be a single voyage to the 
 particular port and back, and that three 
 months' extra premium had been received, 
 made no further mention of time. It stated 
 that the "risk " was to be the same as that 
 mentioned in the original policy. The 
 vessel sailed to Rangoon, and on her way 
 back was lost, by perils insured against ; 
 but at the time she was lost, the three 
 months for which extra premium had been 
 paid had expired, but the original time 
 mentioned in the policy was still unexpired. 
 The defendants had not paid extra pre- 
 mium for the period between the termination 
 of the three months and -.the loss of the 
 vessel. — Held, the license did not limit 
 the voyage to three months — that " risk," 
 included the original time, and the vessel 
 being lost within the original period, by 
 perils insured against, the same was cover- 
 ed by the policy. Vebapah Chetty v. 
 Lim Swee Ohoe & anoe. - - 378 
 
 JUDGMENT— continued. 
 
 Y- Action of Trespass — Estoppel 242 /■ 
 
 see Ejectment. 1. v 
 
 ( / —Court of Requests,— binding 313 * 
 
 INSURANCE ON GOODS— E x c e s s i v e 
 valuation .... - 482 1 
 
 see Maeine Insubance. 
 INTEREST ON JUDGMENT— The Court 
 will not allow interest on a judgment, for 
 any interval of time intervening between 
 the date of judgment, and payment there- 
 of. The Statute 8 & 9, Wm. III., c. 11, s. 
 8, does not apply to a simple money bond. 
 Beown & anoe. v. Kam Kongay & 
 
 ANOE - - 73, 
 
 INTERPLEADER SUIT— E xecutive 
 
 Creditor 325 
 
 see Costs. 4. 
 
 INTESTATE'S ESTATE— A d o p t e d 
 son -....- 413 
 
 see Adopted son. 
 JUDGMENT— Payment of, and costs, no 
 bar to appeal ... - - 12 
 
 see Ageeement. 1. 
 Interest on, — Money Bond - 73 
 
 see Inteeest on Judgment, 
 
 - see Couet of Requests. 2. 
 
 Arrest before,— - - 354 
 
 see Aeeest befoee Judgment. 
 
 Creditor — security — promissory- 
 
 355 
 
 note 
 
 see Moetgage. 2. 
 JUDGMENT DEBTOEr-The mere fact 
 that a judgment debtor, in order to defeat 
 an expected execution, transfers his pro- 
 perty to another creditor, with a view of 
 preferring that other creditor to the execu- 
 tion creditor, does not render the transfer 
 fraudulent and void under the Statute, 13 
 Eliz. c. 5. Notice of claim by a third party, 
 to property seized, given to the execution 
 creditor, is notice to the Sheriff; and 
 notice to the Sheriff, thereof, is notice to 
 the execution creditor. Seizure and sale by 
 the Sheriff is, but one act and one conver- 
 sion, and where the execution creditor in- 
 demnifies the Sheriff ; it is joint act of both. — 
 Semble. It is not necessary to serve the 
 Sheriff, who seizes the property of a third 
 party as propprty of the judgment debtor, 
 with notice of the claim of such third 
 party, in order to render the seizure and 
 
 sale thereunder, a conversion. Sted Abbas, 
 Ac, v. Scott & anoe. - - - 64£^ 
 JURAT— Order of arrest - - 519 y 
 
 see Affidavit. 2. j 
 
 JURISDICTION— Military tribunal— 
 
 ( 'Court-Martial I j/ 
 
 see Militaey Law. j/ 
 
 ' . 2. The words in the Charter of 
 
 ^1826, defining the Civil Jurisdiction of 
 the Court over " all pleas the causes of 
 which shall or may thereafter arise against 
 any persons who shall be resident within 
 the Settlement," mean resident at the time 
 of action brought, and not at time the 
 cause of action arose. Where therefore the 
 defendant and plaintiff entered into a con- 
 tact for the sale of certain chests of opium 
 * at Sambas in Borneo, where they were both 
 /resident at the time, but after the defendant 
 ' 'had committed a breach there, they both 
 /came to this Settlement, where the plain- 
 tiff sued the - defendant. — Said, this Court 
 /had jurisdiction to entertain the suit. 
 ' Where a Foreign Sovereign Prince sues in 
 'the Courts of this Colony, a person resident 
 here, the Court in compelling the defendant 
 /to answer, will couple with the order, that 
 the Sovereign Prince will submit to the 
 'jurisdiction, in case of a cross action, so 
 (that the remedies might be mutual. _ The 
 (Columbian Government v. Rothschild, 1 
 
702 
 
 INDEX. 
 
 JURISDICTION— contirmed. 
 Simon 84, followed. Sultan Omar 
 Akamoden v. Nakodah Mahomed 
 Cassim - - - - - - 37 
 
 3. 'A Foreign Sovereign cannot be 
 
 sued in the Courts of this Colony, simply 
 because he happens to be a natural born 
 British subject according to our own law, 
 if he has not acted, or done anything by 
 which it might be inferred that he acted as 
 subject. In a suit against such an indi- 
 vidual, it is not necessary to aver in the bill 
 or declaration, that he is subject to the juris- 
 diction of the Court. This is a matter that 
 should come from him, and if in his plea 
 he does not say he is exempt from the juris- 
 diction, it must be presumed that he is not 
 so exempted. — Query. Whether a person, 
 after he has been once recognised by the 
 British Crown, a3 an independent Sov- 
 ereign, can thereafter be ' considered a sub 
 ject of that Crown ? 
 
 .QUBDAH & ANOR. 
 
 4. 'Supreme Court no, — for restitu- 
 tion of conjugal-rights among non- 
 Christians 236-3 :i5< 
 
 see Conjugal Rights. 1. 2. 
 
 5. — —A Foreign Sovereign Prince, who 
 remains in this country for a protracted 
 time, is entitled to no greater exemption 
 from the jurisdiction of the Courts of this 
 Colony, than his Ambassador would have 
 been : and if he engage in mercantile tran- 
 sactions, such as borrowing money in his 
 private capacity, on a promissory note, he 
 is liable to be sued thereon in such Courts, 
 and cannot claim exemption on the grounds 
 of his being a Sovereign. Abdul Wahab, 
 &c, v. Sultan of Johore - . 298 
 
 6. Mahomedan Law — D i v o r c e of 
 
 wife by Kali ... 438V 
 
 see Divorce. 3 
 
 7. Sumwithin, — of Court of Requests 
 
 recovered in Supreme Court — costs - 
 
 see Attorney. 
 8. Service of summons out of 
 
 see Writ of Summons. 
 
 9._ Foreign Sovereign unless 
 
 cognized not exempt from 
 
 see Writ of arrest. 
 
 10. see also Foreign Sovereign — 
 
 Sovereign. 
 
 JUSTIFICATION— Plea - - . 31 
 see Trover. 
 
 KNOWLEDGE— continued. 
 
 2. see Assessment- 3 - 587 £, 
 
 3. The presumption that an agent 
 
 has communicated his knowledge of certain 
 facts, to his principal, is rebutted, if in such 
 transaction, the agent is committing a 
 fraud, which make3 concealment of such 
 facts from his principal, necessary. Where 
 therefore one and the same person was em- 
 ployed by both plaintiff and defendant as a 
 scrivener to invest their monies and prepare 
 the necessary papers for them, and the 
 agent having got possession of the title- 
 deeds from the defendant, the first mort- 
 gagee thereof, in disobedience to the express 
 instructions of his principal, [the defendant] 
 to take a re-mprtgage of such property — 
 went with the said deeds to the plaintiff, 
 and obtained a loan from him, on the mort- 
 gage of such property, as a first mortgage, 
 but never, in fact, communicated to the 
 Nairne v. Rajah of plaintiff, the existence of the defendant's 
 \4fy 'mortgage, and never returned to the de- 
 fendant's mortgagor, his mortgage bond, or 
 paid the defendant the amount, he [the 
 agent] had received thereon, but appro- 
 priated the' monies obtained on the mort- 
 gage from the plaintiff, and also made false 
 entries in his accounts with the defendant, 
 of such a re-mortgage to him of the same 
 property, but by some fictitious person. — 
 Held, Kennedy v. Green, 3 M. & K., 699, ap- 
 plied, and the knowledge of the agent could 
 not be imputed to the plaintiff, so as to 
 affect him with implied, or constructive 
 notice ; and he was therefore entitled to the 
 possession of the title-deeds as against the 
 defendant, the first mortgagee. Glutton / 
 
 Uf'McGlLLEVRAY . . . 619^ 
 
 '^LABORER— Assessment of dwellings 587 / 
 see Assessment. 3. • 
 
 ■see also Wages - - . 479 »/ 
 
 476 
 
 re- 
 539" 
 
 Mahomedan Law — Wakoff. 
 KHATIB — see Mahomedan Law. 4 
 KNOWLEDGE— Skill— Carrier . 
 see Negligence, 4. 
 
 503 
 
 427 
 
 LAND — A person in possession of land, is 
 
 a liable to the Crown for quit-rent accrued 
 
 472 'during the time of his predecessors in title. 
 
 /The possession of receipts for quit-rent for 
 
 a later period than that claimed, raises a 
 
 presumption in law that the previous rents 
 
 /had been satisfied, which presumption, 
 
 unless rebutted, is sufficient to debar the 
 
 /Crown from recovering such previous rents. / 
 
 ,East India Co. v. Brown - - 3i/ 
 
 2. —Hold at Malacca under Dutch 
 Grant— English Law of Inheritance— Cha- 
 ter of 1807 ... 
 see Inheritance. 
 3. 
 
 J 
 
 »i 
 
 K ANDOORIES-** Mahomedahs -'{/"haste distrain fof'arrears o W^nTT^ 
 M ' ""' " "' *"' ■' lf*„ d « p 5i y , e ' th ! m ° f tiei . 1 ' ".gats to siie the 
 
 /tenant at law for ^the rent : t& remedies are 
 cumulative. Where a person has : ™ 
 
 Accepting a grant of land from Govern 
 meat, covenanted to pay a.uit.r eu t annually 
 
INDEX. 
 
 708 
 
 LAND — continued. 
 
 without any exception as to circumstances, 
 
 he is bound to pay the rent, although the 
 
 lands may subsequently turn_out useless, 
 
 and are abandoned by him. 
 
 Co. v. Low 
 
 4. Assessment 
 
 see Assessment. 2. 
 
 5. Cancellation of Deed — Compen- 
 sation ---.-. 119 
 
 see Boundabies. 1. 
 
 6. The Crown, under the Malacca 
 
 Land Act 26 of 1861, has power to commute 
 the tenth payable in kind by land-holders in 
 that Settlement, into a money payment ; 
 and that, whether the land-holder be a 
 " prescriptive tenant" or not. Query. — 
 What _ is a " prescriptive tenant" in Malacca, 
 and within the aforesaid Act P Attobney- 
 Genebal v. De Wind - - 303 
 
 7. The boundaries and abuttals of a 
 
 piece of land mentioned in a deed, are the 
 only things by which a person must be 
 guided in ascertaining the land : and parol 
 evidence, to shew that the boundaries are 
 wrong, and to contradict the deed, is in- 
 admissible ; even if in and by the deed itself, 
 the area of the land agrees with the story 
 
 • of the person who wants the evidence 
 admitted. Land set aside by a deed as 
 Wakoff, for the burial ground of the donor, 
 and his family and relations, is not a 
 charity, as it is not for the benefit of the 
 public, and is therefore void. The Indian 
 Cases to the contrary are no authorities here. 
 — Shaik Lebby v. Fateemah - - 324 ( 
 
 8. Where two holders of lands 
 
 under Government permits, arranged among 
 themselves that a certain stream running 
 through the land of one of them should be 
 the boundary of their respective lots, and 
 by this means the one through whose land 
 the stream passed was depriving himself of 
 a certain strip of land included in his per- 
 mit and giving up the same to the other of 
 them, and the one so depriving himself of 
 the said strip died, leaving an Executor who 
 sold his interest in the permit to the plain- 
 tiff, who, on production of the permit to 
 the Land Office, obtained a grant in fee 
 from the Crown, of the whole land com- 
 prised in such permit, including the strip 
 so given up, and thereafter sought to eject 
 the oth.fr permit-holder from the strip so 
 given up to him, — Held, that the fact of the 
 plaintiff being a grantee in fee from the 
 Crown, made no difference, but. the plain- 
 tiff acquiring the grant on the strength of 
 the permit, purchased as aforesaid, was 
 bound by the arrangement made by his 
 deceased predecessor, and could not recover 
 possession of the said strip. Where a 
 
 LAND— continued. 
 
 permit was issued under a Government 
 
 Notification of 1852, which Notification 
 
 could not be found, and the permit-holder 
 
 East India subsequently obtained from the Crown 
 
 73' 'a grant in fee of the land, comprised in the 
 
 75 (/permit. — Held, that it must be presumed 
 
 ihat the Notification gave the permit-holder 
 
 right to the land in fee on certain conditions 
 
 /which had been complied with and not an 
 
 estate for years under Act 16 of 1839. 
 
 /Daniel Logan v. Heoh Ah Tan - 514 V 
 
 9. Increase in value — breach of 
 
 agreement 582 V 
 
 see Conteact. 10. v 
 
 10. — —A suit brought under section 15 
 of Act 14 of 1859, for recovery of land from 
 which the plaintiff has been forcibly dis- 
 possessed, is not " a suit for the recovery 
 
 land," within the meaning of the section 
 65 of the Civil Procedure Ordinance V. of 
 1878 ; and a defendant in such a suit cannot 
 therefore merely plead that he is in posses- 
 sion, but must deal with the several alle- 
 gations in the statement of claim, and dis- 
 close his defence in his statement of defence. 
 Tan Hoon Cheang & oes. v. Heevet 652 1/ 
 LANDING-PLACE— From the sea-side— 
 
 highway 277 V 
 
 see Right-of-way. 2. • 
 
 LANDLORD — Rent in advance — lease— 
 
 555 
 
 / 
 
 distress .... 
 
 see Rent. 3. 'j 
 
 LANDLORD AND TENANT— The rule 
 that a tenant is estopped from denying his 
 'dlord's title, applies to every case of 
 landlord and tenant, irrespective of the 
 character in which the landlord acts. There, 
 fore, where A took certain land on a month- 
 ly rental from B , both parties believing the 
 land to be Mosque land, and B then act. 
 ing as trustee of such land ; but it after, 
 wards appeared the land was not Mosque 
 land, but the private property of B's grand- 
 father, whose Executor B was; and B 
 thereupon sold the land as the private pro- 
 perty of his grand-father.— ^Held, that B's 
 assignee, C, under such sale, conld recover 
 such lands in ejectment from A, who was 
 estopped from denying B's title as such 
 Executor to Such land, and also the title of 
 his assignee, O— Ameeean v. Che Meh, 
 alias Ismail. - - - - - 429/^" 
 LAW OF ENGLAND— Introduction of, 
 
 into Colony by Charter 1807 
 
 see English law. 3. 
 
 LEASE — Expiring of — payment of 
 
 letting from month to month 
 see Tenant. 2. 
 
 see also Rent. 3. 
 
 255 V 
 
 \J 
 rent- 
 637 !■ 
 
 k 
 
 555 
 
 LEAVE TO SUE— Where the Court has 
 once given leave to plaintiff to commence 
 
704 
 
 INDEX. 
 
 LEAVE TO SUE— continued. 
 his suit in a Settlement, under section 65 
 of the Civil Procedure Ordinance 1878, it 
 will not, as a rule, vary the order— espea- 
 proceedings have been com- 
 
 LETTER— Power— third-party 
 
 see Attorney. 
 LETTERS OP ADMINISTRATION 
 Recovery of title deeds 
 
 see Administrator. 1. 
 Revocation of, — ecclesiastical pro 
 
 LIBEL— continued. 
 
 3 Comments upon proceedings in a 
 
 Court of Justice, though reflecting on the 
 character and evidence of a witness ex- 
 amined therein, are privileged, it made m 
 
 . +iff ha,! been examined as a witness m a 
 
 2. Pauper action-see Administra- f^ rocee ding in Court, and gave evi- 
 
 TOR. 2. - - " D "^ 1 dence wll ich was, not only at variance with 
 
 - 472 i 
 
 see Administration. 
 LIBEL — It is no defence to an 
 
 ceedings - 
 
 1. 
 
 action of 
 libel, that the article was copied from an 
 English newspaper which had been some 
 months already in circulation, and was a 
 Report of a debate in the House of Com- 
 mons, on a matter of interest in this Colony. 
 The defendant, the Editor of a newspaper, 
 knowing that the article contained certain 
 libellous statements against the plaintiff, 
 intended, in publishing such debate, to 
 have omitted such libellous statements. 
 He handed the newspaper to his printer 
 with the debate marked out, but without 
 any instructions as to the libellous state- 
 ments, intending himself to correct the 
 proof sheets, and then to strike out these 
 passages. Through an accident, he omit- 
 ted to correct the proof sheets, which were 
 revised by the printer only, and published 
 in extenso. — Held, he had shewn great care- 
 lessness and a want of due regard for the 
 feelings of others ; and $200 damages, with 
 costs, were awarded against him. 
 v. Logan 
 
 2. The defendant having received an 
 
 impertinent message from the plaintiff in 
 reference to another matter altogether, in 
 a spirit of resentment wrote an anonymous 
 letter to the Superintendent of Police, 
 charging the plaintiff with having poisoned 
 his late wife, and expressing a hope that 
 he would be taken into custody, and the 
 matter enquired into. At the trial the de- 
 fendant could not, and in fact did not at- 
 tempt to, prove the truth of his assertions 
 — he, however, gave evidence of certain facts 
 which were suspicious attending the 
 woman's death, and that reports to the same 
 effect as that stated in the letter, were 
 generally circulating in town, concerning 
 the plaintiff:. — Held, the communication 
 was not privileged, and the defendant was 
 liable in damages for libel. — Mushroodin 
 Merican Noordin v. Shaik Eusoof 390 
 
 wit- 
 
 ' the sworn testimony given by other 
 «nesses, but difficult for one to accept as 
 correct. The Judge who tried the case, m 
 171 , /delivering judgment therein, adopting the 
 1 facts as spoken to by such other witnesses, 
 'commented in somewhat strong terms on 
 ..- the conduct and evidence of the plamtrft, 
 601 /but not so as to irresistibly lead one to the 
 conclusion that the plaintiff had deliber- 
 ately perjured himself. The defendants 
 in a public journal, in referring to the case 
 deliberately charged the plaintiff with 
 havino- "lied " on that occasion, and on being 
 sued for libel, justified [without attempting 
 to prove the truth of the assertion] that the 
 article complained of was no more than a 
 fair comment on the proceedings in Court. 
 — Held, it could not be so considered, and 
 was in excess of the right of free and fair 
 comment. — Cargill v. Carmiohabl s 
 &anor. - ... 603 r 
 
 LICENSE— A testatrix directed that in the 
 event of the plaintiff not wishing to live in 
 a certain family house provided by her, he 
 and his family should be allowed to occupy 
 free of rent, for 40 years, certain other 
 premises, after which period, these latter 
 premises were to be his or his heirs or as- 
 signs, but neither he, nor they, w.ere allowed 
 to mortgage or sell the same. — Held,, the 
 plaintiff and his family had only a license 
 tLj-™ 1 ^" to live in the house, and that a personal 
 oa, ^occupation was required. The Court, how- 
 ever, declined to express an opinion as to 
 who the word "family" included, con- 
 sidering that it would be premature to do 
 so. Lim Mah Tong v. J A. Anthony & / 
 
 475/ 
 
 ors. - - - . 
 
 LICENSE TO DEVIATE— Chetty's Insur- 
 ance — risk - - . 378 4 
 see Insurance. j 
 LIEN — A hotel-keeper has a lien on his 
 lodger's clothing and goods, for unpaid 
 bills, and incurs no liability in detaining 
 
 the same under such circumstances. Wtnd- • 
 ham v. Hansen - . . ' . nioi/ 
 
 LIEN FOR PREIGHT-Courts of Law 
 for the benefit of commerce, have always 
 had a leaning in favor of the right of a 
 ship-owner to a lien ior freight, on^oda 
 shipped on board his vessel; and- with that 
 object, where a vessel is let on charter 
 'draw a distinction between cases where the 
 
INDEX. 
 
 705 
 
 LIEN FOR FREIGHT— continued. 
 ship itself is let out, [in which case posses- 
 sion of the ship is parted with, and there is 
 no lien on the part of the ship-owner] — and 
 cases where the mere carriage, or space of 
 the ship is let out, [in which case the owner 
 Btill retaining possession of the ship, 
 retains a lien for freight]. The language 
 of the charter-party must be very strong, 
 in order to exclude, under any circum- 
 stances, the lien of the ship-owner ; mere 
 words of letting and hiring appealing there- 
 in, will not themselves do so, where the other 
 provisions shew they are used as mere 
 words of contract for the capacity of the 
 ship, and not a demise of the entire hull. 
 Where S. W. & Co., merchants of London, 
 chartered of A. A. owner of the barque P., 
 the said barque for a voyage from London 
 to Singapore or Rangoon and back, for a 
 fixed sum for freight which was to be paid 
 by S. W. & Oo's acceptance at 3 months, 
 and S. W. & Co., put up the ship as a 
 general ship and thereby procured ship- 
 ment of goods on freight, by several 
 persons, and themselves also shipped goods 
 therein, which they consigned to the 
 plaintiffs for sale, drawing in advance on 
 the plaintiffs against the value of the said 
 goods ; and thereafter the barque proceed- 
 ed on her voyage with A. A., the ship- 
 owner's Captain and crew on board, and safe- 
 ly reached Singapore with the saidgoods on 
 board; but before she arrived, S. W. & Co., 
 became bankrupt, and the Bill of Exchange 
 given for the freight, and accepted by them, 
 was dishonoured, whereupon the defendant, 
 the Master of the barque, acting on behalf 
 of A. A. the ship-owner, refused to give up 
 to the plaintiffs, the good3 of S. W. & Co., 
 consigned to them, whereupon the plaintiffs 
 sued him in trover therefor. — Held, that the 
 ship-owner had a lien for his freight, which 
 was only suspended by his taking the bill, 
 but revived the moment it was dishonoured, 
 as the cargo was then still in his possession 
 through his servants. — Held also, that if the 
 ship-owner [A.A.] had, on receipt of the 
 bill, negotiated it for value, but in a wav 
 not to render himself liable thereon, it 
 would have operated as payment of the 
 freight, though the bill was afterwards 
 dishonoured ; but as he had negotiated the 
 bill, and as indorsee remained personally 
 liable thereon, the taking of the bill, and 
 negotiating it, did not operate as payment, 
 when the bill was subsequently dishonour- 
 ed. D'Almeida & anoe. v. Gbay - 109^ 
 LIFE ESTATE. — Where certain persons 
 were entitled to life estates in Certain pre- 
 mises, but during the continuance of such 
 life estate, the Municipality, under Act V. 
 of 1857, took possession of the premises for 
 a public purpose, and paid compensation 
 
 LIFE ESTATE— continued. 
 therefor. — Held, the life estates were not 
 thereby put an end to, but the tenants for 
 life were entitled to an apportionment of 
 the compensation paid, in respect of their 
 life interests. At the time the arbitrators 
 were making their award as regard the 
 compensation to be paid for the premises 
 taken, the life tenants waived their claim 
 to apportionment, and requested the arbi- 
 trators to make none in respect of their 
 life interests : they subsequently, in this 
 suit, claimed apportionment. — Held, they 
 were entitled to same. A testator gave all 
 his property, real and personal, to his exe- 
 cutors upon trust to sell the same, [except- 
 ing certain houses] and then gave certain 
 specific legacies out of the proceeds of such 
 sale, and gave " the rest, residue, and re- 
 " mainder of his property" to certain chari- 
 table objects — with respect to the premises, 
 he then proceeded to direct, that these 
 should be kept for certain purposes. Those 
 purposes, except as - to a small portion, 
 failed to take effect and were void. — Held, 
 the houses, on termination of the purposes 
 for which the small portion took effect, did 
 not thereafter, fall into the residuary 
 clause : that the residuary clause was of a 
 limited character ; and the houses, except as 
 aforesaid, were undisposed of. These 
 houses having been taken over for a public 
 purpose and compensation paid therefor, 
 and this compensation apportioned among, 
 the persons entitled to life interests, [which 
 was the small portion which took effect.] — 
 Held, the residue of the proceeds or com- 
 pensation, also did not fall into the resi- 
 duary clause, but was undisposed of. The 
 testator died without any known next-of- 
 kin, but by his Will had devised his pro- 
 perty to Trustees upon trusts, which were 
 either incapable of taking effect, or were 
 void. — Held, the property was undisposed 
 of, and notwithstanding the presence of the 
 Trustees, escheated to the Crown. Bead v. 
 Steadman, 26 Beav., 495, followed ; Sweet v. 
 Sweet, 33 L. J. Ch., 1ST. S. 211, distinguished. 
 When cost3 of all parties are given out of 
 the testator's " general 'estate," every 
 portion of such estate is liable to contribute 
 towards such costs. Oh Web Kee v. Boon 
 Bong Neoh & oes. - - - 5-Mr 
 LIGHTERAGE— Landing of goods— agent 
 
 — master 640 
 
 see Bill of Lading. 
 
 2. A person who comes by goods of 
 
 another by accident or mistake, is liable 
 for gross negligence in keeping the goods ; 
 but the damages recoverable against him, 
 are only to the extent of the then plaintiff's 
 interest in the goods. Where therefore the 
 defendants, lightermen, by mistake or ac- 
 
Toe 
 
 INDEX. 
 
 LIGHTERAGE— continued. 
 cident took delivery of certain goods which, 
 they conveyed in their boat, but owing to 
 the unseaworthy condition of the boat, the 
 goods were damaged and rendered wholly 
 useless.— Held, the plaintiffs, the proper 
 lightermen for those goods, were entitled to 
 maintain an action against, and recover 
 damages from, the defendants, but only to 
 the extent of the loss of the hire they would 
 have earned, had they lightered the goods. 
 The owner of the goods had, in a previous 
 action, on the evidence then adduced before 
 the Court, recovered as damages from the 
 plaintiff, the proper lightermen, the value 
 of the goods so damaged as aforesaid, which 
 damages, together with the cost of that 
 action, the plaintiff paid. The plaintiff, 
 the proper lighterman, then suedthe defend- 
 ants to recover as damages, the value of 
 the goods, or the full • amount, with costs, 
 he had had to pay. — Held, the plaintiff could 
 not recover. "Where a case is a fit one to be 
 tried in this Court, the plaintiff, although 
 he eventually therein recovers a sum within 
 the jurisdiction of the Court of Requests, 
 will not be deprived of his costs as in an 
 Ordinary suit in this Court. Ebrahim v. J , 
 Shaik Ally & ors. - - - 672 y 
 LIMITATION— Goods sold and deliver- 
 ed 453 
 
 MAHOMEDAN LAW— continued. _ _ 
 2. . Divorce of wife by Kali in 
 
 438 ^ 
 
 absence of husband 
 
 see Divorce. 3. 
 3. Charity Lands 
 
 see Charity. 4. 
 4. ' — The plaintiff claimed to be 
 
 500 / 
 
 see Goods. 5. 
 
 -Claim barred — service of summons 
 
 476 
 
 out of jurisdiction 
 
 see Writ of Summons. 
 
 LIS PENDENS— A sale of property 
 during a lis pendens is void altogether ; but 
 if the property was, prior to the lis pendens, 
 subject to a charge or mortgage, such- 
 charge or mortgage is not affected by 
 the Us pendens. If the purchaser of 
 such property during the lis pendens, 
 redeems the charge or mortgage as 
 part of the means by which he pays his 
 purchase money, he will, — [although he 
 may have taken a conveyance direct from 
 the party engaged in the lis pendens, which 
 conveyance makes no reference to the re- 
 demption of the charge or mortgage — and, 
 although he takes no assignment of the 
 charge or mortgage from the original party 
 holding the same] — be entitled to a lien 
 over the property, the subject of the lis 
 pendens, up to the extent he redeemed the 
 prior charge or mortgage. 
 Chbo Ah Mo & ors. 
 
 LOSS — see Negligence. 7. - 658 
 
 MAHOMEDAN LAW— Concubines as 
 witnesses in cases of divorce - - 255 "' 
 
 503*^ 
 
 500 -/ 
 385 / 
 438 £ 
 324 V 
 429/ 
 421 V 
 580 ..- 
 
 see English Law. 3. 
 
 Khatib and Emam [priest] of a Mahomed- 
 an mosque, of which his ancestors were 
 formerly priests,— on the ground that the 
 office of priesthood was hereditary, accord- 
 ing to Mahomedan Law. He sued the de- 
 fendant, the present priest, and claimed to 
 be restored to his alleged office, and an m- 
 iunction restraining the defendant from so 
 officiating.— Held, that the defendant could 
 not be sued, and demurrer allowed. The 
 words " Mahomedan Law," in section 27, 
 clause 2, of the Mahomedan Marriage Or- 
 dinance 5 of 1880, must be read as the 
 " Mahomedan Law of property:" the gene- 
 rality of the expression in clause 2, is res- 
 tricted by the preamble, and context at end, 
 of the clause. Jamaludin v. Hajee Ab- 
 dullah - - - - - 
 MAHOMEDANS— see Charity. 4. 
 see Conjugal Rights. 2. 
 see Divorce. 3. 
 see Land. 7. - 
 f see Landlord and Tenant. 
 
 see Sect. ... 
 
 ( see Wakoff. 3. 
 
 MALACCA— Lands held at,— see Land. , 
 
 /2. 6. 27, 303 v 
 
 ,MALAT PROMISSORY NOTE— Nego- , 
 tiable - - ... 242 V 
 
 see Promissory Note. 1. . 
 
 MALFEASANC E— Misfeasance— Bes- 
 
 judicata 663 
 
 see Principal and Agent. / 
 
 MALICE— By section 29 of Act XL VIII. 
 of 1860, in an action against a Police Officer 
 for any thing done, or intended to be done, 
 by him in the execution of his duty, it is 
 not only necessary to allege in the plead- 
 ings that he acted maliciously and without 
 reasonable and probable cause, but it must 
 clearly be made out, by evidence, that the 
 officer so acted. Therefore, in an action 
 against a Punghulu for assault and false 
 imprisonment, although it was clearly 
 proved by the plaintiff that he was assault- 
 ed and imprisoned, and that the defendant 
 in so acting against him, had no reason- 
 Lee Ah Tim v. ^le or probable cause, yet, as no actual 
 388* malice on the part of the Punghulu was 
 shewn, the defendant had judgment with 
 costs. Ko Bo An v. Punghulu Shaik Bee s 
 
 NAN - 273K 
 
 2. Privileged communication . 418 
 
 ' see Slander. 
 
 4 
 
INDEX. 
 
 ?<W 
 
 MALICIOUS PROSECUTION— In an 
 action for malicious prosecution, it is no 
 defence to say, that the defendant acted on 
 what he was told. Before laying a criminal 
 information, he is bound to enquire, and 
 test the information given him ; and if he 
 
 neglects to do so, he acts without reason- material fact to the risk of the policy and 
 able and probable cause. Cheah Oon /hould be disclosed to the insurers. The 
 
 Heap.u. Choak Kong What 
 
 , 2. A belief founded on the inform 
 
 ation of a credible witness, pf facts imputing 
 of guilt to another, is sufficient, reasonable 
 and probable cause for a prosecution of such 
 other on a criminal charge ; but that must 
 be a belief which would be entertained by 
 a reasonable and discreet mind. "Where, 
 therefore, the defendant, acting on the be- 
 lief, as he alleged, of certain information 
 given him by his servants — natives of the 
 servile class, and one of whom had been pre- 
 viously convicted of theft [and whose in- 
 formation the Court was satisfied was entire- 
 ly false] wrote to the plaintiff, threatening 
 to prosecute him for theft, unless he re- 
 turned two geese which the defendant [on 
 the information of his servants] claimed to 
 be his, — or producing, within a given time, 
 evidence of their not being his [defendants'] 
 property — and in reply, received a letter 
 from the plaintiff, denying the truth of the 
 information given by the servants, — claim- 
 ing the geese — offering to call the man from 
 whom he purchased the birds — and warn- 
 ing the defendant of the consequences of 
 carrying out his threat, and in return stat- 
 ing the defendant was liable to be prosecuted 
 for defamation, and the defendant, being 
 irritated at this, did not wait till the time 
 appointed, or call on the plaintiff, but went 
 off and procured [in spite of further warn- 
 ings, by the magistrate's clerk, based on 
 the plaintiff's known character and position,] 
 a warrant from the magistrate, on which 
 the plaintiff was taken into custody; and 
 thereafter charged the plaintiff before the 
 magistrate, with being in possession of 
 stolen property, and obtained a remand, 
 but at the adjourned hearing, withdrew the 
 charge without offering any evidence in 
 support thereof. — Held, that the circum- 
 stances of the case were not such as should 
 hfiive actuated a reasonable and discreet 
 mind to have acted on the information of 
 the servants — that the case ' as a whole, 
 shewed there was a want of reasonable and 
 probable cause, and actual malice, — and the 
 defendant was liable in damages. On 
 appeal this decision was affirmed. Perry- 
 man v. Lister, 4 L. R Eug. & Ir. Ap. 521 
 distinguished. Nelligan 
 
 anoe 629 
 
 MANUFACTURER— Vendor— Sale of 
 
 goods — Implied warranty - - 697 
 
 see Caveat Emptor. 2. 
 
 MARINE INSURANCE— A person effect- 
 ing a Marine Insurance on goods, may in- 
 sure for an amount over and above the 
 actual value of the goods, to cover charges 
 and a reasonable valuation for profits ; but 
 an excessive valuation for profits, 
 
 393yr non-disclosure of an excessive valuation, is 
 a ground for avoiding the policy altogether. 
 Ionides v. Pender, 9 L. R. Q. B., 531 — dis- 
 cussed. Tan Tte & anoe. v. Union In- 
 surance Society of Canton - 482 c 
 MARRIAGE— Breach of promise of,— 
 sufficient reason - 63 
 
 see Beeach or Peomise. 
 After divorce — Chinese law not ap- 
 plicable - 160 l 
 
 see Divoece. 1. 
 
 ship 
 
 -Husband a,nd Wife— Evidence 326 
 see Tetjst. 
 
 -Shafi and Hanifa Sect — guardian- 
 
 421 
 
 I 
 
 see Sect. 
 MATERIAL CAUSE— Loss -• 658 
 
 see Negligence. 7. 
 MEMORANDUM— Conditions of Sale 654 ' 
 
 see AUCTIONEEE. 2. y 
 
 MEMORANDUM OF SALE— Goods sold 
 —Statute of Frauds - - . 32 / 
 
 see Goods. 1. 
 MERCANTILE LAW— By section 6 of 
 Ordinance 4 of 1878, Mercantile Law 
 generally, as it exists in England at the 
 corresponding period, is law in this Colony, 
 and that, whether such mercantile law is by 
 Statute or otherwise. Although by section 
 26 of Ordinance 8 of 1880, the Indian Act 
 14 of 1840, has ceased to be law in this 
 Colony, by force of section 6 of the Ordi- 
 nance 4 of 1878, the English Statute 9,, Geo. 
 IV., c. 14, on which that Act was drawn, 
 applies. Contracts made in this Colony 
 for goods not in esse at time of such con- 
 tract, are within section 17 of the Statute of 
 Frauds, by the aforesaid Statute 9, Geo. 
 IV., c. 14. Penang Foundry Co. v. Cheah 
 Tek Soon - - . . - 559 ^ 
 
 2. see also Trade-Mask - - 650 
 
 MERCHANT SEAMEN— I n j u r y by 
 Public Officer — Merchant Shipping Act 1 of 
 1859 ------ 186 t/ 
 
 see Public Officer. 1. t 
 
 MILITARY LAW— A " Khidmiggur," or 
 table- servant, to a Military officer stationed 
 at the Settlement in time of peace, is not a 
 Wemyss & i^camp-f olio wer," and is not subject to mili- 
 629 »rtary law, nor liable to be tried by Court, 
 martial. No man is subject to military 
 jurisdiction, but an officer, soldier, or sepoy, 
 or some one connected with the army ; nor 
 
708 
 
 INDEX. 
 
 MILITARY LAW— continued. 
 is any offence cognizable by the military 
 tribunal, or within its jurisdiction, but 
 some act which is a breach of military duty 
 or a neglect of military discipline : and no 
 military person is liable to punishment for 
 breach of military law or discipline, except 
 in consequence of a trial, and the sentence 
 of a Court-martial. By the Charter of 
 1807, not only was the English Criminal 
 Law extended to this Colony, but civil in- 
 juries are to be redressed according to Eng- 
 
 lish law ; and that even as. regards offences y ■ probaU e cause 
 or wrongs, committed^ or done, before the f"^ ' 
 
 Charter. Kamoo v. Bassett 
 MONET BOND— I n t e r e st 
 nient - 
 
 see Interest on Judgment. 
 MONET HAD AND RECEIVED— 
 Duty - S05 
 
 ' ' see Public Officer. 3. 
 MORTGAGE— of Chattel without 
 deed 2014 
 
 see Chattel. 
 2. In an action by a judgment- 
 creditor to redeem three mortgages, and to 
 have the fourth declared void as having 
 been taken after judgment in plaintiff's 
 favour,— the bill of complaint stated, that 
 defendant had told plaintiff he had a pro- 
 missory note for the money, but took the 
 fourth mortgage as a better security, but 
 defendant, at time of taking such mortgage, 
 had notice of the action pending. The bill 
 did not deny the consideration for the note. 
 On demurrer, it being said by plaintiff that 
 there was no consideration for the note, and 
 the defendant asserted that there was, — the 
 Court overruled the demurrer, and ordered 
 the defendant to answer, so as to do com- 
 plete justice between the parties. — Semble. 
 It is no fraud for a creditor, secured by a 
 promissory note, to take a mortgage in lieu 
 thereof, even if meant to defeat a judgment- 
 creditor, of such his debtor, either at law or 
 in equity. Query. Is notice of an action 
 pending constructive notice of the judg- 
 ment ? Query. In a suit by a judgment- 
 creditor against a mortgagee, to redeem the 
 mortgage, must the mortgagor, [the judg- 
 ment-debtor] be made a party r* Query. 
 Whether the prayer " that justice may be 
 
 MUNICIPALITY— Formation and consti- , 
 tution of, — considered - - - *>' 
 
 see RiaHT-OF-WAT. 2. * 
 
 NEGLECT OF DUTY— Money had and 
 received - - - - - 505 
 
 see Public Officer. 6. v 
 
 NEGLIGENCE— Warehousemen— Privity 
 
 of Contract - - - - - lyo 
 see Warehousemen 
 
 2. Trover — Conversion - 230 \ 
 
 see Privity of Contract. 2. v 
 
 3. Criminal Information — reason- 
 
 39o j 
 see Malicious Prosecution. 1. * 
 
 4 A person who knows a parcel 
 
 1 ;1 U 73 1 f contains a particular kind of articles, which 
 are of appreciable value, but, on asking its 
 Y value, is not told same, but who neverthe- 
 less accepts, without reward, such parcel 
 to transmit to another, is bound to use 
 " such care and diligence, as persons ordi- 
 " narily use in their own concerns, and such 
 " knowledge and skill they have." His 
 (duty under such circumstances is,_to return 
 the parcel to the person who gave it to him, 
 or keep it till he can communicate with 
 that person, or the person to whom it is to 
 be transmitted ; but his accepting such par- 
 cel and thereafter handing it to the carrier, 
 without taking a parcel receipt, bill of la- 
 ding or other security therefor, is strong 
 evidence of negligence, directly or proxi- 
 mately, resulting in. the loss of such parcel, 
 and for which he is liable. His handing it 
 to his clerk to hand to the carrier, without 
 telling his clerk that the parcel contained 
 valuables, who, in consequence, did not 
 inform the cai-rier thereof, is an additional 
 element of such negligence. — S. A. Van . 
 Someren v. Boon Tek & Co. - 427»r. 
 
 5. Implied Contract — goods over- 
 landed — cargo ... - 461 v 
 see Contract. 7. V 
 
 6. Nuisance — repairs of roads and 
 
 bridges — Municipality ... 561 V 
 
 see Roads and Bridges. v, 
 
 7. In order to enable a plaintiff to 
 
 recover damages for loss alleged to be due 
 to the negligence of the defendant, it must 
 be clearly proved and without reasonable 
 doubt, that the loss is attributable to the 
 negligence. So where the defendants in 
 
 3. 
 
 dens 
 
 -Sale, of .-Pitfoperty- 
 see Lis Pendens 
 
 -I; 
 
 p e n - 
 388 
 
 MORTGAGE BOND 
 fraud 
 
 Covenant in, — 
 46' 
 
 see Stay of Action. 1. 
 
 done as the case shall require," is equivalent repairing a boat for the plaintiff, repaired 
 to a prayer for general and further relief P >!he same negligently both as regards the 
 Mungootee Meera Nina v. Athean 355fc materials and workmanship; but such 
 
 defect was a fair height above the load line 
 ►of the boat when on an even keel ; but the 
 ^ boat sunk one morning, shortly after the 
 repair had been executed, while at anchor 
 ,lying on an even keel on a fair calm day 
 "so that the defects were above water, and 
 ■ the sinking of the boat could not be reason. 
 
INDEX. 
 
 709 
 
 NEGLIGENCE— continued. 
 ably attributed to it, — and although it was 
 not shewn that there was any other defect 
 in the boat, or any other cause which could 
 have led to her sinking. — Held, the plaintiff 
 could not recover from the defendants, the 
 loss occasioned by such sinking of the boat. 
 On appeal this decision was affirmed. — Held 
 also, [by the Court below] that although 
 the negligence in the defendants' repairs 
 necessarily hastened the sinking of the 
 boat, after the defect had got below the 
 level of the water, yet, unless the sinking 
 could be shewn to be attributable to the 
 defect, as a prime or material cause, the 
 action was not maintainable. Yebmont 
 
 8. Landing of goods — damages 672 
 
 see Lightebage. 2. 
 NEW TRIAL — In order to obtain a new 
 trial on the ground of surprise, it is incum- 
 bent on the party moving, to prove affirm- 
 atively and clearly, that taking the old evi- 
 dence [already adduced] and the new, 
 [^sought to be adduced] together, the finding 
 is erroneous. It is too late and dangerous 
 to permit such party, on the argument of the 
 rule nisi,_ to supply additional facts in sup- 
 port of his case. — Semble. If a party taken 
 by surprise, does not, at the time, apply for 
 a postponement on that ground, but pro- 
 ceeds with the trial on the evidence he 
 possesses, he is bound by the result. Lim 
 Khay Chuan v. Lim Choon Gek . 534 
 NON-DELIVERY OF GOODS— Breach 
 
 NOTICE BEFORE ACTION— continued. 
 and conscientious belief that they were 
 done in the discharge of duty, and were not 
 done from caprice, or under a vague opinion 
 of one's own powers. Che Him & ors. v.^- 
 
 ROBEBTSON & OBS. - - - 131*^ 
 
 NOTICE OF ACTION— The notice to 
 be given under section 126 of the Conser- 
 vancy Act 14 of 1856, must state the name 
 and address of the intended plaintiff and 
 his solicitor ; it must state the time and 
 place where the trespasses complained of, 
 took place ; and that an action is intended 
 to be brought, otherwise the same will 
 be bad and treated as no notice to the Com- 
 
 action was not maintainable. Yebmont «fi S sioners. A notice headed "Notice of 
 & obs. v. Pbye Riveb Dock Co., Ld. 658| Action," 
 
 of Contract by 
 
 see Bbeach of Conteact. 2 
 NOTICE— Advertisement 
 
 see Covenant. 1. 
 
 NOTICE ACQUIRED— Notice acquired 
 by an agent, so as to affect his principal, 
 need not necessarily have been acquired by 
 the agentin the same transaction, or in course 
 of his business for his principal ; but such 
 notice will be imputed to the principal, 
 although acquired by the agentin a distinct 
 transaction, and not in course of business 
 for the principal, provided there are circum- 
 stances which satisfy the Court, that such* 
 notice was recollected by the agent, and was 
 present to his mind at the time he subse- 
 quently acted for his principal. Khoo Kee 
 v. Laigee & OES. 
 
 NOTICE BEFORE ACTION— The several 
 provisions in the Police Act XIII. of 1856, 
 section 112, afford no protection to police 
 officers and others helping them, nor do 
 they give them any right to a month's notice 
 before action, or limit the party aggrieved 
 to three months for bringing his action, 
 except in cases, not only where the acts 
 complained of are illegal, but where they 
 were done bond fide, in honest ignorance, 
 
 but not otherwise intimating an 
 /action would be brought, is sufficient. Tan 
 /Kim Keng v. MunicipalCommis- 
 
 sionees , 470 ^ 
 
 2. A notice under section 126 of the 
 
 Conservancy Act 14 of 1856, which states 
 that the defendants had, in a certain month; 
 obstructed the plaintiff's water-course, and 
 thereby had prevented the water flowing 
 to the plaintiff's mill, by reason of which 
 he had to give up working his mill, suffi- 
 ciently implies that it is a continuing tres- 
 pass, so as to enable the plaintiff to pro- 
 ceed, although the obstruction was put up 
 a long while before. A person acquires no 
 easement or right to the flow of water, 
 [ jtfhich runs in an artificial course, although 
 l>T such course maybe connected with a natural 
 ..stream, the water of which flows into the 
 
 491 < r artificial course. Tan Kim Keng & anob. 
 \<v. Municipal Commissionebs - 478^ 
 
 364 \ NUISANCE— The Court will, at the suit 
 of a private neighbour restrain, by per-, 
 petual injunction, the performance of a 
 Wyang or Chinese Theatre in a house ad-, 
 joining his, so as not to be a nuisance to 
 him. Yahayah Mebican v. Khoo Hock. 
 Leong & oes. - - - . 466 V^ 
 
 OBSTRUCTION— Flow - of water— ease- 
 ment — right ----- 478 v 
 see Notice of Action. 2. 
 
 ORDINANCE— Construction of, — and 
 Statute 426 
 
 see Construction of Statute. 
 ORDINANCES : 
 571^t2of 1867, s. 1. - . - 
 
 see Fees. 
 5 of 1868, s. 23 . 
 
 see Conjugal Rights. '. 
 22 of 1870, s. 18 - 
 
 see Bill of Sale. 1. 
 
 see also Affidavit. 1. 
 
 I 
 
 - 222 1/ 
 
 236, 
 
 417, 
 
 510 
 426 
 
 5 of 1873- 
 
 see Construction of Statute 
 ———see Administration Bond 480 
 
WO 
 
 "INDEX. 
 
 ORDINANCES — continued. 
 
 — s. 37 see Advocate and 
 
 toe 5. - 
 
 8 of 1873 .... 
 
 see Agreement. 4. 
 
 i see Promissory Note. ! 
 
 s. 17 see Foreign Bill 
 
 9 of 1874, s. 12 
 
 see Court of Requests. 3. 
 14ofJ876 
 
 see Construction of Statute 
 15 of 1876 .... 
 
 see Advocate and Solicitor. 5 
 3 of 1878, s. 25 
 
 see Account Stated. 
 4ofl878 .... 
 
 see Ejectment. 3. 
 s. 2, cl. 7 - 
 
 see Account Stated. 
 s. 6 
 
 PARTNERSHIP— continued. 
 Solici- ings, and they cannot stay proceedings or 
 473 /get their names struck off; but the part- 
 394 i ners who object have a right to be indem- 
 nified against costs. Gan Guat Chuan 
 <ua i<& ors. v. Kho Su Cheang - 2262 
 
 536 ', PARTNERSHIP ACCOUNTS— Excep- 
 471 ,, tions to Registrar's Report — finality 582 f 
 see Accounts. 1. yj 
 
 Decree for, — statement - 647 / 
 
 see Account Stated. , 
 
 PART-PAYMENT— Since the Limitation 
 Act [XIV. of 1859] became Law in this 
 
 426 
 
 473 
 
 624 
 
 650 
 
 see Trade-Mark. 
 6. 
 
 ■ s. 
 
 «ee Mercantile Law. 
 5 of 1878, s. 9 
 
 see "Writ of Arrest. 
 
 : s. 44. 
 
 see Writ of Summons. 
 
 s. 65. 
 
 see Leave to sue. 1. 
 
 s. 422 
 
 see Debtor's Goods. 
 
 — s. 422 b. - 
 
 see Privilege from Arrest. 
 
 — s. 184 
 
 see Amendment. 
 
 — s.s. 105, 123, 126 
 see Ejectment. 3. 
 
 — s. 165 
 
 see Land. 10. 
 
 — s.s. 459 .... 
 see Administrator. 2. 
 
 539 
 476 
 500k 
 
 553 » 
 
 509 
 
 513 
 
 624^- 
 
 652 
 
 602 
 
 561 
 
 509. 
 
 548' 
 
 2 of 1879 ...... 
 
 see Roads and Bridges. 
 
 3 of 1880 
 
 see Privilege from Arrest 
 5 of 1880, b! 27, cl. 2. 
 
 see Mahomedan Law. 4. 
 8 of 1880, s. 26 .... 
 
 see Mercantile Law. 1. 
 2 of 1881, s. 9 sub. s. 3. - . 
 
 see Promissory Note. 5. 
 ORDINARY CALLING— Borrowing 
 money by tradesmen — goods sold — 
 vendor .... 314 
 
 see Contracts. 1. 
 
 PAINS AND TROUBLE— Administration 
 of Estate — Commission - . - 611 
 
 see Trusteeship. 
 PARTNERSHIP— A partner may use the 
 names of his co-partners in legal proceed- 
 
 / 
 
 / 
 
 647 , (Colony, part-payment of principal or inter- 
 est has ceased to revive a debt, if it be other- 
 wise statute barred. A statement of ac- 
 counts between the parties, in which items 
 
 „._ ^appear on both sid.es, and a balance is 
 
 struck which is verbally acknowledged to 
 
 ybe correct, does-not revive the debt. The 
 
 English Law on that subject is now quite 
 
 inapplicable to this Colony. Mahomed 
 
 ^^TGhouse v. Rabia - - 214 
 
 2. Part-payment does not take a 
 
 case out of the Statute of Limitations, 
 [Act XIV. of 1859.] The defendant's ab- 
 sence out of the jurisdiction does not pre- 
 , vent the Statute running, where he might 
 have been served with a summons. Semble. 
 The provision in Act XIV. of 1840 regard- 
 ing part- payment, is impliedly repealed by 
 ?the provisions of the Limitation Act XIV. 
 of 1859, which limits acknowledgments of 
 Statute barred debts, to acknowledgments 
 in writing. Neoh Chin TEk & ors. v. / 
 TanBeow - - - . 392/ 
 
 PAUPER SUIT— Right of wife to sue 
 , husband without intervention of next 
 
 Mend - 622 V 
 
 see Hindoo Law. > 
 
 PAYMENT— Of amount of judgment and " 
 costs, no bar to appeal - - - 12 / 
 
 see Agreement. 1. 
 
 By mistake — creditors — ar range- 
 
 ment - 170 ,/ 
 
 see Composition. 2 
 
 503.'p AYMENT B y INSOLVENT— In order 
 to prevent a payment or gift made by an 
 
 559i' Insolvent on the eve of Bankruptcy, and 
 within two months of his adjudication, 
 'voluntary, — it is not sufficient to shew mere- 
 ly pressure or importunity on the part of the 
 creditor, but also that, such pressure or 
 importunity operated on the mind of the 
 insolvent and led to the payment or gift 
 being made. The fair conclusion to be 
 drawn from all the cases on the subiect 
 appears to be, that in a simple transaction' 
 free from all suspicious circumstances pav' 
 ment made by an insolvent within two 
 months of his Bankruptcy, in the usual 
 course of business, and in consequence of a 
 
INDEX. 
 
 711 
 
 PAYMENT BY INSOLVENT— eontd. 
 bond fide demand, is not a voluntary pay- 
 ment : but where the case is a mixed case 
 in which, though there was pressure on the 
 part of the creditor, there was a desire on 
 the part of the debtor by such payment to 
 accomplish an object of his own, which the 
 creditor was not at the time aware of, — but 
 to_ accomplish which object, the debtor 
 seizes on the creditor's importunity as a 
 favourable opportunity to carry out his 
 object, — such payment will be deemed 
 voluntary ; and the money or goods paid or 
 given under such circumstances is recover- 
 able by the assignee from the creditor so 
 preferred. Smith v. Behn, Meyeb & 
 Co. 101 
 
 PENDENTE LITE— Stamp— action com- 
 menced 548 
 
 see Promissory Note. 5. 
 PERFORMANCE OF CONDITION— 
 Condition precedent - - - 467 
 
 see Agreement. 6. 
 PERMISSION— Statutory limit— non-pay- 
 ment of rent 624^ 
 
 see Ejectment. 3. 
 PERMIT-HOLDER— Holders of Lands 514 
 
 see Land. 8. 
 
 L1J 
 
 / 
 
 PERPETUAL INJUNCTION— Wyang or 
 Chinese Theatre ... - 466 
 
 see Nuisance. 
 PERPETUITY— Rents and profits as ap- 
 plied to certain ceremonies held void 216 
 
 see Charity. 1. 
 PERSONAL OCCUPATION— Bequest- 
 Direction by testatrix ... 475 
 
 see License. 
 PERSONAL PROPERTY— Direction by 
 testator — Gift on trust - - - 255 
 
 see English Law. 3. 
 PLAINTIFF— A plaintiff, although he be 
 entrusted with the prosecution of the suit 
 for the benefit of others jointly with him- 
 self, but who is the sole plaintiff on the 
 record, is debarred from further prosecut- 
 ing the suit, if he, for valuable consider- 
 ation paid him, enters into an agreement to 
 withdraw same. Such an agreement is a 
 valid one, and constitutes a good answer 
 to the further prosecution of the case, 
 Pakeer Mahomed v. Khoo Hock Leong 
 
 and ors 430i 
 
 2. Leave to sue in one Settlement — 
 
 Court will not vary leave - - 500 
 
 see Leave to sue. 1. 
 
 3. — —Line of defence — costs against 
 several defendants ... 512 
 
 see Costs. 6. 
 
 4. —Stay of execution — a mount of 
 judgment ..... 512 
 
 see Stay of Execution. 
 
 PLAINTIFF— continued. 
 
 5. Title to goods — Equitable mort- 
 gagee ..-.-. 553 
 
 see Debtor's Goods. 
 
 6. 
 
 556 v 
 
 —Distinct Actions . 
 
 see Costs. 8. 
 PLEA — Same cause of action — plaintiff 
 and defendant .... 431 kI 
 
 see Defendant. 1. \J 
 
 PLEAS — Civil Jurisdiction — foreign sove- 
 reign ...... 37 
 
 see Jurisdiction. 2. v 
 POLICE — Action against the, — notice- 
 time 131 »y 
 
 see Notice before Action. \j 
 
 Power to arrest intoxicated person 
 j&tering Station without warrant . 254 '- 
 y see Trespass. 2. ,, 
 
 Action against, for anything done 
 
 jh execution of duty — pleadings - 273 i/ 
 see Malice. 1. ]/ 
 
 ^POSSESSION— Twelve years uninterrupt. 
 ed — sufficient to maintain ejectment- 242 >/ 
 ' see Ejectment. 1. J 
 
 /PRESENTATION FOR PAYMENT— 
 /Promissory Note .... 536 '. 
 I see Foreign Bill. v 
 
 PRESS — Action in trover— illegal deten- .. 
 /lion of journals - • - - 31 1/ 
 / see Trover. >, 
 
 ■Libel — carelessness. - - 80 «* 
 see Libel. 1.' v 
 
 Comments upon proceedings in 
 pourt of Justice — privilege - - 603 '/ 
 see Libel. 3. ^ 
 
 PRIME CAUSE— Loss - - . 658 „ 
 see Negligence. 7. j 
 
 / 
 
 ■k. 
 
 RINCIPAL AND AGENT— A principal 
 ^lued his agent for an account, and after 
 getting a decree for reference, objected 
 before the Registrar, to certain items which 
 appeared in the agent's accounts, on the 
 ground that he had exceeded his authority. 
 The Registrar was of opinion, that such an 
 objection could not be entertained by him, 
 and by his Report reserved the items and 
 objection for the Court, On the Report 
 being submitted to the Court, the principal 
 did not further press his objection, and the 
 items were allowed as matter of course. 
 He then sued the agent for malfeasance 
 and misfeasance in regard to these items, 
 /and the defendant pleaded fes jvdicata. — 
 iHeld, [affirming the judgment of the Court 
 below] that the matter was res judicata. 
 The principal, 'in the same enjuiry into 
 accounts, cross-examined the defendant as 
 'to a certain other item in the account, but 
 raised no objection thereto ; and the Regis- 
 /trar, assuming the same to be correct, 
 ■/allowed the item. He then sued the agent 
 
 A 
 
m 
 
 PRINCIPAL AND AGENT— continued. 
 
 
 for malfeasance and misfeasance in respect 
 of this item, to which action the defendant 
 pleaded res judicata, — Held, [by the majori- 
 ty of the Court, Wood, J. dissenting], that 
 the matter in ' respect of this item, was not 
 res judicata, as the plaintiff had neither 
 raised, nor could he be said to have had a 
 proper opportunity for raising an objection 
 to it m the previous action. The above two 
 cases distinguished from each other. A 
 principal does not, — [in respect of an act of 
 an agent who has exceeded his authority 
 by making a loan, but who has obtained 
 judgment therefor, and taken out a writ 
 of execution, against the debtor], — ratify 
 the act of the agent, by levying on such 
 writ, and applying the proceeds thereof, in 
 part satisfaction of the claim. {Wood, J. 
 dissenting]. Shedumbetjm Chettt v. 
 Adagappa Chettt 
 
 PRINCIPAL AND INTEREST— Part, 
 payment — revival of debt - - 214 
 see Pabt-payment. 1. 
 
 PRIVITY OP CONTRACT— continued. 
 
 for the value of the powder lost to him, 
 firstly, [in four counts] for non-delivery of 
 the powder as on a contract of bailment, 
 secondly. [5th count] for negligence, as a 
 bailee of the powder from the plaintiff, 
 thirdly, [6th count] for negligence as bailee 
 of the powder belonging to the plaintiff, 
 fourthly, [amended 7th count,] for trover of 
 the powder. — Held, the plaintiff could not 
 maintain the action on either count, not on 
 the first four counts, as there was no privity 
 of contract between B, the plaintiff, and K, 
 the defendant, — not on the 5th count as K, 
 the defendant, never received the powder 
 from B, the plaintiff, and owed him no duty 
 to safely keep the powder, — not on the sixth 
 count, as the owners and crew of the hulk 
 " P. R.," in which the powder went down, 
 jtere not the servants and agents of K, the 
 663J 'def endant, — and not on the 7th count, 
 as even if there was negligence on the part 
 of K, the defendant, still there was no evi- 
 dence, on above facts, of a conversion by 
 him of the powder. Buchanan v. Kie- 
 
 -SURETT-Holder of joint and £f UJ '""' ;!OS ' °' "^h.^a* « 
 several bill - 455\/jm 
 
 see Pbomissoey Note. 3. 
 PRISONER— Release from custody by 
 Bailiff on Civil process - 173 
 
 see Release feom Aeeest. 
 PRIVILEGE PROM ARREST— A person 
 who comes up from one Settlement of this 
 Colony to another, as a witness on a sub- 
 poena, is privileged in the latter Settlement 
 from arrest on civil process, until he has 
 had reasonable time to return to the Settle- 
 ment from which he came. Query. Is a 
 defendant leaving one Settlement of this 
 Colony for another, liable to arrest under 
 section 422 b. of the Civil Procedure Ordi- 
 nance of 1878, as amended by Ordinance 
 III.ofl880. P.H.Gottlieb v. Lei. 
 cestee .-.-.. 50£h 
 PRIVITY OP CONTRACT — Goods — 
 negligence 190, 
 
 see "Warehousemen. 
 
 2 - B, [the plaintiff,] a manufacturer 
 
 of gunpowder in Scotland, sent certain 
 large quantities of gunpowder to M. & Go 
 of Singapore, factors, for sale. M. &. Co., on 
 receipt of the powder, having no magazine 
 to place it in, placed the same on board a 
 powder hulk called the " S. " belonging to 
 „ ,y^ e . defendant] : shortly after, the 
 " S." being found to require extensive re- 
 pairs, all the powder on board her, includ- 
 ing B.'s was transferred on board the 
 " P. R." another powder hulk belonging to 
 one H., in two or three days thereafter, the 
 " P. R." having sprung a leak, went down 
 with all powder on board, including B.'s. B. 
 [the plaintiff] then sued K. [the defendant] 
 
 230 
 454 
 
 y 
 
 RQB ATE— Translation of Will 
 see Will. 
 
 ROBATE ACT— Court of— Adminis- 
 tration Bond .... 480 
 ( y' «ee Administbation Bond. 
 P R O M I S E— Breach of ,— of marriage- 
 sufficient reason .... 63 
 
 y see Beeach op Peomise. 
 PROMISSORYNOTE— A promissory note 
 [in Malay characters] payable to a person, 
 or the agent of such person, is to be taken 
 as payable to such person or bearer, and is 
 negotiable and can be pleaded as a set off. 
 Shaik Ebeahim Bin Allee v. Co- 
 hen 242 
 
 j/2. Surety - - . . 350 
 
 / see Beeach of Ageeement. 
 
 /\f. It is now settled law, that the 
 
 holder of a joint, or joint and several bill 
 or promissory note is, in dealing with it, 
 affected by knowledge acquired, even after 
 taking the bill or note, as to which of the 
 parties liable is principal and which is 
 surety. Giving of time to the principal 
 under such circumstances, for valuable 
 consideration, but without the surety's 
 knowledge, operates to discharge the surety 
 1± the surety under these circumstances ■ ' 
 
 aware of the fact of time being given''W' 
 does not dissent from it, he will not be'df, 
 charged. A creditor in giving time under 
 such circumstances to the principal witC , i 
 the surety's consent, may, also without +£! 
 surety's consent, nevertheless, r e8e rv» 1 • 
 rights against the surety, and he will 
 ' ' ' ' Ch^btered Mercantile 
 
 be discharged. 
 
INDEX. 
 
 7l3 
 
 PROMISSORY NOTE— continued. 
 Bank of India, &c., v. Letchman Chetty 
 
 & anoe. 4,55 
 
 4. Affixing chops in lieu of signa- 
 ture sufficient .... 533 . 
 
 see Foreign Bill. 
 
 5. A promissory note made and 
 
 stamped under the Stamp Ordinance 
 8 of 1873, but having such stamp can- 
 celled only with the . maker's name, 
 is not admissible in evidence under 
 section 9, sub-section 3 of the Stamp Ordi- 
 nance 1881 ; nor under the repealed Or- 
 dinance 8 of 1873, under which it was made. 
 The fact that the action, on the note, was 
 commenced when the Ordinance of 1873 
 was still in operation, and that such Or- 
 dinance was repealed pendente lite, makes 
 no difference. — Palaniapah Chetty v. 
 
 PUBLIC OFFICER— continued. 
 
 da 
 for 
 
 LjM POH 
 
 vJ?R O P E R T Y— Sale of,— mortgage— lis 
 pendens - - 383 
 
 / see Lis Pendens. 
 
 vPUBLIC OFFICER— An action for 
 mages will lie against a public servant, 
 acting in breach of his official duty, to the 
 injury of any person. The defendant, the 
 Master Attendant or Shipping Officer at 
 Singapore, it was alleged, refused to. place 
 the plaintiff, a duly qualified seaman, on 
 the articles of a merchant vessel, as chief 
 officer, whereby the plaintiff was unable to 
 get the berth and suffered great loss. — 
 Held, [ if the evidence had supported the 
 case,] that the action would lie. The de- 
 fendant advised the captain of a ship, who 
 was about shipping the plaintiff as his 
 chief officer, not to take him as such, on 
 account of his previous conduct on board 
 other ships, whereupon the captain changed 
 his mind, and would, not take plaintiff on. 
 — Held, this was not an obstructing of the 
 plaintiff from being engaged ; and even if 
 it was, was not done by the defendant in 
 breach of his public duty, as it was no part 
 of his public duty to advise the captain. — 
 Held, further, if the plaintiff had any re- -f g^ipE 
 medy for such statement wide by the de- 
 fendant, concerning him, to the captain.. i>. 
 was in a different form of action. Qn ■vr,. 
 Whether an action for slander or lib;* 
 would lie, under the circumstances :' The 
 duty of the Shipping Officer under section 
 4 of the Merchant Shipping [Indian] Act 1 
 of 1859, is not to facilitate engagements 
 for seamen generally, but only in the way 
 pointed out by section 22 ; and that is, not 
 ill assisting them to get employment, but 
 imposed 011, when I 
 
 Colony, of his stipend to another, to secure 
 re-payment of a loan, is contrary to public 
 policy and illegal. Shellumbkum Chet- 
 ty v.. Jones - - 204^, 
 
 '3 . The plaintiff and defendant were 
 
 Magistrates of Province Wellesley, the 
 plaintiff being relieved by the defendant in 
 that office. A sum of money was due the 
 plaintiff by Government, for salary, trans- 
 port and other charges, which the plaintiff 
 requested the chief clerk to receive and 
 remit to him at SiDgapore. These monies 
 passed through the hands of the defendant, 
 who allowed the chief clerk to receive same, 
 but never enquired if he had remitted them 
 till it was found the clerk had embezzled 
 same. — Held, the defendant was not liable to 
 the plaintiff for the amount. Semble. Money 
 548 1 /had and received is'not the proper form of 
 action for such a claim. The plaintiff 
 Should have -stated the facts, and alleged 
 I ' that a duty was cast on the defendant, to 
 see to the proper remitting of the money ; 
 but under the circumstances of the case, 
 no such duty, or neglect of duty on the part 
 of the defendant, was shewn. F. H. Got- 
 tlieb v. D. F. A. Heevey - - 505 »' 
 , ■ see also Agreement. 1. - 12 < 
 
 PUBLIC PURPOSES-Premises t aken 
 for, — compensation - - - 514 i 
 
 see Life Estate. » 
 
 PURCHASE MONEY— Conveyance- 
 Escrow - 432 v 
 
 see Conveyance. t, 
 
 PURCHASER— For value, without notice 
 — defence - - 321 ' 
 
 see Infancy. 
 QUIT-RENT— Crown Land — Receipts— 
 Presumption in law - 3 1 
 
 sac Land. 1. , 
 
 Right of Crown to sue for arrears 
 
 of, — Uovenant - - - - 73 • 
 
 see Land. 3. 
 -Assessment 
 sec Assessment. 
 
 -SfifAsSESSMENT. 
 
 75 
 
 12 3 51 75 587 
 REASONABLE TIME— Delivery '. ' 117 L 
 see Conteact. 1. ! 
 
 REASONABLE AND PROBABLE 
 CAUSE — see Malicious Peose- 
 cution. 1. - - - 393- 
 
 Criminal Charge - - 629 L 
 
 see Malicious Peosecution. 2. 
 RECEIPTS 4ND PAYMENTS— Rat" «f 
 commission to Executor • - 611 1 
 see Teusteeship. 
 Collins RECOVERY OFLAND—seeLAND 10. 652 ' 
 
 to see they were not 
 
 employment was offered them. 
 
 v. Burn ... - 186y! REGISTRAR'S REPORT— Exceptions 
 
 2. The assignment by a public offi- 
 cer in the service of the Government of the 
 
 Finality — Costs 
 
 see Accounts 
 
 586 
 
714 
 
 INDEX. 
 
 REGISTRAR'S REPORT— continued. 
 Accounts definitely dealt with — 
 
 580' 
 
 exceptions overruled 
 
 see Accounts. 
 
 638^ 
 
 -Accounts — res judicata 
 see Principal and Agent. 
 
 663 
 
 ^RESTRAINT— continued. 
 
 ■Of alienation — perpetuity 
 see Wakoff. 3. 
 
 Against alienation — construction 
 ... 633 
 
 'of Will 
 
 see Devise. 2. 
 RELEASE PROM ARREST— The release>lRlGHT OP ACTION- 
 
 of a prisoner taken into custody on civil 
 process, though permitted by the bailiff, 
 does not debar the plaintiff from re-arrest- 
 ing him, unless the plaintiff has consented 
 to, and ratified the act of the bailiff. Regina 
 v. Benton, 2 Exch. 216, remarks of Parke 
 B. observed on. The fact that the bailiff 
 so releasing, is a special bailiff of the plain- 
 tiff, makes no difference in this respect 
 Chartered Mercantile Bank 
 D'Rodas 
 
 ''RIGJ 
 
 RENT — Annual — for purposes of a s s e s s 
 Inent ... 
 
 see Assessment. 1. 
 
 2. Where a landlord receives rent 
 
 in advance on the execution of a lease, and 
 the lease simply provides that " the sum 
 " obtained in advance should be deducted 
 "hereafter," and the tenant after paying a 
 few months' rent, declined paying any 
 further, contending that the advance should 
 be taken to account of rent, whereupon the 
 landlord distrained for rent. — Held, on the 
 wording of the lease, and the above facts, 
 the advance was liable to be taken to account 
 of rent at any time after the execution of 
 the lease, although it had still some years 
 to run ; and therefore, no rent was due, and 
 the distress should be set aside. Maho- 
 med Ghouse v. Boey Ah Wah 
 
 3. Letting from month to month- 
 lease— practice - - - 637 
 
 see Tenant. 2. 
 
 testator as to application of, for ceremonies, 
 held void . 216v 
 
 see Charity. 1. 
 ■ Division of Collection and manage- 
 ment of, — certain direction by testator held 
 void on ground of remoteness 255- 
 
 see English Law. 3. 
 
 RE-PAYMENT— Money— condition pre. 
 cedent . . 4.37, 
 
 see Agreement. 6. 
 REQUESTS— Court of,— gee Court of. 
 Requests. 
 
 RESTITUTION OP CONJUGAL 
 RIGHT S — see Conjugal Rights. 
 1. -• 236, 385.1 
 
 RESTRAINT— Against alienation— cquit- 
 
 432 l 
 
 able estate 
 
 see Gift. 3. 
 
 -Of trade — tender — contract 
 
 gee Agreement. 4. 
 
 394v 
 
 -Husband 
 
 Wife 
 
 and 
 622 
 
 ^ 
 
 see Hindoo Law. 
 IGHT-OF-WAY— A plea claiming a 
 right-of-way under the Prescription Act 2 
 & 3, Wm. IV"., Cap. 74, is bad on demurrer, 
 as this Act does not extend to the Straits 
 Settlements. Municipal Commissioners 
 o.Tolson - - - 272 
 
 2. Dedication, so as to constitute a 
 
 I73 /public right-of-way, will not be presumed, 
 , s unless the facts of the case are such as to 
 51 # /shew that the owner of the soil intended 
 /to do so. User alone, for however long a 
 period, is not conclusive on the point ; it 
 may be rebutted by shewing that the state 
 of the title was such that dedication was 
 impossible, or by facts shewing tnat the 
 owner had no such intention. A landing- 
 placefromthe seaside to a highway, is prima 
 facie also a highway ; but the presumption 
 is not absolutely necessary, and may be 
 rebutted as above stated. Trustees of land 
 for a special purpose have no power to dedi- 
 cate it as a highway. A private right-of- 
 way over land granted for a special purpose, 
 will be presumed after user for several 
 years, where its user as a private right-of- 
 way, would not be inconsistent with the 
 
 555 /purposes for which the land was granted. 
 
 The formation and constitution of the muni- 
 cipal body considered. Municipal Com- 
 missioners v. Tolson - 277 »/ 
 RENTS AND~ PROFITS— Direction by WOHT TO SUE— Substituted agent 472 ►'■ 
 
 tration 
 
 see Attorney. 
 
 -Revocation of Letters of Adminis- 
 
 624 
 see Ejectment 3. 
 
 ROADS AND BRIDGES— The Municipal 
 Commissioners are bound, both by law and 
 by the terms of the Conservancy Act 14 of 
 1856 as amended by Ordinance 2 of 1879, to 
 uphold all public roads and bridges and keep 
 them in proper repair : and in omitting to 
 do so and allowing them to remain in a 
 state of disrepair, they are liable to an in- 
 dictment for causing u. nuisance to the 
 public, as well as to an action by any 
 person who may sustain direct and parti- 
 cular damage, for such breach of duty on 
 their part. Where a duty is imposed by 
 law or Statute on a person or body of 
 /persons, they do not release themselves 
 from discharging that duty, or fr ee ^ 
 selves from liability in respect thereof b " 
 
 Y< 
 
INDEX. 
 
 715 
 
 ROADS AND BRIDGES— continued. 
 handing it over to another to perform it. 
 The defendants, whose duty it was to up- 
 hold and repair public roads and bridges, 
 gave the work on contract to a third party. 
 One of such bridges, for want of proper 
 repair, gave way, whereby plaintiff's horse 
 was injured.— Held, that it was the duty of 
 the defendants to uphold and repair the 
 bridge, their letting the work out, did not 
 free them from liability for the negligence 
 of the contractor, in not properly repairing 
 the bridge. Pateeson i " 
 
 MISSIONEES 
 
 -English — see Scire 
 
 RULES OF COURT 
 
 Facias 
 
 SALE — Memorandum of, — Goods sold 
 
 Statute of Frauds 
 
 see Goods. 1. 
 
 SCIRE FACIAS— In a case of scire facias to 
 revive a judgment, it is too premature and 
 irregular to arrest the defendant before the 
 time allowed by the scire facias to shew 
 cause, has expired, and the defendant will 
 be discharged from custody. If judgment 
 is recovered againBt two, and one shortly 
 after, is adjudicated insolvent, and the 
 judgment is thereafter sought to be revived, 
 the scire facias need not issue against the 
 insolvent judgment-debtor, but only against 
 the other. Sembie. If the rule, in a mo- 
 tion to set aside proceedings for irregular- 
 ity, is made absolute, and nothing is said 
 about costs in the motion paper, costs will 
 not be allowed. Query. Do the rules of 
 Court in England and the Statute 13 Edw. 
 
 SECT — continued. 
 
 person other than of her own nationality. 
 The girl went through the ceremony of 
 marriage with the man, without her guar- 
 dian's consent, and the guardian obtained 
 an injunction from this Coui-t, restraining 
 the consummation of the marriage. On a 
 first motion to dissolve the injunction, the 
 Court refused to do so, the girl being then 
 still a Shaft, according to which sect a vir- 
 gin could not contract marriage at any 
 age, without her guardian's consent. The 
 Mun icipal Com" girl then renounced the tenets of the Shaft 
 561 •'sect, and embraced those of the Hanifa, 
 and then renewed her application. — Held, 
 
 274 1 /that her change of sects was valid; and, 
 
 ag'a Hanifa, she being of the age of puber- 
 
 32' / V' was emancipated from all guardianship, 
 and at liberty to marry whom she chose, 
 and the injunction was dissolved with costs. 
 Muhomed Ibrahim v. Gulam Ahmad, 1 
 Bom. H. C. Rep. 239, followed. Salmah / 
 
 & ANOE. V. SOOLONG - - - 421 1/ 
 
 SECURITY— Payment of rent^-action in 
 ejectment - ... 635 V 
 
 see Stat op Action. 2. 
 
 SERVANT— The term "servant" in clause 
 2, section 1 of the Limitation Act 14 of , 
 1859, applies to domestic or menial servants 
 only — and is not applicable to a cla^ri for 
 wages by the supercargo or nacodah of a 
 ship. The limitation of 3 years, under 
 clause 9 of section 1, is the limitation ap- 
 plicable to such a claim. Lim Pek Tee v. 
 
 Lim Teet & oes 479 * 
 
 SHAFI SECT— see Sect - - 421 * 
 
 I, c. 45 [West 2], extend hereP Chan [SHERIFF— Seizure and sale by— conver. 
 Guan Tak v. Chin Kim Fat & anoe. 274i'si on 64 
 
 SEA- WORTHINESS— In all questions of 
 sea- worthiness, the law of the country to 
 which the ship belongs, must prevail. In 
 order to constitute deviation, there must be 
 a voluntary act on the part of those on 
 board, to turn out of the course : and any 
 going out of that course, which is attribut- 
 able to ignorance, or tide, or weather, is 
 not a deviation. Veeappa Chetty v. 
 Ventbe - - -• 174 1)/ 
 
 SECT — A Shaft female who has arrived at 
 puberty, may lawfully renounce the tenets 
 of that sect, and embrace those of the Ha- 
 nifa. According to the Hanifa sect, a girl 
 who has arrived at puberty, is legally 
 emancipated from all guardianship, and is 
 at liberty to marry whom she chooses, 
 whether her equal or otherwise. An Arab 
 Shaft female, having arrived at puberty, 
 was desirous of marrying a Kling Moha- 
 medan ; her Guardian or Wali, refused to 
 consent to the marriage, on the ground, 
 that she being an Arab, and so considered 
 of a superior caste, could not marry any 
 
 see Judgment-Debtob. 
 
 Under Distress Ordinance — s e e 
 
 Construction op Statute - - 426 
 SHIP-OWNER— Lien for freight— 
 Charter-party .... 109 
 
 Lien for Freight. 
 see Ageeement. 6. - - 467' 
 
 SHIPPING 
 
 see Appeopeiation op Goods 164 
 
 see Bill op Lading - 640 
 
 see Beeach op Ageeement 350 
 
 see Chaetee-paety. 1. - 360 
 
 see Conteact. 7. - - 461 
 
 see Deed. 2. 234 
 
 — see Insurance - - - 378 
 
 — see Lien por Freight 109 
 
 — see Marine Insurance - 482 
 
 — see Negligence. 4. - 427 
 
 — see Privity op Conteact. 2. 230 
 
 — see Public Officer. 1. 186 
 
 — see Sea- worthiness - 174 
 
 — see Servant - - 479 
 
 — see Usage op Trade. - 181 
 
 — see Warehousemen . 190 
 
 — see Wharfage • - 227 
 
M 
 
 INDEX. 
 
 SLANDER— A declaration that the plain- 
 tiff was the Colonial Surgeon of this Settle- 
 ment, and as such had charge of and was 
 responsible for the good management, order 
 and conduct of the General Hospital at 
 Penang and the Hospital at Bntterworth, 
 Province Wellesley, and for the proper 
 medical treatment of the patients therein, 
 and that the defendant, with intent to 
 injure the plaintiff, falsely and maliciously 
 -spoke and published of the plaintiff, in 
 relation to the General Hospital, the words 
 following : — '• It stunk ; it stunk," and aver- 
 ring in an innuendo, that the defendant 
 thereby meant that the General Hospital, 
 was so badly and negligently managed and 
 conducted under the plaintiff, that the 
 Hospital stunk, whereby the plaintiff was 
 injured in his reputation as a medical 
 man, and in his office of Colonial Surgeon 
 in charge of the Hospital — and with the 
 like intent, also falsely and maliciously 
 spoke and published of the plaintiff in 
 relation to. the Hospital at Bntterworth, the 
 words following : " People are sent in 
 " curable, and sent out incurable," and 
 averring in an innuendo, that the defend- 
 ant thereby meant that patients were sent 
 to that Hospital curable, but owing to the 
 negligence and unskilful treatment they 
 received there, they were sent out incurable, 
 whereby the plaintiff was injured as before 
 — sufficiently avers that the words spoken, 
 were spoken of the plaintiff; and not,, as a 
 matter distinct from any direct imputation 
 of blame attaching to him. ' The above 
 words were spoken by the defendant in the 
 presence of the plaintiff, and several other 
 gentlemen, in reference to the general state 
 of and matters connected with these public 
 Hospitals : no express reference was made 
 to the plaintiff therein. — Held, the com- 
 munication was privileged, and in the 
 absence of actual malice, an action did not 
 lie therefor. Veitch v. Djb Mornay 418 
 
 •' SOLICITOR— see Advocate and SOLI- 
 CITOR. 
 
 , SOVEREIGN— Foreign— Civil Jurisdic- 
 tion . . 37 
 see Jurisdiction. 2. 
 
 Foreign— Natural-born British 
 
 subject - 145 
 
 see Jurisdiction. 3. 
 
 SPECIAL AGREEMENT— absence of,— 
 presumption in case of foreign merchant 85 V 
 
 see Foreign Merchant. 
 SPECIAL BAILIFF— sei Release from 
 
 Arrest 1^3^ 
 
 SPECIFIC PERFORMANCE— L and. 
 
 Agreement 
 
 see Contract. 10. 
 STAMP— Tender— Contract - 
 
 see Agreement. 4. 
 Evidence 
 
 see Promissory Note. 5. 
 STAMP DUTY— Annual Certificate 
 
 see Advocate and Solicitor. 
 STATE AFFAIRS— P reduction 
 evidence of document relating to 
 
 see Evidence. 4. 
 STATUTE— Construction of,— and 
 
 582 (/ 
 
 394 l. 
 
 548 1 
 
 473 
 
 5. 
 
 in 
 
 520 
 
 ^ 
 
 A- 
 
 Ordi- , 
 426^ 
 
 see Construction of Statute. ^ 
 STATUTES : 
 1 Ed. VI., c. 14 - - - 216 
 
 see Charity. 1. 
 13 Ed. I , c. 45 - 274 
 
 see Scire Facias. 
 23 Hen. VIII., c. 10 - - 216 
 
 1. 
 
 see Charity. 
 27 Hen. VIII., c. 16 
 
 see Fixtures. 
 32 Hen. VIII., c. 34 
 
 see Covenant. 1. 
 13 Eliz., c. 5 . 
 
 see Judgment-Debtor. 
 29 Oar. II., c. 3 . - 
 
 see Goods. 1. 3. 
 
 — s.4. - 
 
 see Auctioneer. 2. 
 -s. 17 
 
 ; — Prince, — foreign — no exemption 
 
 from jurisdiction if engaged in mercantile 
 
 transactions .... 298 
 
 see Jurisdiction. 5. 
 
 Prince — release of claim — promise 
 to pay ... 536 
 
 see Foreign Bill. 
 
 diction 
 
 see Mercantile Law. 
 29 Car. II., o. 7 - - 
 
 see Contracts. 1. 
 9 Geo. II., c. 36 
 
 see Charity. 1. 
 53 Geo. III., c. 155, s. 93 
 
 see English Law. 3. 
 9 Geo. IV., c. 14 . 
 
 see Mercantile Law. 
 9 Geo. IV., c. 31 . 
 
 see Trespass. 2. 
 8 & 9 Wm. III., c. 11., s. 8 
 
 see Interest on Judgment. 
 2 & 3 Wm. IV., c. 74 - - 
 
 see Right-op-way. 1. 
 3&4Wm. IV., c. 27 
 
 see Immoveable Property. 
 see Award. 2. 
 
 1. 
 
 1. 
 
 8 & 9 Vict., c. 106 
 
 see Ejectment. 
 '20 & 21 Vict., c. 77 
 
 see Administration Bond 
 see also Foreign Sovereign — Juris-4 38 & 39 Vict., c. 91 . 
 
 see Trade-Mark, 
 
 43 
 
 - 364 
 
 - 64 
 32, 184 
 - 654 
 
 - 559 
 314 
 
 - 216 
 
 - 255 
 - 559 
 ■ 254 
 
 73 
 272 
 386 
 
 438 
 242 
 
 480 
 
 650 
 
Index. 
 
 71? 
 
 trial 
 
 STAY OF ACTION— The Court will not 
 stay an action on a covenant in a mortage 
 bond, until after the hearing of an equity 
 suit, brought by the defendant against the 
 plaintiff, to have such bond cancelled, as 
 
 having been obtained, by fraud. Shedum. / 
 
 beum Chetty v Shagapah Chetty 467 ^TENANT— Title— Assignee 
 
 2. The Court stayed an action in eject- 
 ment, on the ground that a suit in Equity was 
 pending, — in which the same point was in 
 question and in which suit a decree for 
 accounts had, been made — until the finding 
 and report on such account — but ordered 
 the defendant to give the plaintiff, security 
 for payment of the rent of the property, 
 [the subject of the ejectment,] accruing 
 during the pendency of such suit in Equity. 
 Hashim Nina Meeican v. Khatijah 
 Bee & oes .... 635> 
 
 STAT OF EXECUTION— The Court 
 refused to stay execution in a suit, or order 
 the defendant therein to pay into Court a 
 portion of the amount of judgment, on the 
 application of a plaintiff in another suit, 
 and a creditor of the plaintiff in the first, 
 although it was alleged that the plaintiff in 
 the first suit was insolvent. Golam Kadee 
 v. Shagapah Chetty - 
 STAT OF PROCEEDINGS— Co-partners 
 — costs ... 
 
 see Paetneeship. 
 
 Payment of costs 
 
 see Administration. 
 
 on ground of, — , 
 534^ 
 
 V 
 
 of,— - 377 
 
 512 /TESTATOR— Direction by, that legat, 
 
 STRAITS VESSEL &-T r a d e r s— ' 
 Usage 181 
 
 see Usage op Teade. 
 STRANGER TO DEED— M ortgage- 
 trespass — partner ... 234 
 
 see Deed. 2. 
 
 ■ Partners — proper parties to bring 
 
 action ...... 235 • 
 
 see Deed. 3. 
 STREAM — Natural — artificial c o u r s e — 
 flow of water ... - 478 
 
 see Notice of Action. 2. 
 
 seeWEiT of Summons. 
 
 Service out of Jurisdiction — claim 
 
 not barred 536 
 
 see Foeeign Bill. 
 SUNDAT — Plea — note made on, — promise 
 to pay 314 
 
 see Gonteacts. 1. 
 SUPREME COURT— Sum recovered in, 
 when within jurisdiction of Court of Re- 
 quests — costs .... 472 
 
 see Attoeney. 
 SURETT— Promissory Note - 350 
 
 see Beeach of Ageeement. 
 
 Principal and, — valuable consider- 
 ation 455 
 
 see Pkomissoey Note. 3, 
 
 SURPRISE— New 
 evidence ... 
 
 see New Teial. 
 TEMPLE— Gift for benefit 
 
 see Gift. 2. 
 
 429 ■/ 
 
 see Landloed and Tenant. v* 
 
 2. Whether a tenant, who holds for a 
 
 term of years, and after the expiration of the 
 lease continues to do so, paying rent for his 
 holding, is a tenant from year to year or 
 otherwise, is a question of fact to be gathered 
 from the circumstances ; but ought to be 
 such a tenant as is just and fair between 
 the parties. The leaning of authorities is 
 however in fav6r of the presumption of the 
 tenancy being from year to year ; and the 
 ' reason for this, is founded mainly on com- 
 mon sense and justice. Neither the practice 
 in this Colony to let from month to month, 
 — nor the fact that by the former lease, 
 rent is reserved not by the year, but by the 
 month, — rebuts the presumption. Syed 
 Mahomed Alsagoff v. Max Behe 637 * 
 
 TENDER— Contract— Stamp 
 see Ageeement. 4. 
 
 394 
 
 ees 
 recover 
 
 or devisees proceeding to law to 
 222 their shares, to lose legacies, held void 255 
 
 •/ see English Law. 3. 
 
 601 If'TlTLE— Faulty — n o n-co m p 1 e t i o n of 
 purchase ..... 654 
 y see Atjctioneee. 2. 
 
 ^TITLE DEEDS— Deposit of,— equitable 
 'mortgage — pledge - - - 347 
 - see Deposit of Deeds. 
 
 TITLE OF SUIT— Power of Court of Ap- 
 peal to allow amendment in - - 624 
 see Ejectment. 3. 
 
 [ TITLE TO GOODS— Attachment— equic- 
 able mortgage of personalty- . - 553 
 
 see Debtoe's Goods. 
 TRADE— Usage of,— Knowledge of,— ex- 
 SUMMONS — Serviceoutof Jurisdiction 476 /perience — Straits Vessels - - 181 
 
 see Usage of Teade. 
 
 TRADE -M ARK— Semble. The Registra- 
 tion of Trade-Marks Act, 38 & 39 Vict., c. 
 91, does not apply to this Colony : and sec- 
 tion 6 of the Civil Law Ordinance IV. of 
 1878, which extends to this Colony mercan- 
 tile law generally as it is in England, has 
 no reference to so specific and exceptional 
 a subject. A trade-mark may be acquired 
 ^in this Colony, under the common law, and 
 independently of the statute above-mention- 
 ed. The fact that the registered owner of 
 a trade-mark, in addition to the registered 
 , mark, has other marks and figure about it, 
 as mere adjuncts thereto, does not deprive 
 jhim of his right to such registered mark, 
 , or prevent his suing a person who copies 
 
718 
 
 INDEX. 
 
 TRADE-MARK — continued. 
 such registered trade-mark. The measure 
 of damages for copying a trade-mark, is 
 the amount of injury done to the plaintiff, 
 by the illegitimate trade practised there- 
 with by the defendant. Vulcan Match 
 Go. v. Hebm. Jebsen & Co. - - C5CH 
 TRANSFER OF PROPERTY— Third- 
 party — fraud — Execution- Creditor - 64 
 
 see Judgment-Debtor. 
 TRANSFER OF RIGHT TO SUE— Trus- 
 tee — nexfcof-kin - 624 
 
 see Ejectment. 3. 
 TRANSLATION OF WILL— Probate— 
 
 TROVER— continued. 
 suchpaper, and had always, theretofore, for- 
 warded him all letters and parcels address- 
 ed to the " Editor," and was present, in 
 company with the Resident Councillor, on 
 a previous occasion, when the plaintiff in 
 open Court, avowed himself the Editor 
 — Held, these facts in no way deprived the" 
 ''defendant of his justification. Edwards 
 /«. Westerhout -. - - - 31 S 
 
 Evidence 
 
 see Will. 
 TREATY— Construction of— Evidence 520 
 
 see Evidence. 4. 
 TRESPASS— Judgment in action o f 
 title to freehold in issue — estoppel 
 
 see Ejectment. 1. 
 
 2. An action for trespass and 
 
 false imprisonment, the defendant pleaded 
 a former acquittal for the same causes of 
 action by the Police Magistrate. — Held, on 
 demurrer, that the plea was bad, as the 
 Statute 9, Geo. IV., c. 31, does not extend 
 to this Colony. A Constable who arrests 
 and imprisons a person who enters into a 
 police station in an intoxicated state, and 
 creates a disturbance therein, is justified in 
 so doing, although he acted without a war- 
 rant, by the 86th section of Act XIII. of 
 1856 and 22nd section of Act XL VIII. of 
 1860. The plaintiff having recovered judg- 
 ment on the first count, and the defendant 
 on the second count, the Court, by virtue 
 of sections 102 of Act XIII. of 1856, and 29 
 of Act XL VIII. of 1860, allowed the defend- 
 ant his full costs against the plaintiff, but 
 refused to allow the plaintiff any costs. 
 The plaintiff having demurred to the plea 
 of the defendant [a police officer ], and the 
 demurrer being allowed, he was allowed 
 his full costs of such demurrer against the 
 defendant. Mahomed Ally v. Scully 254 
 
 . 3. Obstruction — Easement or right 
 
 to flow of water .... 473 » 
 
 see Notice op Action. 2. 
 TROVER— The plaintiff, the Editor of a 
 
 454 ( 'portions of the estate, 
 
 " TRUST — A testatrix made over to her exe- 
 cutors " as such," all her estate " but in 
 " trust always for the purposes hereinafter 
 " mentioned." She then disposed of various 
 and directed her 
 remainder, and to 
 
 executors to collect the 
 
 weekly paper, sued the defendant, theDepu 
 ty Postmaster of Malacca, in trover, for 
 the detention of certain journals and par- 
 cels addressed to him as such Editor. The 
 defendant pleaded and proved, that he 
 detained such letters and parcels by order 
 of the Resident Councillor, until the person 
 to whom they were addressed, declared in 
 writing, the name of such Editor.— Held, 
 the defendant was justified in so detaining 
 the journals and parcels. The defendant 
 was aware the plaintiff was the Editor of 
 
 apply and distribute the same, all circum- 
 stances considered, in such manner as to 
 them appeai-ed, just. — Held, there was no 
 242 \ / stft to the executors individually, but only 
 upon trust ; and inasmuch as the objects 
 were not declared, the trust was void, and " 
 the property comprised therein went to the 
 next-of-kin. The testatrix also directed 
 that the upper story of a certain house 
 should be neither mortgaged nor sold, but 
 kept as " a family residence." No time 
 was mentioned during which the house was 
 so to be kept, nor was the word " family," 
 defined.— JHeJd, the gift was void for uncer- 
 tainty, and as tending to a perpetuity. The 
 testatrix also left four houses upon trust, 
 to rent the same to two of her executors, for 
 the period of 40 years at $100 per mensem, 
 and to renew the lease from time to time. 
 — Held, the trust was a good one. She also 
 directed a sum of §50,000 should be lent 
 to the said two executors for the term of 
 40 years, at 5 per cent, per annum, and to 
 renew the loan from time to time : the 
 interest she declared, Bhould form part of 
 her residuary estate. — Held, the trust was 
 a good one. She also directed that certain 
 property should be held on trust, to allow 
 one Lim Ah Yong to reside thereon, free of 
 rent for 40 years, and that after that period, 
 the property was to become his, or his heirs. 
 / — Held, that the said Lim Ah Yong had 
 simply a license to live in the premises, and 
 the gift over was bad, as violating the law 
 against perpetuities. She directed certain 
 plantations to be reserved as a family 
 burial-ground, and that the same was not 
 to be mortgaged or sold.— Held, the gift 
 was void as tending to a perpetuity. She 
 also directed that a certain house was to be 
 built on a portion of these plantations to 
 be palled the " Sow Chong," and in which 
 religious ceremonies to the dead were to be 
 celebrated. — Held, the trust was void as 
 being a perpetuity, and not a charity 
 Evidence of reputation of two persons bein 
 husband and wife, even among Chinese if 
 
INDEX 
 
 719 
 
 TRUST— continued. 
 
 admissible on a question of marriage or no 
 marriage, and is evidence of such marriage. 
 The above decisions, on appeal, affirmed 
 by the Privy Couneil. Ong Cheng Neo 
 v. Yeap Cheah Neo & ors. 326 
 
 TRUSTEE OF CHARITY— see Devise 616 
 
 see Devise. 1. 
 TRUSTEES OF LAND— Power to dedi- 
 cate — high- way . . 277 Ip 
 
 see RlGHT-OF-way. 2. 
 TRUSTEESHIP — When one and the same 
 person is appointed executor and trustee 
 under a Will, his executorship ceases, and 
 his trusteeship commences on the estates 
 vesting in him [by virtue of the Will and 
 his assent to the devise,] subject to the 
 specific trust declared by the Will. This 
 Court is bound by the Letters Patent of 
 1855, to allow a reasonable commission to 
 
 an executor, [out of the testator's estate,] 
 •for his " pains and trouble" in administer- 
 ing the same ; but there is no fixed rule to 
 allow him 5 per cent, on the amount of the 
 assets, whether there be appreciable trouble 
 or not. The rate of commission might be 
 even greater or less, according to the nature 
 of the estate administered and the trouble 
 and pains necessarily taken by the executor : 
 ' the amount of assets has little to do with it. 
 In the case of a testator dying perfectly 
 solvent, with a balance of ready money 
 in hand, and having devised his real 
 estate specifically among certain devises, 
 the executor's pains and trouble would be 
 so trifling, that 5 per cent, commission to 
 him would not be just or reasonable. The 
 fixed rate in India, of 5 per cent, on receipts 
 and payments, is not binding here, inas- 
 much as the incidents of an executorship 
 in India and this Colony, are not the same. 
 Here he succeeds to real estate under the 
 Act XX. of 1837. Wanchee Incheh 
 Thyboo & ANOK«. GolamKader - 611 
 USAGE OF TRADE— In order to establish 
 an usage of trade, the evidence of men per- 
 sonally connected with the trade, and who 
 have acquired their knowledge of its usage, 
 not from hearsay, but from experience, is 
 required. There is no usage of trade, 
 applicable to Straits trading vessels trad- 
 ing between Singapore and Penang, which 
 permits of their touching in at Malacca, so 
 as not to render it a deviation, when such 
 vessel is insured only " for voyages between 
 " Singapore and Penang." Straits owned 
 vessels, plying between the Straits and ports 
 outside the limits of the Colony, are not 
 " Straits Traders," so as to be affected by 
 Straits usage in trade. Abmoogum Chetty 
 v. Lee Cheng Tee & anob. 
 USER^-Public right-of-way— title 
 see Right-of-way. ii. 
 
 VALUE — Annual,— for purposes of assess- 
 ment - 51 
 
 see Assessment. 1. 
 VENDOR — Action for non- completion of 
 purchase — title .... 654 
 i see Auctioneer. 2. 
 
 Manufacturer — sales of goods — 
 
 'implied warranty .... 667 '•■ 
 
 see Caveat Emptob. 2. 
 VENDOR AND VENDEE— Failure of 
 consideratio n — maxim caveat 
 emptor - " - 167 , 
 
 see Failure of Consideration. 
 VESSELS— Straits o w n e d— S traits 
 
 traders 
 
 see Usage of Trade. 
 
 see also Shipping. 
 
 WAGES — Claim of, — domestic or 
 
 277 
 
 181^ 
 
 menial 
 479 
 
 servant, — limitation 
 
 see Servant. 
 WAKOFF — Direction by testator as to 
 rents and profits of, held good - 255 
 
 see English Law. 3. 
 2. Land set aside as, — for burial- 
 ground of donor and fainily, held void 324 
 
 see Land. 7. 
 
 3. A devise of a shop as a Wakoff, 
 
 which was not to be sold, but its rents to 
 go for its repairs, and the balance thereof 
 for Kandoories for the testator's benefit, 
 is void as being in restraint of alienation, 
 and tending to a perpetuity. Such a clause, 
 though void from the moment the Will 
 takes effect, is still not beyond the right of 
 the next-of-kin to call in question ; though 
 for several years they may have acquiesced 
 in it, and make no claim to have same set 
 aside, for more than 12 years from the time 
 the Will first operated. The trustees of the 
 shop, for the purpose of Wakoff and Kan- 
 doories, do not cease to be trustees, merely 
 because such devise is void : they hold it as 
 'trustees for that purpose until the devise is 
 held void, and thereafter, in trust for the 
 next-of-kin. The case falls within section 
 2 of the Limitation Act XIV. of 1859, and 
 is not barred by limitation. Mustan Bee 
 & ors. v. Shina Tomby & anor. - 580 \is 
 
 4. see also Charity. 3. - 489^ 
 
 WAREHOUSEMEN— A warehouseman 
 who undertakes to warehouse goods in a 
 ship, impliedly undertakes to use due care 
 in keeping the ship in good condition and 
 reasonably water-tight ; and also to have a 
 sufficient number of hands on board to 
 answer any emergency. The fact that the 
 warehouseman has placed such a number 
 of hands on board, as is ordinarily to be 
 /found in other vessels, used for the same 
 
 181v purposes, does not, of itself, relieve him 
 
 from the responsibility, should the goods 
 entrusted to him be lost. Nor is he relieved 
 
720 
 
 INDE^. 
 
 I 
 
 WAREHOUSEMEN— continued. 
 from responsibility by the fact that he has 
 placed a reasonably sufficient number of 
 men on board with express directions that 
 they were not to be absent from the ship, 
 and the men, in spite of his directions, 
 wilfully absent themselves, leaving so few 
 hands On board as to be unequal to meet an 
 emergency. The defendants, the owners of 
 a hulk, received, for reward, certain quanti- 
 ties of gunpowder from the plaintiffs to be 
 warehoused on board their hulk, they 
 placed a European captain and four native 
 seamen on board her, with express direc- 
 tions they were not to be absent from the 
 hulk at nights, three of whom, however, on 
 the night in question, disobeyed the order 
 given them, leaving two only of the men 
 [natives] on board : the number of hands so 
 placed by the defendants was the customary 
 number placed on board other hulks 
 similarly used. The hulk after taking in 
 an extra quantity of gunpowder than usual, 
 on the night in question, sprang a leak and 
 sank with all gunpowder on board. — Held, 
 the defendants were guilty of negligence, 
 . and liable to make good to the plaintiffs 
 the value of gunpowder received from them. 
 The defendants' hulk, on the day of the 
 night in question, took in certain quantities 
 of gunpowder belonging to the plaintiffs 
 from another hulk, bat without the privity 
 of the plaintiffs, and that night sank as 
 stated above.— Held, the plaintiffs could 
 not sue the defendants for neglio-ence in 
 respect of this quantity, as there was no 
 privity of contract between them. Martin, 
 Dyce & Co. v. Hodgson & Co. - - 190v' 
 WARRANTY— The Plaintiff bought 158 
 slabs of tin of the defendant, and at the 
 time noticed that 137 slabs- bore the chop of 
 the defendant's firm, but the remaining 21 
 bore the chop of another firm — ancf so 
 remarked to the defendant. The defend- 
 ant in reply said, " all the tin that <>oes 
 out of my shop is good." The plaintiff 
 took delivery of the tin, paid the full price 
 for the 158 slabs, and conveyed the same 
 to Singapore. There he discovered that the 
 21 slabs were spurious, being a mixture of 
 tm, and other inferior metal. He brought 
 the slabs, or such portion thereof as had 
 not been resmelted at Singapore, to Penano- 
 and claimed of the defendant, a return ol 
 his purchase money in full, as for a breach 
 of warranty. The defendant, having satis- 
 lied himself that the 21 slabs were spurious 
 tendered the plaintiff the price paid for 
 same, which the plaintiff declined to receive, 
 and commenced this action. — J£,-ld, lstly' 
 the words " all the tin that goes out of my 
 shop is good," amounted to an express 
 warranty that the tin was pure and 
 
 WARRANTY— continued. 
 was general, and applied to the \vJiole 581 
 slabs; and being entire, though it only 
 partially failed, the plaintiff was entitled 
 to recover back the whole of his purchase 
 money. General observations on warranties, 
 in commercial matters. Kho Chin Jan & 
 anob v. Lim Tow & oes. - - 22 
 
 2. Implied — sale of goods - 6t!7 <s 
 
 see Caveat Emptor. 2. 
 WATER — Right to flow of, — stream — arti- 
 ficial course - - - - 478 * " 
 see Notice of Action. 2. ^ 
 WAY— Plea claiming right of . . 272 ' 
 see Right-of-way. ] . t 
 WAYANG— Perpetual Injunction - 466 \/ 
 see Nuisance. (/ 
 WHARFAGE— Plaintiff was the charterer 
 of a ship, which he chartered at 24 sh. per 
 keel, " in full of all charges, wharfage and 
 "other dues," and loaded her with a cargo of 
 coal for Singapore. He contracted to sell 
 the coal to defendant, at 36 sh. per ton to 
 be " delivered alongside any craft, floating 
 " depot, steamer or wharf, as buyers may 
 " direct, and in full of all charges." On the 
 ship's arrival at Singapore, the defendant, 
 [the purchaser] directed that she should 
 go alongside the Borneo Company's Wharf, 
 which she did, and there delivered her car- 
 go of coal which was received by the Com- 
 pany on the defendant's account, and ware- 
 housed by them. The Company charged 
 the defendant with [among other things] 
 .wharfage, which he paid and subsequently 
 claimed to deduct [and retained] from the 
 price of the coals to be paid the plaintiff, 
 alleging that by the terms of the contract, 
 he [plaintiff] was liable therefor : the plain- 
 tiff refused to submit to this and commenc- 
 ed an action for the recovery of the amount 
 retained. — Held, that the plaintiff was not 
 liable for the wharfage, as on the true con- 
 struction of the contract, the words " in full 
 "of all charges" meant, that the ship [plain- 
 tiff] could make no charge which it might 
 otherwise have been entitled to, such as 
 labour for taking the coal out of the hold, 
 harbour dues, &c, and not that the ship- 
 owners or charterer would defray expenses, 
 falling immediately on the purchaser, [de- 
 fendant] by his voluntary act. — Held, fur- 
 ther, that wharfage is a charge on the 
 shipper or consignee of goods, and not on 
 the ship, and so property fell on the defend- 
 ant. — Held also, that the contract of sale 
 though annexed to the charter-party, could 
 not be construed in conjunction with the 
 ''■■*' ■■• 3 the expression in the lattc 
 
 latter, and 
 full of all 
 the words 
 
 r, 
 
 merchantable ; and 2ndly, that the warranty | contract of sale, Challis v. Qrame 
 
 wharfage " did not explain 
 m full of all charges " rn the 
 
 " » 227 > 
 
INDEX. 
 
 721 
 
 WHARFINGER— Warehouse— I m p 1 i e d 
 contract - 461 
 
 see Contract. 7. 
 
 WIFE'S PROPERTY— Real and personal 
 — right-of -action against husband - 622 
 
 see Hindoo Law. 
 WILL — The Court is not bound by the 
 translation of a Will, which is attached to 
 the Probate, if such translation is incorrect 
 —but may look at the true translation, and 
 go into evidence to find what the true trans- 
 lation is. Probate is granted by the Supe- 
 rior Courts to the Will of a Testator and, 
 not to the translation of same, although 
 made by the Interpreter of the Court. 
 Lim Mah Yong v. J. A. Anthony & 
 ors. -... . 454' / 
 
 WITNESSES— Competency of,— d e t e r- 
 mined by law of f orum - - 255 l 
 
 see English Law. 3. 
 
 -Apportionment of costs 
 see Costs. 8. 
 
 WORDS— "Acceptance and part- 
 receipt" 32 
 
 see Goods. 1. 
 
 ■" Action for the recovery of 
 
 land" 652 
 
 see Land. 10. 
 
 "Actual rent" - - - 75 
 
 see Assessment. 2. 
 
 " All that goes out of my shop is 
 
 good" 22 
 
 see Waebanty. 1. 
 "Ancestor" 596 
 
 see Disteibution of Property'. 
 i " Annual rent — annual value" 51 
 
 see Assessment. 1. 
 " Bailiff or other officer" 426 
 
 see Devise 2. 
 
 — " In full of all wharfage and other 
 556^68"— " In full of all charges." - - 227^ 
 see Charter of Ship. 
 
 " In his tfwn right" - 602 ^ 
 
 see Administrator. 2. 
 
 ; If necessary goods to be landed 
 
 see Construction of Statute. 
 " Camp follower" - - 1,' 
 
 see Military Law. 
 " Children" . - - 255*' 
 
 see English Law. 3. 
 — *' Circulated" - - 360 IK 
 
 see Chaeter-Paety. 1. 
 — —" Commissioner" - 12 1/ 
 
 see Agreement. 1. 
 — " Deputy Resident" - - 12 
 
 see Agreement. 1. 
 — " Duly stamped" - - 394 e 
 
 see Agreement. 4. 
 — " Engage to deliver all 
 
 sugar 
 manufactured from 1st October to 30th 
 June, both inclusive" - - - 117 
 
 see Contract. 1. 
 "Family" 475 
 
 see License. 
 — " Family residence" 
 
 see Teust. 
 — " Fees" - 
 
 see Fees. 
 
 326 
 
 222 
 
 WORDS — continued. 
 
 , " Further and other relief" - 647 / 
 
 see Account Stated. 
 — " Good faith" - 
 
 see Contempt of Couet. 2. 
 " Good reason" 
 
 see Jurisdiction. 8. 
 — " Governor" 
 
 205 • 
 476 - 
 
 12 !/ 
 
 see Agreement. 1. 
 
 " Grantors reside at, &c, and is a 
 
 trader" ..... 513V 
 
 see Affidavit. 2. 
 " Gross annual value" 587 s 
 
 see Assessment. 3. 
 " Heirs and successors'' 520 v 
 
 see Evidence. 4. 
 " Her daily expenses" - 596 j 
 
 see Distribution of Peopebty. 
 House to live in" - 633 i 
 
 by master or agent at risk and expense of 
 downers of the goods" - - - 640 y 
 see Bill of Lading. 
 
 " Issues" - - - 255 /■' 
 
 see English Law. 3. 
 1 " Judgment in the case" - 582 *■ 
 
 see Contract. 10. 
 - " Khidiniggur" 
 
 1» 
 
 587 i/ 
 
 see Military Law. 
 > " Laborers" 
 
 see Assessment. 3. 
 - " Law agent to the Company" 12 v 
 
 see Agreement. 1. 
 
 -; " Mahomedanlaw" — "Mahomedan 
 
 law of property" - - 503 V 
 
 see Mahomedan Law. 4. 
 -" Mercantile law generally" - 650 ^ 
 
 see Trade Mare. 
 — " Name of purchaser" . - 654 u 
 
 see Auctioneer. 2. 
 — " Never be mortgaged or sold" 633 </ 
 
 see Devise. 2. 
 — " Notice of action" . . 470 f 
 
 see Notice of Action. 1. 
 — " Outlay actually expended" - 75 <-' 
 
 see Assessment. 2. 
 — " Pains and trouble" - - 611 ^ 
 
 see Trusteeship. 
 -" Picking or refusing" 
 
 380 > 
 
 see Condition Precedent. 
 — " Prescriptive tenant" - - 303" 
 
 see Land. 6. 
 — " Presentation for payment" £36 v 
 
 see Foreign Bill. 
 — " Real question in contro 
 
 versy 
 
 see Amendment. 
 
 513 ' 
 
722 
 
 INDEX. 
 
 37/ 
 
 WORDS— continued, 
 
 . " Resident Cpuncillor" 
 
 see Agreement. 1. 
 " Resident within the Colony" 
 
 see Jurisdiction. 2. 
 
 " Residue of estate at Penang 
 
 and P. W. or elsewhere" 
 
 see English Law. 3. 
 " Rest, residue and 
 
 der" 
 
 tee Life Estate 
 — "Risk" - 
 
 see Insurance. 
 — " Sent in curable" — " 
 
 remain 
 
 Sent out in 
 
 curable" 
 
 see Malice. 
 " Servant" 
 
 2. 
 
 see Servant. 
 — " Signature of purchaser" 
 
 see Auctioneer. 2. , 
 
 — " So long as the Settlement 
 
 mains under the British Flag" 
 see Inheritance." 
 
 " Straits traders" " - 
 
 see Usage of Trade. 
 
 " The sum obtained 
 
 in advance, 
 
 should be deducted hereafter' 
 
 see Rent. 3, 
 
 " Yoyages between Singapore and 
 
 Penang" ... 
 
 see Usage or Trade. 
 -. " Wakoff" - 
 
 see English Law.. 3. 
 " Within eleven days from 
 
 safe arrival, of his vessel 
 
 see Breach of Agreement. 
 
 " Will succeed one to the other, the 
 
 eldest first and the next afterwards." 616 
 
 see Devise. 1. 
 
 WORK AND LABOUR— Builder's Con- 
 tract 
 
 see Contract. 2. 
 WRIT OP ARREST— Where a defendant 
 has been arrested under awrit of arrest, and 
 it is intended to have him discharged from 
 custody, on account of some defect in the 
 
 WRIT OP ARREST.— continued. . ■ 
 12 1' proceedings, — the application, or the rule 
 nisi, should be to set aside the order grant- 
 ing the arrest, and not the writ only. The 
 Court, however, has no power under section 
 9 of the Ordinance 5 of 1878, to order the 
 
 255 "'application, or rule nisi, to be amended ac- 
 cordingly. A plaintiff , bona fide intending 
 to negotiate with defendant about certain 
 
 544«''business in pursuance of an offer to that 
 effect on the part of the defendant, request- 
 
 378 »[' ed thedefendant to come to Penang for that 
 purpose. The defendant came. Owing to 
 the defendant's conduct, the negotiation 
 
 418*j-'fell through, and the defendant thereupon 
 was about to return to his country when 
 'the plaintiff, without any fraud, caused him 
 to be arrested for a debt, altogether inde- 
 pendent of the other business. — Held, he was 
 not at liberty to do so ; and inasmuch as, 
 but for such the defendant's presence in 
 the Colony, the Court had no jurisdiction 
 to entertain the suit, the order of arrest, 
 the writ of summons, and all subsequent 
 proceedings, were set aside. — Semhle. A 
 foreign Sovereign Prince is not exempt 
 from the jurisdiction of the Courts of this 
 
 555>f Colony, unless he is recognized as. such, 
 by the British Crown. Lim Guan Teet 
 v. Tunku Akobe - - - 539v/ 
 
 1 :■: I^WRIT OP SUMMONS— Where it appeared 
 that the plaintiff was unable to serve a 
 255(^rit of summons on a defendant out of the 
 jurisdiction, owing to the great expense 
 which would necessarily be attendant there- 
 in, without a likelihood of his being repaid 
 — the Court ordered a renewal of the writ, 
 although it was not stated that the claim 
 was not barred by Limitation. Inability to 
 f serve a writ of summons, owing to pecu- 
 niary reasons, is a "good reason" within 
 ^he meaning of section 44, Ordinance 5 of 
 1681' 1878. Doyle v. Kaufmann [3 L.R. Q. B., 
 'Div. 7 & 340] distinguished. Rahman 
 Chettt v. McIntyre & ors. . 476 
 
 2- Amendment of Statement of 
 
 defence - . . 513^/ 
 
 see Amendment. 
 
 479 
 
 654 
 
 re- 
 27* 
 
 18L- 
 
 the 
 350 
 
 Printed at the "Singapore and Straits Printing Office."